On November 7, 2022, Ulises Belmonte submitted an application to rezone both 1505 and 1513 Scenic Drive properties, currently zoned as Low-Density Residential (R-1) to Medium-HighDensity Residential (R-3) Zone.
DISCUSSION:
Use of the area proposed for rezoning is limited to those uses as allowed in the Low-Density Residential (R-1) Zone. The R-1 zoning district is intended to accommodate lower-density residential development, including accessory structures and uses while the R-3 Medium-HighDensity Residential zoning district is intended to accommodate relatively higher-density residential development, including accessory structures and uses. For example, in the R-3 Zone, there shall be a minimum density of more than one (1) dwelling unit per three thousand (3,000) square feet of lot area for sites smaller than one (1) acre. The aggregate square footage is 25,545 sf which would allow a minimum of eight units if the properties were rezoned to R-3.
The proposed rezoning of the subject properties would give the property owners more flexibility for future multi-family development, subject to the development standards of Title 10, Chapter 4 of the Modesto Municipal Code. While no physical constraint exists to build in an R-1 Zone, doing so would not result in an efficient development layout given the immediate surroundings and uses. In contrast, rezoning the R-1 portion to match the surrounding multi-family zones would permit a higher dwelling unit density for the site than what would be permitted if the subject properties were to remain in an R-1 Zone. Allowing for multi-family residential development would create a more uniform and better fit with the surrounding land uses.
FISCAL IMPACT:
There is no fiscal impact beyond the staff costs associated with this request.
COMMITTEE RECOMMENDATION:
The Planning Commission heard the item at its regularly scheduled meeting on January 23, 2023, and recommended City Council approval.
CEQA/NEPA REQUIREMENTS:
Staff has prepared an Initial Study, Environmental Assessment No. EA/C&ED 2023-02, which concluded that the project is within the scope of the General Plan Master EIR (SCH No. 2014042081) and that pursuant to Section 21157.1 of the Public Resources Code, no new environmental review is required.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Motion introducing and waiving the first reading of an Ordinance amending Section 27-3-9 of the Zoning Map of the City of Modesto to rezone from Low-Density Residential, R-1, to MediumHigh Density Residential, R-3, properties located at 1505 and 1513 Scenic Drive.
Resolution finding that the following subsequent project is within the scope of the project covered by the Modesto Urban Area General Plan Master Environmental Impact Report (SCH NO. 2014042081): rezone from Low-Density Residential (R-1) Zone to Medium-High Density Residential (R-3) Zone, properties located at 1505 and 1513 Scenic Drive. #29..
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City Council, April 4, 2023
Rezone from Low-Density Residential “R-1” Zone to
Medium-High-Density Residential “R-3” Zone
Approved by:
Jessica Hill,
Interim Director of Community and Economic
Development
Joseph P. Lopez, City Manager
Attachments:
1. Ordinance
2. Resolution
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–1–
ORDINANCE NO. -C.S.
AN ORDINANCE AMENDING SECTION 27-3-9 OF THE
ZONING MAP OF THE CITY OF MODESTO TO REZONE
FROM LOW-DENSITY RESIDENTIAL, R-1, TO MEDIUMHIGH DENSITY RESIDENTIAL, R-3, PROPERTIES LOCATED 1505 AND 1513 SCENIC DRIVE (CITY OF MODESTO).
WHEREAS, a verified application for an amendment to Section 27-3-9 of the Zoning Map was filed by Ulises Belmonte on November 7, 2022, to rezone from Low-Density Residential, R-1, to Medium-High Density Residential, R-3, properties located 1505 and 1513 Scenic Drive; and
WHEREAS, after a public hearing held on January 23, 2023, it was found and determined by the Planning Commission that the requested zone change will not be detrimental to the public health, safety or welfare because the proposed rezone will make possible future development of multi-family residential projects that are compatible with nearby multi-family residential uses, the requested zone change will result in an orderly planned use of land because the proposed rezone is consistent with the adjacent residential zone and land uses and the requested zone change is in accordance with the community objectives as set forth in the Modesto Urban Area General Plan and any applicable specific plans(s) because the proposed rezone conforms to the General Land Use designation of Residential Use (R); and WHEREAS, by Resolution No. 2023-02, adopted on January 23, 2023, the Planning Commission recommended to the Council that the application of Ulises Belmonte to amend Section 27-3-9 of the Zoning Map to rezone the hereinafter described property from LowDensity Residential, R-1, to Medium-High Density Residential, R-3, be approved.
NOW, THEREFORE, the Council of the City of Modesto does ordain as follows:
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SECTION 1. After a public hearing held on April 4th, 2023, in the Tenth Street Place Chambers located at 1010 10th Street, Modesto, California, this Council finds and determines as follows:
1. The requested change will not be detrimental to the public health, safety or welfare because the proposed rezone will make possible future development of multi-family residential uses.
2. The requested change will result in an orderly planned use of land because the proposed rezone is consistent with the adjacent residential zone and land uses.
3. The requested change is in accordance with the community’s objectives as set forth in the General Plan and any applicable specific plan(s) because the proposed rezone conforms to the General Plan Land Use designation of Residential Use (R).
SECTION 2. ZONING CHANGE. Section 27-3-9 of the Zoning Map is hereby amended to rezone the following described property from Low-Density Residential, R-1, to Medium-High Density Residential, R-3:
R-1 to R-3
All that portion of Lot 40 of Broughton Colony, according to the Official map thereof, filed in the Office of the Recorder of Stanislaus County, California, on March 17, 1904 in Volume 1 of Maps, at Page 78, particularly described as follows:
Commencing at the Northwest corner of Lot 40, said corner being in the centerline of a 40 foot avenue; thence South 0°30’ East along the West line of Lot 40 and along the centerline of 40 foot avenue 625.05 feet to the Southwest corner of second parcel of land conveyed to Francis E. Bishop, et ux, by Deed recorded August 3, 1944 as Instrument No. 11023; thence North 74°20’ East 20.72 feet to the East line of 40 foot Avenue to the True Point of Beginning of this description; thence continuing North 74°20’ East along the Southerly line of said Bishop land and along the centerline of a concrete pipeline, 77.72 feet; thence south 0°30’ East 191.56 feet; thence South 73°48’30” West along the South line of Lot 40, 77.90 feet; thence North 0°30’ West along East line of 40 foot Avenue 192.20 feet to the True Point of Beginning of this description.
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EXCEPTING THEREFROM that parcel granted to the City of Modesto recorded August 2, 1988, Instrument No. 51495 described as follows:
Commencing at the Southwestern corner of said Lot 40, said point being on the Centerline of Brighton Avenue; thence North 74°24’30” East, 20.77 feet to the Southwestern corner of property conveyed to Nick Masellis, et ux, by Deed recorded May 6, 1977 in Book 2911 of Official Records, at page 01, Stanislaus County Records, and the True Point of Beginning of this description; thence continuing along the Northern line of Scenic Drive North 74°24’30” East, 77.90 feet, to the Southeastern corner of said Masellis property, thence along the Eastern line of Masellis property North 00°05’25” East 20.77 feet, to a point on a line which is parallel with and 20.00 feet, measured at right angles, Northerly from said Northern line of Scenic Drive; thence along said Parallel line, South 74°24’30”, West 47.72 feet; thence Northwesterly along a tangent curve concave to the Northeast, having a Radius of 15.00 feet, a central angle of 105°40’55” and an arc length of 27.67 feet to its’ point of tangency on a line which is parallel with and 30.00 feet, measured at right angles, Easterly from said centerline of Brighton Avenue; thence along a radial line, North 89°54’35” West, 10.00 feet, to the Eastern line of 40.00 foot Brighton Avenue; thence along said last mentioned Eastern line of Brighton Avenue, South 00°05’25” West, 43.37 feet to the point of beginning.
Including also the eastern half of Brighton Avenue and the northern half of Scenic Drive, all being immediately adjacent to the above description.
1505 Scenic Drive
APN: 034-008-010
.29 Acres
R-1 to R-3
Parcel No. 1:
All that portion of Lot 40 of Broughton Colony, as per map filed March 17, 1904 in volume I of maps, page 78, Stanislaus County Records, particularly described as:
Commencing at the northwest corner of Lot 40, said corner being in the center line of a 40 foot avenue; thence south 0°30’ east along the west line of lot 40 and along the centerline of 40 foot avenue 625.05 feet to the southwest corner of the second parcel of land, described in the deed to Francis E. Bishop, et ux, by deed #29..
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recording August 3, 1944 as instrument No. 11023; thence north 74°20’ east and along the southerly line of said Bishop land, being the center line of a concrete pipe line, 98.44 feet to the point of commencement of this description; being the northeast corner of premises conveyed to Joseph F. Maroney and Kathleen Maroney, by deed recorded October 11, 1945 instrument No. 18187; thence continuing north 74°20’ east 77.72 feet along the southerly line of said Bishop Land to a point; thence south 0°30’ east 190.91 feet to a point on the south line of said lot 40 and north line of county road; thence south 73°48’30” west, a distance of 77.90 feet to a point to the southeast corner of premises conveyed to Maroney as aforesaid; thence north 0°30’ west along the easterly line of said Maroney lands 191.56 feet to the point of beginning.
Parcel No. 2:
All that portion of lot 40 of the Broughton colony, as per map filed March 17, 1904 in volume 1 of maps, page 78, particularly described as follows:
Commencing at the northwest corner of lot 40, said corner being in the centerline of a 40 foot avenue; thence south 0°30’ east along the west line of lot 40 and along the center line of a 40 foot avenue 625.05 feet; thence north 74°17’ east along the center line of a concrete pipe line 176.16 feet; thence south 0°30’ 125.91 feet to the true point of beginning of this description; thence, continuing south 0°30’ east 65.00 feet: thence north 17’ west 63.04 feet to the true point of beginning of this description.
Including also the northern half of Scenic Drive, all being immediately adjacent to the above description.
1513 Scenic Drive
034-008-011
.30 Acres
SECTION 3. ZONING MAP. Section 27-3-9 of the Zoning Map of the City of Modesto is amended to appear as set forth on the map attached hereto, which is hereby made a part of this ordinance by reference.
SECTION 4. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption. #29..
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SECTION 5. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
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The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 4th day of April, 2023, by Councilmember , who moved its introduction and passage to print, which motion being duly seconded by Councilmember , was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED:
SUE ZWAHLEN, Mayor
ATTEST:
By:
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO DESCRIPTION:
By:
Community & Economic Development
Department, Planning Division
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FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the 4th day of April, 2023, Councilmember ______________moved its final adoption, which motion being duly seconded by Councilmember ________________, was upon roll call carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED:
SUE ZWAHLEN, Mayor
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: _________________, 2023
#29..
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Updated: December 2022
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION FINDING THAT THE FOLLOWING SUBSEQUENT PROJECT IS WITHIN
THE SCOPE OF THE PROJECT COVERED BY THE MODESTO URBAN AREA GENERAL PLAN MASTER ENVIRONMENTAL IMPACT REPORT (SCH NO. 2014042081): REZONE FROM LOW-DENSITY RESIDENTIAL (R-1) ZONE TO MEDIUM-HIGH DENSITY RESIDENTIAL (R-3) ZONE, PROPERTIES LOCATED AT 1505 AND 1513 SCENIC DRIVE WHEREAS, on March 5, 2019, by Resolution 2019-108, City Council of the City of Modesto certified the Final Master Environmental Impact Report (“Master EIR”) (SCH No. 2014042081) for the Modesto Urban Area General Plan; and
WHEREAS, Ulises Belmonte has proposed a rezone, from Low-Density Residential (R-1) Zone to Medium-High Density Residential (R-3) zone, properties located at 1505 and 1513 Scenic Drive; and WHEREAS, pursuant to Section 21157.1 of the Public Resources Code, the City of Modesto’s Community & Economic Development Department prepared an Environmental Assessment Initial Study EA/C&ED 2023-02 (“Initial Study”) which analyzed whether the subsequent project may cause any significant effect on the environment that was not examined in the Master EIR and whether the subsequent project was described in the Master EIR as being within the scope of the report; and
WHEREAS, in accordance with CEQA guidelines beginning on March 15, 2023, the City caused to be published a 20-day notice of the City’s intent to make a finding that the subsequent project conforms with the Master EIR; and
WHEREAS, said matter was considered by the City Council at a duly noticed public hearing which was held on April 4, 2023, at 5:30 p.m., in the Tenth Street Place Chambers located at 1010 Tenth Street, Modesto, California.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that the Council has reviewed and considered the Initial Study prepared for the proposed rezone from LowDensity Residential (R-1) Zone to Medium-High Density Residential (R-3) zone, for properties located #29..
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City of Modesto Initial Study EA No. 2019-14
General Plan Master EIR 2 May 14, 2019
at 1505 and 1513 Scenic Drive, a copy of which is attached hereto as Exhibit “A”, and incorporated herein by reference, and based on substantial evidence in the Initial Study makes the following findings:
1. An Initial Study was prepared by the City of Modesto that analyzed whether the subsequent project may cause any significant effect on the environment that was not examined in the Master EIR and whether the subsequent project was described in the Master EIR as being within the scope of the report.
2. The subsequent project will have no additional significant effect on the environment, as defined in subdivision (d) of Section 21158 of the Public Resources Code, that was not identified in the Master EIR.
3. No new or additional mitigation measures or alternatives are required.
4. The subsequent project is within the scope of the project covered by the Master EIR.
5. All applicable policies, regulations, and mitigation measures identified in the Master EIR have been applied to the subsequent project or otherwise made conditions of approval of the subsequent project.
BE IT FURTHER RESOLVED by the Council of the City of Modesto that the Community & Economic Development Director is hereby authorized and directed to file a notice of approval or determination within five (5) business days with the Stanislaus County Clerk pursuant to Section 21152 of the Public Resources Code.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 4th day of April 2023, by Councilmember , who moved its adoption, which motion being duly seconded by Councilmember , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _______________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
#29..
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City of Modesto Initial Study EA No. 2019-14
General Plan Master EIR 3 May 14, 2019
BY: ___________________________________________
JOSE M. SANCHEZ, City Attorney
#29..
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City of Modesto Initial Study EA No. 2019-14
General Plan Master EIR 4 May 14, 2019
EXHIBIT A
Initial Study
EA/C&ED 2023-02
City of Modesto
Finding of Conformance with the
Urban Area General Plan Master EIR
(SCH No. 2014042081)
Initial Study Environmental Checklist
C&ED No. 2023-02
For the proposed:
RZN-22-002 – Rezone from Low-Density Residential zone to MediumHigh-Density Residential zone at the northeast corner of Scenic Drive and Brighton Avenue
Prepared by:
City of Modesto
Community & Economic Development Department
Planning Division
12/6/2022
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Updated: December 2022
(Intentional Blank Page)
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February 27, 2023/C&EDD/Michael Arroyo 1 2023-
City of Modesto
Master EIR Initial Study Environmental Checklist
I. PURPOSE
CEQA allows for the limited environmental review of subsequent projects under the City’s Master Environmental Impact Report (“Master EIR”). This Initial Study Environmental Checklist (“Initial Study”) is used in determining whether the Rezone from Low-Density Residential (R-1) zone to Medium-High Residential (R-3) zone is “within the scope” of the project analyzed in the Modesto Urban Area General Plan Master EIR (SCH# 2014042081) (Public Resources Code section 21157.1). When the Initial Study supports this conclusion, the City will issue a Finding of Conformance.
A subsequent project is “within the scope” of the Master EIR when:
1. it will have no additional significant effects on the environment that were not addressed as significant effects in the Master EIR; and,
2. no new or additional mitigation measures or alternatives are required. “Additional significant effects” means a project-specific effect that was not addressed as a significant effect in the Master EIR. [Public Resources Code Section 21158(d)] The determination must be based on substantial evidence in the record. “Substantial evidence” means facts, reasonable assumptions predicated upon facts, or expert opinion based on facts. It does not include speculation or unsubstantiated opinion. (CEQA Guidelines Section 15384)
II. PROJECT DESCRIPTION
A. Title: Rezone from Low-Density Residential (R-1) zone to Medium-High Density Residential (R-3) zone
B. Address or Location: Northeast corner of Scenic Drive and Brighton Avenue C. Applicant: Ulises Belmonte
D. City Contact Person: Michael Arroyo, Assistant Planner Project Manager: Michael Arroyo
Department: Community and Economic Development Department Phone Number: 209 577 5272
E-mail address: [email protected]
E. Current General Plan Designation(s): Residential
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February 27, 2023/C&EDD/Michael Arroyo 2 2023-
F. Current Zoning Classification(s): Low-Density Residential G. Surrounding Land Uses:
North: Medium-High-Density Residential, multi-family dwellings South: Planned Development (P-D 434), 24 zero-lot-line townhouse condominiums
East: Medium-High-Density Residential, multi-family dwellings West: Medium-High-Density Residential and Low-Density
Residential
H. Project Description, including the project type listed in Section II.C (Anticipated Future Projects) of the Master EIR (Attach additional maps/support materials as needed for complete record):
The proposed project is to rezone two contiguous parcels from R-1 to R-3 zone.
No specific development has been proposed with the rezone. Future development of the site will require an application for a Development Plan Review application.
I. Other Public Agencies Whose Approval is Required: None III. FINDINGS / DETERMINATION (SELECT ONE ON THE BASIS OF THE
ANALYSIS IN SECTION IV)
1. X Within the Scope – The project is within the scope of the Master EIR and no new environmental document or Public Resources Code Section 21081 findings are required. All of the following statements are found to be true:
A. The subsequent project will have no additional significant effect on the environment, as defined in subdivision (d) of Section 21158 of the Public Resources Code, that was not identified in the Master EIR; B. No new or additional mitigation measures or alternatives are required; C. The subsequent project is within the scope of the project covered by the Master EIR;
D. All applicable policies, regulations, and/or mitigation measures identified in the Master EIR have been applied to the subsequent project or otherwise made conditions of approval of the subsequent project; and,
2. Mitigated Negative Declaration Required – On the basis of the above determinations, the project is not within the scope of the Master EIR. A mitigated negative declaration will be prepared for the project. The following statements are all found to be true:
A. The subsequent project is within the scope of the project covered by the Master EIR;
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February 27, 2023/C&EDD/Michael Arroyo 3 2023-
B. All applicable policies, regulations, and mitigation measures identified in the Master EIR have been applied to the subsequent project or otherwise made conditions of approval of the subsequent project;
C. The project will have one or more potential new significant effects on the environment that were not addressed as significant effects in the Master EIR. New or additional mitigation measures are being required of the project that will reduce the effects to a less than significant level; and,
3. Focused EIR Required – On the basis of the above determinations, the project is not within the scope of the Master EIR. A Focused EIR will be prepared for the project. All of the following statements are found to be true:
A. The subsequent project is within the scope of the project covered by the Master EIR;
B. All applicable policies, regulations, and mitigation measures identified in the Master EIR have been applied to the subsequent project or otherwise made conditions of approval of the subsequent project;
C. The project will have one or more new significant effects on the environment that were not addressed as significant effects in the Master EIR. New or additional mitigation measures or alternatives are required as a result; and,
Project Manager Title Date
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February 27, 2023/C&EDD/Michael Arroyo 4 2023-
4. Within the Scope Analysis of this Document:
The Master EIR allows projects to be found within the scope of the MASTER EIR if certain criteria are met. If the following statements are found to be true for all 20 impact categories included in this Initial Study, then the proposed project is addressed by the Master EIR analysis and is within the scope of the Master EIR. Any “No” response must be discussed.
YES NO
(1) The lead agency for subsequent projects shall be the City of Modesto or a responsible agency identified in the Master EIR.
(2) City policies that reduce, avoid, or mitigate environmental effects will continue to be in effect and, therefore, would be applied to subsequent projects where appropriate. The policies are described in the list of policies in place as “mitigating policies” attached to the Initial Study template. Project impacts would be mitigated to a less-than-significant level using the Master EIR’s mitigating policies only.
(3) Federal, State, regional, and Stanislaus County regulations do not change in a manner that is less restrictive on development than current law (i.e., would not offer the same level of protection assumed under the Master EIR).
(4) No specific information concerning the known or potential presence of significant resources is identified in future reports, or through formal or informal input received from responsible or trustee agencies or other qualified sources. (5) The project will occur within the boundaries of the City’s planning area as established in the Urban Area General Plan.
(6) Implementation of the project will comply with all appropriate mitigating policies contained and enumerated in the 2019 Urban Area General Plan Master EIR.
5. Currency of the Master EIR Document
The Master EIR should be reviewed on a regular basis to determine its currency, and whether additional analysis / mitigation should be incorporated into the Master EIR via a Supplemental or Subsequent EIR (CEQA Section 21157.6). Staff has reviewed Sections 1 through 20 of this document in light of the criteria listed below to determine whether the Master EIR is current. The analyses contained within the Master EIR are current as long as the following circumstances have not changed. Any “no” response must be explained.
YES NO
(1) Certification of the Urban Area General Plan Master EIR occurred less than five (5) years prior to the filing of the application for this subsequent project. (2) The proposed project is described in the Master EIR and its approval will not affect the adequacy of the Master EIR for any subsequent project because the City can make the following findings:
(a) No substantial changes have occurred with respect to the circumstances under which the Master EIR was certified;
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February 27, 2023/C&EDD/Michael Arroyo 5 2023-
(b) No new information, which was not known and could not have been known at the time the Master EIR was certified as complete, has become available; and, (c) Policies that require site-specific mitigation, and avoidance or other mitigation of impacts as a prerequisite to future development, remain in full force and effect.
Discussion:
(1) The General Plan Master EIR was last certified on March 5, 2019. The analysis contained in the Master EIR is adequate for subsequent projects, as documented in the discussion below.
(2) The project is consistent with the analysis contained in the Master EIR. This is documented in the discussion of the 20 individual evaluation topics within this initial study.
(2)(a) There have been no substantive changes to the Urban Area General Plan since the Master EIR was certified that would create additional significant environmental effects that were not analyzed by the Master EIR.
(2)(b) There has been no new information that would affect the adequacy of the analysis contained in the Master EIR.
(2)(c) All policies contained in the Master EIR that require site-specific mitigation or avoidance of impacts remain in effect and will be applied to the project as appropriate.
IV. ENVIRONMENTAL ANALYSIS
This Initial Study, in accordance with Section 21157.1(b) of the Public Resources Code, discloses whether the proposed project may cause any project-specific significant effect(s) to the environment that was not examined in the Final Master EIR for the Urban Area General Plan, and whether new or additional mitigation measures or alternatives may be required as a result. The Initial Study thereby documents whether or not the project is “within the scope” of the Master EIR.
Pursuant to Public Resources Code Section 21157.1, no new environmental document or findings are necessary for projects that are determined to be within the scope of the Master EIR. Adoption of the findings specified in Section III.1, above, after completion of the Initial Study fulfills the City’s obligation in that situation. All environmental effects cited reflect 2040 conditions resulting from the Urban Area General Plan, as identified in the Master EIR.
The environmental impact analysis in the Master EIR for the Urban Area General Plan is organized in twenty subject / topical areas. The following analysis is based on the impact analyses contained in Chapter V of the Master EIR. For ease of reference, the sections are numbered in the same order as the analyses in Chapter V. #29..
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1. TRAFFIC AND CIRCULATION
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable traffic and circulation impacts expected after application of mitigating policies.
Direct Impacts
Effect: Increased automobile traffic will result in roadway segments (see Master EIR Table V-1-6, pages V-1-36 to V-1-39) operating at LOS D, Modesto’s significance threshold for automobile traffic, or lower (LOS E or F).
Effect: The substantial increase in traffic relative to the existing load and capacity of the street system will cause, either individually or cumulatively, the violation of automobile service standards established by StanCOG’s Congestion Management Plan for designated roads and highways.
Effect: A substantial increase in automobile vehicle miles traveled (see Master EIR Tables V-1-7 through V-1-10, pages V-1-44 through V-1-45).
Cumulative Impacts
Effect: Potential for growth inducement or acceleration of development resulting from highway and local road projects.
Effect: Substantial increase in traffic in relation to the existing traffic load and capacity of the street system, including a violation, either individually or cumulatively, of an automobile LOS standard established by the Congestion Management Plan for designated roads and highways.
Effect: Increased demand for capacity-enhancing alterations to existing roads or automobile traffic reduction.
Other impact categories affected by Traffic and Circulation are addressed throughout this Initial Study (see also: Section 2, Air Quality and Greenhouse Gas Emissions; Section 3, Generation of Noise; Section 18, Energy; Section 19, Visual Resources; and, Section 20, Land Use and Planning).
b. Urban Area General Plan Mitigating Policies Applied to the Project Traffic and Circulation-related mitigating policies pertinent to this project are found on Master EIR pages V-1-7 through V-1-30. All mitigating policies appropriate to the project, including any new measures, will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” #29..
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Discussion:
The appropriate mitigating policies to be applied to this project include none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-1.B of the Master EIR provides analysis of Traffic and Circulation impacts of development of the General Plan. The following is an analysis of whether the proposed project would result in any new, significant, project-specific effect(s) that were not disclosed in the Master EIR.
