PURPOSE:

At the City Council meeting of December 9, 2003, several Council members requested that staff return with a discussion about code enforcement activities. The Council members were particularly interested in the manner in which the Burbank Municipal Code and project conditions of approval are enforced. This report is intended to summarize the Community Development Department�s code enforcement program.

INTRODUCTION:

Although the scope of this report is solely the Community Development Department�s code enforcement program, it is important to note that other City Departments are also involved in aspects of code enforcement related to their specific areas of expertise. For example, the Public Works Department responds to issues that occur within the public right-of-way.

Code Enforcement Defined

The purpose of code enforcement is to insure that activities being conducted within a community are consistent with the applicable regulations of the community to protect the public health, safety, and welfare. Code enforcement generally is viewed in terms of responding to and correcting violations after they occur. While this is an important and visible component of any code enforcement program, it is only part of a comprehensive code enforcement program.

The Community Development Department�s Code Enforcement program is the whole of activities that the Department conducts to insure that projects, businesses, and residents are complying with the requirements of the Burbank Municipal Code, other relevant codes, and, where applicable, project conditions of approval. While code enforcement is generally envisioned as activities that occur once a business is opened, after construction is completed, or as part of daily residential life, enforcement is actually a process which begins with activities that occur before construction or operations begin, such as the Building Division�s plan check process, and continues beyond construction or operations.

CODE ENFORCEMENT PROGRAM:

The Community Development Department, as a whole, is responsible for issues relating to the physical development of Burbank. As such, the Department�s code enforcement program primarily relates to issues of construction, business operations, and activities on private properties, both residential and commercial. The Department�s code enforcement activities are conducted predominantly by three Divisions: License and Code Services, Building, and Planning.

Overview

While the three divisions are responsible for different aspects of code enforcement, it is not uncommon for two or all three of the divisions to be working in coordination on a particular issue. For example, an illegal conversion of structure into a second dwelling unit could conceivably involve input from each division.

License and Code Services deals primarily with the areas that are typically associated with code enforcement, such as violation of residential and commercial zoning standards, property maintenance, sign codes, and encroachment issues. The division has a staff of seven and a half (7.5) inspectors who work on over 5,000 reactive and proactive code enforcement actions annually. Additionally, between new and modifications to existing accounts, the division processes over 16,000 business license and business tax accounts per year.

The Building Division is responsible for enforcement of issues relating to construction related codes, such as the California Building Code. The division employs eight (8) inspectors who are responsible for conducting over 42,000 inspections per year. The Building Division also includes four (4) employees who are responsible for conducting plan checks (over 1,500 plan checks processed last year) and an additional seven (7) employees whose duties include processing and issuing permits (over 7,100 permits issued last year).

The Planning Division is responsible for insuring zoning compliance for projects. As part of this process the ten (10) full-time planners process entitlements (e.g. conditional use permits, variances, etc.), review building permits, and grant zoning clearance on business applications. In 2003, the division processed 147 entitlement applications.

Policy Assumptions

The manner in which the Department conducts code enforcement activities is the result of certain policy directions or assumptions that have been made through the years. The following list summarizes the policy assumptions under which the current program operates:

• Proactive vs. Reactive Enforcement � In the field, the Department�s Code Enforcement activities are predominantly reactive in nature. Roughly seventy (70) percent of activities are initiated by outside parties (residents, businesses, etc.). However, in many cases property maintenance or other building code cases are initiated proactively by the Department�s building inspectors when violations are observed during daily inspection activities. 

• Presumption of Compliance � Commercial and residential activities are presumed to be in compliance unless staff determines otherwise. Thus, simply receiving a complaint may not trigger enforcement actions. Staff must determine whether the activity that is triggering the complaint is a violation.

• Seek Voluntary Compliance � Prior to issuing citations, notices of violation, or prosecution, staff�s first directive is to work with a person to achieve voluntary compliance. If and only if voluntary compliance can not be achieved will stronger enforcement tools be utilized.

• Allow Remedy to Illegal Activities � Some communities will not allow a person or business to submit any kind of application on a property if there are any pending code enforcement issues. Burbank, on the other hand, has a policy that allows a person to file an application to legalize the activity without removing or displacing it. For example, if a business that requires a conditional use permit is discovered to be operating without the appropriate approvals, some communities would require a full cessation of operations before an application can be received. In Burbank, however, the business usually can continue to operate in a limited fashion until the use permit is resolved. In cases involving building code violations where the violation may result in an unsafe structure or result in a life-safety hazard, the activity may have to be ceased and the construction removed. 

