CONDITIONAL USE PERMIT NO. 2003-29

The parking lot facing Hollywood Way has a 125 foot frontage along Hollywood Way and is 115 feet deep. The parking lot along Cordova Street has twenty-five (25) feet of frontage and is 130 feet deep.

Current Development of the Site: The site is presently improved with a 14,850 square foot, one story building with a mezzanine. The building was constructed in 1981 and, until 1998, was utilized as a Thrifty Drugstore. Since Thrifty�s has closed, the building has been utilized by seasonal vendors. The existing building has a five (5) foot setback from the property line on both the Hollywood Way and Magnolia Boulevard frontages.

Both of the parking lots that are to be utilized for this project are owned by the applicant and are currently developed as parking lots. The parking lot facing Hollywood Way is tied to the building site by an off-site parking covenant recorded at the time of construction. The parking lot with access from Cordova Street is presently being leased by the property owner to a neighboring business owner. The fourteen (14) parking spaces that are presently being leased are in excess of required parking for the business and the lease will expire should the proposed project be constructed.

Project History: The original project application, Conditional Use Permit No. 2000-30, requested authorization to establish a multi-tenant retail building on the property with a parking supply of five (5) spaces per 1,000 square feet in lieu of the ten (10) spaces per 1,000 square feet that is typically required. Additionally, the original application included a request to permit one (1) restaurant tenant to be open to customers beginning at 5:30 a.m.

The Planning Board reviewed Conditional Use Permit No. 2000-30 during two (2) public hearings, on December 3, 2001 and December 17, 2001.  The Board approved the proposed reduction in parking but was opposed to the proposed expansion of business hours. (Exhibits C-1 through C-3) The application was subsequently appealed to the City Council by a neighboring property owner. The City Council affirmed the decision of the Planning Board on February 5, 2002. (Exhibits D-1 and D-2)

After the completion of the public hearing process, an application for Development Review was submitted in March 2003 and subsequently approved on May 16, 2003. The Development Review approval was based upon the project complying with requirements of the Burbank Municipal Code as well as the project approvals. The project has been submitted to the Building Division for plan check and is in the process of being reviewed.

Proposed Modification: Condition of Approval No. 6 of Conditional Use Permit No. 2000-30 reads as follows:

Hours of operation from 6:00 a.m. to midnight are authorized for one (1) restaurant use with an adjusted floor area of less than 2,000 square feet. This restaurant shall be located at the corner of Magnolia Boulevard and Hollywood Way. No employees, contractors, or agents shall be on the site between the hours of 1:00 a.m. and 5:30 a.m. No other business may operate between the hours of 10:00 p.m. and 9:00 a.m.

The applicant, Kenneth Fisher, is requesting approval to allow all of the tenants in the building to be open between the hours of 6:00 a.m. and midnight. (Exhibit B-2) While the applicant�s request would apply generally to the entire project, it was brought forward at this time as a means to allow a retailer of paint and painting supplies to operate between 6:30 a.m. and 5:00 p.m.

Public Correspondence: The original project was reviewed by the Magnolia Park Citizens Advisory Committee (MPCAC), who recommended approval of the original conditional use permit (Exhibits E-1 and E-2). The members of the MPCAC were also provided with the staff report for the subject application during their regular meeting of January 22, 2004. Additionally, members of the public spoke during both previous public hearings before the Planning Board and the City Council for this project. No comments were received by the Planning Division as a result of the public notices that have been sent for this request.

Planning Board Action: The Planning Board considered the subject request at its regular meeting of January 26, 2004. The staff recommendation was to deny the request based upon the fact that there was no evidence that any of the issues that led to the establishment of the original condition of approval had changed.

No members of the public chose to speak about this project during the public hearing. During deliberations, the Planning Board discussed the basis for the original condition of approval and the appropriateness of making a change to the conditions. Board members discussed the fact that the property has been vacant for a long period of time and that they understood that the property could be challenging to lease. Discussion focused on what types of restrictions were warranted for businesses on the property, outside of the business that is currently allowed to operate between 6:00 a.m. and midnight. The Board concurred that anything beyond 10:00 p.m. would not be appropriate and ultimately settled on allowing all tenants to be open beginning at 6:30 a.m.

The Board voted 4-0, Chair Gabel-Luddy was absent, to approve the project (Resolution attached as Exhibit G-1; minutes for January 26, 2004 attached as Exhibit G-2).

