Milpitas City Council
November 7, 2023

Amendment #2 to Professional Services Agreement Between OUR CITY FOREST and MILPITAS for Lawn Bust Milpitas Pilot Program
2 The term of this Agreement shall be from December 1, 2021 to February 28, 2025, unless earlier terminated as provided herein. The City reserves the right to review the Consultant’s performance at the end of each year and cancel all or part of the Agreement.

3. In the Agreement, Section 20, NOTICE, is amended to state as follows:

Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:

CITY:

City of Milpitas
1265 N. Milpitas Blvd.

Milpitas, California 95035
Attn: Elaine Marshall,
Deputy Public Works Director
CONSULTANT:

Our City Forest
1195 Clark Street, San Jose, CA 95125
Attn: Michael Pistininzi
Director of Field Operations
and shall be effective upon receipt thereof.

4. In the Agreement, EXHIBIT A, Scope of Services, is amended to state as follows:

Lawn Bust Milpitas
CONSULTANT will administer the Lawn Bust Milpitas Pilot, a turn-key lawn make-over program for residential homeowners in Milpitas. The pilot will convert up to 40,000 square feet of high-water using turf to drought-tolerant plants and complete an estimated 20 single family home lawn conversions.

Services provided by CONSULTANT will include the following: Program Administration, Program Promotion, Site Consultation and Selection, Landscape Design and Installation, Customer Training, and Reporting. All completed conversion projects will meet Valley Water’s Landscape Conversion Requirements (https://scvwd.dropletportal.com/landscape-conversion-requirements).

Program Administration

1. CONSULTANT will handle all program administrative functions including project management, schedule, customer service, records and document management. CONSULTANT will meet with City staff on a regular basis and provide project status reports and updates. OFC will provide all necessary staffing for the duration of the project. All inquiries will be responded to within five working days.

Program Promotion

1. CONSULTANT will set up an online website that will include at least the following information:
●Program Description
●Program Eligibility Criteria
●Frequently Asked Questions
●Example Lawn Conversions with clear descriptions
●Link for residents to submit online applications
●Contact information (phone and email) for inquiries

Amendment #2 to Professional Services Agreement Between OUR CITY FOREST and MILPITAS for Lawn Bust Milpitas Pilot Program
3 5. In the Agreement, Section 3 of REPORTING, is amended to state as follows:

2.CONSULTANT will complete all the Phase 2 pilot projects by February 28, 2025.

6. In the Agreement, EXHIBIT B is amended to state as follows:

Schedule of Charges/Payments
CITY agrees to pay CONSULTANT the amounts specified below (not to exceed a total amount of $240,000) during the term of this agreement for completed and verified lawn conversions:
$6 per square foot for replacing turf with climate-appropriate landscaping. The total amount payable for turf replacement shall not exceed 40,000 square feet of converted landscape by February 28, 2025.

7. All other terms and conditions of the Agreement not otherwise modified by this Second Amendment shall remain in full force and effect.

In WITNESS WHEREOF, the Parties agree that this Second Amendment shall be effective as of the Second Amendment Effective Date set forth above, and have set forth below their consent to the terms and conditions of this Second Amendment through the signatures of their duly authorized representatives.

OUR CITY FOREST
APPROVED AS TO FORM:
____________________________
Rhonda Berry
President and Chief Executive Officer
Our City Forest

CITY OF MILPITAS
Approved as to form:

By: By: _____________________________________
Michael Mutalipassi Ned Thomas
City Attorney Acting City Manager
City of Milpitas City of Milpitas
Date: ___________________________________

Amendment #2 to Professional Services Agreement Between OUR CITY FOREST and MILPITAS for Lawn Bust Milpitas Pilot Program
4 APPENDIX A
Reporting Requirements
MILPITAS shall include the following data for the Lawn Bust Milpitas Program to Valley Water for each invoice:

Lawn Busters Direct Installation Program
1) Participants Full Name
2) Contact information, including email and phone number 3) Site Address
4) Approximate turf conversion area
5) Existing Irrigation System (yes/no)
6) First Contact Date
7) Conversion Date
8) Confirmed Lawn Size
9) Verified Project Completion with site owner
10) Post Inspection: verified plant health; functioning irrigation system 11) Plant List for project site
12) Photos from sites, pre- and post-installation

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Second Reading of Ordance 196.12: An Ordinance of the City Council of the City of Milpitas Amending Section 4.05 of Chapter 9 (“Parks”) of Title V (“Public Health, Safety, and Welfare”) of the Milpitas Municipal Code (Staff Contact:

Michael Mutalipassi, City Attorney, 408-858-3040)
Category: Leadership and Support Services
Meeting Date: 11/7/2023
Recommendation: Move to waive the second reading and adopt Ordinance No. 196.12, An Ordinance of the City Council of the City of Milpitas Amending Section 4.05 of Chapter 9 (“Parks”) of Title V (“Public Health, Safety, and Welfare”) of the Milpitas Municipal Code

BACKGROUND:

This Ordinance was introduced at the October 17, 2023 City Council meeting. No edits were requested by the City Council. The Ordinance is now ready for its second reading and adoption.

FISCAL IMPACT:

There is a de minimis fiscal impact associated with the adoption of a clarifying amendment. Public works will have to update the sign in Gill Park to conform with the Council’s adopted policy.

California Environmental Quality Act (CEQA):

The action has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and is not a project pursuant to Pub.

Resources Code, § 21065 and Cal. Code Regs., tit. 14, § 15378.

RECOMMENDATION:

Move to waive the second reading and adopt Ordinance No. 196.12, An Ordinance of the City Council of the City of Milpitas Amending Section 4.05 of Chapter 9 (“Parks”) of Title V (“Public Health, Safety, and Welfare”) of the Milpitas Municipal Code
Attachment(s):
(a) Ordinance 196.12, An Ordinance of the City Council of the City of Milpitas Amending Section 4.05 of Chapter 9 (“Parks”) of Title V (“Public Health, Safety, and Welfare”) of the Milpitas Municipal Code

Ordinance No. ___1

REGULAR
NUMBER: 196.12
TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILPITAS AMENDING SECTION 4.05 OF CHAPTER 9 (“PARKS”) OF TITLE V (“PUBLIC HEALTH, SAFETY, AND WELFARE”) OF THE MILPITAS MUNICIPAL CODE HISTORY:This Ordinance was introduced (first reading) by the City Council at its meeting of ____________________, upon motion by_________________________ and was adopted (second reading) by the City Council at its meeting of _______________, upon motion by ____________________________. The Ordinance was duly passed and ordered published in accordance with law by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
________________________________ __________________________ Suzanne Guzzetta, City Clerk Carmon Montano, Mayor
APPROVED AS TO FORM:
________________________________
Michael Mutalipassi, City Attorney
BE IT ORDAINED BY THE CITY OF MILPITAS AS FOLLOWS:

WHEREAS, it is the priority of the City Council of the City of Milpitas to continue to provide parks and amenities for people of all ages and abilities to enjoy higher levels of physical and mental health; and

Ordinance No. ___2
WHEREAS, it is the priority of the City Council of the City of Milpitas to promote a sustainable community and protect the natural environment; and WHEREAS, on November 7, 2006, the City Council of the City of Milpitas adopted ordinance number 196.8 amending section V-9-4.05 of the Milpitas Municipal Code to add “The issuance of a written permit from the City Manager or his authorized agent for the use of any loudspeaker or other noise-amplifying device referred to in Section V-9-4.00 shall not apply to Gill Park.”, and
WHEREAS, the language added to section V-9-4.05 is vague such that it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and WHEREAS, in order to avoid problems with constitutional due process, the City Council wishes to amend section V-9-4.05 of the Milpitas Municipal Code to remove the vague clause.

NOW, THEREFORE, the City Council of the City of Milpitas does ordain as follows:

SECTION 1. RECORD AND BASIS FOR ACTION: The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

SECTION 2 AMENDMENT OF MILPITAS MUNICIPAL CODE: That Section 4.05 of Chapter 9 (“PARKS”) To Title V (“Public Health, Safety, and Welfare”) of the Milpitas Municipal Code is amended to read as follows:

V-9-4.05 – Use of Loudspeakers
The use of any loudspeaker or other noise-amplifying device.

Ordinance No. ___3
SECTION 3. SEVERABILITY: The provisions of this Ordinance are separable, and the invalidity of any phrase, clause, provision, or part shall not affect the validity of the remainder.

SECTIN 4. EFFECTIVE DATE AND POSTING: In accordance with Section 36937 of the Government Code of the State of California, this Ordinance shall take effect thirty (30) days from and after the date of its passage. The City Clerk of the City of Milpitas shall cause this Ordinance or a summary thereof to be published in accordance with Section 36933 of the Government Code of the State of California.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Authorize International Travel for One (1) Member of the Milpitas Police Department’s Criminal Investigations Bureau to Provide Technical Assistance in Support of an Out-of-Country Criminal Investigation, as a Member of the Santa Clara County Regional Enforcement Allied Computer Task Force (REACT) and in Coordination with the United States Secret Service (Staff Contact: Jared Hernandez, Chief of Police, 408-586-2406; and Stephen Parodi, Police Captain, 408-586-2523)
Category: Consent Calendar-Public Safety
Meeting Date: 11/7/2023
Recommendation: Authorize international travel for one (1) member of the Milpitas Police Department’s Criminal Investigations Bureau currently assigned to REACT to assist in an out-of- country criminal investigation.

BACKGROUND:

The Milpitas Police Department currently has one Detective Sergeant from the Criminal Investigations Bureau assigned to the Santa Clara County Regional Enforcement Allied Computer Task Force (REACT). REACT is a partnership of local, state, and federal agencies formed to combat the problem of high technology crime and the threat it poses to our public and private communities. REACT conducts multi-jurisdictional investigations to investigate, arrest, and prosecute a wide range of criminal offenders.

As a member of REACT, the Milpitas Police Department Detective Sergeant is cross deputized with a grant of federal authority for federal arrests and the execution of the federal legal process. REACT members have been requested to tentatively participate in an out-of-country criminal investigation coordinated by the United States Secret Service. The travel is expected to occur during the last two months of calendar year 2023 with a total duration of ten to twenty-one calendar days. The dates and duration of deployment are subject to change based on developments in the on-going investigation.

The Detective Sergeant will provide technical assistance and support to the involved law enforcement agencies by conducting a forensic search, seizure, and preservation of electronic data obtained from suspects or scenes utilized in various criminal activities related to fraud. The Detective Sergeant will not participate in tactical operations or take enforcement action.

ANALYSIS:

As a member organization of REACT, the Milpitas Police Department is committed to the mission of apprehending and prosecuting high technology criminals and protecting our community from technology crime involving computers and computer networks. These types of crimes are often committed by transnational criminal networks with operations based outside of the United States. Allowing the Detective Sergeant from the Milpitas Police Department to travel out of the country to further the multi-jurisdictional criminal investigation related to high technology crime will further the mission of protecting our community from technology crime and fraud.

The travel will be funded by the United States Secret Service and will not impact the Milpitas Police Department’s operating budget.

The City of Milpitas Standard Operating Procedure 6-1- Travel and Expense Policy requires that the City Council approve out-of-country travel.

POLICY ALTERNATIVE(S):

Alternative 1: Do not authorize international travel for the Detective Sergeant currently assigned to REACT.

Pros: There are no identified benefits to this alternative.

Cons: The Police Department will not assist the Secret Service by providing expertise and highly specialized technical assistance in furthering a transnational criminal investigation affecting thousands of victims in the United States.

Reason for Not Recommending: The request to travel and participate in this criminal operation does not negatively impact police operations. The travel will be fully funded by the United States Secret Service.

Allowing the Detective Sergeant to travel and participate in the criminal operation will have a positive impact on the combating of high technology crime and preventing future victimization throughout the United States and abroad.

FISCAL IMPACT:

None.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

This item is not a project under the California Environmental Quality Act (CEQA) Guideline 15378(b).

RECOMMENDATION:
(1) Authorize international travel for one (1) member of the Milpitas Police Department’s Criminal Investigations Bureau currently assigned to REACT to assist in an out-of-country criminal investigation.

ATTACHMENT(S):
(a) City of Milpitas SOP 6-1, Travel and Expense Policy

No. 6-1
Effective: 8/1/75
Revised: 8/10/81
12/4/90*
7/16/91*
12/9/92
4/1/94
8/1/97
4/16/19
10/15/19

CITY OF MILPITAS, CALIFORNIA

STANDARD OPERATING PROCEDURE

SUBJECT: TRAVEL AND EXPENSE REIMBURSEMENT POLICY

I. PURPOSE

The purpose of this policy is to establish procedures and guidelines for business-related travel and training expenses of all City officials and employees, including Council, Commission and Committee members (hereafter “City officials”), in accordance with California Government Code Article 2.3 Section 53232.2 as well as Internal Revenue Service (IRS) accountable plan requirements. The referenced Government Code Section is applicable to elected officials only and requires that all reimbursement requests be substantiated with receipts. The IRS requirements help determine what types of allowances or reimbursements can be excluded from taxable wages. An allowance or reimbursement is not subject to income tax if all three of the following conditions are met:

• Expenses have a business connection,
• Expenses are substantiated, and
• Unspent excess amounts are returned.
1 It is also the purpose of this policy to identify standards governing the prudent use of City funds that safeguard integrity and promote public confidence in the efficient and effective use of limited resources. Therefore, expenses incurred in conjunction with approved travel and training must:

• Benefit the City and/or have a public purpose,
• Be reasonable, and
• Meet the City’s standards of ethical conduct.

II. POLICY

City officials may be required to travel and incur other business-related expenses in the course of their official duties and as representatives of the City.2 This policy is issued to promote consistent and equitable practices and establishes:

A. General conditions for travel expenses
B. Travel request and authorization processes
C. Criteria for use
D. Reporting requirements
E. Policy violations

1 This provision does not apply to per diem meal allowances as further explained in Section II.C.8. 2 This policy satisfies the requirements of Government Code sections 53232.2 and 53232.3 and supplements the definition of actual and necessary expenses for purposes of state laws relating to permissible uses of public resources.

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A. General Conditions for Travel Expenses

1. Travel expenses include the registration, transportation and related costs incurred when attending or participating in out-of-town business or activities such as professional meetings, conferences and training sessions, whether for less than one day, overnight, in-state, out-of- state, or out of the country. All travel requires preapproval as specified throughout this policy.

2. Out-of-state travel and/or travel requiring an overnight stay requires prior approval of the City Manager unless such authority is delegated in writing. All international travel for staff requires prior approval of the City Council.

3. All travel for the Mayor, Councilmembers, and City Manager requires prior approval of the City Council.

4. Time associated with travel, training and conferences as specified in this policy shall be consistent with the provisions of applicable negotiated Memoranda of Understanding (MOUs).

5. Travel not requiring an overnight stay can be authorized by a Department Head based on appropriateness and/or importance, in accordance with expense reporting guidelines established by the City Manager.

6. City officials requiring air travel must use commercial airlines unless a waiver is approved by the City Attorney and Risk Manager.

7. City funds shall not be used for any personal costs, side-trips for personal reasons not related to the business expense (such as visiting a nearby family member or friend), accompanied guests or for the purchase of alcoholic beverages or products.

8. Prepayments of conference registration or other travel-related costs can be made when paid directly by the City with City funds. (City officials who wish to use their personal credit cards cannot be reimbursed before an event occurs.)

9. City officials should select options that meet travel needs at the lowest possible cost.

10. Reimbursement requests other than allowable per diem expenses must always be accompanied by itemized receipts and other justifiable documentation such as event registration and/or event programming information or meeting agendas.

11. In compliance with California Government Code Article 2.3 Section 53232.2, the City will reimburse elected officials for actual and necessary expenses incurred related to travel, rather than the per diem allowance. Itemized receipts, credit card statements and other documentation verifying expenses incurred are required to be submitted with reimbursement requests.

12. The use of a hotel is restricted to cities located beyond 75 miles from the Milpitas City Hall or the traveler’s residence, whichever is a shorter distance. Exceptions can be made by the City Manager depending on business necessity or other justifiable circumstances such as early morning or evening meetings at the destination.

13. City departments shall designate travel coordinators to serve as primary points of contact for travel coordination and reimbursement processing in compliance with policy and procedure requirements.

14. Travel for less than one day will be reimbursed in accordance with Section II.C.7 for reasonable actual expenses.

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15. With the exception of international travel for staff and all travel for the Mayor, Councilmembers, and City Manager, which must be approved by the City Council, the approval authorities granted herein can be delegated in writing by the City Manager to his/her designees for justifiable business necessities.

B. Travel Request and Authorization Process

1. Except in cases of emergency, all requests for travel authorization must be made in advance on Travel Authorization and Expense Report Form No. 32-11 (travel form). Estimated expenses shall be reviewed and authorized in advance by the City Manager.

2. To provide approvers with sufficient information to justify the travel request, appropriate documentation such as event brochures/agendas must be attached to the travel form.

3. Once approved, travel forms authorizing overnight travel must be sent to Accounts Payable for file documentation and to help ensure efficient reimbursement processing.

4. Advances of planned expenses are prohibited except in the case of pre-approved per diem allowances for meals in accordance with the provisions of II.C.5.

5. If requesting a per diem allowance or prepayment of conference registration, a complete, accurate and approved travel form should be submitted to Accounts Payable for processing at least 10 business days prior to date payments are requested.

6. Travel not involving an overnight stay does not require preauthorization through the preparation/submittal of the travel form (unless required by a Department Head), but any reimbursable expenses incurred must be submitted on the travel form in accordance with the reimbursement requirements established in Section II.C.7.

7. The Chiefs of Police and Fire may authorize out-of-state and/or overnight emergency-related travel for their respective personnel in the following instances requiring an immediate response:
a. Investigative travel
b. Prisoner extraditions
c. Mutual aid requests
C. Criteria for Use of City Funds

1. Registration
a. Registration fees may be prepaid by the City or reimbursed to City officials in accordance with Section II.C.7.
b. Federal travel regulations require that any meals included in the cost of registration be deducted from the per diem (Section II.C.5).
c. Discounts offered for early registration or attendance by additional persons should be obtained whenever possible.
d. To satisfy IRS accountable plan regulations, a copy of the registration materials must be submitted with the travel form.

2. Air Transportation
a. Airfare costs to and from the travel destination shall not exceed the most economical advance purchase option available, unless such fare is unavailable and the expense is authorized by the City Manager. Upgrades of any kind will not be reimbursed.

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b. City officials who wish to take an alternative form of transportation to a destination may do so, but the City will cover the lowest cost option. A cost comparison must be submitted at the time of travel authorization and with the reimbursement request. c. City officials shall endeavor to acquire any government discount the airlines may provide.
d. Costs to change or re-book a flight will not be paid by the City unless the flight change results from business necessity, is documented in writing and authorized by the City Manager.
e. The City will cover the cost of one checked bag and will not reimburse for excess baggage charges.
f. If airfare is paid directly by the City, and airfare credits are received by City officials as the result of a trip cancellation, such credits should be used for future business travel.

Credits used for personal travel must be reimbursed to the City. g. City officials who use their personal frequent flyer miles for official business will not be reimbursed for the value of the foregone tickets.

3. Ground Transportation
a. Every effort shall be made to rideshare when two or more City officials are traveling to the same destination. Use of public transit is encouraged when feasible. b. When using a privately owned vehicle, mileage reimbursement shall be at the rate set by the Internal Revenue Code and shall be reimbursed for the distance between home and the destination or work and the destination, whichever is less. Note: City officials receiving auto allowances will not be reimbursed for mileage unless the destination is beyond a 75-mile radius one way from the City or from the official’s home, whichever is less; reimbursement is limited to mileage in excess of the 75-mile radius for each direction traveled.
c. Transportation to and from airports shall be reimbursed for either actual mileage if a personal vehicle is used or for reasonable taxi fare, airport van, rideshare service, or public transportation, if available.
d. Airport parking will be reimbursed at the long-term parking rates for more than one day, and at the short-term parking rates for up to one day only. e. Ground transportation at the travel destination should be accomplished to the best extent possible by hotel courtesy buses or other free shuttles, or public transportation. Taxi or rideshare service may be used when those options are either not available or will cause undue delays in arrival.
f. The necessity for a rental car must be established and authorized in advance by the City Manager. Economy car rentals, i.e., the most cost effective and fuel-efficient vehicles, will be used whenever possible. Upgrades provided at no additional cost to the City can be considered if economy cars are unavailable. City officials must obtain the liability insurance coverage offered by the car rental company.

4. Lodging
a. City officials are encouraged to plan for and stay at a designated conference hotel at the negotiated daily rate. If the designated conference hotel/rate is not available, City officials should obtain the most reasonable rate available and note the disparity on the travel form.

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b. If lodging is required for travel not associated with a conference or event with a predetermined rate, the City will pay for actual lodging expenses up to the U.S. General Services Administration (GSA) maximum daily rate (excluding taxes) allowed by location, available here: GSA daily lodging rate. Based on market research, if the GSA rate for a particular region is inconsistent with rates found for reasonable business accommodations, the City Manager can preauthorize a higher rate based on business necessity.
c. Lodging expenses may be prepaid directly to the hotel or reimbursed to the employee in accordance with Section II.C.7. Lodging expenses for conference attendance will be limited to single occupant room rates and shall not exceed the negotiated conference daily rate.
d. Trips that bundle lodging, meals and/or other travel costs are not allowed, unless it can be demonstrated to the City Manager that the bundled cost does not exceed the total of component costs if each were booked separately.
e. In cases where breakfast is included in the room rate, this must be identified on the travel form and deducted from the per diem reimbursement.
f. Non-mandatory fees such as health club or resort fees are not reimbursable unless it is determined to the satisfaction of the City Manager that payment of such charges is critical to conducting City business.
g. If free wireless Internet service is unavailable and establishing a paid connection is a justifiable business necessity, reimbursement may be requested for reasonable fees charged by the hotel.

5. Per Diem for Meals
a. Employees and City Officials except for Elected Officials will receive the federal per diem allowance for Meals and Incidental Expenses (M&IE) for overnight travel only, based on locality. Elected Officials receive reimbursement for meals up to the federal per diem allowance if substantiated by receipts. The federal per diem rates for the continental United States are published annually and can be accessed at the GSA website: Per Diem Rates. Rates for travel outside the continental United States will be obtained by the Finance Department when requested. Note: If a destination city is not listed, then the rate for the county applies. If there is no rate for the city or county, a comparable nearby city should be identified and used.
b. Meals and Incidental Expenses included in the per diem are meals, tips/fees for food and luggage handling services.
c. Meals and Incidentals that are not considered per diem expenses (but qualify for reimbursement) are cab/rideshare fare, fax, telephone, wireless Internet as previously specified, copy charges, room taxes, and energy surcharges. These expenses can be reimbursed based on properly documented reasonable actual cost. d. Meals and allowable incidental expenses eligible for reimbursement in accordance with this section will be paid by the City strictly on a per diem basis (actual expenses for meals only apply in the case of non-overnight travel, see Section II.C.7, as well as for Elected Officials up to the federal per diem allowance). e. For the first and last day of travel, reimbursement is limited to 75% of the applicable per diem rate. City officials may be eligible for 100% per diem on these days, subject to authorization by the City Manager, as follows:

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i. First day travel requires leaving the official’s home before 9:00 a.m. in the morning; and/or
ii. Last day travel requires return to the official’s home after 6:00 p.m. f. Per diem reimbursement is not allowed for any meals included as part of the registration cost of an event or included in the cost of a lodging rate and must be deducted from the per diem reimbursement. Event brochures must be submitted with requests for reimbursement so that meal costs can be verified.

If there is a justifiable business, medical or personal reason to not accept a meal provided at an event AND there is no available accommodation, written justification must be provided on the expense reimbursement form to request the each per diem for which this situation applies.

6. City Credit Cards
a. After pre-approval of travel in accordance with this policy, City credit cards issued to travel coordinators and other officials should be used for payment of actual and necessary expenses as detailed within this policy (and in accordance with SOP 6.3, Credit Card Use).
b. Copies of original itemized receipts, with appropriate coding, must accompany travel expense reports (original receipts are submitted with purchasing card statements). c. Personal charges should not be incurred on City-issued credit cards. Note: Hotels can accommodate requests for separate bills upon check-out. Personal charges must be reimbursed to the City or deducted from the reimbursement request. d. It is the credit card user’s responsibility to provide an accurate accounting on the travel form and reimburse the City for pre-paid per diem expenses, if applicable.

7. Reimbursement and Substantiation Requirements
a. All requests for reimbursement, including travel for less than one day, must be submitted on the travel form accompanied by supporting documentation including original itemized receipts or invoices, conference registration/event information, meeting agendas, etc. As noted, per diem reimbursements for employees and City Officials except for Elected Officials are not included in this requirement.
b. Reimbursement requests submitted without the required documentation/justifications will be returned.
c. Reimbursement requests submitted with missing receipts must include a written explanation of the purchase, subject to the approval of the City Manager. d. Reimbursement requests associated with City business that do not require an overnight stay will be reimbursed based on actual, reasonable and properly documented costs. Meal reimbursement is typically not allowed for planned travel with no overnight stay unless it can be determined to the satisfaction of Department Heads that such expense is justified, and that the meal meets the IRS requirements as discussed below. e. In order to meet IRS requirements for reimbursements that do not constitute taxable benefits, meal reimbursements for non-overnight travel must meet one of the following criteria:
i. to accommodate extended work hours, that is because travel necessitates an extension of the employee’s normal work schedule;

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ii. to attend a meeting on City business in which a meal is served as part of the meeting itself. This is typically for group meetings such as a half-day information conference in the Bay Area; and
iii. to allow for a City official to meet with another government official or business consultant to conduct official City business. An example would be that scheduling requires two officials to meet during lunch time to discuss official City business, and that the lunch meeting is the most convenient time to discuss City business.

Additional information can be obtained by linking to the federal fringe benefit guides referenced below or by contacting the Finance Department. f. If a personal credit card is used to pay the registration fee for a conference, training session, etc., City officials cannot request reimbursement until after the event has concluded.
g. Approved travel that must be canceled by a City official due to a bona fide emergency or situation completely outside of his/her control, and for which refunds cannot be obtained, will be reimbursed by the City upon approval of a properly documented travel form. h. City officials must substantiate all expenses. The following constitutes “substantiate” for the purpose of this document:
i. Within 30 calendar days after the expense is incurred, the employee shall submit to the City all receipts and other documentary evidence substantiating the time, place, amount, and business connection of the expenditure.

8. Return of Excess Amounts
a. Travel advances are not allowed under this policy unless it is determined by the City Manager that a business necessity exists. In such cases, City officials must return any amount of an advance that is in excess of the actual expense incurred within 30 calendar days upon return to work (or within 120 calendar days after the expense was incurred, whichever is less).
b. Per diem allowances for City Officials except for Elected Officials do not apply to this section, i.e., actual expenses less than the allowable per diem are not required to be returned so long as the appropriate business needs for the per diem have been established.

D. Reporting Requirements

1. Elected Officials or City Manager shall, at the first regular meeting following a meeting or conference attended at City expense, provide a brief oral or written report regarding the meeting or conference. If multiple elected or appointed officials attended, a joint report may be made.