• Customer Service Orientation � Customer service is a fundamental aspect to the Department�s code enforcement activities. Staff makes every effort to work with people to help resolve issues in the least contentious manner. The program is predicated on working with all parties in a positive fashion and developing relationships to improve code compliance.

Areas of Enforcement

In general, CDD�s code enforcement program is responsible for enforcement in four main regulatory areas: zoning, property maintenance, building, and business regulations.

Zoning Regulations: Zoning regulations govern the use of land, both residential and non-residential, within the City. The largest source of zoning regulations in the City is the Zoning Ordinance (Chapter 31 of the Burbank Municipal Code). These regulations include setback requirements, the sign ordinance, nuisance provisions, and fence heights. Additionally, zoning regulations also include conditions of approval for entitlements such as conditional use permits and variances and contractual obligations of Development Agreements.

Property Maintenance: Property maintenance regulations address the visual appearance of properties. Chapter 7 of the Burbank Municipal Code is a primary source of such regulations. However, property maintenance issues are also addressed within the Zoning Ordinance and Building codes.

Building Regulations: Building regulations are standards that are applied to construction activities. Examples of these types of regulations include the California Building Code, Plumbing Code, Mechanical Code, and Electrical Code. Other building regulations include construction related standards of the South Coast Air Quality Management District and elements of the Federal Clean Water Act.

Business Regulations: Business regulations include licensing and operational restrictions on business activities. These regulations include Municipal Code requirements and other ancillary regulations, such as State smoking laws.

Periods of Enforcement

The Community Development Department�s enforcement of these three regulatory areas can be generally separated into activities during four time periods of development: pre-construction, construction, pre-operation, and operational. The types of enforcement activities and measures that are available to staff differ for each time period.

Pre-Construction: Prior to the onset of construction activities, the City�s plan check and entitlement processes serve as the primary means of insuring code compliance. While this portion of the code enforcement program is the least visible to an outside observer, it is the area in which a large amount of all of the Department�s code enforcement activity is conducted. During this time period, staff has the opportunity to enforce construction related conditions of approval, physical standards of the zoning ordinance, and construction codes.

In this time period, staff is proactive in its enforcement of applicable codes and conditions. The Building and Planning Divisions each actively examine aspects of the plans that are within their purview. The Planning Division is ultimately responsible for insuring that all conditions of approval or other comments that have been included as part of an entitlement are satisfied before issuance of a permit. Plans that are not in compliance receive corrections through the Building Division�s plan check process. Ultimately, plans are not approved until all conditions and code requirements have been satisfied.

Construction:  Once construction activities have commenced, the focus of the Department�s code enforcement program changes from a plan checking function to an inspection function. The purpose of the program in this time period is to insure that all construction activities are being conducted in accordance with an approved permit. In addition to construction regulations, the Building Division is also responsible for insuring that projects are complying with a variety of other regulations including the Noise Ordinance, construction related mitigation measures (e.g. stopping grading work during high winds, etc.),  and specific conditions of approval. Additionally, the Building Division is responsible for insuring compliance with the portions of Standard Urban Stormwater Mitigation Plan (SUSMP), which is a component of the Federal Clean Water Act, that relate to construction.

The Building Division takes a proactive role to insure that construction activities are conducted in accordance with applicable standards. The Division has instituted a monthly construction projects meeting during which staff can meet with the construction teams of larger developments that are going on within the City to resolve any issues and bring forth concerns. Staff also works with developers of smaller projects to insure that they are complying with the City�s standards. While voluntary compliance is preferred, if it can not be achieved the Building Division has the authority to stop work on projects that are being built contrary to or without approved permits and will not grant final approval on a permit or issue a Certificate of Occupancy until all requirements have been satisfied.

Pre-Operation: The period of code enforcement activity may begin while construction is proceeding or after construction is completed. In this period, the program focuses on insuring that any requirements that are needed prior to the start of business or use have been met. Any applicable licensure requirements, operating requirement of the Zoning Ordinance, and operational conditions of approval are verified during this period. If the activity has project conditions of approval associated with it, staff provides the applicant with a copy of the approved conditions to make sure that all operators are aware of any restrictions. As with the building permit process, applications that are not compliant are requested to be modified and will not be approved until such time as they are fully compliant.

Operation: This is the final phase of code enforcement activity for any project. It begins once a use is established and construction is completed. The activities conducted during this phase of the program are those that are most commonly associated with code enforcement. During this stage, the Department is responsible for insuring that activities continue to be conducted in accordance with applicable regulations and project approvals. With the exception of illegal construction activities, the majority of enforcement activity during this stage is related to property maintenance and restrictions on use. The majority of code enforcement during this time period is conducted on a reactive basis. However, any activities that may be a threat to public health, safety, and welfare are dealt with in a proactive manner.

