PURPOSE:

On March 23, 2004, the City Council directed staff to prepare an Ordinance to amend Chapter 31 (Zoning) of the Burbank Municipal Code to modify standards relating to setbacks for expansion of or additions to single-family residences which have non-conforming side yard setbacks.  The attached report and proposed ordinance would amend the code to eliminate provisions which allow structures to be expanded or added to at a substandard setback line.  The proposed revisions deal with partial demolition or destruction of a structure, and differentiate between accidental damage and deliberate demolition.  Finally, staff is proposing a procedure for minor exceptions for single-family residential structures in situations where strict enforcement of current standards would present a hardship or would not be practical.

BACKGROUND:

In recent years, many residents of the City of Burbank have expressed increasing concern about the size, bulk and height, of many newly constructed residences and enlargements to existing residences, in the single-family zones.  This issue is commonly referred to as �mansionization�.  Residences which are, or appear, noticeably larger, taller or bulkier than other houses in a neighborhood can appear out of place, change the ambiance or feel of a neighborhood, and raise concerns about open space, privacy, access to light and sunlight, air circulation, and related issues.  To this end, the City Council has directed the staff to undertake a general review of the development standards for the single family residential zones as they now exist in the Zoning Code.  The Planning staff is presently working with an architectural consulting firm to develop options for possible new or modified development standards designed to help preserve the desired look and feel of the single-family neighborhoods, while at the same time minimizing unnecessary restrictions on the use of private property.

However, one of the most immediate concerns with the existing single-family development standards is the regulation of expansions and additions to structures with sub-standard side-yard setbacks.  It is usually at the sides (as opposed to the front or back) of the property that most single-family residences are closest to their immediately adjacent neighbors, and it is here that the effects of neighboring structures are felt most acutely, particularly in the situation of two-story homes or additions. Current Zoning Code provisions allow that a house with a non-conforming side yard setback may be added to or expanded along the existing setback no matter how substandard that may be, as long as the house was originally built legally (�31-1208(b)(2), Exhibit A, pg. 8).  In practice, this means that a two-story house can be built to the maximum allowed height (27 feet to the ceiling plate and 35 feet to the top of the roof) only three feet (or in theory less than three feet)[1] from the side property line. 

As well as additions and enlargements, some projects have also taken advantage of the lack of specificity in the Zoning Code regarding partial demolitions to essentially demolish and rebuild a structure except for token non-conforming walls or sections left in place, to nominally preserve non-conforming status.  For these reasons, the City Council has directed the staff to bring forward an immediate zone text amendment to address the situation of side yard setbacks as soon as practical, even in advance of addressing single-family zone development standards as a whole as described above.

There are a number of provisions currently in the Burbank Municipal Code that might allow for a structure to be built, rebuilt or added to with a non-conforming setback.   These include:

1. BMC �31-1208(b)(2) of the General Yard and Space standards allows that on a developed lot in any residential zone, a substandard side yard setback line that was legal when it was established  may be extended along the depth of the lot as    long as the structure that created it remains. (Exhibit A, pg.8) 

2. This section also specifically allows adding a second story to a single-family dwelling with a three foot side yard built in 1967 or before (subject to Building Official approval). 

3. BMC �31-1212 of the Yard and Space standards, gives the Building Director the authority to grant exceptions to otherwise required building and yard setbacks of up to 10% of the required depth of the required setback consistent with the general purpose and spirit of the zoning code and consistent with safety, necessity, welfare and substantial justice (Exhibit A, pg. 10)

4. BMC �31-606(k), �31-614(k) and �31-2408(l) allow for structures in respectively the R-1E, R-1 and R-1H zones, destroyed by any means to more than 50% of replacement cost to be rebuilt to their previous configuration upon granting an Administrative Use Permit (AUP) Exhibit A, pgs. 2, 4 & 6) 

5. BMC �31-1811.5 of the standards for Non-conforming Structures provides that non-conforming buildings damaged as a result of a local emergency may be rebuilt to their original configuration if the Council identifies them as �qualifying� buildings, and an AUP is secured (Exhibit A, pg.17)

ANALYSIS:

The Planning staff worked closely with the Building Division staff in developing these amendments because, in practice, the Building Division is regularly involved with implementation of zoning regulations in single-family zones due to overlaps between the building and zoning codes.  Therefore, some of the proposed changes in this ordinance are made at the request of the Building Division and with their codes in mind.

Also while keeping in mind that the Council�s directive dealt with a particular provision in Burbank�s code, the staff did a limited survey of code provisions from other cities and selected interviews with Planners from these cities to learn their experiences.  The results of the survey are presented in Exhibit B.  The cities surveyed were selected for their resemblance to Burbank in terms of population and demographics, and also for being cities largely built before the advent of modern zoning codes and therefore likely to have substantial numbers of non-conforming structures. 

