PURPOSE:

On January 13, 2004, the City Council held a public hearing to consider adoption of an Interim Development Control Ordinance (IDCO) that would temporarily restrict the development of certain types of multiple family residential projects.  The Council did not adopt the proposed IDCO, and instead continued the public hearing and directed staff to return with options for adopting an ordinance to modify the existing Development Review (DR) process by adding required compatibility findings.  This report recommends that the Council direct staff to either prepare an emergency ordinance or initiate a zone text amendment to modify the DR process as desired.  This report further recommends that the Council approve a budget amendment to appropriate funds to conduct a comprehensive study of the current multifamily densities and development standards.

DISCUSSION:

Development Review Process

All new development in Burbank, including multiple family residential projects, is required to go through the DR process.  In general, the DR process is intended as a first step for project applicants to receive feedback from City departments regarding their project�s compliance with the Burbank Municipal Code (BMC), and to learn about requirements with regard to utility service, traffic circulation, and other such issues.  When the Community Development Director[1] approves a DR application, the only requisite finding is that the proposed project would comply with all applicable BMC requirements, or could be modified so as to meet code requirements.  For multiple family residential projects located within 500 feet of an R-1 single family residential zone, the Director must also make a finding that certain aspects of the proposed project are designed so as to prevent adverse impacts on the nearby R-1 properties.

For multifamily projects not within 500 feet of an R-1 zone, the Community Development Director has no discretion when reviewing a project, and no ability to require design changes other than those needed to ensure code compliance.  Although the scope of the Director�s review is somewhat broader for those projects in proximity to R-1 properties, the review is still restricted to specific criteria and the amount of discretion is limited.  In no case does the Director have the ability to review a project in the context of neighborhood character, or require changes to a project to promote compatibility between the proposed project and existing development in the neighborhood.

On January 13, the Council directed staff to return with options for an ordinance that would modify the existing DR process to provide the Community Development Director with the ability to review a project, and require changes to a project�s design, to ensure compatibility with surrounding development.  In addition to the current findings and criteria for approval, the Director would then be required to make additional findings that a project would be consistent with existing development in the neighborhood. 

Code Amendment Process

Amendments to the City�s Zoning Ordinance (BMC Chapter 31) are typically processed as �zone text amendments� through the process prescribed in the code (BMC Section 31-1985 et seq.).  Zone text amendments are usually adopted by the City Council following a noticed public hearing.  The Council hearing is preceded by a noticed public hearing in front of the Planning Board, which acts as a recommending body to the Council.

When the Council adopts a zone text amendment ordinance, it follows the typical ordinance adoption process consisting of introduction followed by a second reading (typically one week later), and finally publication in the newspaper.  The ordinance then becomes effective on the 31^st day after newspaper publication.  The time period between the first public hearing with the Planning Board and the effective date of the ordinance is about 10 to 12 weeks at minimum.  This does not include the time for staff to prepare the ordinance prior to the Planning Board hearing.

Notwithstanding the usual ordinance process, Section 8 of the Burbank City Charter includes a provision for the adoption of an emergency ordinance under certain conditions that would become effective immediately upon adoption (emphasis added):

�an ordinance calling or otherwise relating to an election, or ordinances otherwise specially required by the laws of the State, or ordinances declared by the Council to be necessary as an emergency measure for preserving the public peace, health, safety or welfare or as mandated by a state or federal law, regulation, or permit condition, and containing the reasons for its urgency and passed by not less than four (4) members of the Council, or ordinances relating to bond issues, may be introduced and passed at one and the same meeting, and shall become effective immediately, if the Council shall therein so declare and shall be published in a newspaper of general circulation within fourteen (14) days thereafter.

As stated above, an emergency ordinance may be adopted by a four-fifths vote of the Council upon a finding that the measure is necessary for the preservation of the public peace, health, safety, or welfare.  This Charter provision would allow the Council to adopt a zone text amendment as an emergency ordinance that would be effective immediately, rather than going through the normal process.  In such a situation, a public hearing would not be held in front of the Planning Board, and the matter would be considered only by the City Council.  Staff notes that an emergency ordinance to modify the DR process would not be a temporary or interim measure and would not be considered an IDCO.  As such, the ordinance would not be subject to the requirements and findings of state planning law regarding the adoption of interim control measures that were discussed at the January 13 hearing.  The Council would be required only to make the finding described above pursuant to the City Charter.