E. Policy Violations

1. Use of public resources or falsifying expense reports in violation of this policy may result in any or all of the following:
a. Loss of reimbursement privileges;
b. Restitution to the City;
c. The reporting of expenses as income earned to state and federal tax authorities;

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d. Civil penalties of up to $1,000 per day and three times the value of the resources used; and
e. Disciplinary actions, including termination of employment and/or prosecution for misuse of public resources.

APPROVED:

Attachments: Travel Authorization & Expense Report (Form 32-11) Credit Card Missing Invoice Form

Reference Documents:

IRS Fringe Benefit Guide - Publication 5137 (January 2014) IRS Employer's Tax Guide to Fringe Benefits - Publication 15-B (for use in 2019) City Manager

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Certifying an Environmental Impact Report (SCH No:
2022110251) and Approving a General Plan Text Amendment, Zoning Map Amendment, Site Development Permit, Conditional Use Permit, Vesting Tentative Map, Density Bonus Permit, Tree Removal Permit, and Environmental Assessment; and Introduce an Ordinance Amending the Zoning Map in Accordance with the Provisions of Section 3.03 of Chapter 10 of Title XI (Zoning) of the Milpitas Municipal Code to Change the Zoning Classification of a Certain Parcel (APN 022-38-007) from the MP Industrial Park Zoning District to the MXD Mixed Use Zoning District; and Allow Development of a Multi-Family Residential Project Consisting of 13 Residential Buildings, up to 51 feet in Height, and One Residential Apartment Building, up to 78 feet in Height, for a Total of 206 Residential Units, and Associated Site Improvements on an Approximately 6.7-acre Site Located at 1355 California Circle. (Staff Contact:

Jay Lee, Planning Director, 408-586-3077 and Lillian VanHua, Senior Planner, 408-586-3073)
Category: Public Hearings-Community Development
Meeting Date: 11/7/2023
Recommendation: (1) Conduct a public hearing and move to close the hearing following comments. (2) Consider Environmental Impact Report pursuant to Public Resources Code Sections 21080(d) and 2108.2(d) and CEQA Guidelines Section 15064. (3) Adopt a resolution certifying an Environmental Impact Report pursuant to Public Resources Code Section 21080(d) and 21082.2(d) and CEQA Guidelines Section 15064.
(4) City Attorney shall read aloud title of the Ordinance. (5) Move to waive the first reading beyond the title and introduce an Ordinance amending the Zoning map of the City of Milpitas in accordance with the provisions of Section 3.03 of Chapter 10 of Title XI (Zoning Ordinance) of the Milpitas Municipal Code to change the Zoning Classification of a Certain Parcel (APN 022-38-007), located on the west side of California Circle, from the MP Industrial Park Zoning District to the MXD Mixed Use Zoning District.
(6) Adopt a resolution to approve General Plan Text Amendment No. GP22-0001 (7) Adopt a resolution to approve Zoning Map Amendment No. ZA22-0001, Site Development Permit No. SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map MT22-0001, Density Bonus Permit No. DB23-0003, Tree Removal Permit No. TR23-0021, and Environmental Assessment No. EA22-0002, subject to the findings and Conditions of Approval.

BACKGROUND:

The City of Milpitas received an application from Pulte Homes (applicant) requesting a General Plan Text Amendment, Zoning Map Amendment, Site Development Permit, Conditional Use Permit, Vesting Tentative Map, Density Bonus Permit, Tree Removal Permit, and Environmental Assessment to allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units. The project will also

include 393 vehicle parking spaces, a 0.32-acre internal park, and associated site improvements on a 6.7-acre site at 1355 California Circle.

The Project consists of 35 townhome units, 96 stacked townhome units, and 75 apartment units. All 131 townhome units will have an attached two-car garage. 21 of the units will have side-by-side two-car garage configuration, with the rest of the units featuring tandem two-car garage configuration. 31 of the apartment units will be reserved for lower-income (31-60 percent Area Medium Income) households, and the remaining 44 apartment units will be reserved for moderate-income households (81-120 percent Area Median Income) to satisfy the City's Affordable Housing Ordinance.

Since the applicant is offering 15 percent of its housing units to lower-income residents, the Project qualifies for concessions, waivers, and parking reductions under the State Density Bonus Law.

The proposed Project requires approval of seven entitlements, as follows:

1. General Plan Text Amendment No. GP22-0001: To remove language associated with the California Circle Specific Plan within the General Plan 2040. This includes amending the Neighborhood Commercial Mixed-Use (NCMU) designation (pg. LU-6), the “California Circle Specific Plan Overlay” statement (pg. LU-8) and removing Action LU-2b (pg. LU-17).

2. Zoning Map Amendment No. ZA22-0001: To amend the Zoning Map to change the property zoning designation from Industrial Park (MP) to Mixed-Use District (MXD); and

3. Site Development Permit No. SD22-0003: To allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units on a 6.7-acre site; and

4. Conditional Use Permit No. UP22-0001: To allow residential units as condominiums and associated subdivision, and tandem parking configuration; and

5. Vesting Tentative Map No. MT22-0001: To establish 14 lots, 131 residential condominium spaces, and related common areas; and

6. Density Bonus Permit No. DB22-0003: To ensure compliance with State Density Bonus law and regulations and grant a modification of the distribution requirement so affordable units can be constructed in the apartment building only; and

7. Tree Removal Permit No. TR23-0021: To remove 27 ordinance-sized trees and replace them with 269 new trees.

Although not an entitlement, Environmental Assessment No. EA22-0002 was prepared to establish CEQA compliance. Additionally, the Project is also requesting an alternate method of compliance with the City’s Affordable Housing Ordinance (AHO).

On October 11, the Planning Commission voted unanimously (6-0) recommending that the City Council certify an Environmental Impact Report and approve the Project, subject to the findings and Conditions of Approval.

The commission received public comment and voted to approve the proposed project with the following changes: that the findings and conditions of approval be amended throughout the Resolution such that the 31 lower-income rental units and the 44 moderate-income rental units be made minimums and that the 44 moderate-income rental units can also be reserved for lower income households, and separately, recommend to the City Council that the dog park be incorporated into the proposed parkland, that the townhomes be made with affordable units, and that the project applicant work with MUSD to form an agreement to provide housing for its employees.

Staff has found the required entitlements comply with the policies, standards, and processes outlined in the State Density Bonus Law, the City of Milpitas 2040 General Plan, the Zoning Ordinance, and other provisions

of the Milpitas Municipal Code (MMC), and recommends that the City Council open and close the public hearing, consider the Environmental Impact Report pursuant to Public Resources Code Sections 21080(d) and 2108.2(d) and CEQA Guidelines Section 15064, adopt a Resolution approving the above applications, subject to the findings and Conditions of Approval, move to waive the first reading beyond the title and introduce an Ordinance amending the Zoning map of the City of Milpitas in accordance with the provisions of Section 3.03 of Chapter 10 of Title XI (Zoning Ordinance) of the MMC to change the Zoning Classification of a Certain Parcel (APN 022-38-007), located on the west side of California Circle, from the MP Industrial Park Zoning District to the MXD Mixed Use Zoning District, and adopt a Resolution certifying an Environmental Impact Report pursuant to Public Resources Code Section 21080(d) and 21082.2(d) and CEQA Guidelines Section 15064. The balance of this report provides specific details regarding the Project.

ANALYSIS:

This analysis will evaluate elements of the proposed Project for conformance with the Milpitas 2040 General Plan, the Zoning Ordinance, and other provisions of the Milpitas Municipal Code and the State Density Bonus Law.

Milpitas 2040 General Plan Text Amendment
The applicant proposes to remove any language from the Milpitas General Plan that requires the preparation or adoption of a specific plan for the California Circle area (General Plan Policy LU-2B); and reclassify the zoning designation from Industrial Park (MP) to Mixed-Use (MXD). Therefore, the following language will be deleted (as shown as red and strikenthrough below) from the General Plan.

NEIGHBORHOOD COMMERCIAL MIXED-USE (NCMU) (FAR UP TO 0.75, AND UP TO 1 UNIT PER 1,500 SQUARE FEET OF NONRESIDENTIAL DEVELOPMENT). The Neighborhood Commercial Mixed-Use (NCMU) designation is intended to accommodate a mix of commercial and residential uses with an emphasis on commercial activity as the primary use, and residential uses, hotel, and office development allowed on a limited basis. The NCMU designation encourages active neighborhood serving uses at the ground level, including grocery stores, specialty retail, restaurants, plazas, or walk-in personal services such as banks and salons at FARs up to 0.75.

This designation also provides opportunities for vertical or horizontal mixed-use residential development to provide for area vibrancy and to encourage the redevelopment of aging commercial centers by allowing Multifamily dwelling units at a rate of 1 unit per 1,500 square feet of new or rehabilitated neighborhood-serving retail and commercial services.

The City Council may consider the approval of residential-only projects in the NCMU land use designation, provided the project is 100% affordable to the “low” and “very low” income categories, in order to increase the stock of affordable housing in Milpitas.

Projects with a residential component are subject to additional policy direction (Policy LU 6-1) to ensure that NCMU areas continue to primarily serve surrounding neighborhoods with commercial services. (see Milpitas General Plan, pg. LU-6) Furthermore, language stating CALIFORNIA CIRCLE SPECIFIC PLAN OVERLAY under SPECIFIC PLAN DESIGNATIONS (see Milpitas General Plan, pg. LU-8) will be removed, as shown below:

CALIFORNIA CIRCLE SPECIFIC PLAN OVERLAY. This future specific plan area is located along California Circle, east of the I-880 corridor, and west of the Penitencia Creek corridor, as shown on the Land
Use Map (Figure LU-1). The policy guidance and framework for this area is included in Action LU-2b
Lastly, Action LU-2b (see Milpitas General Plan, pg. LU-17 and LU-18) will be modified, as shown below:

Develop and adopt new specific plans in areas where special development standards or guidelines, beyond those identified in the underlying land use designations and zoning standards, are needed or desired in order
to carry out a specific vision or goal for the area. Specifically, the City should:
•Seek to prepare and adopt a specific plan for the California Circle area, as shown on the Land Use Map. Development of the California Circle Specific Plan should address the following priorities and objectives:
•The Specific Plan Land Use Map should include a mix of commercial, office, and industrial park uses, with opportunities for additional residential development in a primarily mixed-use format. •Establish incentives and provisions for residential density increases for projects with significant affordable housing components.
•Identify improvements to the circulation network, including improved ingress and egress, improved bicycle and pedestrian connectivity, and improved access to trails and linear parkways.
•The provision of new parks and community amenities, including additional open spaces and trails.
•Design standards for improved landscaping, lighting and streetscapes. •Funding mechanisms to ensure implementation of roadway, infrastructure, and other public improvements shall be established.
•Potential risks to infrastructure and public safety due to flooding or other natural disasters.

By approving the General Plan Text Amendment and associated project, the City Council will be given the flexibility to consider a multi-family residential development project at the subject site that provides public benefit exceeding the inclusionary affordable housing requirements in the current Milpitas Municipal Code.

Zoning Map Amendment
The Project site is zoned Industrial Park, which is intended to accommodate, in a park-like setting, a limited group of research, professional, packaging and distribution facilities and uses which may have unusual requirements for space, light, and air. The Project site will be rezoned to Mixed Use (MXD) to allow a 100 percent multifamily residential development with a density of 21 to 30 units per acre. Furthermore, the MXD district is an implementing zoning district of the General Plan NCMU land use designation. As such, the proposed Zoning map amendment will provide consistency with the General Plan designation.

General Plan Conformance
The Project (excluding the General Plan Text Amendment and Zoning Amendment) is consistent with General Plan policies, as demonstrated within Table 1 below.

Table 1: General Plan Consistency

Policy Conformance
Policy LU 1-4: Continue to provide for a variety of
housing types and densities that meet the needs of
individuals and families and offer residents of all
income levels, age groups, and special needs
sufficient housing opportunities and choices for
locating in Milpitas.

Consistent. The Project would develop a total of
206 new housing units within the 6.7-acre Project
Site, which would result in a housing density of 30.8
dwelling units per-acre. Approximately 75 units
would be rental units offered at a below-market rate.

Additionally, the Project would qualify for a State
Density Bonus, which would allow for an increase in
density.

Policy LU 4-4: Encourage new development to
facilitate pedestrian, bicycle and transit access
through techniques such as minimizing building
separation from public sidewalks; providing safe,
direct, accessible, convenient, and pleasant
pedestrian connections; including secure and
convenient bike storage; and orienting building
entrances to transit service.

Consistent. The Project would maintain the existing
sidewalks at the Project site and would also provide
bike racks on-site to accommodate pedestrians and
bicyclists. The Project site has also been designed to
retain an existing pedestrian crosswalk on California
Circle, which will provide pedestrian access to
nearby walking trails and a future public park.

Policy CD 2-7: Include design elements during the
development review process that address security,
aesthetics and safety. Safety issues include, but are
not limited to, minimum clearance around buildings,
fire protection measures such as peak load water
requirements, construction techniques, and
minimum standards for vehicular, bicycle, and
pedestrian facilities and other standards set forth in
local, state, and federal regulations.

Consistent. The development includes internal
private streets within the proposed townhome
community for vehicular circulation and to provide
access to each townhome. These private streets
would be able to accommodate emergency service
vehicles, such as fire trucks owned by the City. The
proposed apartment parking structure would also
provide adequate and safe circulation for vehicles.

On-site parking spaces would be provided per
residential unit in accordance with the City’s parking
requirements. Additionally, patterned walkways
would also be provided within the townhome
community to provide clear and easy access among
the different components of the site.

The proposed townhomes would install external
lighting structures that would be mounted to each
building to provide lighting and security to the
proposed paseos, outdoor recreation area and
outdoor parking spaces. The proposed apartment
complex would also install mounted lighting
structures. Furthermore, site plans for the Project
would be reviewed by the City and the Milpitas Fire
Department (MFD) to ensure that fire protection
measures and building safety measures would be
implemented.

Policy LU 2-3: Allow densities and intensities which
exceed the generally allowed ranges defined by the
underlying land use for projects utilizing Density
Bonus provisions (included within the Milpitas
Affordable Housing Ordinance Title XII - HOUSING
Chapter 1 - AFFORDABLE HOUSING
ORDINANCE) including bonuses for senior housing,
affordable housing, and for projects within
designated overlay districts included in Milpitas
Municipal Code Section 12 - Overlay Districts and
Standards
Consistent. The Project includes an apartment
complex with over 15 percent of the proposed units
being made available at a low-income rental rate.

Furthermore, the Project would adhere to all
applicable requirements with Title XII of the Milpitas
Affordable Housing Ordinance. No proposed Overlay
District is included as part of the Project.

Policy Conformance
Policy LU-1-7: Recognize that the Land Use Map
may be amended in accordance with State law in
order to ensure that there is an adequate supply of
commercial, business park, industrial, public facility, parks, residential, and other desired land uses to
serve the City’s needs.

Consistent. The applicant proposes to amend the
Land Use Zoning Map to replace
industrial/employment uses with multi-family
residential uses that include affordable housing
above the inclusionary standards. The increase of
market rate and affordable housing will serve the
City’s needs in creating housing stock to meet the
Regional Housing Needs Allocation (RHNA) required
by the State Department of Housing and Community
Development.

Policy CD-10: Design multi-family residential,
mixed use, commercial, and employment-
generating development in neighborhoods, districts,
and centers to:
a.) Include open space and/or recreational
amenities to provide visual relief from development,
form pedestrian and bicyclist linkages to adjacent
uses and other portions of the neighborhood,
district, or center, and serve as buffers between
uses, where necessary;
b.) Locate building access points along sidewalks,
pedestrian areas, and bicycle routes, and include
amenities that encourage pedestrian activity;
c.) Create a human-scale ground-floor environment
that includes public open areas that separate
pedestrian space from auto traffic or where these
intersect, give special regard to pedestrian safety;
and
d.) Provide comfortable pedestrian amenities, such
as quality seating areas, lighting, and wide, shaded
paths, along with specialized and engaging design
features, such as interesting fountains or public art
to draw and maintain people's attention
Consistent. The Project would provide open space
and recreational amenities on-site with an outdoor
recreational area that consists of an outdoor
playground, two turf areas, picnic tables with a sail
structure providing shade, a bench, and bike racks
for bicyclists. The proposed outdoor recreational
area would be visible for pedestrians, bicyclists, and
motorists travelling along California Circle. The
Project would also include several walkways and two
walking paseos that provide pedestrian amenities
(i.e., benches). Pedestrian and bicycle access to the
Project Site would be provided along California
Circle. Pedestrian access on-site would be provided
to each townhome building and the proposed
apartment complex. Additionally, pedestrian and
bicycle routes would be provided via walkways and
sidewalks.

Refer to response to Policy CD 2-7 regarding the
proposed lighting fixtures for the Project. The Project will include a direct connection to an existing
pedestrian crosswalk on California Circle, and the
primary driveway will be located away from the
crosswalk to enhance pedestrian safety. The existing
pedestrian sidewalk connects through an existing
residential neighborhood to the City’s trail system
along nearby waterways.

Zoning Conformance
The Project site is currently zoned MP Industrial Park and within Planned Unit Development no. 31 (PUD 31).

The proposed Zoning map amendment will change the existing Zoning from MP Industrial Park to MXD Mixed Use and remove the site from PUD 31. The zone change is necessary in order to facilitate the Project’s proposed residential density under the Project site’s current General Plan designation of Neighborhood Commercial Mixed Use (NCMU). The MXD Zoning District allows a 100 percent residential project. This would bring the Project site into conformance with the General Plan, as the MXD Zoning District is an implementing zoning district under the General Plan land use designation of NCMU. Moreover, PUD 31 was created to facilitate industrial development. Since the proposed Project consists of a residential development, PUD 31 conditions are no longer applicable.

As demonstrated in Table 2, the Project is consistent with most of the applicable development standards for the MXD Mixed Use Zoning District. Where the Project is not in compliance with objective standards, the State Density Bonus Law requires the City to grant appropriate concessions, waivers, and parking reductions for qualifying projects.

Table 2: Summary of MXD Development Standards
Development
Standard (MXD) Required Proposed Conformance
Density 21-30 du/ac 30.8 du/acre Yes, with Density
Bonus
Front Yard Setback
Minimum of 8 feet and a maximum of
15 feet from back of sidewalk. The
sidewalk is based on either the
existing sidewalk or assumed 10-foot-
wide sidewalk, whichever is wider
Townhomes and
stacked flats: 12.5
feet from back of
sidewalk
Apartment building:
18-foot-10-inches
Yes
Yes, with Density
Bonus
Side Yard Setback
(Minimum) 10 feet 15 feet Yes
Rear Yard
Setback (Minimum) 10 feet 40 feet Yes
Height Principal building: 3 stories and 45
feet
12-plex: 4 stories
and 51 feet
7-plex: 3 stories and
39-feet-6-inches
Podium: 6 stories
and 77-feet-4-inches
Yes, with Density
Bonus
Landscaping
All required front and street setback
areas shall be landscaped or paved to
allow for outdoor seating, display or
goods, or street furniture
All required front
and street setback
areas are
landscaped or
paved
Yes
Parking
Studio: 1 covered per unit
1 bedroom: 1.5 covered per unit
2-3 bedrooms: 2 covered per unit
Guest: Projects with parking
structures: 15 percent of the total
required, may be uncovered
Projects with private garages: 20
percent of the total required, may be
uncovered
Total: 445
393 Yes, with Density
Bonus
Bicycle Parking 5 percent of the total required
Total: 22 22 Yes
State Density Bonus Law
To encourage affordable housing production, the State Density Bonus Law (Gov. Code § 65915 et seq.) allows developers to receive a density bonus and other incentives, such as concessions, waivers, and parking reductions, when affordable housing is incorporated within a project. The Density Bonus is a state mandate,

and any project that meets the requirements of the state law is entitled to receive the incentives associated with it.

The City Council, 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 MMC Sections XI-10-54.15(D)(4), Standards, and XI-10-54.15(E), Density Bonus Conditions, the City Council may award a density increase, with the approval of the project. Moreover, MMC Section XI-10-54.15(D)(2) states that 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 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.

Since the Project reserves 10 percent or more of the total housing units for lower income households, the density bonus shall be an increase of 20 percent over the maximum allowable residential density under the General Plan and Zoning Ordinance. The applicant may also request waivers and concessions under the State Density Bonus Law. The Project proposes to satisfy its affordability requirement by reserving all of the apartment units as affordable, with 31 apartment units at the lower-income rental level and 44 apartment units at the moderate-income, rather than disperse the affordable units across the Project site. If granted the modification, the overall total number of affordable units at the lower-income level satisfies both the 15 percent total units required under the City’s Affordable Housing Ordinance and the State Density Bonus. Furthermore, the City must grant any waivers and concessions requested by the applicant for a qualifying project under the State Density Bonus Law.

Table 3 outlines the density bonus, waivers, and parking reductions requested for the proposed Project.

Table 3: State Density Bonus – Concessions, Waivers, and Incentives Type of
Modification Standard Applicant
Request Justification Discretion
Density Bonus 21-30 du/ac 30.8 du/ac By allowing additional density, more
affordable units will be
provided to meet the
City’s Regional
Housing Needs
Allocation (RHNA)
obligation.

The density bonus is
allowed under State
Density Bonus Law
and must be granted
by the City.

Waiver(s) Front Setback:

Minimum 8 feet,
Maximum 15
feet
Apartment
Building: 18-foot-
10-inches
A greater front yard
setback is needed to
create a better
streetscape along the
project frontage and
incorporate ADA
accessible ramps
leading to the leasing
office.

This waiver is
allowed under State
Density Bonus Law
and must be granted
by the City.

Type of
Modification Standard Applicant
Request Justification Discretion
Waiver(s)
Building Height:
3 stories and 45
feet
12-plex: 4 stories
and 51 feet
7-plex: 3 stories
and 39-feet-6-
inches
Podium: 6 stories
and 77-feet-4-
inches
The proposed building
heights are necessary
to achieve the
proposed density and
the open space areas.

The podium apartment
building would not be
financially feasible to
build with less units or
at a lower height.

This waiver is
allowed under State
Density Bonus Law
and must be granted
by the City.

Parking Reduction
Studio: 1
covered per unit
1 bedroom: 1.5
covered per unit
2-3 bedrooms:
2 covered per
unit
(Pursuant to
MMC Section
XI-10-53.09)
Studio: 1 covered
per unit
1 bedroom: 1 per
unit
2 bedrooms: 1.5
per unit
(Maximum,
pursuant to State
Density Bonus
law)
Total: Podium -
85 spaces
The Project is providing
the maximum number
of required parking
spaces under State
Density Bonus Law.

This waiver is
allowed under State
Density Bonus Law
and must be granted
by the City.

Parking Waiver Guest Vehicle
Parking
requirement:

Projects with
parking
structures: 15
percent of the
total required,
may be
uncovered;
Projects with
private garages:
20 percent of
the total
required, may
be uncovered.

Townhomes:

52.4 guest
spaces
To provide 46
guest vehicle
parking spaces
when 52.4
vehicle parking
spaces are
required per
MMC.

By relocating the main
entrance to the
condo/townhome and
creating a more optimal
trash pickup area for
the apartment building,
the Project was unable
to provide 6 additional
guest spaces. The
State Density Bonus
Law provides a
reduction in the
minimum parking
requirements for
qualifying projects.

A waiver of
minimum parking
standards is allowed
under State Density
Bonus Law and
must be granted by
the City.

Parking Waiver Compact stalls
shall be used
only in Projects
within R3, R4,
and R5 zones.

Compacts stalls
dispersed
throughout the
proposed MXD
zoned site.

The dispersal and
design of compact
stalls are necessary to
provide adequate
parking for the Project.

A waiver of parking
standards is allowed
under State Density
Bonus Law and
must be granted by
the City
Off-Street Parking Standard Waivers
MMC Section XI-10-53.07(B) allows parking areas and garages containing ten (10) or more stalls serving multi-family residential uses within the R3 zones up to 40 percent of the required and non-required stalls to be

designated as compact stalls. Since the Project site will be rezoned to MXD Mixed Use, the Project is not permitted to have compact parking stalls. However, compact stalls are necessary in order to provide as much of the required number of guest spaces as possible and facilitate the physical construction of the proposed development.

Parking Incentives
Under the State Density Bonus Law, an applicant who qualifies for a density bonus may propose reduced parking standards. The Project must also provide 15 percent of the total required parking as guest parking within the parking structure and an additional 20 percent of the total required vehicle parking as guest parking for the portion of the project with private garages. However, under State Density Bonus Law and upon a developer's request, the City must allow a reduction in vehicle parking, as shown in Table 4.

Table 4: Maximum Parking Requirements (under State Density Bonus Law) Type of Unit (or Guest Parking) Number of Vehicle Parking Spaces
Studio and One Bedroom One space
Two-Bedroom and Three-Bedroom 1.5 spaces
Guest Parking Zero spaces
The applicant has requested reduced parking standards and has proposed to provide the following, as demonstrated in Table 5.

Table 5: Parking Analysis (under State Density Bonus Law) Land Use Unit
Count Rate
Maximum
Spaces
Required
Spaces
Provided Notes
Podium
Studio and 1
bedroom 56 1 / unit 56 56
Two bedrooms 19 1.5 / unit 29 29
Townhomes
Three bedrooms 131 1.5 / unit 196.5 262
Guest Parking N/A 0 46
Included as part of the total
number of parking spaces
required under the State
Density Bonus Law
Total 282 393
As noted in the Project Description, each three-bedroom townhome unit will include a two-car garage; 21 will be side-by-side garages and the remaining will be tandem garages. There will be 56 parking spaces within the parking structure of the podium building and 29 uncovered spaces. In addition, 46 additional surface parking spaces will be provided for guests along the internal private streets, making a total of 393 vehicle spaces and consistent with the reduced parking standard under the State Density Bonus Law.

Subdivision Ordinance
The Project's form, content, and dedications of the proposed tract map have been reviewed by the City of Milpitas Engineering Department and deemed consistent with the provisions of MMC Section XI-1-4 (Tentative Maps), as outlined in the Resolution. Tentative Maps require approval of a Resolution by the Planning Commission recommending final approval by the City Council.

Architectural Design
The Project's design concept includes six three-story seven-plex residential buildings and eight four-story 12- plex residential buildings, and a six-story apartment building consistent with existing residential development along California Circle. The contemporary design includes the following design accents and materials:

Townhomes
•Roof: Composition Shingle
•Exterior: Stucco Finish and Panel Siding
•Accents: El Dorado Stone, and Metal Railings
•Window/Door Trim: Vinyl frame
•Entry Door: Contemporary Front Entry Door
•Garage Door: Sectional Garage Door
The renderings of the two townhome products are shown in Figures 1 and 2. The colors and materials board are shown on Figures 3 and 4.