The most important result of the survey was to reveal that almost all of the cities surveyed had some provision or procedure short of requiring a formal zoning variance for approving minor exceptions to current code requirements, in situations where an existing non-conforming structure make strict conformance impractical and/or unreasonable.  Some cities provide for issuing a conditional use permit (CUP) in these situations.  More frequently some sort of administrative permit (such as an AUP) is allowed, and some cities had less formal procedures giving discretion to a City Planner or other official to make exceptions in such cases. Typically such provisions provide guidance to the concerned official as to what kind of exceptions may be allowed and when they would be allowed (and just as important, when exceptions would not be allowed) (see Exhibit B).

Staff considered possibly including other zone text changes, notably dealing with setbacks for accessory structures (particularly accessory structures with second dwelling units in them).  However, it was decided to include such changes with the general revisions to the single-family development standards referred to in the opening paragraph.  The primary emphasis of the code amendments proposed herein is to deal with non-conforming residential structures, and with special provisions for non-conforming side yard setbacks.  Thus the staff is also proposing to move certain sections within the Zoning Code, so that all provisions dealing with non-conforming situations are in Article 18 �Nonconforming Land Uses and Structures� rather than scattered throughout Chapter 31 as they are now.

PROPOSED CODE AMENDMENTS:

Staff is proposing a number of changes to the code with various immediate goals including eliminating sections of the code that directly permit the problem situations, clarifying code sections subject to frequent misunderstandings or disagreements, adding new code language to deal with cases previously left unaddressed or addressed through unofficial policy, and adding specific findings to guide staff when dealing with questionable situations. 

Additions or Enlargements to Structures with Substandard Setbacks:

The first proposed change is to delete the provision permitting residences with substandard side yard setbacks to be enlarged along the substandard line (Exhibit A, pg. 8, �31-1208(b)(2)).  This is the most frequent and most obvious provision under which houses are built or expanded with substandard side yard setbacks, and the immediate object of the City Council�s directive.

The staff is also proposing to add a new Subsection (2) to the regulations for non-conforming structures (�31-1810, Exhibit A pg. 14) explicitly stating that all enlargements, alterations and additions to non-conforming structures must conform to the current standards of the zone.  Existing Subsection (1) states that a non-conforming structure may not be enlarged so as to increase its nonconformity, but it is unclear from this wording if a project being extended along an existing line constitutes an increase in non-conformity.  It should be noted that this section applies to, and the proposed changes will affect, all zones, although in practice such projects are rare outside the single-family areas.

Restoration of Single-family Dwellings Destroyed by Fire, Natural Disaster, etc:

The Zoning Code currently requires that structures destroyed by any means to more than 50% of their replacement value immediately before destruction must be rebuilt in accordance with code (�31-1810 (3), Exhibit A pg. 14).  Exceptions are provided in single-family zones (�31-606(k), �31-614(k) and �31-2408(l)) allowing structures in (respectively) the R-1E, R-1, and R-1H zones destroyed to more than 50% replacement value to be rebuilt to their previous configuration on granting an AUP, even if such was non-conforming.  As noted above, Planning staff desires to place all code provisions dealing with non-conformities together in Article 18, thus staff proposes to delete these sections and add a new provision stating that any single-family residential structure in a residential zone that is destroyed by natural forces (e.g. fire, flood, wind, earthquake) may be rebuilt to its previously existing configuration (�31-1810(3), Exhibit A, pg. 14).  Other than the stipulation that the destruction must have been by natural forces (more on which below), the new section is worded essentially the same as the three sections it is proposed to replace. 

It is potentially possible for a house undergoing an extensive remodel, say removal of the roof to add a second story, and extensive removal of interior walls, to cross the 50% of value threshold.  The three sections noted above allow rebuilding of a structure destroyed to more than 50% of value by any means, but specifies it must be to the previously existing configuration.  It is unlikely that an applicant would wish to largely demolish a home only to rebuild exactly what was torn down, so it has never been clear that this section applied to voluntary demolitions. 

It is staff�s observation that in practice this provision is used less frequently than might be imagined.  There is a noticeable tendency for property owners whose homes have been more or less completely destroyed in, for example, a fire to want to rebuild �bigger and better�.  In this event the exception provided by these sections does not apply.

