Conditional Use Procedures

Property in Milpitas may be used for many different types of land uses or businesses. Certain types of uses, however, may impact surrounding properties or their neighborhood. The City uses the Conditional Use Permit to evaluate whether a proposed use is appropriate for a particular property and may impose conditions to assure compatibility with neighboring businesses or residences.

In each zoning district, some uses are permitted if all code requirements are met. There is also a listing of "Conditional Uses" which require the issuance of a Conditional Use Permit. For example, in the R1 Single Family Zoning District, single family dwellings are a permitted use, while churches, schools and parks are conditional uses.

Conditional Use Permits may also be issued for:

• modifying parking requirements
• reductions in lot width requirements
• increasing building height above limits
• expansion of a non-conforming building, or reoccupancy of a vacated, non-conforming building, and
• installation of temporary buildings or approval of temporary uses.

HOW DO I APPLY FOR A CONDITIONAL USE PERMIT?

Submit an application to the Planning Division at the Development Permit Center counter. The application form requests information about the property involved and the proposed use. The property owner will have to sign the application form, authorizing the application. You will also need to submit plans for the property, buildings, parking area, etc. The fee for most use permit applications is $1,070, although use permits for single family properties, such as for family day care homes or second family units, is $395.

Depending upon the type of use proposed, State law may require an analysis of the project's environmental effects. A separate application for environmental review may me necessary.

WHAT HAPPENS AFTER I APPLY?

A Project Planner will be assigned to process the application. The Project Planner will review the application with staff members from other departments (Fire Prevention, Public Works, Building Inspection, and Transportation) for their input. The Project Planner will visit the site in most cases. When the Project Planner has completed the analysis, the application is scheduled for a public hearing before the Planning Commission. A staff report is written, and a copy is mailed to the applicant, usually the Friday before a Wednesday Planning Commission meeting. The staff report includes staff's recommendation and possible conditions to be applied to the permit.

The public is notified of the Planning Commission hearing in three ways:

• notices are mailed to each property owner within 300 feet of the site,
• a legal advertisement is placed in the Milpitas Post or San Jose Mercury News, and
• an announcement is posted on or near the subject property.

WHO MAKES DECISIONS ON CONDITIONAL USE PERMITS?

The Planning Commission may approve or deny use permits. At the Planning Commission meeting, staff provides an oral report on the proposal and the staff recommendation. The applicant is then given an opportunity to address the Planning Commission, then members of the public are asked for input. The Planning Commission then makes its decision.

CAN I APPEAL THE DECISION?

During a 10 working day period after the Planning Commission meeting, the applicant or members of the public may appeal the Commission's decision to the City Council by filing an appeal application at the Development Permit Center counter. The filing fee for an appeal is $100.

Pursuant to the Municipal Code, the appeal must be considered by the City Council within 60 days. City staff will schedule the City Council meeting date for the appeal to be considered.

HOW LONG DOES IT TAKE TO GET A CONDITIONAL USE PERMIT?

It varies depending upon the type of use requested, its potential impact on surrounding properties, whether an environmental assessment is necessary, the level of neighborhood controversy and the quality of the original application submittal. Most use permits are processed in 4 to 6 weeks.

WHAT CAN I DO TO GIVE MY APPLICATION THE BEST CHANCE OF APPROVAL?

• Meet with the Planning staff prior to submitting your application to learn about submittal requirements and issues to be addressed.
• Provide complete information when you submit your application.
• Respond quickly to staff requests for additional information or clarification.
• Let neighboring property or business owners know about your application before they receive the official notification from the City.

WHAT DO I DO AFTER I RECEIVE A CONDITIONAL USE PERMIT?

You may need other permits, such as a building permit for new construction or building modifications, a business license if you are starting a new business, or a Certificate of Occupancy to legally occupy the premises. Check with your Project Planner and look at the "Notes to Applicant" contained in the Planning Commission staff report. Also, remember to comply with any "Conditions of Approval", which are listed in the staff report. Often these conditions must be met prior to building permit issuance.

CAN MY CONDITIONAL USE PERMIT BE REVOKED?

Yes! If you do not comply with the Conditions of Approval, violate any local, state or federal law, or create a public nuisance, the Planning Commission can schedule a public hearing to consider revoking or modifying your use permit. You would be contacted prior to scheduling such a hearing.

WHAT HAPPENS IF I SELL MY PROPERTY OR BUSINESS?

The Conditional Use Permit remains valid for the property on which it was granted, even if a new occupant or business owner takes over the use. Any new business or occupant using the permit must continue to comply with all Conditions of Approval.

WHAT SHOULD I DO IF I WANT TO EXPAND OR RELOCATE?

Modification of the use, such as by expanding into additional building space major changes to the property layout, or additional seating for most restaurants will require a modification to the Conditional Use Permit. You will need to go through the same process as for the initial use permit. To relocate the use to a new property, you will need to obtain a new use permit, since the original use permit remains with the property for which it was granted.