Figure 1 – 7-plex Townhomes

Figure 2 – 12-plex Townhomes
Figure 3 – 7-plex Colors and Materials Board

Figure 4 – 12-plex Colors and Materials Board
Apartment Building
The proposed six-story multi-family residential building maintains a strong relationship to the street in that its primary entrance is oriented toward the street. The east exterior walls and roof top include architectural relief in the form of fenestration along the front and massing differentiation along the roof segments. The building’s design features exterior plaster walls, vinyl windows, accented with stone veneer and wood frame canopies along the ground floor, along with an aluminum storefront system. The color for the materials proposed are neutral grays and earth tones with white and darker colors used to break up the massing of the building. The building has a well-defined base consisting of storefront windows with aluminum horizontal and vertical dividers, a canopy and a change in color and material. There is also a change in roof heights that highlight various portions of the building.

The rendering of the apartment building is shown on Figure 5 and the colors and materials board is on Figure

6.

Figure 5 – Apartment Building Facing East towards California Circle Figure 6 – Apartment Colors and Materials Board
Tree Removal and Landscaping Requirements
The Project includes removal of 49 existing trees, including 27 protected trees, from the project site. Pursuant to MMC Title X, Chapter 2 (Tree Maintenance and Protection), the project will plant two replacement trees for every one protected tree that is removed, or 54 new trees planted on the site. The Project will be planting 269 new trees on site, as demonstrated in Figure 7. Other new landscaping will include various shrubs, grasses, and perennials.

Figure 7 – Landscape Plan
Parkland and Open Space Requirements
The City’s Subdivision Ordinance requires new subdivisions to dedicate five acres of parkland for every 1,000 persons or payment of park in-lieu fees, as allowed by MMC Section XI-1-9 (Improvements: Dedication of Land or Payment of Fee or Both, for Recreational Purposes). Additionally, at least 60 percent of the parkland requirement must be provided as public park lands. The Parkland Fee is based upon the estimated number of persons expected to reside in the development (per U.S. Census definitions) and the estimated value of parkland in the City of Milpitas (currently $2,308,680 per acre).

The City estimates 2.49 people will occupy each unit. The Project proposes 206 units, resulting in an estimated population of 513 persons. Based on this population estimate, the applicant must provide 2.56 acres of parkland, equivalent to approximately $5,921,071.60.

To satisfy the parkland requirement, the Project includes 37,865 square feet of open space and private recreation on site. The apartment building has two decks, totaling 4,720 square feet. There is also an internal

0.32-acre park with facilities for both passive and active recreation. Where private open space for park and recreational purposes is provided in a proposed subdivision and such space is to be privately owned and maintained by the future residents of the subdivision, such areas shall be credited against the requirement of dedication for park and recreation purposes. The Project will receive credit for the 37,865 square feet of open space and will be required to pay the remaining delta. Table 6 demonstrates how the Project will meet its parkland requirement.

Table 6: Parkland Requirements Analysis
Pulte Townhomes and Apartments Proposed 206
Pulte Townhomes and Apartments Population Estimate
(2.49 persons/unit per Census) 513 persons
Citywide Parkland Requirement 5 acres/1,000 people or
equivalent fees-in-lieu
Total Parkland Acreage or In-Lieu Fee Required 2.56 acres / $5,921,071.60 Private Recreation / Open Space provided 0.87 acres
Public Recreation / Public Park Land provided 0.0 acres Balance of Parkland Acreage or In-Lieu Fee Due $3,912,520.00 Affordable Housing Ordinance
According to MMC Section XII-1-3.00 (Affordable Housing), the applicant must reserve fifteen percent (15 percent) of the total number of dwelling units within the development as affordable units. As part of the development application, the applicant may request and the City Council, at its discretion, may waive, wholly or partially, the requirements of this Chapter and approve alternate methods of compliance if the applicant demonstrates, and the City Council finds, that such alternate methods meet the purposes of the AHO and the Council can make the findings for such alternative methods as set forth in Section MMC XII-1-4.A.

The City’s Affordable Housing Ordinance (AHO) requires the following of affordable units:
•The bedroom mix of the affordable units should be proportionate to the bedroom mix of the market rate units, provided that the City Council may approe a different unit mix to meet other City goals. •The square footage of the affordable housing units must be reasonably consistent with the market rate units in the development although smaller unit sizes may be allowed by the Director or Building Safety and Housing if the developer provides adequate justification and reasons why the provision of small unit sizes would further the City’s housing goals and the AHO. •All affordable units shall be reasonably comparable in terms of floor plan and base finish amenities to market rate units in the proposed development.
•The quality of the exterior design, landscaping, and construction of the affordable units shall be consistent with the other units in the proposed development. •Affordable units shall have the same access to common entrances from the exterior as market rate units. •Affordable units shall have the same access to all project amenities and recreational facilities available to market rate units.
•All affordable units shall be reasonably dispersed throughout the project and for residential structures higher than eight stories, the affordable units shall be evenly distributed throughout the bottom 60 percent of the floors or higher.

The breakdown of unit types required to satisfy the ordinance is provided in the Table 7 below.

Table 7: AHO Requirements
Unit Type Units
Developed
AHO
Requirement
Units
Required
Townhome 131 15 percent 19.65
Apartment 75 15 percent 11.25

To comply with this section, the ordinance requires the applicant to provide 20 townhomes and 11 apartment units for affordable housing, for a total of 31 affordable housing units.

The applicant proposes to meet the City’s affordable housing requirement by reserving 31 of the apartment units on-site for lower-income households, meeting the 15 percent requirement of the total number of dwelling units. The applicant will also reserve the remaining 44 apartment units for moderate-income households.

By granting this exception to the City’s AHO, the Project would add 75 deed restricted units to its affordable housing stock and help the City meet its RHNA obligation. It is important to note that the apartment units are designed for rental occupancy. As such, the moderate-income units would not qualify towards the 15 percent affordability requirement, as rental units that qualify for the 15 percent must be at or below low-income or 80 percent AMI. Additionally, the total number of bedrooms under the applicant’s deviation would be 94, whereas the standard ordinance would only require 74 bedrooms. Moreover, the total square footage of living space under the standard ordinance is approximately 41,548 square feet, whereas the Project would be providing 45,661 square feet (or ten percent more).

Implementation
Prior to the City allowing occupancy for an affordable unit, resale restrictions or rental controls, or both, as the case may be, shall be set forth in an agreement between the City and the applicant, which agreement shall be recorded against the property containing the affordable units. The agreement shall be executed by the City Manager or designee, and its requirements shall run with the land and bind the applicant's successors.

Covenants on the affordable units shall not be less than 55 years.

Pursuant to MMC Section XII-1-6.03, eligible potential occupants of affordable units will be qualified on the basis of household income, the median combined household income statistics for Santa Clara County published periodically by the California Department of Housing and Community Development (HCD), all sources of household income and assets, the relationship between household size and the size of available units, and any further criteria required by law. The applicant shall use an equitable selection method established in conformance with the terms of the AHO and subject to approval by the City. The selection criteria may not distinguish between adults and children.

Subject to the requirements of state and federal fair housing laws and regulations, the City shall endeavor to make housing available for Milpitas residents, former Milpitas residents who have been displaced, households with children enrolled in the Milpitas Unified School District that have inadequate housing as defined in the federal McKinney-Vento Homeless Assistance Act, and employees employed within the boundaries of the City of Milpitas, and may develop selection criteria to implement these goals. The applicant will pursue active marketing, conduct affordable housing workshops, extensive advertising and other measures to ensure that residents and employees are informed and educated about the availability of affordable units.

Traffic and Access
Vehicular access to the proposed townhomes will be provided via two driveways; the existing driveway on the southeastern end of the Project site, along California Circle, will be maintained and the existing northeastern driveway will be moved south towards the middle of the Project site. Internal private streets will be constructed on-site to provide access to each townhome garage and associated 46 surface guest parking spaces. The proposed private streets will also serve as vehicular circulation on-site. For pedestrian access and circulation, the Project will include internal sidewalks and curbs along each private street.

Vehicular access to the proposed apartment complex will be provided via one new driveway located on the northeastern corner of the Project site, along California Circle. A 150-foot long drive aisle will be provided at the ground level of the apartment complex for vehicular circulation through the apartment’s proposed surface parking lot and access to the parking structure. The apartment parking structure will provide a separate, internal circulation for vehicles to enter, park, and/or exit. The parking structure will provide a total of 56 residential parking spaces, and the on-site surface parking lot would provide an additional 29 spaces, for a total of 85 spaces. Ten spaces will be utilized as electric vehicle (EV) charging stations. No additional guest parking will be provided onsite.

Grading

The proposed Project would result in the demolition of all existing structures, paving, and landscaping on the subject site. In addition, the applicant proposes to fill the site to raise the finish grade heights to meet flood zone requirements.

Utilities
The project site is located in an urban area and is currently served by existing utilities, including water, sanitary sewer, storm drainage, electricity, and telecommunications infrastructure. All public utilities will be provided to the Project site.

Climate Action Plan
The City of Milpitas Climate Action Plan (CAP) was adopted in 2013 and included Greenhouse Gas (GHG) reduction goals, policies, and actions for new and existing development projects. The Project would follow these goals and policies by locating future residents near public transportation, jobs, restaurants, and services.

The City recently adopted the Climate Action Plan Update on August 9, 2022. In addition, the Project would incorporate green building measures in compliance with CAL Green standard building measures for residential buildings and Title 24 requirements to reduce energy usage.

Development Fees
The Project is subject to the following impact fees:
•Parkland Impact Fee - To satisfy the parkland requirement, the Project includes 80,506 square feet of open space and private recreation on site. These private recreation areas shall be credited against the requirement of dedication for park and recreation purposes. However, since the City Code requires that 60 percent of the parkland requirement must be provided as public parkland, and no public parkland is proposed, the Project must pay the required 60 percent, or approximately $3,002,988.76. •Public Art Fee - The Project will comply with the City's Public Art Requirements for Private Development, as set forth in Milpitas Municipal Code Section XI-10-14. This fee is currently set at one- half of one percent of building development costs. The proposed Project will either install Publicly Accessible Art on the development site or pay the fee based on the construction valuation at the building permit issuance. The Public Art to be installed will be reviewed and approved by the Art Commission.

Fiscal Benefits of Employment Lands Study
In 2021 and 2022, the City Council received presentations on the Fiscal Benefits of Employment Lands Study (FBOELS). The FBOELS is based on preserving and protecting industrial and commercial space for the benefit of the City’s long-term fiscal health and jobs for residents. The FBOELS provides data confirming that employment lands are significant contributors to the City’s fiscal stability as these lands provide substantial net positive revenue to the General Fund to support essential and critical City services. Per the Existing Conditions Report of the 2040 General Plan, 28 percent of Milpitas’ land is reserved for industrial and commercial uses, but the FBOELS revealed that existing employment lands make up 55 percent of the City’s General Fund total revenues.

POLICY ALTERNATIVE(S):

Alternative 1: Deny the applicant’s request for a General Plan Text Amendment, Zoning Map Amendment, Site Development Permit, Conditional Use Permit, Vesting Tentative Map, Density Bonus Permit, Tree Removal Permit, and Environmental Assessment.

Pros: Denial of the Project would allow the existing 90,000-square foot vacant industrial office building to remain in conformance with the existing zoning. Once the Project site is rezoned to the Neighborhood Commercial Mixed Use (NCMU) zoning district as part of the Citywide Comprehensive Zoning update, there would be a possibility of a conforming mixed-use residential project.

Cons: Denial of the Project would deprive the City of 206 new residential units, 31 of which are reserved for below market rate households. The Project would further support affordable housing needs within the region, including the City’s Regional Housing Needs Allocation (RHNA). Denial of the Project would also be contrary to the goals and objectives of State and local density bonus laws.

Reason for Not Recommending: The proposed project, with the proposed amendments to the General Plan text and Zoning Map Amendment, is consistent with the City’s General Plan and Zoning, all of which support the development of affordable housing. The Project includes 31 apartment rental units reserved for lower- income households and 44 apartment rental units reserved for moderate-income households, increasing the number of affordable units in the City of Milpitas and providing more options of housing for its residents. The project complies with the affordability provisions of the State Density Bonus Law and qualifies for the waivers and parking reductions requested by the applicant. The project complements nearby residential projects.

FISCAL IMPACT:

Given the potential impact of the Project being located within an existing industrial zone, a Fiscal Impact Analysis was completed. Economic & Planning Systems’ (EPS) Fiscal Impact Analysis found that the City would financially benefit from the Project. Moreover, the annual net positive impact on the General Fund is expected to be $169,000.

If the Council approves this item on November 7, 2023, the City expects to see this annual net positive impact on the General Fund following full project construction.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

An environmental assessment (EA22-0002) was conducted according to the California Environmental Quality Act of 1970 (CEQA), as amended, and state guidelines implementing CEQA. A “project,” under CEQA, is defined as “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (CEQA Guidelines Section 15378.) Given that the demolition and construction of a multifamily residential development at the Project site would require a General Plan Text Amendment, Zoning Map Amendment, Site Development Permit, Vesting Tentative Map, Conditional Use Permit, and these are all discretionary entitlements, and that the Project would result in the alteration of existing buildings and landscaping, it is a “project” under CEQA.

Notice of Preparation
Upon review of the application for the proposed Project, the City determined that the project has the potential to result in potentially significant environmental impacts and, therefore, an EIR should be prepared. In accordance with Section 15082 of the CEQA Guidelines, the City prepared a Notice of Preparation (NOP) for the Draft EIR (DEIR) to determine which environmental topics should be analyzed under an Environmental Impact Report. The NOP was circulated on November 14, 2022 to local, state, and federal agencies, and nearby property owners within 1,000 feet or the Project for a 30-day review period that ended on December 14, 2022. A scoping session was held on November 30, 2022 to solicit comment on potential topics to be analyzed under the DEIR.

Draft Environmental Impact Report
The City prepared the DEIR and circulated this document for the required 45-day public review on July 7, 2023. The public review period ended on August 21, 2023. A public comment meeting on the DEIR was held on August 3, 2023. The CEQA Clearinghouse project number is: 2022110251.

Other than the impacts discussed below, all the environmental impacts can be reduced to less than significant levels through implementation of standard conditions of approval or recommended mitigation measures or no impact and requiring no mitigation.

The DEIR identifies the following significant and unavoidable environmental impacts related to aesthetics:
•Impact AES-1: The Project would develop multiple structures at a maximum building height that is greater than the existing building structures on-site. Accordingly, this increase in height would result in significant view blockages of public scenic resources (i.e., the eastern open hillsides) from public viewpoints, specifically for bicyclists travelling northbound along Coyote Creek Trail, and motorists travelling southbound along McCarthy Boulevard. As such, the Project would result in substantial adverse effects to scenic vistas, and the impact would be significant and unavoidable.

Project Alternatives

Section 15123 of the CEQA Guidelines requires an EIR to identify each significant effect with proposed mitigation measures and alternatives that would reduce or avoid that effect. The CEQA Guidelines further require EIRs to include the identification and evaluation of a reasonable range of alternatives that are designed to reduce the significant environmental impacts of the Project while still meeting the general project objectives.

The two alternatives considered were the “No Project” alternative and “Specific Plan Project” alternative. The “No Project” alternative assumes the continuation of existing physical conditions on the site, as well as development of the related projects. While the “No Project” alternative would have less-than-significant environmental impacts in most topic areas, the alternative would not meet any of the key project objectives and is environmentally and socially undesirable.

The “Specific Plan Project” alternative would include the adoption and implementation of a California Circle Specific Plan bound by the I-880/California Circle on-and-off ramp, Dixon Landing Road, Lower Penitencia Creek, Fairview Avenue, and Cadillac Court (Plan Area), which includes the Project Site. The Specific Plan would serve both planning and regulatory functions, including land use regulations, circulation patterns, building and streetscape design standards, and development standards. This alternative assumes that the Project could be implemented as a development project under the Specific Plan.

This “Specific Plan Project” would achieve all three of the Project objectives. Furthermore, most of the objectives would be met to a greater degree than the Project because the Specific Plan Area would be able to accommodate a greater amount of mixed-use development, thus providing greater opportunities for housing development and increased development intensity. The Specific Plan Alternative would eliminate the significant impact of the Project (aesthetics-visual impacts to scenic resources). Additionally, the Specific Plan Alternative would achieve all Project objectives to a greater degree. However, this Alternative could increase the amount of residential development compared to the Project. Thus, the Specific Plan Alternative would potentially increase the City's population and the demand for public services, recreational spaces, and utility services (i.e., water, wastewater, and solid waste). Future development and redevelopment projects resulting from the Specific Plan Alternative would introduce additional commercial, industrial, and mixed-use development that would increase the development of the Project Site and uses surrounding the Project Site.

Implementation of the Specific Plan Alternative could potentially result in similar environmental impacts to the Project but to a greater degree. Therefore, the alternative would result in greater impacts than the Project and would ultimately be the inferior alternative.

Final EIR
The contents of the Final EIR include the Draft EIR, comments received during the public comment period on the Draft EIR, and responses to comments. The Final EIR includes Findings of Fact along with a Statement of Overriding Considerations and the Mitigation Monitoring Program (MMP) for the Project. In accordance with CEQA, if specific economic, legal, social, technical, or other benefits of a proposed project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered “acceptable” and the decision-making agency may adopt a Statement of Overriding Considerations to address these impacts. Should the City Council consider approval of the Project, the Council must also take action to certify the Final EIR and adopt the Findings of Fact, Statement of Overriding Considerations, and MMRP. Should the City Council deny the Project, staff would recommend that no action be taken on the Final EIR as a CEQA determination does not need to be made for a project that has been denied.

Given that significant and unavoidable impacts would remain with respect to aesthetics, a Statement of Overriding Considerations has been prepared. The CEQA findings and Statement of Overriding Considerations are included in Attachment C to certify the EIR, approve a Mitigation Monitoring Program, and make findings that while there are significant unavoidable impacts, there are other economic, legal, social, technological, environmental, and other considerations that outweigh these impacts and warrant approving the Project.

RECOMMENDATIONS:
(1) Conduct a public hearing and move to close the hearing following comments. (2) Consider Environmental Impact Report pursuant to Public Resources Code Sections 21080(d) and 2108.2(d) and CEQA Guidelines Section 15064.

(3) Adopt a resolution certifying an Environmental Impact Report pursuant to Public Resources Code Section 21080(d) and 21082.2(d) and CEQA Guidelines Section 15064. (4) City Attorney shall read aloud title of the Ordinance. (5) Move to waive the first reading beyond the title and introduce an Ordinance amending the Zoning map of the City of Milpitas in accordance with the provisions of Section 3.03 of Chapter 10 of Title XI (Zoning Ordinance) of the Milpitas Municipal Code to change the Zoning Classification of a Certain Parcel (APN 022- 38-007), located on the west side of California Circle, from the MP Industrial Park Zoning District to the MXD Mixed Use Zoning District.
(6) Adopt a resolution to approve General Plan Text Amendment No. GP22-0001 (7) Adopt a resolution to approve Zoning Map Amendment No. ZA22-0001, Site Development Permit No.

SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map MT22-0001, Density Bonus Permit No. DB23-0003, Tree Removal Permit No. TR23-0021, and Environmental Assessment No. EA22-0002, subject to the findings and Conditions of Approval.

ATTACHMENT(S):
(a) Draft Ordinance
(b) City Council Resolution to Adopt General Plan Text Amendment, including Exhibit 1 to the Resolution:

General Plan Text Amendment
(c) City Council Resolution, including Exhibit 1 to the Resolution: Conditions of Approval , and Exhibit 2 to the Resolution: Draft Ordinance
(d) City Council Resolution Certifying the Environmental Impact Report, including the FEIR and Statement of Overriding Considerations
(e) Project FEIR
(f) Planning Commission Staff Report dated October 11, 2023 (g) Planning Commission Meeting Minutes for October 11, 2023 (h) Project Plans
(i) Vesting Tentative Map
(j) Project Narratives
(k) Applicant COA Modification Requests

REGULAR
NUMBER: XX.XXX
TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILPITAS AMENDING THE ZONING CODE CONTAINED IN TITLE XI, CHAPTER 10, SECTION 3.03 OF THE MILPITAS MUNICIPAL CODE TO ALLOW A ZONING

DESIGNATION CHANGE OF A CERTAIN PARCEL WITHIN THE ZONING MAP
HISTORY:This Ordinance was introduced (first reading) by the City Council at its meeting of ____________________, upon motion by_________________________ and was adopted (second reading) by the City Council at its meeting of _______________, upon motion by ____________________________. The Ordinance was duly passed and ordered published in accordance with law by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
________________________________ __________________________ Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
________________________________
Michael Mutalipassi, City Attorney

Ordinance No. XX.XXX
RECITALS AND FINDINGS:

WHEREAS, on April 12, 2022, Pulte Homes Company LLC (Applicant) submitted an application to the City of Milpitas requesting a General Plan Text Amendment, Zoning Map Amendment, Site Development Permit, Conditional Use Permit, Vesting Tentative Map, Density Bonus Permit, Tree Removal Permit, and Environmental Assessment to allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units. The project will also include 393 vehicle parking spaces, a 0.32-acre internal park, and associated site improvements on a 6.7-acre site at 1355 California Circle (Project). The project thus consists of and requires:
a. General Plan Text Amendment No. GP22-0001: To remove language associated with the California Circle Specific Plan within the General Plan 2040 by amending the Neighborhood Commercial Mixed-Use (NCMU) designation (pg. LU-6), removing the “California Circle Specific Plan Overlay” statement (pg. LU-8) and amending Action LU-2b (pgs. LU-17 and LU-18); and b. Zoning Map Amendment No. ZA22-0001: To amend the zoning map to change the property zoning designation from Industrial Park (MP) to Mixed-Use District (MXD); and for the property identified as 1355 California Circle (APN 022-38-007); and c. Site Development Permit No. SD22-0003: To allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units on a 6.7-acre site; and d. Conditional Use Permit No. UP22-0001: To allow residential units as condominiums and associated subdivision, and tandem parking configuration; and e. Vesting Tentative Map No. MT22-0011: To establish 14 lots, 131 residential condominium spaces and related common areas; and
f. Density Bonus Permit No. DB22-0003: To ensure compliance with State Density Bonus law and regulations and grant modification of the distribution requirements so affordable units can be constructed in the apartment building only; and
g. Tree Removal Permit No. TR23-0021: To remove 27 ordinance-sized trees and replace them with 269 new trees.

WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.) (Collectively, “CEQA”), the City of Milpitas is the lead agency for the proposed Project described above; and
WHEREAS, General Plan (GP) Amendment No. GP22-0001 proposes an amendment within the City of Milpitas General Plan Text to allow for changes associated with policy direction for the Neighborhood Commercial Mixed-Use (NCMU) general plan land use designation the reference of a future California Circle Specific Plan. Such proposed Amendment has been initiated by resolution for approval by the City Council, separate from this Ordinance; and
WHEREAS, Zoning Map Amendment No. ZA22-0001 proposes an amendment within the City of Milpitas Zoning map to change of zoning designation from Industrial Park (MP) to Mixed Use District (MXD) for APN 022-38-007, which has been initiated by this Ordinance; and WHEREAS, on October 11, 2023, the Planning Commission held a duly-noticed public hearing on the subject application and associated project, and considered evidence presented by City staff, the

Ordinance No. XX.XXX
applicant, and other interested parties and recommended the City Council approve the proposed amendments; and
WHEREAS, per Milpitas Municipal Code § XI-10-57.02(G)(3), the City Council finds the Zoning Map Amendment set forth herein to be consistent with the General Plan because the proposed zoning (MXD) is an implementing zoning district of the existing Neighborhood Commercial Mixed Use (NCMU) general plan designation; and
WHEREAS, per Milpitas Municipal Code § XI-10-57.02(G)(3), the City Council likewise finds that the Zoning Code Amendment set forth herein will not adversely affect the public health, safety and welfare because the zoning map amendment will implement a land use designation that is consistent with the permitted general plan land use designation. An environmental consultant has reviewed the project and that traffic, environmental impacts, access to essential services, and community well-being will not be impacted in a manner that would significantly affect public health, safety and welfare. If the project is developed, it has been conditioned to comply with federal, state, and local laws and regulations related to public health, safety, and welfare. This includes zoning ordinances, building codes, environmental regulations, and safety standards; and
WHEREAS, on November 7, 2022 the City Council held a duly-noticed public hearing on the proposed action, and considered evidence presented by City staff and other interested parties; and WHEREAS, the City Council finds that with approval (by separate resolution) of the General Plan Text Amendment No. GP22-0001, and the adoption (by this ordinance) of Zoning Map Amendment No.

ZA22-0001, the General Plan Map and Zoning Map will be internally consistent; and WHEREAS, prior to taking action on this Ordinance, the City Council has taken separate action by resolution to certify the 1355 California Circle Project EIR (State Clearinghouse No. 2022110251) associated with the Project.

NOW, THEREFORE, the City Council of the City of Milpitas does ordain as follows:

SECTION 1. RECORD AND BASIS FOR ACTION
The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

SECTION 2. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 3.03
Title XI, Chapter 10, Section 3.03 (“Zoning Map”), Table XI-10-6.04-1 is hereby amended, as attached hereto in Exhibit 1.

SECTION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT
The adoption of this Ordinance is under the authority of the 1355 California Circle Project EIR (EIR)(State Clearinghouse No. 2022110251); that was prepared to conform to the requirements of the California Environmental Quality Act (CEQA), the CEQA Guidelines (Title 14, California Code of Regulations §15000 et seq.) and the regulations and polices of the City of Milpitas. The purpose of this EIR is, among other things, to provide objective information regarding the environmental consequences of the

Ordinance No. XX.XXX
proposed Project to the decision makers and the public and to identify measures to substantially lessen or avoid significant adverse environmental effects of the project.

SECTION 4. SEVERABILITY
The provisions of this Ordinance are severable, and the invalidity of any phrase, clause, provision or part shall not affect the validity of the remainder.

SECTION 5. EFFECTIVE DATE AND POSTING
In accordance with Section 36937 of the Government Code of the State of California, this Ordinance shall take effect thirty (30) days from and after the date of its passage. The City Clerk of the City of Milpitas shall cause this Ordinance or a summary thereof to be published in accordance with Section 36933 of the Government Code of the State of California.

Ordinance No. XX.XXX
Exhibit 1: Zoning Map

RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING GENERAL PLAN TEXT AMENDMENT NO. GP22-0001 TO REMOVE LANGUAGE

ASSOCIATED WITH THE CALIFORNIA SPECIFIC PLAN WITHIN THE GENERAL PLAN 2040
WHEREAS, the City of Milpitas, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, California Government Code Section 65800 et seq. authorizes the adoption and administration of zoning laws, ordinances, rules, and regulations by cities as a means of implementing the General Plan; and
WHEREAS, the City Council is the final authority on General Plan, Specific Plan, and Zoning amendments, including amendments to the Zoning Map; and WHEREAS, the City of Milpitas has not amended its general plan in 2023; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.) (collectively, “CEQA”), the City of Milpitas is the lead agency for the proposed project described below; and
WHEREAS, on April 12, 2022, Pulte Homes Company LLC submitted an application to the City of Milpitas for the entitlements necessary to allow development of a multi-family residential project consisting of 13 residential buildings, up to 51-feet in height, and one residential apartment building, up to 78-feet in height, for a total of 206 residential units, with 393 vehicle parking spaces, a 0.32-acre internal park, and associated site improvements located at 1355 California Circle (“the Project”). The Project requires approvals of the following entitlement to facilitate the Project:
a. General Plan Text Amendment (GP22-0001): To remove language associated with the California Circle Specific Plan within the General Plan 2040 by amending the Neighborhood Commercial Mixed-Use (NCMU) designation (pg. LU-6), removing the “California Circle Specific Plan Overlay” statement (pg. LU-8) and amending Action LU-2b (pgs. LU-17 and LU-18).