In the survey of Municipal Codes, staff notes that most of the cities surveyed limit the extent to which a destroyed non-conforming structure can be replaced.  Most cities require structures demolished to over 50% of value to be rebuilt to code, but many make exceptions for residential structures, particularly if destroyed by catastrophe, or �Acts of God� (or similar language).  However, in these cases the reconstruction must be substantially to the same configuration as existed previously.  Section 65852.25 of the California Government Code requires that cities must allow reconstruction of multi-family dwellings destroyed by fire or other catastrophe, although, Burbank, as a charter city, is exempt from this provision. 

However, with regard to structures demolished voluntarily in the course of say a remodeling or expansion the situation is less clear.  Many cities, like Burbank, do not explicitly address this situation.  In the case of those cities limiting such restoration to situations where the destruction was accidental, it can be presumed that buildings undergoing voluntary remodeling or expansion would by default not be excepted and would therefore have to be made to conform to current code.    Torrance is one of the few cities explicitly addressing �significant remodeling� and requires that if the cost of the remodel exceeds 85% of the replacement value, then the whole house must be made to conform.  Staff notes that this 85% standard refers to the entire cost of the remodel or expansion, not just the value of any demolition necessary to accommodate the remodel or expansion. Glendale has also recently amended its zoning code to address this issue.  In Glendale, if more than 50% of the combined surface area of all exterior walls and roof are removed or abandoned in place, then the structure loses its non-conforming status, and must be made to conform to current code.  From conversations with planners in these and other cities, the staff finds that the proposed standards are broadly in line with standards employed in other cities for this purpose.  Staff finds it is reasonable to require rebuilding to code if a structure is voluntarily demolished to more than 50% replacement value, but wishes to make the Council aware of this provision since the proposed ordinance would clearly apply to these situations.

Restoration of Structures Demolished or Damaged by Less Than 50% of Value:

The next two proposed amendments deal with structures demolished or destroyed by 50% or less of replacement value.  As noted above, �31-1810(3) deals with structures more than 50% destroyed, but the code has heretofore been silent with regards to structures destroyed or damaged by less than 50% value.  This has led some project proponents who have voluntarily removed a non-conforming wall or portion of a structure to argue that they can rebuild to the previously existing line.  The code does not explicitly say that they can, but unlike with structures destroyed by over 50% value it does not explicitly say that they cannot. 

This has led to some odd situations where an applicant has proposed to demolish (or in some case already has demolished) a non-conforming wall, but with plans carefully drawn to show that mathematically 50% of the replacement value of the structure would be left intact, even though the proposed preservations make no architectural or structural sense, simply in order to retain non-conforming rights.  Needless, to say, the building inspectors have later returned to find the sections supposedly saved were gone, but by that time, new foundations have been poured and walls built.

Staff recommends adding two new code sections to deal with this situation depending on whether the structure has been (or is proposed to be) voluntarily demolished, or was involuntarily damaged by natural forces.  Proposed new �31-1810(4) (Exhibit A, pg. 14) deals with voluntary demolitions, providing guidance as to when a structure or portion of a structure will be considered demolished and will have to be rebuilt to current standards.  Essentially removing covering or cladding such as siding or roof tiles would not cause a wall to be considered demolished, but removing the underlying structural members such as framing, trusses or foundation would.  Note that under existing code �31-1810(3) repairs to non-conforming structures are allowed as long as they are to code, and do not propose to alter the existing structural configuration.

Proposed new �31-1810(5) (Exhibit A, pg. 14) deals with involuntary damage.  It provides that structures damaged in this way to less than 50% of their value may be replaced to the previously existing extent, but no more.  It would not be practical to require that, for example, a multi-family structure which, taken as a whole may be non-conforming under current code, and which has had, say, one unit destroyed by fire, cannot be restored unless the whole building is made to conform.  The proposed wording of the section specifies that the repairs or rebuilding may only be to the previously existing extent or the project will be considered non-conforming, and that such repairs or rebuilding must commence within one year (to prevent anyone from trying to restore a non-conforming structure that burned down years ago).

Minor Exceptions for Side Yard Setbacks of Single-family Dwellings:

The changes proposed above will mean that room additions and second story additions at a substandard setback line will not be allowed. However, the Building Division has concerns with a rule so strict it would prevent any expansion, addition or work within a side setback at all.  There are situations where it would be unreasonable or impractical to require absolute adherence to current zoning regulations for an extension to an existing non-conforming structure.  Therefore, the staff is proposing to introduce a procedure to allow for minor exceptions to side setback requirements.  In Exhibit C, Example �A�, the proposed room addition would have to meet the code required five foot setback. However, to rigorously require the addition in Example �B� to be set back five feet would result in a room with a jog in the middle of the wall, which is neither architecturally desirable nor really necessary to protect the privacy, air, light, etc. of the neighboring lot.