ANALYSIS:

Surrounding Neighborhood: The project site lies at the intersection of Magnolia Boulevard and Hollywood Way. Adjacent properties along Magnolia Boulevard are zoned MPC-1. Properties along Hollywood Way are zoned MPC-2, including a forty (40) space public parking lot that is owned by the City directly south of the project parking. The project site is adjacent to residentially zoned properties on Cordova Street. The first residential property on each side of Cordova Street is utilized for parking. The remaining properties on Cordova Street are zoned R-1 Single Family Residential on the east side of the street and R-2 Residential Two Family on the west side of the street.

The project site is buffered from dwellings on all sides by parking areas and other buildings. However, the project site is residentially adjacent by virtue of the fact that the property is located within 150 feet of residentially zoned property. The nearest residential property is presently utilized as a parking lot. The nearest property with residential dwellings is approximately seventy (70) feet from the property line of the building site, abutting the southern property line of the Cordova Street parking lot.

Magnolia Park Area Guidelines: The subject property is located within the Magnolia Park area of the City. The Magnolia Park zoning designations were adopted in 1998 as a result of recommendations made as part of the Magnolia Park Study, which was initiated as an effort to revitalize the Magnolia Boulevard/Hollywood Way Corridor.

The establishment of the Magnolia Park zoning areas established new property development and architectural design standards for the area. The ordinance also established the types of uses that were appropriate within the Magnolia Park zones. Additionally, a purpose was created for each of the three zones established as a result of the ordinance.

The subject property is predominantly located within the MPC-1 zone. The stated purpose of the MPC-1 zone is to provide for commercial, retail, and office uses geared towards a pedestrian-oriented village concept, including an allowance for residential uses above commercial uses. A paint and wallpaper retailer is not the type of use envisioned by the Magnolia Park Plan. However, it is a permitted use within the zone and can be legally established.

Operational Characteristics:

Noise

The applicant is proposing an amendment to the conditions of approval to allow all businesses in the project to operate between the hours of 6:00 a.m. and midnight. The current approvals limit these hours to only one (1) restaurant tenant of less than 2,000 square feet in floor area. The original reduction in business hours for the project was based primarily on concern about noise impacts from the parking lot on adjacent residential properties.

As noted earlier, the request stems from a retailer of paint and wallpaper supplies who wished to be open between 6:30 a.m. and 5:00 p.m. Generally, the clientele of paint and wallpaper retailers includes both contractors and individual homeowners. Often these retailers have a significant amount of their business in the earlier morning from painting contractors. The supplies purchased at these retailers often are loaded into the backs of pickup trucks for transport to the place where the work is being done. This loading and unloading of paint and related supplies is a potential source of noise, particularly in the early morning.

Traffic

The proposed amendment would enable all business in the project to be open between the hours of 6:00 a.m. and midnight, consistent with the standards established in the Residentially Adjacent Commercial and Industrial Uses ordinance. When compared to current project approvals, the amount of traffic generated during these hours will be increased, particularly given the nature of the proposed business. However, the increased amount of traffic volume is negligible in comparison to the total amount of traffic at the intersection of Magnolia Boulevard and Hollywood Way.

Hours of Operation

The project location falls within 150 feet of a residentially zoned property. As such, Section 31-1151(a) of the Burbank Municipal Code prohibits business operations from occurring between the hours of midnight and 6:00 a.m. on the property unless a conditional use permit has been granted. The original application included a request to open a restaurant at 5:30 a.m. Condition of Approval No. 6 originally was developed by staff as a means of insuring that, if such extended hours were granted, the impacts on surrounding properties would be minimized. However, the Board and the Council on appeal felt that 5:30 a.m. was inappropriate and modified the condition to its final form. The provision limiting business hours for all uses other than the one (1) restaurant were retained as a result of concerns raised during public comment regarding the potential for impacts resulting from operations on the property. Specific concerns were raised regarding the use of the parking areas during early morning and late evening periods because of their proximity to residential uses.

However, it is important to note that the business hours established within the conditions of approval are, in fact, more stringent than those generally applied in the City or those that would be applied to a single tenant user on the subject property.

Parking

In addition to the condition of approval that restricted the business hours of tenants for the project, the original project approval also included a condition of approval for the project that prohibited the use of the fourteen (14) parking spaces along Cordova Street between 10:00 p.m. and 9:00 a.m. This condition was intended to mitigate any potential impacts that might occur with a parking area in close proximity to residences.

