TO: HONORABLE MAYOR FROM: Planning Commission
AND CITY COUNCIL
SUBJECT: SEE BELOW DATE: October 24, 2022
SUBJECT: F
ILE NO. PP22-009. AN UNCODIFIED ORDINANCE OF THE CITY OF SAN JOSÉ TEMPORARILY EXTENDING THE TERM OF SPECIFIED
LAND USE AND HISTORIC PRESERVATION PERMITS BY TWO YEARS
FROM THEIR EXPIRATION DATES DUE TO PERSISTENT ADVERSE
ECONOMIC AND PUBLIC HEALTH IMPACTS FROM THE COVID-19
PANDEMIC.
RECOMMENDATION
The Planning Commission voted 7-2-1 (Commissioner Barocio and Young opposed; Ornelas- Wise absent) to recommend that the City Council approve an uncodified ordinance temporarily extending the term of certain land use and historic preservation permits by two years from their expiration dates.
OUTCOME
If adopted, the uncodified ordinance temporarily extends the term of certain land use and historic preservation permits that qualified for permit extensions pursuant to Ordinance No. 30460 by two years from their expiration dates.
BACKGROUND
On August 11, 2020, the City Council adopted Ordinance No. 30460 to temporarily extend the term of certain land use permits by two years from the set expiration date and tree removal permits by eight months from the set expiration date. The City Council adopted the uncodified ordinance in anticipation of an economic downturn and potential delays in construction at the beginning of the local shelter-in-place order. This was an uncodified ordinance since it was not published in the Municipal Code because it is temporary in effect and was in response to the proclaimed COVID-19 state of emergency and its impact on permits that have expired during this emergency.
COUNCIL AGENDA: 10/25/22
FILE: 22-1573
ITEM: 10.1 (a)
HONORABLE MAYOR AND CITY COUNCIL
October 24, 2022
Subject: File No. PP22-009
Under provisions of the San José Municipal Code, development permits and historic preservation permits include a set expiration term unless the required permit conditions are met. If a development permit or historic preservation permit expires without a term extension, the applicant must obtain a new permit, subject to ordinance changes since the issuance of the original permit, and could require design changes and payment of additional permit fees.
Specifically, Chapter 20.100 (Administration and Permits) of Title 20 (Zoning Ordinance) and Chapter 13.48 (Historic Preservation Ordinance) of Title 13 of the San José Municipal Code specify that the term of development permits shall be 24 months unless otherwise provided in a development permit. Staff typically includes a standard condition in development permits providing for expiration in 24 months if the construction or the use has not commenced. Further, Section 20.100.500(A) of the Zoning Ordinance authorizes the Director of Planning to approve a Permit Adjustment to extend the term of an approved development permit for up to one year, and the Director may approve a maximum of two such extensions.
The proposed uncodified ordinance would automatically extend certain permits that qualified for permit extensions pursuant to Ordinance No. 30460, including all associated permits under one entitlement approval process.
At the October 12, 2022 Planning Commission hearing, the Commission voted 7-2-1 (Commissioner Barocio and Young opposed; Ornelas-Wise absent) to recommend that the City Council approve an uncodified ordinance temporarily extending the term of certain land use and historic preservation permits by two years from their expiration dates. The Planning Commission’s comments and questions are summarized in the “Commission Recommendation/Input” section below.
ANALYSIS
A complete analysis of these proposed uncodified ordinances is contained in the attached Planning Commission Staff Report.
CONCLUSION
The Planning Commission voted 7-2-1 (Commissioner Barocio and Young opposed; Ornelas- Wise absent) to recommend that the City Council approve an uncodified ordinance temporarily extending the term of certain land use and historic preservation permits by two years from their expiration dates.
HONORABLE MAYOR AND CITY COUNCIL
October 24, 2022
Subject: File No. PP22-009
EVALUATION AND FOLLOW-UP
If the proposed uncodified ordinance is approved by the City Council, the Ordinance would be effective 30 days after final adoption.
CLIMATE SMART SAN JOSÉ
The recommendation in this memorandum has no effect on Climate Smart San José energy, water, or mobility goals.
PUBLIC OUTREACH
Staff posted a notice of the Planning Commission and City Council public hearings in the San José Post Record newspaper. This staff report is also posted on the City’s website and staff has been available to respond to questions from the public.
