To recommend changes to Burbank Municipal Code Chapter 31, Article 6, Div. 3.5 (�31-625.1 to �31-625.10) "Second Dwelling Units in Single Family Residential Zones" as a result of the ruling of the California Appeals Court in the case of Coalition Advocating Legal Housing Options vs. City of Santa Monica, in April 2001, and the passage of Assembly Bill 1866 in September 2002, and to recommend amended development standards for second dwelling units.

BACKGROUND:

In April 2001, a California Appeals Court ruling in the case of Coalition Advocating Legal Housing Options vs. City of Santa Monica, invalidated Santa Monica�s occupancy requirements for second dwelling units (otherwise known as "granny flats" or "mother-in-law units") which will have the likely effect of rendering virtually identical requirements in Burbank Municipal Code Section 31-625 et seq. unenforceable (Exhibit B-1). Since adoption of Burbank�s current second dwelling unit ordinance in 1991, limiting permitted occupants of such units to certain targeted groups has been a central component of the City�s regulation efforts. Therefore, in September 2001, the Council enacted an Interim Development Control Ordinance (IDCO) suspending issuance of development permits for such second units, to give the staff time to determine the legality of existing regulations, determine appropriate alternative regulations, and propose revised regulations accordingly.

The report also made proposals for using development standards that regulated the units themselves (i.e. their location, size, design, etc.) rather than their occupants as a means to regulate second units in the future. The Board requested Staff further investigate and define several of these proposals. Minutes of the June 10^th Board meeting are attached (Exhibit D-4).

Subsequent to the first Planning Board report, the California State Legislature passed, and on September 29, 2002, Governor Davis signed, Assembly Bill 1866 (Exhibit B-2). The relevant section of the bill (Section Two, beginning on page 9) deletes California Government Code (CGC) �65852.2 paragraph (a)(4) which allowed local agencies to "establish a process for issuance of a conditional use permit for second units", and adds new paragraph (a)(3) which requires that from July 1, 2003 cities must consider second unit applications ministerially and without discretionary review or hearings. Section One of AB 1866 deals with second units in General Plans, and Section Three with density bonuses for affordable units, and do not directly affect the BMC Second Dwelling Unit regulations.

Nominally, this is only a change in procedure, but in practice will have significant effects on how second units are approved, and will also require complete reliance on zoning code standards. Ministerial approvals are limited to confirmation of compliance with code standards, and are necessarily less flexible than discretionary review.

Two memoranda to the City Council, one from the City Attorney and one from the Planning Division are attached to this report as Exhibits B-3 and B-4. They outline the provisions of AB 1866 as they relate to second dwelling units, and the effect the legislation will have on the enforceability of the Burbank Municipal Code sections regulating such units. On September 23, 2002 the Planning Division and City Attorney requested the City Council extend the IDCO to give staff further time to consider what changes to the Second Dwelling Unit regulations would be necessary as a result of the bill. The IDCO will expire on September 24, 2003, and cannot be further extended.

On January 27, 2003 staff presented a staff report and a draft ordinance to the Planning Board to amend the regulations and standards for second dwelling units. The Board adopted a resolution recommending approval of the draft ordinance with some amendments from the Board. The Board Resolution is attached as Exhibit D-1 and the minutes of the January 27 meeting as Exhibit D-2. The Board received one public comment letter at its hearing (Exhibit D-3).

CHANGES NECESSITATED BY "COALITION" AND AB 1866:

This section details changes to BMC �31-625.1 through �31-625.10 staff recommends in order to conform to the requirements of the Coalition decision and AB 1866. The second section of the report recommends a number of new and amended development standards intended to help control construction of second dwelling units through the use of building and zoning code standards.

This section requires a conditional use permit for a second dwelling unit. This requirement is invalid on its face after AB 1866. Staff recommends deleting this section entirely. Henceforth, an application to build a second unit in the R-1 zones should be processed like any other building permit application. This will not necessarily require substantial changes to current procedures. Normally, when the Building Division receives an application for a building permit - even one that requires no discretionary review - the application and plans are routed to the Planning Division to ensure the proposal complies with all applicable zoning code provisions.

An alternative would be to process second unit applications using the Development Review process in BMC �31-1908 et seq. (Exhibit E). A given Development Review uses one of three procedures or categories (sometimes referred to as "tiers"); one for projects of regional significance; the second for multi-family residential projects within 500-ft, or non-residential projects within 150-ft. of single-family zones; and the third for all other projects.

BMC �31-1908 states that "it is the intent of the City to process all projects in the third category through a ministerial Development Review process", and BMC �31-1912 states that such applications "shall be approved if the Director [or Planning Board or Council on appeal] finds that all provisions of this Code will be complied with." Development Review for second dwelling units, if used, would have to fall into the third tier as AB 1866 requires that henceforth second units be approved without discretionary review.

The City Attorney has advised that, as long as the "tier three" DR procedure is used, they find this process including the appeal procedure would not violate AB 1866, because (i) the review approval or denial of the second unit permit would be made without a hearing, and (ii) the Board (or Council�s) grounds for review are limited to application of code requirements �that is they are non-discretionary. Normally DRs are processed without a hearing, and appeals are limited to cases where there has been a clear mistake in applying the relevant code provisions. One advantage of the DR procedure is that it does provide notice to neighboring property owners, which the building permit procedure does not.