Significance Criteria: A subsequent development project will have a new significant effect on the environment if it would exceed the following thresholds / criteria:
1. TRAFFIC AND CIRCULATION
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project would conflict
with an applicable plan, ordinance or
policy (including those within the
Urban Area General Plan) establishing
measures of effectiveness for the
performance of the circulation system,
taking into account all modes of
transportation including mass transit
and non-motorized travel and relevant
components of the circulation system
including, but not limited to
intersections, streets, highways and
freeways, pedestrian and bicycle
paths, and mass transit.
2) The proposed project would conflict
with an applicable congestion
management program, including, but
not limited to, level of service
standards and travel demand
measures, or other standards
established by the county congestion
management agency, for designated
facilities.
3) The proposed project would result
in a change in air traffic patterns,
including either an increase in traffic
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February 27, 2023/C&EDD/Michael Arroyo 8 2023-
1. TRAFFIC AND CIRCULATION
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
levels or a change in location that
results in substantial safety risks.
4) The proposed project would
substantially increase hazards due to
a design feature (e.g. sharp curves or
dangerous intersections) or
incompatible uses (e.g. farm
equipment), or result in inadequate
emergency access.
5) The proposed project would conflict
with adopted policies, plans, or
programs regarding public transit,
bicycle, or pedestrian facilities, or
otherwise decrease the performance
or safety of such facilities.
6) The proposed project would result
in projected Level of Service “D” or
worse for non-exempt City of Modesto
roadways, Caltrans facilities, and/or
County of Stanislaus roadways.
Discussion:
(1) The proposed project is a rezone of two contiguous parcels from R-1 zone to R-3 zone. It will have no effect on the circulation system. The Master EIR assumed vehicle trips based on a Mixed Used designation which allows a mixture of uses that include residential, commercial, office, and institutional. The project will not increase vehicle trips above what is assumed in the adopted Master EIR because it accounted for a mixture of office and commercial uses. (2) The proposed project will have no effect on the level of service standard established by the county congestion management.
(3) The proposed project will have no effect on air traffic patterns. (4) The proposed project will not increase circulation hazards due to design or incompatible uses or have no effect on emergency access above what is assumed in the adopted Master EIR.
(5) The proposed project will have no effect on alternative transportation policies. (6) The proposed project will have no effect on Level of Service. #29..
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2. AIR QUALITY AND GREENHOUSE GAS EMISSIONS
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable air quality impacts expected after application of mitigating policies.
Direct Impacts
Effect: Expected automobile traffic will result in increased operational emissions of reactive organic gases (ROG) and oxides of nitrogen (NOX), and increased carbon monoxide (CO) levels in the project area (see Master EIR Tables V-2-4 through V-2-6, pages V-2-40 through V-2-41).
Effect: Expected construction and development activities could result in increased emissions of particulate matter 10 microns or less (PM10) and 2.5 microns or less in diameter (PM2.5) (see Master EIR page V-2-31, “2. Significant Direct Impacts”).
Cumulative Impacts
The Master EIR indicates the same impacts identified as direct impacts above will contribute to regional impacts on air quality for the criteria pollutants ROG, NOx, PM10, and PM2.5.
b. Urban Area General Plan Mitigating Policies Applied to the Project Air quality-related mitigating policies that are relevant to the proposed project are found on pages V-2-8 through V-2-29 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate policies to be applied to this project include none from the Master EIR.
No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level.
c. Project-Specific Effects
Section V-2.B of the Master EIR is the analysis of air quality impacts resulting from development of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project -specific effect not analyzed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
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2. AIR QUALITY AND GREENHOUSE GAS
EMISSIONS Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project would be inconsistent with
the air quality and greenhouse gas emissions
policies in the Urban Area General Plan.
2) The proposed project would conflict with or
obstruct implementation of the applicable air quality
plan.
3) The proposed project would violate any air
quality standard or contribute substantially to
existing or projected violation.
4) The proposed project would result in a
cumulatively considerable net increase of any
criteria pollutant for which the project region is in
non-attainment under an applicable federal or state
ambient air quality standard (including releasing
emissions that exceed quantitative thresholds for
ozone precursors).
5) The proposed project would expose sensitive
receptors to substantial pollutant concentrations.
6) The proposed project would create objectionable
odors affecting a substantial number of people.
7) The proposed project would generate
greenhouse gas emissions, either directly or
indirectly, that may have a significant impact on the
environment.
8) The proposed project would conflict with an
applicable plan, policy, or regulation adopted for the
purpose of reducing the emission of greenhouse
gases.
Discussion:
(1) The proposed project will have no effect on Urban Area General Plan air quality and greenhouse gas policies.
(2) The proposed project will not conflict with any air quality plan. (3) The proposed project will not violate any air quality standard or contribute substantially to an existing or projected violation.
(4) The proposed project will have no increase of any criteria pollutant effect on Urban Area General Plan air quality and greenhouse gas policies. #29..
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(5) The proposed project will have no effect on sensitive receptors. (6) The proposed project will not result in the creation of objectionable odors. (7) The proposed project will not generate greenhouse gas emissions above what is assumed in the adopted Master EIR.
(8) The proposed project will not conflict with a plan, policy or regulation adopted for the purpose of reducing the emission of greenhouse gasses.
3. GENERATION OF NOISE AND VIBRATION
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable noise and vibration impacts expected after application of mitigating policies.
Direct Impacts
Effect: Future automobile traffic noise levels and roadway construction and maintenance activities resulting from development consistent with the Urban Area General Plan will exceed the City’s noise thresholds at various locations, but particularly in areas adjacent to heavily traveled roadways (see Master EIR Table V-3-9, pages V-3-28 through V-3-31.
Effect: New noise-generating land uses could produce noise levels that would exceed the City’s noise thresholds of acceptability at sensitive receptors in the vicinity.
Effect: Construction noise would cause a temporary or periodic increase in noise exposure above ambient noise levels.
Effect: Demolition and construction activities may expose people to excessive vibration levels.
Cumulative Impacts
Effect: Traffic from development in the City of Modesto would, when combined with traffic from new development in the County and other cities, contribute to a cumulative increase in roadside noise levels on major roads and highways throughout Stanislaus County. b. Urban Area General Plan Mitigating Policies Applied to the Project Noise policies that are pertinent to the project being analyzed in this Initial Study are found on pages V-3-18 through V-3-24 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” #29..
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Discussion:
The appropriate policies to be applied to this project include none from the Master EIR.
No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level.
c. Project-Specific Effects
Section V-3.B of the Master EIR discloses noise impacts resulting from development of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project -specific effect not analyzed in the Master EIR.
Significance Criteria: Determination of the proposed project’s effects are based on the following thresholds. Project-specific effects will be less than significant unless:
3. NOISE AND VIBRATION
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent with Urban
Area General Plan noise and vibration policies and
standards.
2) The proposed project would generate excessive
ground-borne noise and/or vibration levels.
3) The proposed project would result in a
permanent increase of 3 dBA where any other noise
threshold or standard would be exceeded, and/or 5
dBA where noise levels would otherwise fall within
acceptable limits, in ambient noise levels in the
project vicinity above levels existing without the
project.
4) The proposed project would result in a
substantial temporary or periodic increase in
ambient noise levels existing without the project.
5) For a project located within an airport land use
plan, or where such a plan has not been adopted,
within two (2) miles of a public airport or public use
airport, the proposed project would result in
exposure of people residing or working in the
project area to excessive noise levels.
6) For a project within the vicinity of a private
airstrip, the proposed project would expose people
residing or working in the project area to excessive
noise levels.
7) For new residential development within 200 feet
of active rail lines, the proposed project would
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3. NOISE AND VIBRATION
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
result in noise levels generated during train passbys
that exceed 50 dBA Lmax inside bedrooms or 55 dBA
Lmax inside other occupied areas.
Discussion:
(1) The proposed project will have no effect on Urban Area General Plan noise and vibration policies.
(2) The proposed project will not generate excessive permanent noise or vibration levels. Construction of any new building will generate a temporary amount of noise and vibration. The Master EIR contains mitigation measures to minimize the impacts so that they are less than significant.
(3-4) The proposed project will not generate any noticeable increase in ambient noise levels above what is assumed in the adopted Master EIR. (5-6) The proposed project is not close to a public airport or private airstrip. (7) The proposed project is not within 200 feet of active rail lines.
4. EFFECTS ON AGRICULTURAL LANDS
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on agricultural lands expected after application of mitigating policies.
Direct Impacts
Effect: Development consistent with the Urban Area General Plan may convert up to approximately 10,500 acres of farmland in various categories in the Planned Urbanizing Area to urban uses.
Effect: Approximately 1,100 acres of urban development along a 350-foot wide 26-mile boundary between urban and agricultural uses could be affected by continued agricultural operations, including noise, dust, and chemical overspray or drift.
Cumulative Impacts
Effect: Growth within Modesto’s planning area would contribute considerably to the loss of agricultural land within Stanislaus County, accounting for the conversion of as much as approximately 10,500 acres of farmland in various categories in the Planned Urbanizing Area to 2040.
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b. Urban Area General Plan Mitigating Policies Pertinent to the Project Agricultural land-related mitigating policies pertinent to the proposed project are found on pages V-4-4 to and V-4-8 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate policies to be applied to this project include none from the Master EIR.
No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level.
c. Project-Specific Effects
Section V-4.B of the Master EIR discloses the impacts resulting from the implementation of the Urban Area General Plan on agricultural lands. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect(s) not previously analyzed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
4. EFFECTS ON AGRICULTURAL
RESOURCES Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project would be
inconsistent with the Urban Area
General Plan policies relating to
agricultural resources.
2) The proposed project would
convert areas of Prime Farmland,
Unique Farmland or Farmland of
Statewide Importance to nonagricultural uses, impair the agricultural productivity of prime
agricultural land, or result in
substantial pesticide overspray, dust,
or noise at urban uses.
3) The proposed project would conflict
with existing zoning for agricultural
use, or with a Williamson Act contract.
4) The proposed project would conflict
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4. EFFECTS ON AGRICULTURAL
RESOURCES Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
with existing zoning for, or cause
rezoning of, forest land or timberland.
5) The proposed project would result
in the loss of forest land or conversion
of forest land to non-forest use.
6) The proposed project would involve
other changes to the environment
that could result in conversion of
farmland or forest land.
Discussion:
(1) The proposed project will have no effect on Urban Area General Plan agricultural resources policies.
(2) The proposed project will not convert any farmland. The site is infill surrounded by urban development.
(3) The proposed project will have no effect on any agricultural use or Williamson Act contract.
(4-5) The proposed project will have no effect on any forest land or timberland. (6) The proposed project will have no effect on farmland or forest land.
5. INCREASED DEMAND FOR LONG-TERM WATER SUPPLIES
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on long-term water supplies expected after application of mitigating policies.
Direct Impacts
Effect: Implementation of the Urban Area General Plan could substantially deplete groundwater supply or interfere with recharge.
Effect: Implementation of the Urban Area General Plan could necessitate construction of new water treatment facilities, or expansion of existing facilities, the construction of which could cause significant environmental effects.
Effect: Implementation of the Urban Area General Plan could necessitate expansion of existing water supply entitlements.
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Cumulative Impacts
Effect: Groundwater withdrawals from both subbasins by the City, when combined with other users’ withdrawals, may result in overdrafting.
Effect: Cumulative impacts resulting from construction of new water treatment facilities, or expansion of existing facilities, could cause significant environmental effects. b. Urban Area General Plan Mitigating Policies Applied to the Project Water supply-related mitigating policies pertinent to the proposed project are found on pages V-5-11 through V-5-16 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate policies to be applied to this project include: none from the Master EIR.
No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level.
c. Project-Specific Effects
Section V-5.B of the Master EIR discloses impacts on long-term water supplies resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
5. EFFECTS RELATIVE TO
INCREASED DEMAND FOR LONG
TERM WATER SUPPLIES
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with the Urban Area
General Plan policies relating to water
supply.
2) The proposed project would
substantially deplete groundwater
supply, interfere with groundwater
recharge, result in water demand
exceeds the capacity for recharge or
that would contribute to overdraft of
the groundwater basins.
3) The proposed project would require
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5. EFFECTS RELATIVE TO
INCREASED DEMAND FOR LONG
TERM WATER SUPPLIES
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
or result in the construction of new
water treatment facilities or expansion
of existing facilities, the construction
of which could cause significant
environmental effects.
4) The proposed project would exceed
existing water supply entitlements or
require expansion of entitlements.
Discussion:
(1) The proposed project will have no effect on the water supply policies. (2) The proposed project will have no effect on groundwater supply above what is assumed in the adopted Master EIR.
(3-4) The proposed project will have no effect on water demand above what is assumed in the adopted Master EIR.
6. INCREASED DEMAND FOR SANITARY SEWER SERVICES
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on sanitary sewer services after application of mitigating policies.
Direct Impacts
Effect: Development resulting from implementation of the Urban Area General Plan may result in exceedance of wastewater treatment requirements of the Central Valley RWQCB.
Effect: Development resulting from implementation of the Urban Area General Plan may require or result in construction of new wastewater facilities, or the expansion of existing facilities, that could cause significant effects.
Effect: Development resulting from implementation of the Urban Area General Plan may result in a finding that the wastewater treatment facilities do not have adequate capacity to serve the projected demand in addition to the provider’s existing commitments.
Cumulative Impacts
Effect: Development resulting from implementation of the Urban Area General Plan may result in cumulative effects similar to those described under “direct Impacts,” above. #29..
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b. Urban Area General Plan Mitigating Policies Applied to the Project Sewer service-related mitigating policies that are relevant to the proposed project are found on pages V-6-3 through V-6-7 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-6.B of the Master EIR discloses impacts on the Increased Demand for Sanitary Sewer Service resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
6. INCREASED DEMAND FOR
SANITARY SEWER SERVICES Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with wastewater policies
in the Urban Area General Plan, or
would exceed wastewater treatment
requirements of the Central Valley
RWQCB.
2) The proposed project would require
or result in the construction of new
wastewater facilities or the expansion
of existing facilities, beyond those
identified improvements needed to
serve the proposed project, which
would cause significant effects.
3) The proposed project would result
in a finding that the wastewater
treatment facilities do not have
adequate capacity to serve the
proposed project’s projected demand
in addition to the provider’s existing
commitments.
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Discussion:
(1) The proposed project will have no effect on the wastewater policies. (2) The proposed project will have no effect on sewage flows and no effect on wastewater facilities above what is assumed in the adopted Master EIR. (3) The proposed project will have no effect on wastewater capacity above what is assumed in the adopted Master EIR.
7. LOSS OF SENSITIVE WILDLIFE AND PLANT HABITAT
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on sensitive wildlife and plant habitat expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant impacts on sensitive wildlife and plan habitat are expected to occur with the application of the policies contained in the Urban Area General Plan.
Cumulative Impacts
Effect: Implementation of the Urban Area General Plan will contribute to the cumulative impact of habitat loss in the San Joaquin Valley. Requiring increased density / intensity for new development than has occurred in the past, or that is expected in the future, would minimize the City’s contribution to the cumulative loss of habitat. Nonetheless, this is a significant and unavoidable impact.
b. Urban Area General Plan Mitigating Policies Applied to the Project Wildlife and plant habitat-related mitigating policies that are pertinent to the proposed project are found on pages V-7-18 through V-7-25 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The applicable mitigating policies to be applied to this project include none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-7.B of the Master EIR discloses impacts on the Loss of Sensitive Wildlife and Plant Habitat resulting from implementation of the Urban Area General Plan. The following #29..
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is an analysis of whether the proposed project would result in a new, significant, projectspecific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
7. LOSS OF PLANT AND WILDLIFE HABITAT
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent with the
Urban Area General Plan policies related to loss of
sensitive plant and wildlife habitat.
2) The proposed project would have a substantial
adverse effect, either directly or through habitat
modifications, on any species identified as a
candidate, sensitive or special-status species in local or regional plans, policies or regulations, or by the
California Department of Fish and Game or U.S. Fish
and Wildlife service.
3) The proposed project would have a substantial
adverse effect on any riparian habitat or other
sensitive natural community identified in local or
regional plans, policies or regulations, or by the
California Department of Fish and Game or U.S. Fish
and Wildlife service.
4) The proposed project would have a substantial
adverse effect on federally-protected wetlands as
defined by Section 404 of the Clean Water Act
(including, but not limited to, marshes, vernal pools,
coastal wetlands, etc.) through direct removal,
filling, hydrological interruption or other means.
5) The proposed project would interfere
substantially with the movement of any native
resident or migratory fish or wildlife species or with
established native resident or migratory wildlife
corridors, or impede the use of native wildlife
nursery sites.
6) The proposed project would conflict with any
local policies or ordinances protecting biological
resources, such as a tree preservation policy or
ordinance.
7) The proposed project would conflict with the
provisions of an adopted habitat conservation plan,
natural community conservation plan, or other
approved local, regional, or state habitat
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7. LOSS OF PLANT AND WILDLIFE HABITAT
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
conservation plan.
Discussion:
(1) The proposed project will have no effect on wildlife and plant habitat policies. (2) The proposed project will have no effect on a candidate, sensitive, or special status species in local or regional plans.
(3) The proposed project will have no effect on riparian habitat or other sensitive natural community identified in local or regional plans. (4) The proposed project will have no effect on wetlands. No wetlands exist on or near the site.
(5) The proposed project will have no effect on native resident or migratory fish or wildlife species.
(6) The proposed project will have no effect on local policies or ordinances protecting biological resources.
(7) The proposed project will have no effect on local, regional, or state habitat conservation plan.
8. DISTURBANCE OF ARCHAEOLOGICAL / HISTORICAL SITES
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on archaeological / historical sites expected after application of mitigating policies.
Direct Impacts
Effect: Modification resulting in a substantial adverse change in the significance of a historically relevant resource, or the demolition of a listed or eligible historically relevant resource.
Cumulative Impacts
Effect: No additional cumulative impacts were disclosed in the Master EIR. The Direct impact described above could also result in a significant cumulative impact. b. Urban Area General Plan Mitigating Policies Applied to the Project #29..
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Archaeological or historic resource-related mitigating policies that are pertinent to the project being analyzed in this Initial Study are found on page V-8-16 through V-8-25 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.”
Discussion:
The applicable mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-8.B of the Master EIR discloses impacts on archaeological / historical resources resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in any new, significant, projectspecific effect(s) not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
8. ARCHAEOLOGICAL / HISTORICAL SITES
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent with the
Urban Area General Plan archaeological / historical
resource policies.
2) The proposed project would result in a
modification that would result in a substantial
adverse change in the significance of the resource
or demolition of a listed or eligible historic resource. 3) The proposed project would have an adverse
effect on any structure more than 50 years old that
has been determined to have historical significance
per policy AH-8 as shown in the Master EIR.
4) The proposed project would involve the removal
of known significant resources.
5) The proposed project would result in an adverse
impact to undiscovered archaeological and/or
paleontological resources.
6) The proposed project would cause a substantial
adverse change to a tribal cultural resource, as
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8. ARCHAEOLOGICAL / HISTORICAL SITES
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
defined by State law, that is listed (or is eligible for listing) in the California Register of Historical
Resources (or a local register of historical
resources), or that otherwise has potential
significance to a California Native American Tribe,
including human remains.
Discussion:
(1) The proposed project will have no effect on archaeological/historical resource policies.
(2) The proposed project will have no effect on historical buildings or landmarks.
There are no historical buildings or landmarks that exist on or near this site. (3) The proposed project will have no effect on existing structures that are more than 50 years old that are determined to have historical significance. (4) The proposed project will have no effect on known significant resources. (5) The proposed project will have no effect on cultural resources. (6) The proposed project will have no effect on tribal cultural resources.
9. INCREASED DEMAND FOR STORM DRAINAGE
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on storm drainage expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: Existing drainage inadequacies, combined with the associated increase in impervious surface areas created by pavement and structures, have the potential to increase the rate or amount of runoff in a manner that could result in flooding in the urban area. Cumulative hydrologic impacts of storm water flows from Modesto’s urban areas and other areas of the County could occur due to the fixed capacity of MID and TID irrigation canals to convey drainage west to the San Joaquin River. If drainage channels in some areas prove insufficient to handle the increased drainage discharges, existing storm water runoff from urban and agricultural areas during large storm events would #29..
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have to be interrupted until water levels receded to a point allowing the resumption of discharges to the channel. Ceasing discharges to drainage channels could cause inundation in and around the drainage conveyance pipeline systems, surface drainage channels, detention basins, and other urban areas. This cumulative impact is considered significant and unavoidable.
b. Urban Area General Plan Mitigating Policies Applied to the Project Storm Drainage-related mitigating policies that are pertinent to the project being analyzed in this Initial Study are found on pages V-9-4 through V-9-8. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-9.B of the MASTER EIR discloses impacts on the demand for storm drainage resulting from development of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
9. INCREASED DEMAND FOR
STORM DRAINAGE Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with the Urban Area
General Plan storm drainage policies.
2) The proposed project would
substantially increase the rate or
amount of surface runoff in a manner
that would result in on- or off-site
flooding.
3) The proposed project would create
or contribute runoff water that would
exceed the capacity of existing or
planned storm drainage systems or
provide substantial additional sources
of polluted runoff.
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Discussion:
(1) The proposed project will have no effect on storm drainage policies. (2-3) The proposed project will have no effect on surface runoff above what is assumed in the adopted Master EIR.
10. FLOODING AND WATER QUALITY
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on flooding and water quality expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Flooding and Water Quality-related mitigating policies that are pertinent to the project being analyzed in this Initial Study are found on pages V-10-7 through V-10-10 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.”
Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-10.B of the Master EIR provides analysis of Flooding and Water Quality impacts of development of the General Plan, the following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not previously analyzed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
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10. FLOODING AND WATER QUALITY
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent with the
flooding and water quality policies in the Urban
Area General Plan.
2) The proposed project would place housing within
a 100-year flood hazard area.
3) The proposed project would place structures
within a 100-year floodplain as defined by FEMA.
4) The proposed project would expose people or
structures to a significant risk of loss, injury or
death including flooding as a result of the failure of
a levee or dam.
5) The proposed project would substantially alter
the existing drainage pattern of the site or area or
the course of a stream or river that would result in
flooding onsite or offsite.
6) The proposed project would violate water quality
standards, including groundwater standards
administered by the SWRCB’s DDW, standards for
surface water quality such as the NPDES or waste
discharge requirements.
7) The proposed project would substantially alter
the existing drainage pattern of the site or area or
the course of a stream or river in a manner that
would result in substantial erosion or siltation onsite or offsite.
8) The proposed project would create or contribute
runoff water that would provide substantial
additional sources of polluted runoff or substantially
increase the rate or amount of surface runoff in a
manner that would result in flooding onsite or
offsite.
Discussion:
(1) The proposed project will have no effect on flooding and water quality policies. (2) The proposed project will not result in more housing within a 100-year flood hazard zone.
(3) The proposed project will not be in the 100-year floodplain. #29..
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(4) The proposed project will not expose people to flooding. (5) The proposed project will not alter existing drainage patterns of the site that would result in flooding onsite or offsite.
(6) The proposed project will have no effect on water quality standards or waste discharge requirements.
(7) The proposed project will have no effect on existing drainage pattern of the site or area or a watercourse in a manner that would result in substantial erosion or siltation.
(8) The proposed project will have negligible contribution to water runoff above what is assumed in the adopted Master EIR.
11. INCREASED DEMAND FOR PARKS AND OPEN SPACE
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on parks and open space expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Parks and open space-related mitigating policies that are pertinent to the proposed project are found on pages V-11-2 through V-11-8 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-11.B of the MASTER EIR discloses impacts of the Urban Area General Plan on parks and open space. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR. #29..
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Significance Criteria: Determination of project effects will be based on the following thresholds. Project-specific effects will be less than significant unless:
11. INCREASED DEMAND FOR
PARKS AND OPEN SPACE Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with the Urban Area
General Plan parks and open space
policies.
2) The proposed project would
eliminate parks or open space.
3) The proposed project would not
provide at least three (3) total acres
of parkland and open space per 1,000
people (one acre for neighborhood
park facilities; two acres for
community park facilities).
Discussion:
(1) The proposed project will have no effect on parks and open space policies. (2) The proposed project will have no effect on parks and open space above what is assumed in the adopted Master EIR.
(3) The proposed project will have no effect on parks and open space needs above what is assumed in the adopted Master EIR.
12. INCREASED DEMAND FOR SCHOOLS
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on school facilities expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR. By statute, the impact of new students is considered to be mitigated below a level of significance by payment of school impact fees and the exercise of any or all of the financing options set out in Government Code Section 65997.
Cumulative Impacts
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Effect: Similar to direct impacts resulting from implementation of the Urban Area General Plan, no residual significant direct impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Mitigation relies upon the implementation of the policies in place under the Modesto Urban Area General Plan. As long these policies are applied to all subsequent projects, no new mitigation is necessary. Further, payment of school impact fees and compliance with SB 50 is statutorily deemed to be full mitigation of school impacts (Government Code Section 65995).
Schools-related mitigating policies that are relevant to the proposed project can be found on pages V-12-3 through V-12-5 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-12.B of the Master EIR discloses impacts resulting from implementation of the Urban Area General Plan associated with increased demand for schools. The following is an analysis of whether the proposed project would result in a new, significant, projectspecific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
12. INCREASED DEMAND FOR
SCHOOLS Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with Urban Area General
Plan school policies.