COORDINATION
The preparation of this memorandum has been coordinated with the City Attorney’s Office.
COMMISSION RECOMMENDATION/INPUT
At the October 12, 2022 Planning Commission hearing, Commissioner Young requested to pull this item from the hearing agenda’s Consent Calendar.
Planning staff presented the background of Ordinance No. 30460 adopted by the City Council on August 11, 2020, which temporarily extended certain land use permits by two years from the set expiration date and tree removal permits by eight months from the set expiration date. These land use permits included Site Development Permits, Conditional Use Permits, Special Use Permits, Planned Development Permits, Single Family House Permits, Administrative Permits, and Development Variances and Exceptions. The proposed uncodified ordinance would temporarily extend the term of specific land use and historic preservation permits that qualified for permit extensions pursuant to Ordinance No. 30460, including all associated permits under one entitlement approval process. This two-year permit term extension would apply to valid permits that had already been automatically extended by the current uncodified ordinance. These permits would qualify for an automatic two-year extension from the most extended permit expiration date, but not to extend past March 17, 2024. Staff explained that the reason for this additional automatic permit term extension is that economic hardships as a result of the pandemic have significantly impacted financing and construction activity, putting development projects at risk of expiring prior to the start of construction.
HONORABLE MAYOR AND CITY COUNCIL
October 24, 2022
Subject: File No. PP22-009
Chair Oliverio asked the Commission for questions and comments. Commissioner Young expressed concern about extending permits for a total of four years. He asked how it would impact a project approved in April 2020. Staff responded that if a project was approved on March 17, 2020, the permit would have had a two-year term. The permittee could also apply for Permit Adjustments with up to two one-year term extensions. The current uncodified ordinance allows an automatic two-year term extension. The proposed uncodified ordinance would grant an additional two-year extension from the most recent extended permit expiration date, but not extending past March 17, 2024, unless a Permit Adjustment is issued.
Commissioner Young posed a hypothetical scenario in which a nightclub was approved in 2020 next to two commercial buildings and since then, multi-story residential buildings were approved next door. Commissioner Young asked how the proposed ordinance would affect this situation.
Staff responded that as with all Planning entitlement applications, staff would review a proposed project to analyze existing uses and approved development projects surrounding a proposed project site.
Commissioner Young inquired about the typical process for extending a permit term. Staff explained that Permit Adjustment term extensions cost about $300. Automatic extensions do not involve a Permit Adjustment application process or permit fees.
Commissioner Young expressed that he believes that the pandemic impacts are over and that he believes this proposed ordinance benefits developers, not residents. Chair Oliverio stated that the proposed ordinance would be beneficial in that there would be a blanket permit extension for qualifying permits, rather than staff doing project-by-project extensions. Chair Oliverio asked whether permittees have requested permit term extensions during the pandemic. Staff confirmed the development community has expressed challenges in obtaining financing and construction materials for projects. This is compounded by delays in building permit review, as there is a large volume of building permit applications and a large volume of staff vacancies, which creates a longer period of time for applicants to obtain building permits to begin construction.
Staff added that after the Great Recession, the City Council adopted an ordinance in 2012 allowing two-year permit term extensions for general development and four-year term extensions for downtown office development. The 2012 ordinance also allowed the reactivation of certain expired land use permits. Staff also mentioned that the proposed ordinance would help with COVID-19 relief.
Vice Chair Lardinois stated that Commissioner Young’s concerns are reasonable and that the City should have reasonable term limits on how long entitlements last if they are not built.
However, this proposed ordinance makes sense as a way for the City to address this unprecedented pandemic situation and its impacts. This ordinance would allow projects to be built in the near future. Decision makers approve projects consistent with the General Plan and for the good of the city. Vice Chair Lardinois explained that he does not believe this proposed ordinance conflicts with that.
HONORABLE MAYOR AND CITY COUNCIL
October 24, 2022
Subject: File No. PP22-009
Vice Chair Lardinois made a motion to approve the proposed ordinance. Commissioner Cantrell seconded the motion. Commissioner Cantrell stated that he understood the necessity of the automatic extension given that these projects are already approved and create blockage for development the city wants to see happen. It would be a substantial burden on the Planning Division to process new entitlement applications for expired permits.