The disadvantage to the DR procedure is that appeals of "tier three" Director Decisions are limited to clear errors in applying the code. That is, the Board or Council may not deny the project even if they believe it is clearly a poor idea, as long as it is code compliant. Because of this restriction, such appeals produce a great deal of frustration for the Planning Board and the Council as well as the appellant. The Planning Staff does not recommend using Development Review which offers the appearance of an appeals procedure, but where there is in fact no real possibility of discretionary relief.

If the Development Review procedure is used for processing second unit applications, there will need to be some changes to the DR procedures in BMC �31-1908 to �31-1914 (Exhibit E). These include:

1. BMC Section 1908 (and 1908.5(b)) should be amended to specify that second dwelling units in the R-1 zone are not "multiple family residential projects" for purposes of this section and are subject to the "tier three" procedure.
2. Section 1914(3) exempts additions to single-family homes including accessory structures from Development Review. This section will need to be amended to make it clear that second dwelling units are not exempted.

Because one of the major objections to using the building permit only approach is that it provides no notice to adjacent property owners, a third approach has been suggested, which is to include a notification requirement in the Second Dwelling Unit regulations, but not require full DR as set out in BMC 31-1908 et seq. Such notice would be informational in nature only, and not offer any appeal procedure at all. This approach while it would provide information to the public would still suffer from the basic problem of offering little or no real possibility of relief, beyond compliance with code standards.

The Planning Board recommends requiring Development Review for second unit applications.

Staff recommends deleting Section 31-625.3 entirely, and henceforth processing second unit proposals as applications for building permits instead of Conditional Use Permits which is prohibited by AB 1866. Staff does not recommend using the Development Review procedure or an alternate notification procedure.

Sec. 31-625.4 Occupancy Requirement:

The Coalition ruling invalidated the occupancy requirements of Santa Monica�s second unit ordinance. While the restrictions in Santa Monica were not exactly the same as Burbank�s, the ruling makes it clear that most restrictions on who may occupy a given housing unit will likely be held invalid. Such restrictions were held to violate the privacy and equal protection provisions of the California Constitution. "Government may legitimately decide whether second units may be constructed in particular zones, but may not determine who may live in them" (Exhibit B-1, pg. 807).

The current (1991) revision of Burbank�s second dwelling unit regulations limit occupants of second units to no more than two "qualified residents". Qualified residents include:

1. persons 60 years of age or older
2. a person 45 years or older married to, or providing physical or economic support to a person qualified under a).
3. a person requiring special care due to a physical disability
4. a disabled person as defined by Federal Law
5. a child legally dependent on an otherwise qualified person
6. a person providing healthcare to or receiving healthcare from the occupant of the main unit

Following the Coalition ruling, the city cannot designate who may, or may not, occupy an otherwise legally permitted dwelling unit. Staff recommends deleting this section entirely. The Planning Board concurred with this recommendation.

This section sets out several development standards for newly constructed second units. Most of these standards are not directly affected by either the Coalition ruling or AB 1866, but staff does recommend the following changes:

Subsection (b) requires that newly constructed second units must be attached to the main dwelling unit with a common wall with a length at least 50% of the width of the second unit at its widest point. The City Attorney�s Office has forwarded an opinion (Exhibit B-4, pg. 3) that, given the State�s definition of second unit set forth in CGC 65852.2(i)(4) as "an attached or detached residential dwelling unit �" (Exhibit B-1, pg. 12), the city cannot prohibit detached second units as a class.

Staff observes that historically, all but a small handful of second units ever actually built in Burbank have been detached structures. The staff finds that proposed new language for Subsection (b) (see "PROPOSED NEW DEVELOPMENT STANDARDS", beginning on Page 8) establishing a one story height limit for detached second units will act to limit the impacts of such units.

Subsection (d): deals with design of second units to minimize excessive noise, preserve privacy and prevent the creation of nuisances. This section was originally intended as a guide to the Planning Board when exercising discretionary approvals for second dwelling units. The language is general and offers few specifics as to, say, how much noise is too much, what privacy is "otherwise available", and so forth. As long as second unit approvals could be discretionary, this situation was acceptable if not ideal. Following AB 1866, applications for second units must be considered without discretionary review (Exhibit B-1, pg.9).

The City Attorney�s office advised that simply transferring this discretion to the City Planner from the Planning Board does not render it non-discretionary. California courts have established (in cases relating to CEQA review) that if a code provision allows significant discretion then it is discretionary in nature, regardless of who is actually exercising the discretion. The language of this section requires the exercise of considerable discretionary judgement in practice. Also, as the City Attorney points out, applying this language to second units, but not to other construction - say a new wing of the main unit - which would have the same noise, privacy, etc. impacts, raises equal protection issues.

On the advice of the City Attorney�s Staff, Planning Staff recommends deleting Subsections (b) and (d). The Planning Board concurred with these changes.

The staff is proposing several new development standards for this section. Proposed new language for Subsections (b), (e) and (f) is discussed below under "PROPOSED NEW DEVELOPMENT STANDARDS" (pg. 8).

Subsection (a): defines what a second unit shall consist of, and states that existing second units may be detached. This language needs to be removed because henceforth all second units may be detached.