2) The proposed project would result
in new student population that
exceeds the school system capacity,
or if the project conflicts with
established educational uses of the
area, except to the limits established
under SB50 / Proposition 1A as
subsequently amended.
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Discussion:
(1) The proposed project will have no effect on school policies. (2) The proposed project will have no effect on SB 50/Proposition 1A funding provisions.
13. INCREASED DEMAND FOR POLICE SERVICES
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on police services expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Police services-related mitigating policies that are pertinent to the proposed project are found on pages V-13-2 through V-13-5 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigation to be applied to this project includes none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level.
c. Project-Specific Effects
Section V-13.B of the Master EIR discloses impacts on police services resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
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13. INCREASED DEMAND FOR
POLICE SERVICES Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with Urban Area General
Plan policies relating to police service.
2) The proposed project would result
in development occurring in an
area(s) that cannot be adequately
served by existing or budgeted police
personnel and facilities.
Discussion:
(1) The proposed project will have no effect on police policies. (2) The proposed project will not result in the need for more police personnel and facilities.
14. INCREASED DEMAND FOR FIRE SERVICES
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on fire services expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Fire Services-related mitigating policies pertinent to the project being analyzed in this Initial Study are found on pages V-14-3 through V-14-5 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. #29..
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c. Project-Specific Effects
Section V-14.B of the Master EIR discloses impacts on fire services resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
14. INCREASED DEMAND FOR
FIRE SERVICES Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with Urban Area General
Plan policies relating to fire service.
2) The proposed project would result
in any substantial adverse impact(s)
associated with the need for – and/or
provision of – new or physically
altered fire service facilities, the
construction of which could cause
significant environmental impacts, in
order to maintain acceptable response
times.
Discussion:
(1) The proposed project will have no effect on fire service policies. (2) The proposed project will not result in the need for more fire service facilities.
15. GENERATION OF SOLID WASTE
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts on solid waste expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
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Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Solid waste-related mitigating policies that are pertinent to the proposed project are found on pages V-15-4 through V-15-5 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-15.B of the Master EIR discloses solid waste impacts resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. Project-specific effects will be less than significant unless:
15. GENERATION OF SOLID
WASTE Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The project is inconsistent with the
solid waste policies in the Urban Area
General Plan.
2) The project would result in solid
waste generation that exceeds the
projected capacity of existing landfills
and waste-reduction facilities, or if it
would result in non-compliance with
any federal, state or local statutes or
regulations related to solid waste.
Discussion:
(1) The proposed project will have no effect on solid waste policies. (2) The proposed project will have no effect on landfills or solid waste-reduction facilities above what is assumed in the adopted Master EIR. #29..
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16. GENERATION OF HAZARDOUS MATERIALS
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts regarding hazardous materials expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Hazardous materials-related mitigating policies that are pertinent to the proposed project are found on pages V-16-5 through V-16-10 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-16.B of the Master EIR discloses impacts on hazardous materials resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
16. HAZARDS AND HAZARDOUS MATERIALS
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent with the
Urban Area General Plan hazards and hazardous
materials policies.
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16. HAZARDS AND HAZARDOUS MATERIALS
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
2) The proposed project would create a significant
hazard to the public or the environment through the
routine transport, use or disposal of hazardous
materials, or through reasonably foreseeable upset
and accident conditions involving the release of
hazardous materials into the environment.
3) The proposed project would result in hazardous
materials emissions or handle hazardous materials,
substances, or waste within one-quarter mile of an
existing or proposed school.
4) The proposed project would be located on a site
that is included on a list of hazardous materials sites compiled pursuant to Government Code Section
65962.5 and, as a result, would create a significant
hazard to the public or environment.
5) For a project located within an airport land use
plan or, where such a plan has not been adopted,
within two (2) miles of a public airport or public use
airport, would result in a safety hazard for people
residing or working in the project area.
6) For a project within the vicinity of a private
airstrip, a safety hazard would result for people
residing or working in the project area.
7) The proposed project would impair
implementation of or physically interfere with an
adopted emergency response plan or emergency
evacuation plan.
8) The proposed project would expose people or
structures to a significant risk of loss, injury or
death involving wildland fires, including where
wildlands are adjacent to urbanized areas or where
residences are intermixed with wildlands.
Discussion:
(1) The proposed project will have no effect on hazardous materials policies (2) The proposed project will not involve hazardous materials. (3) The proposed project will not result in emitting hazardous emissions or handling hazardous materials.
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(4) The proposed project will not be located on a hazardous materials site. (5-6) The project site is not within two miles of any airport. (7) The proposed project will not interfere with an emergency response plan or evacuation plan.
(8) The proposed project will not expose people to wildland fires. The project site and surround area is already developed with urban uses.
17. GEOLOGY, SOILS, AND MINERAL RESOURCES
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts related to geology, soils, and mineral resources expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project Geology, soils, and mineral resource-related mitigating policies that are pertinent to the proposed project are found on pages V-17-7 through V-17-10 of the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.”
Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-17.B of the Master EIR discloses geology, soils, and mineral resource impacts resulting from implementation of the Urban Area General Plan. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. Project-specific effects will be less than significant unless:
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17. GEOLOGY, SOILS, AND
MINERAL RESOURCES Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The project is inconsistent with
policies relating to geology, soils, and
mineral resources contained in the
Urban Area General Plan.
2) The proposed project would expose
people or structures to potential
substantial adverse effects including:
the risk of loss, injury, or death
involving fault rupture, strong seismic
activity; location on an expansive soil;
loss of topsoil; or, result in the loss of
availability of known mineral
resources that would be of value to
the region and the state.
Discussion:
(1) The proposed project will have no effect on geology, soils, and mineral resources policies.
(2) The proposed project will not result in exposing people or structure to seismic activities, location on expansive soils, or loss of mineral resources above what is assumed in the adopted Master EIR.
18. ENERGY
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts pertaining to energy expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project #29..
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The following energy-related mitigating policies that are pertinent to the proposed project are found on pages V-18-2 and V-18-3 in the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-18.B of the Master EIR discloses impacts of implementing the Urban Area General Plan on energy resources. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
18. ENERGY
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is
inconsistent with policies relating to
energy in the Urban Area General
Plan.
2) The proposed project would result
in energy consumption during
construction, operation, maintenance,
or removal that is more wasteful,
inefficient, and unnecessary than
assumed in the Urban Area General
Plan.
Discussion:
(1) The proposed project will have no effect on energy policies. (2) The proposed project will not result in wasteful energy consumption during future construction activities above what is assumed in the adopted Master EIR.
19. EFFECTS ON VISUAL RESOURCES
a. Significant Effects Identified in the Master EIR
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The Master EIR discloses the following residual significant and unavoidable impacts on visual resources expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR.
Cumulative Impacts
Effect: No additional cumulative impacts were disclosed in the Master EIR. b. Urban Area General Plan Mitigating Policies Applied to the Project The following visual resources-related mitigating policies pertinent to the proposed project are found on pages V-19-2 and V-19-3 in the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-18.B of the Master EIR discloses impacts of implementing the Urban Area General Plan on visual resources. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
19. VISUAL RESOURCES
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent with the
Urban Area General Plan visual resource policies.
2) The proposed project would have a substantial
adverse effect on a scenic vista.
3) The proposed project would substantially
damage scenic resources, including trees, rock
outcrops, and/or historic buildings along a state
scenic highway.
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19. VISUAL RESOURCES
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
4) The proposed project would substantially
degrade the existing visual character or quality of
the site and its surroundings.
5) The proposed project would create a new source
of substantial light or glare that would adversely
affect daytime or nighttime views.
6) The proposed project would substantially
degrade views from riverside areas and parks.
7) The proposed project would substantially
degrade views of riverside areas from public
roadways and/or nearby properties.
Discussion:
(1) The proposed project is consistent with the Urban Area General Plan visual resource policies.
(2) The proposed project will not have an adverse effect on a scenic vista. (3) The proposed project will not damage scenic resources. (4) The proposed project will not degrade the visual character of its surroundings above what is assumed in the adopted Master EIR.
(5) The proposed project will not create light or glare that would affect views. (6) The proposed project will have no effect on views from riverside areas and parks. (7) The proposed project will have no effect on views of riverside areas from public roadways and nearby properties.
20. LAND USE AND PLANNING
a. Significant Effects Identified in the Master EIR
The Master EIR discloses the following residual significant and unavoidable impacts pertaining to land use and planning expected after application of mitigating policies.
Direct Impacts
Effect: No residual significant direct impacts were disclosed in the Master EIR. #29..
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Cumulative Impacts
Effect: No residual significant cumulative impacts were disclosed in the Master EIR. b. Master EIR and/or New Mitigation Measures Applied to the Project The following land use and planning-related mitigating policies pertinent to the proposed project are found on pages V-20-5 through V-20-12 in the Master EIR. All mitigating policies appropriate to the project will be incorporated into or made conditions of approval of this project and are listed in Section V, “Mitigating Policies Applied to Project.” Discussion:
The appropriate mitigating policies to be applied to this project include: none from the Master EIR. No new or additional mitigation measures or alternatives are required to reduce project impacts to a less-than-significant level. c. Project-Specific Effects
Section V-20.B of the Master EIR discloses impacts of implementing the Urban Area General Plan on land use and planning. The following is an analysis of whether the proposed project would result in a new, significant, project-specific effect not disclosed in the Master EIR.
Significance Criteria: Determination of project effects will be based on the following thresholds. The project-specific effects will be less than significant unless:
20. LAND USE AND PLANNING
Potentially
Significant
Impact
Less Than
Significant
w/Mitigating
Policies
Less Than
Significant
Impact
No
Impact
1) The proposed project is inconsistent the Urban
Area General Plan land use and planning policies.
2) The proposed project contains elements that
would physically divide an established community in
a way not assumed in the Urban Area General Plan.
3) The proposed project conflicts with a land use
plan, policy or regulation established for the
purpose of avoiding or mitigating an environmental
impact by an agency that has jurisdiction over the
proposed project.
4) The proposed project conflicts with an applicable
habitat conservation plan or natural community
conservation plan.
Discussion:
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(1) The proposed project will be consistent with land use and planning policies. (2) The proposed project will not result in the physical division of an established community.
(3) The proposed project will have no effect on a land use plan, policy or regulation established for the purpose of avoiding or mitigating an environmental impact. (4) The proposed project will have no effect on applicable habitat conservation plan or natural community conservation plan.
V. APPLICABLE URBAN AREA GENERAL PLAN MITIGATING POLICIES If the Initial Study results in the determination that a Finding of Conformance can be adopted for the proposed project, then Section A, below, applies. If the Initial Study results in the determination that a Finding of Conformance cannot be adopted and a Mitigated Negative Declaration or Focused EIR must be prepared for the project, then Section B, below, applies.
A. Urban Area General Plan Mitigating Policies Applied to the Project Pursuant to Public Resources Code Section 21157.1(c), in order for a Finding of Conformance to be made, all appropriate mitigating policies from the Master EIR shall be incorporated into the proposed project. Urban Area General Plan Policies that mitigate impacts shall be made part of the proposed project prior to approval by means of conditions of project approval or incorporation into the appropriate document or plan. All applicable and appropriate mitigating policies have been applied to the project (listed below).
B. New or Additional Mitigation Measures or Alternatives Required Where the project’s effects would exceed the significance criteria for each environmental impact category, a mitigated negative declaration or Focused EIR must be prepared. Staff has reviewed the project against the significance criteria thresholds established in the Master EIR for all impact categories in this Initial Study.
A Mitigated Negative Declaration or Focused EIR shall be prepared for the project. The following additional project-specific mitigation measures listed below are necessary to reduce the identified new significant effect:
Traffic and Circulation:
N/A
Air Quality and Greenhouse Gases:
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AQ-100. Reduce particulate emissions from construction, grading, excavation, and demolition to the maximum extent feasible in accordance with the requirements of SJVAPCD Regulation VIII. Regulation VIII was adopted to reduce the amount of particulate matter suspended in the atmosphere as a result of emissions generated from anthropogenic (man-made) fugitive dust sources. (Policy VII.H.2.jj) AQ-101. Require all access roads, driveways, and parking areas serving new commercial and industrial development to be constructed with materials that minimize particulate emissions in accordance with the requirements of SJVAPCD Regulation VIII and are appropriate to the scale and intensity of use. (Policy VII.H.2.kk) AQ-102. Reduce PM10 emissions from City–maintained roads to the maximum extent feasible. (Policy VII.H.2.ll)
AQ-103. Effectively stabilize dust emissions using water, chemical stabilizer / suppressant, cover with a tarp or other suitable cover or vegetative ground cover, all disturbed areas, including storage piles, which are not being actively utilized for construction purposes. (Policy VII.H.2.mm)
AQ-104. Effectively stabilize dust emissions using water or chemical stabilizer / suppressant, all onsite unpaved roads and off-site unpaved access roads. (Policy VII.H.2.nn)
AQ-105. Effectively control fugitive dust emissions utilizing application of water or by presoaking all land clearing, grubbing, scraping, excavation, land leveling, grading, cut & fill, and demolition activities. (Policy VII.H.2.oo)
AQ-106. Wet all exterior surfaces of buildings that are more than six stories tall during demolition. (Policy VII.H.2.pp)
AQ-107. When materials are transported off site, cover all materials, or effectively wet them to limit visible dust emissions, and maintain at least six inches of freeboard from top of container. (Policy VII.H.2.qq)
AQ-108. Limit operations or expeditiously remove the accumulation of mud or dirt from adjacent public streets at the end of each workday (the use of dry rotary brushes is expressly prohibited except where preceded or accompanied by sufficient wetting to limit the visible dust emissions.) (Use of blower devices is expressly forbidden.) (Policy VII.H.2.rr)
AQ-109. Following the addition of materials to, or the removal of materials from, the surface of outdoor storage piles, effectively stabilize said piles for fugitive dust emissions utilizing sufficient water or chemical stabilizer / suppressant. (Policy VII.H.2.ss) AQ-110. Within urban areas, immediately remove trackout when it extends 50 or more feet from the site and at the end of each workday. (Policy VII.H.2.tt) AQ-111. Prevent carryout and trackout for any site with 150 or more vehicle trips per day. (Policy VII.H.2.uu)
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AQ-112. Limit traffic speeds on unpaved roads to 15 mph. (Policy VII.H.2.vv) AQ-113. Install sandbags or other erosion control measures to prevent silt runoff to public roadways from sites with a slope greater than one percent (1%). (Policy VII.H.2.ww)
AQ-114. Install wheel washers for all exiting trucks, or wash all trucks and equipment leaving the site. (Policy VII.H.2.xx)
AQ-115. Install wind breaks at windward side(s) of construction areas. (Policy VII.H.2.yy)
AQ-116. Suspend excavation and grading activity when winds exceed 20 mph (regardless of windspeed, an owner/operator must comply with Regulation VIII’s 20 percent opacity limit). (Policy VII.H.2.zz)
AQ-117. Limit the area subject to excavation, grading, and other construction activity at any one time. (Policy VII.H.2.aaa)
Generation of Noise and Vibration:
Noise-4 Implement noise-reducing construction practices as conditions of approval where substantial construction-related noise impacts would be likely to occur, such as with extended periods of pile driving, or where construction is expected to continue or where sensitive receptors would be affected by construction noise. Conditions of approval may include, but are not limited to:
◦ Require construction equipment, including air compressors and pneumatic equipment to have properly maintained mufflers;
◦ Require impact tools to be equipped with shrouds or shields; ◦ Require that the quietest equipment available be used; and, ◦ Require selection of haul routes that affect the fewest number of people. (UAGP Policy VII-G.3.b)
Effects on Agricultural Lands:
N/A
Increased Demand for Long-Term Water Supplies:
N/A
Increased Demand for Sanitary Sewer Services:
N/A
Loss of Sensitive Wildlife and Plant Habitat:
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N/A
Disturbance of Archaeological/Historic Sites:
AH-14: For any project that involves earth-disturbing activities within the archaeological resource study area (defined as the Riparian and Vernal Pool Locations shown on MEIR Figure V-7-1), or on a site determined to be archaeologically or culturally sensitive by City staff through consultation with Native American tribes or bands and a qualified archaeologist, require the project applicant to implement the following mitigation measures, at a minimum:
(1) Where excavation or construction would occur outside of areas where development has occurred, or where excavation / construction would occur at depths greater than existing foundations, roads, and/or trenches in the immediate vicinity, evaluate the site via a qualified archaeologist retained by the project applicant.
Said evaluation would include at minimum a records search, a Phase I pedestrian survey, and preparation of an archaeological report containing the results of this cultural resources inventory identification effort for submittal to the Central California Information Center. If a Phase II archaeological evaluation is recommended, complete a report of the survey and any excavations with recommendations prior to project approval;
(2) In the event of the discovery of a burial, human bone, or suspected human bone, immediately halt all excavation or grading in the vicinity of the find and protect the area of the find. The project applicant shall immediately notify the Modesto Police Department and County Coroner of the find and comply with the provisions of California Health and Safety Code Section 7050.5, including California Public Resources Code Section 5097.98, if applicable. If human remains are identified, also retain a Native American monitor at the applicant’s expense; (3) A qualified archaeological monitor will be present and will have the authority to stop and redirect grading activities, in consultation with the Native Americans and their designated monitors, to evaluate the significance of any Native American archaeological resources discovered on the property; and, (4) Relinquish ownership of all Native American human remains and/or artifacts that are found within the project area, to the appropriate Native American Most Likely Descendent (MLD), as assigned by the Native American Heritage Commission, for proper treatment and disposition. The MLD will decide whether or not standard archaeological analysis will be allowed on human remains and associated artifacts from burials.
(5) If paleontological resources are discovered during earth-moving activities, the construction crew shall immediately cease work in the vicinity of the find, and the City’s Planning Manager shall be notified. A qualified paleontologist shall evaluate the resource to determine if it is significant. If the resource is significant, prepare a proposed mitigation plan in accordance with Society of Vertebrate Paleontology #29..
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guidelines. The proposed mitigation plan may include a field survey of additional construction areas, sampling and data recovery procedures, museum storage coordination for any specimen recovered, and a report of findings.
Recommendations determined by the lead agency to be necessary and feasible shall be implemented before construction activities can resume at the site where the paleontological resources were discovered. (UAGP Policy VII.F.2[k]) AH-15: Whenever possible, avoid disturbing or damaging archaeological resources.
Preservation in place to maintain the relationship between the artifacts and the archaeological context is the preferred manner of mitigating impacts to archaeological sites. Preservation may be accomplished by:
(1) Planning construction to avoid archaeological sites; (2) Incorporating sites within parks, green space, or other open space; (3) Covering the sites with a layer of chemically stable soil; and/or, (4) Deeding the site into a permanent conservation easement.
When in-place mitigation is not feasible, data recovery through excavation may be necessary. A data recovery plan, which makes provisions for adequately recovering the scientifically consequential information about the site, shall be prepared and adopted prior to any excavation being undertaken. Such studies must be deposited with the Central California Information Center in Turlock, California. Special rules apply to any archaeological sites known to contain human remains (Health and Safety Code Section 7050.5; Guidelines Section 15126.4(b)).
Data recovery shall not be required if the lead agency determines that testing or studies already completed have adequately recovered the necessary data, provided that the data have already been documented in another EIR and are available for review at the California Historical Resource Regional Information Center (Guidelines Section 15126.4(b)). (UAGP Policy VII.F.2[l])
AH-16: Allow reasonable time for the qualified archaeologist to notify the proper authorities for a more detailed inspection and examination of the exposed cultural resources. During this time, excavation and construction would not be allowed in the immediate vicinity of the find; however, those activities could continue in other areas of the project site. (UAGP Policy VII.F.2[m])
AH-17: If any find is determined to be significant by the qualified archaeologist, representatives of the construction contractor and the City, the qualified archaeologist, and a representative of the Native American community (if the discovery is an aboriginal burial) will meet to determine the appropriate course of action. (UAGP Policy VII.F.2[n]) AH-18: All cultural materials recovered as part of a monitoring program are subject to scientific analysis, professional museum curation, and a report prepared according to current professional standards. (UAGP Policy VII.F.2[o]) #29..
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Increased Demand for Storm Drainage:
N/A
Flooding and Water Quality:
N/A
Increased Demand for Parks and Open Space:
N/A
Increased Demand for Schools:
N/A
Increased Demand for Police Services:
N/A
Increased Demand for Fire Services:
N/A
Generation of Solid Waste:
N/A
Generation of Hazardous Materials:
N/A
Geology, Soils, and Mineral Resources:
N/A
Energy:
N/A
Effects on Visual Resources:
N/A
Land Use and Planning:
N/A
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 4, 2023
Date: March 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Amendment to Title 10 regarding accessory dwelling units and density bonus regulations for affordable housing
CONTACT: Diana Lowrance, Senior Planner, [email protected], 209-577-5302 DESCRIPTION:
Hearing to consider an Ordinance amending Section 10-4.102 of Title 10, Chapter 4 (Development Standards), Article 1 (Residential Zones); repealing Section 10-4.115 and Section 10-4.116 of Title 10, Chapter 4 (Development Standards), Article 1 (Residential Zones); adding Article 5 regarding Accessory Dwelling Units to Title 10, Chapter 4 (Development Standards); and repealing and replacing Chapter 8 of Title 10 regarding Density Bonus and Affordable Housing. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s (2020-2025) Strategic Plan, Goal C: Develop a Homeless and Housing Plan
BACKGROUND:
Accessory Dwelling Units
State Legislature has declared that State accessory dwelling unit (ADU) law is a matter of statewide concern. State ADU law applies to all cities, including charter cities such as the City of Modesto. As it pertains to ADUs, Modesto’s current zoning code is not in compliance with current State law. Therefore, it is necessary to update the city zoning code to be in compliance with State law and to facilitate staff’s review of ADU projects.
State laws governing accessory dwelling units have been amended by the legislature nearly every year since 2016. The most recent amendments to the accessory dwelling unit laws were:
Assembly Bill No. 345 (Chapter 343, Statues of 2021) effective on January 1, 2022; Assembly Bill No. 2221 (Chapter 650, Statues of 2022) effective on January 1, 2023; and Senate Bill No. 897 (Chapter 664, Statues of 2022) effective on January 1, 2023. #30..
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City Council, April 4, 2023
Amendment to Title 10 regarding accessory dwelling units and density bonus regulations for affordable housing
Density Bonus
A density bonus is a tool used to encourage the development of affordable housing. Density bonus law was originally enacted in 1979, to help address the affordable housing shortage by encouraging the development of more low and moderate-income housing units1.
In exchange for building and including affordable units in a proposed housing development, developers are allowed to build additional units beyond normal city zoning standards (increased density). Additionally, a developer may be given reductions (called “concessions and incentives”) in required development standards (e.g., reduced parking ratios, setbacks, etc.). The intent is to incentivize building affordable housing by reducing costs for developments that include density housing.
DISCUSSION:
This proposed amendment: amends section 10-4.102 of Article 1 (Residential Zones) of Chapter 4 (Development Standards); repeals Section 10-4.115 and Section 10-4.116 of Article 1 (Residential Zones) of Chapter 4 (Development Standards); adds a new article specific to accessory dwelling units in Chapter 4 (Development Standards), called Article 5 (Accessory Dwelling Units); and repeals and replaces Chapter 8 (Affordable Housing) in its entirety. These amendments are the first of several amendments that will be completed by staff to align the Zoning Code with recent changes in State laws.
The proposed amendments focus on recent updates to the State laws governing accessory dwelling units, which became effective January 1, 2023, and include:
Requirement that ADU applications must be reviewed ministerially. Added ADU review timeline: applications must be reviewed within 60 days, or they will be deemed approved by default. If an ADU application is denied, the applicant must be provided a list of defective items, and how they are to be remedied. Requirement that if an ADU permit application is received with an application for a new house, the application for the ADU may be delayed until the permit for the home is approved.
Updated allowed maximum heights for ADUs.
o Single-family:
16 feet; or
18 feet if within one-half mile of a major transit corridor; or 25 feet if attached to primary dwelling; and
An additional 2 feet is allowed to match roof pitch on primary dwelling. o Multifamily:
16 feet; or
18 feet if there is a multi-story multifamily dwelling on the lot; or 18 feet if within one-half mile of a major transit corridor. 1 Assembly Committee on Housing and Community Development, David Chiu, Chair, SB 728 Bill Analysis June 18, 2021.
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City Council, April 4, 2023
Amendment to Title 10 regarding accessory dwelling units and density bonus regulations for affordable housing
Updated parking requirements to reflect ADU parking exemption when on-street parking permits are required, but not offered to the ADU occupant. Updated regulations specific to Junior ADUs (JADUs):
o A JADU cannot exceed 500 square feet.
o A JADU may share a bathroom with the main home.
Additionally, staff proposes the following amendments which are focused on recent updates to the State laws governing Density Bonus. These updates became effective January 1, 2022.
Staff reviewed Chapter 8 (Affordable Housing) of Title 10 of the Municipal Code to ensure that it aligned with State Regulations. As several changes are required, staff recommends repealing and replacing Chapter 8 (Affordable Housing) in its entirety. Some of the updates to the chapter include:
Updated the term of affordability required for affordable units to fifty-five (55) years. Updated the provisions to specify the amount of a density bonus available (based on the income categories of the proposed affordable units and the percentage of affordable units to be included in a development); included tables for ease of use. Updated the number of incentives or concessions available to a developer, based on the percentage of total units set aside for specific income groups (i.e., lower income, very low income, etc.).
