PURPOSE:

To recommend amending Burbank Municipal Code Chapter 31, Article 6, Division 3.5 (�31-625.1 et seq.) regulations for Second Dwelling Units in Single Family Zones to provide procedures for: (a) processing applications for second dwelling units, (b) public notice of such applications, and (c) public hearings and appeals of decisions on such applications.

BACKGROUND:

California State Assembly Bill 1866 (California Government Code �65852.2 � Exhibit B) , adopted on September 29, 2002 requires, among other things, that applications for second dwelling unit development permits received by the City on or after July 1, 2003 must be processed ministerially and without discretionary review or hearings.  To implement this requirement the City Council, on May 13, 2003, adopted Ordinance No. 3622 (Exhibit C).  Until now, the City has required a Conditional Use Permit (CUP) for a second dwelling unit, and applications for second dwelling units were processed in accordance with the procedures for CUPs in BMC �31-1934 to �31-1952.  CUPs are discretionary permits and the procedures for granting CUPs reflect this.  Therefore, new procedures for handling second unit applications need to be adopted that provide for ministerial processing.

Ministerial vs. Discretionary Approvals:

�Ministerial acts are actions in which the government has no discretion.  Usually a ministerial act involves the mandatory issuance of a permit if certain conditions are met.� (William Fulton � Guide to California Planning).  Because they involve no discretion, ministerial decisions are typically delegated to the staff level.  Ministerial actions are not subject to initiative or referendum and are also generally exempt from environmental review under CEQA.  While the City may establish general development standards in the Municipal Code for second dwelling units like any other use, if the proposed project meets the Code standards, the project must be approved.

Discretionary actions (also referred to as quasi-judicial actions) on the other hand allow the approving authority a degree of latitude not just in whether to approve the proposed development, but also how.  In approving a discretionary permit the approving authority may consider the project individually and within limits may impose conditions applied solely to address the project in question.

Procedures for Processing Second Dwelling Unit Applications:

Procedures for processing ordinary applications for second dwelling units are contained in Subsections (a), (b) and (c) of the draft Ordinance (Exhibit A).  These procedures are modeled on the same general format as applications for Development Reviews, Administrative Use Permits, and other permits where determinations are made on the staff level (see Exhibits D-1 and D-2).  Basically, Subsection (a) identifies what is required from the applicant; Subsection (b) provides for an initial period for the staff to consider the submission and determine if the information is adequate to make a determination (i.e. the application is complete), and then requires a determination be made within a given time frame; Subsection (c) provides for notice of the decision to the applicants, to nearby property owners and residents, and to the public generally.  For the majority of ministerial determinations the process ends here; the next step is to apply for construction permits.  A small number of such actions may be appealed, and these are discussed further below.

Expediting Submissions and Approvals for Second Dwelling Unit Applications:

Besides eliminating the requirement for a CUP, Ordinance No. 3622 made a number of other changes to the Second Dwelling Unit Regulations, among them changes to the development standards for second units.  This is allowed by CGC 65852.2 (a)(1) which allows local agencies to set standards for second units including regulating where within the jurisdiction of the agency they may be located.   Burbank previously used occupancy standards (limits on who may occupy the second unit) to limit the number and concentration of second units.  This method was rendered unenforceable by a recent appeals court decision.  Instead, the new regulations require a minimum distance (300 ft.) separation between legally permitted second units.  This method, while it does provide a direct and easily enforceable means to prevent over-concentration of second units, could possibly lead to competition for available second unit permits if two or more applications are received within 300 ft. of each other.

The fairest means to allocate the available permits in such a situation is on a first come � first served basis in the order the applications are initially received.  Now, typically ordinary Type V (residential) construction takes from a few months to maybe two years including permit processing time.  However, when the Planning Division issues a development approval (say a Development Review or CUP) the approval is good for one year.  That is the applicant must apply for plan check construction permits within one year of the approval.  In the case of other approvals, failing to expeditiously follow up planning approvals only delays the applicant�s project (in the worst case they may lose their application fee and have to start the process over again), but no one else is materially affected.  But in the case of second dwelling unit permits, they could potentially be tying up a permit another nearby applicant could put to use.  The Planning Division finds that the procedures should encourage applicants to ensure that contingencies such as financing, contracting, etc, are arranged beforehand or at least pursued expeditiously. 