WHEREAS, the Planning Commission is an advisory body to the City Council pursuant to Milpitas Municipal Code Section XI-10-64.03 (Consideration of Concurrent Applications), where, as here, due to the application for a General Plan Text Amendment pursuant to Milpitas Municipal Code Section XI-10-57.02, Zoning Map Amendment pursuant to Milpitas Municipal Code Section XI-10-57.02, Tentative Map pursuant to Milpitas Municipal Code Section XI-1-4.03 and a density bonus pursuant to Milpitas Municipal Code Section XI-10-54.15, the City Council is the highest review authority for the Project and, accordingly, all review by other bodies with approval authority over the application shall be in the form of a recommendation to the City Council; and
WHEREAS, on October 11, 2023, the Planning Commission held a duly noticed public hearing, during which meeting the Planning Commission considered the EIR as well as General Plan Text Amendment No. GP22-0001, Zoning Text Amendment No. ZA22-0001, Site Development Permit No.

SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map No. MT22-0001, Density Bonus Permit No. DB23-0003, Tree Removal Permit No. TR23-0021 and Environmental Assessment No.

EA22-0002 for 1355 California Circle, heard a presentation from staff, and had the opportunity to hear from members of the public and closed the public hearing on the item; and WHEREAS, by adoption of Resolution No. 23-017, the Planning Commission recommended that the City Council approve General Plan Text Amendment GP22-0001, Zoning Text Amendment ZA22- 0001, Site Development Permit SD22-0003, Conditional Use Permit UP22-0001, Vesting Tentative Map MT22-0001, Density Bonus Permit DB23-0003, Tree Removal Permit TR23-0021 and Environmental Assessment No. EA22-0002 for 1355 California Circle; and WHEREAS, the City Council received the draft General Plan text amendment to remove language associated with the California Circle Specific Plan within the General Plan 2040, specifically pages LU-6, LU-8, and LU-17 – 18 attached hereto and incorporated herein as Exhibit “1”; and WHEREAS, the documents and other materials which constitute the record of proceedings upon which the City Council bases the recommendation and the findings contained within this Resolution are available and may be reviewed at Milpitas City Hall, located at 455 E. Calaveras Boulevard, Milpitas, California 95035; and
WHEREAS, on November 7, 2023, the City Council held a duly-noticed public hearing, during which meeting the City Council considered the EIR as well as General Plan Text Amendment No. GP22- 0001, Zoning Text Amendment No. ZA22-0001, Site Development Permit No. SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map No. MT22-0001, Density Bonus Permit No. DB23- 0003, Tree Removal Permit No. TR23-0021 and Environmental Assessment No. EA22-0002 for 1355 California Circle, heard a presentation from staff, and had the opportunity hear from members of the public; and
WHEREAS, the findings and conclusions made by the City Council pursuant to this Resolution are based upon the oral and written evidence before it as a whole; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

SECTION 1. Recitals
The City Council has considered the full record before it, which includes, but is not limited to, such things as all published staff reports, oral and written testimony by staff, the Planning Commission, City Council and the public, and all other relevant materials and evidence submitted or provided to it.

Furthermore, the recitals set forth above are found to be true and correct and incorporated herein by reference.

SECTION 2. General Plan Text Amendment Findings (Section XI-10-57.02) The City Council makes the following findings based on the evidence in the administrative record in support of General Plan Text Amendment No. GP22-0001, attached hereto and incorporated herein as Exhibit “1”:
a. The proposed amendment is internally consistent with those portions of the General Plan which are not being amended.

The proposed General Plan Text Amendment is remaining consistent with those portions of the General Plan not being amended because the existing general plan designation (which contemplates the future development) will remain intact, and therefore will not affect other elements of the general plan. The General Plan Text amendment is removing language about the creation of the California Circle Specific Plan. By removing this language, the City Council will have the flexibility to consider development projects within the California Circle area that provide public benefit above and beyond what the zoning ordinance requires, without compromising the integrity of the remaining elements of the general plan.
b. The proposed amendment will not adversely affect the public health, safety, and welfare.

The proposed General Plan Text Amendment will not adversely affect the public health, safety and welfare because the proposed language has no direct effect on public health, welfare and safety.

The amendment is to enable the City Council to modify their current decision making framework for land use decisions for projects that support citywide community goals, such as increasing affordable housing stock and partnering with community groups such as Milpitas Unified School District, in order to enhance the Milpitas community character.

SECTION 3. Severability
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held incorrect, invalid, illegal, or unenforceable, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed each section, subsection, phrase, or clause thereof irrespective of the fact that any one or more sections, subsections, phrases or clauses be declared incorrect, invalid, illegal, or unenforceable.

SECTION 4. City Council Approval
The City Council hereby approves General Plan Text Amendment No. GP22-0001, based on the above findings.

PASSED AND ADOPTED this 7th day of November 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:
___________________________
Suzanne Guzzetta, City Clerk
APPROVED:

Carmen Montano, Mayor

APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney

RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS APPROVING ZONING MAP AMENDMENT NO. ZA22-0001, SITE DEVELOPMENT PERMIT NO. SD22- 0003, CONDITIONAL USE PERMIT NO. UP22-0001, VESTING TENTATIVE MAP NO. MT22- 0001 DENSITY BONUS PERMIT NO. DB23-0003, TREE REMOVAL PERMIT NO. TR23-0021, AND ENVIRONMENTAL ASSESSMENT NO. EA22-0002 TO ALLOW DEMOLITION OF ONE INDUSTRIAL BUILDING, REMOVAL AND REPLACEMENT OF 27 ORDINANCE-SIZE

TREES, AND DEVELOPMENT OF A MULTI-DAMILY RESIDENTIAL PROJECT CONSISTING OF 13 RESIDENTIAL BUILDINGS, UP TO 51-FEET IN HEIGHT, AND ONE RESIDENTIAL APARTMENT BUILDING, UP TO 78-FEET IN HEIGHT, FOR A TOTAL OF 206 RESIDENTIAL UNITS, WITH 393 VEHICLE PARKING SPACES, A 0.32-ACRE INTERNAL PARK, AND ASSOCIATED SITE IMPROVEMENTS ON A 6.7-ACRE SITE AT 1355 CALIFORNIA CIRCLE
WHEREAS, the City of Milpitas, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, California Government Code Section 65800 et seq. authorizes the adoption and administration of zoning laws, ordinances, rules, and regulations by cities as a means of implementing the General Plan; and
WHEREAS, Section 3.03 of Chapter 10 Zoning of Title XI of the Milpitas Municipal Code, divides the City into zoning districts; and
WHEREAS, the City Council is the final authority on General Plan, Specific Plan, and Zoning amendments, including amendments to the Zoning Map; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.) (collectively, “CEQA”), the City of Milpitas is the lead agency for the proposed project described below; and
WHEREAS, on April 12, 2022, Pulte Homes Company LLC submitted an application to the City of Milpitas for the entitlements necessary to allow development of a multi-family residential project consisting of 13 residential buildings, up to 51-feet in height, and one residential apartment building, up to 78-feet in height, for a total of 206 residential units, with 393 vehicle parking spaces, a 0.32-acre internal park, and associated site improvements located at 1355 California Circle (“the Project”). The Project requires approvals of the following entitlements:
a. Zoning Map Amendment (ZA22-0001): To amend the zoning map to change the property zoning designation from Industrial Park (MP) to Mixed-Use District (MXD). b. Site Development Permit (SD22-0003) to allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units on a 6.7-acre site. c. Conditional Use Permit (UP22-0001) to allow for condominium use, associated subdivision, and tandem parking.
d. Vesting Tentative Map (MT22-0001) to establish 131 residential condominium spaces and related common areas.

e. Density Bonus Permit (DB23-0003) to ensure compliance with State Density Bonus law and regulations and grant modification of the distribution requirements so affordable units can be constructed in the apartment building only.
f. Tree Removal Permit (TR23-0021) to remove 27 ordinance-sized trees and replace them with 269 new trees.
g. Environmental Assessment (EA22-0002: To review and assess all requested entitlements for consistency with the California Environment Quality Act (CEQA).

WHEREAS, the Project is also requesting an alternate method of compliance with the City’s Affordable Housing Ordinance (AHO) pursuant to Milpitas Municipal Code Section XII-1-4; and WHEREAS, in order to evaluate the Project under the California Environmental Quality Act (“CEQA,” codified at Public Resources Code § 21000, et seq., as further governed by the CEQA Guidelines, found at 14 C.C.R. § 15000, et seq.), an environmental impact report was prepared (the Draft EIR, as revised by the Final EIR’s errata section, together with the other sections of the Final EIR, are collectively referred to herein as the “EIR,” State Clearinghouse No. 2022110251); and WHEREAS, the proposed Project is found to be consistent with the goals, policies, and regulations of the California Density Bonus Law (Government Code Section 65915 et seq.), Milpitas General Plan 2040, and Milpitas Zoning Ordinance, specifically Milpitas Municipal Code Section XI-10-54.15 (Density Bonus for Affordable Housing Developments), which allows a modification of the distribution requirement of affordable units for a project that better serves the affordable housing need in the City and permits concessions and waivers and modifications of development standards, as analyzed and documented in the staff report; and
WHEREAS, the Planning Commission is an advisory body to the City Council pursuant to Milpitas Municipal Code Section XI-10-64.03 (Consideration of Concurrent Applications), where, as here, due to the application for a General Plan Text Amendment pursuant to Milpitas Municipal Code Section XI-10-57.02, Zoning Map Amendment pursuant to Milpitas Municipal Code Section XI-10-57.02, Tentative Map pursuant to Milpitas Municipal Code Section XI-1-4.03 and a density bonus pursuant to Milpitas Municipal Code Section XI-10-54.15, the City Council is the highest review authority for the Project and, accordingly, all review by other bodies with approval authority over the application shall be in the form of a recommendation to the City Council; and
WHEREAS, on October 11, 2023, the Planning Commission held a duly noticed public hearing, during which meeting the Planning Commission considered the EIR as well as General Plan Text Amendment No. GP22-0001, Zoning Text Amendment No. ZA22-0001, Site Development Permit No.

SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map No. MT22-0001, Density Bonus Permit No. DB23-0003, Tree Removal Permit No. TR23-0021 and Environmental Assessment No.

EA22-0002 for 1355 California Circle, heard a presentation from staff, and had the opportunity to hear from members of the public and closed the public hearing on the item; and WHEREAS, by adoption of Resolution No. 23-017, the Planning Commission recommended that the City Council approve General Plan Text Amendment GP22-0001, Zoning Text Amendment ZA22- 0001, Site Development Permit SD22-0003, Conditional Use Permit UP22-0001, Vesting Tentative Map MT22-0001, Density Bonus Permit DB23-0003, Tree Removal Permit TR23-0021 and Environmental Assessment No. EA22-0002 for 1355 California Circle; and

WHEREAS, the City Council received in evidence a plan for the subject property entitled “1355 California Circle Planned Development”, dated August 2, 2023 and, “Vesting Tentative Map 1355 California Circle”, dated October 5, 2023, and said plans are on file in the Planning Department and are available for inspection by anyone interested herein, and said plans are incorporated herein by this reference, the same as if it were fully set forth herein; and WHEREAS, the documents and other materials which constitute the record of proceedings upon which the City Council bases the recommendation and the findings contained within this Resolution are available and may be reviewed at Milpitas City Hall, located at 455 E. Calaveras Boulevard, Milpitas, California 95035; and
WHEREAS, on November 7, 2023, the City Council held a duly-noticed public hearing, during which meeting the City Council considered the EIR as well as General Plan Text Amendment No. GP22- 0001, Zoning Text Amendment No. ZA22-0001, Site Development Permit No. SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map No. MT22-0001, Density Bonus Permit No. DB23- 0003, Tree Removal Permit No. TR23-0021 and Environmental Assessment No. EA22-0002 for 1355 California Circle, heard a presentation from staff, and had the opportunity hear from members of the public; and
WHEREAS, the City Council has reviewed the draft ordinance amending the Zoning Code contained in Title XI, Chapter 10, Section 3.03 of the Milpitas Municipal Code to allow a zoning designation change of certain parcel within the zoning map, attached hereto and incorporated herein as Exhibit “2”; and
WHEREAS, the findings and conclusions made by the City Council pursuant to this Resolution are based upon the oral and written evidence before it as a whole; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

SECTION 1. Recitals
The City Council has considered the full record before it, which includes, but is not limited to, such things as all published staff reports, oral and written testimony by staff, the Planning Commission, City Council and the public, and all other relevant materials and evidence submitted or provided to it.

Furthermore, the recitals set forth above are found to be true and correct and incorporated herein by reference.

SECTION 2. Zoning Map Amendment Findings (Section XI-10-57.02) The City Council makes the following findings based on the evidence in the administrative record in support of Zoning Map Amendment No. ZA22-0001 and the draft ordinance amending the Zoning Code contained in Title XI, Chapter 10, Section 3.03 of the Milpitas Municipal Code to allow a zoning designation change of certain parcel within the zoning map, attached hereto and incorporated herein as Exhibit “2”:
a. The proposed amendment is consistent with the General Plan.

The proposed map amendment is consistent with the General Plan because the proposed zoning (MXD) is an implementing zoning district of the existing Neighborhood Commercial Mixed Use (NCMU) general plan designation.
b. The proposed amendment will not adversely affect the public health, safety and welfare.

The proposed map amendment will not adversely affect the public health, safety and welfare because the zoning map amendment will implement a land use designation that is consistent with the permitted general plan land use designation. An environmental consultant has reviewed the project and that traffic, environmental impacts, access to essential services, and community well- being will not be impacted in a manner that would significantly affect public health, safety and welfare. If the project is developed, it has been conditioned to comply with federal, state, and local laws and regulations related to public health, safety, and welfare. This includes zoning ordinances, building codes, environmental regulations, and safety standards.

SECTION 3. Vesting Tentative Map Findings (Section XI-1-20.01) The City Council makes the following findings based on the evidence in the administrative record in support of Vesting Tentative Map No. MT22-0001 as referenced as “Vesting Tentative Map 1355 California Circle”, dated October 5, 2023, on file with the Planning Department:
a. The tentative subdivision map is consistent with the General Plan.

The Project is requesting a General Plan Text Amendment to remove language associated with the California Circle Specific Plan within the General Plan 2040. With the approval of a General Plan Text Amendment, the proposed Project is consistent with the Milpitas General Plan, as demonstrated and outlined in Table 1 below:

Table 1: General Plan Consistency
Policy Conformance
Policy LU 1-4: Continue to provide for a
variety of housing types and densities that
meet the needs of individuals and families and
offer residents of all income levels, age
groups, and special needs sufficient housing
opportunities and choices for locating in
Milpitas.

Consistent. The Project would develop a total
of 206 new housing units within the 6.7-acre
Project Site, which would result in a housing
density of 30.8 dwelling units per-acre.

Approximately 75 units would be rental units
offered at a below-market rate. Additionally,
the Project would qualify for a State Density
Bonus, which would allow for an increase in
density.

Policy LU 4-4: Encourage new development
to facilitate pedestrian, bicycle and transit
access through techniques such as minimizing
building separation from public sidewalks;
providing safe, direct, accessible, convenient,
and pleasant pedestrian connections;
including secure and convenient bike storage;
and orienting building entrances to transit
service.

Consistent. The Project would maintain the
existing sidewalks at the Project Site and would
also provide bike racks on-site to accommodate
pedestrians and bicyclists. The Project Site has
also been designed to retain an existing
pedestrian crosswalk on California Circle,
which will provide pedestrian access to nearby
walking trails and a future public park.

Policy CD 2-7: Include design elements
during the development review process that
Consistent. The development includes internal
private streets within the proposed townhome

Policy Conformance
address security, aesthetics and safety. Safety
issues include, but are not limited to,
minimum clearance around buildings, fire
protection measures such as peak load water
requirements, construction techniques, and
minimum standards for vehicular, bicycle,
and pedestrian facilities and other standards
set forth in local, state, and federal
regulations.
community for vehicular circulation and to
provide access to each townhome. These
private streets would be able to accommodate
emergency service vehicles, such as fire trucks
owned by the City. The proposed apartment
parking structure would also provide adequate
and safe circulation for vehicles. On-site
parking spaces would be provided per
residential unit in accordance with the City’s
parking requirements Additionally, patterned
walkways would also be provided within the
townhome community to ensure there is
adequate pedestrian circulation on-site for
residents.

The proposed townhomes would install
external lighting structures that would be
mounted to each building to provide lighting
and security to the proposed paseos, outdoor
recreation area and outdoor parking spaces.

The proposed apartment complex would also
install mounted lighting structures.

Furthermore, site plans for the Project would be
reviewed by the City and the Milpitas Fire
Department (MFD) to ensure that fire
protection measures and building safety
measures would be implemented.

Policy LU 2-3: Allow densities and intensities
which exceed the generally allowed ranges
defined by the underlying land use for projects
utilizing Density Bonus provisions (included
within the Milpitas Affordable Housing
Ordinance Title XII - HOUSING Chapter 1 -

AFFORDABLE HOUSING ORDINANCE)
including bonuses for senior housing,
affordable housing, and for projects within
designated overlay districts included in
Milpitas Municipal Code Section 12 - Overlay
Districts and Standards
Consistent. The Project includes an apartment
complex with over 15 percent of the proposed
units being made available at a low-income
rental rate. Furthermore, the Project would
adhere to all applicable requirements with Title
XII of the Milpitas Affordable Housing
Ordinance. No proposed Overlay District is
included as part of the Project.

Policy LU-1-7: Recognize that the Land Use
Map may be amended in accordance with
State law in order to ensure that there is an
adequate supply of commercial, business
park, industrial, public facility, parks,
residential, and other desired land uses to
serve the City’s needs.

Consistent. The applicant proposes to amend
the Land Use Zoning Map to replace
industrial/employment uses with multi-family
residential uses that include affordable housing
above the inclusionary standards. The increase
of market rate and affordable housing will serve
the City’s needs in creating housing stock to
meet the Regional Housing Needs Allocation
(RHNA) required by the State Department of
Housing and Community Development.

Policy Conformance
Policy CD-10: Design multi-family
residential, mixed use, commercial, and
employment-generating development in
neighborhoods, districts, and centers to:
a.) Include open space and/or recreational
amenities to provide visual relief from
development, form pedestrian and bicyclist
linkages to adjacent uses and other portions
of the neighborhood, district, or center, and
serve as buffers between uses, where
necessary;
b.) Locate building access points along
sidewalks, pedestrian areas, and bicycle
routes, and include amenities that encourage
pedestrian activity;
c.) Create a human-scale ground-floor
environment that includes public open areas
that separate pedestrian space from auto
traffic or where these intersect, give special
regard to pedestrian safety; and
d.) Provide comfortable pedestrian amenities,
such as quality seating areas, lighting, and
wide, shaded paths, along with specialized
and engaging design features, such as
interesting fountains or public art to draw and
maintain people's attention
Consistent. The Project would provide open
space and recreational amenities on-site with an
outdoor recreational area that consists of an
outdoor playground, two turf areas, picnic
tables with a sail structure providing shade, a
bench, and bike racks for bicyclists. The
proposed outdoor recreational area would be
visible for pedestrians, bicyclists, and motorists
travelling along California Circle. The Project
would also include several walkways and two
walking paseos that provide pedestrian
amenities (i.e., benches). Pedestrian and
bicycle access to the Project Site would be
provided along California Circle. Pedestrian
access on-site would be provided to each
townhome building and the proposed
apartment complex. Additionally, pedestrian
and bicycle routes would be provided via
walkways and sidewalks.

Refer to response to Policy CD 2-7 regarding
the proposed lighting fixtures for the Project.

The Project will include a direct connection to
an existing pedestrian crosswalk on California
Circle, and the primary driveway will be
located away from the crosswalk to enhance
pedestrian safety. The existing pedestrian
sidewalk connects through an existing
residential neighborhood to the City’s trail
system along nearby waterways.
b. None of the conditions identified in California Government Code Section 66474 exist, to wit:

A. That the proposed map is not consistent with applicable general and specific plans as specified in Government Code Section 65451.

As outlined above, the Project includes the development of 131 residential condominium units and 75 apartment units at a density of 30.8 dwelling units/acre. The General Plan land use designation applicable to the site (Neighborhood Commercial Mixed Use (NCMU), and with the zoning map amendment to Mixed Use (MXD)) permits residential development at densities of 21 to 30 dwelling units/acre. Given that the Project also qualifies for a Density Bonus, the map is therefore consistent with the General Plan.

B. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans.

The Project proposes 30.8 dwelling units per acre, consistent with the 21-30 dwelling units per acre allowed by the General Plan, the proposed rezoning, and the State Density Bonus Law.

C. That the site is not physically suitable for the type of development.

The site is adjacent to other residential properties that have been recently rezoned to high density multi-family (R3) and single-family residential (R1-2.5). In addition, this site is suitable for the higher density development based on the location, physical attributes, and proposed infrastructure improvements.

D. That the site is not physically suitable for the proposed density of development.

The Project site is within the Neighborhood Commercial Mixed Use NCMU General Plan designation, and is being rezoned to Mixed Use MXD, which permits residential development at 21 to 30 dwelling units per acre. The design will physically suit the site by providing required utilities, sufficient open space, and adequate residential living facilities.

E. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.

The Project, including the subdivision and its associated improvements, is located in an urbanized area and was previously developed as two industrial buildings. Therefore, it will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.

F. That the design of the subdivision or type of improvements is likely to cause serious public health problems.

The Project, including the subdivision and its associated improvements, has been designed in a manner that will not cause serious public health problems. The Project has been reviewed by Building, Fire, Land Development, Traffic, Water, and Solid Waste Departments. As a result, it has been determined that it can be adequately serviced to preserve public health and wellness.

G. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision.

Upon review of the subdivision map, it has been determined that the design of the subdivision or the type of improvements will not conflict with any easements acquired by the public at large, for access through or use of, property within the proposed subdivision.

SECTION 4. Site Development Permit Findings (Milpitas Municipal Code Section XI-10-

57.03(F))
The City Council makes the following findings based on the evidence in the public record in support of Site Development Permit No. SD22-0003, as referenced as “1355 California Circle Planned Development”, dated August 2, 2023, on file with the Planning Department:

a. The layout of the site and design of the proposed buildings, structures and landscaping are compatible and aesthetically harmonious with adjacent and surrounding development.

The Project consists of 131 townhome condominium units and 75 apartment units and associated site amenities on a 6.7-acre site. Overall, the Project’s contemporary architectural design visually relates to and is compatible with the adjacent townhome projects along California Circle. Colors are earth tone shades of browns, blues, and reds. In addition, future residents of the townhomes will access garages via private alleyways, similar to nearby residential developments. The proposed buildings’ heights ranges from 39.5 feet to 77-feet-4-inches. The proposed six-story multi-family residential building maintains a strong relationship to the street in that its primary entrance is oriented toward the street. The east exterior walls and roof top include architectural relief in the form of fenestration along the front and massing differentiation along the roof segments. The building’s design features exterior plaster walls, vinyl windows, accented with stone veneer and wood frame canopies along the ground floor, along with an aluminum storefront system. The Project as built will further strengthen the identity of the existing neighborhood and achieve compatibility and aesthetic harmony with the surrounding development. b. The Project is consistent with the Milpitas Zoning Ordinance.

The proposed Project is consistent with the Milpitas Zoning Ordinance, as demonstrated in Table

2. and will be fully consistent if granted approval of the Zoning Map Amendment to adjust the property from MP to MXD. The proposed multi-family residential buildings are permitted in the MXD zoning district. The project design conforms to the site and development standards of the MXD zone.

The Project also conforms to MMC Section XI-10-54.015 (Density Bonus for Affordable Housing Developments) and XI-10-57.05 (Density Bonus Permits). Where exceptions from the MXD standards are needed, the applicant has requested waivers and parking exceptions pursuant to the State Density Bonus Law (Gov. Code § 65915 et seq.). The requested waivers and parking exception will support the development of affordable housing on a site where it would not otherwise be possible through a strict application of the specified standard.

Table 2: Summary of MXD Zoning District
Development
Standard
(MXD)
Required Proposed Conformance
Density 21-30 du/ac 30.8 du/acre Yes, with Density
Bonus
Front Yard
Setback
Minimum of 8 feet and a
maximum of 15 feet from
back of sidewalk. The
sidewalk is based on either
the existing sidewalk or
assumed 10-foot-wide
sidewalk, whichever is wider
Townhomes and stacked
flats: 12.5 feet from back
of sidewalk
Apartment building: 18-
foot-10-inches
Yes
Yes, with Density
Bonus

Development
Standard
(MXD)
Required Proposed Conformance
Side Yard
Setback
(Minimum) 10 feet 15 feet Yes
Rear Yard
Setback
(Minimum) 10 feet 40 feet Yes
Height Principal building: 3 stories
and 45 feet
12-plex: 4 stories and 51
feet
7-plex: 3 stories and 39-
feet-6-inches
Podium: 6 stories and 77-
feet-4-inches
Yes, with Density
Bonus
Landscaping
All required front and street
setback areas shall be
landscaped or paved to allow
for outdoor seating, display
or goods, or street furniture
All required front and
street setback areas are
landscaped or paved
Yes
Parking
Studio: 1 covered per unit
1 bedroom: 1.5 covered per
unit
2-3 bedrooms: 2 covered per
unit
Guest: Projects with parking
structures: 15 percent of the
total required, may be
uncovered
Projects with private garages:
20 percent of the total
required, may be uncovered
Total: 445
393 Yes, with Density
Bonus
c. The Project is consistent with the General Plan.

The proposed Project is consistent with the Milpitas General Plan, with the proposed General Plan Text Amendment as demonstrated and outlined in Table 1, above.

Furthermore, as the Project is an eligible housing project under the State Density Bonus Law, Government Code Section 65915(p)(5), the Project is entitled to waivers and reduced parking requirements. The requested waivers and parking exception will support the development of

affordable housing units on a site where it would not otherwise be possible through a strict application of the specified standard.

SECTION 5. Conditional Use Permit Findings (Milpitas Municipal Code Section XI-10-

57.04(F))
The City Council makes the following findings based on the evidence in the public record in support of Conditional Use Permit No. UP22-0002, as referenced as “1355 California Circle Planned Development”, dated August 2, 2023, on file with the Planning Department:
a. The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity nor to the public health, safety and general welfare.

The Project will not be detrimental or injurious to property or improvements in the vicinity or public health, safety, or general welfare. The Project is consistent with other multi-family residential projects within the California Circle vicinity and conditioned to preserve the health and wellness of future residents. By allowing tandem parking in private garages throughout the development, the Project will be able to offer more parking spaces for its residents. In addition, the condominium project creates housing opportunities and increases the diversity of housing types in the California Circle area by offering both apartments and for-sale townhomes. b. The Project is consistent with the Milpitas Zoning Ordinance.