FISCAL IMPACT:
This code amendment was initiated by the City to bring the municipal code in alignment with State regulations. There is no fiscal impact beyond the one-time cost in staff time to prepare these amendments.
COMMITTEE RECOMMENDATION:
This item was considered by the Planning Commission on February 6, 2023, and the Commission recommended forwarding this item to Council for approval.
CEQA/NEPA REQUIREMENTS:
The proposed code amendment that addresses regulations for accessory dwelling units is Statutory Exempt from CEQA pursuant to CEQA Guidelines Section 15282 (h) of the State CEQA Guidelines that exempts the adoption of an ordinance regarding second units in a single-family or multi-family residential zone by a city or county to implement the provisions of Sections 65852.1 and 65852.2 of the Government Code.
Furthermore, the proposed code amendment that addresses state density bonus law is not a project that would have a significant effect on the environment, it is not subject to CEQA pursuant to Section 15061(b)(3) of the State CEQA Guidelines, the “commonsense exemption,” which reasons than CEQA applies only to projects, which have the potential for causing a significant effect on the environment.
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City Council, April 4, 2023
Amendment to Title 10 regarding accessory dwelling units and density bonus regulations for affordable housing
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Motion introducing and waiving the first reading of an Ordinance amending Section 10-4.102 of Title 10, Chapter 4 (Development Standards), Article 1 (Residential Zones); repealing Section 10-
4.115 and Section 10-4.116 of Title 10, Chapter 4 (Development Standards), Article 1 (Residential Zones); adding Article 5 regarding Accessory Dwelling Units to Title 10, Chapter 4 (Development Standards); and repealing and replacing Chapter 8 of Title 10 regarding Density Bonus and Affordable Housing.
Approved by:
Jessica Hill,
Interim Director Community and Economic
Development Department
Joseph P. Lopez, City Manager
Attachments:
1. Ordinance for Proposed Article 5 (Accessory Dwelling Units)
2. Redline Section 10-4.102
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ORDINANCE NO. -C.S.
AN ORDINANCE AMENDING SECTION 10-4.102 OF TITLE 10, CHAPTER 4 (DEVELOPMENT STANDARDS), ARTICLE 1 (RESIDENTIAL ZONES); REPEALING SECTION 10-4.115 AND SECTION 10-4.116 OF TITLE 10, CHAPTER 4 (DEVELOPMENT STANDARDS), ARTICLE 1 (RESIDENTIAL ZONES); ADDING ARTICLE 5 REGARDING ACCESSORY DWELLING UNITS TO TITLE 10, CHAPTER 4 (DEVELOPMENT STANDARDS); AND REPEALING AND REPLACING CHAPTER 8 OF TITLE 10 REGARDING DENSITY BONUS AND AFFORDABLE HOUSING WHEREAS, housing production in State of California has not kept pace with demand, resulting in the lack of housing and in particular lack of affordable housing; and WHEREAS, changes to state laws that became effective on January 1, 2022 and January 1, 2023 are intended to encourage the development of accessory dwelling units in areas zoned for single-family and multi-family uses to contribute to the affordable housing supply in the city; and
WHEREAS, changes to state Density Bonus laws that became effective on January 1, 2022 are intended to encourage the production of housing affordable to lower incomes; and WHEREAS, the changes to state laws are intended to off-set the cost of production for developers to contribute to the affordable housing supply in the city; and WHEREAS, this code amendment will update the City of Modesto’s Zoning Regulations consistent with state law regarding accessory dwelling units and with state law regarding the provision of density bonuses for affordable housing; and WHEREAS, this code amendment is necessary at this time as the city undertakes an update of both the General Plan and the Housing Element; and WHEREAS, a public hearing was held by the Planning Commission on February 6, 2023, in the Chambers, 1010 Tenth Street, Modesto, California at which hearing evidence both oral and documentary was received and considered; and
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WHEREAS, the proposed code amendment that addresses regulations for accessory dwelling units is Statutorily Exempt from CEQA pursuant to Section 15282 (h) of the State CEQA Guidelines that exempts the adoption of an ordinance regarding second units in a singlefamily or multi-family residential zone by a city or county to implement the provisions of Sections 65852.1 and 65852.2 of the Government Code; and WHEREAS, the proposed code amendment that addresses state density bonus law is not a project that would have a significant effect on the environment, therefore it is not subject to CEQA pursuant to Section 15061 (b)(3) of the State CEQA Guidelines, the “commonsense exemption,” which reasons that CEQA applies only to projects, which have the potential for causing a significant effect on the environment; and
WHEREAS, after a public hearing held on February 6, 2023, it was found and determined by the Planning Commission that the requested code amendment will not be detrimental to the public health, safety or welfare because providing more housing and especially affordable housing will benefit the community; and
WHEREAS, the requested code amendment will result in an orderly planned use of land because the amended regulations for accessory dwelling units will clarify where and how accessory dwelling units may be built; and
WHEREAS, the requested code amendment will result in an orderly planned use of land because the amended regulations will establish the regulations for density bonuses to encourage the production of housing for low-income persons and families; because it is in accordance with the community’s objectives as set forth in the General Plan and any applicable specific plan(s) because the proposed code amendment will encourage the provision of more affordable housing consistent with the goals of the Housing Element, a portion of the General Plan, and #30..
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WHEREAS it is in accordance with the community’s objectives as set forth in the General Plan and any applicable specific plan(s) because the proposed code amendment allows for the development of more accessory dwelling units consistent with the goals of the Housing Element, a portion of the General Plan; and
WHEREAS, by Resolution No. 2023-05 and Resolution No. 2023-06 adopted on February 6, 2023, the Planning Commission recommended to the Council that the proposed amendments to Title 10 of the Modesto Municipal Code including the amendment of Section 10- 4102, repeal of Section 10-4.115 and Section 10-4.116, the addition of a new Article 5 to the Modesto Municipal Code and the repealing and replacement of Chapter 8, be approved; and WHEREAS, this Code amendment was set for a public hearing on April 4, 2023, before the City Council, at which date and time said duly noticed public hearing of the Council was held for the purpose of receiving public comment on the proposed amendment of Section 10-4.102, repeal of Sections 10-4.115, and Section 10-4.116, the addition of Article 5 and the repealing and replacing of Chapter 8 to the Modesto Municipal Code; and WHEREAS, evidence, both written and oral, was duly presented and considered by the City Council at the aforesaid public hearing; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
WHEREAS, after a public hearing held on April 4, 2023, in the Tenth Street Place Chambers located at 1010 10th Street, Modesto, California, this Council finds and determines as follows:
1. The requested change will not be detrimental to the public health, safety, or welfare because providing more housing in compliance with building standards, especially affordable housing, will benefit the community. #30..
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2. The requested change will result in an orderly planned use of land because the amended regulations for accessory dwelling units will clarify where and how accessory dwelling units may be built.
3. The requested change is in accordance with the community’s objectives as set forth in the General Plan and any applicable specific plans because the proposed code amendments allow for the development of more accessory dwelling units consistent with the goals of the Housing Element, a portion of the General Plan.
NOW, THEREFORE, the Council of the City of Modesto does ordain as follows:
SECTION 1. AMENDMENT OF CODE. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 1, “Residential Zones,” Section 10-4.102, Table 4.1- 1 “Residential Development Standards, is hereby amended to read as follows:
Table 4.1-1 Residential Development Standards
Development Standards Zoning Districts
R-1 R-2 R-3
Notes
LOT REQUIREMENTS
Area(minimum in Sq Ft)
Interior Lot 5,000 6,000 6,000
Corner Lot 5,500 6,500 6,500
See Section 10-4.103
Density
Minimum - - -
Maximum - - -
See Section 10-4.104
Width(minimum in feet)
Interior Lot 50 60 60 See Section 10-4.105 a
Corner Lot 60 60 60 See Section 10-4.105 b
Flag Lot 20 20 20 See Section 10-4.105 c
Coverage(maximum in %)
Interior Lot 50 55 60
Corner Lot 55 60 65
See Section 10-2.141.
For accessory dwelling
units, see Article 5.
SETBACK REQUIREMENTS
Front and Street-Side(corner lot) (minimum in feet) See Section 10-4.106 Buildings (except garage, carport, parking space) 15 15 15 Garage, Carport, Parking Space (Side facing/front
facing)
15/20 15/20 15/20
Side, (interior)(minimum in feet) See Section 10-4.107
Buildings, Main - One Story Portion 5 5 5
- Two Story Portion Adjacent to R-1(1) 10 15 15
Not Adjacent to
R-1(1)
10 10 10
See Sections 10-4.107 a
and 10-4.110 for 2nd
story dwellings
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- Three Story Portion Adjacent to R-1(1) - - 20
Not Adjacent to
R-1(1)
- - 10
Accessory Building, Garage, Carport, Parking
Space - One Story
5 5 5 See Section 10-4.114
- Two Stories 5 5
Accessory Dwelling Unit See Article 5
Rear(minimum in feet)
Buildings, Main - One Story Portion 10 10 10 See Section 10-4.108 a - Two Story Portion 15 15 15
- Three Story Portion Adjacent to R-1(1) - - 20
Not Adjacent to
R-1
- - 15
Accessory Building, Garage, Carport, Parking
Space - One Story
5 5 5 See Section 10-4.108 b,
and 10-4.114
- Two Stories 5 5 5
HEIGHT REQUIREMENTS
Structure (maximum height in stories/feet,
whichever is less)
2/30 2/30 3/42 See Sections 10-4.109
and 10-4.110
OTHER REQUIREMENTS
Parking See Chapter 5
Signs See Chapter 6
Fencing See Section 10-4.406
Street Frontage See Section 10-4.111
Lots with Existing Units See Section 10-4.112
Design See Section 10-4.113
(1) Adjacent to R-1 zone includes property zoned R-1 in the City including P-D zones (with R-1 density) and property zoned A-2, R-A, and R-1 in the County.
SECTION 2. REPEALING OF SECTIONS. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 1, “Residential Zones,” Sections 10-4.115 and 10-
4.116 are hereby repealed in their entirety.
SECTION 3. ADDITION OF CODE. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 5, “Accessory Dwelling Units.” is hereby added to read as follows:
Article 5. - Accessory Dwelling Units
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10-4.501- Purpose and intent.
This Article implements the requirements of Government Code Sections 65852.2 and 65852.22.
10-4.502 - Accessory Dwelling Units - General.
(a) The following regulations provided below and in apply to accessory dwelling units and junior accessory dwelling units in any zone that allows single-family or multi-family, or mixed-use. (b) Accessory dwelling units and junior accessory dwelling units may only be rented in increments of thirty (30) days or more.
(c) An accessory dwelling unit includes an efficiency unit as defined in Section 17958.1 of the Health and Safety Code.
(d) An accessory dwelling unit includes a manufactured home, as defined in Section 18007 of the Health and Safety Code.
(e) These regulations may be applicable to lots zoned for single-family residential uses and built with units in compliance with Senate Bill No. 9 (Chapter 162, Statues of 2021). (f) An Accessory Dwelling Unit (ADU) or Junior Accessory Dwelling Unit (JADU) conforming to the standards of this Article shall:
(1) Be deemed to be an accessory use or accessory building. (2) Be deemed a residential use that is consistent with the existing General Plan or zoning designation for the lot.
(3) Not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(4) Not be considered to exceed the allowable density for the lot upon which the ADU or JADU is located.
(5) Not be considered to be a new residential use for calculating connection fees or capacity charges for utilities, including water and sewer services, unless the ADU or JADU was constructed with a new single-family dwelling.
(6) Except as provided in Government Code Section 65852.26, an accessory dwelling unit may be rented separate from the primary residence, but may not be sold or otherwise conveyed separate from the primary residence.
(7) A JADU shall not be sold separate from the single-family residence. 10-4.503 - Application Filing, Processing, and Review.
(a) Ministerial Approval Only. A local agency shall ministerially approve an application for a building permit for an ADU or JADU.
(1) Timeframe for Review. If there is an existing single-family or multi-family dwelling on the lot, the permitting agency shall either approve or deny the application within sixty (60) days from the date the permitting agency receives the completed application. (i) If the applicant requests a delay, the sixty (60)-day time period shall be tolled for the period of the delay.
(2) If the local agency has not approved or denied the completed application within sixty (60) days, the application shall be deemed approved.
(3) If a building permit for an ADU or JADU is submitted with a permit application for a new single-family or multi-family dwelling on the lot, the permitting agency may delay #30..
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approval of the ADU or JADU application until the permitting agency either approves or denies the application to create the new single-family or multi-family dwelling. (4) A demolition permit for a detached garage that will be replaced with an ADU, shall be reviewed with the application for the ADU and issued at the same time. (i) Written notice or the posting of a placard for the demolition of a detached garage, per subparagraph (4), above, shall not be required, unless the subject property is located within an architecturally and historically significant historic district, or is listed on a local, statewide, or national register of historically significant structures. (5) If the permitting agency denies an application for an ADU or JADU, the permitting agency shall, within the sixty (60) daytime-period, return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. (b) Fire Sprinklers. An ADU shall not be required to provide fire sprinklers if they are not required for the primary residence; and the construction of an ADU shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. (c) Passageways. The construction of an ADU shall not trigger a requirement for construction of a passageway, as defined in Government Code Section 65852.2. (d) Nonconforming Zoning Conditions. The construction of an ADU shall not trigger requirements to correct nonconforming zoning conditions. No increase in of nonconforming zoning conditions shall be allowed.
(e) Building Code Requirements. Local building code requirements that apply to detached dwellings shall apply to ADUs, except that the construction of an ADU shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official or enforcement agency of the local agency make a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety.
(1) Nothing in this clause shall be interpreted to prevent a local agency from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section.
(f) Other Regulations. No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or use permit under this subdivision. (g) Construction Fees. Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012) of the Modesto Municipal Code. (h) Utilities. An ADU shall not be considered by a local agency, special district, or water corporation to be a new residential use for the purposes of calculation connection fees or capacity changes for utilities, including water and sewer service, unless the ADU was constructed with a new single-family dwelling.
(i) Impact Fees, under 750 square feet. A local agency, special district, or water corporation shall not impose any impact fee upon the development of an ADU less than seven hundred fifty (750) square feet.
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(j) Impact Fees, 750 or more square feet. An impact fee charged for an ADU of seven hundred fifty (750) square feet or more shall be charged proportionately in relation to the square footage of the primary dwelling unit.
(k) Lot Coverage. For an ADU of eight hundred (800) square feet or less, lot coverage as shown on Table 4.1-1 shall not apply
10-4.504 - Types and Locations of Accessory Dwelling Units (ADU). (a) Attached. An ADU may be attached to a proposed or existing primary single-family or multi-family dwelling.
(b) Detached. An ADU may be detached (free-standing) from the proposed or existing primary single-family or multi-family dwelling on the same lot. (c) Converted. An ADU may be located within the proposed or existing primary single-family or multi-family dwelling, in areas currently not used for living spaces (e.g., garage or laundry room), or in an existing (free-standing) accessory building on the lot. (d) Junior ADU (JADU). A JADU is a special type of ADU that is not more than five hundred (500) square feet in size and is contained entirely within the walls of an existing or proposed single-family residence.
10-4.505 - Number and type of Accessory Dwelling Units Permitted. (a) Lots with a Single-family Dwelling.
(1) One (1) Junior Accessory Dwelling unit (JADU) is allowed per lot in a residential or mixed-use zone, where there is only one (1) existing or one (1) proposed single family dwelling.
(i) Junior Accessory Dwelling Units shall conform to the requirements in Section 10-
4.508, below.
(2) One (1) Detached (new construction) ADU is allowed per lot in a residential or mixeduse zone, where there is only one (1) existing or one (1) proposed single family dwelling:
(i) Not exceeding 850 square feet in floor area (one bedroom); This does not preclude the creation of an efficiency unit.
(ii) Not exceeding 1,200 square feet in floor area (more than one bedroom). (iii) Four (4) foot side and four (4) foot rear yard setbacks are allowed. (b) Lots with Multi-family Dwellings.
(1) Within an existing multifamily dwelling, a maximum of twenty-five (25) percent of the existing multifamily dwelling units, minimum one (1), is allowed. (i) These ADUs may be built in the portions of existing multifamily structures not currently used as living space (e.g., storage rooms, boiler rooms, passageways, attics, and garages).
(2) Not more than two (2) detached ADUs may be added to a lot that has an existing or proposed multifamily dwelling.
10-4.506 - Accessory Dwelling Units (ADUs): Maximum Sizes. #30..
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(a) Attached ADUs. If there is an existing primary dwelling on the lot, then the total floor area of an attached accessory dwelling unit shall not exceed fifty (50) percent of the existing primary dwelling.
(b) Detached ADUs. The total floor area for a detached accessory dwelling unit shall not exceed twelve hundred (1,200) square feet or the square footage of the primary structure, whichever is less.
(c) A JADU shall not exceed five hundred (500) square feet in area. 10-4.507 - Accessory Dwelling Unit: Height Limits.
(a) Lots with a Single-family Dwelling.
(1) A height limit of sixteen (16) feet; or,
(2) A height limit of eighteen (18) feet, if the lot is within one-half mile (walking distance) of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code.
(3) An additional two (2) feet in height is allowed to accommodate a roof pitch on an accessory dwelling unit that is aligned with the roof pitch of the primary dwelling. (4) For an ADU that is attached to a primary dwelling, a maximum height of 25 feet or the height limitation in the zone that applies to the single-family dwelling, whichever is lower. This does not require the City to allow an accessory dwelling unit to exceed two stories.
(5) For an ADU that is built as a second floor to an existing or proposed detached garage the maximum height is 25 feet.
(b) Lots with Multifamily Dwellings.
(1) A height limit of sixteen (16) feet; or,
(2) A height limit of eighteen (18) feet on a lot with a multistory, multifamily dwelling; or (3) A height limit of eighteen (18) feet, if the lot is within one-half mile (walking distance) of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code.
10-4.508 - Junior Accessory Dwelling Units (JADU).
(a) A junior accessory dwelling unit (JADU) shall be contained within the walls of the existing or proposed single-family residence.
(1) For the purposes of this section, contained within, a single-family residence includes the conversion of an attached garage.
(b) A JADU shall not exceed five hundred (500) square feet in area. (c) The JADU shall include a separate entrance from the main entrance to the existing or proposed single-family dwelling.
(d) If the JADU does not include a separate bathroom, the JADU shall include a separate entrance from the main entrance to the structure and an interior entry to the main living area. (e) A junior accessory dwelling unit shall have an efficiency kitchen which includes all of the following:
(1) A cooking facility with appliances;
(2) A food preparation counter; and
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(f) Prior to final inspection of a JADU, the property owner shall record a notice of conditions (deed restriction), which shall run with the land, specifying that owner shall occupy either the JADU or the remaining portion of the single-family residence at all times, unless the owner is a governmental agency, land trust, or housing organization. (g) Prior to final inspection of a JADU, the property owner shall record with the City a deed restriction, which shall run with the land, that shall include both of the following:
(1) A prohibition on the sale of the junior accessory dwelling unit separate from the sale of the single-family residence, including a statement that the deed restriction may be enforced against future purchasers.
(2) A restriction on the size and attributes of the junior accessory dwelling unit that conforms with Government Code Section 65852.22.
10-4.509 - Parking, Accessory Dwelling Units.
(a) No more than one (1) off-street parking space shall be required for an accessory dwelling unit.
(1) Parking may be tandem in an existing driveway.
(2) An uncovered off-street parking space, for an accessory dwelling unit, may be located, on a paved surface, in either a required front setback (existing driveway) or (if a lot has alley access) in a required rear setback.
(b) When a garage, carport, or other covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or is converted to an accessory dwelling unit, the lost off-street parking is not required to be replaced. (c) No parking is required for an accessory dwelling unit if:
(1) The unit is within one-half (0.5) mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code. (2) The accessory dwelling unit is within an architecturally and historically significant district.
(3) The accessory dwelling unit is part of the proposed or existing primary residence or an existing accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a car share vehicle located within one (1) block of the accessory dwelling unit.
(d) No additional parking is required for a Junior Accessory Dwelling Unit. 10-4.510 - General Development Standards.
(a) The maintenance of a single-family dwelling appearance is encouraged through means such as:
(1) For an attached ADU or JADU, locating the second unit entrance to the side or rear of the main building so it is not readily visible from the street. (2) Employing construction materials and architectural styles which blend the units so they appear as a single residence (if attached) or as single residence and accessory building, if detached.
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(b) Where a second story accessory dwelling unit (ADU) is built adjacent a rear or side yard of a lot developed with a one (1) story, single-family residential dwelling, any walls of the accessory dwelling unit that could provide unobstructed views of a neighboring rear yard or actively used side yard shall have either no windows or windows with a bottom sill located at least five (5) feet eight (8) inches from the finished floor of the second story. This does not apply to a window required by the Building Code to be usable for accessible emergency access.
(c) The City Council may designate, from time to time, by resolution, areas within which accessory dwelling units will not be permitted due to infrastructure constraints relating to water and sanitary sewer.
SECTION 4. REPEALING AND REPLACING. Title 10 of the Modesto Municipal Code, Chapter 8, “Affordable Housing,” is hereby repealed and replaced to read as follows.
Chapter 8
AFFORDABLE HOUSING
Article 1. - Density Bonus: General Provisions
10-8.101- Purpose and Intent.
This Chapter implements the requirements of Government Code Section 65915. The intent of a density bonus or other incentives offered by the city is to contribute significantly to the economic feasibility of lower income housing in proposed developments. In the absence of an agreement by a developer in accordance with this Chapter, the city shall not offer a density bonus or any other incentive that would undermine the intent of Government Code Section 65915.
10-8.102 - Statement of Authorization.
The City may grant a housing development, meeting the requirements of this Article and Government Code Section 65915, either of the following:
(1) A density bonus greater than what is described in this Chapter; or, (2) For housing developments that do not meet the requirements of this article, a proportionately lower density bonus.
10-8.103 - Consistency with California Government Code.
A Density bonus for a housing development, or for the donation of land for housing within the City shall be governed by and shall be in accordance with the provisions of California Government Code Section 65915.
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Article 2. - Density Bonus: Definitions
Unless otherwise specified below, the following words or phrases are limited to use in this Chapter.
10-8.201 - Development Standard. A Development Standard includes a site or construction condition, including but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law policy, resolution or regulation.
10-8.202 - Located Within one-half mile of a major transit stop. Means that any point on a proposed development, for which an applicant seeks a density bonus, other incentives or concessions, waivers or reductions of development standards, or a vehicular parking ratio pursuant to this section, is within one-half mile of any point on the property on which a major transit stop is located, including any parking lot owned by the transit authority or other local agency operating the major transit stop.
10-8.203 - Lower income student. Means a student who has a household income and asset level that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The eligibility of a student to occupy a unit for lower income students under this section shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education in which the student is enrolled or by the California Student Aid Commission that the student receives or is eligible for financial aid, including and intuitional grant or fee waiver from the college or university, the California Student Aid Commission, or the federal government. 10-8.204 - Maximum allowable residential density. Means the density allowed under the zoning ordinance and land use element of the general plan, or if a range of density is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail.
10-8.205 - Very-Low-Income Households. As defined in Section 50105 of the Health and Safety Code, “very low-income households” means persons and families whose incomes do not exceed the qualifying limits for very low-income families as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937. “Very low-income households” includes extremely low-income households, as defined in Section 50106. 10-8.206 - Area median income means the median family income of Stanislaus County as set by the U.S. Department of Housing and Urban Development (HUD). 10-8.207 - Low or Moderate-Income Households. Persons and families of low or moderate income means persons and families whose income does not exceed 120 percent of area median income. Persons and families of low or moderate income includes very low-income households; extremely low-income households; and lower income households as defined in Sections 50105, 50106, and 50079.5 of the Health and Safety Code.
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10-8.208 - Total units or total dwelling units. Means a calculation of the number of units that:
(a) Excludes a unit added by a density bonus awarded pursuant to this article or any local law granting a greater density bonus.
(b) Includes a unit designated to satisfy an inclusionary zoning requirement of the city. 10-8.209 - Unobstructed access to the major transit stop. Means a resident is able to access the major transit stop without encountering natural or constructed impediments. For purposes of this subparagraph, “natural or constructed impediments” includes, but is not limited to, freeways, rivers, mountains, and bodies of water, but does not include residential structures, shopping centers, parking lots, or rails used for transit.
10-8.210 - Density bonus. Means a density increase over the otherwise maximum allowable gross residential density as of the date of the application by the applicant to the city, or, if elected by the applicant, a lesser percentage of density increase, including, but not limited to, no increase in density.
Article 3. - Density Bonus: Projects Ineligible for a Density Bonus 10-8.301 - Ineligible Projects. Pursuant to Government Code Section 65915, a housing development shall be ineligible for a density bonus or any other incentive or concession, if any of the following is applicable:
(a) The housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are or, if the dwelling units have been vacated or demolished in the five-year period preceding the density bonus application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; or,
(b) The housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are subject to any other form of rent or price control through a public entity’s valid exercise of its police power; or, (c) The housing development is proposed on any property that includes a parcel or parcels on which dwelling units are occupied by lower or very low-income households. 10-8.302 A housing development found ineligible for a density bonus pursuant to Section 10-
8.301 and Government Code Section 65915, may be deemed eligible if the proposed housing development replaces those units, specified in section 10-8.301, and either of the following applies:
(a) The proposed housing development, inclusive of the units replaced pursuant to this article, contains affordable units at the percentages set forth in Article 8 (Density Bonus:
Calculations), or,
(b) Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low-income household. #30..
