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Division IV. Regulations Applying in All or Several Districts

Chapter 17.70
GENERAL REGULATIONS

17.70.010 Specific purposes and applicability.

This chapter contains land use and development regulations, other than parking, loading, and sign regulations, that are applicable to sites in all or several districts. These regulations shall be applied as specified in Division II, Base District Regulations; Division III, Overlay Zoning Districts; and as prescribed in this chapter. (Ord. 87-4 N.S., 1987).

17.70.020 Relocated buildings.

In addition to the requirements of BMC Title 15, Buildings and Construction, a use permit for relocation of a building shall be required. This permit, to be issued by the community development director, shall establish conditions necessary to ensure that the relocated building will be compatible with its surroundings in terms of architectural character, height and bulk, and quality of exterior appearance. (Ord. 87-4 N.S., 1987).

17.70.030 Exterior materials in R districts.

In all R districts, the exterior walls of all structures, other than accessory structures, shall have a nonmetallic finish. (Ord. 87-4 N.S., 1987).

17.70.040 Religious assembly yard requirements.

Yards, height and bulk, and buffering requirements for religious assemblies shall be as specified by a use permit; provided, that the minimum interior side yard shall be 15 feet and the minimum rear yard shall be 25 feet. Yards adjoining street property lines shall not be less than required for a permitted use. (Ord. 87-4 N.S., 1987).

17.70.050 Accessory uses and structures.

A. In R Districts.

1. Timing. Accessory structures shall not be established or constructed prior to the start of construction of a principal structure on a site, unless authorized by an exception to criteria to accommodate overall development on a parcel with site constraints. Construction trailers may be placed on a site at the time site clearance and grading begins. Construction trailers shall be removed within 30 days following the issuance of a certificate of occupancy for the structure.

2. Location. Accessory structures shall not occupy a required yard or court, or project beyond the front building line of the principal structure on a site. Subject to an exception to criteria in the RS zone, a detached garage may protrude past the front building line of the principal structure but may not be located within a required front yard; provided, that the design of the detached garage is compatible with the existing residence in terms of architectural design, building materials, roof slopes, colors, and exterior finishes. No accessory uses may be permitted off site.

3. Maximum Height. The maximum wall height of an accessory structure shall be 12 feet, subject to the provisions of this subsection. Maximum peak height shall be determined on the basis of roof pitch as provided herein.

a. Fifteen feet where the roof pitch is below 4:12.

b. Eighteen feet where the roof pitch is between 4:12 and 6:12.

c. Twenty feet where the roof pitch exceeds 6:12.

4. Setbacks. An accessory structure in a required rear yard shall be located at least five feet from a rear or side property line. A minimum 10-foot distance shall be maintained between an accessory building and any other building on the site; provided, however, that the community development director may authorize an exception to criteria to reduce the separation between buildings to five feet.

5. RS Districts. In an RS district, the total gross floor area of accessory structures more than four feet in height shall be counted in computing lot coverage and shall meet the lot coverage requirements of BMC 17.24.030, except that the total area of any one accessory building shall not exceed the total area of the primary residential structure on the same site.

6. Patio Covers. A patio cover open on at least two sides and complying with all other provisions of this subsection may be attached to a principal structure and shall not be subject to requirements for courts opposite required windows.

7. Swimming Pools. An unenclosed swimming pool, including related equipment, may occupy a required rear yard or side yard but shall not be within five feet of a property line.

8. Decks. No deck that is 30 inches or more in height shall be located in a required yard.

9. Decorative Archways. A decorative archway may occupy a required front yard, provided it meets the driveway visibility requirements of BMC 17.74.150. No more than one archway per frontage may be constructed. Any decorative archway shall have a maximum height of eight feet, a maximum width of eight feet, and a maximum depth of four feet.

B. In C, I, OS and PS Districts. Accessory structures shall comply with all regulations applicable to the principal structure on a site. Off-site accessory uses shall be allowed only with a use permit issued by the community development director.

C. In PD District. The location of accessory structures shall comply with the adopted PD or specific plan for a PD district.

D. In All Districts. A carriage unit shall comply with the permitting process, development standards and objective design standards of BMC 17.70.060(C), (I) and (J), respectively. (Ord. 20-07 § 4; Ord. 19-02 § 3).

17.70.060 Accessory dwelling units.

A. Purpose. This section is intended to achieve the goals of the city’s housing element and of the California Government Code by permitting accessory dwelling units, thereby increasing housing opportunities for the community through use of existing housing resources and infrastructure.

B. Where Allowed. An accessory dwelling unit is permitted:

1. In any district where single-family or multifamily dwellings are a permitted use; and

2. On any lot with an existing or proposed single-family or multifamily dwelling.

C. Permitting Process.

1. When Consistent with Standards.

a. An accessory dwelling unit that complies with all standards in this section shall be approved ministerially upon issuance of a building permit. No other permit, discretionary review, or public hearing is required.

b. If an existing single-family or multifamily dwelling exists on the lot upon which an accessory dwelling unit is proposed, the city shall act on an application to create an accessory dwelling unit within 60 days from the date the city receives a completed application. If the applicant requests a delay in writing, the 60-day time period shall be tolled for the period of the delay.

c. The city has acted on the application if it:

i. Approves or denies the building permit for the accessory dwelling unit;

ii. Informs the applicant in writing that changes to the proposed project are necessary to comply with this section or any applicable regulation; or

iii. Determines that the accessory dwelling unit does not qualify for ministerial approval.

2. When Deviating from Standards.

a. A proposed accessory unit that deviates from the standards in subsection (J) of this section, Objective Design Standards, shall be reviewed and may be approved or denied subject to the design review procedures in Chapter 17.108 BMC, Design Review.

b. A proposed accessory dwelling unit that deviates from standards in subsection (I) of this section, Development Standards, or any other applicable physical standard of this section, shall be reviewed and may be approved or denied subject to the variance procedures in Chapter 17.104 BMC, Use Permits and Variances.

3. When Dependent on Separate Construction.

a. When a proposed attached or detached accessory dwelling unit is dependent on the construction of a new building or new portion of a building that is not a part of the accessory dwelling unit (“separate construction”), the city shall either:

i. Accept and begin processing the accessory dwelling unit application only after acting on an application for the proposed separate construction; or

ii. Upon written request from the applicant, review and act on the accessory dwelling unit together with the separate construction as part of a single application. In this case, the accessory dwelling unit is subject to the same review procedures and requirements as the separate construction, which may include design review.

b. New construction of a carriage unit shall not be considered dependent on separate construction if the footprint of the structure is the minimum size necessary to accommodate a garage up to 500 square feet and an interior stairwell provides direct access to the accessory dwelling unit in compliance with the requirements of the California Building Code.

D. Junior Accessory Dwelling Units.

1. General. Junior accessory dwelling units shall comply with all standards in this section unless otherwise indicated.

2. Sanitation Facilities. A junior accessory dwelling unit may include sanitation facilities, or may share sanitation facilities with the existing structure.

3. Kitchen. A junior accessory dwelling unit must include, at a minimum:

a. A cooking facility with appliances; and

b. At least three linear feet of food preparation counter space and three linear feet of cabinet space.

E. Maximum Number Per Lot. Not more than one accessory dwelling unit is allowed per lot except as allowed by subsections (G)(2), Detached Accessory Dwelling Units, (G)(3), Non-Livable Multifamily Space) and (G)(4), Detached Accessory Dwelling Units on Multifamily Lots, of this section.

F. Accessory Use. An accessory dwelling unit that conforms to this section:

1. Is considered an accessory use or accessory structure;

2. Is not considered to exceed the allowable density for the lot upon which it is located; and

3. Is considered a residential use consistent with the general plan and zoning designation for the lot.

G. Units Subject to Limited Standards. The city shall ministerially approve an application for a building permit within a residential or mixed-use district to create the following types of accessory dwelling units. For each type of accessory dwelling unit, the city shall require compliance only with the development standards in this subsection. Standards in subsections (I), Development Standards, and (J), Objective Design Standards, of this section do not apply to these types of accessory dwelling units.

1. Internal Accessory Dwelling Units. One accessory dwelling unit or junior accessory dwelling unit per lot with a proposed or existing single-family dwelling if all of the following apply:

a. The accessory dwelling unit or junior accessory dwelling unit, as such use is classified in BMC 17.16.080, is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress.

b. The space has exterior access from the proposed or existing single-family dwelling.

c. The side and rear setbacks are sufficient for fire and safety.

d. The junior accessory dwelling unit complies with the requirements of California Government Code Section 65852.22.

2. Detached Accessory Dwelling Units. One detached, new construction, accessory dwelling unit for a lot with a proposed or existing single-family dwelling. The accessory dwelling unit may be combined with a junior accessory dwelling unit described in subsection (G)(1), Internal Accessory Dwelling Units, of this section. The accessory dwelling unit must comply with the following:

a. Maximum floor area: 800 square feet.

b. Maximum height: 16 feet.

c. Minimum rear and side setbacks: four feet.

3. Non-Livable Multifamily Space. Multiple accessory dwelling units within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, subject to the following:

a. At least one accessory dwelling unit is allowed within an existing multifamily dwelling up to maximum of 25 percent of the existing multifamily dwelling units; and

b. Each accessory dwelling unit shall comply with building code standards for dwellings.

4. Detached Accessory Dwelling Units on Multifamily Lots. Not more than two accessory dwelling units that are located on a lot that has an existing multifamily dwelling, but are detached from that multifamily dwelling, are subject to the following:

a. Maximum height: 16 feet.

b. Minimum rear and side setbacks: four feet.

H. General Standards. Except as provided in subsection (G), Units Subject to Limited Standards, of this section, an accessory dwelling unit shall comply with the following general standards:

a. An accessory dwelling unit may be rented but shall not be sold or otherwise conveyed separately from the primary dwelling.

b. The rented unit shall not be leased for any period less than 30 days.

2. Primary and Accessory Designations. An existing primary dwelling unit may be designated as an accessory dwelling unit if:

a. The existing dwelling to be designated as an accessory dwelling unit complies with all standards in this section; and

b. The new primary dwelling unit is built in compliance with applicable standards and requirements of this title that apply to primary dwellings.

3. Nonconforming Uses and Structures. In conformance with BMC 17.98.020 and 17.98.030, the city shall not require, as a condition for approval of a permit application, the correction of nonconforming zoning conditions.

I. Development Standards. Except as provided in subsection (G), Units Subject to Limited Standards, of this section, an accessory dwelling unit shall comply with the following development standards:

1. Floor Area. The floor area of an accessory dwelling unit shall not exceed the maximums shown in Table 1.

Table 1: Maximum Floor Area

Maximum ADU Floor Area

One bedroom or less

50 percent of the existing primary dwelling or 850 sq. ft., whichever is greater

More than one bedroom

50 percent of the existing primary dwelling or 1,000 sq. ft., whichever is greater

50 percent of the existing primary dwelling

2. Bulk Standards.

a. An accessory dwelling unit shall conform to the applicable floor area ratio and site landscaping standards of the district in which it is located, except when otherwise allowed by subsection (H)(3), Guaranteed Allowance, of this section.

b. An accessory dwelling unit is exempt from maximum lot coverage standards.

3. Guaranteed Allowance. Maximum floor area, floor area ratio, and open space standards shall not prohibit an accessory dwelling unit with at least an 800 square feet of floor area, a height of at least 16 feet, and four-foot side and rear yard setbacks, provided the accessory dwelling unit complies with all other applicable standards.

4. Property Line Setbacks.

a. All Accessory Dwelling Units. An accessory dwelling unit shall be set back from property lines as required by Table 2.

b. Detached Accessory Dwelling Units.

i. A detached accessory dwelling unit shall not occupy a required court or front yard, nor project beyond the front building line of the principal structure on the site. In an H historic overlay district, the detached accessory dwelling unit shall not project beyond the primary contributing facade, defined as the building face of a designated landmark or contributing building which is parallel to a street or former right-of-way and provides a front entrance leading to a foyer or lobby.

ii. A ground-floor deck, balcony or platform attached to or associated with a detached accessory dwelling unit shall be located at least four feet from a rear or side property line. See subsection (J)(1), Second Story Decks and Balconies, of this section for second-story deck and balcony setback standards.

Table 2: Minimum Property Line Setbacks

Same as primary dwelling [1]

[1] For detached accessory dwelling units, see also BMC 17.70.060(I)(4)(b) (Detached Accessory Dwelling Units). For detached accessory structures in an H historic overlay district, see also BMC 17.70.060(J)(6) (Historic District Standards).

5. Building Separation. A minimum five-foot distance shall be maintained between a detached accessory dwelling unit and the primary building on the site. A detached accessory structure shall be set back from other structures on the site as required by the building code.

6. Converting and Replacing Existing Structures.

a. An internal ADU may be constructed regardless of whether it conforms to the current zoning requirement for building separation or setbacks.

b. If an internal ADU is proposed to be constructed within an existing accessory structure, the city shall ministerially permit an expansion of the existing accessory structure by up to 150 square feet for the purpose of accommodating ingress and egress.

c. If an existing structure is demolished and replaced with an accessory dwelling unit, an accessory dwelling unit may be constructed in the same location and to the same dimensions as the demolished structure.

a. Historic Districts. The height of an accessory dwelling unit in an H historic overlay district shall not exceed the maximums shown in Table 3.

Table 3: Maximum Height in Historic Districts

Maximum ADU Height [1]

Same as required for primary dwelling

Exterior building wall [2]

Roof peak (based on roof pitch)

4:12 to less than 6:12

[1] For detached accessory structures in an H historic overlay district, see also BMC 17.70.060(J)(6) (Historic District Standards).

[2] Measured to the top plate.

b. Outside Historic Districts. The roof peak of a detached accessory dwelling unit outside of an H historic overlay district shall not exceed the maximums shown in Table 4. The maximum allowed height for attached accessory dwelling units is the same as required for the primary dwelling. Height standards do not apply to internal and junior accessory dwelling units.

Table 4: Detached Accessory Dwelling Unit Maximum Height Outside Historic Districts

Maximum Roof Peak Height Based on Roof Pitch

Exterior Building Wall Distance from Rear or Side Property Line

4 ft. to less than 5 ft.

5 ft. to less than 7 ft.

4:12 to less than 6:12

8. Foundation. An accessory dwelling unit shall be constructed on a permanent foundation.

J. Objective Design Standards. Except as provided in subsection (G), Units Subject to Limited Standards, of this section, an accessory dwelling unit shall comply with the following design standards:

1. Second Story Decks and Balconies. Second story decks and balconies shall be set back a minimum of 10 feet from a side or rear property line adjoining a lot occupied by a single-family or two-family dwelling.

2. Outdoor Stairs. Outdoor stairs providing access to a second story accessory dwelling unit shall adjoin an exterior wall that faces the interior of the lot, rather than an exterior wall nearest a side or rear property line.

3. Dormers. The side wall of a dormer shall be set back a minimum of two feet from the parallel side wall below. The cumulative width of a dormer or dormers on any side of an accessory dwelling unit shall not occupy more than 66 percent of the building face below.

4. Gables. If a gable roof or turned gable roof is present, the gable ridge shall be oriented in a direction parallel to the side property line in order to minimize shadow effects on the adjoining lot.

5. Roof Pitch. The roof pitch for an accessory dwelling unit shall be 4:12 or greater. However, if the primary residence has a roof pitch shallower than 4:12, a similar pitch may be employed on the accessory dwelling.