Since the use of the building is directly related to the availability of parking, the applicants request to modify the hours of operation also requires a modification to this condition of approval to insure that adequate parking supply is available during business hours. As such, with their approval of the amendment to modify business hours, the Board also extended the hours for the fourteen (14) spaces along Cordova Street to correspond with the approved business hours (6:30 a.m. to 10:00 p.m.). Thus, adequate parking supply is available to serve all uses during their business hours. The Cordova Street parking lot will not be available for use outside of established business hours.

Department Comments:

The original project was circulated to other Departments and Divisions for review and comment. At that time, no comments were received related to hours of operation. As such, the proposed modification was not circulated.

Environmental Status: The project has been determined to be Categorically Exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the State CEQA Guidelines pertaining to modifications of existing facilities which result in negligible or no expansion of use. (Exhibit F)

CONCLUSION:

While businesses are generally permitted to open for business as early as 6:00 a.m. regardless of proximity to residential zones, a specific condition of approval was placed on this project to further limit business hours for all but one restaurant use. This condition of approval was based upon concerns raised regarding noise impacts on surrounding properties from customers using the parking lots. That being said, all other businesses in the vicinity are permitted to operate as early as 6:00 a.m. and, in fact, a single tenant user of the subject property could begin business hours at 6:00 a.m. Based upon these factors, the Planning Board determined that some modification to the conditions of approval was warranted. The Board modified the conditions of approval to allow for all of the businesses that were previously restricted to begin operations at 9:00 a.m. to begin business at 6:30 a.m. while retaining the 10:00 p.m. closing time. The Board made this modification based upon its ability to make each of the six (6) required findings for granting a conditional use permit.

Requirements for Granting of a Conditional Use Permit

(1)   The use applied for at the location set forth in the application is properly one for which a conditional use permit is authorized by Chapter 31 of the Municipal Code.

The filing of a new conditional use permit application is the appropriate process to initiate an amendment to a conditional use permit.

(2)   The use is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located.

The extension of operation hours would allow the future tenants to operate with extended business hours in comparison to current approvals but would remain more limited than typically permitted for businesses in this zone. As the hours are within those permitted for other commercial activities in the MPC-1 zone, the proposed modification would not be detrimental.

(3)   The use will be compatible with other uses on the same lot, and in the general area in which the use is proposed to be located.

The uses on the property will not be permitted to be open to customers in the late night hours and the morning operational period was extended for only thirty (30) minutes. The primary entrances will be on Magnolia Boulevard and all loading activity will comply with code.

(4)   The site for the proposed use is adequate in size and shape to accommodate the use and all of the yards, setbacks, walls, fences, landscaping, and other features required to adjust the use to the existing or future uses permitted in the neighborhood.

The project site relies on residentially adjacent parking areas to serve the needs of the businesses. As a result of the extended hours in this amendment, the residentially adjacent parking will also be open during the extended hours. However, the parking will be closed during the late night hours from 10:00 p.m. to 6:30 a.m. The applicant will be required to comply with code with regard to noise.

(5)   The site for the proposed use relates to streets and highways properly designed and improved to carry the type and quantity of traffic generated or to be generated by the proposed use.

The amount of traffic that can be expected to be generated as a result of the proposed extension of business hours is negligible.

(6)   The conditions imposed are necessary to protect the public health, convenience, safety, and welfare.

The conditions of approval established by the Planning Board are adequate to protect public health, convenience, safety, and welfare.

RECOMMENDATION

Staff recommends that the City Council affirm the Planning Board�s decision to approve Conditional Use Permit No. 2003-29 amending the conditions of approval of Conditional Use Permit No. 2000-30.

 LIST OF EXHIBITS

Conditional Use Permit No. 2003-29

(990 North Hollywood Way � Kenneth Fisher)

Exhibit             A-1      Zoning and Fair Political Practices Act Compliance Map

                        A-2      Public Notice

Exhibit             B-1      Request to Modify Condition of Approval

                         B-2      Site Plan

Exhibit C-1     Planning Board Resolution No. 2850

                        C-2      Planning Board Minutes for December 3, 2001 Special Meeting

                        C-3      Planning Board Minutes for December 17, 2001 Special Meeting

Exhibit D-1     City Council Resolution No. 26,173

                        D-2      City Council Minutes for February 5, 2002

Exhibit E-1     Magnolia Park CAC Minutes for November 15, 2001

                        E-2      Magnolia Park CAC Minutes for January 24, 2002

Exhibit             F          Public Notice of Environmental Decision

Exhibit G-1     Planning Board Resolution No. 2918

                        G-2      Unofficial Minutes of the January 26, 2004 Planning Board Meeting

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