The proposed Project is generally consistent with the Milpitas Zoning Ordinance, as demonstrated in Table 2, and will be fully consistent if granted approval of the Zoning Map Amendment to adjust the property from MP to MXD. The proposed multi-family residential buildings are permitted in the MXD zoning district. The project design conforms to the site and development standards of the MXD zone. Therefore, a conditional use permit is required to allow the subdivision of the proposed townhome units.

The Project also conforms to MMC Section XI-10-54.015 (Density Bonus for Affordable Housing Developments) and XI-10-57.05 (Density Bonus Permits). Where exceptions from the MXD standards are needed, the applicant has requested waivers and parking exceptions pursuant to the State Density Bonus Law (Gov. Code § 65915 et seq.). The requested waivers and parking exception will support the development of affordable housing on a site where it would not otherwise be possible through a strict application of the specified standard. c. The Project is consistent with the Milpitas General Plan.

The proposed Project is consistent with the Milpitas General Plan, as amended by the proposed General Plan Text Amendment, as demonstrated and outlined in Table 1, above.

SECTION 6. Density Bonus Permit (Milpitas Municipal Code Section XI-10-54.15(D)) The City Council makes the following findings based on the evidence in the public record in support of Density Bonus Permit No. DB23-0003, as referenced as “1355 California Circle Planned Development”, dated August 2, 2023, on file with the Planning Department:

1. The maximum allowable base density specified in the General Plan, including any other permitted increases to density.

The proposed Project includes 131 townhome condominiums and 75 apartment units, equaling to

30.8 dwelling units per acre. Since the Project site will be rezoned to Mixed Use (MXD) to allow a 100 percent multifamily residential development, and the MXD district is an implementing zoning district of the General Plan NCMU land use designation, the Project is in conformance with the allowable base density specified in the General Plan.

2.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.

The applicant has proposed seven studios, 16 one-bedroom, and eight two-bedroom units as affordable units reserved for lower-income households. The remaining 44 apartment units would be reserved for moderate-income households.

By granting this modification to the City’s AHO, the Project would add 44 additional deed restricted units to its affordable housing stock and help the City meet its RHNA obligation.

Additionally, the total number of bedrooms under the applicant’s deviation would be 94, whereas the standard ordinance would only require 74 bedrooms. Moreover, the total square footage of living space under the standard ordinance is approximately 41,548 square feet, whereas the Project would be providing 45,661 square feet (or ten percent more).

While the affordable units are not reasonably dispersed throughout the project, pursuant to Milpitas Municipal Code section XI-10-54.15(D)(2), modification of this requirement only for this project only is justified to allow the placement of the affordable units in the proposed apartment units only because under the unique circumstances of this case for this project only, this modification would better serve the affordable housing needs of Milpitas. The project shall otherwise comply with the standards for density bonuses specific in the Milpitas Municipal Code, including the requirement in Milpitas Municipal Code section IX-10-54.15(D)(2) that the affordable units contain, on average, the same number of bedrooms as the non-affordable units and be comparable with the non- affordable units in terms of appearance, materials, and finished quality.

3. 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.

The Project has been conditioned to provide an agreement to the City of Milpitas explaining the affordability requirements, processes and procedures, to the satisfaction of the Milpitas City Attorney prior to the release of any Certificate of Occupancy.

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.

Prior to final building inspection and occupancy for the 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, including continued affordability for low and/or moderate-income households. The agreement shall be approved by the Milpitas City Attorney prior to recordation.

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.

The Project’s 31 apartment rental units will be targeted for lower-income households, as defined in Section 50079.5 of the Health and Safety Code, which states that lower-income households shall be affordable at a rent that does not exceed thirty (30%) of sixty (60%) percent of the Santa Clara 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.

Any density bonus requirements not specified in the City’s Municipal Code shall be governed by the State Density Bonus Law, Government Code Section 65915, et seq.

Density Bonus Concessions, Incentives and Waivers
In accordance with California Government Code Section 65915 and MMC Section X-10-54.15, the City must grant the requested incentives/concessions unless the City can make 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 Chapter 10 (Zoning) of the Milpitas Municipal Code.
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.

If findings cannot be made, then the proposed concessions/incentives and waivers must be granted, based on the requirements of the City’s Municipal Code and California Government Code Sections 65915 – 65918.

The City does not have substantial evidence to demonstrate that the concessions/incentives and waivers described in Table 3 would fail to result in actual and identifiable cost savings, and/or that these savings are unnecessary to provide the level of affordability proposed. Moreover, the City has no substantial evidence that any of the requested concessions, incentives or waivers would result in any specific, adverse impacts to public health, safety, the physical environment, or

historical resources. Accordingly, the City Council hereby approves such requested concessions/incentives and waivers.

Table 3: State Density Bonus – Concessions, Waivers, and Incentives Type of
Modification Standard Applicant
Request Justification Discretion
Density Bonus21-30 du/ac 30.8 du/ac By allowing
additional density,
more affordable
units will be
provided to meet
the City’s
Regional Housing
Needs Allocation
(RHNA)
obligation.

The density bonus
is allowed under
State Density
Bonus Law and
must be granted
by the City.

Waiver(s) Front Setback:

Minimum 8
feet, Maximum
15 feet
Apartment
Building: 18-
foot-10-inches
A greater front
yard setback is
needed to create a
better streetscape
along the project
frontage and
incorporate ADA
accessible ramps
leading to the
leasing office.

This waiver is
allowed under
State Density
Bonus Law and
must be granted
by the City.

Waiver(s)
Building
Height: 3
stories and 45
feet
12-plex: 4
stories and 51
feet
7-plex: 3
stories and 39-
feet-6-inches
Podium: 6
stories and 77-
feet-4-inches
The proposed
building heights
are necessary to
achieve the
proposed density
and the open space
areas. The podium
apartment building
would not be
financially
feasible to build
with less units or
at a lower height.

This waiver is
allowed under
State Density
Bonus Law and
must be granted
by the City.

Parking
Reduction Studio: 1
covered per
unit
Studio: 1
covered per
unit
1 bedroom: 1
per unit
The Project is
providing the
maximum number
of required
parking spaces
under State
This waiver is
allowed under
State Density
Bonus Law and

Type of
Modification Standard Applicant
Request Justification Discretion
1 bedroom: 1.5
covered per
unit
2-3 bedrooms:
2 covered per
unit
(Pursuant to
MMC Section
XI-10-53.09)
2 bedrooms:

1.5 per unit
(Maximum,
pursuant to
State Density
Bonus law)
Total: Podium
- 85 spaces
Density Bonus
Law.
must be granted
by the City.

Parking
Waiver
Guest Vehicle
Parking
requirement:

Projects with
parking
structures: 15
percent of the
total required,
may be
uncovered;
Projects with
private garages:
20 percent of
the total
required, may
be uncovered.

Townhomes:

52.4 guest
spaces
To provide 46
guest vehicle
parking spaces
when 52.4
vehicle
parking spaces
are required
per MMC.

By relocating the
main entrance to
the
condo/townhome
and creating a
more optimal trash
pickup area for the
apartment
building, the
Project was unable
to provide 6
additional guest
spaces. The State
Density Bonus
Law provides a
reduction in the
minimum parking
requirements for
qualifying
projects.

A waiver of
minimum parking
standards is
allowed under
State Density
Bonus Law and
must be granted
by the City.

Parking
Waiver
Compact stalls
shall be used
only in Projects
within R3, R4,
and R5 zones.

Compacts
stalls
dispersed
throughout the
proposed
MXD zoned
site.

The dispersal and
design of compact
stalls are
necessary to
provide adequate
parking for the
Project.

A waiver of
parking standards
is allowed under
State Density
Bonus Law and
must be granted
by the City.

SECTION 7. Affordable Housing Ordinance Exception
The City Council makes the following findings based on the evidence in the public record in support of an exception to the City’s Affordable Housing Ordinance, as referenced as “1355 California Circle Planned Development”, dated August 2, 2023, on file with the Planning Department:

a. The development as proposed with the exception as provided pursuant to this Section would further the City's low and/or moderate income housing goals as contained in the Housing Element; and
In order to comply with this section, the ordinance requires the Project to provide 20 townhomes, as moderate-income, and 11 apartment units, as low-income, for affordable housing, for a total of 31 affordable housing units. The applicant proposes to deviate from the ordinance and meet the City’s affordable housing requirement by reserving 31 of the apartment units on-site for lower- income households, meeting the 15 percent requirement of the total number of dwelling units.

The Project will also reserve the remaining 44 apartment units for moderate-income households, bringing the total of the Project’s Below Market Rate (BMR) contribution to 36.4 percent of the total number of dwelling units. By granting an exception to the design and distribution requirements of the City’s AHO, the Project would add 75 deed restricted units, or 44 additional units, to its affordable housing stock and help the City meet its RHNA obligation. b. The development with the exception either (i) will result in at least two of the following:
a. The development of a larger number of deed-restricted affordable units than would be created under the on-site requirement;
b. The development of a larger number of deed-restricted affordable bedrooms than would be created under the on-site requirement;
c. The development of a larger amount of deed restricted affordable living area than would be created under the on-site requirement;
d. The development of deed-restricted affordable units at a lower average income target as compared to the affordable units that would be created under the on-site requirement; or (ii) will provide other community benefits that exceed the benefit of constructing on-site affordable units.

The Project, with the exception to the design and distribution requirements of the City’s AHO, will result in a larger number of deed-restricted affordable units than would be created under the standard ordinance. Additionally, the total number of bedrooms under the applicant’s deviation would be 94, whereas the standard ordinance would only require 74 bedrooms. Moreover, the total square footage of living space under the standard ordinance is approximately 41,548 square feet, whereas the Project would be providing 45,661 square feet (or ten percent more).

SECTION 8. Severability
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held incorrect, invalid, illegal, or unenforceable, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed each section, subsection, phrase, or clause thereof irrespective of the fact that any one or more sections, subsections, phrases or clauses be declared incorrect, invalid, illegal, or unenforceable.

SECTION 10. City Council Approval
The City Council hereby approves Zoning Map Amendment No. ZA22-0001, Site Development Permit No. SD22-0003, Conditional Use Permit No. UP22-0001, Vesting Tentative Map No. MT22-0001, Density Bonus Permit No. DB23-0003, Tree Removal Permit No. TR23-0021, and Environmental Assessment No. EA22-0002 (subject to the Conditions of Approval attached hereto and incorporated herein as Exhibit “1”), based on the above findings.

PASSED AND ADOPTED this 7th day of November 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:
___________________________
Suzanne Guzzetta, City Clerk
APPROVED:

Carmen Montano, Mayor
APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney

EXHIBIT ‘1’

CONDITIONS OF APPROVAL

PULTE HOMES RESIDENTIAL DEVELOPMENT
ZONING MAP AMENDMENT NO. ZA22-0001
SITE DEVELOPMENT PERMIT NO. SD22-0003
CONDITIONAL USE PERMIT NO. UP22-0001
VESTING TENTATIVE MAP NO. MT22-0001
DENSITY BONUS PERMIT NO. DB23-0001
TREE REMOVAL PERMIT NO. TR23-0021
ENVIRONMENTAL ASSESSMENT NO. EA22-0002

GENERAL CONDITIONS

1. General Compliance: The Permittee and owner, including all successors in interest (collectively "Permittee") shall comply with each and every condition set forth in this Permit, known as “1355 California Circle Planned Development”, dated August 2, 2023 and, “Vesting Tentative Map 1355 California Circle”, dated October 5, 2023, on file with the Planning Department. ZONING MAP AMENDMENT ZA22-0001, SITE DEVELOPMENT PERMIT SD22-0003, CONDITIONAL USE PERMIT UP22-0001 VESTING TENTATIVE MAP MT22-0001, DENSITY BONUS PERMIT NO. DB23-0001, TREE REMOVAL PERMIT NO. TR23-0021 and ENVIRONMENTAL ASSESSMENT EA22-0002 (collectively "Permit") shall have no force or effect and no building permit shall be issued unless and until all things required by the below- enumerated precedent conditions have been performed or caused to be performed. The Permittee shall develop the site in accordance with the approved Attachments and as modified by these Conditions of Approval.

2. Effective Date: Unless there is a timely appeal filed in accordance with the Milpitas Zoning Code, the date of approval of this Permit is the date on which the City Council approved this Permit.

3. Acceptance of Permit: Should Permittee fail to file a timely appeal within twelve (12) calendar days of the date of approval of this Permit, inaction by Permittee shall be deemed to constitute each of the following:
a. Acceptance of this Permit by Permittee; and
b. Agreement by the Permittee to be bound by, comply with, and to do all things required of or by Permittee pursuant to all of the terms, obligations, and conditions of this Permit.

4. Permit Expiration: Pursuant to Section XI-10-64-06 of the Milpitas Municipal Code, this Permit shall become null and void if the activity permitted by this Permit is not commenced within two (2) years from the date of approval, or for a project submitted with a tentative map, within the time limits of the approved tentative map. Pursuant to Section XI-10-64.06(B) of the Milpitas Municipal Code, an activity permitted by this Permit shall be deemed to have commenced when the Project:
a. Completes a foundation associated with the Project; or b. Dedicates any land or easement as required from the zoning action; or c. Complies with all legal requirements necessary to commence the use, or obtains an occupancy permit, whichever is sooner.

5. Time Extension: Pursuant to Section XI-10-64.07 of the Milpitas Municipal Code, unless otherwise provided by State law, Permittee shall have the right to request a one-time extension of the Permit if

the request is made in writing to the Planning Department prior to the expiration date of the approval. (P)

6. Project Job Account: If Permittee's project job account is at any time delinquent or below the required deposit amount, City will not continue to review or process the application until Permittee's project job account is paid in full and the required deposit has been made. Additionally, prior to the issuance of any building permit or occupancy permit as applicable, Permittee shall pay in full the Project account balance and establish a remaining balance of at least twenty-five percent (25%) of the required initial deposit. (P/E)

7. Notice: Pursuant to California Government Code Section 66020, any protest filed in court relating to the imposition of fees, dedication, reservations, or other exactions to be imposed on the development project shall be filed within ninety (90) days after the date of the adoption of this Resolution. This provision serves as notice from the local agency to the Permittee that the ninety (90) day period in which the Permittee may file a protest has begun under California Government Code Section 66020(d)(1).

8. Cost and Approval: Permittee shall fully complete and satisfy each and every condition set forth in this Resolution and any other condition applicable to the Project to the sole satisfaction of the City.

Additionally, Permittee shall be solely responsible and liable for the cost to satisfy each and every condition. (ALL)

9. Conditions: Each and every condition set forth in this Exhibit shall apply to the Project and continue to apply to the Project so long as the Project is operating under the permits and approvals in this Resolution. (ALL)

10. Compliance with Laws: The construction, use, and all related activity authorized under this Permit shall comply with all applicable local, state and federal laws, rules, regulations, guidelines, requirements and policies. (CAO/P/E/B)

11. Indemnification: To the fullest extent permitted by law, Permittee shall indemnify, defend with counsel of the City's choosing, and hold harmless City, its City Council, its boards and commissions, officials, officers, employees and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to (i) City's approval of the project, including, but not limited to, the approval of the discretionary permits, the approval of any waivers, exemptions, alternatives, modifications, or amendments to the City’s General Plan or Municipal Code, maps under the Subdivision Map Act, and/or the City's related determinations or actions under the California Environmental Quality Act, and (ii) Permittee's construction, operation, use or related activity under this Permit. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Permittee, City and/or the parties initiating or bringing such proceeding. Permittee shall indemnify the City for all of City's costs, attorneys' fees and damages, which City incurs in enforcing the indemnification provisions set forth in this condition. Permittee shall pay to the City upon demand or, as applicable, to counsel of City's choosing, any amount owed pursuant to the indemnification requirements prescribed in this condition. The above indemnification is intended to be as broad as permitted by applicable law.

To the extent the above indemnification is limited by Government Code Section 66474.9, any limitations shall only apply to Vesting Tentative Map No. MT22-0002, and the balance of the Permit shall be unaffected by Government Code Section 66474.9.

12. Certificate of Insurance: Permittee shall provide certificate of insurance and name City as an additional insured in its insurance policies for the Project.

13. Revocation, Suspension, Modification: This Permit may be suspended, revoked or modified in accordance with Section XI-10-63.06 of the Milpitas Municipal Code.

14. Severability: If any term, provision, or condition of this Permit is held to be illegal or unenforceable by the Court, such term, provision or condition shall be severed and shall be inoperative, and the remainder of this Permit shall remain operative, binding and fully enforceable.

15. Response to Conditions of Approval: Permittee shall provide a written response to comments upon submittal for building permit application. The responses should clearly indicate how each condition of approval has been addressed in the plans and shall note the appropriate plan sheet. (P)

16. Compliance with Fire Department and California Fire Code: The project shall comply with the requirements of the Milpitas Fire Department and the California Fire Code, as adopted by the City.

Changes to the site plan and/or buildings requires review and re-approval by the Fire Department. (F)

17. Compliance with Building Department and California Building Code: The project shall comply with the requirements of the Milpitas Building Department and the California Building Code, as adopted by the City. Changes to the site plan and/or buildings requires review and re-approval by the Building Department. (B)

18. Development in Conformance with Approved Plans: Permittee shall develop the approved Project in conformance with the plans dated August 2, 2023 and approved by the City Council on November 7, 2023, in accordance with these Conditions of Approval. Any deviation from the approved site plan, elevations, materials, colors, landscape plan or other approved submittal shall require that, prior to the issuance of building permits, the Permittee shall submit modified plans and any other applicable materials as required by the City for review, and obtain the approval of the Planning Director or Designee. If the Planning Director or designee determines that the deviation is significant, the owner or designee shall be required to apply for review and obtain approval of the Planning Commission or City Council, as applicable, in accordance with the Milpitas Zoning Code. (P)

PLANNING CONDITIONS

19. Landscape: All approved landscaping shall be permanently maintained and replaced with substantially similar plant material as necessary to provide a permanent, attractive and effective appearance.

20. Parking: Parking shall be provided as depicted on the Site Plan approved by the City Council and shall consist of the following:
a. RESIDENT: A total of 318 vehicle spaces within unit parking garages in both the townhome buildings and the podium building and29 surface vehicles spaces on the podium site.
b. GUEST: A total of 46 vehicle spaces are to be provided on site.

21. Bicycle Racks: A total of 22 short-term bicycle parking spaces shall be installed on the site.

22. Trees: The project will remove 27 ordinance-sized trees and replace with approximately 269 trees, in conformance with the plans approved by City Council on November 7, 2023.

23. Public Art Requirement: Permittee shall comply with the City’s Public Art Requirements for Private Development, as set forth in Milpitas Municipal Code Section XI-10-14. Fee shall be no less than one- half of one percent of building development costs and shall be payable at time of building permit issuance.

24. Density Bonus: Permittee shall provide up to 206 residential units, 31 of which will be offered at low- income levels. The Project may have the following concessions and waivers:
a. Waiver #1: Allow an 18-foot-10-inch front setback for the podium apartment building. b. Waiver #2: Allow building height up to 78 feet.
c. Parking reduction: Studio & 1 bedroom – 1 per unit, 2 bedroom – 1.5 per unit. Project will provide a total of 85 parking spaces in the podium. d. Parking waiver #1: Provide 46 guest spaces across the site. e. Parking waiver #2: Use of compact stalls across the site. (P)

HOUSING CONDITIONS

25. Affordable Housing Requirement: Permittee shall comply with the City’s Affordable Housing Ordinance, as set forth in Milpitas Municipal Code Section XI-1-3.00. The City Council has granted the following deviation from the City’s AHO (H):
a. Permittee shall reserve 31 apartment units for low income households consisting of:
i. 7 studio units
ii. 16 one-bedroom units
iii. 8 two-bedroom units
b. Permittee shall reserve 44 apartment units for moderate income households consisting of:
i. 9 studio units
ii. 24 one-bedroom units
iii. 11 two-bedroom units

26. Affordable Housing 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. (H)

27. Retaining Affordability. Developer shall agree to, and the City shall insure continued affordability of, all lower- or very low-income density bonus units for fifty (50) years or a longer period of time, if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. (H)

ENGINEERING CONDITIONS

PRIOR TO CONSTRUCTION PLAN SUBMITTALS
The following conditions shall be met prior to any detailed construction plan check submittals (Building or Engineering, except demolition and rough grade plans), unless otherwise approved by the Director of Engineering/City Engineer. City reserves the right to reject any plan check submittal if any of the following conditions are not met. (E)
Commented [A1]: Should we revise this to say minimum per PC direction? Or wait until we receive direction from CC?
Commented [A2]: Same comment here.

28. Modifications: The Site Development Plan dated August 2, 2023 is subject to change during the plan check stage based upon City’s previous comments and conditions stated herein.

29. Solid Waste and Recycling Handling Plan: Permittee shall submit final Solid Waste and Recycling Handling Plan based upon City’s previous comments for City’s review and approval by the Engineering Department Solid Waste Program. The subject Plan shall show calculations of waste generation volumes and how materials will be transferred from the waste generation areas to the trash enclosure/external collection point; demonstrate how recycling, food waste, and yard trimmings shall have a separately maintained process from garbage handling; address other requirements such as waste generation and compactor sizing, chute shut-off and property management responsibility for bin management and litter control; outreach and education to tenants/occupants, and procure sufficient service frequency based upon waste generation calculation volumes.

30. Stormwater Control Plan: Permittee shall submit City approved final Stormwater Control Plan (SWCP) that complies with the latest Municipal Regional Stormwater NPDES Permit, including Low Impact Development (LID) Section C3.c.i.(2)(b) measures for harvesting and reuse, infiltration, or evapo-transpiration, for City’s review and approval by the Engineering Department.

31. Photometric Analysis: Permittee shall submit streetlight photometric analysis for City’s review and approval by the Engineering Department along California Circle that meet the Illuminating Engineering Society of North America (IESNA), RP8, for roadway and sidewalk lighting standards and City standard design guidelines.

32. Submittal Requirements: Permittee to ensure that all plan check submittals are in accordance with City’s submittal check list for each permit type, including but not limited to, payment of permit fees and/or fee deposit at the time of the submittal.

33. Project Job Account/Fee Deposit: Permittee shall open a new PJ account as a deposit to cover the costs for Engineering Department’s services for review and inspection of the project. The amount shall be determined based on the public improvement cost estimates as prepared by the Permittee’s engineer.

34. Fair Share Payment Structure: Permittee shall negotiate a fair share payment structure with the City regarding the cost associated with the installation of sectional liners on the existing City sanitary sewer main along the California Circle project frontage.

PRIOR TO FINAL MAP APPROVAL/RECORDATION
The following conditions shall be addressed during the final map plan check process and shall be met prior to any final approval/recordation (except demolition permit and rough grade permit), unless otherwise approved by the Director of Engineering/City Engineer. (E)

35. Dedication on the Final Map: Permittee shall dedicate necessary emergency vehicle access easements, public service utility easements, street easements, public access easement and other public easements deemed necessary for the project.

36. Abandonment/Quitclaim Easements: Permittee shall abandon/quit claim existing easements that are in conflict with or unnecessary for the project.

37. Easements on the Final Map: Permittee shall depict all existing easements to remain based upon current preliminary title report and depict new easements on the final map.

38. Concurrent Off-site Plan Reviews: Permittee shall submit separate off-site improvement plans for City’s review and approval by the Engineering Department.

39. Street Name Approval: Permittee shall obtain approval from the City Council for all new street names based upon recommendation from the City Council Ad Hoc Naming Subcommittee and City guidelines.

40. Utility Company Approval Permittee shall obtain approval letters from utility companies (PG&E, AT&T, Comcast) for abandonment of existing and dedication of new public service utilities easements.

41. Demolition of Existing Building: Permittee shall demolish existing buildings/facilities that are in conflict with the new property lines.

42. Covenant, Conditions & Restrictions (CC&Rs): Permittee shall provide CC&Rs for City’s review and approval for perpetual maintenance of private roadways, private utilities, stormwater management facilities in accordance with a separately recorded Stormwater Management Facilities Operation and Maintenance Agreement, etc.

43. Subdivision Improvement Agreement and Securities: Permittee shall execute a Subdivision Improvement Agreement and provide improvement securities in accordance with MMC Title XI, Section 17, and submit all other supplemental documents as stipulated in the Improvement Agreement (such as certificate of insurance.

44. Annexation to the Community Facilities District: Permittee shall submit an executed petition affirmatively consenting to annex the subject property to the Community Facilities District (CFD) 2005-1, and agree to pay the special taxes levied by the CFD 2005-1 for the purpose of maintaining the public services. The CFD annexation process shall be completed prior to final map approval. Permittee shall comply with all rules, regulations, policies and practices established by the State Law and/or by the City with respect to the CFD including, without limitation, requirements for notice and disclosure to future owners and/or residents. This condition of approval is nonseverable from the Permit and invalidation or limitation of this condition invalidates the Permit, condition 42 notwithstanding.

PRIOR TO OFF-SITE PLAN APPROVAL/ENCROACHMENT PERMIT ISSUANCE The following conditions shall be addressed as part of the off-site improvement plan review and shall be met prior to encroachment permit issuance, unless otherwise approved by the Director of Engineering/City Engineer. (E)

45. Public Improvement Design Standards: All public improvements shall be designed and constructed in accordance with all applicable public improvement design standards, including but not limited to:
a. Milpitas Design Guidelines:
(http://www.ci.milpitas.ca.gov/milpitas/departments/engineering/design-guidelines/); b. Standard details and specifications:
(http://www.ci.milpitas.ca.gov/milpitas/departments/engineering/standard-details-and- specifications/);
c. Americans with Disabilities Act (ADA) requirements, where applicable.

46. Sanitary Sewer Calculations: Permittee shall submit a completed “Sewer Needs Questionnaire” form and sanitary sewer calculations to justify lateral size design, allocation of discharge for each of the lateral, and impact to the existing main. Permittee shall be responsible to implement any necessary improvements if there is any identified deficiency to the existing main as a result of the project.

47. Storm Drain Design: Permittee shall submit storm drain hydrology and hydraulic calculations based upon a 10-year storm event to justify the size of the storm drain lateral flowing full, without surcharging the main line pipe, and to be reviewed and approved by the Engineering Department.

48. Domestic Water and Fire Service Calculations: Permittee shall submit potable water and fire service calculations to confirm adequacy of lateral size, pressure and flow, to be reviewed and approved by the Engineering Department and Fire Department. Hydraulic modeling analysis by the City and paid by the Permittee may be required as needed. Permittee shall be responsible to implement any necessary improvements if there is any identified deficiency to the existing main as a result of the project.