Subsection (b):among other things requires a CUP. Since CUPs can no longer be required, staff recommends deleting this particular requirement.

Subsection (c): requires existing second units be made to conform to BMC Ch. 7 Art. 2 regarding with Dangerous and Substandard Buildings. Staff recommends deletion of the words "as a condition of approval of the conditional use permit". CUPs are no longer allowed. As part of the permitting process (with either DRs or building permits) all units will still be required to conform to all Building Code and Municipal Code standards.

Staff recommends changes to the wording of this section as discussed above and shown in the draft ordinance (Exhibit A). The Board concurred with this recommendation.

Subsection (a): requiring permitees to identify second unit occupants by name was rendered unenforceable by Coalition decision which held that "personal decisions about who may live in the second unit are no less entitled to privacy protection than decisions about who may live together in the main residence" (Exhibit B-1, pg. 807). This is discussed at greater length in the June 10^th staff report. Recommended new language for subsection (a) is discussed under "PROPOSED NEW DEVELOPMENT STANDARDS" (pg. 8).

Subsection (b)(1): allows a second unit to be occupied only if, and as long as the property is owner-occupied (i.e. the owner lives in either the main or second unit) and requires the applicant to provide evidence of title. Staff recommends changing this section to read that such evidence "shall be submitted with the initial application for a building permit" (or "Development Review") vs. "conditional use permit". In addition, delete words "for the Planning Board" as henceforth decisions on second unit approvals will be made by the Community Development Director rather than the Planning Board.

Subsection (c)(3): requires a covenant stating that a second unit CUP will expire if the property owner no longer lives on the property. Staff recommends deletion of words "conditional use permit for the" and words "in effect", and adding words "occupied and used as such". This has the effect of changing the wording of the required covenant from referring to a condition of approval to referring to a code requirement.

Subsection (c)(4): states that a second unit CUP will expire if its terms and conditions are not observed. Staff recommends deletion of existing language and substituting:

"The unit and the lot shall be developed and maintained in conformance with the development standards contained in Section 625.5 or Section 626.6 of this Chapter as appropriate."

This again has the effect of turning a reference to a conditional use permit into a reference to the applicable code standards.

Subsection (d): sets out conditions under which the CUP could previously have been revoked. The covenant required in Subsection (c) will run with the land, and will serve to advise future property owners that the second unit may only be occupied and used as such as long as the property is owner occupied. This is no longer a condition of approval, but a code requirement. Staff recommends deleting this section entirely.

Subsection (d)(2): requires that a second unit CUP expires when the occupant subject of the CUP vacates the unit. This requirement was rendered unenforceable by the Coalition decision as a violation of the privacy right in the California Constitution (see discussion of subsection (a), above). This question is also discussed at more length in the June 10 staff report (Appendix A, pg. 7).

Staff recommends deletion of Subsections (a), (c)(4) and (d), and deletions of specific references to conditional use permits, and conditions of approval in Subsections (b)(1), and (c)(3). Staff recommends new language for Subsection (c)(4) to refer to Code requirements, rather than conditions of approval. The Planning Board concurred with all these recommendations except that, insofar as they recommended use of the Development Review procedure rather than building permits procedure, Subsection (b)(1) should require submission of the stated evidence with the Development Review application rather than at the time of building permit application.

Staff recommends changes to this section due to both the Coalition case and AB 1866. Proposed changes remove references to conditional use permits and conditions of occupancy, since there will no longer be conditional use permits or conditions thereof. Henceforth, restrictions on second unit size, design, use, etc, will have to reflect code requirements rather than CUP conditions. Staff also recommends changing the title of this section to "Certificate of Owner Occupancy", and adding new language requiring the owner to certify continued owner occupancy every year on the anniversary of the final building permit or Development Review approval (vs. CUP approval). The City Attorney�s staff has concluded that despite the limitations on occupancy restrictions imposed by the Coalition ruling, it is still permissible to require second unit lots be owner occupied. This is discussed at greater length in the June 10 staff report (Appendix A, pg. 9). Note that the owner may occupy either the main or the second unit as long as he/she lives on the lot.

Recommendation Summary for Sec. 31-625.8

Staff recommends changes as discussed above, and shown in the draft ordinance (Exhibit A) to remove references to conditional use permits, and conditions of occupancy. Staff recommends adding proposed language to this section as shown in Exhibit A to clarify its purpose, which is to certify continued occupancy by the property owner. The Planning Board concurred with this recommendation.

1. Larger minimum lot size requirements for second units;
2. Requiring minimum separation between second unit lots;
3. Additional parking requirements for second units;
4. Enhanced exterior architectural standards for second units;
5. Height restrictions for detached second units;
6. Limiting number of bedrooms in second units;
7. Limiting second units to seniors or low-income persons;
8. Prohibiting "Y" sewer connections for second units;
9. Requiring all second units be attached by definition;
10. Additional variance findings for detached second units.

The last three (items 8, 9 and 10) have been rendered moot. Prohibiting "Y" sewer connections (Item 8) was determined unnecessary by the Public Works Department engineering staff, and not further discussed by the Planning Board. As noted above, the City Attorney finds (see Exhibit B-3) that under the AB 1866 definition of second unit it is not legal to require that second units be attached (Item 9), and therefore they cannot be the subject of additional (or indeed any) variance findings (Item 10). However, they can be the subject of development standards, and the staff is proposing some standards, such as height limits, that will apply to detached units. The remaining seven standards are discussed below item by item. Actual recommended text of the proposed standards can be found in Exhibit A.