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10-8.303 For the purposes of this article, “replace” shall mean either (a) or (b), below, as applicable.
(a) Occupied Units. If any dwelling units described in section 18-8.301 are occupied on the date of application, the proposed housing development shall provide at least the same number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those households in occupancy.
(b) Unoccupied Units. For unoccupied dwelling units described in section 18-8.301 in a development with occupied units, the proposed housing development shall provide units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy.
(c) If the income category of the last household in occupancy or of the household in occupancy is not known (whichever is applicable) it shall be rebuttably presumed that lower income renter households occupied those units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. (d) All replacement calculations resulting in fractional units shall be rounded up to the next whole number.
(e) If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. (f) If the proposed development is for-sale units, the units replaced that be subject to Section 10-
8.808 (For Sale Units) in Article 8 (Density Bonus: Calculations). 10-8.304 Notwithstanding Section 10-8.301 and 10-8.302, above, for any dwelling unit described in Section 10-8.301 that is or was, within the five-year period preceding the [Density Bonus] application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families above lower income, the City may do either of the following:
(a) Require that the replacement units be made available at affordable rent or affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction of at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to the requirements of Section 10-8.808; or,
(b) Require that the units to be replaced in compliance with the City’s rent or price control ordinance, provided that each unit described in Section 10-8.301 is replaced. Unless otherwise required by the jurisdiction’s rent or price control ordinance, these units shall not be subject to a recorded affordability restriction.
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Article 4. - Density Bonus: Incentives or Concessions
10-8.401 – For the purpose of this Chapter, incentive or concession means any of the following:
(a) A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable and actual cost reductions, to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Article 8 (Density Bonus: Calculations).
(b) Approval of mixed-use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located.
(c) Other regulatory incentives or concession proposed by the developer or the city that result in identifiable and actual cost reductions to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Article 8 (Density Bonus: Calculations).
(d) This Article does not limit or require the provision of direct financial incentive for the proposed housing development, including the provision of publicly owned land, by the city, or the waiver of fees or dedication requirements.
10-8.402 - Applicant request.
In compliance with this Chapter and Government Code Section 65915 (d) and (e), an applicant for a density bonus may submit a proposal to the city for specific incentives, concessions, and/or a waiver or reduction of development standards that would have the effect of physically precluding the construction of a development meeting the requirements of this Chapter; and may request a meeting with the Department.
10-8.403 - Consideration of incentives, concessions, and/or a waiver or reduction of development standards. The city shall grant the concession, incentive, and/or waiver or reduction of development standards requested by the density bonus applicant, unless the city makes a written finding, based upon substantial evidence, of any of the following:
(a) The proposed concession or incentive does not result in identifiable and actual cost reductions, consistent with this section, to provide for affordable housing costs as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in Article 8 (Density Bonus: Calculations).
(b) The proposed concession, incentive, and/or waiver or reduction of development standards would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of #30..
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Section 65589.5, upon public health and safety or on any real property that is listed in the California Register of Historic 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-income and moderate-income households. (c) The proposed concession, incentive, and/or waiver or reduction of development standards would be contrary to state or federal law.
10-8.404 - Number of incentives or concessions.
An applicant shall receive the following number of incentives or concessions. A proposal for a waiver or reduction of development standards pursuant to this article shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled to pursuant to this Article.
(a) One (1) incentive or concession for a project that includes either of the following:
(1) At least ten (10) percent of the total units for lower income households, at least five (5) percent for very low-income households, or at least ten (10) percent for persons and families of moderate income in a development in which the units are for sale; or (2) At least twenty (20) percent of the total units for lower income students in a student housing development.
(b) Two (2) incentives or concessions for a project that includes at least seventeen (17) percent of the total units for lower income households, at least ten (10) percent for very low-income households, or at least twenty (20) percent for persons and families of moderate income in a development in which the units are for sale.
(c) Three (3) incentives or concessions for a project that includes at least twenty-four (24) percent of the total units for lower income households, at least fifteen (15) percent for very low-income households, or at least thirty (30) percent for persons and families of moderate income in a development in which the units are for sale. (d) Four (4) incentives or concessions for a project where one-hundred (100) percent of all units in the development, including total units and density bonus units, but excluding a manager’s unit(s), are for lower income households, as defined in Section 50079.5 of the Health and Safety Code, except that up to twenty (20) percent of the units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code.
(1) If a project in subparagraph (d), above, is located within one-half mile of a major transit stop, the applicant shall also receive a height increase of up to three (3) additional stories, or thirty-three (33) feet.
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10-8.405 - Approval or denial of proposed incentives or concessions.
Approval or denial of the requested incentives or concessions, shall be by the City Council.
Denial shall be by a written finding, based upon substantial evidence, pursuant to section 10-8.403, above.
Article 5. - Density Bonus: Reduced Parking Ratios
10-8.501. Except as provided in Sections 10-8.502, 10-8.503, and 10-8.504, below, upon the request of the developer, the city shall not require a vehicular parking ratio, inclusive of parking for persons with a disability and guests, for a development meeting the criteria of Article 8 (Density Bonus: Calculations) that exceeds the following ratios:
(a) Zero (0) to one (1) bedroom; one (1) onsite parking space. (b) Two (2) to three (3) bedrooms: one and one-half (1.5) onsite parking spaces. (c) Four (4) and more bedrooms: two and one-half (2.5) onsite parking spaces. 10-8.502. Notwithstanding Section 10-8.501, if a development includes at least twenty (20) percent low income units for housing developments meeting the criteria of Section 10-8.801 of Article 8 (Density Bonus: Calculations) or at least eleven (11) percent very low-income units for housing developments meeting the criteria of Section 10-8.801 of Article 8 (Density Bonus:
Calculations), is located within one-half mile of a major transit stop, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, the city shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds one-half (0.5) spaces per unit. 10-8.503. Notwithstanding Section 10-8.501, if a development includes at least forty (40) percent moderate-income units for housing developments meeting the criteria of Section 10-8.804 of Article 8 (Density Bonus: Calculations), is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and the residents of the development have unobstructed access to the major transit stop from the development, then upon the request of the developer, the city shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guest, that exceeds one-half (0.5) spaces per bedroom. 10-8.504. Notwithstanding Section 10-8.501, if a development consists solely of rental units, exclusive of a manager’s unit(s), with an affordable housing cost to lower income families as provided in Section 50052.5 of the Health and Safety Code, then upon the request of the developer, the city shall not impose vehicular parking standards if the development meets either of the following criteria:
(a) The development is located within one-half mile of a major transit stop and there is unobstructed access to the major transit stop from the development; or, (b) The development is a for-rent housing development for individuals who are sixty-two (62) years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code, and the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight (8) times per day. #30..
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10-8.505. Notwithstanding Section 10-8.501, if a development consists solely of rental units, exclusive of a manager’s unit(s), with an affordable housing cost to lower income families as provided in Section 50052.5 of the Health and Safety Code, and the development is either a special needs housing development, as defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code, then upon the request of the developer, the city shall not impose any minimum vehicular parking requirement.
(a) A development that is a special needs housing development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight (8) times per day.
10-8.506. For the purposes of this article, “unobstructed access to the major transit stop” means a resident is able to access the major transit stop without encountering natural or constructed impediments. Nature or constructed impediments includes, but is not limited to, freeways, rivers, mountains, and bodies of water, but does not include residential structures, shopping centers, parking lots, or rail used for transit.
10-8.507. If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. 10-8.508. For the purposes of this subdivision, a development may provide onsite parking through tandem parking or uncovered parking, but not through on-street parking. 10-8.509. A request pursuant to this article shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to Article 4 (Density Bonus:
Incentives or Concessions).
Article 6. - Density Bonus: Donation of Land
10-8.601 When an applicant for a subdivision pursuant to Government Code Section 66410, et seq.; or other residential development approval donates land to the city, in accordance with this article, the applicant shall be entitled to a fifteen (15) percent increase above the otherwise maximum allowable residential density for the entire development, as shown in Table 10-8.601 (Donation of Land).
(a) This increase shall be in addition to any increase in density mandated by Article 8 (Density Bonus: Calculations), up to a maximum combined mandated density increase of thirty-five (35) percent, if an applicant seeks an increase pursuant to both this article and Article 8 (Density Bonus: Calculations).
(b) All density calculations resulting in fractional units shall be rounded up to the next whole number.
(c) Nothing in this article shall be construed to enlarge or diminish the authority of the City to require a developer to donate land as a condition of development. (d) An applicant shall be eligible for the increased density bonus described in this article if all of the following conditions are met:
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(1) The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application; and, (2) The developable acreage and zoning classification of the land being transferred are sufficient to permit the construction of housing units affordable to very low-income households in an amount not less than ten (10) percent of the number of residential units of the proposed development; and,
(3) The transferred land is at least one acre in size or of sufficient size to permit development of a least forty (40) units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the density described in paragraph (3) of subdivision (c) of Section 65583.2, and is or will be served by adequate public facilities and infrastructure; and,
(4) The transferred land shall have all of the permits and approvals, excluding building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is not reviewed by the city before the time of transfer; and,
(5) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with Article 8 (Density Bonus: Calculations), which shall be recorded on the property at the time of the transfer; and, (6) The land is transferred to the local agency or to a housing developer approved by the local agency. The local agency may require the applicant to identify and transfer the land to the developer; and,
(7) The transferred land shall be within the boundary of the proposed development or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development; and,
(8) A proposed source of funding for the very low-income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application.
TABLE 10-8.601 – Donation of Land
Percentage Very LowIncome Percentage Density Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
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18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35
Article 7. - Density Bonus: Inclusion of a Childcare Facility 10-8.701. When an applicant proposes to construct a housing development that conforms to the requirements of Article 8 (Density Bonus: Calculations) and will include a childcare facility that will be located on the premises of, as part of, or adjacent to, the project, the city shall grant either of the following:
(a) An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the childcare facility; or, (b) An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the childcare facility. 10-8.702. The city shall require, as a condition of approving the housing development, that the following occur:
(a) The childcare facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable pursuant to Article 8 (Density Bonus: Calculations). (b) Of the children who attend the childcare facility, the children of very low-income households, lower income households, or families of moderate income shall equal a percentage that is equal or greater than the percentage of dwelling units that are required for very low-income households, lower income households, or families of moderate income, pursuant to Article 8 (Density Bonus: Calculations). (c) Notwithstanding any requirement of this article, the city shall not be required to provide a density bonus or concession for a childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities. #30..
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10-8.703. “Childcare facility,” as used in this article, means a child daycare facility other than a family daycare home, including, but not limited to, infant centers, preschools, extended daycare facilities, and school-age childcare centers.
10-8.704. “Housing development,” as used in this article, means a development project for five (5) or more residential units, including mixed-use developments. For the purposes of this article, “housing development” also includes a subdivision or common interest development, as defined in Section 4100 of the Civil Code, approved by the city and consists of residential units or unimproved residential lots; and either a project to substantially rehabilitate and convert an existing commercial building to residential use; or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units. 10-8.705 For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one (1) development application, but do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located.
Article 8. - Density Bonus: Calculations
(a) An applicant who requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the basis of section 10-8.801, 10-8.802, 10-8.803, 10-8.804, 10-8.805, 10-8.806, 10-8.807, or 10-8.808, below.
(b) All density calculations resulting in fractional units shall be rounded up to the next whole number.
(c) The granting of a density bonus shall not require, or be interpreted, in and of itself to require a general plan amendment, zone change, or other discretionary approval. (d) An applicant shall agree to, and the city shall ensure, the continued affordability of all very low and low-income rental units that qualified the applicant for an award of a density bonus for fifty-five (55) years or a longer period of time if required by a construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. (e) Except as specified in Section 10-8.807, rents for the lower income density bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (f) The City shall grant one density bonus, the amount of which as specified in this Article, if the applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this Article, that will contain at least any one of the following:
10-8.801. Low-Income Units. If ten (10) percent of the total units of a housing development for rental or sale to lower income households, as defined in Section 50079.5 of the Health and Safety Code, the density bonus shall be calculated as follows:
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TABLE 10-8.801 – Low-Income Units
Percentage Low-Income
Units
Percentage Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50
10-8.802. Very Low-Income Units. If five (5) percent of the total dwelling units of a housing development are reserved for rent or sale to very low-income households, as defined in Section 50105 of the Health and Safety Code, the density bonus shall be calculated as follows:
TABLE 10-8.802 – Very Low-Income Units
Percentage
Very Low-Income Units
Percentage Density Bonus
5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
10-8.803. Senior Housing. A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil code, or a mobilehome park that limits residency based on age #30..
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requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil code shall receive a density bonus equal to twenty (20) percent of the number of senior housing units. 10-8.804. Moderate Income Units (For Purchase). If ten (10) percent of the total dwelling units of a housing development are sold to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, provided that all units in the development are offered to the public for purchase.
TABLE 10-8.804 – Moderate-Income Units (For
Purchase)
Percentage ModerateIncome Units Percentage Density Bonus 10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
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41 38.75
42 42.5
43 46.25
44 50
10-8.805. Transitional Foster Youth, Disabled Veterans, or Homeless Persons. If ten (10) percent of the total dwelling units of a housing development are reserved for any of the following groups: (1) transitional foster youth, as defined in Section 66025.9 of the Education Code; (2) disabled veterans, as defined in Section 18541of the Government Code; or (3) homeless persons, as defined in the Federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.), the project shall receive a density bonus equal to twenty (20) percent of the number of units reserved for those groups, provided the following requirements are met:
(a) The units shall be subject to a recorded affordability restriction of fifty-five (55) years; and,
(b) The units shall be provided at the same affordability level as very low-income units. 10-8.806. Student Housing Developments. If twenty (20) percent of the total units in a student housing development are reserved for lower income students, the density bonus awarded shall be thirty-five (35) percent of the total number of student housing units, if the student housing development meets all of the following requirements:
(a) The applicable twenty (20) percent units will be used for lower income students. (b) The rent provided in the applicable units of the development for lower income students shall be calculated at thirty (30) percent of sixty-five (65) percent of the area median income for a single room occupancy unit type.
(c) All units in the development shall be used exclusively for undergraduate, graduate, or professional students enrolled full time at an institution of higher education accredited by the Western Association of Schools and Colleges or the Accrediting Commission for Community and Junior Colleges.
(1) In order to be eligible under this section, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city that the developer has entered into an operating agreement or master lease with one or more institutions of higher education for the institution(s) to occupy all units of the student housing development with students from that institution or institutions.
(2) An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any subsequent year, there are not sufficient students enrolled in the institution of higher education to fill all of the units in the student housing development.
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(d) The development provides priority for the applicable affordable units for lower income students experiencing homelessness. A homeless service provider, as defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this section. (e) For purposes of calculating a density bonus granted pursuant to this section, the term “unit” means one rental bed and its pro rata share of associated common area facilities. (f) The units described in this section shall be subject to a recorded affordability restriction of fifty-five (55) years.
10-8.807. Lower Income Units. If one-hundred (100) percent of all the units in a housing development, including total units and density bonus units, but exclusive of a manager’s unit(s) are set aside for lower income households, as defined by Section 50079.5 of the Health and Safety Code; except that up to twenty (20) percent of the units in the development may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code, then the following shall apply:
(a) Except as otherwise provided in clause (b), below, the density bonus shall be 80 percent of the number of units for lower income households.
(b) If the housing development is located within one-half mile of a major transit stop, the city shall not impose any maximum controls on density.
(c) If the housing development is located in a very low vehicle travel area, the City shall not impose any maximum controls on density.
(d) For the purposes of this section, “Very low vehicle travel area” means an urbanized area, as designated by the United States Census Bureau, where the existing residential development generates vehicle miles traveled per capita that is below 85 percent of either regional vehicle miles traveled per capita, or city vehicle miles traveled per capita. For purposes of this Section, “area” may include a travel analysis zone, hexagon, or grid. For the purposes of determining “regional vehicle miles traveled per capita” pursuant to this paragraph, a “region” is the entirety of incorporated and unincorporated areas governed by a multicounty or single-county metropolitan planning organization, or the entirety of the incorporated and unincorporated areas of an individual county that is not part of a metropolitan planning organization.
(e) Rents for all units in the development, including both base and density bonus units, shall be as follows:
(1) The rent for at least twenty (20) percent of the units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (2) The rent for the remaining units in the development shall be set at an amount consistent with the maximum rent levels for a housing development that receives an allocation of state or federal low-income housing tax credits form the California Tax Credit Allocation Committee.
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10-8.808. For Sale Units. An applicant shall agree to ensure, and the city shall ensure, that a forsale unit that qualified the applicant for the award of a density bonus meets either of the following conditions:
(a) The unit is initially occupied by a person or family of very low, low, or moderate income, as required, and it is offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code and is subject to an equity sharing agreement; or
(b) The unit is purchased by a qualified nonprofit housing corporation pursuant to a recorded contract that satisfies all of the requirements specified in paragraph ten (10) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code and that includes all of the following:
(1) A repurchase option that requires a subsequent purchaser of the property that desires to resell or convey the property to offer the qualified nonprofit corporation the right to repurchase the property prior to selling or conveying that property to any other purchaser.
(2) An equity sharing agreement.
(3) Affordability restrictions on the sale and conveyance of the property that ensure that the property will be preserved for lower income housing for at least forty-five (45) years for owner-occupied housing units and will be sold or resold only to persons or families of very low, low, or moderate income as defined in Section 50052.5 of the Health and Safety Code. (c) For purposes of this section, a “qualified nonprofit housing corporation” is a nonprofit housing corporation organized pursuant to Section 501 (c)(3) of the Internal Revenue Code that has received a welfare exemption under Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program.
10-8.809. Equity Sharing Agreements. The city shall enforce an equity sharing agreement required pursuant to Section 10-8.808, unless it is in conflict with the requirements of another public funding source or law. The following shall apply to the equity sharing agreement:
(a) Upon resale, the seller of the units shall retain the value of any improvements, the down payment, and the seller’s proportionate share of appreciation. (b) Except as provided in clause (c), below, the local government shall recapture any initial subsidy, as defined in clause (iii), and its proportionate share of appreciation, as defined in clause (d), below, which amount shall be used within five (5) years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote home ownership.
(c) For purposes of this subdivision, the local government’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale minus the initial sale price to the moderate-income household, plus the amount of any down payment assistance or #30..
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mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of resale shall be used as the initial market value. (d) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to the fair market value of the home at the time of initial sale.
(e) If the unit is purchased ore developed by a qualified nonprofit housing corporation pursuant to Section 10-8.808 (b) the local government may enter into a contract with the qualified nonprofit housing corporation under which the qualified nonprofit housing corporation would recapture any initial subsidy and its proportionate share of appreciation if the qualified nonprofit housing corporation is required to use one-hundred (100) percent of the proceeds to promote homeownership for lower income households as defined by Health and Safety Code Section 50079.5 within the jurisdiction of the local government.
SECTION 5. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA). This ordinance is Statutorily Exempt from CEQA pursuant to Section 15282 (h) of the State CEQA Guidelines that exempts the adoption of an ordinance regarding second units in a single-family or multi-family residential zone by a city or county to implement the provisions of Sections 65852.1 and 65852.2 of the Government Code; and the proposed amendments that address state density bonus law is not a project that would have a significant effect on the environment, therefore it is not subject to CEQA pursuant to Section 15061 (b)(3) of the State CEQA Guidelines, the “commonsense exemption,” which reasons that CEQA applies only to projects, which have the potential for causing a significant effect on the environment.
SECTION 6. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 7. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of #30..
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Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 4th day of April, 2023, by Councilmember , who moved its introduction and passage to print, which motion being duly seconded by Councilmember , was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED:
Sue Zwahlen, Mayor
ATTEST:
By:
Diane Nayares-Perez, City Clerk
(SEAL)
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO DESCRIPTION:
By:
Community & Economic Development
Department, Planning Division
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FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ____________, 2023, Councilmember ______________moved its final adoption, which motion being duly seconded by Councilmember ________________, was upon roll call carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED:
MAYOR, SUE ZWAHLEN
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: _________________, 2023
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Created: 2023-02-27 16:50:06 [EST]
(Supp. No. 63)
10-4.102 Development Standards.
The development standards for the residential zones are found in Table 4.1-1. The specific residential development standards provided after the table apply to all residential zones unless otherwise specified. #30..
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Created: 2023-02-27 16:50:06 [EST]
(Supp. No. 63)
Table 4.1-1 Residential Development Standards
Development Standards Zoning Districts
R-1 R-2 R-3
Notes
LOT REQUIREMENTS
Area(minimum in Sq Ft)
Interior Lot 5,000 6,000 6,000
Corner Lot 5,500 6,500 6,500
See Section 10-4.103
Density
Minimum - - -
Maximum - - -
See Section 10-4.104
Width(minimum in feet)
Interior Lot 50 60 60 See Section 10-4.105 a
Corner Lot 60 60 60 See Section 10-4.105 b
Flag Lot 20 20 20 See Section 10-4.105 c
Coverage(maximum in %)
Interior Lot 50 55 60
Corner Lot 55 60 65
See Section 10-2.141.
For accessory dwelling
units, see Section 10-
4.115. Article 5Section
10-4.115.
SETBACK REQUIREMENTS
Front and Street-Side(corner lot) (minimum in feet) See Section 10-4.106 Buildings (except garage, carport, parking space) 15 15 15 Garage, Carport, Parking Space (Side facing/front facing) 15/20 15/20 15/20 Side, (interior)(minimum in feet) See Section 10-4.107
Buildings, Main - One Story Portion 5 5 5
- Two Story Portion Adjacent to R-1(1) 10 15 15
Not Adjacent to
R-1(1)
10 10 10
See Sections 10-4.107 a
and 10-4.110 for 2nd
story dwellings
- Three Story Portion Adjacent to R-1(1) - - 20
Not Adjacent to
R-1(1)
- - 10
Accessory Building, Garage, Carport, Parking
Space - One Story
5 5 5 See Section 10-4.114
- Two Stories 5 5
Accessory Dwelling Unit See Section 10-4.115
Article 5Section 10-
4.115
Rear(minimum in feet)
Buildings, Main - One Story Portion 10 10 10 See Section 10-4.108 a - Two Story Portion 15 15 15
- Three Story Portion Adjacent to R-1(1) - - 20
Not Adjacent to
R-1
- - 15
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Created: 2023-02-27 16:50:06 [EST]
(Supp. No. 63)
Accessory Building, Garage, Carport, Parking
Space - One Story
5 5 5 See Section 10-4.108 b,
and 10-4.114
- Two Stories 5 5 5
HEIGHT REQUIREMENTS
Structure (maximum height in stories/feet, whichever is less) 2/30 2/30 3/42 See Sections 10-4.109 and 10-4.110
OTHER REQUIREMENTS
Parking See Chapter 5
Signs See Chapter 6
Fencing See Section 10-4.406
Street Frontage See Section 10-4.111
Lots with Existing Units See Section 10-4.112
Design See Section 10-4.113
(1) Adjacent to R-1 zone includes property zoned R-1 in the City including P-D zones (with R-1 density) and property zoned A-2, R-A, and R-1 in the County.
(Ord. No. 3704-C.S., effective 11-7-19; Ord. No. 3722-C.S., § 2, effective 11-5-20) #30..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
April 4, 2023
Date: March 14, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Alan Ernst, Fire Chief
SUBJECT: Adoption of the 2022 California Fire Code
CONTACT: Darin Jesberg, Deputy Fire Chief, [email protected], 209-577-9139 DESCRIPTION:
Hearing to consider final adoption of Ordinance 3760-C.S. repealing and replacing Chapter 1 of Title 3 of the Modesto Municipal Code amending the City’s Fire Code to adopt the 2022 California Fire Code. (Funding Source: Not Applicable)
STRATEGIC PLAN ELEMENT:
This action supports the City of Modesto 2020-2025 Strategic Plan focus on quality of life under Goal A: Improve Community Safety.
BACKGROUND:
The California Building Standards Commission1 (CBSC) adopted the California Fire Code in July 2022. This code was designed and promulgated to be adopted by ordinance by local jurisdictions as an enforceable set of regulations for the safeguarding of life and property from fire and explosion hazards arising from the storage, handling and use of hazardous substances, materials and from conditions hazardous to life or property in the occupancy of buildings and premises.
DISCUSSION:
This code establishes the minimum fire and life safety requirements for the State of California and is automatically adopted by state law. It is reviewed and updated at an interval of every three years. In addition, each local jurisdiction must adopt rules and requirements for administering this code. The local jurisdiction may also adopt the amendments identified by said ordinance that are reasonably necessary as affected by local climatic, geological, or topographical conditions. Additionally, the adoption of the fire code will provide a more unified administration as it applies to inspection and plan check of construction projects in the City of Modesto. This code allows for the use of the latest technologies, materials and methods allowed by the State of California and the International Code Community. 1 California Building Standards Commission, 2022 California Fire Code #31..