6. Historic District Standards. In an H historic overlay district, an accessory dwelling unit shall conform to the following additional requirements:

a. Except as provided in subsection (I)(6) of this section, a detached accessory dwelling unit shall be set back from the primary contributing facade and/or front property line such that the entirety of the accessory dwelling unit is behind the rear wall of the principal structure on the lot.

b. The elevation of the highest point of a detached accessory dwelling shall not exceed the elevation of the highest point of the primary dwelling, except that in all cases a detached accessory dwelling unit at least 16 feet in height is allowed.

c. An attached accessory dwelling unit shall not result in a rooftop addition or any alteration to the existing roofline of a designated historic contributing or landmark structure.

d. An accessory dwelling unit shall not result in any increase in building height for a designated historic contributing or landmark structure, except that in all cases an attached accessory dwelling unit at least 16 feet in height is allowed.

e. An accessory dwelling unit shall not result in any exterior alteration to the primary contributing facade nor the existing wall or facade of a designated historic contributing or landmark structure where such wall or facade is parallel to a public street.

f. A building addition to a designated historic contributing or landmark structure to accommodate an attached accessory dwelling unit shall be inset or separated by a connector that is offset at least 18 inches from the parallel side or rear building wall to distinguish it from the primary dwelling. Such building addition shall not extend beyond the side wall of the primary dwelling.

g. For an attached accessory dwelling unit, the exterior building and trim materials shall be wood or smooth fiber cement siding or shingles. However, if Portland cement plaster (stucco) is the predominant finish for the primary residence, then stucco may also be applied to the accessory dwelling. Synthetic stucco (e.g., EIFS or DryVit) and faux wood grains are prohibited.

h. For a detached accessory dwelling unit, the following exterior building materials are prohibited: pressed board, vinyl, synthetic stucco and any composite or fiber cement material with a faux wood grain.

i. The exterior walls of an accessory dwelling shall utilize the same base and trim colors as the primary residence.

j. The roof shall utilize the same material and color as the primary residence and shall match the primary residence in overall appearance.

k. Windows shall be taller than they are wide or shall match the proportions of the primary dwelling’s windows. Windows in bathrooms, basements and crawl spaces, kitchens and laundry rooms may be horizontally oriented.

l. Window pane divisions shall be true or simulated divided lites (i.e., individual panes set within muntins or muntins applied to both the interior and exterior of the glass).

m. Window frames shall be painted or factory-finished. No metallic finishes such as silver or bronze anodized aluminum are permitted.

n. For designated contributing and landmark structures, vinyl windows are not permitted on an attached ADU.

1. No additional off-street parking stalls shall be required for an accessory dwelling unit.

2. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, replacement parking stalls are not required for the demolished parking structure.

L. Recordation of Deed Restriction. An executed deed restriction, on a form provided by the city, shall be submitted to the city prior to issuance of a building permit and shall be recorded prior to final occupancy. The deed restriction shall stipulate all of the following:

1. That the rented unit shall not be rented for any period less than 30 days at a time;

2. That the accessory dwelling shall not be sold separately from the primary dwelling; and

3. For junior accessory dwelling units, restrictions on size and attributes are in conformance with this section. (Ord. 20-07 § 5; Ord. 20-01 § 2).

17.70.070 Home occupations.

A. Permit Required. A home occupation in a dwelling unit, garage or accessory building shall require a home occupation permit obtained by filing a completed application form with the community development director. The community development director shall issue the permit upon determining that the proposed home occupation complies with the requirements of this section.

B. Contents of Application. An application for a home occupation permit shall contain:

1. The name, address, and telephone number of the applicant;

2. A complete description of the proposed home occupation, including number and occupation of persons employed, amount of floor space occupied, provisions for storage of materials, and number and type of vehicles used.

C. Required Conditions. Home occupations shall comply with the following regulations:

1. There shall be no stock-in-trade other than products fabricated on the premises.

2. A home occupation shall be conducted entirely within a building and shall occupy no more than 500 square feet of floor area. No outdoor storage shall be permitted.

3. The existence of a home occupation shall not be apparent beyond the boundaries of the site.

4. No one other than a resident of the dwelling shall be employed on-site or report to work at the site in the conduct of a home occupation.

5. No kilns shall be permitted, and a home occupation shall comply with the performance standards prescribed by BMC 17.70.240; provided, that no noise shall be perceptible at or beyond the property line.

6. Not more than one truck, with a maximum capacity of one ton, incidental to a home occupation shall be kept on the site. The number of parking spaces available to a dwelling unit housing a home occupation shall not be reduced to less than two.

7. A home occupation shall not create pedestrian, automobile, or truck traffic significantly in excess of the normal amount in the district.

8. No motor vehicle repair, beauty shop nor barber shop shall be permitted, and a home occupation shall not include an office nor sales room open to visitors without prior appointments, and there shall be no advertising of the address of the home occupation that results in attracting persons to the premises.

9. No cannabis-related uses including, but not limited to, retail, testing/laboratory, manufacturing, commercial cultivation, shall be allowed.

D. The permit for a home occupation that is not operated in compliance with these regulations shall be revoked by the community development director after 30 days’ written notice unless the home occupation is altered to comply. (Ord. 18-05 § 31; Ord. 13-06 § 4; Ord. 87-4 N.S., 1987).

17.70.080 Swimming pools and hot tubs.

Swimming pools and hot tubs shall be fenced, as required by Chapter 15.25 BMC. Additional fencing, separation, or fixed windows shall be required where, in the judgment of the building official, such features are needed for safety. (Ord. 87-4 N.S., 1987).

17.70.090 Eating and drinking establishments with take-out service.

The following supplementary development regulations shall apply to eating and drinking establishments with take-out service other than limited take-out service, as defined:

A. No Walk-Up Service in CC and CG Districts. Food shall be delivered to patrons within a car or within a building, or enclosed or covered outdoor eating area.

B. Minimum Separation. Establishments shall not be closer than 500 feet to a public or private school, park, or playground in an R, OS, or PS district.

C. Litter Control. Identifiable containers and napkins shall be used for all carry-out food, and all litter resulting, including litter on adjacent property and public rights-of-way, shall be promptly removed. A use permit may require the operator to retain a contract litter cleanup service if the community development director determines that a litter problem exists. (Ord. 87-4 N.S., 1987).

17.70.100 Live entertainment.

The following regulations shall apply to any use offering scheduled live entertainment, as defined, more than three times per calendar year:

A. Exits not limited to emergency use only shall not be opposite an R district adjoining the site.

B. A use permit shall establish conditions ensuring that no litter problem will exist.

C. A use permit for live entertainment shall apply only to the type of entertainment approved, and a different type of entertainment shall require approval of a new use permit. (Ord. 87-4 N.S., 1987).

17.70.110 Service stations, vehicle/equipment repair, and automobile washing.

The following supplementary development regulations shall apply to the service station, vehicle/equipment repair, and automobile washing use classifications.

A. Minimum Separation. Minimum separation between site boundaries shall be 500 feet, except that one such use may be located at each corner of a street intersection.

B. Site Layout. Conditions of approval of a zoning or use permit may require buffering, screening, planting areas, or hours of operation necessary to avoid adverse impacts on properties in the surrounding area.

C. Planting Areas. Perimeter planting areas shall be as required for parking lots by Chapter 17.74 BMC, except where a building adjoins an interior property line. Required interior planting areas may adjoin perimeter planting areas.

D. Storage of Materials and Equipment. The provisions of BMC 17.70.200, Outdoor facilities, shall apply, except that a display rack for automobile products no more than four feet wide may be maintained on each pump island of a service station. If display racks are not located on pump islands, they shall be placed within three feet of the principal building, and shall be limited to one per street frontage. Storage of inoperative vehicles is prohibited. (Ord. 87-4 N.S., 1987).

17.70.120 Maximum dwelling unit occupancy.

To ensure consistency with the density policies of the general plan and with the rights of individuals living as a household but not related by blood or marriage, occupancy by persons living as a single household in a dwelling unit shall be limited as follows:

A. A dwelling unit shall have 150 square feet of gross floor area for each of the first 10 occupants and 300 square feet for each additional occupant to a maximum of 20. In no case shall a dwelling unit be occupied by more than 20 persons.

B. A zoning permit shall be required for occupancy of a dwelling unit by more than 10 persons 18 years or older. The community development director shall not issue a zoning permit unless evidence is presented that all vehicles used by occupants will be stored on the site in conformance with the provisions of this title. (Ord. 87-4 N.S., 1987).

17.70.130 Development on substandard lots.

A. A legally created lot having a width or area less than required for the district in which it is located may be occupied by a permitted or conditional use if it has a width of 25 feet or more and an area of 2,500 square feet or more; provided, that on the effective date of regulations that made it substandard it was in single ownership separate from any abutting lot. No substandard lot shall be further reduced in area or width.

B. Except as provided below, a substandard lot shall be subject to the same yard and density requirements as a standard lot; provided, that in an R district one dwelling unit may be located on a substandard lot that meets the requirements of this section. In an R district, the required interior side yard for a single-family residence, on a building site which is substandard in width, may be reduced to as much as 10 percent of the lot width, and a street side yard may be reduced to as much as 20 percent of the lot width, except that no site may have a yard width of less than three feet. (Ord. 89-1 N.S. § 29, 1989; Ord. 87-4 N.S., 1987).

17.70.140 Development on lots divided by district boundaries.

The regulations applicable to each district shall be applied to the area within that district, and no use other than parking serving a principal use on the site shall be located in a district in which it is not a permitted or conditional use. Pedestrian or vehicular access from a street to a use shall not traverse a portion of the site in a district in which the use is not a permitted or conditional use. (Ord. 87-4 N.S., 1987).

17.70.150 Building projections into yards and courts.

Projections into required yards shall be permitted as follows:

A. Fireplaces or chimneys: 18 inches.

B. Uncovered porches, terraces, platforms, decks, subterranean garages, and patios not more than 30 inches in height: four feet in a corner side yard and six feet in a front yard. There is no minimum setback requirement for these structures in the rear or interior side yards.

C. Cornices, eaves, and ornamental features: two feet.

D. Stairs, canopies, awnings, sunrooms, and covered porches: six feet into a front or rear yard, three feet into a corner side yard, and two feet into an interior side yard.

E. Balconies and bay windows: two and one-half feet into a front or rear yard, two feet into a corner side yard, and 18 inches into an interior side yard.

F. In the RS district, where the rear property line of a site adjoins an area of permanent open space, the following projections will be permitted:

1. Attached decks above the first floor level: six feet into a rear yard.

2. Detached decks more than 30 inches and not more than 48 inches in height: 12 feet into a rear yard, except that such a deck shall maintain a minimum side yard setback of five feet. (Ord. 92-15 N.S. § 13, 1992; Ord. 92-9 N.S. § 15, 1992; Ord. 87-4 N.S., 1987).

17.70.160 Front yards in R districts.

Where lots comprising 40 percent of the frontage on a blockface in an R district are improved with buildings, the required front yard shall be the average of the front yard depths for structures other than detached garages or carports on each developed site in the same district on the blockface. In computing the average, the actual depth shall be used up to a maximum depth 10 feet greater than the normally required front yard for any site having a yard depth exceeding the minimum requirement. (Ord. 89-1 N.S. § 30, 1989; Ord. 87-4 N.S., 1987).

17.70.170 Measurement of height.

Height shall be measured from finished grade at all points on the site to a warped plane an equal height above all points on the site. (Ord. 87-4 N.S., 1987).

17.70.180 Exceptions to height limits.

Towers, spires, cupolas, chimneys, elevator penthouses, water tanks, flagpoles, monuments, theater scenery lofts, radio and television antennas, transmission towers, fire towers, and similar structures and necessary mechanical appurtenances, covering not more than 10 percent of the ground area covered by the structure to which they are accessory, may exceed the maximum permitted height in the district in which the site is located if the site is outside the shoreline area defined in BMC 17.24.030(K), subject to the following regulations:

A. In an RS district, a chimney may exceed the permitted height by two feet, but a use permit shall be required for any other structure exceeding the permitted height in the district and shall not be issued for height in excess of 20 feet above the district height limit.

B. In an RM or RH district, a structure may exceed the district height limit by not more than eight feet if no portion intercepts an inclined daylight plane sloping inward from the nearest lot line at a 45-degree angle from the height of the highest building wall permitted adjoining a required yard; provided, that a chimney may intercept the daylight plane. A use permit shall be required for any structure exceeding the height limit by more than eight feet and shall not be issued for height in excess of 20 feet above the district height limit.

C. In a C, I, PS, or OS district, a structure may exceed the district height limit by 10 feet, and a use permit may be approved for features extending more than 10 feet above the district height limit.

D. For projects to be acted on by the planning commission, requests for approval of height use permits shall be acted on by the planning commission. For projects which require action by the historic preservation review commission only, requests for approval of height use permits shall be acted on by the historic preservation review commission. For projects to be acted on by the community development director only, the historic preservation review commission shall act on the height use permit application. Applications for higher light poles in the I districts shall be acted on by the community development director. (Ord. 13-07 § 2; Ord. 99-1 N.S.; Ord. 87-4 N.S., 1987).

17.70.190 Landscaping, irrigation, and hydroseeding.

A. General Requirement. Minimum site landscaping and required planting areas shall be installed in accord with the standards and requirements of this section, which shall apply to all projects for which a zoning permit is required except single-family residences.

1. Landscape plans shall be prepared by a landscape designer, a licensed landscape architect or other qualified person, and no significant or substantive changes to approved landscaping or irrigation plans shall be made without prior written approval by the community development director and the landscape designer.

2. Evidence of completion of required landscaping and irrigation improvements shall be supplied to the planning department on a landscape certification form. This form shall be required to be submitted prior to issuance of an occupancy permit for new construction unless an extension of up to one year is granted by the community development director.

3. For projects consisting primarily of additions to or remodeling of existing buildings for which landscaping is required, a deferred completion agreement shall be executed prior to issuance of the building permit. The agreement shall guarantee installation of the landscaping and any irrigation improvements within one year or prior to occupancy, whichever occurs first.

1. Required planting areas shall be permanently maintained. As used in this section, “maintained” includes watering, weeding, pruning, insect control, and replacement of plant materials and irrigation equipment as needed to preserve the health and appearance of plant materials. Any landscaping plant material shown on an approved landscape plan removed for any reason shall be replaced by the property owner within a time frame established by the community development director.

2. Landscape materials shall not be located such that, at maturity:

a. They interfere with safe sight distances for vehicular, bicycle or pedestrian traffic;

b. They conflict with overhead utility lines, overhead lights, or walkway lights; or

c. They block pedestrian or bicycle ways.

C. Landscaping Plans Required. Each application for a zoning permit shall include plans and written material describing all existing trees, including species, height, diameter, and condition, and showing how any applicable site landscaping or planting area requirements are to be met. The degree of specificity of such plans and written material shall relate to the type of permit or request for approval being sought.

D. Materials. Landscape plans shall demonstrate a recognizable pattern or theme for the overall development by choice and location of materials. To accomplish this, landscape plans shall conform to the following:

1. Plant materials shall be selected for: energy efficiency and drought tolerance; adaptability and relationship to Benicia environment; color, form and pattern; ability to provide shade; soil retention, fire resistiveness, etc. The overall landscape plan shall be integrated with all elements of the project, such as buildings, parking lots and streets, to achieve desirable microclimate and minimize energy demand.