There are roughly 17,150 R-1 and R-1E zoned lots in Burbank. Approximately 100 of them are less than 2000 s.f. and probably not usable for housing. Many of the larger lots are occupied by schools, churches and other uses allowed in the R-1 zone, and are therefore also not available for residential use. Nevertheless, the following table gives a general idea of the total proportion of residential lots that would be affected by given changes in the minimum lot size restriction.

Obviously, the effect of altering minimum lot size will depend on the new minimum selected. Discussion at the Planning Board meetings centered on two possibilities: 6,000 sq. ft. and 7,000 sq. ft. 6,000 sq. ft. is the current nominal minimum lot size in the R-1 zone (BMC �31-614(a)), although there are many "legal non-conforming" smaller lots.

As shown by the table, raising the minimum lot size to 6000 s.f. will have a limited effect on the number of lots that could potentially have a second unit. A considerable majority of lots - almost seven out of eight - would still be eligible. Therefore, a 6,000 s.f. threshold would not - by itself - do much to limit either the number or concentration of second units.

Raising the minimum size threshold to 7,000 s.f. would have a considerable impact on the number of potential lots available - almost two out of three lots citywide would not qualify. While this threshold could help limit the total number of second units citywide, it would still not � by itself � prevent over-concentration in specific neighborhoods. Certain neighborhoods, particularly in the hillside area, consist almost entirely of lots over 7,000 s.f. Exhibits F-1 and F-2 show the geographic distribution of R-1 zoned lots over 6,000 sq. ft. and over 7,000 sq. ft. respectively. Without other limitations on the location of second units, there could still be local concentrations of second units high enough to cause undesirable effects on the neighborhood level even if the total number of second units citywide was quite modest. This problem is discussed further in the following section of this report (page 12).

It was observed at the June 10^th meeting that the City of Los Angeles restricts second units to lots at least 150% of the minimum size otherwise required in the respective zone. Since Burbank allows second units primarily in the R-1 zone, where the minimum lot size is 6,000 s.f. adopting the Los Angeles standard would restrict second units to lots over 9,000 s.f. This would make second units permissible on only slightly more than one out of every 10 lots, and make most of the gridded area of the city unavailable. On the other hand, most lots "above" Sunset Canyon Drive are over 9,000 s.f. so this restriction alone again would not necessarily prevent over-concentration in certain neighborhoods, but instead would potentially concentrate second units primarily in the neighborhoods "above" Glenoaks Blvd.

While the State Legislature appears to have had the provision of affordable housing in mind when it passed AB 1866 and the various previous state Second Unit bills, in Burbank second units have never made more than a minor contribution to the overall affordable housing supply because of the very limited number of units that have ever been applied for. Only about 45 second units have been legally approved since the City first officially permitted them in 1983 (see Exhibits H-1 & H-2). It may be that the new procedures will make second unit permits easier to obtain and increase their numbers somewhat, but staff does not anticipate that, even with the proposed changes, second units will become common enough to make a substantial contribution to the overall supply of affordable housing. Raising the minimum lot size for second units to 7000 s.f. would obviously have an effect on their potential availability as a source of affordable housing, but staff is of the opinion that raising the minimum lot size for second units would not have a significant effect on the contribution of second dwelling units to the overall attainment of the City�s affordable housing goals.

Nonetheless, staff finds that for at least a number of families, a second unit may provide a viable and affordable option for housing an elderly or disabled family member. Staff also notes that families most likely to need an affordable housing option for a family member, are also perhaps the least likely to be living on a large lot. Staff is not in favor of eliminating the second unit option for the almost two-thirds of Burbank homeowners who live on lots less than 7000 s.f.

The Planning Board recommended changing the minimum lot size requirement for second dwelling units to 7,000 s.f. The Board vote on this recommendation was split with two in favor, and one opposed.

The staff recommends changing the minimum lot size requirement for second units to 6000 s.f. to reflect the minimum lot size requirement of the R-1 zone, but also to avoid concentrating such units in limited areas of the city which is what a 7000 s.f. minimum would do.

2. Requiring Minimum Separation Between Second Unit Lots:

Requiring a minimum distance separation between lots with approved second dwelling units is probably the most direct available route to the problem of making second dwelling unit type housing available without risking existing single-family neighborhoods turning into de-facto two-family duplex neighborhoods. This approach has been used to prevent over-concentration of other uses in single-family neighborhoods. For example, BMC �31-684(9) regarding family day-care homes states:

"There shall be a minimum distance of five hundred feet between the parcel on which the large family day care home is located and the nearest parcel containing a licensed large family day care home."

This is an example of a minimum radial separation; i.e. the same use is not allowed within 500 ft. in any direction. Because many secondary effects of second units such as parking and traffic are felt on a block by block basis, the Board also requested staff to consider the effects of a linear separation requirement along the street. That is to say requiring the second unit to be separated by a specified distance from other permitted second unit lots along the line of the street.

