PURPOSE:

This report requests that the City Council consider a request by Chartwell Aviation Services, LLC to allow the issuance of a building permit for a roof structure to serve as a covered parking shelter for a general aviation hangar at the Burbank-Glendale-Pasadena Airport.  Staff has declined to issue the requested permit because of the Interim Development Control Ordinance (IDCO) that is currently in effect for most airport development.

BACKGROUND:

IDCO

On August 20, 2002, the City Council adopted an IDCO by Ordinance No. 3601, which temporarily suspends the issuance of development permits for ministerial projects on land owned or leased by the Burbank-Glendale-Pasadena Airport Authority or located in the Airport zone.  On October 1, 2002, the Council adopted Ordinance No. 3606 to extend the IDCO through August 2004 (Exhibit A).[1]

Several types of projects are exempted from the provisions of the IDCO.  One such type of project is those ��involving minor improvements that do not change the specific use and do not increase the size of any existing building, as determined by the Director of the Community Development Department.� (Ordinance section 3.b.)

Project Description

In July 2003, Chartwell Aviation sought a building permit to construct a free-standing roof structure to provide shelter for approximately 15 parking spaces along the west wall of Hangar 22, located off of Clybourn Avenue.[2]  The proposed structure would be supported by columns and would be approximately 18 feet by 140 feet in size, as described in the attached letter and plans submitted by the applicant (Exhibit B).  The structure would consist only of columns and a roof covering, and would not include any walls or other enclosures.

IDCO Application

Because the proposed project is in the Airport zone on Airport Authority-owned property and would require only ministerial approvals from the City, it is subject to the restrictions of the IDCO.  Staff looked at the proposed project and the exemptions provided by the IDCO to determine if any of the exemptions would apply.  The only exemption that was found to potentially apply was that exemption described above pertaining to certain minor improvements.  The proposed structure is arguably a minor improvement, and because the area in question is currently a parking lot and would continue to be used as a parking lot, the proposed structure would not change the underlying use of the land.  However, in order to qualify for the exemption described above, a project must also not increase the size of any building.

The IDCO itself does not include a definition or explanation of the intent of the word �building.�  Staff therefore looked to the Zoning Ordinance to determine whether the proposed structure would qualify as a �building� as that term is utilized in Chapter 31 of the Burbank Municipal Code.  The Zoning Ordinance defines a building as �any structure having a roof supported by columns or walls, which is designed or used as an enclosure or shelter.�  Because the proposed structure consists of a roof supported by columns that is to be used as a shelter, staff believes that it falls within the building definition provided by the Zoning Ordinance.  Staff believes that the proposed structure would therefore be a new building with new square footage, and would not qualify under the IDCO exemption.  As such, staff declined to issue the requested permit and sent a letter to the applicant explaining the interpretation of the IDCO (Exhibit C).[3]

Applicant�s Request

The applicant inquired with staff as to the process for �appealing� staff�s decision regarding this matter.  The IDCO does not contain any provisions for appealing staff interpretation or decisions about administration of the IDCO.  Unlike other planning entitlement approvals, there is no prescribed mechanism for a project applicant to further pursue a staff decision about an IDCO.  Because the City Council approved the IDCO and is the only body with the authority to modify it, staff and the City Attorney�s office believed that it would be most appropriate for the applicant to request that this matter be considered directly by the City Council.

On September 24, 2003, the applicant�s legal representative submitted a letter to staff requesting that the City Council consider this matter and allow for the issuance of a building permit and construction of the proposed structure (Exhibit B).  The applicant is requesting three possible courses of action for the Council as explained in more detail in the attached letter:

1. Determine that the proposed structure would not increase the size of a building and would therefore qualify for exemption under the IDCO.

2. Grant the applicant a waiver or exception from the IDCO to allow the structure to be built despite the IDCO.

3. Amend the IDCO to provide an additional exemption that would apply specifically to parking shelters of a certain size.