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City Council, April 4, 2023
Adoption of the 2022 California Fire Code
This Ordinance was first presented to City Council at the March 7th meeting in order to gain consent to enter review period. This item was approved by Council at the meeting and further approved by the City Manager for Public Hearing.
FISCAL IMPACT:
No fiscal impact is anticipated.
COMMITTEE RECOMMENDATION:
This project was presented to Safety and Communities Committee on February 13, 2023, and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Motion adopting Ordinance 3760-C.S. repealing and replacing Chapter 1 of Title 3 of the Modesto Municipal Code amending the City’s Fire Code to adopt the 2022 California Fire Code.
Approved by:
Alan Ernst, Fire Chief
Joseph P. Lopez, City Manager
Attachments:
1. Ordinance 3760-C.S. Adopting the 2022 California Fire Code
2. Redline Changes to Chapter 1 of Title 3 of the Modesto Municipal Code
3. Bee Ad
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ORDINANCE NO. 3760 -C.S.
AN ORDINANCE REPEALING AND REPLACING CHAPTER 1 OF TITLE 3 OF THE MODESTO MUNICIPAL CODE AMENDING THE CITY’S FIRE CODE TO ADOPT THE 2022 CALIFORNIA FIRE CODE
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings and changes have been filed with the California Building Standards Commission; and WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and #31..
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WHEREAS, notice of the Ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof.
NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:
SECTION 1. REPEAL AND REPLACEMENT OF CODE. Chapter 1 of Title 3 of the Modesto Municipal Code is hereby repealed in its entirety and replaced with the following.
Chapter 1. - Adoption of the California Fire Code, 2022 Edition ARTICLE 1. FIRE CODE
3-1.101 Findings for Adoption of the California Fire Code, 2022 Edition.
The City Council of the City of Modesto hereby finds and determines: That the International Code Council is a private organization which has been in existence for at least three (3) years. That the California Fire Code, 2022 Edition, published by said organization, is a nationally recognized compilation of proposed rules, regulations, and standards of said organization. That said California Fire Code, 2022 Edition has been printed and published as a code in book form within the meaning of Section 50022.2 et seq. of the Government Code. That one (1) copy of the California Fire Code, 2022 Edition, certified by the City Clerk of the City of Modesto to be a true copy, has been filed for use and examination by the public in the office of the City Clerk of the City of Modesto. Sections of the California Fire Code, 2022 Edition may be referred to by the number used in said published compilation, preceded by the words "California Fire Code Section" or "Fire Code Section", and may also be referred to by additional reference to the Modesto Municipal Code and sections therein pertaining to said California Fire Code, 2022 Edition.
The additional requirements and standards established herein are needed to properly protect the health, safety, and welfare of the existing and future residents and workers of the City of Modesto. Said requirements and standards are reasonably necessary because of local climatic, geological, and topographical conditions, and comply with existing state laws and regulations.
Amendment of the California Fire Code, 2022 Edition, is necessary so as to provide more stringent standards for fire extinguishing systems; fire hazard and hazardous materials controls are necessary to serve the public interest by reducing the risk to life and property of the citizens of Modesto because of the following climatic and topographical local conditions:
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(a) Summer weather conditions are very dry, hot and windy causing ordinary combustibles to be easily ignited and fires to be fast spreading;
(b) Very dense fog conditions occur in winter. Reduced visibility causes delays in fire response;
(c) Fire response is delayed by railroad tracks which:
(1) Divide the City from northeast between Tully Road and McHenry Avenue to the west side of Ninth Street;
(2) Run parallel to Highway 99 through the City, restricting response at locations where overpasses are not provided;
(3) Run parallel to Yosemite Boulevard restricting access to the airport, Tuolumne Regional Park, and adjacent areas; and
(4) Restrict access at intersections and streets in the areas of Ninth, Tenth, D, and E Streets.
(d) Modesto Irrigation Canal #3 restricts access to the neighborhoods and developments to the north and east of Briggsmore Avenue from Oakdale Road to Claus Road; (e) Fire response is delayed by rivers and creeks which:
(1) Divide the southwest area of the City and City contract areas and restrict access to these areas; and
(2) Divide the City from east to southwest along Scenic Drive.
THEREFORE, for the above reasons taken individually and cumulatively and in accordance with the authority granted in Sections 17958.5 and 17958.7 of the California Health and Safety Code, the Council of the City of Modesto expressly finds there are local climatic and topographical conditions that make the increased fire protection requirements set forth in this chapter reasonably necessary.
3-1.102 Adoption by Reference of the California Fire Code, 2022 Edition. (a) That certain document, one (1) copy of which is on file in the office of the City Clerk of the City of Modesto, being marked and designated as the California Fire Code, 2022 Edition, California Code of Regulations Title 24, Part 9, including Appendix Chapter 4, and Appendix B, BB,C CC,D, F, G, I, K, , N, O and Division 1 California Administration and Division II Scope and Administration as published by the International Code Council, regulating and governing the safeguarding of life and property from fire and explosion hazards arising from the storage, handling, and use of hazardous substances, materials and devices, and from conditions hazardous to life or property in the occupancy of buildings and premises as herein provided; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said California Fire Code, 2022 Edition, on file in the office of the City Clerk of the City of Modesto is hereby referred to, adopted, and made a part in accordance with, as if fully set out in this ordinance, with the additions, insertions, deletions and changes, if any, prescribed in this chapter and is hereby adopted as the Fire Code of the City of Modesto.
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(b) These regulations shall be known as the Fire Code of the City of Modesto and may be cited as such or may be cited as the "California Fire Code, 2022 Edition," the "2022 California Fire Code", "the Fire Code", or "this Code."
3-1.103 Repeal of Conflicting Ordinances.
All former ordinances or parts thereof conflicting or inconsistent with the provisions of this ordinance or with the 2022 California Fire Code as adopted and amended are hereby repealed.
ARTICLE 2. AMENDMENTS, ADDITIONS AND DELETIONS TO THE 2022
CALIFORNIA FIRE CODE
3-1.201 Combustible Waste Material.
Section 304.1.2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Vegetation. When the Fire Code Official determines that total removal of growth is impractical due to the size or environmental factors, approved fuel breaks shall be established. Designated areas shall be cleared of combustible vegetation to establish the fuel breaks.
Abatement of a public nuisance shall be in accordance with Article 6 of Chapter 6 of Title 1 of the Modesto Municipal Code. The Fire Department may impose a nuisance abatement lien pursuant to Section 1-6.702 of the Modesto Municipal Code.
The Fire Department may recover, from a property owner, those costs associated with the suppression costs incurred in fighting a fire and for providing rescue or emergency medical services should a fire occur on said property after the owner has been notified to abate such public nuisance and has failed to do so.
3-1.202 Vehicle Impact Protection.
Section 312.2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Posts. Guard posts or other approved means shall be provided to protect storage tanks and connected piping, valves and fittings; dispensing areas; and use areas subject to vehicular damage. When guard posts are installed, the posts shall be:
1. Constructed of steel not less than six (6) inches in diameter and concrete filled,
2. Spaced not more than four (4) feet between posts on center,
3. Set not less than three (3) feet deep in a concrete footing of not less than a fifteen (15) inch diameter,
4. Set with the top of the posts not less than three (3) feet above ground, and
5. Located not less than five (5) feet from the tank.
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3-1.203 Fire Protection and Water Supplies.
Section 507.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Required Water Supply.
(a) An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, building or portions of buildings are hereafter constructed or moved into or within the jurisdiction. See Appendix-B of the 2022 California Fire Code.
(b) Fire hydrants shall be located on the supply side of the fire suppression system check valve.
(c) Fire hydrants shall be accessible to the Fire Department apparatus by roads meeting the requirements of Section 503.1 of the 2022 California Fire Code. 3-1.204 Where Required.
Section 507 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Where required. Where a portion of a facility or building hereafter constructed or moved into or within the jurisdiction is more than 200 feet from a hydrant on a fire apparatus access road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official.
3-1.205 Incinerators.
Section 605.8 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Incinerators. The use of incinerators is prohibited inside the City limits of Modesto.
EXCEPTION: Incinerators used by state licensed facilities for the cremation of human or pet remains.
3-1.206 Open burning, recreational fires, and portable outdoor fireplaces Section 307.1 of the 2022 California Fire Code is hereby adopted by reference:
A person shall not kindle or maintain or authorize to be kindled or maintained any open burning unless conducted and approved in accordance with sections 307.1.1 through 307.5
3-1.207 Automatic Sprinkler Systems.
Section 903 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
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New Construction.
(a) An approved automatic fire sprinkler system is required in all new buildings and structures constructed on or after the effective date of this ordinance, notwithstanding the use and occupancy thereof, when any fire area, as defined in the California Fire Code exceeds five thousand (5,000) square feet.
(b) When automatic sprinkler systems are required by the Modesto Municipal Code or the 2022 California Fire Code for certain uses and/or occupancies, the requirements of Section 903.2 of the 2022 California Fire Code shall also apply. (c) An approved automatic residential fire sprinkler system shall be installed in all one and two-family dwellings and townhouses in accordance with NFPA 13D or Section R313.3 of the 2019 California Residential Code.
EXCEPTION:.
1. U Occupancies and gas station canopies
2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.
Existing Buildings and Structures.
An approved automatic fire sprinkler system shall be installed in all existing buildings and structures when either of the following conditions are met:
(a) The value of additions, alterations or repairs that exceed fifty (50) percent of the current county assessed valuation for improvements only in the existing building or structure that exceeds five thousand (5,000) square feet. (b) Following any catastrophic event such as fire, flood, or natural disaster.
EXCEPTION:
1. U Occupancies and gas station canopies
2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.
3-1.208 Monitoring.
Section 903.4.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Alarm, supervisory and trouble signals shall be distinctly different and shall be automatically transmitted to a UL LISTED supervising station as defined in NFPA 72 or, when approved by the Fire Code Official, shall sound an audible signal at a constantly attended location.
3-1.209 Portable Fire Extinguishers.
Section 906.9.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
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Extinguishers Weighing 40 Pounds or Less. Portable fire extinguishers having a gross weight not exceeding forty (40) lbs. (18 kg) shall be installed so that their tops are not more than four (4) feet above the floor.
Existing Installations. Portable fire extinguishers shall only be required to be lowered during tenant improvements.
3-1.210 Fire Alarm and Detection Systems.
Section 907. 2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Where required - New Buildings and Structures. An approved fire alarm system installed in accordance with the provisions of this code and NPFP 72 shall be provided in new buildings and structures in accordance with Sections 907.2.1 through 907.2.23 of the California Fire (2022 Edition) and provide occupant notification in accordance with Section 907.5, unless other requirements are provided by another section of this code. a. All fire alarm and detection systems shall require Central Station Services monitoring as defined by and in accordance with the 2016 Edition of NFPA 72, Chapter 26. A (UL) Underwriters Laboratories Certificate of (FM) Factory Mutual Placard, in accordance with the 2016 Edition of NFPA 72, Chapter 26, shall be issued by the UL listed or FM approved prime contractor for all newly installed fire alarm systems that are newly installed in commercial occupancies for which permits are required by the Modesto Fire Department, Division of Fire Prevention, on or after 1/1/2020. b. Any existing fire alarm system in a commercial occupancy wherein the fire alarm control panel and alarm system components require replacement, shall be considered newly installed for the purposes of this section and shall require Central Station Service in accordance with the 2016 Edition of NFPA 72 Chapter 26. c. Central Station Service in full compliance with the 2016 Edition of NFPA Chapter 26, shall be maintained at the protected property, so long as the requirement for the fire alarm system exist.
Exception. Supervisory service is not required for:
i) Automatic sprinkler systems in one and two-family dwellings. 3-1.211. False Fire Alarms.
Section 907 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
False Fire Alarms. False fire alarms shall not be given, signaled or transmitted or caused or permitted to be given, signaled or transmitted. The City Council may adopt by resolution reasonable fees to recover the costs associated with responses to buildings or structures that have excessive false fire alarms.
3-1.212 Hazardous Materials Occupancies.
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Section 5001 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Key Box. When required by the Fire Code Official, an approved key box, sized to contain emergency information, (HMMP, HMIS and Safety Data Sheets) shall be provided. 3-1.213 Deposits of Hazardous Materials; Cleanup, Abatement, or Mitigation Required; Liability for Costs.
Section 5003.3.1.4 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Responsibility for Cleanup. The person, firm or corporation responsible for an unauthorized discharge shall initiate and complete all actions necessary to remedy the effects of such unauthorized discharge, whether sudden or gradual, at no cost to the jurisdiction. When deemed necessary by the Fire Code Official, cleanup may be initiated by the Fire Department or by an authorized individual or firm. Costs associated with such cleanup shall be borne by the owner, operator or other person responsible for the unauthorized discharge. The remedy provided by this section shall be in addition to any other remedies provided by law.
For purposes of this section, costs incurred by the City shall include, but shall not necessarily be limited to, the following: actual labor costs of City personnel, including worker's compensation benefits, administrative overhead; cost of equipment operation; cost of materials obtained directly by the City; and cost of any contract labor and materials. The authority to recover costs under this section shall not include actual fire suppression services that are normally or usually provided by the Fire Department. 3-1.214 Stationary Containers.
Section 5504.3.1.1.3 of the 2022 California Fire Code is adopted by reference, in addition to the following:
Location. Storage of flammable cryogenic fluids in stationary containers outside of buildings is prohibited within the limits established by law. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code. 3-1.215 Possession, Manufacture, Sale, Use or Discharge of Dangerous Fireworks.
Section 5604 of the 2022 California Fire Code is hereby adopted by reference in addition to the following:
Dangerous Fireworks (a) For purposes of this section, dangerous fireworks are those fireworks specified as such in the State Fireworks Law, Section 12505 of the California Health and Safety Code, and such other fireworks as may be determined to be dangerous by the State Fire Marshal.
(b) It shall be unlawful for any person to possess, manufacture, sell, use or discharge dangerous fireworks, or a dangerous firework kit, unless a permit authorizing such possession, sale, manufacture, use or discharge has been issued by the Fire Code #31..
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Official to the person or responsible party, as is defined in Section 3-1.304 of the Modesto Municipal Code, using, selling, manufacturing, discharging or found in possession of said fireworks or kits, and unless such person is in possession of a valid pyrotechnic operator's license issued by the Office of the State Fire Marshal. The Fire Code Official may establish reasonable rules and regulations for governing issuance of a firework permit and may issue the same subject to payment of a fee as established by the City Council from time to time.
(c) The Fire Code Official, or designee, shall seize, take, remove or cause to be removed, at the expense of the owner, all stocks of dangerous fireworks offered or exposed for sale, stored, or held in violation of this chapter.
3-1.216 Explosive Materials Prohibited and Limited Acts.
Section 5605.1 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Manufacturing. Explosive materials shall not be manufactured within the city limits of Modesto.
Limits Established by Law. The storage of explosives and blasting agents is restricted to those areas of the City zoned as Heavy Industrial Zone (M-2). 3-1.217 Manufacturing of Fireworks.
Section 5605 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Manufacturing. The manufacturing of fireworks is prohibited within the city limits of Modesto.
3-1.218 Sales of Fireworks.
Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Sales. It shall be unlawful to engage in the sale of "Safe and Sane" fireworks in the City of Modesto without first having secured a permit to do so. (1) Effective 2005, the total number of sales permits issued in any given year shall be limited to seventy (70).
(2) Sales permits for the sale of "Safe and Sane" fireworks in the City of Modesto shall be issued only to local nonprofit organizations and existing local for-profit organizations as defined herein.
(A) A "nonprofit organization" shall mean any nonprofit association, club, or corporation organized for veteran, patriotic, welfare, religious, civic betterment, youth or charitable purposes, as defined by Section 501(c) of the Internal Revenue Code of the United States, or affiliated with a public school located within the city limits of Modesto. Each new organization shall provide the City with a copy of #31..
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their "Letters of Incorporation" as proof of their nonprofit status. Existing organizations shall submit verification of current corporation status from the State of California Secretary of State's Office. Those organizations that are an integral part of a recognized national organization having tax exempt status must provide IRS written verification of such status. All applications will be subject to additional verification with the State of California and IRS if nonprofit status comes into question.
(B) Public school organizations shall provide current written verification of affiliation from the school each year.
(C) A "local nonprofit organization" must have its principal and permanent meeting place in the City of Modesto or within the City of Modesto sphere of influence.
The organization must have obtained nonprofit status and have been organized and established in the City of Modesto for a minimum of one (1) continuous year preceding the filing of the application for permit. The organization must also have a bona fide membership. Applications shall be signed by two (2) bona fide officers of the eligible organization, wherein the officer, on behalf of the organization and its agents, agrees to abide by State laws, administrative regulations, and all stipulations of this Code and the permit if permission to operate a fireworks stand is granted to the organization. (D) An "existing local for-profit organization" must have a permitted fixed business location in the City of Modesto, have been issued a fireworks sales permit the previous year, have remained under the same management and/or ownership continuously since 1999, and have paid all business license and mill tax fees due the City of Modesto by the close of the application period. In the event mill taxes and business license fees are not current the organization's application will be denied.
(E) If any of the above items fail to be met at the time of application, the organization's application shall be denied.
(3) Sales permits for retail sales of "Safe and Sane" fireworks in the City of Modesto issued pursuant to provision of this Code are not transferable by the holder of the permit. The sales permits may be used only by the organization to which they are issued. Violations will result in the immediate loss of the organization's sales permit. (4) All applications for sales permits shall be in writing to the Fire Code Official on forms supplied by the City. Applications may only be filed during normal business hours from April 1st of each year up to and including April 30th of the same year, at which time the filing period for that year will close. A separate sales permit shall be required for each proposed location of a fireworks stand.
Each organization may file an application for one (1) sales permit for which there is only one tax ID number.
(5) Applications shall set forth the proposed location of the fireworks stand including the nine (9) digit parcel number (APN) of the Stanislaus County Assessor, a site map, and other information as may be required by the Fire Code Official. #31..
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(6) Applicants for sales permits shall be notified by June 15th of each year by the Fire Code Official of approval or disapproval of such application. Sales permits will be issued after final inspection of the stand reveals compliance with all state and local regulations. Organizations shall not open for sales prior to the final inspection of their stand. If an organization's stand fails to pass inspection there will be a re-inspection fee charged for the third (3rd) inspection, and each inspection thereafter until final inspection is approved, as established by Resolution No. 03-446. (7) Every application shall be accompanied by proof of insurance as specified in Section 3-
1.22(3). Other items required at the time of application will be the organization's verification of eligibility as stated in 2(A) above, list of bona fide members, and current written permission signed by the property owner of record (with respect to lessee permission, approval shall be in the sole discretion of the Fire Code Official to sell fireworks at that location. Organizations representing public schools, as stated in 2(B) above, require written verification from the school of their affiliation. (8) Every application shall be accompanied by a nonrefundable application fee as established by resolution of the City Council from time to time. This application fee shall be in addition to any fees or taxes imposed by Title 6 of the Modesto Municipal Code.
(9) Any local nonprofit organization as defined herein may make application for a sale permit but pre-approved (continuously permitted since 1999) organizations will have first option for a permit.
(A) When additional sales permits are authorized and all current pre-approved organizations have applied for such permits, a lottery will be held to fill any vacancies.
(B) This lottery will be held fourteen (14) days after the last day of the filing period specified in paragraph 4 and will include the names of all new local nonprofit organizations that have filed a complete application within the said filing period.
If the fourteenth (14th) day falls on a weekend the lottery will be held on the next business day.
(C) One organization will be drawn for each available vacancy. If the organization whose name is drawn declines the permit, another name will be drawn until each vacancy is filled.
(D) Any organization having an approved application that fails to open their stand for that sales year will automatically forfeit their permit and a new organization will be chosen the following year provided a permit is available. (10) A nonprofit organization may apply for a sales permit with regard to a stand located in an area annexed by the City of Modesto under the following conditions:
(A) Two (2) consecutive years prior to annexation, the applicant was issued a sales permit, by the City or County in which the property was formerly located, and applicant presents proof of the issuance of said permits; (B) The applicant has received a valid City of Modesto business license; and (C) The organization must either:
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(1) Meet the criteria of set forth in Section 33-1.223(2) (A) or (2) Present documentary evidence establishing its primary meeting for a minimum of two (2) years preceding application to City of Modesto was at the location for which the sales permit is currently sought. (D) Annexed property that was previously used for a temporary booth by an organization whose current primary meeting place is outside the city limits of Modesto is not eligible to make application for a sales permit.
Permits issued to these organizations will be issued without the necessity of being selected by lottery, even though such issuance may increase the number of permits to more than allowed herein. The addition of these organizations does not change the original intent to issue a total of seventy (70) sales permits per year.
3-1.219 Sales, Storage, Use, and Handling of Fireworks.
Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
General. Sales, storage, use, and handling of fireworks shall be in accordance with this chapter.
1. Sales. Retail sale or display with the intent to sell fireworks is limited to State of California Fire Marshal approved and labeled "Safe and Sane" fireworks within the City of Modesto, by State of California licensed retailers, provided a permit to sell those fireworks has been approved and obtained from the Fire Code Official.
Fireworks may be sold or offered for sale from 12:00 noon to 10:00 p.m. on June 28, 9:00 a.m. to 10:00 p.m. on June 29 through July 5, and 9:00 a.m. to 12:00 noon on July
6. The storage of fireworks within the City of Modesto is limited to State of California Fire Marshal-approved and labeled "Safe and Sane" fireworks by State of California licensed wholesalers and retailers.
(A) Wholesale Storage. Wholesalers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 1 through July 31 of each year.
Storage facilities shall comply with H3 occupancy classification requirements as defined by the 2022 California Building Code.
(B) Retailers Storage. Retailers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 22 through July 15 of each year. "Safe and Sane" fireworks that are not being sold or displayed with the intent to sell, shall be stored solely in the following manner:
(1) Within the permitted fireworks stand with a responsible adult on the premises at all times.
(2) In a completely enclosed and locked utility type trailer constructed of onefourth (1/4) inch plywood or other approved noncombustible material. (3) In a completely detached garage on residential property with a minimum ten (10) feet clearance from other structures or property lines. There shall be no #31..
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open-flame or spark producing equipment, or Class 1 flammable liquids stored or used within the garage.
(4) Fireworks shall not be stored within forty (40) feet of any building classified or used as a public or private school, day care facility, residential care facility, hospital, place of detention, public oil/gas station, or public garage, or any place of public assembly that can accommodate fifty (50) or more persons.
(5) In an approved and permitted fireworks warehouse.
2. Operator Safety. Each year, one (1) or more representatives from each organization, that is granted a permit to sell fireworks, shall attend a stand operator safety seminar conducted by the City of Modesto Fire Department and the fireworks industry. Failure to attend the seminar shall result in the revocation of the organization's permit to sale fireworks for that calendar year.
3. Temporary Fireworks Stands.
(1) All retail sales of "Safe and Sane" fireworks shall be permitted only from within a temporary fireworks stand and sales from any other building or structure is hereby prohibited.
(2) City Business License, Fire Department Permit and State License shall be displayed in the fireworks stand during hours of operation. (3) Temporary fireworks stand shall not be set up before application for permit has been approved no earlier than June 14.
(4) The fireworks stands shall be located at least twenty (20) feet from other structures.
(5) Zoning of property, in which the fireworks stand will be located, shall be in accordance with Section 10-2.2330 of the Modesto Municipal Code. (6) Fireworks shall not be stored, sold, offered for sale, or discharged within one hundred (100) feet of a location where gasoline, LPG, other class 1 flammable liquids or flammable gasses are stored or dispensed.
(7) All unsold stock and accompanying litter shall be removed from the location by 5:00 p.m. on the 6th day of July.
(8) The fireworks stand shall be removed from the temporary location by 12:00 noon on the 12th day of July, and all accompanying litter shall be cleared from said location by said time and date.
(9) A penalty of one hundred dollars ($100.00) per day will be assessed to the permittee of any fireworks stand not removed by 12:00 noon on the 12th day of July.
4. Safety Precautions.
(1) No person under the age of eighteen (18) shall sell, or handle for sale, any classification of fireworks.
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(2) No person under the age of eighteen (18) shall purchase or be allowed to purchase any classification of fireworks.
(3) Smoking, open-flame, and spark-producing equipment shall be prohibited for a distance of twenty (20) feet around any fireworks stand. (4) Dry grass, weeds, trash, and other combustible material shall be removed for a distance of twenty (20) feet around any fireworks stand. (5) Fireworks shall not be discharged within fifty (50) feet of a fireworks stand.
5. Stand Construction.
(1) Merchandise may be displayed in approved glass enclosed counters or showcases, or
(2) Merchandise may be displayed in stands constructed in the following manner:
(A) Walls and roof shall be of plywood at least one-fourth (1/4) inches thick or of an approved noncombustible material.
(B) The stand shall be provided with a roof.
(C) Walls shall extend to a minimum height of six (6) feet eight (8) inches, on at least three (3) sides. These three (3) sides shall be without openings, except for an exit door.
(D) An exit door with a minimum size of twenty-four (24) inches in width and six (6) feet in height shall be provided in each stand. Exits shall be maintained clear and unobstructed at all times.
(E) The front wall of the stand shall provide a physical barrier not less than eighteen (18) inches in height between the public and the merchandise on display.
(F) Approved "NO SMOKING" signs shall be prominently displayed in and on the stand.