For this reason, the Planning Division is proposing that second unit permits be subject to certain time constraints for submission of Planning permits (see Subsection (b)) and construction permits (Subsection (h)).  Note that the timeline places constraints on both the City and the applicant to perform certain actions within time frames somewhat shorter than would otherwise be allowed for development and construction approvals, but reasonable given the size and type of the projects involved.

For instance, while the ordinance allows the same time period as the Development Review process does for the City to determine an application is complete (thirty days from initial submission), the City will be required to issue an approval or denial within sixty days of deeming the application complete.  For other kinds of ministerial approvals (e.g. Development Review) the code does not specify a particular approval time, although they do have to be approved within a reasonable time relative to the complexity of the project.  The Planning Staff finds that the proposed approval deadlines are reasonably achievable for second dwelling unit residential type structures or additions that can be no larger than 500 s.f.

On the applicant�s part, he/she will be required to apply for building permits within 90 days of being issued a second unit permit, as opposed to one year for other projects.  This schedule may seem aggressive, but for Type V construction it really is not.  Building permits for Type V construction do not actually need technical construction drawings.  Permits can be issued on the basis of only site plans and floor plans, both of which are required for Planning approval.  The Planning Staff has consulted with the Building Division plan check engineers and they believe this time frame is entirely reasonable given the type and size of construction involved.

Other time constraints may be established through administrative policy.  For instance, if an application is determined to be incomplete the Planning Staff normally follows up with a letter informing the applicant of what other materials will be required, and stating a time frame for resubmission.  For simple projects such as second dwelling units this period can and should be relatively brief.

Public Notification Requirement:

At the May 13, 2003 hearing, the Council indicated that even though they recognized that second dwelling unit applications must henceforth be approved ministerially, they still wished to see notification of the decision to approve a second unit sent to nearby property owners and residents.  The requirements for public notice are primarily contained in Subsection (c) of the draft Ordinance, however, notice requirements for public hearings and appeals in the event such are conducted are contained in Subsections (d) and (f) respectively. 

Generally, the staff is proposing that appeal procedures and notification requirements for second dwelling unit approvals closely mirror those for Development Review approvals in BMC �31-1908 - �31-1914.  That is to say, that a notice of the Director�s Decision to approve a second dwelling unit application will be sent to property owners and residents within 300 ft. of the subject property, and that any person will then have 15 days to submit an appeal.  Staff observes that 300 ft. corresponds to the required radius between approved second dwelling units.

Appeals to Planning Board and City Council:

Procedures for appeals of second dwelling unit approvals are contained in Subsections (d) through (g) of the draft Ordinance.  As was pointed out above, AB 1866 specifically requires that approvals of second unit applications will not be subject to discretionary review or hearings.  This requirement has been interpreted by the City Attorney�s Office to apply to appeals of second unit approvals (or denials) as well as to the initial Director�s decision. 

This does not completely eliminate any possible hearing or appeal, but it does mean that the hearing body will have to proceed in a very different fashion from how they consider discretionary (quasi-judicial) or legislative actions.  Both the grounds for appeal, and the latitude afforded the Planning Board or the Council will be very limited.  This is reflected in the requirement in Subsection (d)(2) and Subsection (f)(2) that the request for an appeal  must identify the specific section of the Zoning Code the proposed second dwelling unit does not comply with.

When conducting the appeal hearing, the Planning Board will have no more discretion than the reviewing official (the Community Development Director).  The Board may only review what the Director has already decided which is whether the project, as proposed, meets or does not meet the development standards contained in the Zoning Code.  On appeal, the City Council will have the same limitation.  This is reflected in the requirement in Subsection (g) that the permit must be approved if all code requirements are complied with.