Most of Burbank is laid out on one of three grids usually differentiated by their ordinal directions, but also with differences in standard block lengths. In the hillside area (between Glenoaks and Sunset) standard blocks are about 620 ft. by 400 ft. from street centerline to street centerline. In the northwest area (north of Burbank Bl. and west of Scott Rd.), they are slightly longer and narrower, about 650 ft. long by 320 ft. wide. In the Magnolia Park area, they are the same width, 320 ft., but usually twice as long, about 1300 ft. Typically a block contains one "century" of address numbers; i.e. all the addresses numbered between 600 and 699 or between 700 and 799, however the long blocks in Magnolia Park and in certain other areas contain two "centuries" of house numbers. Thus an "average" block in Burbank is about 635 ft. long and about 350 ft. wide, street centerline to street centerline, but there are also a number of "two century" blocks that are about 1300 ft. long.

Based on this, if a 300 ft. separation is required between second unit lots, it will generally limit them to no more than two per block or four on the longer "two century" blocks (see Exhibit G-1 and G-2). If a 500-ft. separation is required between second dwelling unit lots, it will generally limit them to one per block, or two per block on the longer "two century" blocks (see Exhibits G-3 and G-4). The staff report to the Planning Board discussed the effects of both linear (along the line of the street) and radial (in all directions) separations. Based on staff�s analysis, the Planning Board ultimately opted to recommend a radial separation requirement, although with a 300 ft. rather than 500 ft. minimum radius.

The advantage of requiring separation between approved second units is clear. It will prevent over-concentration of second units in a way that minimum lot size and other requirements do not. Requiring linear separation along a street will help ameliorate traffic and parking concerns, but a radial separation requirement will also address issues such as noise and loss of open space and vegetation, and prevent the situation of back to back second units.

During the Planning Board hearing, the question of how a lot with an approved second unit on it, but which lot is not currently owner-occupied should be treated for purposes of determining separation from other approved second units. The Board and the Planning Staff�s consensus was that, while the second unit could not be legally occupied as such while the lot is not owner-occupied, such lots would still have a legally approved second unit on them, and that the unit could be reoccupied once the property was again owner-occupied. Thus, staff recommends such units be included when determining minimum separation between second units lots. Staff recommends the following language for this section:

"There shall be a minimum distance of five-hundred (500) feet between the parcel on which the second unit is located, and the nearest other parcel containing a second unit. For purposes of determining such separation, any lot which has been legally approved for a second dwelling unit under this section will count whether or not such unit is in fact currently occupied or legally occupiable."

From time to time, it may happen that an owner may wish to remove an approved second unit. In such case, the covenants can be removed through the same procedure used to remove other covenants from a property.

The Planning Board recommended a 300 ft. radial separation rather than the 500 ft. recommended by the staff. Notice however, that this recommendation was made in conjunction with a recommendation to increase the minimum lot size for second units to 7000 s.f. (previous section).

Requiring Parking Spaces on a per Room or per Bedroom Basis:

BMC �31-625.5(g) and �625.6(d) require there be at least one parking space for each second dwelling unit in addition to the parking otherwise required in the single family residential zone. The State second unit regulations (CGC �65852.2(e)) state:

"Parking Requirements for second units shall not exceed one parking space per unit or per bedroom. Additional parking may be required provided that a finding is made that the additional parking requirements are directly related to the use of the second unit and are consistent with existing neighborhood standards applicable to existing dwellings."

Therefore, the Council could consider a requirement to provide more than one extra space for a second unit with more than one bedroom. This would be consistent with the existing parking standards for multi-family developments. BMC �31-645(g) etc. require two parking spaces for a two-bedroom apartment (noting the one "living" room, one kitchen, etc. exception). A small number of other municipal codes require more than extra parking space for a second unit in at least some circumstances. Requiring second units to have multiple parking spaces could lead to undesirable paving of yards and open space to meet the requirement. Ultimately the Planning Board accepted not using bedrooms as a basis for parking requirements partly because of the staff recommendation concerning limiting number of bedrooms in second units (see page 19).

Prohibiting Second Units on Blocks With Preferential Parking:

The Burbank Public Works Department maintains a program whereby residents may petition the City to establish a preferential parking zone on their block (BMC �29-1004, H-1). There are three levels of preferential zones. One limits parking to two hours except by permit, the second limits it to one hour except by permit, and the third restricts parking to "permit only". Residents of affected blocks may normally have up to three permits per dwelling unit.

There was extensive discussion at the June 10 Board meeting about prohibiting second units on blocks with preferred parking (Exhibit D-4). The discussion centered on blocks with "permit only" parking with little discussion of the less restrictive zones. There are currently 42 street blocks (82 block faces) in Burbank where parking is allowed by permit only. Of these, 27 blocks are partly or completely in the R-1 zones. 685 R-1 zoned lots front (or side) on a curb where parking is allowed by permit only. Again, this will have different effects in different areas of the city. As can be seen from Exhibit I, most of the parking restricted areas are in or adjacent to Magnolia Park or the Media District. There are few east of the I-5, and almost none in the hillside area.

Blocks and Lots Fronting on Curbs with Preferential Parking Zones

Planning Staff found one other city with a similar provision. The City of Orange�s code provides their City Council authority to, by resolution, designate areas of the city where second units will not be allowed because the area is impacted by insufficient capacity for traffic, circulation, parking, or utilities. However, Dan Ryan a planner with Orange says that the city has never in fact designated any areas as being parking impacted.