(G) Approved "NO SALES TO PERSONS UNDER THE AGE OF 18" signs shall be prominently displayed in the stand.
(H) An approved fire extinguisher having a minimum classification of 2A10BC shall be located in the stand, near the exit and readily accessible. (I) Sellers of fireworks shall comply with all rules and regulations of Title 19 of the California Code of Regulations and with the rules and regulations of the Fire Code Official.
(J) Stands will be limited to twenty-four (24) feet by eight (8) feet or one hundred ninety-two (192) square feet in size. Pre-existing stands as identified by the fireworks suppliers shall retain the right to operate their oversized stands, without change, until said stand or organization forfeits or loses their operating permit. A copy of said list shall remain on file with the Fire Code Official.
6. Operation of Fireworks Stand Only by Permittee.
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(1) It is unlawful for the permittee organization to allow any person or entity other than the permittee organization to operate the fireworks stand for which the permit is issued, whether by agreement, assignment or otherwise, or to otherwise participate in the profits of the operation of such fireworks stand. Violations will result in the immediate loss of the organization's permit. (2) It is unlawful for a non-profit organization to allow any person other than the individuals who are members of the permittee organization, their spouses or adult children, or volunteers to whom no compensation is paid, to sell or otherwise participate in the sale of fireworks at such fireworks stand. (3) It is unlawful for a non-profit organization to pay any consideration to any person for selling or otherwise participating in the sale of fireworks at such fireworks stand, except the hiring of a night watchman or security officer. 3-1.220 Revocation of Permit and Seizure of Fireworks.
Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Revocation of Fireworks Sales Permit. The Fire Code Official, or his/her designee, may revoke, immediately and without notice or hearing, the "Safe and Sane" fireworks sales permit of any location or organization when any of the provisions of Sections 3-1.220, 3-
1.221, or 3-1.223 are violated. The Fire Code Official shall inform the permittee that permittee may seek review of the Fire Code Official's decision, by the City Manager, on the next business day. At the earliest opportunity on the next business day after revocation, the Fire Code Official shall provide the City Manager with written notice that a fireworks sales permit has been revoked, including the name of the permittee and a brief statement of the grounds for revocation. If requested by the permittee, the City Manager, or his/her designee, shall meet with the permittee and the Fire Code Official, or his/her designee, that day to review the Fire Code Official's decision. The decision of the City Manager shall be final.
Revocation of any sales permit will be effective for that calendar year. 3-1.221 Fireworks Displays Insurance Required.
Section 5608 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Insurance.
1. The permittee shall furnish a certificate of insurance for each policy required, executed by the company issuing such policy, and approved as to form by the Risk Manager.
Such policies shall contain a provision which holds the City as an additional insured and declaring said insurance to be primary and that no other insurance carried by an insured party shall be called upon for contribution. Notwithstanding any other provision of this section, the failure of the permittee to carry such insurance during the time covered by such permit shall automatically revoke the permit as of the date of expiration of such insurance policy or policies. A payment of one hundred and two dollars ($102.00) shall be made to the City before any such revoked permit may be reinstated.
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2. The permittee/licensee shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of five hundred thousand dollars ($500,000).
(b) General Liability insurance with a minimum limit of liability per occurrence of five million dollars ($5,000,000) for bodily injury and five hundred thousand ($500,000) for property damage. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent permittee/licensees and subcontractors; products and completed operations; and professional liability.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of one million dollars ($1,000,000) for bodily injury and one hundred thousand ($100,000) for property damage or one million ($1,000,000) combined single limit. This insurance shall cover any automobile for bodily injury and property damage. If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the permittee/licensee shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the permittee/licensee to furnish, deliver or maintain such insurance and certificates as above provided, the permit/license is automatically revoked. Failure of the permittee/licensee to obtain and/or maintain any required insurance shall not relieve the permittee/licensee from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the permittee/licensee concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers. The permittee/licensee's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The permittee/licensee must deliver certificates evidencing existence of the insurance listed above to the Finance Director at the time the permit is granted.
Permittee/licensee shall provide City with separate endorsements evidencing proof of the City's additional insured status as to both the general liability and automobile liability insurance policies. In addition, permittee/licensee shall provide City with a Worker's Compensation #31..
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subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.
For any claims related to a permit, the permittee/licensees insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the permittee/licensee's insurance and shall not contribute with it.
3. The permittee/licensee shall agree to hold the City of Modesto, its agents, officers, employees, and volunteers harmless from and save, defend, and indemnify them against any and all claims, losses, liabilities, and from every cause, including but not limited to injury to person or property or wrongful death, with the indemnity to include reasonable attorney fees and all costs and expenses arising directly or indirectly out of any act or omission of permittee arising out of any activity authorized by the permit.
4. The permittee/licensee shall provide at its own expense and maintain at all times the specified insurance policies with insurance companies approved by the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Finance Director of the City by registered mail, return receipt requested.
3-1.222 Storage of Flammable and Combustible Liquids in Tanks.
Section 5704 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Location Where above Ground Tanks are Prohibited. Storage of Class I and II Liquids in aboveground tanks outside of buildings is prohibited, with the exception of protected tanks designed, installed and maintained in accordance with Chapter 57 of the 2022 California Fire Code. In addition, all above ground tanks shall be UL 2085 listed. The provisions of this section shall not apply to facilities for the production, generation, or transmission of electric energy that provide power to entities furnishing retail electrical services to the general public within the city of Modesto.
3-1.223 Storage of Flammable and Combustible Liquids.
Section 5706 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
Locations Where Above-Ground Tanks are Prohibited. The storage of Class I and II liquids in above-ground tanks is prohibited within the limits established by law as the limits of districts in which such storage is prohibited. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code.
3-1.224 Bulk Plants Storage of Flammable and Combustible Liquids. #31..
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Section 5706.4 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Bulk Plants. Portions of properties where flammable and combustible liquids are received by tank vessels, pipelines, tank cars or tank vehicles and are stored or blended in bulk for the purpose of distributing such liquids by tank vessels, pipelines, tank cars, tank vehicles or containers shall be in accordance with Section 5706.4.1 through 5706.4.10.4 of the 2022 California Fire Code.
The construction of new bulk plants for storage of flammable or combustible liquids is restricted to areas of the city of Modesto zoned Heavy Industrial Zones (M-2). All existing nonconforming bulk plants for storage of flammable or combustible liquids which substantially comply with the requirements of this Code may be continued in use if a permit therefore shall be granted by the Fire Code Official.
3-1.225 Bulk Transfer and Process Transfer Operations.
Section 5706.5 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Bulk Transfer and Process Transfer Operations. Bulk transfer and process transfer operations shall be in approved locations. Tank cars shall be unloaded only on private sidings or railroad siding facilities equipped for transferring flammable or combustible liquids. Tank vehicle and tank car transfer facilities shall be separated from buildings, aboveground tanks, combustible materials, property lines, streets, alleys or public ways by a distance of twenty (25) feet (7620 mm) for Class I liquids and fifteen (15) feet (4572 mm) for Class II and III liquids measured from the nearest position of any loading or unloading valve.
Tank vehicles and tank cars shall be unloaded as soon as possible after arrival at point of delivery and shall not be used as storage tanks. Unless otherwise approved, a tank car shall not be allowed to remain on a siding at the point of delivery for more than twenty-four (24) hours while connected for transfer operations.
3-1.226 Permits for Liquified Petroleum Gases.
Section 6101.2 of the 2022 California Fire Code is hereby adopted by reference, in addition to the following:
Permit(s) shall be required as set forth in Sections 105.5 and 105.6.
EXCEPTION:
1. Residential occupancies. Containers shall not exceed ten (10) gallons water capacity with an aggregate total of twenty (20) gallons.
2. Approved containers not exceeding sixteen and four-tenths (16.4) ounces when displayed for sale in mercantile occupancies.
3. Factory installed containers for recreational vehicles not exceeding ten (10) gallon water capacity.
4. Factory installed tanks that are permanently attached to recreational vehicles. #31..
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Distributors shall not fill an LP-gas container for which a permit is required unless a permit for installation has been issued for that location by the Fire Code Official.
ARTICLE 3. ADMINISTRATION
3-1.301 Fees and Related Fees.
(a) Permit Fee. The Council of the City of Modesto may, by resolution adopted from time to time, fix a fee for any permit issued pursuant to the Fire Code. (b) Plan Check Fee. When the valuation of proposed construction exceeds one thousand dollars ($1,000.00), or a plan is required to be submitted, a plan checking fee shall be paid at the time of submitting plans and specifications for checking.
Where plans are incomplete or changed so as to require an additional plan check, an additional plan check fee shall be charged. The Council of the City of Modesto may, by resolution adopted from time to time, fix a fee for plan checking.
Sections 107.1 and 107.5 of the 2022 California Fire Code is hereby added:
107.1 Fees: A permit shall not be issued until the fees have been paid, nor shall an amendment to the permit be released until the additional fee, if any, has been paid. 107.5 Related fees: The payment of the fee for the construction, alteration, removal, or demolition of work done in connection to or concurrently with the work or activity authorized by a permit shall not relieve the applicant or holder of the permit from the payment of the other fees that are prescribed by law. 3-1.302 Appeals.
Applicant may appeal the decision of the Fire Code Official to the City Council within thirty (30) days from the date of the decision being appealed whenever the Fire Code Official:
1. Disapproves an application for use of alternate materials, methods and/or types of construction,
2. Disapproves an application for permit or refuses to grant a permit applied for,
3. When it is claimed that the provisions of the code do not apply, or
4. When it is claimed that the true intent and meaning of the code have been misconstrued or wrongly interpreted.
3-1.303 Administrative Penalties and Remedies.
In addition to any other remedies set forth in this chapter, administrative penalties may be imposed against any person, as defined in Section 1-6.207 of the Modesto Municipal Code, or any responsible party as defined herein for violating any of the requirements set forth in this chapter. Any administrative penalties assessed shall be as follows:
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
(a) For violations of Section 3-1.215 possession, manufacture, sale, use or discharge of dangerous fireworks, the administrative penalty shall be one thousand dollars ($1,000.00) for each specific act found to be in violation of that section. (b) For all violations of this chapter, other than Section 3-1.215 possession, manufacture, sale, use or discharge of dangerous fireworks, the amount of the administrative penalty shall be two hundred fifty dollars ($250.00) for the first violation, five hundred dollars ($500.00) for a second violation within any twelve (12) month period, and seven hundred fifty dollars ($750.00) for any subsequent violations within any twelve (12) month period.
(c) For the purposes of this chapter, the term "responsible party" means any person or persons with the right of possession of the residence or other private property at which dangerous fireworks are possessed, manufactured, sold, used or discharged, including but not limited to:
(1) Any owner of the residence or other private property who occupies the residence or private property (hereinafter "owner-occupant"), meaning the record owner of real property as listed in the most current equalized assessment roll as maintained by the Stanislaus County Assessor at the time of the possession, manufacture, sale, storage, use or discharge of dangerous fireworks; (2) Any owner-occupant, lessee, licensee, or other person having control over a property, structure or parcel of land at the time of the possession, manufacture, sale, storage, use or discharge of dangerous fireworks; (3) Any person(s) who organizes, supervises, officiates, conducts or controls the gathering or any other person(s) accepting responsibility for such a gathering where dangerous fireworks are possessed, manufactured, sold, used or discharged; (d) Responsibility for Proper Property Management. Every owner, occupant, lessee, tenant, or holder of any possessory interest of a residence or other private property within the City is required to maintain, manage and supervise property and all persons thereon in a manner so as not to violate the provisions of this chapter. A responsible party need not be present at the time dangerous fireworks are possessed, manufactured, sold, used or discharged in order for the City to issue an administrative citation under this section.
(e) Nothing in this section shall be intended to limit any of the penalties provided for under the California Health and Safety Code or Penal Code.
SECTION 2. FINDINGS AND DECLARATION. As required by the 2022 California Fire Code, Section 101.1 the Council of the City of Modesto finds and declares that the foregoing additions, modifications and changes to the regulations adopted pursuant to the 2022 California Fire Code are reasonably necessary because of local climate and geographic conditions. The ordinance also prescribes local procedures to be #31..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
used in the administration and enforcement of this Code; provides for local interpretations of this Code and makes other changes in this Code consistent with local custom and practices as reflected in the prior local Fire Code.
SECTION 3. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 4. SAVINGS. The provisions of this ordinance shall not affect any proceedings, suit or prosecution heretofore or hereafter commenced under the provisions of the Municipal Code as they existed prior to the effective date of this ordinance. No offense committed and no liability, penalty or forfeiture, either civilly or criminally incurred under the provisions of the Municipal Code as they existed prior to the effective date of this ordinance shall be discharged or affected by the adoption of this ordinance; but prosecutions and suits for such offenses, liabilities, penalties or forfeitures shall be instituted or proceeded with in all respects as if this ordinance had not been adopted.
SECTION 5. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 6. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The
City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA #31..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3).
SECTION 7. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of March, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
(Seal)
APPROVED AS TO FORM:
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
By: _______________________________
JOSE M SANCHEZ, City Attorney
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______,2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
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CHAPTER 1. ADOPTION OF THE CALIFORNIA FIRE CODE, 20192022 EDITION (Ord. 826 N.S., Ord. 160-C.S., Ord. 417-C.S., Ord. 1086-C.S., Ord. 1219-C.S., Ord. 1299-C.S., Ord. 1699-C.S., Ord. 2035-C.S., Ord. 2110-C.S., Ord. 2158-C.S., Ord. 2273-C.S., Ord. 2687-C.S., Ord. 2724-C.S., Ord. 2789-C.S., repealed and reenacted by Ord. 2828-C.S., as amended by Ord. 2905-C.S., Ord. 2950-C.S., Ord. 2976-C.S., Ord. 3003-C.S., Ord. 3055-C.S., Ord. 3143-C.S., § 1, Ord. 3145-C.S., Ord. 3187-C.S., § 1, Ord. 3277-C.S., § 1, Ord. 3378-C.S., § 1, Ord. 3416-C.S., § 1, Ord. 3439-C.S., § 1, effective 6-7-07; Ord. 3466-C.S., § 1, effective 1-3-08; Ord. 3515-C.S., § 1, effective 6-12-09; amended in its entirety by Ord. 3545-C.S., § 1, effective 1-13-11; amended in its entirety by Ord. 3663-C.S., § 1, effective 1-6-17; repealed and replaced by Ord. No. 3712-C.S., §§1, 2, effective 1-2-2020.
ARTICLE 1. FIRE CODE
3-1.101 Findings for Adoption of the California Fire Code, 20192022 Edition.
The City Council of the City of Modesto hereby finds and determines: That the International Code Council is a private organization which has been in existence for at least three (3) years. That the California Fire Code, 20192022 Edition, published by said organization, is a nationally recognized compilation of proposed rules, regulations, and standards of said organization. That said California Fire Code, 20192022 Edition has been printed and published as a code in book form within the meaning of Section 50022.2 et seq. of the Government Code. That one (1) copy of the California Fire Code, 20192022 Edition, certified by the City Clerk of the City of Modesto to be a true copy, has been filed for use and examination by the public in the office of the City Clerk of the City of Modesto. Sections of the California Fire Code, 20192022 Edition may be referred to by the number used in said published compilation, preceded by the words "California Fire Code Section" or "Fire Code Section", and may also be referred to by additional reference to the Modesto Municipal Code and sections therein pertaining to said California Fire Code, 20192022 Edition.
The additional requirements and standards established herein are needed to properly protect the health, safety, and welfare of the existing and future residents and workers of the City of Modesto. Said requirements and standards are reasonably necessary because of local climatic, geological, and topographical conditions, and comply with existing state laws and regulations.
Amendment of the California Fire Code, 20192022 Edition, is necessary so as to provide more stringent standards for fire extinguishing systems; fire hazard and hazardous materials controls is necessary to serve the public interest by reducing the risk to life and property of the citizens of Modesto because of the following climatic and topographical local conditions:
(a) Summer weather conditions are very dry, hot and windy causing ordinary combustibles to be easily ignited and fires to be fast spreading;
(b) Very dense fog conditions occur in winter. Reduced visibility causes delays in fire response; (c) Fire response is delayed by railroad tracks which:
(1) Divide the City from northeast between Tully Road and McHenry Avenue to the west side of Ninth Street;
(2) Run parallel to Highway 99 through the City, restricting response at locations where overpasses are not provided;
(3) Run parallel to Yosemite Boulevard restricting access to the airport, Tuolumne Regional Park, and adjacent areas; and
(4) Restrict access at intersections and streets in the areas of Ninth, Tenth, D, and E Streets. #31..
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(d) Modesto Irrigation Canal #3 restricts access to the neighborhoods and developments to the north and east of Briggsmore Avenue from Oakdale Road to Claus Road; (e) Fire response is delayed by rivers and creeks which:
(1) Divide the southwest area of the City and City contract areas and restrict access to these areas; and (2) Divide the City from east to southwest along Scenic Drive.
THEREFORE, for the above reasons taken individually and cumulatively and in accordance with the authority granted in Sections 17958.5 and 17958.7 of the California Health and Safety Code, the Council of the City of Modesto expressly finds there are local climatic and topographical conditions that make the increased fire protection requirements set forth in this chapter reasonably necessary. 3-1.102 Adoption by Reference of the California Fire Code, 20192022 Edition. (a) That certain document, one (1) copy of which is on file in the office of the City Clerk of the City of Modesto, being marked and designated as the California Fire Code, 20192022 Edition, California Code of Regulations Title 24, Part 9, including Appendix Chapter 4, and Appendix B, BB,C CC,D , E, F, G, I, K, , N, O and Division 1 California Administration and Division II Scope and Administration as published by the International Code Council, regulating and governing the safeguarding of life and property from fire and explosion hazards arising from the storage, handling, and use of hazardous substances, materials and devices, and from conditions hazardous to life or property in the occupancy of buildings and premises as herein provided; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said California Fire Code, 20192022 Edition, on file in the office of the City Clerk of the City of Modesto is hereby referred to, adopted, and made a part hereofin accordance with, as if fully set out in this ordinance, with the additions, insertions, deletions and changes, if any, prescribed in this chapter be and is hereby adopted as the Fire Code of the City of Modesto.
(b) These regulations shall be known as the Fire Code of the City of Modesto and may be cited as such or may be cited as the "California Fire Code, 20192022 Edition," the "20192022 California Fire Code", "the Fire Code", or "this Code."
3-1.103 Repeal of Conflicting Ordinances.
All former ordinances or parts thereof conflicting or inconsistent with the provisions of this ordinance or with the 20192022 California Fire Code as adopted and amended are hereby repealed.
ARTICLE 2. AMENDMENTS, ADDITIONS AND DELETIONS TO THE 20192022 CALIFORNIA FIRE CODE 3-1.201 Combustible Waste Material.
Section 304.1.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the amended by adding the following:
304.1.2. Vegetation. When the Fire Code Official determines that total removal of growth is impractical due to the size or environmental factors, approved fuel breaks shall be established. Designated areas shall be cleared of combustible vegetation to establish the fuel breaks.
Abatement of a public nuisance shall be in accordance with Article 6 of Chapter 6 of Title 1 of the Modesto Municipal Code. The Fire Department may impose a nuisance abatement lien pursuant to Section 1-6.702 of the Modesto Municipal Code.
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The Fire Department may recover, from a property owner, those costs associated with the suppression costs incurred in fighting a fire and for providing rescue or emergency medical services should a fire occur on said property after the owner has been notified to abate such public nuisance and has failed to do so. 3-1.202 Vehicle Impact Protection.
Section 312.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to theamended to read as followings:
312.2. Posts. Guard posts or other approved means shall be provided to protect storage tanks and connected piping, valves and fittings; dispensing areas; and use areas subject to vehicular damage. When guard posts are installed, the posts shall be:
1. Constructed of steel not less than six (6) inches in diameter and concrete filled,
2. Spaced not more than four (4) feet between posts on center,
3. Set not less than three (3) feet deep in a concrete footing of not less than a fifteen (15) inch diameter,
4. Set with the top of the posts not less than three (3) feet above ground, and
5. Located not less than five (5) feet from the tank.
3-1.203 Fire Protection and Water Supplies.
Section 507.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended to read as follows:
507.1. Required Water Supply.
(a) An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, building or portions of buildings are hereafter constructed or moved into or within the jurisdiction. See Appendix-B of the 20192022 California Fire Code. (b) Fire hydrants shall be located on the supply side of the fire suppression system check valve. (c) Fire hydrants shall be accessible to the Fire Department apparatus by roads meeting the requirements of Section 503.1 of the 20192022 California Fire Code.
3-1.204 Where Required.
Section 507 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended to read as follows:
Section 507.5.1 Where required. Where a portion of a facility or building hereafter constructed or moved into or within the jurisdiction is more than 200 feet from a hydrant on a fire apparatus access road, as measured by an approved route around the exterior of the facility or building, on-site fire hydrants and mains shall be provided where required by the fire code official. 3-1.205. Fuel Fired Appliances.
Section 603.4 of the 2019 California Fire Code is hereby amended to read as follows:
603.4. Portable Unvented Heaters. The use of listed portable unvented fuel-fired heating equipment is limited to supplemental heating in Group S-2, and U occupancies. #31..
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3-1.2056 Incinerators.
Section 605.83.8 of the 20192022 California Fire Code is hereby amended to read as followsadopted by reference, in addition to the following:
603.8. Incinerators. The use of incinerators is prohibited inside the City limits of Modesto.
EXCEPTION: Incinerators used by state licensed facilities for the cremation of human or pet remains.
Subsections 603.8.1, 603.8.2, 603.8.3, and 603.8.4 are deleted. 3-1.206 Open burning, recreational fires, and portable outdoor fireplaces Section 307.1ofthe 2022 California Fire Code is hereby added to read as followsadopted by reference:
307.1 GeneralOpen burning, recreational fires, and portable outdoor fireplaces. A person shall not kindle or maintain or authorize to be kindled or maintained any open burning unless conducted and approved in accordance with sections 307.1.1 through 307.5 3-1.207 Automatic Sprinkler Systems.
Section 903.2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
New Construction.
(a) An approved automatic fire sprinkler system is required in all new buildings and structures constructed on or after the effective date of this ordinance, notwithstanding the use and occupancy thereof, when the total floor area under one roof any fire area, as defined in the California Fire Code exceeds five thousand (5,000) square feet. Fire area separation walls shall not be used for the purpose of eliminating automatic fire sprinkler systems required by this section. (b) When automatic sprinkler systems are required by the Modesto Municipal Code or the 20192022 California Fire Code for certain uses and/or occupancies, the requirements of Section 903.2 of the 20192022 California Fire Code shall also apply.
(c) An approved automatic residential fire sprinkler system shall be installed in all one and two-family dwellings and townhouses in accordance with NFPA 13D or Section R313.3 of the 2019 California Residential Code.
EXCEPTION: Carports, sheds, tanks, towers and agricultural buildings.
1. U Occupnacies and gas station canopies
2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.
Existing Buildings and Structures.
An approved automatic fire sprinkler system shall be installed in all existing buildings and structures when either of the following conditions are met:
(a) The value of additions, alterations or repairs are made within any twelve-month period that exceed fifty (50) percent of the current county assessed valuation for improvements only in the existing building or structure that exceeds five thousand (5,000) square feet or additions result in said building or structure exceeding five thousand (5,000) square feet. (b) Following any catastrophic event such as fire, flood, or natural disaster. #31..
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EXCEPTION:
1. U Occupnacies and gas station canopies
2. Fire areas that are 5,000 square feet or less, unless the specific building occupancy classification requires sprinklers.
Carports, sheds, tanks, towers and agricultural buildings.
2. Each portion of an existing building or structure separated by one or more fire walls, constructed in accordance with the current adopted edition of the Building Code, when each portion does not exceed five thousand (5,000) square feet.
3-1.208 Monitoring.
Section 903.4.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to amended by adding the following:
Alarm, supervisory and trouble signals shall be distinctly different and shall be automatically transmitted to a UL LISTED supervising station as defined in NFPA 72 or, when approved by the Fire Code Official, shall sound an audible signal at a constantly attended location.
3-1.209 Portable Fire Extinguishers.
Section 906.9.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
906.9.1 Extinguishers Weighing 40 Pounds or Less. Portable fire extinguishers having a gross weight not exceeding forty (40) lbs. (18 kg) shall be installed so that their tops are not more than four (4) feet above the floor.
Existing Installations. Portable fire extinguishers shall only be required to be lowered during tenant improvements.
3-1.210 Fire Alarm and Detection Systems.
Section 907. 2 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended by adding the following section:
Where required - New Buildings and Structures. An approved fire alarm system installed in accordance with the provisions of this code and NPFP 72 shall be provided in new buildings and structures in accordance with Sections 907.2.1 through 907.2.23 of the California Fire (20192022 Edition) and provide occupant notification in accordance with Section 907.5, unless other requirements are provided by another section of this code. a. All fire alarm and detection systems shall require Central Station Services monitoring as defined by and in accordance with the 2016 Edition of NFPA 72, Chapter 26. A (UL) Underwriters Laboratories Certificate of (FM) Factory Mutual Placard, in accordance with the 2016 Edition of NFPA 72, Chapter 26, shall be issued by the UL listed or FM approved prime contractor for all newly installed fire alarm systems that are newly installed in commercial occupancies for which permits are required by the Modesto Fire Department, Division of Fire Prevention, on or after 1/1/2020. b. Any existing fire alarm system in a commercial occupancy wherein the fire alarm control panel and alarm system components require replacement, shall be considered newly installed for the purposes of this section and shall require Central Station Service in accordance with the 2016 Edition of NFPA 72 Chapter 26.
c. Central Station Service in full compliance with the 2016 Edition of NFPA Chapter 26, shall be maintained at the protected property, so long as the requirement for the fire alarm system exist. #31..