49. Specific Improvements: In addition to standard public improvements required under Milpitas Municipal Code (MMC) Title XI, Chapter 1, Section 7, Permittee shall install other specific improvements listed below including incidental improvements as required by the City as part of the encroachment permit.
a) Installation of public (City-maintained) water and sewer mains within on-site private streets and public easements. Please ensure all horizontal and vertical separations meet the CCR title 22 requirements.
b) Installation of separate utility service laterals (domestic water, fire service, sanitary sewer) for each residential building at minimum.
c) Installation of irrigation water and storm drain utility service laterals for the common- green condominium community.
d) Installation of domestic water, irrigation water, fire service, sanitary sewer, and storm drainage utility service laterals for the apartment building parcel. e) Installation of sectional liners on the existing City sanitary sewer main along the California Circle project frontage, development in accordance with the City of Milpitas Sewer Master Plan’s recommended capital improvements for California Circle. The fair share payment structure for the sectional liner installation work will be determined prior to the issuance of the building permit.
f) Installation of radio-transmitted water meters with a meter antenna, any repeaters or transmitters as needed with dedicated power supplies at no cost to the City at locations acceptable to the City to ensure accurate and timely reception of meter readings.

Permittee shall execute a recorded instrument providing dedicated space, access rights and dedicated power supplies to the City for operation/maintenance/repair/replacement of subject radio antenna.
g) Installation of sidewalk improvements along the project street frontage on California Circle. All sidewalk design shall comply with applicable City standards and details. h) Installation of new public streetlights along the project frontage. The locations and spacing of streetlights shall comply with applicable City standards and details. The developer shall procure an extra street light pole and deliver to the Public Works Corporation Yard for storage.
i) Installation of new stormwater treatment facilities in the vegetated area between the curb and public sidewalk along the project frontage for the treatment of runoff within the area of public improvements. The design of these stormwater treatment facilities shall

comply with the Santa Clara Valley Urban Runoff Pollution Prevention Program’s Provision C.3 design standards.
j) AC Pavement base repair, microsurfacing and pavement restriping the full width of California Circle frontage to the satisfaction of the City Engineer.

50. Abandonment of Existing City Utilities: Permittee shall cap, abandon or remove any unused existing public utilities based upon City’s Abandonment Notes and to the City’s satisfaction.

51. Relocation and Adjustment of Existing Public Utilities: Permittee shall relocate and/or adjust existing public utilities as needed that are in conflict with the proposed improvements.

52. Water Service Agreement: Permittee shall complete a water service agreement to obtain water service.

53. Encroachment Permit: Prior to any work in the public right-of-way and/or public easement, obtain an encroachment permit with insurance requirements for all public improvements including a traffic control plan per the latest California Manual on Uniform Traffic Control Devices (MUTCD) standards to be reviewed and approved by the Engineering Department.

54. Pothole Encroachment Permit: Due to multiple new utility service connections along the project frontage, Permittee shall pothole and verify all potential utility crossing conflict as part of the public improvement plan during the design stage.

PRIOR TO BUILDING PERMIT ISSUANCE
The following conditions shall be addressed during the building plan check process and shall be met prior to any building permit issuance (except demolition permit and rough grade permit), unless otherwise approved by the Director of Engineering/City Engineer). (E)

55. Final Map Recordation: Permittee shall record the final map.

56. Easements on the Building Permit Plans: Permittee shall depict all existing easements to remain based upon current preliminary title report and depict new easements on applicable building permit plans.

57. Stormwater Facility Operation & Maintenance Plan: Permittee shall incorporate design details into applicable construction plans in accordance with City approved Storm Water Control Plan (SWCP).

Permittee shall also submit Stormwater Facility Operation & Maintenance Plan that describes operation and maintenance procedures needed to ensure that treatment Best Management Practices (BMPs) and other storm water control measures continue to work as intended and do not create a nuisance (including vector control).

58. Stormwater Management Facilities O&M Agreement: Permittee shall execute and record a Stormwater Management Facilities Operation and Maintenance (O&M) Agreement associated with the SWCP O&M Plan, including perpetual maintenance of treatment areas/units, as reviewed and accepted by the Engineering Department. The subject O&M Agreement shall be referenced in the CC&Rs, if applicable.

59. NPDES Compliance: The project shall comply with the requirements of the National Pollution Elimination Discharge System (NPDES) permit as administered by the California State Water Resources Control Board and the San Francisco Bay Regional Water Quality Control Board. The project is required to meet the performance standards within the permit. Specifically the project shall

incorporate, at a minimum, stormwater treatment measures that meet the numeric sizing requirements for pollutant removal.

60. Water Supply and Force Majeure: The City reserves the right to suspend the issuance of building permits in case of an emergency declaration of water supply in the case of a major catastrophic event that restricts City’s assurance to provide water supply.

61. Water Efficient Landscapes: Permittee shall comply with Milpitas Municipal Code Title VIII, Chapter 5 (Water Efficient Landscapes) for landscape design, including but not limited to, providing separate water meters for domestic water service and irrigation service and providing applicable landscape documentation package.

62. Solid Waste and Recycling Facility Design: Permittee shall comply with all applicable City design guidelines/details associated with haul route, turning radius, vertical and horizontal clearance, trash enclosure, staging area, storage area, etc. As Milpitas residents of residential units with individual cart services can request 96-gallon carts, the staging and storage areas of all units of the common- green condominium community shall be designed to accommodate 96-gallon carts.

63. Recycling Report Prior to Demolition Permit Issuance: Permittee shall submit Part I of a Recycling Report on business letterhead to the Building Department, for forwarding to the Engineering Department for review and approval. The report shall describe the following resource recovery activities:
a. What materials will be salvaged.
b. How materials will be processed during demolition.
c. Intended locations or businesses for reuse or recycling. d. Quantity estimates in tons (both recyclable and for landfill disposal). Estimates for recycling and disposal tonnage amounts by material type shall be included as separate items in all reports to the Building Division before demolition begins.

Permittee shall make every effort to salvage materials for reuse and recycling, and shall comply with the City’s demolition and construction debris recycling ordinance.

64. Recycling Report Prior to Building Permit Issuance: Permittee shall submit Part II of the Recycling Report to the Building Department, for forwarding to the Engineering Department. Part II of the Recycling Report shall be supported by copies of weight tags and/or receipts of “end dumps.” Actual reuse, recycling and disposal tonnage amounts (and estimates for “end dumps”) shall be submitted to the Building Department for approval by the Engineering Department prior to inspection by the Building Department.

65. Flood Plain Management: This project is in the Flood Zone “AH” with base flood elevation 15ft above mean sea level, therefore, Permittee shall comply with all applicable flood protection criterion required by the Federal Emergency Management Agency (FEMA) and MMC Title XI, Chapter 15.

Permittee shall obtain a CLOMR-F from FEMA for the development. Lack of documentation will not preclude occupancy release.

66. Mailboxes: The Permittee shall obtain information from the US Postal Services regarding placement of required mailboxes. Structures to protect mailboxes may require Building, Engineering and Planning Department review.

67. Development Fees: Permittee shall pay the following development fees. The information listed in items “a” through “i” are based upon current fee rates; however, those fee rates are subject to change.

The exact fee amount shall be determined at the time of building permit fee payment.

a. Parkland Impact Fee

1. The project is required to dedicate 2.56 acres of parkland, equivalent to $5,921,071.60 fees-in-lieu.

2. The applicant will receive credit for 0.87 acres of private recreation space on site.

Upon demonstration of provision of this private recreation space to the satisfaction of the Direction of Planning or his/her designee, $3,912,520.00 in parkland fees will be due, per table below.

Pulte Townhomes and Apartments Proposed206
Pulte Townhomes and Apartments Population
Estimate (2.49 persons/unit per Census)
513 persons
Citywide Parkland Requirement 5 acres/1,000 people or equivalent fees-in- lieu
Total Parkland Acreage or In-Lieu Fee
Required

2.56 acres / $5,921,071.60
Private Recreation/Open Space provided in the
Project

0.87 acres
Public Recreation / Public Park Land provided0.0 acres
Balance of Parkland Acreage or In-Lieu Fee
Due
$3,912,520.00
b. Storm water connection fee at $16,771/acre for residential and $21,562/acre for commercial.
c. Water connection fee at $1,164/unit for residential, residential and $5.97/gpd for commercial, based upon increased water usage.
d. Sewer connection fee at $1,406/unit for residential and $8.52/gpd for commercial, based upon increased average wastewater flow.
e. Wastewater Treatment Plant fee per MMC VIII, Chapter 2, Section 7.04. f. Calaveras Boulevard Widening Traffic Impact fee per Resolution No. 7894. g. 3.8% of applicable fees in accordance with City Resolution No. 8969 as Permitting Automation Fee.
h. FEMA Flood Zone Designation Letter fee in the amount of $100.00 each. i. Public Art Fee or Public Art on site, as set forth in Milpitas Municipal Code Section XI- 10-14.

68. Foundation Design: Building foundations adjacent to public utilities shall be designed to be self- supporting such that the building weight is not required to be supported during shoring and excavation of adjacent utilities. If any project building is located next to a City easement, the City is not responsible for any foundation damage that would occur due to excavating in the event of servicing or repairs in that easement.

69. Fill and Retaining Wall Design in Sanitary Sewer Easement: The existing 10ft-wide sanitary sewer easement (SSE) located along the project property’s southern side property line shall be kept clear of all unauthorized structures, including any retaining walls. For the design of any fill and retaining walls in the area within and immediately adjacent to this SSE, Permittee shall select one of the following design options that are either called out on the approved civil plan sheets or discussed with City staff in a meeting that took place on September 19, 2023:
a. Permittee is to construct a retaining wall immediately north of the SSE to structurally support fill placed in the property’s southern area north of the SSE. No structural fill is to be placed within the SSE under this design option.
b. Neighboring property to the south at 1301 California Circle (APN 022-38-002) to dedicate a slope easement along the north edge of the property line for the benefit of the project property. Permittee is to place sloped fill in said easement to structurally support fill placed in the project property’s southern area, including within the SSE. c. Permittee is to propose a realignment of the existing SSE away from the southern side property line that would allow them to construct a retaining wall along said property line to structurally support fill placed in the project property’s southern area, including within the SSE. Any proposed SSE realignment is subject to the approval of the City and must provide adequate space for the City to properly access, maintain, repair, and replace the existing 18” City sanitary sewer main located within the SSE.

DURING CONSTRUCTION
The following conditions shall be complied with at all times during the construction phase of the project, unless otherwise approved by the Director of Engineering/City Engineer. (E)

70. Dewatering: If dewatering is needed during construction, Permittee shall obtain a Short-Term Industrial Wastewater Permit from the San Jose/Santa Clara Water Pollution Control Plant for discharging the groundwater to a sanitary sewer system.

71. Prohibition of Potable Water Usage: Permittee shall use recycled water for construction purposes, including dust control and compaction. Permittee shall comply with MMC VIII-6-5.00 and 6-6.00 where potable water usage is prohibited, unless otherwise approved by the City Council.

72. Construction Staging and Employee Parking: Permittee shall place all construction related materials, equipment, and arrange construction workers parking on-site and not located in the public right-of- ways or public easements.

73. Water Shut-down Plan: Permittee shall provide a water shut-down plan at least seven days in advance of the shut-down in coordination with the Engineering Inspector, and notify affected property owners/tenants when cut-in tee(s) is/are required.

PRIOR TO FIRST OCCUPANCY
The following conditions shall be met prior to first building occupancy on either lot, unless otherwise approved the Director of Engineering/City Engineer.

74. Completion of Public Improvements: Permittee shall complete all public improvements, including but not limited to frontage improvements along California Circle, onsite City water and sewer mains and

their appurtenances, and sectional liners for the sanitary sewer mains along the project frontage, as shown on City approved plans.

75. LOMR-F: Permittee shall submit the FEMA approved LOMR-F for each unit/building associated with the requested occupancy, if project is located in the SFHA. Lack of documentation will not preclude occupancy release.

76. Elevation and/or Flood Proofing Certificate: Permittee's civil engineer shall submit Elevation and/or Flood Proofing Certificate for the lowest finished floor elevation of each building for City record.

77. Landscape Certificate of Completion: Permittee shall submit a Certificate of Substantial Completion that complies with the Milpitas Municipal Code Water Efficient Landscapes ordinance.

78. Record Drawings: Permittee shall submit record drawings in AutoCAD, Tiff, and PDF formats for City records. Record drawings shall include all public improvements. Additionally, if the project uses recycled water, the permittee shall also submit record drawings of on-site irrigation facilities.

79. Private Job (PJ) Balance: Permittee shall pay for any remaining balance from the Private Job deposit.

LEGEND
P = Planning Department
B = Building Department
E = Engineering Department
F = Fire Department
H = Housing Division
CAO = City Attorney’s Office
ALL = All Reviewing Departments

NOTICE OF RIGHT TO PROTEST
The Conditions of Project Approval set forth herein include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d)(1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), began on date of adoption of this resolution. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions.

AGREEMENT
Permittee/Property Owner
The undersigned agrees to each and every condition of approval and acknowledges the NOTICE OF RIGHT TO PROTEST and hereby agrees to use the Project property on the terms and conditions set forth in this resolution.

Dated: _________________ ______________________________________

Signature of Permittee

Exhibit 3

REGULAR
NUMBER: XX.XXX
TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MILPITAS AMENDING THE ZONING CODE CONTAINED IN TITLE XI, CHAPTER 10, SECTION 3.03 OF THE MILPITAS MUNICIPAL CODE TO ALLOW A ZONING

DESIGNATION CHANGE OF CERTAIN PARCEL WITHIN THE ZONING MAP HISTORY:This Ordinance was introduced (first reading) by the City Council at its meeting of ____________________, upon motion by_________________________ and was adopted (second reading) by the City Council at its meeting of _______________, upon motion by ____________________________. The Ordinance was duly passed and ordered published in accordance with law by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:
________________________________ __________________________ Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:
________________________________
Michael Mutalipassi, City Attorney

Ordinance No. XX.XXX
RECITALS AND FINDINGS:

WHEREAS, on April 12, 2022, Pulte Homes Company LLC (Applicant) submitted an application to the City of Milpitas requesting a General Plan Text Amendment, Zoning Map Amendment, Site Development Permit, Conditional Use Permit, Vesting Tentative Map, Density Bonus Permit, Tree Removal Permit, and Environmental Assessment to allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units. The project will also include 393 vehicle parking spaces, a 0.32-acre internal park, and associated site improvements on a 6.7-acre site at 1355 California Circle (Project). The project thus consists of and requires:
a. General Plan Text Amendment No. GP22-0001: To remove language associated with the California Circle Specific Plan within the General Plan 2040 by amending the Neighborhood Commercial Mixed-Use (NCMU) designation (pg. LU-6), removing the “California Circle Specific Plan Overlay” statement (pg. LU-8) and amending Action LU-2b (pgs. LU-17 and LU-18); and b. Zoning Map Amendment No. ZA22-0001: To amend the zoning map to change the property zoning designation from Industrial Park (MP) to Mixed-Use District (MXD); and for the property identified as 1355 California Circle (APN 022-38-007); and c. Site Development Permit No. SD22-0003: To allow the development of a multi-family residential project consisting of 13 residential buildings, up to 51 feet in height, and one residential apartment building, up to 78 feet in height, for a total of 206 residential units on a 6.7-acre site; and d. Conditional Use Permit No. UP22-0001: To allow residential units as condominiums and associated subdivision, and tandem parking configuration; and e. Vesting Tentative Map No. MT22-0011: To establish 14 lots, 131 residential condominium spaces and related common areas; and
f. Density Bonus Permit No. DB22-0003: To ensure compliance with State Density Bonus law and regulations and grant modification of the distribution requirements so affordable units can be constructed in the apartment building only; and
g. Tree Removal Permit No. TR23-0021: To remove 27 ordinance-sized trees and replace them with 269 new trees.

WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code, § 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, title 14, § 15000 et seq.) (Collectively, “CEQA”), the City of Milpitas is the lead agency for the proposed Project described above; and
WHEREAS, General Plan (GP) Amendment No. GP22-0001 proposes an amendment within the City of Milpitas General Plan Text to allow for changes associated with policy direction for the Neighborhood Commercial Mixed-Use (NCMU) general plan land use designation the reference of a future California Circle Specific Plan. Such proposed Amendment has been initiated by resolution for approval by the City Council, separate from this Ordinance; and
WHEREAS, Zoning Map Amendment No. ZA22-0001 proposes an amendment within the City of Milpitas Zoning map to change of zoning designation from Industrial Park (MP) to Mixed Use District (MXD) for APN 022-38-007, which has been initiated by this Ordinance; and WHEREAS, on October 11, 2023, the Planning Commission held a duly-noticed public hearing on the subject application and associated project, and considered evidence presented by City staff, the

Ordinance No. XX.XXX
applicant, and other interested parties and recommended the City Council approve the proposed amendments; and
WHEREAS, per Milpitas Municipal Code § XI-10-57.02(G)(3), the City Council finds the Zoning Map Amendment set forth herein to be consistent with the General Plan because the proposed zoning (MXD) is an implementing zoning district of the existing Neighborhood Commercial Mixed Use (NCMU) general plan designation; and
WHEREAS, per Milpitas Municipal Code § XI-10-57.02(G)(3), the City Council likewise finds that the Zoning Code Amendment set forth herein will not adversely affect the public health, safety and welfare because the zoning map amendment will implement a land use designation that is consistent with the permitted general plan land use designation. An environmental consultant has reviewed the project and that traffic, environmental impacts, access to essential services, and community well-being will not be impacted in a manner that would significantly affect public health, safety and welfare. If the project is developed, it has been conditioned to comply with federal, state, and local laws and regulations related to public health, safety, and welfare. This includes zoning ordinances, building codes, environmental regulations, and safety standards; and
WHEREAS, on November 7, 2022 the City Council held a duly-noticed public hearing on the proposed action, and considered evidence presented by City staff and other interested parties; and WHEREAS, the City Council finds that with approval (by separate resolution) of the General Plan Text Amendment No. GP22-0001, and the adoption (by this ordinance) of Zoning Map Amendment No.

ZA22-0001, the General Plan Map and Zoning Map will be internally consistent; and WHEREAS, prior to taking action on this Ordinance, the City Council has taken separate action by resolution to certify the 1355 California Circle Project EIR (State Clearinghouse No. 2022110251) associated with the Project.

NOW, THEREFORE, the City Council of the City of Milpitas does ordain as follows:

SECTION 1. RECORD AND BASIS FOR ACTION
The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

SECTION 2. AMENDMENT OF MILPITAS MUNICIPAL CODE TITLE XI, CHAPTER 10, SECTION 3.03
Title XI, Chapter 10, Section 3.03 (“Zoning Map”), Table XI-10-6.04-1 is hereby amended, as attached hereto in Exhibit 1.

SECTION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT
The adoption of this Ordinance is under the authority of the 1355 California Circle Project EIR (EIR)(State Clearinghouse No. 2022110251); that was prepared to conform to the requirements of the California Environmental Quality Act (CEQA), the CEQA Guidelines (Title 14, California Code of Regulations §15000 et seq.) and the regulations and polices of the City of Milpitas. The purpose of this EIR is, among other things, to provide objective information regarding the environmental consequences of the

Ordinance No. XX.XXX
proposed Project to the decision makers and the public and to identify measures to substantially lessen or avoid significant adverse environmental effects of the project.

SECTION 4. SEVERABILITY
The provisions of this Ordinance are severable, and the invalidity of any phrase, clause, provision or part shall not affect the validity of the remainder.

SECTION 5. EFFECTIVE DATE AND POSTING
In accordance with Section 36937 of the Government Code of the State of California, this Ordinance shall take effect thirty (30) days from and after the date of its passage. The City Clerk of the City of Milpitas shall cause this Ordinance or a summary thereof to be published in accordance with Section 36933 of the Government Code of the State of California.

Ordinance No. XX.XXX
Exhibit 1: Zoning Map

RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS CERTIFYING THE FINAL ENVIROMENTAL IMPACT REPORT (FEIR) (SCH#: 2022110251) FOR THE 1355

CALIFORNIA CIRCLE PROJECT, ENVIRONMENTAL FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT; AND ADOPTING A STATEMENT OF

OVERRIDING CONSIDERATIONS AND A MITIGATION MONITORING PROGRAM WHEREAS, the 1355 California Circle project (“Project”) proposes to redevelop an approximately 6.7-acre property within the City of Milpitas (“City”) as a multi-family residential development; and
WHEREAS, the Project site is located within the north-western portion of the City, eat of Interstate 880, south of Dixon Road, west of Milmont Drive, and north of Cadillac Court (Assessor Parcel Number:
022-38-007); and
WHEREAS, the Project requires approval of a General Plan Text Amendment (GP22-0001), Zoning Text Amendment (ZA22-0001), Site Development Permit (SD22-0003), Conditional Use Permit (UP22-0001), Vesting Tentative Map (MT22-0001), Density Bonus (DB23-0003), and Tree Removal Permit (P-TR23-0021); and
WHEREAS, the Project proposes a multi-family residential project consisting of 13 residential buildings, up to 51-feet in height, and one residential apartment building, up to 78-feet in height, for a total of 206 residential units, with 393 vehicle parking spaces, a 0.32-acre internal park, and associated site improvements; and
WHEREAS, pursuant to Public Resources Code section 21067 of the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (“CEQA”) and section 15367 of the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the City is the lead agency for the proposed Project; and WHEREAS, pursuant to CEQA and the State CEQA Guidelines, the City determined that an Environmental Impact Report (“EIR”) should be prepared in order to analyze all potential adverse environmental impacts of the proposed Project; and
WHEREAS, the City issued a Notice of Preparation (“NOP”) for the Draft EIR on November 14, 2022, which was sent to each responsible and trustee agency and the Office of Planning and Research (OPR); and
WHEREAS, in the NOP, the City solicited comments from individuals, organizations and agencies regarding the environmental analysis, mitigation measures and alternatives to be included in the Draft EIR; and
WHEREAS, the City held a public scoping meeting on November 30, 2022 to further solicit comments on the scope of the Draft EIR; and
WHEREAS, on July 7, 2023, the City initiated a 45-day public review and comment period of the Draft EIR for the proposed Project and released the Draft EIR for public review and comment; and

WHEREAS, pursuant to State CEQA Guidelines section 15086, the City consulted with and requested comments from all responsible and trustee agencies, other regulatory agencies, and others during the 45-day public review and comment period; and
WHEREAS, the City received three comment letters from agencies and individuals during the 45- day public review and comment period; and
WHEREAS, the City has prepared a Final EIR, consisting of the comments received during the 45-day public review and comment period on the Draft EIR, written responses to those comments, and revisions to the Draft EIR. For the purposes of this Resolution, the “EIR” shall refer to the Draft EIR, as revised by the Final EIR, together with the other sections of the Final EIR; and WHEREAS, the City held a virtual public meeting on August 3, 2023 to allow interested parties an opportunity to comment on the adequacy of the Draft EIR.

WHEREAS, the EIR analyzed two alternatives to the Project, examining the environmental impacts of each alternative as well as the ability of the alternatives to meet Project objectives; and WHEREAS, on October 11, 2023, the Planning Commission held a public hearing on the Project, at which all persons wishing to testify were heard; and WHEREAS, on November 7, 2023, the City of Milpitas City Council held a duly noticed public hearing on the EIR, the Findings of Fact and a Statement of Overriding Consideration, considered all written and oral reports of staff and public testimony on the matter, and such other matters as are reflected in the record of this matter; and
WHEREAS, the environmental impacts identified in the EIR that the City finds are of no impact or constitute a less than significant impact and do not require mitigation are described in the Findings of Fact attached hereto as Exhibit “1”; and
WHEREAS, the environmental impacts identified in the EIR as potentially significant but which the City finds cannot be mitigated to a level of less than significant, despite the imposition of feasible mitigation measures identified in the EIR and set forth herein are described in the Findings of Fact attached hereto as Exhibit “1”; and
WHEREAS, alternatives to the proposed Project that might eliminate or reduce significant environmental impacts are described in the Findings of Fact attached hereto as Exhibit “1”; and WHEREAS, the City Council has determined that the benefits of the Project outweigh its potential significant environmental impact, and the basis for that determination is set forth in the Statement of Overriding Considerations attached hereto as Exhibit “1”; and WHEREAS, prior to taking action, the City Council has heard, been presented with, reviewed and considered all of the information and data in the administrative record, including the EIR, and all oral and written evidence presented to it during all meetings and hearings; and WHEREAS, the EIR reflects the independent judgment of the City Council and is deemed adequate for purposes of making decisions on the merits of the Project; and

WHEREAS, the City has not received any comments or additional information that constituted substantial new information requiring recirculation under Public Resources Code section 21092.1 and State CEQA Guidelines section 15088.5; and
WHEREAS, all the requirements of CEQA and the State CEQA Guidelines have been satisfied by the City in the EIR, which is sufficiently detailed so that all of the potentially significant environmental effects of the proposed Project have been adequately evaluated; and NOW THEREFORE, the City Council of the City of Milpitas hereby finds, determines and resolves as follows:

SECTION 1. Recitals
The City Council has duly considered the full record before it, which may include but is not limited to such things as the City staff report, testimony by staff and the public, and other materials and evidence submitted or provided to the City Council. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

SECTION 2. Resolution Regarding Custodian of Record
The documents and materials that constitute the record of proceedings on which this Resolution has been based are located at the Planning Department – 455 East Calaveras Blvd., Milpitas, CA 95035.

SECTION 3. City Council Action - Certifying the EIR
The City Council finds that it has been presented with the EIR, which it has reviewed and considered, and further finds that the EIR is an accurate and objective statement that has been completed in full compliance with CEQA, the State CEQA Guidelines and the City's Local CEQA Guidelines and that the EIR reflects the independent judgment and analysis of the City Council.

The City Council declares that no evidence of new significant impacts as defined by the State CEQA Guidelines Section 15088.5 have been received by the City Council after circulation of the Draft EIR which would require recirculation.

Therefore, the City Council hereby certifies the EIR based on the entirety of the record of proceedings.

SECTION 4. City Council Action - Adopting the Findings of Fact and a Statement of Overriding Consideration
The City Council finds that it has been presented with the Findings of Fact and a Statement of Overriding Consideration attached as Exhibit “1” hereto, which it has reviewed and considered, and hereby adopts based on the entirety of the record of proceedings.

SECTION 5. City Council Action – Adoption of the Mitigation Monitoring Program Pursuant to Public Resources Code section 21081.6, the City Council hereby adopts the Mitigation Monitoring and Reporting Program (MMRP) attached to this Resolution as Exhibit “2”. Implementation of the mitigation measures contained in the MMRP is hereby made a condition of approval of the proposed Project. In the event of any inconsistencies between the mitigation measures set for herein and the MMRP, the MMRP shall control.

SECTION 6. Notice of Determination
A Notice of Determination shall be filed with the County of Santa Clara and the State Clearinghouse within 5 (five) working days of final Project approval.