2. Plant materials shall be sized and spaced to achieve an immediate effect and shall normally not be less than a 15-gallon container for trees, five-gallon container for specimen shrubs, and a one-gallon container for mass planting.

3. The use of crushed rock or gravel for large area coverage shall be avoided (except for walks and equestrian paths).

4. Nonturf areas, such as shrub beds, shall be top dressed with a bark chip mulch or approved alternative.

5. Where shrubs or low-level vegetation are used, vegetative matter at maturity shall cover at least 75 percent of actual planted area.

6. Street trees shall be included, conforming to the street tree regulations prescribed in BMC Title 12.

E. Design Standards. Parking lots shall have perimeter planting areas as prescribed by the following schedule and, in addition, shall have five percent of the area, excluding the perimeter planting strips, devoted to planting distributed throughout the parking lot.

Width of Perimeter Planting Strip (feet)

Parking Lot Dimension Adjoining Property Line

Adjoining Street Property Line

Adjoining R District and Residential PD

Adjoining Nonresidential Districts Except IG and IW

More than 100 feet

A parking structure in a C or I district having at-grade parking adjoining a street shall have a 10-foot planting area adjoining the street property line.

1. Where landscaped areas are provided, they shall be a minimum of three feet in width, except window/wall planter boxes. Landscaped areas containing trees shall be a minimum of four feet in their narrowest dimension.

2. The end of each row of parking stalls shall be separated from driveways by a landscaped planter, sidewalk, or other means. Concrete curbs shall separate landscaped areas from parking areas.

3. A minimum of one tree per six spaces shall be distributed throughout the parking lot.

4. Where autos will extend over landscaping, the required planting area shall be increased two feet in depth by decreasing the length of the parking stall by two feet. Where autos will overhang into both sides of an interior landscaped strip or well, the minimum inside curb-to-curb interior planter dimension shall be seven feet.

F. Irrigation Plans. Irrigation plans shall be submitted with applications for building permits and for approval of improvement plans required for BMC Title 16, Subdivisions, and shall contain all construction details for an automatic system including, but not limited to, the following:

1. Location, type and size of lines;

2. Locations, type and gallonage output of heads and/or emitters;

3. Location and sizes of valves;

4. Location and type of controller;

5. Installation details;

6. Location and type of backflow prevention device (as per health code);

7. Available water pressure and water meter outlet size;

8. Irrigation application schedule and flow rates.

G. Hydroseeding. Plans indicating location and type of hydroseeding shall be submitted with applications for building permits and for approval of improvement plans required by BMC Title 16, Subdivisions, when such planting is to be utilized for permanent landscape treatment or for natural area restoration. Hydroseeding plans shall contain installation specifications including, but not limited to:

1. Seed mix and application rate. A native seed mix containing a minimum of 10 percent shrub and perennial seeds shall be utilized in areas where permanent landscape restoration is required. Species selected shall include plant materials native to the area.

2. Fertilizer, mulch materials, soil preparation and watering specifications.

H. Repealed by Ord. 08-03.

I. All required landscape, parking lot, and street trees shall be replaced in accordance with the city’s tree preservation guidelines. (Ord. 08-03 § 3; Ord. 99-1 N.S.).

17.70.200 Outdoor facilities.

A. Where Permitted. Outdoor storage and display of merchandise, materials, or equipment, not including cannabis or cannabis products, shall be permitted in the CC, CW, CG, IL, IG, PS and OS districts subject to approval of a use permit by the community development director. Outdoor food service accessory to an eating and drinking establishment may be permitted subject to approval of a use permit by the community development director in any I, C, OS, or PS district, but no outdoor preparation of food or beverages shall be permitted. A use permit for outdoor storage, display, or food service may require yards, screening, or planting areas necessary to prevent adverse impacts on surrounding properties and the visual character of scenic corridors as identified in the general plan. If such impacts cannot be prevented, the use permit application shall be denied.

B. Exceptions. Notwithstanding the provisions of subsection (A) of this section, outdoor storage and display shall be permitted in conjunction with the following use classifications in districts where they are permitted or conditionally permitted:

1. Nurseries, provided outdoor storage and display is limited to plants only, not including cannabis;

2. Vehicle/equipment sales and rentals, provided outdoor storage and display shall be limited to vehicles or equipment offered for sale only.

C. Screening. In districts where outdoor storage and display is permitted, and except for the use classifications excepted by subsection (B) of this section, outdoor storage areas shall be screened from view of streets by a solid fence or wall. The height of merchandise, materials, and equipment stored shall not exceed the height of the screening fence or wall. The community development director may require additional screening in highly visible areas and may impose reasonable restrictions on the type of storage or display or the location of outdoor storage and display areas to avoid adverse visual effects. (Ord. 18-05 § 32; Ord. 07-21 § 9; Ord. 87-4 N.S., 1987).

17.70.210 Screening of mechanical equipment.

A. General Requirement. Except as provided in subsection (B) of this section, all exterior mechanical equipment, except solar collectors, and operating mechanical equipment in IG and IW districts located more than 50 feet from an R, C, PS, PD or OS district boundary, shall be screened from view on all sides. Equipment to be screened includes, but is not limited to, heating, air conditioning, refrigeration equipment, plumbing lines, ductwork, and transformers. Satellite receiving antennas shall be screened as prescribed by BMC 17.70.250. Screening of the top of equipment may be required by the community development director, if necessary to protect a significant view.

B. Utility Meters. Utility meters shall be screened from view from public rights-of-way, but need not be screened on top or when located on the interior side of a single-family dwelling. Meters in a required front yard or in a side yard adjoining a street shall be enclosed in subsurface vaults.

C. Screening Specifications. Screening materials may have evenly distributed openings or perforations not exceeding 50 percent of the surface area and shall effectively screen mechanical equipment so that it is not visible from a street or adjoining lot. (Ord. 87-4 N.S., 1987).

17.70.220 Refuse storage areas.

A refuse storage area screened on all sides by a six-foot solid wood or masonry wall, or located within a building, shall be provided prior to occupancy for all uses other than one-family or two-family dwellings. Locations and horizontal dimensions of refuse storage areas shall be as prescribed by the community development director. The community development director may waive this screening requirement in IG and IW districts for refuse collection and storage equipment, including dumpsters and waste containers that are not visible from public streets. (Ord. 87-4 N.S., 1987).

17.70.230 Underground utilities.

All electrical, telephone, CATV, and similar distribution lines providing direct service to a development site shall be installed underground within the site. Off-site utilities along a project frontage for all new commercial, multifamily, or industrial development shall be undergrounded, unless a deferral is granted by the planning commission for those projects over which it has approval authority, or by the historic preservation review commission for those projects over which it has approval authority, or by the community development director for those projects over which the director has approval authority, in accordance with the deferral requirements of BMC 16.36.020(G)(2). (Ord. 13-07 § 2; Ord. 99-1 N.S.; Ord. 92-9 N.S. § 16, 1992; Ord. 89-1 § 31, 1989; Ord. 87-4 N.S., 1987).

17.70.240 Performance standards.

The following performance standards shall apply to all use classifications in all zoning districts:

A. Air Contaminants. All uses shall comply with rules, regulations, and standards of the Bay Area Air Quality Management District (BAAQMD). An applicant for a zoning permit or a use, activity, or process requiring BAAQMD approval of a permit to construct shall file a copy of the BAAQMD permit with the community development director. Any use, activity or process that requires BAAQMD approval of a permit to operate shall file a copy of such permit with the community development director within 30 days of its approval.

B. Water Pollution. No person or use shall discharge liquids of any kind into a public or private sewage system, watercourse, body of water, or the ground, except in compliance with applicable regulations of the California Regional Water Quality Control Board (California Administrative Code, Title 23 , Chapter 3 and California Water Code, Division 7).

C. Noise. All uses and activities shall comply with the provisions of the Benicia noise regulations (Chapter 8.20 BMC).

1. From Glass. Mirrored or highly reflective glass shall not cover more than 20 percent of a building surface visible from a street unless an applicant submits surface information demonstrating to the satisfaction of the community development director that use of such glass would not significantly increase glare visible from adjacent streets and property or pose a hazard for moving vehicles.

2. From Outdoor Lighting. Parking lot lighting shall comply with BMC 17.74.170. Site lighting shall be designed and installed to confine direct light rays to the site. Minimum illumination at ground level shall be 0.5 footcandles, and shall not exceed 0.5 footcandles in an R district. Security lighting in any district may be indirect or diffused, or shall be shielded or directed away from adjoining properties and public rights-of-way. Lighting for outdoor court or field games within 300 feet of an R district shall require approval of a use permit.

E. Combustibles and Explosives. The use, handling, storage, and transportation of combustibles and explosives shall comply with the provisions of the Benicia fire prevention code (Chapter 8.28 BMC).

F. Radioactive Materials. The use, handling, storage, and transportation of radioactive materials shall comply with the provisions of the California Radiation Control Regulations (California Administrative Code, Title 17) and the Benicia fire prevention code (Chapter 8.28 BMC).

G. Hazardous and Extremely Hazardous Materials. The use, handling, storage, and transportation of hazardous and extremely hazardous materials shall comply with the provisions of the California Hazardous Materials Regulations (California Administrative Code, Title 22, Division 4) and BMC 17.70.260, Hazardous materials.

H. Heat and Humidity. Uses, activities, and processes shall not produce any unreasonable, disturbing, or unnecessary emissions of heat or humidity, at the property line of the site on which they are situated, that cause material distress, discomfort, or injury to the average person.

I. Electromagnetic Interference. Uses, activities and processes shall not cause electromagnetic interference with normal radio or television reception in R districts, or with the function of other electronic equipment beyond the property line of the site on which they are situated.

J. Evidence of Compliance. The community development director shall require such evidence of ability to comply with performance standards as he deems necessary prior to issuance of a zoning permit.

K. Cannabis Odor Control. All nonresidential structures used for cannabis cultivation and/or other cannabis-related uses shall be enclosed and securely locked, and equipped with odor control filtration and ventilation systems such that the odors of cannabis cannot be readily detected from outside the structure. Residential cultivation of cannabis for personal use shall comply with BMC 17.84.030. Cannabis uses shall be subject to all applicable provisions of Chapter 9.60 BMC, Cannabis Public Safety License, and Chapter 17.84 BMC, Cannabis. (Ord. 18-05 § 33; Ord. 92-9 N.S. § 17, 1992; Ord. 87-4 N.S., 1987).

17.70.250 Wireless communications facilities.

A. Purpose. This section is intended to establish development standards, in accordance with federal law and state rules and regulations, for antenna and wireless communication transmission (hereinafter called “wireless communication facilities”) that:

1. Minimize the potential health, public safety and aesthetic impacts of such facilities on the community;

2. Regulate the placement and design of wireless communication facilities so as to preserve the unique visual character of the community;

3. Encourage the location of wireless communication facilities in industrial and commercial districts and generally discourage the location of such facilities in residential districts;

4. Provide for the managed development of wireless communication facilities in a manner that reasonably accommodates the needs of citizens and wireless communication service providers;

5. Locate such wireless communication facilities where they are least visible from public rights-of-way in the vicinity, while not burdening adjacent property owners with adverse visual impacts; and

6. Protect landmark structures, historically significant structures, architecturally significant structures, landmark vistas or scenery, and view corridors from visually obtrusive wireless communication antennas and associated equipment.

B. Exemptions. Each exempt facility shall fully comply with other applicable requirements of the municipal code to the extent not specifically exempted in this subsection including, but not limited to, adopted building, electrical, plumbing, mechanical, and fire codes. The following wireless communication facilities are exempt from the standards of this section, except as noted in subsection (C) of this section:

1. Direct broadcast satellite antennas and multipoint distribution services antennas measuring one meter or less in diameter (or diagonal measurement);

2. Television broadcast system antennas designed to receive only television broadcast signals;

3. Satellite earth station antennas designed to receive and/or transmit radio frequency signals directly to and/or from a satellite measuring two meters or less in diameter (or diagonal measurement);

4. Amateur radio antennas. Antennas and antenna structures constructed by or for FCC-licensed amateur radio operators that comply with the following provisions:

a. The antenna structure, when fully extended, measures 35 feet or less in height, and measures 24 inches or less in diameter or width;

b. The antenna boom measures 20 feet or less in length and is three inches or less in diameter;

c. No antenna element exceeds 32 feet in length or two inches in diameter or width, with the exception of mid-element tuning devices which shall not exceed six inches in diameter or width; and

d. The turning radius of any antenna does not exceed 26 feet;

5. Public communication facilities, including personal wireless services, used and maintained by the city, or any fire district, school district, hospital, ambulance service, governmental agency, or similar public or semipublic use;

6. Private, noncommercial wireless communications facilities or systems contained entirely on site for the purpose of serving the premises upon which the facility is located and having no potential visual, noise, thermal or radio frequency interference impacts to surrounding properties or the community;

7. Replacement of duly permitted facilities or equipment of a minor nature that does not increase the number or height of antennas or significantly expand the size or capacity of the equipment cabinet or ancillary related equipment;

8. Any facility specifically exempted from city regulation by the rules and regulations of the Federal Communications Commission (FCC) or the provisions of a permit issued by the California Public Utilities Commission.

C. Criteria for Exempt Facilities. The following location and design standards shall apply to all wireless communication facilities that are exempt per subsection (B) of this section:

1. An antenna may be installed on a lot in any zoning district that is not subject to an H historic overlay district.

2. No facility shall be located in a front or street-side yard.

3. No wireless communication facility may be located within 10 feet of interior side and rear property lines; except if the antenna does not exceed six feet in height.

4. No antenna, except for amateur radio antennas as provided in subsection (B)(4) of this section, may exceed 15 feet, as measured from ground level immediately under the antenna to the highest point of the antenna or any appurtenance attached to it; however, the community development director may approve mounting an antenna on the rear half of a roof if no other feasible location exists, and all other applicable criteria of this subsection (C) are met. The justification for rooftop mounting shall be submitted with an application for a zoning permit.

5. The structural base of an antenna, including all bracing and appurtenances, but excluding the dish itself, shall be screened from public rights-of-way and adjoining properties by walls, fences, buildings, landscape, or combinations thereof not less than four feet high, so that the base and support structure are not visible from beyond the boundaries of the site at a height of six feet or below.

6. All wires and/or cables necessary for operation of an antenna or reception of a signal shall be placed underground, except for wires or cables attached flush with the surface of a building or the structure of the antenna.

7. Highly reflective surfaces shall not be permitted. All satellite dish antennas that are not screened shall be painted with as unobtrusive a color as possible.

8. No more than one antenna shall be permitted per parcel unless approved by the community development director.

9. No signage of any kind shall be posted or displayed on a wireless communication facility.

D. Permit Required. A use permit from the planning commission shall be required for the installation of all wireless communication facilities in all districts. In addition, a design review permit shall be required as per Chapter 17.108 BMC. Wireless communication facilities in planned development (PD) zoning district with residential uses shall be subject to the provisions of subsection (I) of this section. All use permit applications shall include:

1. A written definition of the area of service desired for coverage or capacity.

2. Documentation showing that the proposed facility would provide the needed coverage or capacity.

3. A map showing all technically feasible alternative sites from which the desired coverage could also be provided, along with an analysis of the feasibility of those alternative sites that compares visual impact with that of the proposed project. At a minimum, this analysis shall identify the location of all existing monopoles within a quarter mile of the proposed site, provide an explanation of why collocation has not been proposed at each of these sites, and assess the potential for building-mounted alternatives.