As was observed in the June 10 staff report (Appendix A, pg. 10), historically about one-third of approved second dwelling units in Burbank also received a parking variance which waived the BMC �31-625.5(g) or �31-625.6(d) requirement for an extra parking space. In many cases, the variance was given on the grounds that the individual for whom the second unit was intended could not or did not drive. Following the Coalition ruling, the city may no longer limit the occupants of approved second units to only approved individuals, so parking variances for second units should henceforth be granted rarely - if at all. The staff finds that the BMC �31-625.5(g) and �31-625.6(d) requirement for one on-site parking space per unit is adequate.

Staff does not recommend any changes to the current parking requirements for second units. The Planning Board concurred with staff�s recommendation.

The Planning Board also asked Staff to consider exterior architectural standards for second units. BMC �31-625.5(e) states that "architectural review criteria will be consistent with those of the applicable single-family residential zone." Despite this language, Burbank does not actually require formal design or architectural review for single-family dwellings beyond fundamental zoning and building code conformance. Burbank currently has no requirement that second units must match or complement the main unit in architectural details or style, or indeed any requirements regarding the exterior appearance of the second unit, except that a second door, if there is one, may not be at the front of the house. The majority (forty of fifty) of municipal codes surveyed for this report do have some sort of appearance or architectural style requirements for second units, although their rigor and specificity vary considerably. A few cities (e.g. Thousand Oaks) with a formal design review board require second units to undergo the same architectural review as the main unit.

A common approach is simply to require that the addition of the second unit not alter the "single-family appearance" of the house; i.e. that the structure must appear as a single-family dwelling - at least as viewed from the street. Burbank�s rule that second-unit doorways may not be on the front (street) side of the house is partial recognition of this. Huntington Beach requires the main and second units appear as an "architecturally unified whole", Escondido uses the term "architecturally integrated". Others simply require that the second unit be "architecturally compatible" with the main unit, without being more specific.

A number of codes go into detail. Simi Valley, for example, requires second units to conform to the main unit�s siding and grading, and that roof materials be equal to or better than the main unit. Pomona requires the second unit to match the existing unit�s, exterior materials, roof materials and windows. Richmond requires that "building materials, colors, and exterior surfaces and finishes, shall be the same as those on the principal unit." Oakland and Santa Monica, require the second unit be visually "clearly subordinate" to the main unit.

Santa Monica�s second unit ordinance (not the disqualified part) combines both specific requirements and a requirement for single-family appearance:

"The exterior design of the second unit shall be substantially compatible with that of the main dwelling in terms of building forms, materials, colors, exterior finish and landscaping. The parcel shall retain a single-family appearance and the second unit shall be integrated into the design of the existing improvements on the property."

Burbank�s Building Division has separately recommended requiring that the roof pitch of the second unit match the main unit. This will probably go a long way toward visually integrating the units. The Cities of Ontario and Santa Clara also require the second unit roof profile and pitch be consistent with the main unit.

Planning staff recommends the following be added to the development standards for second units in BMC �31-625.5:

"The exterior design of a second unit shall match the main dwelling in terms of building forms, roof pitch, materials, colors, and exterior finish. The structure(s) shall retain the appearance of a single-family dwelling, and the second unit shall be integrated into the design of the existing unit on the property."

The Planning Board concurred with the staff�s recommendation. Note that Staff is proposing a minor change from the original wording. Staff finds using the word "match" as opposed to "be substantially compatible with" is less discretionary, and less likely to lead to disputes over interpretation.

The Planning Board agreed they would like to make a recommendation to the Council to amend �31-625.5 to limit detached second units to a single story, but asked staff to investigate specific height standards in detail. Height limitations would help mitigate the privacy concerns of neighboring property owners.

Currently, Burbank limits all construction in the R-1 zones to 23 feet to the ceiling plate, or 27 feet with volume (10 ft.) ceilings, and allows the top of the roofline or architectural features to be up to 35 ft. provided anything higher is under a line sloped back at 45 degrees. If we assume a single story to be half the height of two stories or 13 � feet, and then give the same allowance for roof and architectural features, this could allow second units up to 21 feet. Staff finds that this limit is probably too high, given that the purpose of the height limit is to protect privacy, since 21 feet could clearly allow for if not a full second story then at least a loft which would defeat the purpose.

Planning staff consulted with the Building Division staff concerning this issue. Building Division recommends the height limit to the ceiling plate be no more than 10 ft. above the floor. Buildings with interior ceilings over 10 ft. high incur additional building code restrictions requiring extra engineering. The Planning Division recommends an overall height limit of 17 ft., which allows for a reasonable roof pitch above a 13-foot exterior wall height which assumes an 8 to 10 ft. interior ceiling above a floor 2-3 feet above ground level.

It would not necessarily be untenable to support restricting a detached second unit to one story while allowing other accessory structures to be higher. Apart from accessibility, a second unit - presumably occupied full-time - would have a greater impact on privacy than say a hobby room, office or recreation room in use only part of the day.

A different approach could be to require all second units be on the ground floor. The City of Pomona, for example, requires that:

"The second unit shall be located on the first or ground floor level of a structure, and shall be designed so as to eliminate the need to climb stairs."