Commissioner Barocio asked if the proposed extension would have a sunset date. Staff responded that qualifying permits would have an automatic two-year extension from the most extended permit expiration date, but not to extend past March 17, 2024. Commissioner Barocio also asked whether this ordinance only applies to projects approved before March 17, 2020. Staff confirmed that if projects were approved by March 17, 2020, and were still valid, then those permits would be eligible for this proposed automatic permit term extension.
Commissioner Garcia reiterated that the proposed ordinance would provide a total of a six-year term from the time the project was approved, not six years from now.
Chair Oliverio asked that if the City did not move forward with this ordinance, whether the City would receive a lot of inquiries to process extensions and hold public hearings. Staff confirmed that if a permit expired, permittees would need to apply for a new entitlement permit application with the California Environmental Quality Act (CEQA) environmental review, which takes months and tens of thousands of dollars in permit fees.
Commissioner Young made an editorial comment that he commends staff for their hard work in general. He believes that there is a staffing shortage because compensation is not comparable to other jurisdictions in the county. Commissioner Young believes that this proposal is like kicking the problem down the road rather than having the City Council address compensation.
Commissioner Barocio also asked whether there is an estimate of how many projects would be eligible for this automatic extension. Staff responded that it is difficult to determine this number because term dates are not easily tracked in the City’s permitting system, but there are approximately 120 such land use applications submitted each year.
There were no public speakers on this item.
The Planning Commission voted 7-2-1 (Commissioner Barocio and Young opposed; Ornelas- Wise absent) to recommend that the City Council approve an uncodified ordinance temporarily extending the term of certain land use and historic preservation permits by two years from their expiration dates.
HONORABLE MAYOR AND CITY COUNCIL
October 24, 2022
Subject: File No. PP22-009
CEQA
Adoption of the proposed uncodified ordinance, File No. PP22-009 is not a “project” within the meaning of Section 15378 of the State California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in a direct or indirect physical change in the environment.
/s/
Chris Burton, Secretary
Planning Commission
For questions, please contact Robert Manford, Deputy Director, at (408) 535-7900.
Attachments: Planning Commission Staff Report
Draft Ordinance
TO: PLANNING COMMISSION FROM: Christopher Burton
SUBJECT: SEE BELOW DATE: September 30, 2022
SUBJECT: FILE NO. PP22-009. AN UNCODIFIED ORDINANCE OF THE CITY OF
SAN JOSE TEMPORARILY EXTENDING THE TERM OF SPECIFIED LAND USE
AND HISTORIC PRESERVATION PERMITS BY TWO YEARS FROM THEIR
EXPIRATION DATES DUE TO PERSISTENT ADVERSE ECONOMIC AND PUBLIC HEALTH IMPACTS FROM THE COVID-19 PANDEMIC
RECOMMENDATION
Staff recommends that the Planning Commission recommend that the City Council approve an ordinance extending the term of certain land use and historic preservation permits by two years from their expiration dates.
OUTCOME
Approval of the ordinance would automatically extend the terms of certain approved development permits and historic preservation permits to facilitate future implementation of projects impacted by the on-going pandemic-induced economic downtown.
BACKGROUND
Under provisions of the San Jose Municipal Code, development permits and historic preservation permits include a set expiration term unless required permit conditions are met. If a development permit or historic preservation permit expires without a term extension, the applicant must obtain a new permit, subject to ordinance changes since the issuance of the original permit and could require design changes and payment of additional permit fees.
Specifically, Chapter 20.100 (Administration and Permits) of Title 20 (Zoning Ordinance) and Chapter 13.48 (Historic Preservation Ordinance) of Title 13 of the San Jose Municipal Code specify that the term of development permits shall be 24 months unless otherwise provided in a development permit. Staff typically includes a standard condition in development permits providing for expiration in 24 months if the construction or the use has not commenced. Further, Section 20.100.500(A) of the Zoning Ordinance authorizes the Director of Planning to approve a Permit Adjustment to extend the term of an approved development permit for up to one year, and the Director may approve a maximum of two such extensions.
COUNCIL AGENDA: 10/12/22
FILE: PP22-009
ITEM: 4.d.