Second Dwelling Unit Approvals in Practice:

The foregoing is intended to set out a general procedure for applying for and approving second dwelling units.  In practice it is not possible nor really desirable to try to anticipate in the Municipal Code every possible situation that might conceivably occur.  The staff does anticipate that there will be situations where administrative policies and professional judgment will be necessary, especially with regards to implementing the 300 ft. separation rule in BMC �31-625.7(a). 

Existing Units With Permits:

For example, the City has complete records and a map showing all second dwelling unit permits issued since adoption of Ordinance No. 2922 (Exhibit E-1) in October 1983 and determining the location of, and 300 ft. radius from, such units will present no serious problem.  However, the city has at various times in its history allowed second dwelling units under other circumstances; for example under Ordinance No. 1277 in force from 1953 to 1963 (Exhibits E-2 and E-3).  There was also extensive permitting of second unit type dwellings during the Second World War period to house defense workers.  Most of these units have permits in the City�s building records on microfilm or paper, but we do not have a central registry of all of them (as we do with the CUPs), and when a second dwelling unit application is received it will be necessary search the files to find the locations of these older (pre 1983) permits.

Un-permitted Conversions:

Another situation is conversions without permits.  Until 1983, the City allowed guesthouses (defined as a separate structure, but without kitchen/cooking facilities).  An unknown but possibly substantial number of such units are likely to have had kitchen facilities installed without benefit of permits - sometimes in the face of a statement in the permit or covenant that such would not be done.  We have also seen other structures such as garages, pool cabanas, etc. converted to dwelling units without benefit of permits.  A small but significant number of the second dwelling unit CUPs issued between 1983 and 2001, were to legalize un-permitted conversions.

In general, the staff expects to continue the existing policy that when such units are brought to the attention of the City Code Enforcement staff, they may be legalized if they meet all required development standards, and from now on this will include provision of mandated parking and meeting the 300 ft. separation rule.  Staff does not believe that situations that have illegally converted units should be given any priority or special consideration.  Such applicants will be given the same consideration as any other applicant, notwithstanding the fact that the unit already exists.  If there is a permitted second dwelling unit or a prior application within 300 ft., then a second dwelling unit permit will not be issued.  This does not necessarily mean the structure will have to be removed entirely, although un-permitted kitchens and/or bathrooms may have to be.  The structure could still be used as a recreation room, home office or other permitted accessory use.  It may be necessary for the applicant to secure an accessory structure CUP.

Units With Undeterminable Status:

The most difficult problem will be a limited number of units where it is not possible to explicitly determine the structure�s status.  This includes structures built before, approximately, the mid-1920s when the City first started issuing building permits.  Such structures have no permits � none were legally required � but are not necessarily illegal.  There have also come to light situations where a structure was built initially without permits, but where the City has subsequently issued a permit for some modification (for example new wiring) and thus it could be argued that the City has implicitly therefore recognized the structure.  Such situations will need to be evaluated on an individual basis using the best evidence that can be had from official records and files, evidence provided by the applicant, inspections by Building Division personnel, etc. 

It should be noted that while the 300 ft. (and other development standards) may add new twists to this problem, this is not altogether a new venture.  The City has had to determine the legal status of second unit type structures previously for other reasons.  The Community Development Department quite recently had to determine the status of a structure clearly first built in the early 1920s, but also modified at a later time.  The City consulted all available records and files, but was able to determine based on the type of wiring and electrical fixtures present, that the kitchen in the unit must have been added considerably later, apparently without permits.

CONCLUSION:

The Council directed the staff to prepare procedures for second dwelling unit applications which include provisions for public notification and appeals.  In general the procedures the staff has proposed closely resemble the procedures used to process Development Reviews and Administrative Use Permits including their provisions for public hearings, appeals and notification.  Because of the potential for unnecessary delays in a situation where the total number of permits in a given neighborhood will be limited, staff has also added certain requirements to ensure that both the permit processing and construction of allowed second units proceeds expeditiously.  If an applicant is not willing to construct a second dwelling unit in a reasonably expeditious time frame, the permit will expire and be made available to other applicants who are willing to do so.