The Council has the option of directing staff to return with an emergency ordinance to modify the DR process that would become effective immediately upon adoption by the City Council.  Alternatively, the Council may direct staff to initiate a zone text amendment to modify the DR process as desired, and to process that zone text amendment pursuant to the normal process, including separate public hearings with the Planning Board and City Council.  If so directed by the Council, staff would be prepared to present an ordinance for the Council�s consideration as an emergency measure at the next regular meeting on January 27, 2004.

Staff notes that if the ordinance is adopted as an emergency measure, the compatibility findings would be implemented without any accompanying compatibility guidelines or other measures to provide direction to architects in designing their projects or to staff in reviewing projects and making compatibility findings.  Staff�s intent is to develop compatibility guidelines or similar such standards as part of the comprehensive review of densities and development standards.  Until such guidelines are adopted, however, project review for findings of compatibility would be highly subjective in nature.

Staff recognizes the importance of the Planning Board in the planning process, and notes that the Planning Board would not participate in the amendment process with the emergency ordinance option as they would with the standard zone text amendment approach.  However, staff further notes that, as mentioned above, the proposed study of densities and development standards will also likely include the development of compatibility guidelines to supplement the subject ordinance.  Any proposed guidelines or other changes to the densities and/or development standards would at a minimum be presented to the Planning Board for its consideration through the zone text amendment process.  Further, the DR process could be further reviewed and amended as part of the study to ensure consistency with any other changes to the multifamily development requirements.  Any such changes to the development process would also be reviewed by the Planning Board prior to adoption.

Ordinance Applicability

The various steps in the project review and approval process were discussed in detail in the January 13 staff report (see Exhibit 1, pages 11-13).  As with the previously proposed IDCO, an ordinance to modify the DR process could be drafted so as to apply to any project that does not already have vested rights following the issuance of a building permit.  There are currently 25 proposed projects that have already received DR approval from the Community Development Director, but have not yet been issued a building permit.  Most of these project applicants have not yet submitted for building plan check, and have not advanced their projects beyond the DR process.  The Director�s approval of three of these projects is currently held in abeyance pending appeals to the Planning Board and City Council.  There are 16 additional projects that are going through the DR process and have not yet received Director approval, and this number increases weekly as new applications are submitted.

As with the IDCO, the Council through the ordinance may 1) require that the new compatibility findings be retroactive and required of all projects that do not yet have vested rights, whether or not they have received DR approval; 2) require that the findings be applied only to projects that have not yet received DR approval; 3) apply the findings only to future projects for which applications have not yet been received; or 4) identify some other threshold at which the ordinance would apply.  If the Council chooses to adopt a retroactive ordinance that would apply to projects that have already received DR approval, those approvals would be rescinded and the projects would be reviewed again by staff for compliance with the compatibility findings.  Staff again notes that approval under the current DR process is only a determination that a proposed project applies with applicable codes; it does not constitute an entitlement or provide any vested rights to an applicant.

Staff Recommendation

Staff previously recommended that if an IDCO were adopted, it be applied only to projects that had not yet received DR approval.  This recommendation was based largely upon the amount of time and money that project applicants have invested in a project by the time it reaches the DR approval stage.  However, in light of the concerns expressed by the City Council on January 13 regarding project design and compatibility, and the number of projects with DR approval that might be allowed to go forward, staff believes that this proposed ordinance should be applied retroactively to all projects that do not yet have vested rights, whether or not they have received DR approval.

With a moratorium scenario, staff was concerned about the expectations of those applicants who had received DR approval to go forward with their projects.  The proposed ordinance is different in that it would not halt development or prevent the projects from going forward; it would create additional criteria by which the projects would be reviewed as they go through the DR process.  Staff acknowledges the possibility that substantial design changes may be required for some projects that have already received DR approval or submitted a DR application, depending upon the findings of compatibility and the nature of existing development in the area.  Such changes would incur additional cost to project applicants in that plans may have to be revised.  However, any compatibility findings proposed by staff would not provide staff with the authority to deny a project in its entirety or act to prevent development from occurring on a particular lot.

Environmental Review

Because they only serve to maintain the status quo and do not establish any new or expanded zoning standards or processes, IDCOs are not subject to environmental review under the California Environmental Quality Act (CEQA).  However, the subject ordinance, whether or not adopted as an emergency measure, is not an IDCO and would be subject to CEQA review.  Although the ordinance is not yet complete pending further direction from Council, staff believes that the scope of the proposed ordinance is such that it would qualify under one of the exemptions provided in the State CEQA Guidelines.  The proposed ordinance would serve only to modify an existing procedure for the processing of project applications and would not directly result in any new development.  If exempted, an Initial Study would not need to be prepared, and further CEQA analysis would not be required.