Apart from the privacy advantages, ground floor units are also preferred by the elderly and handicapped; both of which populations are ostensibly the target of the state statutes and the BMC second unit regulations. Third, it is a clear and unambiguous standard easily understood and enforced.

The main disadvantage of this approach is that it is highly restrictive with regards attached second units. It would prohibit second units on the second floor of the main structure, which may be the best alternative in some cases.

Recommendation Summary for Height Restrictions for Detached Second Units Staff recommends the following language be adopted:

"A detached second dwelling unit shall be no more than one story and a maximum height of thirteen (13) feet measured from grade provided, however, that roof and architectural features may exceed the maximum height and be up to seventeen (17) feet if a forty-five (45) degree angle is sustained as required for principal dwelling units in the R-1 zone by Section 31-614(d) of this Chapter. A second dwelling unit may not be built over a detached garage or other detached accessory structure, or be converted from any room(s) or space(s) over a garage or detached accessory structure."

Staff recommends against requiring that all second units be on the ground floor in order to allow for the possibility for second floor units in the main structure. The Planning Board concurred with staff�s recommendations.

Height Restrictions on all Accessory Structures:

The possibility of restricting the height of all accessory structures, or at least structures in a position to particularly affect privacy - say in the rear half of the lot, has also been advanced. Excepting a standard in this manner is not unprecedented. BMC �31-1209, for example, allows accessory structures in the rear one-third of the lot to encroach on the rear and side yard setbacks. A standard such as this would have to be added to the development standards section of the R-1 zone (BMC �31-614) and R-1E zone (BMC �31-606) regulations and possibly the standards for the R-1H zones, as it would apply to all accessory structures, not just second units.

One advantage of this approach is that it sets a clear bright line easy to enforce standard, as opposed either to an unofficial policy, or a non-specific standard. Such a change would, however, be outside the second unit regulations, and would affect other types of accessory structures such as stables, garages, workshops and home offices, as well as recreation rooms, pool cabanas, etc. Therefore, if the Council wishes to pursue this option, staff recommends they initiate a separate ZTA with appropriate background research and hearings noticed specifically to this issue.

At the June 10^th meeting, the Board considered whether second units should be limited to one bedroom. Restrictions on the number of bedrooms in second units are not uncommon in other California cities. Although most codes do not directly address the subject at all, at least eight surveyed cities restrict second units to one bedroom. Riverside and Santa Ana allow two bedrooms.

BMC �31-203 defines Bedroom as: "any room that is designed or intended to be used, or is capable of being used as a bedroom in whole or in part". If the proposed ordinance limits second units to one "bedroom", then by this definition all second units will have to be "efficiency" units as the living room of an efficiency unit is clearly capable of being, and usually is, used as the bed or sleeping room. However, parking requirements in the R-3, R-4 and R-5 zones specifically except one living room, one kitchen, and bathrooms in the computation of required parking (see BMC �31-638, �31-645 & �31-652).

If the Council wishes to limit the number of rooms or bedrooms in second units, then either they should be limited to two rooms that are capable of being used for sleeping purposes under the BMC �31-203 definition, or the standards should include a specific exception for one living room, one kitchen, etc. as with the multi-family zones.

Recommendation:

The staff does not recommend adopting a one bedroom limit. Staff finds that a space of 500 s.f. is unlikely in practice to have more than two rooms (i.e. a "living" room and one bedroom). The staff recommends retaining the existing total square-footage standard (500 s.f.) without reference to number of bedrooms or other rooms. The Planning Board concurred with staff recommendation.

CGC 65852.1 (Exhibit D-2) authorizes cities to allow construction of second units in single-family areas that are intended for the sole occupancy of persons over age 62, and do not exceed certain physical size limits. However, following the Coalition case it appears that, once such units are built, a local jurisdiction may not then limit occupancy of such units to only seniors.

The City could potentially authorize different standards for such units as long as such differences are tied to observable differences in the target population; for instance requiring a lower parking standard because seniors are demonstrably less likely to drive. The City could also require second units meet certain standards to make them accessible to the target population. The City of Pomona, as was noted above, requires all second units to be on the ground floor and be accessible without steps so that they will be more accessible to seniors and disabled persons. However, while the city may require standards that encourage and enable occupancy by the target population, it may not limit occupancy to solely the target group.

It has also been observed that the City has several times allowed, even sponsored, housing projects for senior citizens or with low-income set-asides. However, these types of projects are specifically authorized by legislation aimed directly at this type of project, and which does not extend to other types of projects, even if they do happen at some time to be occupied by seniors or low-income households.

Staff cannot recommend adopting any requirement that second dwelling units may only be occupied by certain target populations, such as seniors; this appears directly contradictory to the meaning of the Coalition case. Staff is also not recommending any special standards for second units intended for the senior population, because of the inability of the City to ensure that such units will only be occupied by such persons. The Planning Board accepted the staff�s findings in this respect.

In addition to the seven development standards discussed by the Planning Board on June 10, 2002, staff has recommended two other changes to the second dwelling unit regulations which were discussed at the January 27, 2003 public hearing. These are: 1) Separating second units from R-1H property, and 2) Grandfathering existing approved second units.