4. Photo simulations of the proposed project.

5. Written documentation demonstrating that emissions from the proposed wireless communications facility are within the limits set by the FCC.

6. Design that proposes the smallest and least visible antennas possible that will reasonably accommodate the operator’s objectives. The applicant shall disclose which antennas and support structures were evaluated and the process used to select the antenna and support structure.

E. Location Criteria. The following criteria shall apply to the siting and development of all new wireless communication facilities in order to mitigate any potential health, safety, urban design, neighborhood character or public access impacts:

1. Antennas attached to a roof shall maintain a 1:1 ratio for equipment setback (for example, a 10-foot-high antenna requires a 10-foot setback from facade) unless an alternative placement would reduce visual impact; be treated or screened to match mechanical equipment, stairs, elevator towers, or other background features and be camouflaged so that the antennas are not visible from a public right-of-way; and not be mounted in direct line with significant view corridors.

2. Facilities shall not exceed a height of 12 feet above the maximum allowed height limit for the main building in the zoning district in which the facility is located.

3. Facilities shall not reduce existing parking on the site below the zoning district parking requirement.

4. When a monopole is adjacent to a residential use it must be set back from the nearest residential lot line a distance at least equal to its total height. In addition, it shall not exceed 1.5 feet in diameter at its base nor one foot at its top and the antennas shall not extend more than three feet from the center of the pole.

5. Collocation shall occur whenever reasonably feasible and aesthetically desirable. In order to facilitate future collocation of antennas for other service providers, the conditions of approval shall prohibit the applicant from entering into an exclusive lease for the use of the site. Collocation shall be discouraged when it will increase visual impacts. Service providers are encouraged to collocate with other facilities such as water tanks, light standards and other utility structures where the collocation is found to minimize the overall visual impact. Collocation of an antenna on a nonconforming structure shall not be considered to be an expansion of the nonconforming structure.

6. Any service provider facilities that are developed on vacant sites shall be temporary. When such sites are developed, these facilities shall be removed. Such facilities may be replaced with building-mounted antennas or other types of appropriate facilities, subject to review and approval by the city in accordance with this section.

7. Site location and development shall preserve the preexisting character of the surrounding buildings and land uses, the neighborhood and the zoning district as much as possible. Existing on-site vegetation shall be preserved or improved, and disturbance of the existing topography shall be minimized.

8. In determining whether to grant or deny approval for a wireless communications facility, the planning commission may require more stringent standards than the development standards of this chapter. The planning commission may attach such conditions as it considers necessary to ensure visual and land use compatibility with the surroundings so as to avoid adverse effects on the health, safety, and welfare of the community’s residents, to protect existing vegetation, and to minimize the proliferation of such facilities.

F. Design Review Standards. In addition to the requirements of Chapter 17.108 BMC, all wireless communication facilities, including but not limited to, equipment, antennas, poles, dishes, cabinets, structures, towers or other appurtenances shall employ a design that minimizes the visual impact by making use of the following or similar techniques:

1. The proposed facility shall be sited to be screened by existing development, topography or vegetation in such a way as to have the least visual impact possible taking into consideration all technically feasible alternatives.

2. The materials, textures and colors of new or remodeled structures shall be visually compatible with the predominant materials. Facilities shall have a nonreflective finish and shall be painted and/or textured to match the exterior of the building or background.

3. Mounting of facilities on the peaks of roofs or hilltops shall be avoided to the greatest extent possible and all other related equipment shall be screened or hidden from view. Additional new vegetation and its proper irrigation or other screening may be required as a condition of approval.

4. Antennas mounted on architecturally significant structures or significant details of a building should be covered by appropriate casing manufactured to match existing architectural features found on a building. Where feasible, antennas shall be placed directly above, below or incorporated into vertical design elements.

5. Equipment shelters or cabinets shall be placed underground to the greatest extent possible or screened from public view by using landscaping or materials and colors consistent with surrounding backdrop.

6. All wireless communication facilities and associated equipment must be regularly maintained.

7. Any exterior lighting shall be manually operated and used only during night maintenance or emergencies. The lighting shall be constructed, located, and oriented so that only the intended area is illuminated and off-site glare is eliminated.

G. Additional Design Review Criteria for H Overlay District. The following design review criteria shall also be applied to wireless communication facilities within the H overlay district:

1. The proposed wireless communication facility shall respect the visual relationship of architectural design elements in the surrounding area, including scale, height, rhythm of spacing, pattern on windows and doorways, building siting and relationship to landscaping, roof pitch, architectural style and structural details, materials, colors and textures.

2. Wireless communication facilities shall not be placed on a building with a landmark or contributing designation.

3. Antennas mounted on architecturally significant structures or a significant architectural detail of a building shall be covered by appropriate casings that match existing architectural features.

H. Required Findings. To approve a use permit for a wireless communication facility, the planning commission must find that:

1. The proposed location of the project and the conditions under which it would be operated and maintained will not be detrimental to the health, safety, or welfare of persons residing or working in the neighborhood or the general public, and will not be materially injurious to properties or improvements in the vicinity.

2. Development of the proposed facility as conditioned will not significantly affect any designated visual resources, environmentally sensitive resources, community character resources; or, that there are no other environmentally equivalent and/or superior and technically feasible alternatives to the proposed wireless communications facility as conditioned (including alternative locations and/or designs) with less visual and/or other resource impacts, and that the proposed facility has been modified by conditions and/or project design to adequately minimize and mitigate its visual and other resource impacts.

3. The proposed facility is in compliance with all FCC regulations.

4. The proposed location and design of the project and the conditions under which it would be operated or maintained will be consistent with all elements of the Benicia general plan, other pertinent city ordinances and with any specific plan or overlay district that has been adopted for the area.

5. The proposed project will complement and harmonize with the existing and proposed land uses in the vicinity and will be visually compatible with the physical design aspects including scale, height, materials, colors, and texture.

I. Additional Findings for Wireless Communication Facilities in R Districts. Wireless communication facilities are allowed in R districts only if the planning commission finds, in addition to all items in subsection (F) of this section, that:

1. In acknowledgement that an environmental determination has not been made regarding placement of a commercial facility in a residential zoning district, it has been disclosed in a required California Environmental Quality Act (CEQA) evaluation for the project that environmental impacts associated with the facility were determined to be less than significant.

2. The proposed antenna is located on a parcel with a nonresidential use.

3. The proposed antenna is located either:

a. More than 35 feet away from the nearest residential use; or at least one foot away from the nearest residential property line for every foot of monopole height, whichever is greater; or

b. More than 20 feet away from the nearest residential property line if the proposed antenna is mounted on an existing utility structure within a utility corridor. (Ord. 15-02 §§ 9, 10; Ord. 06-10 § 2; Ord. 87-4 N.S., 1987).

17.70.260 Hazardous materials.

A. Purpose. The following supplemental regulations are intended to ensure that the use, handling, storage and transport of hazardous substances comply with all applicable requirements of the California Health and Safety Code and that the city is notified of emergency response plans, unauthorized releases of hazardous substances, and any substantial changes in facilities or operations that could affect the public health, safety or welfare. It is not the intent of these regulations to impose additional restrictions on the management of hazardous wastes, which would be contrary to state law, but only to require reporting of information to the city that must be provided to other public agencies.

B. Definitions. For purposes of this section, “hazardous substances” shall include all substances on the comprehensive master list of hazardous substances compiled and maintained by the California Department of Health Services pursuant to Section 25282 of the California Health and Safety Code.

C. Permit Required. A use permit shall be required for any new commercial, industrial, or institutional use, accessory use, or major addition or alteration to an existing use that involves the manufacture, storage, handling, transport, or processing of hazardous substances in sufficient quantities that would require permits as hazardous chemicals under the Uniform Fire Code adopted by the city, with the following exceptions:

1. Underground storage of bulk flammable and combustible liquids is permitted, subject to the provisions of subsection (E) of this section; and

2. Hazardous substances in container sizes of 10 gallons or less stored or maintained for the purposes of retail or wholesale sales are exempt from these regulations. The community development director or the planning commission may request information on the procedures to be used to process, transport, and store hazardous substances in a safe manner prior to approval of a use permit.

D. Hazardous Materials Release Response Plans. All businesses located in the city and required by Chapter 6.95 of the California Health and Safety Code to prepare hazardous materials release response plans shall submit copies of all such plans, including any corrected plans or revised plans, to the fire department at the same time these plans are submitted to the public agency administering these provisions of the California Health and Safety Code. These submittal requirements shall be a condition of approval of a zoning permit for (1) new development where space may be occupied by such a business, and (2) any alteration or addition to an existing building or structure occupied by a business subject to these provisions of the California Health and Safety Code.

E. Underground Storage Tanks. Underground storage of hazardous substances shall comply with all applicable requirements of Chapter 6.7 of the California Health and Safety Code and Section 79.1113(a) of the Uniform Fire Code. Any business located in the city that uses underground storage tanks shall:

1. Notify the city dispatcher of any unauthorized release of hazardous substances immediately after the release has been detected. Such notification shall include the steps being taken to control the release; and

2. Notify the fire chief of any proposed abandoning, closing or ceasing operation of an underground storage tank and the actions to be taken to dispose of any hazardous substances.

These notification requirements shall be a condition of approval of a zoning permit for (1) new development that involves installation of underground tanks, and (2) any alteration or addition to an existing building or structure on a site where underground storage tanks exist.

F. Aboveground Storage Tanks. Aboveground storage tanks for any flammable liquid shall be allowed only at refinery or bulk storage plant locations with the approval of the fire chief. (Ord. 87-4 N.S., 1987).

17.70.270 Affordable housing density bonus and other incentives.

A. Adoption by Reference. The provisions of California Government Code Section 65915 through 65918 regarding affordable housing density bonuses, concessions and other incentives are adopted by reference the same as though fully set forth in this section.

B. Amendments. The following clarifications, which are intended to advance affordability and housing opportunity, shall also apply:

1. Projects Divided by District Boundaries. If the project involves land divided by district boundaries, including noncontiguous properties, the number of dwelling units permitted in the development shall be the sum of the dwelling units permitted in each of the districts. Within the project, the permitted number of dwelling units may be distributed without regard to the underlying density regulations subject to subsection (B)(4) of this section.

2. Construction and Location of Affordable Units. All units that are constructed for very-low-, low- or moderate-income households shall meet or exceed the following standards:

a. Distribution. Affordable dwelling units shall be reasonably interspersed among market-rate units within the same development.

b. Comparable Units. Affordable dwelling units must be generally comparable to market-rate units, including total square footage, bedroom size, closet space, amenities, and number of bathrooms, except in quality of interior “finish” materials (for example, floor and wall coverings). Affordable dwelling units shall measure no less than 90 percent of the average square footage of market-rate units with the same number of bedrooms.

c. Comparable Design. Affordable units shall be designed to reasonably reflect the exterior design of market-rate units in the same development.

d. Comparable Amenities. Residents of affordable units may not be charged for amenities not charged to other residents, including, but not limited to, access to recreational facilities, parking, cable TV, and interior amenities like dishwashers and microwave ovens. Optional services for all residents must be the same. Tenants of affordable units cannot be required to purchase additional services.

3. Affordable Housing Density Bonus Agreement. All applicants for projects that receive an affordable housing density bonus, development concession and/or reduction in parking standards shall enter into an affordable housing density bonus agreement with the city of Benicia. All such agreements, prior to execution, are subject to approval by the city attorney. The affordable housing density bonus agreement shall be consistent with all other provisions of this section. Agreements shall also include the following provisions:

a. The total number of units that will be constructed and the number of units that will be made affordable to very-low-, low- or moderate-income households shall be clearly stated;

b. The affordable rental units shall remain available to, and occupied and affordable by, very-low- and low-income households for at least 55 years and for moderate-income households at least 10 years or the life of the structure;

c. The units affordable by very-low-, low- or moderate-income households shall be reasonably interspersed throughout the development and shall be identified on building plans submitted to the community development department and described in the application for a density bonus;

d. Units offered for sale shall be subject to an equity sharing agreement consistent with Government Code Section 65915;

e. If reduced parking standards have been applied to the project, the number of bedrooms of each unit shall be identified;

f. The city or designee shall consider the assets and income of prospective households, pursuant to the state’s Housing and Community Development (HCD) standards set forth in the definition of “income eligibility”;

g. The applicant shall provide documented evidence to the city of Benicia community development department that initial occupants of all very-low- and low-income rental units meet the necessary income qualifications. The property owner shall provide an annual report to the Benicia housing authority certifying tenants of qualifying rental units meet the income and rent limit requirements;

h. Every purchaser of an owner-occupied unit shall certify the unit will be the purchaser’s primary place of residence, and every renter shall certify the unit will be occupied by the household renting the unit;

i. Initial sales price and fair market value of units at time of initial sale shall be stipulated for all units constructed for moderate-income owner occupants; and

j. The applicant shall provide documented evidence to the city community development department that initial owner occupants of very-low-income, low-income and moderate-income units that qualified the applicant for the award of the density bonus meet the necessary income qualifications. Subsequent sale of affordable units shall be limited to very-low, low- or moderate-income households, as approved by the city community development department.

4. Transfer of Density Permit Requirements. A noticed public hearing shall be required for any proposal to transfer density rights between contiguous or noncontiguous properties if the resulting density exceeds 125 percent of the number of units normally permitted by the base district. The planning commission may recommend, and the city council may approve, such a transfer of density if the following findings can be made:

a. That the project as proposed will materially assist in accomplishing the goal of providing affordable housing opportunities in the city;

b. That the project would not lead to overconcentration of persons and families of moderate, low, or very low income; and

c. That granting the increased density will not adversely affect the general plan, cause significant adverse effects on the environment, adversely affect solar access to the neighboring property, or violate relevant regulations of this code. (Ord. 16-10 § 1).

17.70.280 Manufactured homes.

A. Purpose. Manufactured homes are part of the housing stock of the city of Benicia. It is the intent of the city to provide opportunities for the placement of manufactured homes as residential uses and in manufactured home parks, and to ensure that such manufactured homes are designed and located so as to be harmonious within the context of the surrounding houses and neighborhood. No provision contained herein shall be applied in contradiction to state law.

B. General Requirements. Manufactured homes may be used for residential purposes as follows:

1. If such manufactured homes are located in an approved manufactured home park in conformity with the conditions imposed upon development and use of the manufactured home park; or

2. If such manufactured homes are located in a district that permits single-family dwellings; or

3. If such manufactured homes have been approved by the community development director for a location in an OS district or an I district as caretaker housing.

All manufactured home parks shall have a minimum lot area of four acres and may be allowed only through approval of a PD district under the provisions of Chapter 17.44 BMC. Manufactured homes also may be used for temporary uses, subject to the requirements of a temporary use permit issued under Chapter 17.104 BMC.