HONORABLE MAYOR AND CITY COUNCIL
Month Day, Year (of Memo Due Date to CMO Agenda Services) Subject: Title of the Report
The permit expiration clause is included in development permits and historic preservation permits to primarily encourage timely implementation of approved permits. Additionally, the Permit Adjustment requirement for any permit term extension allows the Director of Planning discretionary review to ensure that the development or use allowed by the extended permit remains in conformance with the General Plan and Zoning Ordinance.
On August 25, 2020, the City Council adopted Ordinance No. 30460 to temporarily extend the term of certain land use permits by two years from the set expiration date and tree removal permits by eight months from the set expiration date. The City Council adopted the uncodified ordinance in anticipation of an economic downturn and potential delays in construction at the beginning of the local shelter-in-place order. This was an uncodified ordinance since it was not published in the Municipal Code because it is temporary in effect and was in response to the proclaimed COVID-19 state of emergency and its impact on permits that have expired during this emergency.
The proposed uncodified ordinance would automatically extend certain permits that qualified for permit extensions pursuant to Ordinance No. 30460, including all associated permits under one entitlement approval process.
ANALYSIS
The City Council adopted Ordinance No. 30460 to acknowledge that it was necessary to grant the temporary extension to continue to encourage and support development projects that expended considerable time and resources to apply for and obtain the required permits but had been delayed or constrained by adverse economic and public health impacts from the COVID-19 pandemic. The proposed uncodified ordinance granting qualified permits an additional two-year extension further acknowledges the persistent adverse impacts from the ongoing state of emergency from the COVID-19 pandemic. Economic hardships as a result of the pandemic have significantly impacted financing and construction activity, putting development projects at risk for expiring prior to implementation.
Given the evident severity of the economic downturn caused by the pandemic and the on-going uncertain nature of this crisis, the proposed ordinance would grant qualifying permits an additional two-year extension from the most recent extended permit expiration date, but not extending past March 17, 2024 (four years from the beginning of the shelter-in-place in Santa Clara County) unless a Permit Adjustment may still be issued pursuant to Section 20.10.500.
The qualifying permit types are Site Development Permits/Amendments, Conditional Use Permits/Amendments, Special Use Permits/Amendments, Planned Development Permits/Amendments, Single Family House Permits, Administrative Permits, Development Variances and Exceptions, and Historic Preservation Permits. Valid permits that had already been automatically extended by the current uncodified ordinance and/or received Permit
HONORABLE MAYOR AND CITY COUNCIL
Month Day, Year (of Memo Due Date to CMO Agenda Services) Subject: Title of the Report
Adjustment extensions would qualify for the automatic two-year extension, not to extend past March 17, 2024, provided by this ordinance.
If a tree removal permit is also associated with a qualifying permit, then it would be automatically extended for the same duration as the development permit. This proposed uncodified ordinance does not further extend stand-alone tree removal permits since the shelter- in-place requirements from early in the emergency declaration are no longer applicable.
General Plan Conformance
The Envision San Jose 2040 General Plan encourages the periodic review of the Zoning Ordinance and other supporting Ordinances in the Municipal Code to ensure that the document reflects the goals, policies, and implementation of the General Plan. The proposed uncodified ordinance would allow for implementation of General Plan goals and policies and is consistent with the City’s economic development goals. The ordinance would achieve the objective of extending development permits and avert potential construction delay and additional hurdles on development activity that supports the City’s land use and economic development goals.
PUBLIC OUTREACH
Staff followed Council Policy 6-30: Public Outreach Policy in that notices for the Planning Commission and City Council hearings were published in the San Jose Post-Record. This staff report and attachments were posted on the City’s website. Staff has been available to respond to questions from the public.
CEQA
Adoption of the proposed uncodified ordinance, File No. PP22-009, is not a “project” within the meaning of Section 15378 of the State California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in direct or indirect physical change in the environment.