PASSED AND ADOPTED this 7th day of November 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:
___________________________
Suzanne Guzzetta, City Clerk
APPROVED:

Carmen Montano, Mayor
APPROVED AS TO FORM:

Michael Mutalipassi, City Attorney

Exhibit ‘1’
Certification of the 1355 California Circle
Final Program Environmental Impact Report
Adoption of
California Environmental Quality Act Findings,
Mitigation Measures, Mitigation Monitoring
Program, and Statement of Overriding
Considerations
September 2023

Exhibit ‘1’
Impact Sciences, Inc.i1355 California Circle Final EIR
1451.001 September 2023

TABLE OF CONTENTS
Section Page
A. Introduction.................................................................................................................................................... 1 B. Project Summary............................................................................................................................................ 1 B.1 Project Objectives ............................................................................................................................ 1 C. Environmental Review and Public Participation Process........................................................................ 2 C.1 Incorporation of Final EIR by Reference...................................................................................... 3 D. Findings Regarding the Environmental Review Process and the Content of the Final EIR............... 3 D.1 Finding Regarding Location and Custodian of the Record ...................................................... 5 D.2 Absence of Significant New Information..................................................................................... 6 E. Environmental Impacts................................................................................................................................. 7 E.1 Differences of Opinion Regarding the Impacts of the Project .................................................. 8 E.2 Findings Regarding Impacts Identified in the EIR to be Less Than Significant or No Impact and Requiring no Mitigation .....................................................................................9 E.3 Findings Regarding Impacts Analyzed in the EIR and Determined to be Significant but Mitigated to Less Than Significant...................................................................27 E.4 Findings Regarding Impacts Analyzed in the EIR and Determined to be Significant and Unavoidable .......................................................................................................38 E.5 Other CEQA Required Analysis in the EIR............................................................................... 39 F. Alternatives to The Project ......................................................................................................................... 40 F.1 Project Objectives and Legal Requirements .............................................................................. 45 F.2 Findings Regarding Alternatives Considered in the EIR ........................................................ 46 G Statement of Overriding Considerations ................................................................................................. 48 G.1 Benefits of the Compton Station TOD Specific Plan ................................................................ 48 H. Adoption of a Mitigation Monitoring Program for the CEQA Mitigation Measures ....................... 49

1355 California Circle Final EIR Findings
Impact Sciences, Inc.11355 California Circle Final EIR
1451.001 September 2023
A. INTRODUCTION
The Draft Environmental Impact Report (DEIR) (State Clearinghouse No. 2022110251) has been prepared by the City of Milpitas (City) to evaluate the environmental effects of the residential development at 1355 California Circle (Project). The Project is described in Section B, below.

The City is the lead agency as defined in Section 15051(b) of the guidelines for implementing the California Environmental Quality Act (CEQA).

B. PROJECT SUMMARY
The Project is comprised of five (5) seven-plex townhomes, eight (8) twelve-plex townhomes, and an apartment building. The Project would provide a total of 206 multi-family housing units:
•Seven-Plex Townhomes: 35 dwelling units.
•Twelve-Plex Townhomes: 96 dwelling units.
•Apartment Building: 75 dwelling units
B.1 Proposed Townhomes
The proposed seven-plex and twelve-plex townhomes would be located next to each other and would encompass the majority of the Project Site.

Seven-Plex Townhomes
The Project would construct five three-storied townhome buildings containing seven units per building for a total of 35 dwelling units. All 35 dwelling units would be offered as “market rate” for sale units, ranging in size between 1,534 and 1,850 square feet. The seven-plex townhomes would encompass building numbers 1 through 5. Buildings 1 and 2 would have frontage onto California Circle. The seven-plex townhomes would have a total gross floor area of 16,954 square feet. These townhomes would utilize four different floor plans that consist of three and four-bedroom units, each varying in size and garage type.

Twelve-Plex Townhomes
The Project would also construct eight four-storied townhome buildings containing twelve units per building for a total of 96 dwelling units. All 96 dwelling units would be offered as “market rate” for sale units, ranging in size from 1,518 to 2,175 square feet. The twelve-plex townhomes would encompass building numbers 6 through 13. The townhomes would have a total gross floor area of 28,677 square feet.

Additionally, the twelve-plex townhomes would utilize seven different plans that consist of predominantly

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three-bedroom units with either two or three bathrooms. A portion of these units have an option to create a fourth bedroom loft.

The twelve-plex townhomes would range in size between 1,518 and 2,175 square feet. Approximately 14 units of the twelve-plex townhomes are adaptable multi-story dwelling units on an accessible route that complies with the California Building Code (CBC).

B.2 Proposed Apartment Complex
The Project would develop a six-story apartment complex and associated parking facilities at the northeastern corner of the Project Site; refer to Figure 2.0-5, Apartment Site Plan of the DEIR. The proposed apartment building would be located within the northeastern corner of the Project Site. Plans for the apartment building would range between studios to two-bedroom units. The proposed apartment complex would provide 75 units that would be offered at “below market rate” (BMR) rental prices. It is anticipated that, of the 75 BMR units, a minimum of 20 units would be offered at the City’s established “low-income rental rate”, while the remaining 55 units would be offered at a “moderate rental rate” (MRR) rental prices.

The proposed apartment complex would have a gross floor area of approximately 66,844 square feet, and a floor area ratio of 1.63. The ground floor, level R0, would be reserved for 60 covered parking spaces, an apartment leasing office, and maintenance rooms. Starting at the second floor of the building, levels R1 through R5 would consist of several studios, one bedroom, and two-bedroom units that range in size between 411 to 840 square feet.

B.3 Project Objectives
In accordance with State CEQA Guidelines Section 15124, the specific project objectives identified below support the underlying purpose of the Project, assist the City as Lead Agency in developing a reasonable range of alternatives to evaluate in this EIR, and will ultimately aid the decision maker in preparing findings and overriding considerations, if necessary.

The objectives of the Project are as follows:
•Increase affordable housing opportunities, including housing designated for all Milpitas Unified School District (MUSD) staff, and help meet the City’s Regional Housing Needs Allocation (RHNA); •Redevelop underutilized and vacated land; and
•Implement sustainable building practices to showcase energy efficiency and low water use.

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C. ENVIRONMENTAL REVIEW AND PUBLIC PARTICIPATION PROCESS At the outset of the environmental review process, the City prepared a Notice of Preparation (NOP) for the Project (State Clearinghouse No. 2022110251). The NOP was published and distributed to the State Clearinghouse, trustee agencies, responsible agencies, and other interested parties for a 30-day public review period from November 14, 2023, to December 14, 2022. A public scoping meeting was held on November 30, 2022. The Draft EIR was circulated for a 45-day public review period July 7, 2023, to August 21, 2023.

The Final EIR was distributed on September 29, 2023, more than 10 days prior to the October 11, 2023 Planning Commission hearing.

C.1 Incorporation of Final EIR by Reference
The EIR evaluated a Proposed Action, as well as alternatives to the Proposed Action. For purposes of these findings, the Project is defined to mean the project studied in the EIR.

The Final EIR consists of: (1) the Draft EIR, (2) all appendices to the Draft EIR (Appendices 1.0-1 through 3.14); (3) Chapter 1, “Introduction”; (4) Chapter 2, “Corrections and Additions”: (5) Chapter 3, “Mitigation Monitoring Program.” The Final EIR Chapter 2 specifically includes the City’s written responses to comments; a list of persons, organizations, and public agencies commenting on the DEIR; The City’s written responses to specific comments on significant environmental points raised in the review and consultation process; and copies of comments, as required by State CEQA Guidelines Section 15132. The Final EIR consisting of the aforementioned components is hereby incorporated by reference into these findings.

D. FINDINGS REGARDING THE ENVIRONMENTAL REVIEW PROCESS

AND THE CONTENT OF THE FINAL EIR
The City Council certifies that it has been presented with the Final EIR and that it has independently reviewed and considered the information contained in the Final EIR prior to making the following certifications and these findings.

Pursuant to State CEQA Guidelines Section 15090 (Title 14 of the California Code of Regulations, Section 15090) the Council certifies that the Final EIR has been completed in compliance with CEQA and the State CEQA Guidelines. The Council certifies the Final EIR for the actions described in these findings and in the Final EIR, for the Project as described above. The Council further certifies that the Final EIR reflects its independent judgment and analysis.

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Pursuant to Public Resources Code Section 21081 and State CEQA Guidelines Section §15091, no public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless the public agency makes one or more of the following findings with respect to each significant impact:

1. Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental impacts as identified in the Final EIR.

2. Such changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency.

3. Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report.

The City has made one or more of these specific written findings regarding each significant impact associated with the Project. Those findings are presented below, along with a presentation of facts in support of the findings. The City certifies these findings are based on full appraisal of all viewpoints, including all comments received up to the date of adoption of these findings, concerning the environmental issues identified and discussed.

The DEIR has been prepared as a “EIR” as defined by Section 15362 of the State CEQA Guidelines. This type of EIR examines the environmental impacts of a specific development project and should focus primarily on the changes in the environment that would result from development of the Project. The EIR examines all stages of the Project, including planning, construction, and operation. The EIR included an appropriate analysis of impacts in fifteen (15) environmental topics, analyzing the Project and alternatives, including a No Project Alternative. The EIR disclosed the environmental impacts expected to result from the implementation and development of the Project. Feasible mitigation measures were identified to avoid or minimize significant environmental effects.

The mitigation measures adopted as part of the Project are feasible and the DEIR mitigates the environmental impacts to the maximum extent feasible as discussed in the findings made below. The Findings in Section E, below, indicate where mitigation measures are not capable of reducing impacts to levels of less than significant.

It is the finding of the City Council that the proposed Final EIR fulfills environmental review requirements for the Project and that the document constitutes a complete, accurate, adequate, and good faith effort at full disclosure under CEQA, and reflects the independent judgment of the City Council.

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In response to comments received, the Final EIR includes corrections and additions that correct minor errors and amplify and/or clarify information in the Draft EIR. All such changes made to the Draft EIR are shown in the Final EIR (Chapter 2.0, Corrections and Additions) in strikethrough and underline text.

It is the finding of the City Council that such clarifying changes and the corrections and additions as described in the Final EIR, have not presented any new, significant information requiring recirculation or additional environmental review under CEQA Guidelines Section 15088.5.

A Mitigation Monitoring Plan (MMP) for the Project has been adopted pursuant to the requirements of Public Resources Code Section 21081.6 to ensure implementation of the adopted mitigation measures to reduce significant effects on the environment and is included in the Final EIR document dated September 2023. The City is the custodian of the documents and other materials that constitute the record of the proceedings upon which certification of the EIR for the Project, is based, as described below in Section D.1, Finding Regarding Location and Custodian of the Record.

D.1 Finding Regarding Location and Custodian of the Record The documents and other materials that constitute the record of proceedings on which the City’s Findings of Fact are based, are located at 455 East Calaveras Boulevard, Milpitas, CA 95035.

The custodian of these documents is Lillian VanHua, Senior Planner. This information is provided in compliance with Public Resources Code Section 21081.6(a)(2) and 14 Cal. Code Regs. Section 15091(e).

For purposes of CEQA, the Record of Proceedings for the 1355 California Circle EIR consists of the following documents, at a minimum:
•The Notice of Preparation and all other public notices issued by the City in conjunction with the 1355 California Circle EIR.
•The Draft and Final EIRs, including appendices and technical studies included or referenced in the Draft and Final EIRs.
•All comments submitted by agencies or members of the public during the 30-day public comment period on the Draft EIR.
•The Mitigation Monitoring Program for the Project.
•All Findings and resolutions adopted by the City Council in connection with the Project, and all documents cited or referred to therein.

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•All reports, studies, memoranda, maps, staff reports, or other planning documents relating to the 1355 California Circle EIR prepared by Impact Sciences, Inc., consultant to the City. •All documents and information submitted to the City by responsible, trustee, or other public agencies, or by individuals or organizations, in connection with the reuse of the 1355 California Circle EIR, up through the date the City Council approved the Project. •Minutes and/or summary transcripts of all public meetings and public hearings held by the City, in connection with the 1355 California Circle EIR.
•Any documentary or other evidence submitted to the City at such public meetings and public hearings. •Matters of common knowledge to the City, including, but not limited to federal, state, and local laws and regulations.
•Any documents expressly cited in these Findings, in addition to those cited above. •Any other materials required to be in the Record of Proceedings by Public Resources Code Section 21167.6(e).

D.2 Absence of Significant New Information
State CEQA Guidelines Section 15088.5 requires a lead agency to recirculate an EIR for further review and comment when significant new information is added to the EIR after public notice is given of the availability of the Draft EIR but before certification of the Final EIR. New information added to an EIR is not “significant” unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect that the project proponent declines to implement. The Guidelines provide examples of significant new information under this standard, as follows:
(1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.
(2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance. (3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project’s proponents decline to adopt it.

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(4) The Draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.

Recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR.

The Council recognizes that the Final EIR incorporates information obtained by the City since the DEIR was completed, and contains additions, clarifications, modifications, and other changes. With respect to this information, the Council finds as follows:

Various minor changes and edits have been made to the text the DEIR. These changes are generally of an administrative nature such as correcting typographical errors, making minor adjustments to the data, and adding or changing certain phrases to improve readability and enhance clarity. The City Council finds that these changes are of a minor, non-substantive nature and do not require recirculation of the DEIR.

In addition to the changes and corrections described above, the Final EIR provides additional information in response to comments and questions from the public. The City Council finds that this additional information does not constitute significant new information requiring recirculation, but rather that the additional information clarifies or amplifies an adequate EIR. Specifically, the City Council finds that the additional information including the changes described above, does not show that:
(1) A new significant environmental impact would result from the project or from a new mitigation measure proposed to be implemented.
(2) A substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted that reduce the impact to a level of insignificance. (3) A feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant environmental impacts of the project, but the project’s proponents decline to adopt it.
(4) The DEIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.

E. ENVIRONMENTAL IMPACTS
The City staff report, the EIR, written comments, written and oral testimony at public hearings, and these Findings and Statement of Overriding Considerations and other information in the administrative record serve as the basis for the City’s environmental determination. The Final EIR includes revisions to the DEIR,

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public comments, and City responses. Detailed analyses of potential environmental impacts and proposed mitigation measures for the Project are presented in the DEIR. Written comments and City responses, as well as some minor revisions to the impact and mitigation discussions, are provided in the Final EIR.

Presented below are the environmental findings made by this City Council after its review of the documents referenced above. Factual discussion in this document summarizes the information contained in the EIR and the administrative record upon which this Council bases its decision to certify the EIR and approve the Project.

The EIR prepared for the Project identifies one significant environmental impact within 15 issue areas, which cannot be fully mitigated and are therefore considered significant and unavoidable impacts. To the extent this impact remains significant and unavoidable, such impact is acceptable when weighed against the overriding social, economic, legal, technical, and other considerations set forth in the Statement of Overriding Considerations. The significant and unavoidable impact identified in the DEIR is discussed below, along with the appropriate findings per State CEQA Guidelines Section 15091. The City Council concurs with the conclusions in the DEIR that the issues and sub-issues discussed below can be mitigated below a significant impact threshold. For those issues that cannot be mitigated below a level that is less than significant, overriding considerations exist which make those impacts acceptable.

E.1 Differences of Opinion Regarding the Impacts of the Project In making its determination to certify the Final EIR and to approve the Project, the City Council recognizes that the Project involves some controversial environmental issues and that a range of technical and scientific opinion exists with respect to those issues. The City Council has acquired an understanding of the range of this technical and scientific opinion by its review of the DEIR, the comments received on the DEIR and the responses to those comments in the Final EIR, as well as testimony, letters, and reports regarding the Final EIR and its own experience and expertise in assessing environmental impacts. The City Council has reviewed and considered, as a whole, the evidence and analysis presented in the DEIR, the evidence and analysis presented in the comments of the DEIR, the evidence and analysis presented in the Final EIR, the information submitted on the Final EIR, and the reports prepared by the experts who prepared the EIR, consultants, and by staff, addressing those comments. The City Council has gained a comprehensive and well-rounded understanding of the environmental issues presented by the Project. In turn, this understanding has enabled the City Council to make its decisions after weighing and considering the various viewpoints on these important issues. The City Council accordingly certifies that its findings are based on full appraisal of all of the evidence contained in the Final EIR, as well as the evidence and other information in the record addressing the Final EIR.

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In making these findings, the City Council has considered the opinions of other agencies and members of the public, including opinions that disagree with some of the analysis and significance thresholds used in the EIR. City Council finds that the determination of significance thresholds is a judgment within the discretion of the City Council; the significance thresholds used in the EIR are supported by substantial evidence in the record, including the expert opinion of the EIR preparers and staff; and the significance thresholds used in the EIR provide reasonable and appropriate means of assessing the significance of the adverse environmental effects of the Project.

E.2 Findings Regarding Impacts Identified in the EIR to be Less Than Significant or No Impact and Requiring no Mitigation
The following issues were identified during the scoping process as having the potential to cause significant impact. These issues were found in the EIR as having no potential to cause significant impact and therefore require no project-specific mitigation.

Aesthetics
Threshold AES-2 The Project Site would result in redevelopment and infill development within the existing developed urban environment. The views along road corridors would continue to be of a developed and urban landscape. Due to the distance, topography, and intervening landscape, trees, and structures, between the highway and the Project Site, and as described above, no identified or designated scenic views or vistas exist. As a result, implementation of the Project would have no impacts in relation to a scenic vista. (Final EIR 3.1-18) Threshold AES-3 Implementation of the Project includes the development of five buildings containing seven-plex townhomes, eight buildings containing 12-plex townhomes, and a 75-unit apartment complex. Implementation of the Project would be consistent with the City’s development standards and Zoning Ordinance. Therefore, potential impacts associated with scenic quality would be less than significant. No mitigation is required (Final EIR 3.1-18-3.1 to 26) Threshold AES-4 The Project would generally be similar to the existing surrounding multifamily residential uses east of the Project Site. Pursuant to Section XI-10-57.17 (Lighting) of the Milpitas Municipal Code, exterior on-site lighting fixtures must use minimum wattage and would be shielded as not to be directly visible from off-site. Furthermore, the proposed new streetlights would adhere to the

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City’s Design Guidelines for streetlights. Therefore, impacts associated with light and glare would be less than significant. (Final EIR 3.1-26 to 3.1-27) Air Quality
Threshold AQ-1 Area air quality planning, including the Bay Area 2017 Clean Air Plan, assumes that there will be emissions from new growth, but that such emissions may not impede attainment and may contribute to the attainment of applicable air quality standards within the Bay Area Air Quality Management District (BAAQMD). The Project would not result in construction air quality emissions that exceed the BAAQMD thresholds of significance. Therefore, the Project would not conflict with or obstruct implementation of the applicable air quality plan and impacts would be less than significant. (Final EIR 3.2-17 to 3.2-18) Threshold AQ-3 Toxic Air Contaminants. As shown in Table 3.2-10, Construction Health Risk Summary, the maximum health risks at the nearest sensitive receptor (i.e., residences to the east of the Project Site) would be less than the BAAQMD thresholds of significance for incremental cancer risk, non-cancer risk, and annual PM2.5 concentrations. Health risks at locations farther than this maximum impact receptor would be further reduced, and thus impacts to sensitive receptors would be less than significant.

Carbon Monoxide HotSpots. The Project would not have the potential to increase traffic volumes at affected intersections to more than 44,000 vehicles per hour or 24,000 vehicles per hour where vertical and/or horizonal mixing is substantially limited. Therefore, the Project would not have the potential to cause or contribute to an exceedance of the California one-hour or eight-hour CO standards. Impacts with respect to localized CO concentrations would be less than significant. (Final EIR 3.2-23 to 3.2-25)
Threshold AQ-4 Construction activities associated with the Project may generate detectable odors from heavy-duty equipment exhaust and architectural coatings. However, construction-related odors would be short-term in nature and cease upon buildout. In addition, the Project would be required to comply with the California Code of Regulations, Title 13, sections 2449(d)(3) and 2485, which minimizes the idling time of construction equipment either by shutting it off when not in use or by reducing the time of idling to no more than five minutes.

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This would reduce the detectable odors from heavy-duty equipment exhaust.

Any odor impacts to existing adjacent land uses would be short-term and not substantial. As such, the Project would not result in other emissions (such as those leading to odors) adversely affecting a substantial number of people and this impact would be less than significant. (Final EIR 3.2-26 to 3.2-27) Biological Resources
Threshold BIO-2 As shown in Table 3-2, Summary of the Potentially Occurring Special-Status Plant and Animal Species, one natural community has historically been observed within the same USGS Quadrangle as the Project Site: the Northern Coastal Salt Marsh. However, the Project Site is a developed property with minimal nonnative vegetation and is not adjacent to a bay, harbor, or inlet.

Thus, the Project Site would not provide a suitable habitat for the natural community. Therefore, the Project would not have a substantial adverse effect on any riparian habitat or other sensitive natural community, and no impacts would occur. (Final EIR 3.3-23 to 3.3-24)
Threshold BIO-3 The Project Site does not contain any natural hydrologic or drainage features.

Further, there are no State or Federally protected wetlands on-site. Therefore, Project implementation would not have a substantial adverse effect on state or federally protected wetlands. No impacts to protected wetlands would occur. (Final EIR 3.3-24)
Threshold BIO-5 The Project would adhere to the recommendations outlined in Appendix 3.3-1, Arborist Report, and remove all 49 trees on-site, including the nine street trees and 27 City Ordinance-sized protected trees. The Project Applicant would adhere to the requirements outlined in Title X, Chapter 2.0 of the Municipal Code and obtain all applicable permits from the City of Milpitas prior to the removal of any trees. In the event that the City seeks further cost recovery requirements for the removal of the existing protected tree, the Project Applicant will adhere to these requirements prior to the removal and any existing trees onsite. Adherence to the applicable regulatory requirements

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outlined in the City’s Municipal Code would ensure that impacts would be less than significant. (Final EIR 3.3-25 to 3.3-26)
Threshold BIO-6 The Project Site is not considered to be a Covered Activity under the Santa Clara Valley Habitat Plan. No other Habitat Conservation Plan, Natural Community Conservation Plan, or other approved habitat conservation plans apply to the Project Site. Therefore, the Project would not conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan, and no mitigation is required. (Final EIR 3.3-26 to 3.3-27)
Cultural Resources
Threshold CUL-1 The Project Site is not listed as a property with historic buildings in the City of Milpitas General Plan Environment Impact Report (November 2020). Further, historical maps and aerial photography analyzed in the Cultural Resources Report indicate that the Project Site remained as a vacant, undeveloped area until after 1980. Thus, the Cultural Resources Report determined that the Project Site has a low potential for encountering historic resources. As such, the Project would not cause a substantial adverse change in the significance of a historical resource pursuant to Section 15064.5 of the CEQA Guidelines, and no impacts would occur. (Final EIR 3.4-18)
Threshold CUL-3 In the unlikely event that human remains are uncovered during ground- disturbing activities, there are regulatory provisions to address the handling of human remains in California Health and Safety Code § 7050.5, PRC § 5097.98, and CEQA Guidelines § 15064.5(e). Pursuant to these codes, in the event that human remains are discovered, it requires that disturbance on the site shall be suspended, and the City of Milpitas and the Santa Clara County Coroner would be immediately notified. Compliance with these protocols would reduce impacts to a less than significant level. No mitigation is required. (Final EIR 3.3- 21)
Energy
Threshold EN-1 Construction equipment would be maintained to applicable standards, and construction activity and associated fuel consumption and energy use would be temporary and typical of construction sites. It is also reasonable to assume

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contractors would avoid wasteful, inefficient, and unnecessary fuel consumption during construction to reduce construction costs. Therefore, the Project would not involve the inefficient, wasteful, and unnecessary use of energy during construction, and the construction-phase impact related to energy consumption would be less than significant.

During operation, Project-related traffic would result in the consumption of petroleum-based fuels related to vehicular travel to and from the Project Site.

The majority of the vehicle fleet that would be used by occupants and residents of the Project would consist of light-duty automobiles and light-duty trucks, which are subject to fuel efficiency standards, such as the Low Carbon Fuel Standard (LCFS) and Low-Emission Vehicle Program Standards. The Low Carbon Fuel Standard, in part, aims to reduce fuel consumption and providers of transportation fuels must demonstrate that the mix of fuels they supply for use in California meets the LCFS carbon intensity standards for each annual compliance period. For these reasons, the Project would not result in wasteful, inefficient, or unnecessary consumption of energy resources during construction or operation and impacts would be less than significant. (Final EIR

3.5-9 to 3.5-11)
Threshold EN-2 As part of the City’s Green Building Regulations, the Project would be Build it Green or Leadership in Energy and Environmental Design (LEED) for Homes certified, which aims to increase energy efficiency. Additionally, per the RPS, the Project would utilize electricity provided by PG&E that would achieve 60 percent renewable energy by 2030 and 100 percent renewable energy by 2045.

Therefore, the Project would not conflict with or obstruct a state or local plan for renewable energy or energy efficiency and impacts would be less than significant. (Final EIR 3.5-11 to 3.5-12)
Geology and Soils
Threshold GEO-1 Project impacts concerning strong seismic ground shaking would be addressed through compliance with State and local seismic and geologic safety laws, standards, and guidelines, including the Seismic Hazard Mapping Act and the 2022 CBC, among others. In general, the City regulates development (and reduces potential seismic and geologic impacts) through compliance with the 2022 CBC as adopted by the City pursuant to Milpitas Municipal Code Title II,

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Chapter 3 (Adoption of the California Building Code) and project-specific design and construction recommendations. The CBC includes earthquake safety standards based on a variety of factors, including occupancy type, types of soils and rocks on-site, and strength of probable ground motion at the Project Site. Compliance with the CBC regulations would ensure that the Project would not expose people or structures to potential substantial adverse effects involving strong seismic ground shaking. Impacts would be less than significant, and no mitigation measures are required. (Final EIR 3.6-17 to 3.6-18) Threshold GEO-2 As discussed above, the Project Site is located less than two miles from the southeast extension of the Hayward Fault, an earthquake fault line with an estimated MWMw of 6.9. On a movement magnitude scale (Mw), seismic events with a magnitude between 6.1 to 6.9 are classified as events that “may cause a lot of damage in very populated areas.” The Project would also be required to comply with the seismic design requirements for building, as detailed in the 2022 CBC. Therefore, compliance with the Geotechnical Report and the 20122 CBC, impacts related to strong seismic ground shaking would be less than significant and no mitigation measures are required. (Final EIR 3.6-18 to 3.6-19) Threshold GEO-3 The Project would be constructed in accordance with the design recommendations as outlined in Section 7.0 of the Geotechnical Report. The Project would also be required to demonstrate compliance with the design requirements detailed under the CBC. Adherence to the foundation requirements outlined in the Geotechnical Report, as well as the seismic design parameters required by the CBC would be confirmed at a plan check and design review with the City of Milpitas. As such, compliance with applicable laws, standards, and guidelines, including the CBC, as adopted by reference in Title II, Chapter 3 Municipal Code, would ensure that Project implementation would not expose people or structures to potentially significant impacts involving liquefaction. Therefore, impacts regarding seismic related ground failure would be less than significant. (Final EIR 3.6-19 to 3.6-20)
Threshold GEO-4 The Project is not located within an area identified as having a potential for earthquake-induced landslides. No known landslides were observed at or near the site, nor is the site in the path of any known or potential landslides.