Proposed new Code �31-1810.5 (Exhibit A, pg. 15) is intended to provide an informal administrative level procedure whereby minor exceptions to side setbacks can be approved in situations where to require strict adherence to current setback regulations would result in a health or safety problem, a configuration that is not structurally, or architecturally viable or would unnecessarily degrade the aesthetics of the structure or add unreasonably to the cost of a project.  The exception procedure applies only to side setbacks of single-family residences in residential zones.  The procedure requires the Building Official or City Planner to make six findings and specifically prohibits any exceptions that would add to the height or number of stories of the structure, or result in any decrease of the setback or any setback of less than three feet, and also requires the official to consider the aesthetic affects to the structure being worked on and the effect on the light, air, privacy, etc. of adjoining properties.

Technically, the Community Development Director already has the authority to make up to a 10% exception to the standards for yard setbacks (Exhibit A, pg. 8).  This section has not been used a great deal.  The provision as written does not provide the Director or other officials with specifics to consider when making a determination.  More importantly, one of the problems with using a particular numerical deviation allowance (such as 10%) is that when used too frequently, it becomes a default standard.  Used for situations that only occasionally arise, it works tolerably well, but used too frequently (and compared to other non-conformities, substandard side yard setbacks are frequent in Burbank), it becomes the new �design to� standard.  The proposed procedure avoids particular numerical standards, rather it emphasizes that such deviations shall be the minimum practical to accomplish their purpose.

Proposed �31-1810.5 also requires the Building Official to take into account impacts on neighboring properties when authorizing an exception.  The general purpose of the proposed section is to allow side yard encroachments only for specific narrowly defined purposes, and then only to the extent necessary to accomplish that purpose.

Ordinance Effectiveness:

The staff is proposing that this ordinance apply to any project that is submitted for plan check after a particular date.  For some other ordinances the city has used the date of project approval (rather than submission) as the cutoff, but there are at least a small number of potentially affected projects currently in the process (i.e. already submitted), and in which the applicants have invested considerable time and money, which staff does not wish to require be redesigned at this point.  Staff has had over the counter conversations with a small number of developers, architects, etc. about this proposal.  The developers have generally understood, and have no objection to the underlying reasons for the changes to the standards, but have expressed concern about having to redesign projects already submitted.  On the other hand, staff is also proposing the cutoff date be the date the ordinance is adopted by the Council (second reading) rather than the effective date of the ordinance.  This will avoid a rush of submissions during the time (30 days) between adoption and the effective date.

CONCLUSION:

The proposed ordinance would delete the existing provision in the Burbank Municipal Code that allows non-conforming single-family structures to be expanded along the existing setback lines.  This amendment would fundamentally rectify the situation leading to the current problems, that is to say, large scale expansion or rebuilding at substandard setbacks.  However, in order to retain some flexibility, a procedure to allow minimal exceptions to development standards is proposed for situations where rigid conformance would not be practical or desirable.  Exceptions would be allowed only in specific circumstances, and then only to the minimum extent necessary to alleviate specific hardships.

The other significant proposed code changes deal with a situation not heretofore specifically addressed in the code � that is structures destroyed or demolished to less than 50% of replacement value.  A number of property owners have taken advantage of this lack of specificity to completely or virtually completely replace a non-conforming wall or section of a structure with a new non-conforming wall or structure.  It is a fundamental precept of zoning regulation that, over time, non-conforming structures will be brought into conformance as they are replaced, rebuilt or substantially altered.  The proposed code sections differentiate between damage due to natural disaster and planned deliberate demolition.  In situations where a property is partially damaged by an unplanned event, staff finds it is reasonable to allow it to be rebuilt.  Sometimes it is not practical to rebuild a damaged section except to its previous configuration.  For example, if one unit of an apartment building is destroyed, it is usually impractical to do anything except replace the destroyed unit.  However, when the demolition of a non-conforming section of a building is a planned event, staff finds it is not unreasonable to expect the planning for such will take current code restrictions into consideration.

Finally, the staff wishes to emphasize that the amendments proposed herein are not a complete solution to the problem of �mansionization� discussed on page 1 of this report.  The proposed amendments deal only with two narrow areas which are partial demolition and rebuilding, and large scale extensions of single-family residences with non-conforming side yard setbacks.  The proposed amendments do not deal with certain specific problems such as where the whole lot (not just the setback) is non-conforming (e.g. 25 ft. wide lots).  The proposed amendments are intended to fit into the more comprehensive reworking of the development standards for single-family residential areas which has been directed by the Council, and on which the staff is currently working (see Exhibit F) and expects to present to the City Council later this summer.