Project Manager: Sylvia Do
Approved By: /s/ Robert Manford, Deputy Director, for Chris Burton, Director of PBCE
Attachment:
Exhibit A: Draft Ordinance
PP22-009
Links to Attachment A
Click on the title to view document
Exhibit A: Draft Ordinance
NVF:DHZ:JMD File No. PP22-009
9/28/2022
1 T-32508.002/1961301
Council Agenda: ____
Item No.: ___
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
DRAFT
ORDINANCE NO. ________
AN UNCODIFIED ORDINANCE OF THE CITY OF SAN
JOSE TEMPORARILY EXTENDING THE TERM OF
SPECIFIED LAND USE AND HISTORIC PRESERVATION
PERMITS BY TWO YEARS FROM THEIR EXPIRATION
DATES DUE TO PERSISTENT ADVERSE ECONOMIC AND
PUBLIC HEALTH IMPACTS FROM THE COVID- 19
PANDEMIC
WHEREAS, on August 11, 2020, in response to a proclaimed state of emergency due to the COVID-19 pandemic, the City Council of the City of San José (“City Council”) adopted Ordinance No. 30460 to temporarily extend the expiration date of permits issued pursuant to San José Municipal Code Title 20 and Chapter 13.48 that received final approval on or before March 17, 2020; and
WHEREAS, the City Council acknowledged it was necessary to grant this temporary extension to continue to encourage and support development projects in the City of San José (“City”) that expended considerable time and resources to apply for and obtain the required permits from the City but had been delayed or constrained by adverse economic and public health impacts from the COVID-19 pandemic; and
WHEREAS, the City Council now wishes to adopt this uncodified Ordinance to grant a further extension of two (2) years for permits specified in this Ordinance due to the persistent adverse impacts from the ongoing state of emergency from the COVID -19 pandemic; and
WHEREAS, adoption of this Ordinance is not a “project” within the meaning of Section 15378 of the State California Environmental Quality Act (“CEQA”) Guidelines because it has no potential for resulting in direct or indirect physical change in the environment; and
NVF:DHZ:JMD File No. PP22-009
9/28/2022
2 T-32508.002/1961301
Council Agenda: ____
Item No.: ___
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
WHEREAS, the City Council has reviewed this O rdinance and finds it is consistent with all elements of the Envision San José 2040 General Plan and in compliance with the San José Municipal Code and state law;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SAN JOSE:
SECTION 1. The foregoing recitals are her eby incorporated as findings as though set forth in the body of this Ordinance.
SECTION 2. Applicants who qualified for permit extensions pursuant to Ordinance No. 30460 for any category of permits listed below, including all associated permits under one entitlement approval, are hereby granted a n additional two (2)-year extension from the most recent extended permit expiration date, but not extending past March 17, 2024, unless a permit adjustment is issued pursuant to San José Municipal Code Section
20.100.500:
(1) Site Development Permit pursuant to Part 5 of Chapter 20.100; (2) Conditional Use Permit pursuant to Part 6 of Chapter 20.100; (3) Special Use Permit pursuant to Part 7 of Chapter 20.100; (4) Planned Development Permit pursuant to Part 8 of Chapter 20.100; (5) Single Family House Permit pursuant to Part 9 of Chapter 20.100; (6) Administrative Permits pursuant to Part 10 of Chapter 20.100; (7) Development Variances and Exceptions pursuant to Part 11 of Chapter 20.100; and
(8) Historic Preservation Permits pursuant to Chapter 13.48.
NVF:DHZ:JMD File No. PP22-009
9/28/2022
3 T-32508.002/1961301
Council Agenda: ____
Item No.: ___
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
SECTION 3. Notwithstanding the provisions of Section 2 above, this Ordinance shall not extend the term of any permit that specifies the permit may only be extended by an action of the Director of Planning, Building, and Code Enforcement , Planning Commission, or City Council, as applicable, following a duly noticed public hearing. Any application for extension of the term of such a permit by the Planning Director, Planning Commission, or City Council shall also comply with any specific hearing notice procedures specified in the permit.
SECTION 4. If a court of competent jurisdiction invalidates, for any reason, any section, sentence, clause or phrase of this Ordinance, such decision does not affect the validity of the remaining portions of this Ordinance and the remaining portion will remain in full force and effect.
SECTION 5: This Ordinance shall take effect 30 days after final adoption (“Effective Date”).
PASSED FOR PUBLICATION of title this _____ day of _____, 2022 by the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
SAM LICCARDO
Mayor
ATTEST:
TONI J. TABER, CMC
City Clerk
NVF:DHZ:JMD File No. PP22-009
9/28/2022
4 T-32508.002/1961301
Council Agenda: ____
Item No.: ___
DRAFT – Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.