 ANALYSIS:

Although the proposed structure falls within the Zoning Ordinance definition of �building,� staff recognizes that the proposed structure may not be the type of project that the Council intended to restrict through the IDCO.  Because the proposed structure would not be enclosed, it would not add any usable floor area to any structure.  The proposed structure would not change the use of the underlying land, a parking lot, and would therefore at least partially qualify under the IDCO exemption.  The use of the site would not be intensified or substantially changed, and no new interior building space would be added.

If the Council did not intend for the IDCO to apply to this type of unenclosed automobile shelter, the Council could direct staff regarding the interpretation of the IDCO, such that it would be interpreted not to apply to at-grade, unenclosed automobile shelter structures in existing parking lots or auto use areas, or any similar class of projects as defined by the Council.  This would allow the proposed shelter to be built, and would allow a previously requested (by a different applicant) awning to be constructed over an existing service station for rental cars.  Staff notes that the portion of the exemption regarding no change of use would still apply, so such shelter structures could only be built over existing parking or other auto use areas, and new or expanded parking facilities could not be constructed.  Although it may be argued that other types of unenclosed structures could not be considered buildings, similar types of shelters could be used to cover aircraft, cargo, or otherwise serve a more intense use.  Staff would therefore recommend that any direction regarding the interpretation of the IDCO be limited to automobile shelters as described herein.  Even with this direction, staff would continue to interpret the IDCO in a conservative manner, and would return to the Council with any future questions from applicants regarding the application of the exemptions.

As suggested by the applicant, the Council also has the option of amending the language of the IDCO itself to add an additional specific exemption and/or further clarify the type of project that may be considered a minor project and exempted from the IDCO.  If the Council agrees with staff�s current interpretation and application of the IDCO, no amendment should be made.  If the Council directs staff regarding the interpretation of the IDCO as described above to allow certain unenclosed structures, the Council may elect to amend the IDCO accordingly so that there is no question regarding the Council�s intent for application to future projects.  This approach would go beyond just interpretation of the ordinance, and would amend the current ordinance to provide additional exemption standards.  Because it is an ordinance adopted after a public hearing, the IDCO could only be amended following another noticed public hearing.  If the Council desires to amend the IDCO, staff would recommend that the Council direct staff to schedule and notice a public hearing for the Council to consider an IDCO amendment at a future date.

The final option suggested by the applicant is for the Council to grant a special exception to allow the proposed project to go forward, even if the Council agrees with staff�s interpretation of the ordinance.  The Council may only grant an exception to the IDCO through the adoption of an ordinance specifying the exception.  The exception could be project-specific, or could apply to a broader class of projects as defined by the Council.  Because it must be adopted by ordinance, granting an exception would also require a noticed public hearing.  Although it would be a standalone ordinance, approval of such an exception would have the same effective result as amending the IDCO itself.  If the Council desires to pursue this approach, staff would again recommend that the Council direct staff to schedule and notice a public hearing for a future date.

CONCLUSION AND RECOMMENDATION:

Staff�s interpretation of the IDCO is that the proposed project would constitute a new building that is not exempt from the IDCO.  If the Council agrees with this assessment, staff recommends that the Council note and file this report and take no further action.  Staff would continue to allow tenant improvements to existing buildings provided that no change of use occurs, and would not allow any new building construction on a ministerial basis.

If the Council�s intent is for the IDCO to be interpreted differently, such that the proposed project and similar types of projects would not be considered �buildings� under the IDCO and would be accordingly exempted from the IDCO as minor projects, staff would recommend that the Council direct staff accordingly regarding the interpretation of the ordinance.  Staff would then interpret the IDCO not to apply to at-grade, unenclosed automobile shelter structures in existing parking lot or auto use areas, or to any similar type of project as directed by the Council.

If the Council wishes to amend the IDCO itself or to grant a special exception to the IDCO for this project, staff would recommend that the Council direct staff to schedule a public hearing at a future date for the Council to consider adoption of the appropriate ordinance.

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