4. Design Criteria. A manufactured home shall be compatible in design and appearance with structures in the vicinity and shall meet the following standards:

a. It must be built on a permanent foundation approved by the building official;

b. It must have been constructed in compliance with all city of Benicia permit requirements, subject to permitting by the California Department of Housing and Community Development;

c. The unit’s skirting must extend to the finished grade;

d. The exterior materials of a manufactured home shall be compatible with existing development in the immediate neighborhood by using building materials, window styles, roof slopes, colors, and exterior finishes that are the same or visually similar to those on the primary dwelling unit. Reflective metal finishes are prohibited;

e. The roof must be of concrete or asphalt tile, shakes or shingles, or nonreflective standing seam metal complying with the most recent editions of the California Building Code fire rating approved in the city of Benicia;

f. The roof must have a minimum 2:12 pitch and eaves or overhangs of not less than one foot;

g. Required covered parking shall be compatible with the manufactured home design and with other buildings in the area.

C. Cancellation of State Registration. Whenever a manufactured home is installed on a permanent foundation, any registration of said manufactured home with the state of California shall be canceled, pursuant to state laws and regulations. Before any occupancy certificate may be issued for use of such a manufactured home, the owner shall provide to the building official satisfactory evidence showing that the state registration of the manufactured home has been or will, with certainty, be canceled. If the home is new and has never been registered with the state, the owner shall provide the building official with a statement to that effect from the dealer selling the home. (Ord. 19-02 § 5; Ord. 92-9 N.S. § 20, 1992; Ord. 89-1 N.S. § 32, 1989; Ord. 87-4 N.S., 1987).

17.70.290 Game centers.

Use Permit Required. In addition, the following performance standards shall apply to the operation of game centers, including mechanical or electronic games or any other similar machine or device.

A. Purpose. The intent of these performance standards, in particular the use permit requirement, is to provide a procedure to control the location and operation of game centers, to require adequate adult supervision, and to govern hours of operations so as not to allow school children to patronize game centers during school hours.

B. Use Permit Required. A use permit, to be approved by the planning commission, is required to install, operate or maintain three or more mechanical or electronic games. The use permit is valid only for the number of games specified; the installation or use of additional games requires a new or amended use permit. The planning commission may impose reasonable restrictions on the physical design, location and operation of a game center in order to minimize the effects of noise, congregation, parking and other nuisance factors that may be detrimental to the public health, safety and welfare of the surrounding community.

C. Adult Manager. At least one adult manager, of at least 19 years of age, shall be on the premises during the time a game center is open to the public.

D. Hours of Operation for Minors Between Six and 18 Years of Age. No game center owner, manager or employee shall allow a minor between six and 18 years of age to play a mechanical or electronic game machine during the hours the Benicia public schools are in session, or 9:00 p.m. on nights preceding school days, or 10:00 p.m. on any night. It is the responsibility of the owner or manager of the game center to obtain a current schedule of school days and hours. (Ord. 93-14 N.S. § 5, 1993; Ord. 87-4 N.S., 1987).

17.70.300 Animals.

A. Purpose. Supplemental regulations governing the care and keeping of animals are intended to provide for the compatibility between such animals and neighboring land uses. These are in addition to the general requirements governing animals established by BMC Title 6.

B. Domestic and Exotic Animals. In an R district, or in conjunction with any residential uses in any other district, domestic and exotic animals, as defined by this title, are subject to the following requirements in addition to the regulations of BMC Title 6.

1. Such animals, except cats, shall not be permitted to run at large, but shall be, at all times, confined within a suitable enclosure or otherwise be under the control of the owner of the property; and

2. Any enclosure shall be located in an interior side or rear yard and set back at least five feet from the property line; and

3. The number of allowed animals, as defined by this title, may not exceed the limits set forth in BMC Title 6 unless the property owner has obtained an animal keepers permit and a staff level use permit.

C. Other Animals.

1. In an R district, or in conjunction with any residential use in a C district, one horse, as defined in BMC Title 6, may be kept for each 20,000 square feet of open space, subject to securing a use permit. Paddock and corral areas shall be at least 20 feet from the property line, and stables shall be at least 40 feet from the property line.

2. In an OS district, livestock, farm animals, domestic animals and exotic animals may be kept on a lot 20,000 square feet or more in area, subject to the following requirements:

a. The number of domestic or exotic animals shall not exceed six;

b. Such animals shall not be permitted to run at large, but shall be, at all times, confined within a suitable enclosure; and

c. Any enclosure shall be set back at least 25 feet from the property line. (Ord. 08-02 § 1; Ord. 87-4 N.S., 1987).

17.70.310 Fences and walls.

All fences and walls shall be constructed in a sound and workmanlike fashion using new or good used material, and shall be maintained erect and in a state of good repair. Any dilapidated, dangerous, or unsightly fence or wall shall be repaired or removed. (Ord. 87-4 N.S., 1987).

17.70.320 Inclusionary housing.

A. Findings. The city finds that Benicia is experiencing a housing shortage for very-low- and low-income households. A goal of the city is to ensure development of an adequate supply and mix of new housing to meet future housing needs. Policies within the current housing element (as amended May 2003) provide incentives to developers producing affordable housing, including: density bonuses, permit processing “fast tracking,” relaxation of minimum lot standards, waiver of covered parking requirements, and modification of development standards.

Very-low- and low-income households that include persons who work and/or live within the city are typically unable to locate housing at prices they can afford and are excluded from living in the city. The city finds that the high cost of newly constructed housing does not provide housing affordable by very-low- and low-income households, and that continued new development which does not include nor contribute toward lower cost housing will serve to further aggravate the current housing problems by reducing the supply of developable land.

It is the city’s preference that developers comply with this section by actually building the affordable dwelling units required for their project. The lack of land available for affordable housing projects and the additional costs associated with development of affordable housing projects by the city or nonprofit developers requires that any in-lieu fee paid be calculated at a rate to provide sufficient funds to actually build affordable housing.

The city further finds that the housing shortage for persons of very low and low incomes is detrimental to the public welfare, and further that it is a public purpose of the city, and public policy of the state of California as mandated by the requirement for a housing element of the city’s general plan, to make available an adequate supply of housing for persons of all economic segments of the community.

B. Purpose. The purpose of this section is to enhance the public welfare and assure that further housing development contributes to the attainment of the housing goals of the city by increasing the production of units available to, and affordable by, households of very low and low income, as herein defined. In order to ensure that a balance of housing for all economic segments of the community remains available and is increased as far as possible to meet the need documented in the housing element, the city declares that a percentage of inclusionary units shall be developed in every residential development, or land dedicated for residential development, or an in-lieu fee shall be collected, or some combination of the foregoing shall be required, to support the development of lower-income housing.

“Accessory unit” shall mean an accessory dwelling unit as defined in BMC 17.70.060.

“Affordable” shall mean that the relevant dwelling units are available on terms such that the housing cost or affordable rent is 30 percent or less of the income of low- or very-low-income households based on the figures produced by the U.S. Department of Housing and Urban Development for Solano County.

“Affordable rental restriction agreement” means legal restrictions by which the rents for inclusionary rental units will be controlled to ensure that the rents remain affordable to very-low- or low-income households for a period of not less than 30 years.

“Affordable rents” means housing that is affordable, based upon monthly rent of 30 percent or less of the income of low- or very-low-income households based on the figures produced by the U.S. Department of Housing and Urban Development for Solano County.

“Area median income” means the most recent area median income adjusted by household size based on figures produced by the U.S. Department of Housing and Urban Development for Solano County.

“At one location” means all adjacent land owned or controlled by the developer, the property lines of which are contiguous at any point, or the property lines of which are separated only by a public or private street, road or other public or private right-of-way, or separated only by other land of the developer.

“Capital improvements” means the fair market value of any improvement, appliance, fixture, or equipment when considered as an addition or fixture to the property (i.e., the amount by which said improvement, appliance, fixture, or equipment enhances the market value of the property) at the time of sale, minus the value of any improvement, appliance, fixture or equipment which the city determines resulted from deferred maintenance costs or building code violations.

“City” means the city of Benicia.

“CPI” or “Consumer Price Index” means the U.S. Bureau of Labor Statistics annual average CPI-U (Consumer Price Index for all Urban Consumers) for the San Francisco-Oakland-San Jose Area, for the Housing Series, Home Owners Cost Component.

“Density bonus” means an increase in the number of units per acre otherwise allowed for any particular parcel.

“Developer” means any person, firm, partnership, association, joint venture, corporation, or any entity or combination of entities which seeks city permits and approvals. “Developer” also includes developers’ successors in interest to the real property.

“Discretionary permit” means any permit or license issued by the city of Benicia after the effective date of the ordinance codified in this section for a project which requires the exercise of judgment or deliberation wherein the city decides to either approve or disapprove a particular activity in accordance with applicable laws including but not limited to a development agreement, amended development agreement, tentative map, use permit, or design review, and excluding minor changes to previously granted approvals.

“Dwelling unit” means a structure or portion of a structure designed for occupancy by one household.

“For-sale unit development” means a development project where units are sold to a buyer who takes title to the unit via a mortgage instrument.

“HCD” means the California Department of Housing and Community Development.

“Housing authority” means the housing authority of the city of Benicia.

“Housing cost” means the monthly mortgage principal and interest, property taxes and assessments, fire and casualty insurance covering replacement value of property improvements, property maintenance and repairs, a reasonable allowance for utilities, owner association fees, and space rent if the dwelling is situated on rented land.

“HUD” means the U.S. Department of Housing and Urban Development.

“Inclusionary unit” means an ownership or rental dwelling unit as required by this section, which is affordable to very-low- or low-income households.

“Income eligibility” shall mean the countable annual household income and resources of very-low- and low-income households, as defined by HCD at C.C.R. Sections 6914 and 6916 , or such other eligibility factors as may be imposed by a state or federal funding source applicable to the dwelling unit.

“In-lieu housing fee” means a fee paid to the city’s affordable housing trust fund to provide affordable housing opportunities to very-low- and low-income households.

“Low-income households,” for the purposes of this section, are defined as those households earning up to 80 percent of the most recent area median income adjusted by household size based on figures produced by the U.S. Department of Housing and Urban Development for Solano County.

“Market rate unit” means an ownership or rental dwelling unit which is not restricted to those prices or rents affordable to very-low- or low-income households.

“Percent” or “Percentages.” In applying percent or percentages referred to in this section, any decimal fraction less than 0.50 may be disregarded and any decimal fraction greater than or equal to 0.50 shall be rounded up to the next whole number.

“Resale control agreement” means legal restrictions by which the inclusionary units will be controlled to ensure that the unit remains affordable to very-low- or low-income households for a period of not less than 30 years.

“Residential development” means any development with dwelling units or lots at one location intended and designed for permanent occupancy including, but not limited to, single-family dwellings, apartments, multiple dwelling units, group of dwellings, condominium developments, townhouse developments, cooperatives, or land subdivisions; conversions from nonresidential use to residential use; or conversions from rental units to ownership units. “Residential development” includes any development with dwelling units or lots for which discretionary approvals or building permits have been applied for or granted within any 12-month period that begins after the effective date of the ordinance codified in this section, which development shall be considered to be a single project for CEQA purposes. “Residential development” does not include remodeling, rehabilitation or maintenance.

“Section 8” means the U.S. Department of Housing and Urban Development’s Section 8 voucher or home ownership programs pursuant to 42 U.S.C. 1437f, as they may be amended, or any successor program.

“Very-low-income households,” for the purposes of this section, are defined as those households earning up to 50 percent of the most recent area median income adjusted by household size based on figures produced by the U.S. Department of Housing and Urban Development for Solano County.

D. General Requirements for New Residential Development.

1. Any residential development of for-sale units where there are 10 or more units shall include 10 percent of the total number of market rate dwelling units within the development as units affordable to, and occupied by, very-low- and low-income households, for a minimum of 30 years from the recordation of each resale control agreement or affordable rental restriction agreement, as the case may be, for the units. One-half of the total number of inclusionary units within the development shall be designated as units affordable to, and occupied by, very-low-income households and one-half of the total number of inclusionary units within the development shall be designated as units affordable to, and occupied by, either very-low- or low-income households. When the number of inclusionary units to be provided is an odd number (e.g., 10 percent of 10 units is one), the odd-numbered unit shall be provided at a level affordable to a household with an income of not more than 60 percent of area median income. The city council may approve an alternative of equivalent value to satisfy all or part of the inclusionary requirement, including payment of in-lieu housing fees, dedication of developable land, or an alternative in-lieu contribution package.

2. For residential development of for-sale units of 10 or more units, building permits shall only be issued subsequent to the execution of a written agreement between the city and the developer or its designee which will assure compliance with the provisions of this section. Such agreement shall specify the timing of the construction of the inclusionary units and/or the provisions of the in-lieu alternative (payment of an in-lieu fee, dedication of developable land, or an alternative in-lieu contribution package acceptable to the city council), the number of inclusionary units at appropriate price or rent levels, the term of affordability, provision for the city’s income certification and screening of potential purchasers and/or renters of inclusionary units, a resale control agreement and/or affordable rental restriction agreement, if applicable, and such reasonable information as shall be required by the city for the purpose of determining the developer’s compliance with this section.

All inclusionary units in a for-sale unit development and/or phases of a development shall be constructed concurrently with or prior to the construction of market rate units, unless the city council determines an alternative phasing schedule to facilitate affordable housing development and the developer enters into a written agreement setting forth terms for satisfaction of the inclusionary housing requirements. Each phase of a development shall include the same or greater proportion of inclusionary units as are required for the total development.

3. Except as otherwise permitted in this section, all inclusionary units shall be reasonably dispersed within the development and shall be comparable to the design of market rate units in terms of numbers of bedrooms, appearance, materials, and finished quality. The number of bedrooms for the inclusionary units shall be considered comparable if the following minimum requirements are achieved:

a. Five percent of the inclusionary units, with the exception of accessory units referred to in subsection (J) of this section, must be four-bedroom units;

b. Twenty-five percent of the inclusionary units, including accessory units, must be three-bedroom units;

c. Forty percent of the inclusionary units, including accessory units, must be two-bedroom units;

d. Twenty percent of the remaining inclusionary units must be at least one-bedroom units;

e. The remaining inclusionary units may be any bedroom size categories.

The following table demonstrates the inclusionary requirements for projects with 10 or less inclusionary units:

Allocation of Bedroom Mix for Projects with 1 – 10 Inclusionary Units

Total # of Inclusionary Units

# of One-Bedroom Units Required

# of Two-Bedroom Units Required

# of Three-Bedroom Units Required

# of Four-Bedroom Units Required

Optional # of Bedrooms In Addnl. Unit*

* The applicant has the option to determine the number of bedrooms in the additional unit.

The community development director shall have the discretion to adjust the above minimum percentages due to site or design constraints, public funding source restrictions pertinent to very-low- or low-income units for developments containing market rate units with less than four bedrooms, or to comply with all applicable city ordinances; provided, that a mix of units in terms of numbers of bedrooms is achieved which will serve the affordable housing needs of the city as reflected in the city’s housing element, the State Consolidated Plan, and the Benicia housing authority annual and five-year plans.

4. The developer shall have the option, with the approval of the city council, (a) to transfer credit for inclusionary units constructed at one location within the city to another location within the city to satisfy the requirements of this section, (b) to apply credits for extra inclusionary units constructed by the developer within the city that exceed the number of units that the developer is required under this section to construct (“extra unit credits”) to another development in the city constructed by the developer or by an affiliate of the developer, and (c) to transfer extra unit credits to third party developer(s) to be applied to the transferee’s development. Except as otherwise provided in this section, the inclusionary requirements must be satisfied with construction of units of an equivalent number and level of affordability and shall be comparable to the design of market rate units in terms of number of bedrooms, appearance, materials, and finished quality. Except as otherwise provided in this section, these inclusionary units must be constructed prior to issuance of a certificate of occupancy for any market-rate unit in the project.