The Planning Staff also recognizes that developing second dwelling unit approval procedures is to an extent an ongoing process.  The City Council already (on May 13^th) requested the Staff report back in one year with a progress report on the effectiveness of the newly adopted second dwelling unit development standards.  This progress report will include a report on how efficiently these approval procedures are working and whether any significant modifications are recommended.

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 (CEQA) under �15852(i) of the State CEQA Guidelines (CCR Title 14, Ch. 3).

FISCAL IMPACT:

The fiscal impacts of the revised Second Dwelling Unit requirements generally were discussed in the initial (April 1, 2003) report to the Council on this subject (See Appendix A at page 22).

The procedures established by this Ordinance include payment of an application fee for second dwelling unit approvals (see Subsection (a)(5)).  Generally, planning fees help to defray the costs of permit processing, but rarely completely cover staff time and other costs involved in permit processing.  As was noted above, the procedures in the ordinance are modeled generally on the Development Review process, therefore it follows that a similar fee (currently $480) should be established for second dwelling unit permits.  Staff will present the City Council with an amended Fee Resolution.

As was also noted in the April 1, 2003 report (page 8), we will be requiring an owner-occupancy covenant for future second dwelling units.  The City currently requires a fee for preparing and filing certain covenants (e.g. accessory structure covenants � currently $350), but does not usually charge a separate fee if covenants are required as part of another action; for example preparing and recording a covenant imposed as a condition of a Conditional Use Permit.  Therefore, since the initial second dwelling unit application requires a filing fee, staff is not recommending an additional fee for preparation and recording of the covenant to be consistent with practice for other types of approvals.

For requests for public hearings and appeals of other Director approved actions such as Development Review, and Administrative Use Permits, the City has historically charged a nominal fee of $100.  This fee while discouraging frivolous appeals, is not really intended to cover the City�s actual costs for conducting a hearing or an appeal.  Staff recommends the same fee for second dwelling unit hearings and appeals as for other appeals.  The City could see an increased number requests for public hearings and appeals under the new regulations for second dwelling units, although, now that CUPs (and the hearings required for them) are no longer required, there could also be a decrease in the number of Planning Board hearings.  However, we will simultaneously loose the CUP application fee (currently $680) previously required for second dwelling units.

Historically the number of second dwelling unit applications in Burbank has been modest and staff does not expect that in the long-run we will see a significant rise in the number of applications.  However, staff has received a number of inquires recently, and does expect that we will initially have to deal with an larger number of applications in the coming fiscal year, due both to pent up demand from the IDCO in effect for most of the last two years, and also possibly due to the publicity afforded this issue recently in local media which has made more people aware of this option.

RECOMMENDATION:

Staff recommends the City Council adopt Zone Text Amendment 2001-11 as amended to include procedures for processing, public notice and appeals of second dwelling unit applications.

COUNCIL ACTION:

The City Council may approve, approve with modification, or disapprove the proposed Zone Text Amendment.  If the Council desires, the following motion may be adopted:

�I move Zone Text Amendment 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 Procedures for Processing, Notification and Appeals for Second Dwelling Unit Applications� be adopted.�

If the City Council determines the Zone Text Amendment should not be adopted, an appropriate motion should be introduced.

List of Exhibits

Exhibit A:         Draft Ordinance- Procedures for Second Dwelling Unit Approvals

Exhibit B:          AB 1866 (CGC �65852.2)

Exhibit C:         Burbank City Council Ordinance 3633 (Second Dwelling Units)

Exhibit D-1:      Excerpt from BMC �31-1908 to �31-1914 Development Review

Exhibit D-2:      Excerpt from BMC �31-1954 to �31-1960 Administrative Use Permits

Exhibit E-1:      City of Burbank Ordinance No. 2922 (October 17, 1983)

Exhibit E-2:      City of Burbank Ordinance No. 1277 (November 3, 1953)

Exhibit E-3:      City of Burbank Ordinance No. 1858 (April 30, 1963)

Appendix A:     Staff Report to City Council � April 1, 2003

Appendix B:     Staff Report to City Council � May 13, 2003

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