The code enforcement program during this development stage is predominantly handled by the License and Code Services Division. The Division�s goal is to achieve compliance voluntarily whenever possible. The Division often works with violators to bring activities into conformance with City standards and requirements. This includes suspending enforcement activities while the violator is going through the appropriate process to legalize the activity (e.g. a business operating without a conditional use permit). However, when compliance can not be achieved, there are a variety of options available to achieve compliance including, but not limited to revocation of entitlements and prosecution.

Triggers to Enforcement

As noted the Department�s code enforcement program is generally reactive in nature. As such, the majority of code enforcement activities are initiated in response to an action by an outside party. In the early stages of the pre-construction and pre-operation phases of development, the program is initiated through permit and entitlement processes. Enforcement activities are initiated during construction predominantly by applicants� requests for inspections. However, staff also is responsive to complaints raised by the public, the City Council, and other bodies such as the Planning Board during the construction process. Once construction has been completed, enforcement activity is triggered predominantly by complaints and comments received from the elected or appointed officials and the general public.

The Department proactively enforces property maintenance issues in specific portions of the City. Likewise, the Department actively monitors other activities such as garage sales and banners. The Building Division is proactive with regard to construction activities that are proceeding without required permits and any obvious threat to public health and safety.

Remedies for Non-compliance

While it is a goal of the code enforcement program to resolve all cases voluntarily, there are situations in which compliance can not be achieved without additional measures. In the pre-construction, construction, and pre-operation stages of development, the remedies generally available to the City are the denial of entitlements and permits. During construction, violations may also be cause for legal action, either through prosecution, civil nuisance abatement suits, or, where contracts, such as development agreements exist, breach of contract. The City may also impose fines or double fees for construction activities that are conducted without or contrary to an approved permit. Once operations have commenced, a variety of options are available to the City including, but not limited to, revocation of entitlements and legal actions.

Impediments

The Department�s code enforcement program is, at times, limited in what can be done regarding a particular situation by any number of factors. As noted earlier, the program is developed upon a set of policy assumptions. For instance, allowing people to remedy violations through the appropriate permitting process can extend the period of time for an enforcement case to reach a final resolution.

The costs of code enforcement activities also limit the scope of the program. More inspectors and compliance officers are necessary to operate a proactive program than a reactive program, which, in turn, would impact supporting departments such as the City Attorney�s Office, particularly the City prosecuter. An increase in the level of code enforcement activity requires a shift in priorities from other services since enforcement, in and of itself, does not generate substantial additional revenues.

There are a number of legal impediments, mostly constitutional in nature, that impact code enforcement activities. Private property rights and due process issues often serve as a barrier to achieving a quick, easy resolution to a situation. It is particularly difficult, as a result, to determine whether violations are occurring on the interior of a building. For example, the conversion of an accessory structure into a living space can not always be determined from outside the building and would require permissions, either from the property owner or by a warrant, to inspect.

However, one of the most significant impediments to code enforcement programs is the continued evolution of codes and conditions of approval. In many cases, uses are established prior to current codes. Since zoning generally protects existing non-conforming uses, the ability to enforce current requirement on existing uses is challenging. For example, businesses that were open during the nighttime prior to the establishment of the Residentially Adjacent Uses ordinance are not subject to those provisions. This means that some of the operational limitations established can not be enforced.

Even uses that have previously received discretionary approvals, such as conditional use permits, can become challenging from an enforcement standpoint because individual conditions of approval are often unclear or lacking in sufficient support to understand the original intent. Today, staff strives to create conditions of approval that are clear, easily enforceable, and are directly related to potential impacts. As new situations arise, staff is constantly working to further refine and improve the way in which conditions are written. 

CONCLUSION:

The manner in which the Community Development Department conducts code enforcement activities is governed primarily by prior policy decisions and fiscal and legal limitations. In general, the code enforcement program is initiated by the public, either through filing for permits or making complaints. The Department focuses on responding to customer requests and complaints in a timely manner. When violations are noted, the program aims to achieve voluntary compliance wherever possible and staff will suspend enforcement to provide an opportunity for the violation to be remedied. In those situations where voluntary compliance can not be achieved, revocation of entitlements and ultimately legal action may be taken.

RECOMMENDATION:

This report is a summary of the manner in which code enforcement activities are conducted by the Community Development Department. Should the City Council determine that the program should be conducted in a different manner or that new priorities should be established, staff recommends that the Council direct staff to investigate the potential changes and report back on any potential ramifications.

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