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Exception. Supervisory service is not required for:
i) Single and multiple-station smoke alarms required by Section 907.2.10 ii) Smoke detectors in Group I-3 occupancies.
iii) Automatic sprinkler systems in one and two-family dwellings. 3-1.211. False Fire Alarms.
Section 907 of the 20192022 California Fire Code is hereby amended by adding the following sectionadopted by reference, in addition to the following:
907.11 False Fire Alarms. False fire alarms shall not be given, signaled or transmitted or caused or permitted to be given, signaled or transmitted. The City Council may adopt by resolution reasonable fees to recover the costs associated with responses to buildings or structures that have excessive false fire alarms. 3-1.212 Hazardous Materials OccupanciesInventory Statement.
Section 5001.5.32 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
10. Key Box. When required by the Fire Code Official, an approved key box, sized to contain emergency information, (HMMP, HMIS and Material Safety Data Sheets) shall be provided. 3-1.213 Deposits of Hazardous Materials; Cleanup, Abatement, or Mitigation Required; Liability for Costs.
Section 5003.3.1.4 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
Responsibility for Cleanup. The person, firm or corporation responsible for an unauthorized discharge shall initiate and complete all actions necessary to remedy the effects of such unauthorized discharge, whether sudden or gradual, at no cost to the jurisdiction. When deemed necessary by the Fire Code Official, cleanup may be initiated by the Fire Department or by an authorized individual or firm. Costs associated with such cleanup shall be borne by the owner, operator or other person responsible for the unauthorized discharge.
The remedy provided by this section shall be in addition to any other remedies provided by law.
For purposes of this section, costs incurred by the City shall include, but shall not necessarily be limited to, the following: actual labor costs of City personnel, including worker's compensation benefits, fringe benefits, administrative overhead; cost of equipment operation; cost of materials obtained directly by the City; and cost of any contract labor and materials. The authority to recover costs under this section shall not include actual fire suppression services that are normally or usually provided by the Fire Department. 3-1.214 Stationary Containers.
Section 5504.3.1.1.3 of the 20192022 California Fire Code is adopted by reference, in addition to the following amended by adding the following:
Location. Storage of flammable cryogenic fluids in stationary containers outside of buildings is prohibited within the limits established by law as the limits of districts in which such storage is prohibited. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code. 3-1.215 Permits Required for Explosives.
Section 5601 of the 2019 California Fire Code is hereby amended by adding the following:
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5601.2 Permits Required. When permits are required to be issued by the Fire Code Official, the Fire Code Official may grant the authority to the agency having enforcement jurisdiction. A Permit shall be obtained:
1. To possess, store, sell, display or otherwise dispose of explosive materials at any location.
2. To transport explosive materials.
3. To use explosive materials.
4. To operate a terminal for handling explosive materials. 3-1.2156 Possession, Manufacture, Sale, Use or Discharge of Dangerous Fireworks.
Section 5604 of the 20192022 California Fire Code is hereby adopted by reference in addition to the amended by adding the following:
5604.1.2 Dangerous Fireworks
(a) For purposes of this section, dangerous fireworks are those fireworks specified as such in the State Fireworks Law, Section 12505 of the California Health and Safety Code, and such other fireworks as may be determined to be dangerous by the State Fire Marshal.
(b) It shall be unlawful for any person to possess, manufacture, sell, use or discharge dangerous fireworks, or a dangerous firework kit, unless a permit authorizing such possession, sale, manufacture, use or discharge has been issued by the Fire Code Official to the person or responsible party, as is defined in Section 3-1.304 of the Modesto Municipal Code, using, selling, manufacturing, discharging or found in possession of said fireworks or kits, and unless such person is in possession of a valid pyrotechnic operator's license issued by the Office of the State Fire Marshal. The Fire Code Official may establish reasonable rules and regulations for governing issuance of a firework permit and may issue the same subject to payment of a fee as established by the City Council from time to time. (c) The Fire Code Official, or designee, shall seize, take, remove or cause to be removed, at the expense of the owner, all stocks of dangerous fireworks offered or exposed for sale, stored, or held in violation of this chapter.
3-1.2167 Explosive Materials Prohibited and Limited Acts.
Section 5605.1 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingmended as follows by adding:
5605.1 General. The manufacture, assembly and testing of explosives, ammunition, blasting agents and fireworks shall comply with the requirements of this section and NFPA 495 or NFPA 1124. 5605.1.1 Manufacturing. Explosive materials shall not be manufactured within the city limits of Modesto. 5605.1.2 Limits Established by Law. The storage of explosives and blasting agents is restricted to those areas of the City zoned as Heavy Industrial Zone (M-2).
EXCEPTION:
1. Temporary storage for use in connection with approved blasting operations conducted in accordance with all applicable provisions of this article.
2. Wholesale and retail storage and display of ammunition and gunpowder shall be in accordance with Title 19 California Code of Regulations, Division I, Chapter 10. #31..
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Created: 2022-07-27 10:51:52 [EST]
(Supp. No. 61)
3-1.2178 Manufacturing of Fireworks.
Section 5605 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended by adding the following:
5605.1.3 Manufacturing. The manufacturing of fireworks is prohibited within the city limits of Modesto. 3-1.219 Permits: Displays of Fireworks and Appeal Process.
Section 5608 of the 2019 California Fire Code is hereby amended by adding the following:
5608.2 Permits. The Fire Code Official may grant a permit for the display of fireworks, including proximate audience displays and pyrotechnic special effects in theatrical and group entertainment as applied for, or with conditions thereto, unless s/he finds that to do so would be contrary to the public health, safety, or welfare. The decision of the Fire Code Official shall be in writing and shall be mailed, postage prepaid, to the applicant.
5608.3 Appeal. The decision of the Fire Code Official, in acting on an application for permission to conduct a public display in accordance with the provisions of this section may be appealed to the City Manager. Notice of an appeal of the Fire Code Official's decision shall be filed by the applicant with the City Clerk within ten (10) days after the date of the decision. Upon failure to file such notice within the ten (10) day period, the action of the Fire Code Official shall be final and conclusive. The applicant may appeal the decision of the City Manager to the City Council by filing a notice of appeal to the City Clerk within ten (10) days after the date of the City Manager's decision. Upon failure to file such notice within the ten (10) day period, the action of the City Manager, or his/her designee, shall be final and conclusive. 5608.4 Fee. A nonrefundable fee as established by resolution of the City Council, from time to time, shall accompany every application for permission to conduct a public display of fireworks. This fee shall be in addition to any other fee or tax imposed by Title 6 of the Modesto Municipal Code. 3-1.21820 Sales of Fireworks.
Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the followingamended by adding the following:
5608.5 Sales. It shall be unlawful to engage in the sale of "Safe and Sane" fireworks in the City of Modesto without first having secured a permit to do so.
(1) Effective 2005, the total number of sales permits issued in any given year shall be limited to seventy (70).
(2) Sales permits for the sale of "Safe and Sane" fireworks in the City of Modesto shall be issued only to local nonprofit organizations and existing local for-profit organizations as defined herein. (A) A "nonprofit organization" shall mean any nonprofit association, club, or corporation organized for veteran, patriotic, welfare, religious, civic betterment, youth or charitable purposes, as defined by Section 501(c) of the Internal Revenue Code of the United States, or affiliated with a public school located within the city limits of Modesto. Each new organization shall provide the City with a copy of their "Letters of Incorporation" as proof of their nonprofit status. Existing organizations shall submit verification of current corporation status from the State of California Secretary of State's Office. Those organizations that are an integral part of a recognized national organization having tax exempt status must provide IRS written verification of such status. All applications will be subject to additional verification with the State of California and IRS if nonprofit status comes into question.
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(B) Public school organizations shall provide current written verification of affiliation from the school each year.
(C) A "local nonprofit organization" must have its principal and permanent meeting place in the City of Modesto or within the City of Modesto sphere of influence. The organization must have obtained nonprofit status and have been organized and established in the City of Modesto for a minimum of one (1) continuous year preceding the filing of the application for permit. The organization must also have a bona fide membership of at least ten (10) members who reside in the City of Modesto, which will be verified each year. Applications shall be signed by two (2) bona fide officers of the eligible organization, wherein the officer, on behalf of the organization and its agents, agrees to abide by State laws, administrative regulations, and all stipulations of this Code and the permit if permission to operate a fireworks stand is granted to the organization. (D) An "existing local for-profit organization" must have a permitted fixed business location in the City of Modesto, have been issued a fireworks sales permit the previous year, have remained under the same management and/or ownership continuously since 1999, and have paid all business license and mill tax fees due the City of Modesto by the close of the application period. In the event mill taxes and business license fees are not current the organization's application will be denied.
(E) If any of the above items fail to be met at the time of application, the organization's application shall be denied.
(3) Sales permits for retail sales of "Safe and Sane" fireworks in the City of Modesto issued pursuant to provision of this Code are not transferable by the holder of the permit. The sales permits may be used only by the organization to which they are issued. Violations will result in the immediate loss of the organization's sales permit.
(4) All applications for sales permits shall be in writing to the Fire Code Official on forms supplied by the City. Applications may only be filed during normal business hours from April 1st of each year up to and including April 30th of the same year, at which time the filing period for that year will close. A separate sales permit shall be required for each proposed location of a fireworks stand.
Each organization may file an application for one (1) sales permit for which there is only one tax ID number. (5) Applications shall set forth the proposed location of the fireworks stand including the nine (9) digit parcel number (APN) of the Stanislaus County Assessor, a site map, and other information as may be required by the Fire Code Official.
(6) Applicants for sales permits shall be notified by June 15th of each year by the Fire Code Official of approval or disapproval of such application. Sales permits will be issued after final inspection of the stand reveals compliance with all state and local regulations. Organizations shall not open for sales prior to the final inspection of their stand. If an organization's stand fails to pass inspection there will be a re-inspection fee charged for the third (3rd) inspection, and each inspection thereafter until final inspection is approved, as established by Resolution No. 03-446. (7) Every application shall be accompanied by proof of insurance as specified in Section 3-1.22 3. Other items required at the time of application will be the organization's verification of eligibility as stated in 2(A) above, list of bona fide members, and current written permission signed by the property owner of record (with respect to lessee permission, approval shall be in the sole discretion of the Fire Code Official to sell fireworks at that location. Organizations representing public schools, as stated in 2(B) above, require written verification from the school of their affiliation. (8) Every application shall be accompanied by a nonrefundable application fee as established by resolution of the City Council from time to time. This application fee shall be in addition to any fees or taxes imposed by Title 6 of the Modesto Municipal Code.
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(9) Any local nonprofit organization as defined herein may make application for a sale permit but preapproved (continuously permitted since 1999) organizations will have first option for a permit. (A) When additional sales permits are authorized and all current pre-approved organizations have applied for such permits, a lottery will be held to fill any vacancies. (B) This lottery will be held fourteen (14) days after the last day of the filing period specified in paragraph 4 and will include the names of all new local nonprofit organizations that have filed a complete application within the said filing period. If the fourteenth (14th) day falls on a weekend the lottery will be held on the next business day.
(C) One organization will be drawn for each available vacancy. If the organization whose name is drawn declines the permit, another name will be drawn until each vacancy is filled. (D) Any organization having an approved application that fails to open their stand for that sales year will automatically forfeit their permit and a new organization will be chosen the following year provided a permit is available.
(10) A nonprofit organization may apply for a sales permit with regard to a stand located in an area annexed by the City of Modesto under the following conditions:
(A) Two (2) consecutive years prior to annexation, the applicant was issued a sales permit, by the City or County in which the property was formerly located, and applicant presents proof of the issuance of said permits;
(B) The applicant has received a valid City of Modesto business license; and (C) The organization must either:
(1) Meet the criteria of set forth in Section 33-1.223(2) (A) or (2) Present documentary evidence establishing its primary meeting for a minimum of two (2) years preceding application to City of Modesto was at the location for which the sales permit is currently sought.
(D) Annexed property that was previously used for a temporary booth by an organization whose current primary meeting place is outside the city limits of Modesto is not eligible to make application for a sales permit.
Permits issued to these organizations will be issued without the necessity of being selected by lottery, even though such issuance may increase the number of permits to more than allowed herein. The addition of these organizations does not change the original intent to issue a total of seventy (70) sales permits per year. 3-1.21921 Sales, Storage, Use, and Handling of Fireworks.
Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
5608.6 General. Sales, storage, use, and handling of fireworks shall be in accordance with this chapter.
1. Sales. Retail sale or display with the intent to sell fireworks is limited to State of California Fire Marshal approved and labeled "Safe and Sane" fireworks within the City of Modesto, by State of California licensed retailers, provided a permit to sell those fireworks has been approved and obtained from the Fire Code Official. Fireworks may be sold or offered for sale from 12:00 noon to 10:00 p.m. on June 28, 9:00 a.m. to 10:00 p.m. on June 29 through July 5, and 9:00 a.m. to 12:00 noon on July 6.
The storage of fireworks within the City of Modesto is limited to State of California Fire Marshal-approved and labeled "Safe and Sane" fireworks by State of California licensed wholesalers and retailers. (A) Wholesale Storage. Wholesalers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 1 through July 31 of each year. Storage facilities shall comply #31..
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with H3 occupancy classification requirements as defined by the 20192022 California Building Code.
(B) Retailers Storage. Retailers may store "Safe and Sane" fireworks within the City of Modesto solely during the period of June 22 through July 15 of each year. "Safe and Sane" fireworks that are not being sold or displayed with the intent to sell, shall be stored solely in the following manner:
(1) Within the permitted fireworks stand with a responsible adult on the premises at all times. (2) In a completely enclosed and locked utility type trailer constructed of one-fourth (1/4) inch plywood or other approved noncombustible material.
(3) In a completely detached garage on residential property with a minimum ten (10) feet clearance from other structures or property lines. There shall be no open-flame or spark producing equipment, or Class 1 flammable liquids stored or used within the garage. (4) Fireworks shall not be stored within forty (40) feet of any building classified or used as a public or private school, day care facility, residential care facility, hospital, place of detention, public oil/gas station, or public garage, or any place of public assembly that can accommodate fifty (50) or more persons.
(5) In an approved and permitted fireworks warehouse.
2. Operator Safety. Each year, one (1) or more representatives from each organization, that is granted a permit to sell fireworks, shall attend a stand operator safety seminar conducted by the City of Modesto Fire Department and the fireworks industry. Failure to attend the seminar shall result in the revocation of the organization's permit to sale fireworks for that calendar year.
3. Temporary Fireworks Stands.
(1) All retail sales of "Safe and Sane" fireworks shall be permitted only from within a temporary fireworks stand and sales from any other building or structure is hereby prohibited. (2) City Business License, Fire Department Permit and State License shall be displayed in the fireworks stand during hours of operation.
(3) Temporary fireworks stand shall not be set up before application for permit has been approved no earlier than June 14.
(4) The fireworks stands shall be located at least twenty (20) feet from other structures. (5) Zoning of property, in which the fireworks stand will be located, shall be in accordance with Section 10-2.2330 of the Modesto Municipal Code.
(6) Fireworks shall not be stored, sold, offered for sale, or discharged within one hundred (100) feet of a location where gasoline, LPG, other class 1 flammable liquids or flammable gasses are stored or dispensed.
(7) All unsold stock and accompanying litter shall be removed from the location by 5:00 p.m. on the 6th day of July.
(8) The fireworks stand shall be removed from the temporary location by 12:00 noon on the 12th day of July, and all accompanying litter shall be cleared from said location by said time and date. (9) A penalty of one hundred dollars ($100.00) per day will be assessed to the permittee of any fireworks stand not removed by 12:00 noon on the 12th day of July.
4. Safety Precautions.
(1) No person under the age of eighteen (18) shall sell, or handle for sale, any classification of fireworks.
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(2) No person under the age of eighteen (18) shall purchase or be allowed to purchase any classification of fireworks.
(3) Smoking, open-flame, and spark-producing equipment shall be prohibited for a distance of twenty (20) feet around any fireworks stand.
(4) Dry grass, weeds, trash, and other combustible material shall be removed for a distance of twenty (20) feet around any fireworks stand.
(5) Fireworks shall not be discharged within fifty (50) feet of a fireworks stand.
5. Stand Construction.
(1) Merchandise may be displayed in approved glass enclosed counters or showcases, or (2) Merchandise may be displayed in stands constructed in the following manner:
(A) Walls and roof shall be of plywood at least one-fourth (1/4) inches thick or of an approved noncombustible material.
(B) The stand shall be provided with a roof.
(C) Walls shall extend to a minimum height of six (6) feet eight (8) inches, on at least three (3) sides. These three (3) sides shall be without openings, except for an exit door. (D) An exit door with a minimum size of twenty-four (24) inches in width and six (6) feet in height shall be provided in each stand. Exits shall be maintained clear and unobstructed at all times.
(E) The front wall of the stand shall provide a physical barrier not less than eighteen (18) inches in height between the public and the merchandise on display. (F) Approved "NO SMOKING" signs shall be prominently displayed in and on the stand. (G) Approved "NO SALES TO PERSONS UNDER THE AGE OF 18" signs shall be prominently displayed in the stand.
(H) An approved fire extinguisher having a minimum classification of 2A10BC shall be located in the stand, near the exit and readily accessible.
(I) Sellers of fireworks shall comply with all rules and regulations of Title 19 of the California Code of Regulations and with the rules and regulations of the Fire Code Official. (J) Stands will be limited to twenty-four (24) feet by eight (8) feet or one hundred ninety-two (192) square feet in size. Pre-existing stands as identified by the fireworks suppliers shall retain the right to operate their oversized stands, without change, until said stand or organization forfeits or loses their operating permit. A copy of said list shall remain on file with the Fire Code Official.
6. Operation of Fireworks Stand Only by Permittee.
(1) It is unlawful for the permittee organization to allow any person or entity other than the permittee organization to operate the fireworks stand for which the permit is issued, whether by agreement, assignment or otherwise, or to otherwise participate in the profits of the operation of such fireworks stand. Violations will result in the immediate loss of the organization's permit. (2) It is unlawful for a non-profit organization to allow any person other than the individuals who are members of the permittee organization, their spouses or adult children, or volunteers to whom no compensation is paid, to sell or otherwise participate in the sale of fireworks at such fireworks stand.
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(3) It is unlawful for a non-profit organization to pay any consideration to any person for selling or otherwise participating in the sale of fireworks at such fireworks stand, except the hiring of a night watchman or security officer.
3-1.2202 Revocation of Permit and Seizure of Fireworks.
Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
5608.7 Revocation of Fireworks Sales Permit. The Fire Code Official, or his/her designee, may revoke, immediately and without notice or hearing, the "Safe and Sane" fireworks sales permit of any location or organization when any of the provisions of Sections 3-1.220, 3-1.221, or 3-1.223 are violated. The Fire Code Official shall inform the permittee that permittee may seek review of the Fire Code Official's decision, by the City Manager, on the next business day. At the earliest opportunity on the next business day after revocation, the Fire Code Official shall provide the City Manager with written notice that a fireworks sales permit has been revoked, including the name of the permittee and a brief statement of the grounds for revocation. If requested by the permittee, the City Manager, or his/her designee, shall meet with the permittee and the Fire Code Official, or his/her designee, that day to review the Fire Code Official's decision.
The decision of the City Manager shall be final.
5608.7.1 Revocation of any sales permit will be effective for that calendar year. 3-1.2213 Fireworks Displays Insurance Required.
Section 5608 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended by adding the following:
5608.8 Insurance.
1. The permittee shall furnish a certificate of insurance for each policy required, executed by the company issuing such policy, and approved as to form by the Risk Manager. Such policies shall contain a provision which holds the City as an additional insured and declaring said insurance to be primary and that no other insurance carried by an insured party shall be called upon for contribution.
Notwithstanding any other provision of this section, the failure of the permittee to carry such insurance during the time covered by such permit shall automatically revoke the permit as of the date of expiration of such insurance policy or policies. A payment of one hundred and two dollars ($102.00) shall be made to the City before any such revoked permit may be reinstated.
2. The permittee/licensee shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of five hundred thousand dollars ($500,000). (b) General Liability insurance with a minimum limit of liability per occurrence of five million dollars ($5,000,000) for bodily injury and five hundred thousand ($500,000) for property damage. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent permittee/licensees and subcontractors; products and completed operations; and professional liability.
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(c) Automobile Liability insurance with a minimum limit of liability per occurrence of one million dollars ($1,000,000) for bodily injury and one hundred thousand ($100,000) for property damage or one million ($1,000,000) combined single limit. This insurance shall cover any automobile for bodily injury and property damage. If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the permittee/licensee shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the permittee/licensee to furnish, deliver or maintain such insurance and certificates as above provided, the permit/license is automatically revoked. Failure of the permittee/licensee to obtain and/or maintain any required insurance shall not relieve the permittee/licensee from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the permittee/licensee concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers. The permittee/licensee's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The permittee/licensee must deliver certificates evidencing existence of the insurance listed above to the Finance Director at the time the permit is granted.
Permittee/licensee shall provide City with separate endorsements evidencing proof of the City's additional insured status as to both the general liability and automobile liability insurance policies. In addition, permittee/licensee shall provide City with a Worker's Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.
For any claims related to a permit, the permittee/licensees insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the permittee/licensee's insurance and shall not contribute with it.
3. The permittee/licensee shall agree to hold the City of Modesto, its agents, officers, employees, and volunteers harmless from and save, defend, and indemnify them against any and all claims, losses, liabilities, and from every cause, including but not limited to injury to person or property or wrongful death, with the indemnity to include reasonable attorney fees and all costs and expenses arising directly or indirectly out of any act or omission of permittee arising out of any activity authorized by the permit.
4. The permittee/licensee shall provide at its own expense and maintain at all times the specified insurance policies with insurance companies approved by the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Finance Director of the City by registered mail, return receipt requested.
3-1.2224 Storage of Flammable and Combustible Liquids in Tanks.
Section 5704 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
5704.2.9.6.1 Location Where above Ground Tanks are Prohibited. Storage of Class I and II Liquids in aboveground tanks outside of buildings is prohibited, with the exception of protected tanks designed, installed and maintained in accordance with Chapter 57 of the 20192022 California Fire Code. In addition, all above ground tanks shall be UL 2085 listed. The provisions of this section shall not apply to facilities for the #31..
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production, generation, or transmission of electric energy that provide power to entities furnishing retail electrical services to the general public within the city of Modesto. 3-1.225 Operating Heating, Lighting and Cooking Appliances Prohibited.
Section 5705 of the 2019 California Fire Code is hereby amended to read as follows:
5705.3.3. Heating, Lighting and Cooking Appliances. Heating, lighting, and cooking appliances which utilize flammable or combustible liquids shall not be operated within a building or structure.
EXCEPTION:
1. Operation in single-family dwellings.
2. Groups S-2 and U occupancies.
(Ord. No. 3712-C.S., §§1, 2, effective 1-2-2020)
3-1.226 Storage and Dispensing of Flammable and Combustible Liquids on Farms and Construction Sites.
Section 5706 of the 2019 California Fire Code is hereby amended to read as follows:
5706.1. General. The capacity of temporary aboveground tanks containing Class I and Class II Liquids shall not exceed one thousand one hundred (1,100) gallons (4163.9 L). The capacity of permanent aboveground tanks containing Class I and II Liquids shall not exceed ten thousand (10,000) gallons (37,854 L). Temporary tanks of single-compartment design shall be constructed in accordance with Section 5706; permanent tanks shall be constructed in accordance with Chapter 57 of the 2019 California Fire Code. )
3-1.2237 Storage of Flammable and Combustible Liquids.
Section 5706 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
5706.2.4.4. Locations Where Above-Ground Tanks are Prohibited. The storage of Class I and II liquids in above-ground tanks is prohibited within the limits established by law as the limits of districts in which such storage is prohibited. All R-1, R-2 and R-3 zoning designations as identified in Title 10 of the Modesto Municipal Code.
3-1.2248 Bulk Plants Storage of Flammable and Combustible Liquids.
Section 5706.4 of the 20192022 California Fire Code is hereby adopted by reference, in addition to the following amended to read as follows:
5706.4. Bulk Plants. Portions of properties where flammable and combustible liquids are received by tank vessels, pipelines, tank cars or tank vehicles and are stored or blended in bulk for the purpose of distributing such liquids by tank vessels, pipelines, tank cars, tank vehicles or containers shall be in accordance with Section 5706.4.1 through 5706.4.10.4 of the 20192022 California Fire Code.
The construction of new bulk plants for storage of flammable or combustible liquids is restricted to areas of the city of Modesto zoned Heavy Industrial Zones (M-2). All existing nonconforming bulk plants for storage of flammable or combustible liquids which substantially comply with the requirements of this Code may be continued in use if a permit therefore shall be granted by the Fire Code Official. #31..
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Created: 2022-07-27 10:51:52 [EST]
(Supp. No. 61)