BMC �31-2408(e) requires that horse stables must be separated from dwelling units by at least 20 feet, and BMC �31-1111(d) requires that accessory structures generally must be at least 20 ft. from an adjacent R-1H lot line. There are obvious considerations of odors, insects, heath, etc. involved. In order to protect R-1H lots adjacent to R-1 lots (and noting that second units are not allowed on the R-1H lots themselves), staff recommends second units be required to be at least 20 ft. from the nearest R-1H lot line. In practice, this will only affect a very small number of lots (maybe only two) which are the only R-1 zoned lots directly abutting the R-1H zone.

Staff recommends including a specific requirement providing that second units whether attached to the main unit, or in a detached accessory structure, be separated from R-1H property by a minimum distance of 20 ft. The Planning Board concurred with this recommendation.

When the current Second Unit Ordinance was adopted in 1991, it contained a provision (BMC �31-625.9) which:

1. grandfathered all second units with a CUP issued under previous ordinances;

b) required that all conditions of the previously issued CUPs would remain in force.

Staff recommends retaining the first provision. The language is such that it can apply to the current, as well as any previous ordinance. However, any conditions of previous CUPs that limit who may occupy the unit, or which require obtaining city approval of occupants, are probably unenforceable. Thus, staff recommends adding the following to the end of BMC �31-625.9(b):

"�except that any condition that limits the occupants of a permitted second dwelling unit to certain named persons, or certain classes of persons, or which requires the permitees to identify the residents of the second dwelling unit to the City by name, or to obtain a new permit for the purpose of authorizing a new resident, shall no longer be applicable."

If this amendment is adopted, it is the intent of the Planning Staff to send a letter to all affected second unit permitees informing them of the change, and which conditions or covenants previously required of them are no longer applicable.

Staff recommends adding the above language to the end of BMC �31-625.9(b). The Planning Board concurred with this recommendation.

CONCLUSION:

The Appeals Court by invalidating occupancy restrictions and the State Legislature by removing the conditional use permit process have rendered the task of regulating second dwelling units noticeably more challenging. The inability to limit who may occupy a unit removes what has been a mainstay of City second unit enforcement since 1991. Not being able to use the conditional use permit process considerably reduces the flexibility the City has in dealing with second units. Nevertheless, Staff is constrained to recommend the changes detailed above to remove occupancy requirements and conditional use permit requirements from the BMC second unit regulations in order to conform to the requirements of AB 1866 and the Coalition decision.

The main remaining tool the city has to limit the secondary impacts of second units is physical design and development standards. Staff finds the proposed changes to the Second Dwelling Unit development standards, will help alleviate problems with concentration of second units and their effects, including:

1. Requiring a second unit be separated from other second unit lots by at least 500 ft.
2. Increasing the required minimum lot size for a second unit to 6000 s.f.
3. Adding exterior architectural standards to ensure second units are architecturally compatible and complementary to the existing unit, and retain the exterior appearance of a single-family residence.
4. Establishing a one story height limit for detached second unit structures.
5. Requiring separation between second units and adjacent R-1H properties.

Staff recommends against changing the minimum lot size requirement for second units to 7000 s.f.

CEQA DETERMINATION:

Actions to adopt an ordinance regarding second units under CGC �65852.2 are statutorily exempt from the requirements of the California Environmental Quality Act under �15282(i) of the CEQA Guidelines (California Code of Regulations Title 14. Ch. 3). The staff has prepared and filed a Notice of CEQA Exemption with the Los Angeles County Recorder�s Office (Exhibit J-2).

FISCAL IMPACT:

Previously the City collected a fee for processing a Conditional Use Permit for a second unit. Under the current fee resolution this is $608.00. If the Council opts to require Development Review for second units, the Development Review fee (currently $480.00) will be collected. If the City henceforth requires only building permits for second units, presumably only building permit fees will be collected. On the other hand, simplified approval procedures will lead to less staff time involved in processing applications.

Historically, Burbank has received on-average fewer than four second dwelling unit applications per year since adoption of the first Second Dwelling Unit Ordinance in 1983. Despite possible simplifications in the approval procedure, staff does not foresee a significant increase in the number of second dwelling unit applications received. Therefore, staff does not find that changes in fees received for second unit approvals will have a significant fiscal impact.

The CDD Staff has over the years expended a certain amount of time and effort in code enforcement efforts on second units, however, virtually all these efforts have been directed toward illegally built or converted second units. There is nothing to indicate that legally approved second units are more likely to be the subject of code enforcement actions than any other legally built structure.

The City has not historically collected a separate fee for preparing and recording the BMC �31-625.7(c) Covenant of Occupancy Restrictions for second unit approvals, although it has collected a fee for preparing similar covenants required for accessory structures under 300 s.f. required by BMC �31-1111(c). Staff recommends that future fee resolutions include a provision for Owner Occupancy Covenant fees.

RECOMMENDATION:

Staff recommends the Council adopt the attached Ordinance adopting Zone Text Amendment 2001-11.

The Council may recommend approval, approval with modification, or disapproval of the subject Zone Text Amendment. If the Council desires, the following motion may be adopted:

"I move Zone Text Amendment No. 2001-11 be approved as proposed by the staff (or as modified by the Council), and that the Ordinance entitled �An Ordinance of the City of Burbank to Amend the Burbank Municipal Code Regulations Regarding Second Dwelling Units� be adopted."

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