However, the staff does find the proposed code amendments will help alleviate the situation of large scale expansion, or rebuilding of structures with substandard setbacks, while at the same time retaining the flexibility of allowing minor exceptions where such are desirable from a safety, aesthetic or design point of view and will not unnecessarily impact neighboring properties.

FISCAL IMPACT:

Fiscal impacts from adoption of the recommended zone text amendments are expected to be minor.  Primary enforcement of the proposed regulations will be through the plan check process already in place.  There will be some costs in staff time and effort arising from the procedure for minor exceptions which will require the appropriate official (Building Official or City Planner) to make determinations and findings in these cases.  The procedures for minor exceptions have deliberately been kept informal in the proposed ordinance, partly to reduce the amount of staff time necessary.  It is expected some staff time will be required to investigate and determine the facts of the case, and though most cases will be dealt with in the course of the ordinary plan check procedure, it may be necessary in some cases to issue a letter approving or denying a minor exception.

The proposed amendment provides for appeals from the determination of the Building Official or City Planner to the Planning Board.  Based on a study made for this year�s budget process, the Community Development Department estimates that the average cost of processing an appeal of a planning decision (e.g. development reviews, conditional use permits, etc.) is around $3700 - $3800 per appeal including staff time, overhead, etc.  It is difficult to estimate how many requests for minor exceptions might be received, and how many such determinations might be appealed.  However, the staff finds it unlikely the number would be substantial enough to place an undue burden on existing staff resources.  To the extent the proposed regulations make the intent of the code less ambiguous, it is also possible that the number of cases that now go to variance or appeal hearings may be reduced resulting in some saving of staff time and effort. 

The proposed ordinance will place some minor additional restrictions on what property owners can do with their property.  Staff finds these restrictions reasonable in the context of single-family neighborhoods, and that impacts in other zones will be minimal as the restrictions are rarely applicable there.  Staff notes that property owners building new residences, or (in the majority of cases) substantially rebuilding their houses, already work under many similar restrictions.  The proposed ordinance also contains provisions to try to avoid undue expenses to property owners/developers.  As noted above, the proposed ordinance allows for minor setback exceptions in cases where rigid code compliance will cause unreasonable financial hardship.  The staff is also proposing that any project already submitted for plan check as of the cutoff date be exempted so these projects will not face the expenses of having to be completely redesigned.

CEQA DETERMINATION:

This project has been determined to be categorically exempt from the California

Environmental Quality Act (CEQA) pursuant to Section 15305 (Class 5) of the State CEQA Guidelines, regarding minor alterations to land use limitations (Exhibit E).  The purpose of Class 5 exemptions is to allow minor changes to regulations such as zoning codes if the changes will not result in an increase in land use density or intensity.

PLANNING BOARD RECOMMENDATION: 

The City of Burbank Planning Board conducted a public hearing on proposed Zone Text Amendment 2004-56 at their regular meeting on May 10, 2004 (Exhibit G-1).  Minutes of the Planning Board meeting are attached as Exhibit G-2.  At the hearing the Board questioned the staff about the effect of this ordinance on substandard size lots, including lots in the R-1E zone.  The staff replied that, given the expected time frame to adopt revised single-family development standards, they do not find this will likely be a significant problem.  The staff replied that provisions will be made in the revised single-family development standards that will address these lots.  Should a situation arise in the interim, the applicant could apply for a variance.  At the conclusion of the public hearing, the Planning Board unanimously adopted Resolution No. 2929.5 (Exhibit G-3) recommending the City Council adopt Zone Text Amendment No. 2004-56.

STAFF RECOMMENDATION:

Staff recommends the City Council adopt the proposed ordinance to amend Chapter 31 of the Burbank Municipal Code as described in this report.

List of Exhibits

Exhibit A:         Draft of Proposed Code Amendment

Exhibit B:          Minutes of City Council Meeting March 23, 2004

Exhibit C:         Survey of 20 California Cities Code Provisions for Making Exceptions to Required Setbacks for Additions to

                          Non-conforming Structures

Exhibit D:         Examples of Plans Showing Where Minor Exceptions Rule Might be Applied

Exhibit E:          Public Notice of Environmental Decision

Exhibit F:          Notice of Community Meeting: Changes to Single Family Home Setbacks, Size and Height

Exhibit G-1:      Public Notice of Planning Board Public Hearing on May 10, 2005

Exhibit G-2:      Minutes of City of Burbank Planning Board Meeting, May 10, 2004

Exhibit G-3:      City of Burbank Planning Board Resolution No. 2929.5, May 10, 2004           

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