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Therefore, the Project would not result in seismic-related ground failure related to landslides, and no impacts would occur in this regard. (Final EIR 3.6-20) Threshold GEO-5 The required site grading and construction activities associated with the Project would disturb and expose soil and could, thus, accelerate erosion if effective soil erosion measures are not used. Per the National Pollutant Discharge Elimination System (NPDES), construction Projects of one acre or more, including the proposed Project, are regulated under the Statewide Construction General Permit. Projects obtain coverage under the Construction General Permit by developing and implementing a Stormwater Pollution Prevention Plan (SWPPP) estimating sediment risk from construction activities to receiving waters and specifying Best Management Practices (BMPs) that would be used by the Project to minimize the pollution of stormwater. Adherence to the NPDES and the implementation of a Construction General Permit would reduce construction-related impacts concerning soil erosion and loss of topsoil to less than significant. The Project would implement the appropriate LID-based measures that are approved by the City during the site plan review of the Project. Nevertheless, adherence to the San Francisco Bay Regional Water Quality Control Board and the preparation of a Stormwater Management Plan would reduce potential operational-related impacts concerning soil erosion and loss of topsoil to less than significant levels. (Final EIR 3.6-21 to 3.6-22) Threshold GEO-6 Slope Stability and Landslides. The topography at the site is relatively flat, and the site is not located within an area identified as having a potential for slope instability. Thus, landslide and slope instability are not anticipated, and no impact would result.

Subsidence. The Project would adhere to the requirements outlined in the 2022 CBC related to soil treatment and excavation during construction. Therefore, adherence to the 2022 CBC and implementing the recommendations outlined in the Geotechnical Report would reduce impacts related to subsidence hazards to less than significant levels.

Lateral Spreading and Liquefaction. The grading and foundation recommendations presented in the Geotechnical Report would minimize the effects of liquefaction settlement. The Project would also be designed and constructed to comply with the 2022 CBC. These design requirements would

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minimize the impacts from lateral spreading and liquefaction to less than significant. Adherence to the seismic design parameters of the 2022 CBC would be confirmed at plan check and building design review with the City of Milpitas. Nevertheless, Project impacts concerning lateral spreading and liquefaction would be less than significant and no mitigation measures are required.

Settlement and Soil Collapse. The grading and foundation recommendations presented in the Geotechnical Report would minimize the impacts of settlement and/or collapse to less than significant levels. Furthermore, the seismically induced settlement would be reduced by adhering to the seismic design parameters of the 2022 CBC. Therefore, impacts related to soil settlement and/or collapse would be less than significant and no mitigation measures are required. (Final EIR 3.6-22 to 3.6-23)
Threshold GEO-7 Based on the Geotechnical Report, the near surface soils underlying the Project Site are moderately expansive. To reduce the risks of potential differential movement of structures and associated utilities, the Project would implement the recommendations outlined in Section 8.0 of the Geotechnical Report, which provides recommendations to the structure of the proposed development’s exterior concrete flatwork. Additionally, the Project would be required to be constructed in compliance with the CBC and the City’s Municipal Code, that requires appropriate back fill, compaction of soils, and foundation design to ensure stable soils, which would be verified through the City’s building permit plan check and permitting process. Adherence to the CBC and the City’s Municipal Code and the implementation of the recommendations outlined in the Geotechnical Report would reduce impacts to less than significant levels. (Final EIR 3.6-23 to 3.6-24)
Threshold GEO-8 The Project would not include the use of septic tanks or alternative wastewater disposal systems, and no impacts would occur. (Final EIR 3.6-24) Hazards and Hazardous Materials
Threshold HAZ-1 During construction the Project Applicant would comply with the recommendations outlined in the Phase I ESA and remove any observed flaking, peeling, or blistering Lead Based Paints (LBPs) prior to the demolition

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of the existing on-site building. Additionally, the Project Applicant would comply with the BAAQMD rules and regulations pertaining to the handling of LBP materials. Further, the Project would comply with all applicable Occupational Safety and Health Administration (OSHA) regulatory requirements, including requirements for worker training, air monitoring and dust control. Coordination with the City and Milpitas Fire Department (MFD)and adherence to Cal/OSHA regulatory requirements would reduce potential construction-related questions to less than significant levels.

Adherence to these applicable laws and regulations governing the use, storage, transportation, and disposal of hazardous materials would ensure all potentially hazardous materials are used and handled in an appropriate manner and would minimize the potential for safety impacts. Therefore, substantial hazards to the public or the environment arising from the routine use, storage, transport, and disposal of hazardous materials during long-term operation of the Project would not occur. (Final EIR 3.8-19 to 3.8-22) Threshold HAZ-3 The Project would not emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within 0.25 mile of an existing or proposed school. Therefore, the Project would not impact surrounding schools in this regard. (Final EIR 3.8-25)
Threshold HAZ-4 Based on the California Environmental Protection Agency’s (CalEPA) Cortese List Data Resources, the Project Site is not reported on a list maintained pursuant to Government Code Section 65962.5. No impacts would occur in this regard. (Final EIR 3.8-25 to 3.8-26)
Threshold HAZ-5 The Project Site is located outside of the Airport Influence Area of the Norman Y. Mineta San Jose International Airport Comprehensive Land Use Plan.

Therefore, the Project would not expose residents in the Project Site to excessive airport-related noise levels. No impacts would occur in this regard. (Final EIR

3.8-26 to 3.8-27)
Threshold HAZ-6 While temporary lane closures may be required, travel along surrounding roadways would remain open and would not interfere with emergency access in the vicinity of the Project Site. As discussed, the City maintains an EOP, which addresses the City’s planned responses to natural and human-caused

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disasters. The City of Milpitas Fire Department Office of Emergency Management trains City employees on disaster planning, updates the City’s emergency plans, provides disaster preparedness information to residents and local businesses, and manages the CERT Program. The Project would not affect existing emergency operations and disaster planning. Therefore, impacts would be less than significant. (Final EIR3.8-27)
Threshold HAZ-7 The Project Site does not interface with any wildlands, or an area classified as a Fire Hazard zone as identified by the California Department of Forestry and Fire Protection. Therefore, impacts related to exposure of people to wildland fires would not occur. As such, the Project would not expose people or structures to a significant risk of loss, injury, or death involving wildland fires. No impact would occur. (Final EIR 3.8-28)
Hydrology
Threshold HYD-1 Each phase of development of the Project would require compliance with applicable regulations to obtain demolition, excavation, grading, or construction permits from the City. The permitting process would ensure each phase of development would be implemented in compliance with the MRP process. In addition, the SWRCB Construction General Permit (that would be implemented through the City’s permitting process), requires the implementation of BMPs to eliminate or reduce the discharge of pollutants in stormwater discharges, and prohibits the discharge of non-storm water from construction sites as these non-storm water discharges are likely to carry pollutants to receiving waters. Activities subject to the NPDES General Permit for construction must develop and implement a SWPPP that will identify BMPs that will be employed to prevent soil erosion and discharge of other construction—related pollutants, such as petroleum products, solvents, paints, and cement, that could contaminate nearby water resources. A monitoring program is generally required to ensure that BMPs are implemented according to the SWPPP and are effective at controlling discharges of pollutants that are related to storm water. Implementation of site-specific source control and treatment control BMPs in accordance with the City and County construction and stormwater management codes, and the SWMP would reduce these potential impacts related to stormwater quality. Applicable BMPs would be implemented in accordance with regional and local regulatory requirements,

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including the MRP. Because the Project would not violate any water quality or waste discharge requirements, impacts would be less than significant. (Final EIR 3.9-18 to 3.9-21)
Threshold HYD-2 The Project would not result in the need for new or additional groundwater supplies. Therefore, the Project would not result in any groundwater extraction or depletion of groundwater supplies and is not anticipated to interfere with SCVWD’s Groundwater Management Plan. Therefore, impacts related to groundwater recharge would be less than significant. (Final EIR 3.9-21 to 3.7-22) Threshold HYD-3 Erosion and Flooding. Grading, excavation, and other construction activities associated with the Project could adversely affect water quality due to erosion resulting from exposed soils and the generation of water pollutants, including trash, construction materials, and equipment fluids. Associated construction activities would be subject to the NPDES Statewide General Construction Activity Stormwater Permit. Compliance with NPDES permit requirements and implementation of BMPs would ensure erosion and siltation and flooding would be less than significant.

Stormwater Drainage Systems. The Project would result in comparable amounts of impervious surfaces as existing conditions. Therefore, the Project is not anticipated to increase demand on the existing stormwater drainage systems.

Impacts would be less than significant.

Surface Flows. Ground-disturbing activities during construction of the Project, including but not limited to grading and excavation, could have potential to result in temporarily altered drainage patterns that could redirect surface flows.

However, BMPs employed as part of an SWPPP for the Project would include measures to secure disturbed soils and require proper drainage of the Project Site. Potential impacts to drainage pattern alterations, including how drainage pattern alterations could affect surface water runoff, erosion/siltation, flooding, and stormwater conveyance facilities would be less than significant. (Final EIR

3.9-22 to 3.9-25)
Threshold HYD-4 The City of Milpitas is not within a tsunami or seiche hazard area. Therefore, there would be no impacts related to the risk of release of pollutants due to inundation from a tsunami or seiche. However, the Project Site is located within

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a 100-year FEMA Flood Hazard Zone. The Project would be required to comply with applicable regulations relating to the floodplain management regulations which would reduce potential impacts to a less than significant level. In addition, the Project Site not within the Coyote Dam and Reservoir identified dam inundation area and therefore is not at significant risk from a dam failure, and the Project would not exacerbate or increase any such risk. Impacts would be less than significant. (Final EIR 3.9-25 to 3.9-26)
Land Use and Planning
Threshold LAN-1 The Project Site is currently developed with an existing vacant industrial office building and paved surface parking lot. The proposed change in land use designation, to MXD Mixed Use, is intended to allow for the development of high-density residential uses such as townhomes and multi-family apartments on-site. The Project would not construct new storm channels or major roadways, nor would the Project close entire roadways or bridges that would physically divide the established community. Therefore, implementation of the Project would not be substantial to the point where an established community would be divided, and no impacts would occur. (Final EIR 3.10-9 to 3.10-10) Threshold LAN-2 Implementation of the Project would require a General Plan Text Amendment to remove specific language that requires the “preparation or adoption of a Specific Plan for the California Circle area”. In addition, the Project would include a Zoning Map Amendment to change the Project Site’s current Industrial Park Zoning District to Mixed-Use (MXD), consistent with the NCMU land use designation. Although the proposed developments would be inconsistent with multiple development design standards that are specified for MXD zoning (see Table 3.10-2), implementation of the Planned Unit Development would void the Project’s inconsistencies with the City’s development standards for MXD zoning. Therefore, implementation of the Project would not conflict with the local policies and regulations adopted for

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the purpose of avoiding or mitigating an environmental effect, and impacts would be less than significant. (Final EIR 3.10-10 to 3.10-26) Noise
Threshold NOI-1 Construction Noise. As the existing exterior on-site noise level for the Project Site is 69.3 dBA Ldn, exterior-to-interior noise reductions from current construction standards would reduce interior noise levels to approximately 39.3 to 44.3 dBA Ldn, ensuring the Project is consistent with interior noise level standards. As shown in Table 3.11-6, construction activity would generate noise levels of up to 77.1 dBA Leq at the nearest sensitive receptor (Sensitive Receptor No. 1). As such, temporary construction noise would not exceed the FTA’s 80 dBA Leq daytime construction threshold for residential uses, impacts would be less than significant.

Operation Noise. As shown in Table 3.11-7, Project Traffic Noise, the Project would increase local traffic noise levels by a maximum of 0.3 dBA Ldn along California Circle, south of the northbound I-880 on- and off-ramps. Where existing traffic noise levels are greater than 60 dBA Ldn and up to 65 dBA Ldn at the outdoor activity areas of noise-sensitive uses, a +3 dBA Ldn increase in roadway noise levels would be considered significant. Where existing traffic noise levels are greater than 65 dBA Ldn at the outdoor activity areas of noise- sensitive uses, a +1.5 dBA Ldn increase in roadway noise levels would be considered significant. Because the Project would increase local traffic noise levels by a maximum of 0.3 dBA Ldn along any segment, these thresholds would not be exceeded and impacts with respect to operational traffic noise would be less than significant. (Final EIR 3.11-20 to 3.11-25)
Threshold NOI-2 Construction activities associated with the Project would intermittently generate vibration in the Project Site vicinity when it reaches building walls and floors of sensitive receptors. Based on Table 3.11-8, construction equipment could reach vibration levels of 69 VdB at 100 feet, which is the distance to the nearest sensitive receptor (residential uses to the east). As such, the 80 VdB residential annoyance threshold would not be exceeded. Therefore, temporary construction vibration would not exceed human annoyance thresholds, and this impact would be less than significant. Based on Table 3.11-8, construction equipment would reach a maximum of 0.017 PPV (in/sec) at 75 feet, which is the

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distance to the nearest off-site building to the north of the Project Site. These vibration levels would not exceed the most conservative 0.12 inch/sec PPV threshold for buildings extremely susceptible to vibration damage. As such, construction-related vibration impacts with respect to building damage would be less than significant (Final EIR 3.11-25 to 3.11-26) Threshold NOI-3 The Project Site is not located in the vicinity of a private airstrip or airport land use plan. Additionally, the Project Site is located outside of the Airport Influence Area of the Norman Y. Mineta San Jose International Airport Comprehensive Land Use Plan. Therefore, the Project would not expose residents at the Project Site to excessive airport-related noise levels. No impact would occur in this regard. (Final EIR 3.11-27)
Population and Housing
Threshold POP-1 The Project would not induce substantial unplanned population growth exceeding existing local conditions (0.8 percent increase over the City’s estimated 2022 population) or regional projections (0.03 percent of the City’s projected 2040 population). Rather, the Project would assist the City in meeting its targeted number of required residential units allocated for low-income households per state housing law (RHNA). Further, the Project would help improve the City’s job-housing balance by providing additional housing to the jobs-rich and high-resource City. Therefore, the Project would result in less than significant impacts. (Final EIR 3.12-16 to 3.12-19)
Threshold POP-2 The Project would demolish a currently unoccupied industrial office building and construct multi-family housing units in the form of seven-plex and twelve- plex townhomes, and an apartment building. Thus, the Project would not displace substantial numbers of existing people or housing, and no impacts would occur. (Final EIR 3.12-20)
Public Services and Recreation
Threshold PS-1 Construction activities would be subject to compliance with the latest adopted applicable State and local regulations in place to reduce risk of fire, such as installation of a temporary construction fencing to restrict site access and maintenance of a clean construction site. Project compliance with applicable State and local regulations related to fire protection would result in less than

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significant construction related impacts and no mitigation measures are required. The Project would adhere to the latest adopted State and local design standards to ensure fire protection safety. Therefore, the increase in demand for MFD services would not result in delays to the either fire department’s target response times, nor would the Project require the construction of new fire protection facilities or expansion of existing fire protection facilities, impacts would be less than significant. (Final EIR 3.13-8 to 3.13-10) Threshold PS-2 Construction activities associated with the Project may create a temporary increase in demand for Milpitas Police Department (MPD) services at the construction site. Project compliance with the CBC requirements would not result in the need for additional police protection facilities and would not adversely impact service ratios, response times, or other performance standards, impacts would be less than significant. The Project Applicant would submit a Fire Department access plan to the City and the MFD for review and approval to ensure that emergency access and on-site vehicle circulation are feasible for MFD-operated fire trucks. The Project is not expected to result in any provisions of new or physically altered MPD facilities. Compliance with local regulations, as well as coordination with the City and MPD would ensure that impacts in this regard would be less than significant. (Final EIR 3.13-16 to 3.13-17) Threshold PS-3 The increase in student enrollment from the Project is not projected to substantially increase beyond existing enrollment. The Project Applicant would be subject to California Government Code Section 65995 and AB 2926, which would require the Project Applicant to contribute its fair share of the cost of increasing demand for school facilities through payment of development impact fees to MUSD. The Project’s conformance to California Government Code Section 65995 and the proposed mutual agreement with MUSD would ensure potential impacts to MUSD school facilities would be less than significant. Therefore, Project implementation would result in a less than significant impact on public schools and no mitigation measures are required. (Final EIR 3.13-25 to 3.13-26)
Threshold PS-4 The Project does not propose the construction of any new or physically altered library facilities. The Project would introduce up to 655 new residents to the City, thereby increasing demand for MPL facilities and resources. However, the Project is not expected to result in any negative the library’s current services or

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its ability to provide these services. Such, the Project would result in significant less than significant impacts to other public facilities. (Final EIR 3.13-30 to 3.13- 31)
Threshold REC-1 Although outdoor recreational spaces are provided under the Project (i.e., paseos and outdoor recreation areas), these spaces are not open to the public and are intended for Project residents. To offset this increased need for parkland in the City, the Project Applicant would be required to pay a park developer fee in lieu of the Project parkland dedication per the Quimby Act and Section 9 (Improvements: Dedication of Land or Payment of Fee or Both, for Recreational Purposes) of the City’s Municipal Code. The City would determine the “fair market value” for an acre of land in the City to determine said park fee. Payment of this fee would ensure that the Project’s potential impacts on parkland capacities and existing parkland facilities would be reduced to less than significant levels. As such, impacts would be less than significant. (Final EIR

3.13-39 to 3.13-40)
Threshold REC-2 The Project Applicant would adhere to state and local law and regulations and pay the appropriate fees-in-lieu of parkland dedication. The Project includes open space and outdoor recreational areas. The outdoor recreational area would include a playground area, benches, turf areas, and picnic tables. The outdoor recreational area would serve as a recreational facility for residents on-site.

Further, the Coyote Creek Trail located 0.12 miles west of the Project Site would serve as an existing recreational facility to Project residents and residents within a 0.25-mile distance to the Project. Therefore, less than significant impacts to recreational facilities would occur. (Final EIR 3.13-40) Transportation
Threshold TRA-2 As shown in Table 3.14-2, for both years 2022 and 2040, the Project would yield a Vehicle Miles Traveled (VMT) lower than the VMT of the existing use.

Therefore, the Project would result in a less-than-significant impact. (Final EIR

3.14-24 to 3.14-25)
Threshold TRA-3 Circulation. Project site plans and fire truck access plans would be subject to review and approval from the City and the Milpitas Fire Department. Upon approval of these plans, the proposed townhome community and apartment

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complex would provide adequate vehicle circulation that would not increase safety hazards. Impacts would be less than significant.

Vehicle Queue Analysis and Site Distance. As shown in Table 3.14-3, there currently is and would be adequate vehicle storage to accommodate the expected maximum vehicle queues at both intersections at California Circle, impacts would be less than significant.

Site Access. The City would review both proposed access points as part of the site plan review process to confirm compliance with all applicable safety standards and considerations concerning the proposed access configurations.

Additionally, the Project would comply with all site access requirements imposed by the City and the MFD to ensure that inadequate design features or incompatible uses, for the purpose of emergency access, do not occur. As such, the Project would not introduce incompatible uses to the area roadways and intersections, and impacts would be less than significant. (Final EIR 3.14-26 to

3.14-30)
Utilities and Service Systems
Threshold USS-1 The Project Site receives water supplies from the San Francisco Public Utilities Commission (SFPUC) and Valley Water (formerly Santa Clara Valley Water District). The Project’s incremental increase in water demand would not exacerbate drought conditions and would not require or result in the construction of new water treatment facilities or expansion of existing facilities.

Impacts would be less than significant. The Project Site is served by the San José-Santa Clara Regional Wastewater Facility (RWF), which has a wastewater treatment capacity of 167 million gallons per day (mgd). With adherence to applicable regulations, the Project would have adequate wastewater conveyance systems and impacts related to wastewater conveyance would be less than significant. Electricity services for the Project Site is provided by Pacific Gas and Electric Company (PG&E). It is not anticipated that existing transmission lines would need to be modified as a result of the Project. Potential impacts would be less than significant. Natural gas service for the Project Site is provided by PG&E which is regulated by the CPUC. The Project is not anticipated to require the relocation or construction of new or expanded natural gas facilities and impacts would be less than significant. The Project would only

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install necessary telecommunications infrastructure to be used by residents, employees, and visitors of the Project. It is not anticipated that new infrastructure off-site will be required. Given the urbanized nature of the Project Site, construction of any telecommunications infrastructure needed for the Project would result in less than significant environmental impacts. (Final EIR 3.15-13 to 3.15-16)
Threshold USS-2 The Project would be required to comply with the Water Shortage Contingency Plan during drought conditions. Therefore, the Project would adhere to State and local regulations to reduce water consumption during drought conditions and the Project’s incremental increase in water demand would have sufficient water supplies during normal years. Impacts would be less than significant. (Final EIR 3.15-16 to 3.15-17)
Threshold USS-3 The Project would install 10-inch underground sewer lateral connections along the proposed internal private streets near the center of the Project Site. The sewer laterals would connect to each townhome and the apartment complex.

The proposed wastewater lateral connecter would connect to existing offsite 24- inch sewer lateral located along California Circle. As such, the Project would have adequate wastewater conveyance systems and impacts would be less than significant. (Final EIR 3.15-17 to 3.15-18)
Threshold USS-4 According to the CalEEMod air quality and greenhouse gas emissions modeling for the Project, the Project would generate approximately 50.96 tons per year, or

0.14 tons per day. This would account for less than 0.01 percent of the Newby Island Landfill’s permitted daily capacity of 4,000 tons per day. As a result, the generation of solid waste would not exceed available capacity. The Project would adhere to all State and local standards and impacts would be less than significant. (Final EIR 3.15-18 to 3.15-19)
Threshold USS-5 The City is required by Assembly Bill 939 to divert 75 percent of solid waste from landfills. The Project would be required to demonstrate compliance with all applicable regulations including Assembly Bill 939. The Project would not interfere with any federal, state, or local management and reduction statutes and

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regulations related to solid waste. Impacts would be less than significant. (Final EIR 3.15-19)
E.3 Findings Regarding Impacts Analyzed in the EIR and Determined to be Significant but Mitigated to Less than Significant
This section includes findings for project impacts which are potentially significant, but which are mitigated to a less than significant level with the imposition of mitigation measures. The City Council finds that all potentially significant impacts of this project listed below can and will be substantially lessened or avoided by imposition of mitigation measures. Specific findings of the City Council for each impact are set forth below in this section.

The City hereby finds that the following potential environmental impacts can and will be mitigated to below a level of significance, with implementation of the mitigation measures recommended in the EIR.

Air Quality
Threshold AQ-2 Would the Project result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard? Significance Before Mitigation: Less than significant.

Mitigation Measure
MM AQ-1 The following BAAQMD Basic Best Management Practices for Construction-Related Fugitive Dust Emissions shall be implemented:
•All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day. • All haul trucks transporting soil, sand, or other loose material off-site shall be covered. •All visible mud or dirt track-out onto adjacent roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited.
• All vehicle speeds on unpaved roads shall be limited to 15 mph.

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•All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used.
•All excavation, grading, and/or demolition activities shall be suspended when average wind speeds exceed 20 mph.
•All trucks and equipment, including their tires, shall be washed off prior to leaving the site.
•Unpaved roads providing access to sites located 100 feet or further from a paved road shall be treated with a 6- to 12-inch layer of compacted layer of wood chips, mulch, or gravel.
•Publicly visible signs shall be posted with the telephone number and name of the person to contact at the lead agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District’s General Air Pollution Complaints number shall also be visible to ensure compliance with applicable regulations.

Finding
The City Council finds that changes or alterations have been required in, or incorporated into, the Project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR.

Supporting Explanation: While impacts would be less than significant without mitigation, the BAAQMD requires the implementation of the BAAQMD Basic Best Management Practices for Construction-Related Fugitive Dust Emissions. (Final EIR 3.2-18 to 3.2-23)
Biological Resources
Threshold BIO-1 Would the Project have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or

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special status species in local or regional plans, policies, or regulation, or by the California Department of Fish and Wildlife or U.S. Fish and Wildlife Service? Significance Before Mitigation: Potentially significant Mitigation Measure
MM BIO-1In the event that ground-disturbing activities or removal of any trees, shrubs, or any other potential nesting habitat that are associated with the Project are scheduled to occur within the avian nesting season (from January 1 through August 31), a qualified biologist retained by the City shall conduct a pre-construction clearance survey for nesting birds within three days prior to any ground disturbing activities.

The biologist conducting the clearance survey shall document the negative results if no active bird nests are observed on the Project Site during the clearance survey with a brief letter report indicating that no impacts to active bird nests would occur before construction can proceed. If an active bird nest is discovered during the pre-construction clearance survey, construction activities shall stay outside of a 100-foot buffer around the active nest.

Encroachment into the buffer shall occur only at the discretion of the qualified biologist.

Any activities requiring the removal of a tree with an active bird nest shall halt until nesting activity seasons, which would be determined by the qualified biologist.

The biologist shall be present to delineate the boundaries of the buffer area and to monitor the active nest to ensure that nesting behavior is not adversely affected by the construction activity. Results of the pre-construction survey and any subsequent monitoring shall be provided to the City of Milpitas, California Department of Fish and Wildlife, and other appropriate agencies. This requirement shall be indicated on the site improvement plan and specifications for verification by the City of Milpitas prior to the initiation of construction activities.

Finding
The City Council finds that changes or alterations have been required in, or incorporated into, the Project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR.

Supporting Explanation: The Project would operate as multi-family residential uses. These uses are highly unlikely to disturb any potential nesting habitat on-site. However, given the health condition of the majority of existing trees on-site, construction activities associated with the Project would comply with the

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recommendations outlined in the Arborist Report, and remove all 49 trees, including 27 protected trees.

The Project will plant 269 new trees of various species, resulting in a replacement ratio of 10:1.

Notwithstanding, the Project could potentially disturb and modify any critical habitats that may be present on-site for special-status bird species.

To reduce such impacts to the special-status migratory birds Mitigation Measure MM BIO-1 would require a pre-construction clearance survey to be conducted on-site with a qualified biologist prior to the initiation of construction activities associated with the Project. In the event that an active nest is discovered during the pre-construction clearance survey, Mitigation Measure MM BIO-1 would require all constructions activities associated with the Project to stay outside of a 100 feet buffer around the discovered nest. Implementation of Mitigation Measure MM BIO-1 would reduce such impacts to the special-status migratory birds to less than significant levels. (Final EIR 3.3-20 to 3.3-23) Threshold BIO-4 Would the Project interfere substantially with the movement of any native resident or migratory fish or animal species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites?
Significance Before Mitigation: Potentially significant Mitigation Measure
Refer to Mitigation Measure MM BIO-1 above.

Finding
The City Council finds that changes or alterations have been required in, or incorporated into, the Project which avoid or substantially lessen the significant environmental effect as identified in the Final EIR.

Supporting Explanation: Existing ornamental vegetation on-site has the potential to provide suitable nesting habitat for birds. The Migratory Bird Treaty Act (MBTA) governs the taking, killing, possession, transportation, and importation of migratory birds, their eggs, parts, or nests. There are several mature trees present within the Project Site that may provide suitable habitat for nesting birds protected under the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code §§ 3500-5500. Birds may also nest on or within the vacant building on site.

To reduce such impacts the Project would implement Mitigation Measure MM BIO-1, which would halt the removal of any trees with active bird nests until said nesting becomes inactive. With the implementation