FISCAL IMPACT:

Proposed DR Ordinance

Preparation and implementation of the proposed ordinance to modify the existing DR process could be conducted by City staff without consultant assistance, and would then not require any expenditure by the City.  However, the amount of staff resources and time to be devoted to implementing the ordinance following its adoption could be substantial.

The proposed ordinance would require staff to review all multifamily DR applications for compatibility with the surrounding neighborhood in addition to standard code compliance.  This process would necessitate additional staff time to review plans, conduct additional fieldwork, and have greater and more frequent interaction with project applicants as project designs are discussed.  Until compatibility guidelines are adopted, the subjective nature of the compatibility findings may necessitate the involvement of additional staff members to manage the overall DR process and ensure consistency in the findings.  The additional review would likely cause delays in the DR process and lengthen the amount of time required to process a DR application, particularly in the initial implementation period.

If Council follows the staff recommendation of creating a retroactive ordinance that would apply to projects that have already received DR approval, this would result in a substantial backlog of applications.  Every multifamily DR application approved in the past 12 months that has not yet been issued building permits would need to be reviewed again for a compatibility determination.  Re-approving these projects would also create an opportunity for an appeal, which may become more frequent as the community learns of the compatibility requirement.  Appeals require significant staff time in preparing for a Planning Board or City Council hearing.

Further, multifamily DRs that are not located within 500 feet of an R-1 zone are currently approved through a ministerial process, pursuant to code.  Ministerial projects are exempted from environmental review by the State CEQA Guidelines.  If a compatibility finding were to be required for all multifamily DR approvals and the Community Development Director were provided with discretion in making the required findings, the applications would no longer be considered ministerial, and would be subject to environmental review under CEQA.  This requirement would also add time to the DR process and would require additional staff time and resources to prepare the necessary environmental documents.

Design and Density Study

On January 13, the Council generally indicated its support for following the staff recommendation to retain a consultant and conduct a comprehensive study of the current densities and development standards.  The estimated cost for the initial phase of the study, needed this fiscal year, is $65,000.  With a ten percent contingency in the event additional consultant work is needed, the total amount would be $71,500.  As discussed in the January 13 staff report (Exhibit 1, pages 21-22), $21,000 is available from the current Planning Division budget for this project.  Funding of this effort would require a budget amendment to appropriate an additional $50,500 to the Planning Division�s �planning, survey, and design� account (001.CD31A.62050.0000).  Because the General Fund does not currently have any available unappropriated fund balance, the funds would be appropriated from the Utility Users Tax In-Lieu Set-Aside fund (001.ND000.30001.1022). Funding for the next phase of the project is not anticipated to be needed until the next fiscal year, and staff will include that funding request as part of the Community Development Department budget proposal for the next fiscal year.

Staff has set aside unencumbered Planning Division funds for ongoing Work Program projects as described in the January 13 report (see Exhibit 1, pages 21-22).  If the Council wishes to make this multifamily study a top priority ahead of ongoing Work Program projects, it would be possible to redirect the previously earmarked funds to this effort, reducing the amount of the needed budget amendment or potentially eliminating the need for a budget amendment.

Staff Recommendation

Staff recommends that the Council approve the requested budget amendment of $50,500 to fund this effort. Although unencumbered funds are available in the Planning Division budget, staff believes that these funds will be needed for work on ongoing Work Program items.  Staff does not want progress on Work Program items to be slowed as a result of this effort, and therefore wishes to have the additional funding for those projects available in the event it is needed.

CONCLUSION AND RECOMMENDATION:

If the Council believes that the nature of ongoing multifamily development in the community poses a threat to the public peace or welfare such that an emergency measure is warranted, staff recommends that the Council again continue the public hearing to the next regular meeting of January 27, 2004 and direct staff to return on that date with an emergency ordinance to add compatibility findings to the DR process.  If the Council believes that the situation does not warrant adoption of an emergency measure, staff recommends that the Council direct staff to initiate a zone text amendment to amend the DR process.  Whether or not adopted as an emergency measure, staff recommends that the ordinance retroactively apply to all projects that do not yet have a building permit, whether or not DR approval has been granted.

Finally, staff recommends that the Council adopt the proposed budget amendment resolution to appropriate an additional $50,500 to the Planning Division budget.  This amendment would allow the Division to continue working on Work Program items by retaining funds that have been set aside for those projects.

LIST OF EXHIBITS:

Exhibit 1           City Council staff report dated January 13, 2004 and exhibits A through C thereto

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