5. The developer shall have the option, with the approval of the city council, in a homeownership development, of constructing rental units in a number sufficient to meet the inclusionary requirements of the project pursuant to this section. Except as herein provided, these inclusionary rental units shall be subject to subsection (E) of this section.

6. The city shall make available the annual maximum rents and the maximum allowable purchase prices, as defined in subsections (E) and (F) of this section. The established prices and rents for inclusionary units shall generally be based on and shall not exceed the following assumptions regarding household size in relation to the number of bedrooms per unit: 1.0 occupant per studio unit; 2.0 occupants per one-bedroom unit; 3.0 occupants per two-bedroom unit; 4.0 occupants per three-bedroom unit; and 5.0 occupants per four-bedroom unit; provided however, that the city shall have the discretion to establish annual maximum rents and allowable purchase prices based on actual or anticipated occupancy of the inclusionary units in order to facilitate maximum affordability levels.

7. To protect the privacy of the families and to the extent permitted by law, the city and its designee(s) shall keep confidential the personal identifying information of the families occupying an inclusionary unit.

E. Inclusionary Unit Requirements for Rental Developments.

1. The inclusionary rental units shall only be offered to and occupied by low- and very-low-income households. Rent for the low-income units shall be determined as follows: The average of the rent of all low-income units in the residential development shall be the price affordable to households with an income of not more than 75 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County. In order to achieve this average, no unit may be rented at or above a price affordable to a household with an income at 80 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County. In addition, if multiple units affordable to low-income households are required to be produced, at least one unit shall be rented at a price affordable to households with an income of not more than 70 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County.

Rent for the very-low-income units shall be determined as follows: The average of the rent of all very-low-income units in the residential development shall be the rent affordable to households with an income no more than 45 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County. In order to achieve this average, no unit may be rented at or above a price affordable to a household with an income at 50 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County. In addition, if multiple units affordable to very-low-income households are required to be produced, at least one unit shall be rented at a price affordable to households with an income of not more than 40 percent of the most recent area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County.

For residential developments where only one inclusionary unit is required to be built, the unit shall be rented at a price affordable to households with an income of not more than 60 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County. For residential developments where two inclusionary units are required to be built, one unit shall be rented at a price affordable to households with an income of not more than 75 percent of the area median income and the other shall be rented at a price affordable to households with an income of not more than 45 percent of the area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County. For residential developments where an odd number of inclusionary units are required to be built, the odd unit shall be rented at a price affordable to households with an income of not more than 60 percent of area median income based on figures produced by the U.S. Department of Housing and Urban Development for Solano County.

2. The city or its designee(s) shall screen applicants for the inclusionary rental units and certify their income eligibility. The developer or its designee(s) shall retain final discretion in the selection of the very-low- or low-income households; provided, however, that the same rental terms and conditions (except rent levels and income) are applied to tenants of inclusionary units as are applied to all other tenants, except as required to comply with government subsidy programs. Notwithstanding any other provision of this subsection, in the screening and selection process for the inclusionary rental units, the city, developer, and/or their designee(s) shall comply with all applicable state and federal fair housing laws. Discrimination based on any subsidies received by the prospective tenant is expressly prohibited.

3. Commencing with issuance of each certificate of occupancy and continuing until expiration of the affordable rental restriction agreement, the developer or its designee(s) shall provide an annual report to the city. The annual report shall provide the following information: (1) the address, including apartment number and zip code; (2) the date of completion of the unit and size of the unit (number of bedrooms); (3) the initial and current rent level of the household; (4) the current income level of the household and the number of persons in the household; (5) the term of the affordability restrictions pursuant to this section or the requirements of any funding source, whichever is more restrictive; (6) the date the affordability restrictions were recorded and the name of the recorded documents; (7) the name and address of the owner and manager (if any); and (8) the date of issuance of the certificate of occupancy. The city or its designee(s) shall monitor that rent level requirements of this section have been met.

4. For residential development of for-rental units where there is no financial assistance from the city or a type of assistance specified in the city’s density bonus law, the provisions cited in subsections (D)(1) through (7) and (E)(1) through (3) shall not apply.

For residential development of for-rental units where the developer receives financial assistance from the city, or a density bonus or other regulatory relief, and/or the developer voluntarily agrees by contract to restrict rents as affordable according to the provisions found herein, subsections (D) and (E) shall apply.

F. Inclusionary Unit Requirements for Ownership Developments.

1. The inclusionary ownership units shall only be offered to, sold to, and sold at prices affordable to households who meet the income eligibility requirements at the time of sale. Prices for the low-income units shall be determined as follows: The average of the price of all low-income units in the residential development shall be the price affordable to households with an income of not more than 75 percent of the area median income. In order to achieve this average, no unit may be priced at or above a price affordable to a household with an income at 80 percent of the area median income. In addition, if multiple units affordable to low-income households are required to be produced, at least one unit shall be priced at a price affordable to households with an income of not more than 70 percent of the area median income.

Prices for the very-low-income units shall be determined as follows: The average of the price of all very-low-income units in the residential development shall be the price affordable to households with an income no more than 45 percent of the area median income. In order to achieve this average, no unit may be priced at or above a price affordable to a household with an income at 50 percent of the area median income. In addition, if multiple units affordable to very-low-income households are required to be produced, at least one unit shall be priced at a price affordable to households with an income of not more than 40 percent of the most recent area median income.

For residential developments where only one inclusionary unit is required to be built, the unit shall be priced at a price affordable to households with an income of not more than 60 percent of the area median income. For residential developments where two inclusionary units are required to be built, one unit shall be priced at a price affordable to households with an income of not more than 75 percent of the area median income and the other shall be priced at a price affordable to households with an income of not more than 45 percent of the area median income. For residential developments where an odd number of inclusionary units are required to be built, the odd unit shall be priced at a price affordable to households with an income of not more than 60 percent of area median income.

To increase the pool of eligible households, a developer may sell the affordable dwelling units (1) to households who have incomes below the specified percentage of area median income and/or (2) at prices below that required by this subsection.

2. The developer or its designee(s) shall notify the city of the availability of the ownership inclusionary units when the units are available for sale. The city or its designee(s) shall advertise the availability of the inclusionary units to the general public. The city or its designee(s) shall review the assets and income of prospective purchasers who have entered into a written contract to purchase one of the ownership inclusionary units. The city or its designee(s) shall certify the income eligibility of prospective purchasers through an application process. The developer or its designee(s) shall retain final approval in the selection of the qualified purchasers. Discrimination based on any subsidies received by the prospective purchaser is expressly prohibited.

3. Prior to close of escrow for each unit, the developer or its designee(s) shall provide a report to the city which includes the following information: (1) the address of the unit and zip code; (2) the size of the unit (number of bedrooms); (3) the sales price; whether the unit is considered very low or low income; and the specified percentage of area median income designated for that dwelling unit; (4) the income level of the purchaser and the number of persons in the household; and (5) the term of the affordability restrictions pursuant to this section or the requirements of any funding source, whichever is more restrictive. Within 10 business days after close of escrow, the developer or its designee(s) shall provide a report to the city which includes the following information: (1) the date the affordability restrictions were recorded with the Solano County recorder’s office and the name of the recorded documents; (2) the name of the owner(s) of the inclusionary unit; and (3) the date of actual or expected occupancy by the household. The above two reports shall be provided for each unit until all units have been sold. The city or its designee(s) shall at least annually monitor purchase prices, number of units at the required affordability levels, owner-occupancy, and the expiration of the terms of affordability.

G. Eligibility Requirement.

1. In establishing eligibility for the rental inclusionary units and ownership inclusionary units, the city or its designee(s) shall consider the assets and income of the household pursuant to HCD standards as set forth in the definition of “income eligibility” in this section.

2. Every purchaser of an inclusionary unit shall certify that the unit is being purchased for the purchaser’s primary place of residence. Every renter of a rental inclusionary unit shall certify that the unit shall be or is being occupied by those renting the unit.

H. Control of Resale.

1. For Sale Units.

a. A resale control agreement setting forth the applicable terms of this section shall be recorded with the Solano County recorder’s office for each for-sale inclusionary unit. In order to maintain the availability of the for-sale dwelling units to be constructed pursuant to the requirements of this section, the city shall impose the following resale conditions for a period of 30 years from recordation of each resale control agreement, which 30-year period shall start over with each resale. The price received by the seller of an inclusionary unit shall be limited to his or her initial purchase price, plus a percentage increase based on any increase in the Consumer Price Index from the date of the property purchase to the date the property is sold, plus an amount to cover capital improvements. The seller shall not levy or charge any additional fees nor shall any “finder’s fee” or other monetary consideration be allowed other than customary real estate commissions and closing costs.

b. The seller of an inclusionary unit shall sell said unit to a household in the same or lower income category as the unit was originally designated. The seller of the unit shall immediately notify the city and the Benicia housing authority upon the listing of the seller’s property for sale. Within 10

days of notification that the property has been listed, the city and the Benicia housing authority shall provide the seller or seller’s agent a list of any qualified and eligible potential purchasers known to the city or the Benicia housing authority.

The city shall have 90 days from the date the property is listed by the seller either to purchase the property and reserve the unit for a household within the same or lower income category as the unit was originally designated; or to find an eligible buyer. The income of the new household shall be certified by the city or its designee(s).

If the city decides not to exercise its purchase option, and the seller is unable to find any eligible buyers after both listing the property and marketing and advertising the sale of the property to buyers in the appropriate income category for a minimum of 90 days, the seller may rent the property to a household within the same or lower income category as the unit was originally designated. The seller shall provide the annual reports required by subsection (E)(3) of this section for as long as the dwelling unit remains rented.

c. The owner of any inclusionary unit shall attach and legally reference in the grant deed conveying title of any such inclusionary unit a declaration of restrictions stating the restrictions imposed pursuant to this section. The city shall provide a form declaration of restrictions, but failure to provide the form does not abrogate the owner’s obligation to record the declaration.

The declaration of restrictions shall include all applicable resale controls, occupancy restrictions, and prohibitions as required by this section.

d. The resale control agreement shall provide that if the unit is no longer owner-occupied the unit shall be occupied by and provided at an affordable rent to a household in the same income category for which the unit was designated. If the unit is rented, the homeowner’s annual report shall include information required by the annual report for rental units, as appropriate.

2. Rental Units. An affordable rental restriction agreement setting forth the applicable terms of this section shall be recorded with the Solano County recorder’s office for each inclusionary rental unit. The affordable rental restriction agreement shall provide that the rental units be made available at specified affordable rents to, and be occupied by, very-low- or low-income persons as required by this section for a period of at least 30 years, and such terms shall be binding on any subsequent purchasers.

The owner of any inclusionary rental unit shall attach and legally reference in the grant deed conveying title of any such inclusionary unit a declaration of restrictions stating the restrictions imposed pursuant to this section. The city shall provide a form declaration of restrictions, but failure to provide the form does not abrogate the owner’s obligation to record the declaration.

The declaration of restrictions shall include all applicable occupancy restrictions, prohibitions, and terms of the affordable rental restriction agreement as required by this section.

I. Land Dedication Option.

1. Dedication. The city council may allow a developer to make an irrevocable offer of dedication to the city of sufficient land to satisfy the affordability requirement under this section. Such land shall be economically feasible and physically suitable for development of the required inclusionary units prior to dedication of the land including, but not limited to: the site shall be of sufficient size, general plan designation, and zoning to accommodate the required inclusionary units; the site shall be fully improved with infrastructure, frontage improvements (curb, gutter, and walk), paved street access, utility (water, sewer, gas, and electric) service connections stubbed at property line(s), and such other improvements as may be necessary for development of the required inclusionary units or required by the city; the site shall be graded to a two-percent back-to-front slope or improved with retaining walls or other improvements to provide an equivalent developable area; and all fees necessary for development of the required inclusionary units shall be paid. The amount of land dedicated shall be sufficient to provide the same number, type, and bedroom distribution of inclusionary units at the same affordability levels that would otherwise be required by this section. Thus, in order to provide a mechanism for financing the construction of the inclusionary units, a developer will be required to provide more land than otherwise required for the physical siting of the inclusionary units or to provide funds to construct the units.

The city shall have the discretion to adjust the number of inclusionary units produced based on such factors as site or design constraints or to comply with all applicable city ordinances. The developer must identify the land to be dedicated no later than the application for tentative map approval, or if not applying for a tentative map, prior to design review approval. The city may approve, conditionally approve or reject such offer of dedication of any specific property. If the city rejects such offer of dedication, the developer or its designee(s) shall be required to meet the affordable housing obligation by other means set forth in this section.

Within one year from the date of conveyance to the city, the city council shall determine, at its discretion, whether the property dedicated to the city pursuant to this subsection shall be (a) developed by the city to produce the required number of inclusionary units; (b) conveyed to the developer or third parties who shall enter into an agreement with the city to produce such inclusionary units; or (c) sold and the sale proceeds deposited in the affordable housing trust fund for use pursuant to subsection (K)(6) of this section. The production of units by the city, developer, or third party shall be completed within two years from the date of the city council’s determination.

2. Developer Option for Dedicated Land. Notwithstanding the provisions of subsection (I)(1) of this section, if a developer has complied with this section by dedicating land, the developer may obtain an option from the city council to develop the affordable housing units referred to in subsection (I)(1) on the dedicated land by paying an option fee in an amount to be determined by the city council. The term of the option shall be one year from the date such option fee is paid to city. At any time during the option term, the developer may submit plans to develop the affordable housing units on the dedicated land that meet the requirements of this section; provided, that such plans comply with all applicable city ordinances; and provided further, that the developer commits to construct such affordable housing units within two years following the option term, the city council shall reconvey the dedicated land to the developer to allow the construction of such units.

J. Accessory Unit Option.

1. Accessory Units Which May Count Towards Meeting the Developer’s Inclusionary Obligation. For single-family detached ownership developments, accessory dwelling units may be used, at the city’s sole discretion, in meeting the inclusionary units obligation; provided, that the accessory units meet the requirements of subsections (D), (E), and (H) of this section. The deed restriction for such an accessory unit shall prohibit the owner from renting out the accessory unit at a rental rate higher than: for a very-low-income unit, the rent shall be affordable to a household at or below 50 percent of the area median income; for a low-income unit, the rent shall be affordable to a household at or below 80 percent of the area median income. The owner of a deed-restricted accessory unit shall not be required to rent such unit, but if the unit is rented, the allowable rent shall be determined in accordance with this subsection, and rental of the unit shall be subject to the restrictions of subsections (E)(2) and (E)(3) of this section.

2. Accessory Units Which Will Not Count in Determining the Developer’s Inclusionary Obligation. Accessory dwelling units with deed restrictions recorded with the Solano County recorder’s office which prohibit the owner and subsequent purchasers, for a period of not less than 30 years from the date the deed restriction is recorded, from renting out the accessory unit at a rental rate higher than the rent affordable to a household at 80 percent of the area median income, but which do not otherwise comply with subsections (D), (E), and (H) of this section, shall not be counted as inclusionary units; however, such units will not be counted as market rate units in determining the developer’s inclusionary obligation.

K. In-Lieu Fee Option.

1. General. The city council may allow a developer to meet the requirements of this section by paying an in-lieu housing fee. At the time of application for a discretionary or building permit, whichever comes first, a developer desiring to pay the in-lieu fee shall submit a request to pay the in-lieu fee along with a report identifying all overriding conditions impacting the project that prevent the developer from meeting the requirement to construct the inclusionary units; sufficient independent data, including appropriate financial information, that supports the developer’s claim that it is not feasible to construct the required inclusionary units; and a detailed analysis of why the various concessions and incentives identified in subsections (L), (M), (N), (O), (P), and (Q) of this section cannot mitigate the developer’s identified conditions that are preventing him/her from constructing the inclusionary units. The community development director shall review all such requests and prepare a recommendation for the city council. Such requests shall be considered on a case-by-case basis by the council and may be approved, at the council’s sole discretion, if the council determines that there are overriding conditions impacting the project that prevent the developer of a residential development from meeting the requirement to construct inclusionary units and that payment of the in-lieu fee will further affordable housing opportunities.

Dedication of land may, at the discretion of the city council, reduce the level of the in-lieu housing fee payable to the city. The in-lieu fee, or combination of land dedication and in-lieu fee, shall be sufficient to enable the city or its designee(s) to satisfy, within a reasonable time, the inclusionary requirements of the developer’s project by providing sufficient funds, or a combination of sufficient land and funds, for construction of the required units.

2. Time of Payment. If fees are to be paid in lieu of providing affordable housing or dedicating land, the fees shall be paid simultaneously upon issuance of building permits for the market-rate units in the residential development. If building permits are issued for only part of a residential development, the fee amount shall be based only on the number of permitted units. For land subdivisions involving lot sales, fees shall be paid prior to approval of a final subdivision map.

3. Applicable Fee. The amount of the fee shall be based upon the fee schedule in effect at the time of payment of the fee as determined by the city.

4. Amount of In-Lieu Housing Fee. The amount of the in-lieu housing fees shall be determined by a resolution of the city council. The amount of the in-lieu housing fees shall be sufficient to provide the same number, type, and bedroom distribution of inclusionary units at the same affordability levels that would otherwise be required by this section. The in-lieu housing fee also shall include an administrative fee sufficient to cover the costs of administering the in-lieu housing fee.

5. In-Lieu Housing Fee Account. The principal and interest of all in-lieu housing fees collected shall be deposited into a separate interest-bearing account (which should not include an administrative fee) administered by the finance director, or designee(s), to be designated the affordable housing trust fund.

6. Use and Expenditure of Fees. The in-lieu housing fees collected, and all earnings from investment of the fees, shall be expended exclusively for the provision of affordable housing through acquisition, construction, rehabilitation, homeowner and renter assistance, equity sharing programs, or other methods to provide housing affordable to the same or lower income category for which the fees were assessed, as well as administrative costs to implement the inclusionary housing program. Expenditure of in-lieu housing fees for administrative costs shall not exceed 20 percent of the in-lieu housing fees collected.

7. In-Lieu Housing Fees Implementing Guidelines. The city, or its designee(s), shall develop guidelines for the administration of the in-lieu housing fees.

8. Annual Review of In-Lieu Housing Fees. Every fiscal year, the finance director, or designee(s), shall prepare a report for the city council on the collection and disbursement of in-lieu housing fees. The city council shall make findings with respect to any portion of the in-lieu housing fees remaining unexpended or uncommitted in the affordable housing trust fund five or more years after deposit of the fees to identify the purpose to which the fees are to be put and to demonstrate a reasonable relationship between the fees and the purpose for which they were charged.

9. Refunds of In-Lieu Administrative Fees. The city shall refund to the then current record owner or owners of the development project or projects on a prorated basis the unexpended portion of the administrative fee, and any interest accrued thereon, for which need cannot be demonstrated pursuant to subsection (K)(4) of this section. If the administrative costs of refunding unexpended or uncommitted revenues pursuant to this section exceed the amount to be refunded, the city council, after a public hearing, notice of which has been published pursuant to Section 6061 of the California Government Code and posted in three prominent places within the area of the development project, may determine that the fees shall be allocated for some other purpose for which fees are collected subject to AB 1600 and which serves the project on which the fee was originally imposed.

L. Availability of Government Subsidies. It is the intent of this section that the requirements for inclusionary units affordable by very-low- or low-income households shall not be contingent on the availability of government subsidies. This is not to preclude the use of such programs or subsidies. To the extent a government subsidy or affordable housing program has requirements that conflict with this section, the community development director may modify or waive such conflicting requirement(s) of this section in order to facilitate the development of inclusionary units. This section is also not intended to be an undue burden on the developers of residential projects. Therefore, as detailed in succeeding subsections of this section, incentives are given to provide inclusionary units.

M. Density Bonus. To avoid an undue economic burden or cost to the developer providing inclusionary units or alternatives required by the provisions of this section, the city shall favorably consider the applicability of a density bonus for a proposed residential project or land subdivision, as provided by state and local law; provided, that a density bonus does not conflict with the goals of the city’s general plan or result in significant environmental impacts. Granting of a density bonus shall be considered on a project-by-project basis.

N. Fee Waiver or Reduction for Inclusionary Units. The city may waive or reduce city fees applicable to the inclusionary units of a proposed residential development or subdivision.

O. Modification of Development Standards. For residential development projects or land subdivisions which meet the inclusionary requirements of the section, the city may provide additional incentives consistent with its general plan, housing element, and municipal code, including, but not limited to, waiver or modification of covered parking requirements and certain zoning ordinance development standards and expedited design review.

P. Technical Assistance. In order to increase the feasibility and lower the cost of units affordable to very-low- or low-income households, the Benicia planning department and the Benicia housing authority shall provide assistance on financial subsidy programs to project developers.

Q. Reduction of Amenities and Square Footage. Upon a showing by the developer that it is necessary to achieve the required affordability of the inclusionary units:

1. With community development director approval, the developer may reduce the interior amenity level of the inclusionary units below that of the market rate units provided such dwelling units conform to the requirements of applicable building and housing codes; and

2. With city approval, the developer may reduce the square footage of the inclusionary units below that of the market rate units provided all dwelling units conform to the requirement of applicable building and housing codes.

1. The provisions of this section shall apply to all agents, successors and assignees of a developer once only for development of the site. No discretionary permit or building permit shall be issued after the effective date of the ordinance codified in this section for any project which does not meet the intent of the requirements of this section.

2. In addition to, or in lieu of, the provisions of subsection (R)(1) of this section, the city council shall institute appropriate legal actions or proceedings including, but not limited to, equitable relief for the enforcement of this section. Nothing in this section shall be construed to restrict the rights of the third party beneficiaries of this section to enforce its provisions.

3. Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this section, shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable for each offense by a fine of not more than $500.00, or by imprisonment in the county jail for a term not exceeding six months, or by both fine and imprisonment. Such person, firm, or corporation shall be deemed to be guilty of a separate offense for each and every day during any portion of which any violation of this section is commenced, continued, or permitted by such person, firm, or corporation, and shall be punishable as provided herein.

S. Appeals. Decisions under this section shall be final on the tenth business day following the decision unless appealed or reviewed in accordance with Chapter 1.44 BMC.

T. Performance. Failure of any city official or agency to fulfill the requirements of this section shall not excuse any developer from the requirements of this section. (Ord. 11-03 §§ 1 – 3; Ord. 10-03 §§ 1, 2, 3; Ord. 07-60 § 2; Ord. 00-9).

17.70.330 Electric transmission line easements.

All residential uses, schools, and public buildings shall be set back at least 150 feet from the edge of 230 kilovolt electric transmission line easements. (Ord. 01-6 N.S., 2001).

17.70.340 Stream setbacks.

All development shall be set back a minimum of 25 feet from the top of the bank of streams (both seasonal and perennial) and ravines. No development shall be permitted within the setback. (Ord. 01-6 N.S., 2001).

17.70.350 Formula businesses.

In the combined Downtown Mixed Use Master Plan and Solano/Davies Square areas (bounded by Military, N and West and East Second Streets), no more than one establishment of any particular formula business shall be allowed. Approval of a use permit for a formula business requires that the planning commission find that the proposed establishment will:

A. Complement existing uses and enhance the economic health of the surrounding area;

B. Be operated in a nonobtrusive manner that preserves the city’s or area’s distinctive character, ambiance, and small-sized city and historic nature;

C. Not result in a concentration of formula businesses in the vicinity or citywide;

D. Promote diversity and variety to assure a balanced mix of commercial uses available to serve both resident and visitor populations;

E. Contribute to an appropriate balance of local, regional or national-based businesses and small, medium and large-sized businesses in the community; and

F. Avoid an appearance commonly associated with strip retail or shopping centers. (Ord. 12-06 § 1; Ord. 07-12 § 4).

17.70.360 Retail sales larger than 20,000 square feet of gross floor area.

Approval of a use permit for a retail sales establishment larger than 20,000 square feet requires that the planning commission find that the proposed establishment will:

A. Complement existing uses and enhance the economic health of the surrounding area;

B. Be operated in a nonobtrusive manner that preserves the city’s or area’s distinctive character and ambiance;

C. Not result in a concentration of formula and/or retail sales establishments larger than 20,000 square feet in the vicinity or citywide;

D. Promote diversity and variety to assure a balanced mix of commercial uses available to serve both resident and visitor populations;

E. Contribute to an appropriate balance of local, regional or national-based businesses and small-sized, medium-sized and large-sized businesses in the community; and

F. Avoid an appearance commonly associated with strip retail or shopping centers. (Ord. 07-15 § 2).

17.70.370 Cottage food operations.

A. Permit Required. A cottage food operation in a dwelling unit shall require a cottage food operations permit obtained by filing a completed application form with the community development director. The community development director shall issue the permit upon determining that the proposed cottage food operation complies with the requirements of this section. Cottage food operation shall not include the preparation of food products containing cannabis.

B. Contents of Application. An application for a cottage food operations permit shall contain:

1. The name, address, and telephone number of the applicant;

2. A complete description of the proposed cottage food operation, including the type of food to be prepared, number and occupation of persons employed, amount of floor space occupied, provisions for storage of materials, and number and type of vehicles used;

3. A copy of the submitted application and/or issued permit from the Solano County environmental health division for operation of the subject cottage food operation.

C. Required Conditions. Cottage food operations shall comply with the following regulations:

1. The applicant for the cottage food operation permit shall be the individual who conducts the cottage food operation from his or her dwelling unit and is the owner of the cottage food operation. The permit shall not be transferable to another operator, nor transferable to another site.

2. No more than one cottage food employee, as defined by California Health and Safety Code Section 113758(b)(1), shall be permitted, not including an immediate family member or household member of the cottage food operator.

3. The cottage food operation shall be registered or permitted by the Solano County environmental health division in accordance with Section 114365 of the California Health and Safety Code. Cottage food operations shall comply with all California Health and Safety Code requirements.

4. The use shall be conducted within the kitchen of the subject dwelling unit except for attached rooms within the dwelling that are used exclusively for storage or bookkeeping. No more than 25 percent of the dwelling or 500 square feet of floor area, whichever is less, may be used for the cottage food operation, and it shall not be conducted within an accessory building, excepting that the community development director may grant approval of storage or minor processing operations within a garage or accessory building if the applicant demonstrates that the kitchen within the residence is not suitable for the type of food to be produced; the activity complies with Health and Safety Code requirements; and no more than 150 square feet of the garage or accessory building is utilized for the operation. No outdoor storage is permitted.

5. One nameplate sign measuring no more than two square feet may be placed on the premises attached to the main building near the business entrance, indicating the property address, name of the business, hours of operation, contact information, and goods provided. The existence of a cottage food operation shall not otherwise be apparent beyond the boundaries of the site.

6. Except for vehicle parking, no outdoor portions of the premises shall be utilized for cottage food operation including outdoor sales and visitation. No more than one truck, with a maximum capacity of one ton, incidental to the cottage food operation shall be kept on the site. Customer and delivery parking shall not occur by double-parking or blocking of neighboring driveways.

7. The number of parking spaces available to a dwelling unit housing a cottage food operation shall not be reduced to less than the required number of spaces for the dwelling unit. All required parking spaces shall remain available for the purpose of parking vehicles.

8. A cottage food operation shall not create pedestrian, automobile, or truck traffic significantly in excess of the normal amount in the district. Specifically, direct sales of products from the site of the cottage food operation shall be conducted by prior appointment only, and shall be limited to no more than two on-site customers at any given time.

9. Direct sales, cottage food operation related sales and loading activities shall not occur between the hours of 8:00 p.m. and 7:00 a.m.

10. The use shall conform to the noise standards prescribed in Chapter 8.20 BMC.

11. There shall be no on-site consumption of products other than free, small samples.

12. A cottage food operation shall not create persistent odors beyond the property line that are offensive to the reasonable person.

D. No more than one cottage food operation per dwelling unit is allowed.

E. The permit for a cottage food operation that is not operated in compliance with these regulations shall be revoked by the community development director after 30 days’ written notice unless the cottage food operation is altered to comply. (Ord. 18-05 § 34; Ord. 13-06 § 5).

17.70.380 Mobile food vendors.

A. Permit Required. A mobile food vendor shall require a mobile food vending permit obtained by filing a completed application form with the community development director. The community development director shall issue the permit upon determining that the proposed mobile food vending operation complies with the requirements of this section. Mobile food vendors shall not include the preparation or sale of food products containing cannabis.

1. The vendor shall display all current permits, licenses, and certificates on exterior of the vehicle at all times.

2. The vendor shall maintain a county health permit at all times. If the permit expires, or is suspended or revoked, then all sales shall cease until the permit is reinstated.

3. The food vending vehicle shall be entirely self-sufficient in regards to gas, water, and telecommunications and shall be a self-propelled vehicle.

B. Contents of Application. An application for a mobile food vending permit shall contain:

1. The name, address, and telephone number of the applicant.

2. A complete description of the proposed mobile food vending operation, including the hours of operation.

3. A site plan showing the proposed location of the mobile food vendor, trash receptacles, parking area, location of parcel access (ingress and egress), and location of restroom facility.

4. Written permission from the property owner (if not self) to occupy the property.

5. Proof of legal access to restroom facilities and access to hand washing facilities for the use of employees within 200 feet of site location per California Retail Food Code, Chapter 10, Section 114315.

6. A copy of the issued permit from the Solano County environmental health division for operation of the subject operation.

7. A certificate of insurance providing general liability insurance in the amount of at least $1,000,000 listing the city as additional insured. A mobile food vending permit shall be issued only for the explicit time period covered by the effective dates of the general liability insurance policy.

1. The location of the mobile food vendor shall be limited to the areas specified in BMC 17.32.020.

2. The maximum number of mobile food vendors located on a parcel shall not be limited except that all provisions of this section shall be met.

3. Mobile food vehicles shall not be parked within 200 feet of an existing brick and mortar restaurant during the hours when such restaurant is open to the public for business.

4. Mobile food vendors shall not occupy parking spaces required to fulfill the minimum off-street parking requirements of the principal property use. A minimum of two parking spaces per food vending vehicle will be required for customer use in addition to the minimum requirement for the principal business for the overall site.

5. The vehicle shall not block any parking required to adequately serve other businesses, driveways, or public right-of-way and shall be oriented in such a way so as the queue does not encroach upon the same.

6. The vendor shall be located within 200 feet of a restroom facility and shall demonstrate legal access for employees.

D. Site Conditions.

1. The site shall be maintained in a safe and clean manner at all times.

2. The lot upon which the vendor is parked shall be paved. For purposes of this section, “paved” shall mean asphalt, concrete, pavers, or other permanent surfacing approved by the city engineer.

3. Exterior storage of refuse, equipment or materials associated with the mobile food vendor is prohibited.

4. The vendor shall not discharge items, including but not limited to waste water or other fluids, debris or food, onto the property, sidewalk, gutter, or storm inlets.

5. The vendor shall provide a minimum of two 32-gallon litter receptacles and one 32-gallon recycling receptacle within 15 feet of the vending vehicle and shall remove all refuse from the site and surrounding property on a daily basis.

6. No mobile food vendor shall provide or allow any dining area, including but not limited to tables, chairs, booths, bar stools, benches, and standup counters, unless approved by the community development director.

E. Alcohol. The serving or consumption of alcohol shall be prohibited at vehicular food vending sites.

F. Hours of Operation. The hours of operation shall not exceed 6:00 a.m. to 8:00 p.m. every day. The mobile food vending vehicle shall not be stored on site during nonoperation hours and shall be removed daily.

G. Noise. No mobile food vehicle shall make or cause to be made any unreasonable or excessive noise. The operation of all mobile food vehicles shall meet the city noise ordinance, including generators. No music, other high-decibel sounds, horns, or amplified announcements are allowed to be made from the vehicle.

H. Signs. Signage is only allowed when placed on mobile food vehicle. No separate freestanding signs are permitted. No flashing or blinking lights are allowed on vehicle or related signage when the vehicle is parked.

I. The permit for mobile food vending that is not operated in compliance with these regulations and the approved application shall be revoked by the community development director after 30 days’ written notice unless the mobile food vending operation is altered to comply. (Ord. 18-05 § 35; Ord. 14-06 § 5).

17.70.390 Emergency shelter.

A. Purpose. This section is intended to implement California Government Code Section 65583 by establishing standards to permit emergency shelter facilities for homeless persons or families.

B. Zoning. An emergency shelter is a permitted use in the following areas and districts, except as provided in subsection (C) of this section:

1. Within one-quarter mile of East Military Street and West Military Street, between West K Street and East 7th Street, excluding the RS single-family residential district, the OS open space district, and lands within the Downtown Mixed Use Master Plan zoning districts;

2. Within one-quarter mile of Adams Street, excluding all districts except CO office commercial and CG general commercial districts; and

C. Use Permit. Once the city’s local need for emergency shelter is provided through capacity in existing local facilities and/or multi-jurisdictional agreements in accordance with Government Code Section 65583, any additional beds or emergency shelters will be permitted only on approval of a use permit. The local need for emergency shelters shall be determined based upon the most recently adopted Housing Element or in accordance with Government Code Section 65583.

D. Design Review. Emergency shelters permitted in accordance with subsection (B) of this section are exempt from the design review requirements as provided in Chapter 17.108 BMC, if such facilities are not located or proposed within an historic overlay district. However, once the city’s local need for emergency shelter is provided through capacity in existing local facilities and/or multi-juris-

dictional agreements in accordance with Government Code Section 65583, the design review exemption provided in BMC 17.108.020(B) is no longer applicable.

E. Administrative Review. Except as provided in subsections (C) and (D) of this section, emergency shelters shall be reviewed by the community development director or designee as follows:

1. An emergency shelter shall be approved upon finding that the proposed project conforms to the requirements of this title, including design review as required by Chapter 17.108 BMC, as well as the standards of subsection (F) of this section.

2. Approval or denial of an emergency shelter shall be noticed to the applicant in a “letter of action.” If the application is denied, the letter shall state wherein the project did not meet the standards of this section.

3. Approval of an emergency shelter shall expire two years from the date of approval unless made valid by construction or occupancy of the facility. The director may grant a maximum one-year extension of the two-year approval period.

1. Proximity to Other Emergency Shelters. Emergency shelters shall be located at least 300 feet apart as measured from closest property lines.

2. Site Improvements. Site landscaping, exterior lighting and parking facilities shall comply with the provisions of Chapters 17.70 and 17.74 BMC.

3. Outdoor Facilities. Outdoor recreational facilities shall be enclosed by a fence or a natural barrier (e.g., hedge). If smoking is allowed on site, there shall be a designated outside smoking area and the facility shall conform to the provisions of Chapter 9.06 BMC. Outdoor telephone facilities are not permitted.

4. Length of Stay. The length of stay per individual shall not exceed six months.

5. Shelter Capacity. The maximum permitted capacity of an emergency shelter shall be equivalent to the homeless census identified in the most recent adopted Housing Element, less any emergency shelter capacity currently provided within the city. However, the community development director may increase the permitted capacity to serve homeless individuals based upon updated data that is compiled or verified by a qualified individual or community organization, if the data demonstrates an increase in the city’s homeless population. Any proposed shelter that exceeds the permitted capacity shall require a use permit in accordance with subsection (C) of this section.

6. On-Site Waiting and Intake Areas. Client waiting and intake areas shall be screened or enclosed, and clients shall not be allowed to form a queue outside the facility. Hours of client intake shall be posted.

7. Support Facilities. The following facilities shall be provided for the exclusive use of residents and staff:

a. Shower and restroom facilities.

b. Food preparation and/or dining.

d. Secure storage for personal belongings.

The facility may also provide recreation, computer, counseling, child day care or other support facilities as appropriate based upon the demonstrated need of the client population.

8. Management Plan. The applicant shall provide a management plan that includes the following components:

a. Homeless outreach plan.

b. Client intake and check-out procedures.

c. Description of supportive services that will be provided.

d. Identification of management personnel and designation of a 24-hour contact person. Facility management and security must be provided on site during hours of operation. Contact information for manager and/or a designated contact person authorized to act on behalf of the manager shall be posted both inside and outside the facility for emergency purposes.

e. Description of neighborhood outreach and communication strategies.

f. Staff training program.

g. Clear operational standards and rules (e.g., standards governing expulsions, designated meal times, and lights-out) necessary to ensure compatibility with surrounding uses, including those applicable to use or possession of controlled substances, the use or possession of alcohol, and loitering.

h. Site upkeep and maintenance, including provisions to ensure that the site is maintained free of litter and debris.

i. A statement that the provider will not require participation by clients in any religious or philosophical ritual, service meeting or rite as a condition of eligibility. (Ord. 14-11 § 9).

17.70.400 Outdoor entertainment.

The following standards shall apply to all outdoor entertainment uses:

A. Outdoor entertainment shall only be allowed as an accessory use to a primary business on private property.

B. Noise levels shall be in compliance with the noise regulations identified in Chapter 8.20 BMC (Noise Regulations).

C. A contact for the establishment must be provided to the city. The contact information must be immediately produced upon the request of any city official or affected party.

D. All speakers/amplifiers shall be directed away from surrounding sensitive land uses on adjoining and nearby properties.

E. The approved permit must be displayed in a conspicuous place in the entertainment establishment. The permit and related conditions must be immediately produced upon the request of any city official or affected party.

F. Substantial changes to the existing establishment and/or operation (e.g., expansion of outdoor performance or seating area, relocation of entertainment structures/equipment) must be reviewed by the community development director to determine if additional conditions or a new use permit are necessary. (Ord. 18-16 § 4).

17.70.410 Donation and collection bins.

A. Purpose. In addition to the general purposes of BMC Title 17 (Zoning), the purposes of these regulations include the following:

1. Protect the property rights of the owners of parcels on which the donation and collection bins are located.

2. Provide for the location, placement, design, and maintenance of donation and collection bins in a manner compatible with the community appearance.

3. Ensure that donation and collection bins do not create blight and become a public nuisance due to illegal dumping, unauthorized placement, overconcentration, aesthetic impacts and/or result in vehicle site distance and circulation impediments.

4. Ensure that residents and/or users are fully informed of those who operate the bins so that they can be contacted if there are any blight-related questions or concerns.

B. Permit Required.

1. It shall be unlawful to place, operate, maintain or allow a collection and donation bin on any real property prior to obtaining a zoning permit from the community development director.

2. The permit applicant shall be the donation and collection bin operator and the permit may not be transferred, conveyed or otherwise assigned to another person or entity.

3. The permit applicant must comply with the application process and submit an application and all documentation required by the community development department.

4. No permit shall be required for donation and collection bins located completely within a building.

C. Process for Permit Approval.

1. All applications for a donation and collection bin zoning permit shall meet the following:

a. The applicant has submitted a complete and accurate application accompanied by the required documents and applicable permit fee.

b. There are no open citations, unpaid fines or unresolved violations or complaints related to any collection and donation bin managed by the proposed operator.

c. All existing unpermitted bins that are managed by the proposed operator have been removed.

d. Any verified blight on the subject property has been abated and any case of a complaint to the city regarding blighted conditions on the subject property has been closed.

D. Standards. The following standards shall apply to the placement of the donation and collection bins:

a. Only one donation and collection bin may be permitted on a single parcel or shopping center, and not within 1,000 feet from any other collection and donation bin.

b. A donation and collection bin shall not be located in a public right-of-way or within 20 feet of a public street.

c. A donation and collection bin shall not occupy any required off-street parking or loading space nor reduce driveways and aisles below the dimensions specified in Chapter 17.74 BMC.

d. A donation and collection bin shall not occupy or obstruct any pedestrian path of travel, including sidewalks and walkways, or required handicapped accessibility routes.

e. A donation and collection bin shall not block or impede access to required easements, trash enclosure areas or access to trash bins/trash enclosures.

f. A donation and collection bin shall not impede the functioning of exhaust, ventilation, or fire-extinguishing systems.

g. A donation and collection bin shall not be located on required landscaping.

2. Appearance and Design. Collection and donation bins shall have the following physical attributes:

a. Be constructed of a uniform durable and waterproof material with a single nonreflective finish.

b. Have a collection opening that has a tamper-resistant locking mechanism.

c. Not be electrically or hydraulically powered or otherwise mechanized.

d. Shall not exceed the maximum size of 25 square feet.

e. Shall not exceed the maximum height of six and three-quarters feet.

f. Shall have the following information displayed on the front of the donation and collection bin in one-inch typeface visible on the front of the bin:

i. The name, address, 24-hour telephone number, website, and email address of the operator of the donation and collection bin.

ii. The type of material that may and may not be deposited in the bin.

iii. A notice stating that no material shall be left outside the bin.

iv. If the collection and donation bin is owned by a nonprofit organization:

(A) A statement describing the charitable cause that will benefit from the donations;

(B) The federal tax identification number of the nonprofit organization operating the UDCB; and

(C) The statement “This collection box is owned and operated by a nonprofit organization.”

v. If the collection and donation bin is owned by a for-profit entity:

(A) “This donation is not tax-deductible”; and

(B) “This collection box is owned and operated by a for-profit organization.”

g. Notwithstanding subsections (D)(2)(a) through (2)(f) of this section, sign lettering shall not exceed five inches in height.

h. Notwithstanding subsections (D)(2)(a) through (2)(f) of this section, sign area shall not exceed two square feet in size per side.

a. No blight shall be within 20 feet of the bin. Blight includes, but is not limited to, donation/collection overflow, litter, debris, and dumped material.

b. Bins shall be maintained and in good working order. Items to be repaired, removed, and/or abated include, but are not limited to, graffiti, removed or damaged signs and notifications, peeling paint, rust, and broken collection-operating mechanisms.

c. Bins shall be serviced not less than weekly.

d. The operator shall maintain an active email address and a 24-hour telephone service with recording capability for the public to register complaints.

e. Bins cannot be used for the collection of solid waste and/or any hazardous materials.

f. Graffiti shall be removed in a timely manner within a period of three business days unless otherwise extended by the city’s code enforcement officer.

g. No uplighting or illumination of any kind shall be permitted.

E. Violations and Compliance Process. Violations of this chapter shall be handled by the city’s code enforcement officer pursuant to the procedures set forth in Chapter 8.04 BMC.

F. Nothing in this chapter shall be interpreted to authorize a right of action against the city, nor shall this section give rise to any cause of action for damages against the city.

1. Donation and collection bins that are located within an entirely enclosed and lawfully constructed and permitted principal building shall not require a zoning permit.

2. Temporary donation and collection bins that are placed by the consent of the property owner and meet all of the following requirements shall not require a zoning permit:

a. Less than 10 square feet in size;

b. Less than four feet in height;

c. Placement on the property for a cumulative period of fewer than 60 days per calendar year;

d. Located within five feet of a primary customer or visitor entrance;

e. Clear information on the exterior of the bin regarding the purpose and duration of the temporary collection.

3. These regulations are not intended to apply to community lending receptacles that are customary to residential areas, such as book-lending boxes. (Ord. 19-04 § 6).

17.70.420 Solar utilities.

The following standards shall apply to all solar utilities:

A. Agricultural Protections. Solar utilities shall not be sited on any land subject to a Williamson Act contract, unless the landowner has rescinded that contract pursuant to its terms.

B. No Municipal Services. Solar utilities shall not require or benefit from municipal services, such as water or sewer services.

C. Development Standards. Solar arrays shall comply with all applicable setback restrictions, including creek setbacks, for the applicable zoning district.

D. Height. For ground-mounted installations, the maximum height shall not exceed 15 feet from finished grade.

E. Noise. Noise levels shall be in compliance with the noise regulations identified in Chapter 8.20 BMC.

F. Decommissioning. Upon ceasing operations, or if the utility solar project is nonoperational for a period of 12 months, the project should be decommissioned (or deactivated and removed) in an efficient and thorough manner. A decommissioning plan shall be submitted and approved by the community development director prior to the issuance of building permits. Financial assurance shall be provided to city of Benicia in a form and amount, as established by an independent engineer, to secure the expense of decommissioning and restoring the project site consistent with the approved decommissioning plan. Financial assurance shall be submitted and accepted by city of Benicia prior to final occupancy/finalizing the building permit (project close out).

G. Storm Water Management. All projects greater than one acre shall submit a storm water pollution prevention plan and include erosion and sediment control best management practices into the plan.

H. Minimal Traffic. Solar utilities shall not generate new daily traffic trips during normal operation outside of occasional trips for maintenance.

I. Solar utilities shall comply with the applicable provisions of the Travis Air Force Base Airport land use compatibility plan.

J. Hillside Protection. Solar utilities shall be prohibited on areas of greater than 20 percent slope.

K. Scenic Vista and Views. Solar utilities shall not impede any scenic vistas or views as defined in the general plan.

L. The aggregate amount of solar utilities allowed within the open space district shall be no more than 10 megawatts AC.

M. Minimum Lot Size. Solar utilities shall not be located on parcels less than five acres in size.

N. Maximum Lot Coverage. Solar utilities shall not occupy more than 50 percent of the total parcel size.

O. Floodplains. Solar utilities shall not be located within a 100-year floodplain as designated by the Federal Emergency Management Agency (FEMA).

P. Vegetation Management Plan. Solar utilities must incorporate a vegetation management plan in accordance with BMC 17.70.190(B). (Ord. 20-05 § 4).

Cannabis odor disburment distaces Division IV. Regulations Applying in All or Several Districts Chapter 17.70 GENERAL REGULATIONS 17.70.010 Specific purposes and applicability. This