�         August 2003 � The applicant submitted plans for plan check review to construct an addition to and remodel of an existing single family home.  The plans identified several portions of the existing home that were to remain, including some of the westerly and easterly walls which were currently at a 3� (plans indicate 2�11� but applicant states survey shows 3�) and 3�6� setback from the side property lines, respectively.  The additions proposed continued the substandard side yard setbacks and included a second story, also at the substandard setback.  These plans were originally approved in accordance with �31-1208(b)(2) which states that �where a developed lot has a substandard side yard that was lawful when created, such side yard may be maintained along the entire depth of said lot as long as the structure which created the substandard side yard remains, provided further, however, that subject to the approval of the Building Director, a second story may be added to a single family dwelling having a three foot side yard if such structure was constructed prior to November 27, 1967.�

�         October 2003 � Plans were approved by the Planning and Building divisions.

  �         November 2003 � Demolition began.  The applicant�s engineer states that his inspection of the house on the first week of November revealed that the existing foundations had several cracks and that they are not safe for further use.  No request for approval of amended plans was submitted.  The applicant further states that the walls and foundation were removed prior to November 25 and 26 inspections.

  �         November 3, 2004 � The column pads were approved.

  �         November 25 & 26, 2003 � Foundation and layout approved with inspector recollecting heavy dry rot and/or termite damage on wood framing and structural cracks on existing foundation.  The applicant (his contractor) continued with demolition and new construction without approved plans for removing the existing foundation.

  �         January 6 and 7, 2004 � Inspector drove by and noticed substantial progress without inspections and stopped work.  Inspector crawled part of underfloor area and noted many problems and therefore left corrections sheet for contractor to begin correcting.  At this point, removal of all foundations was not discovered; some work was in the process of being covered up with additional construction which is why such a long correction sheet was given.  It is a policy of the Building Division to allow work to continue as long as the builder knows they need to make the corrections.  Most builders request this option so they can continue with work that does not need corrections at the same time they are making corrections.

  �         January 12, 2004 � Follow-up inspection noted need for plan change on structural elements on first floor.

  �         January 16, 2004 � Additional corrections given and it was at this point that the inspector noted that they need to revise plans as new work is indicated as existing work on the approved plans.  A request for amendment was submitted to the Building Division.  Plans did not show distance to the side property lines, but continued to note existing foundations remaining. (Exhibit A-3)  Contractor continued with second floor framing subject to compliance with all corrections.

  �         January 26, 2004 � Second floor nailing approved; other corrections still pending.

  �         February 10 & 11, 2004 � After a complaint was received regarding the size of the garage, the Building Inspector thoroughly crawled the underfloor and placed a stop work order on the property as the project was not in accordance with approved plans.  Because of the removal of the walls and foundations, the project was no longer a remodel and instead was new construction which is required to conform to code (i.e. a five foot setback and proper garage dimensions).  At this time, the applicant was informed of his options including requesting a variance from the Planning Board. (Exhibit A-4)

  �         May 10, 2004 � Planning Board heard the matter and denied the application request.

  �         May 12, 2004 � The applicant submitted an appeal form and paid the required fee.

Project Description: The applicant, Gevorg Piramzyan, is requesting a variance to allow construction to continue on the partially constructed (framing near complete) single family home which would have a 3� setback on the westerly side and a 3�6� side yard setback on the easterly side rather than the five feet required by code.  The applicant is also requesting that construction continue on the garage and that this garage satisfy the requirements for a two car garage although it is substandard in width by two feet (the garage is 19� x 17� rather than 19� x 19� in the interior). (Exhibits B-1 and B-2)  It is important to note that there are two existing walls on the property on the side yards.  The purpose of these walls is to separate the properties from one another, as is typical for a single family neighborhood in Burbank.  However, both of these walls are on the subject property; rather than perfectly straddling the property line as is typically the case.  Specifically, according to the applicant and survey lines that were tied, the wall on the easterly side rests completely within the subject project thereby making the setback appear to be three feet rather than 3�6.�  For the westerly side, the wall is partially on the property line, but more of the 6� block wall is on the subject property, again making the reduced setback appear worse than it actually is.  In addition, the framing that is near complete includes eaves which have a very large overhang.  This overhang exists simply because construction was halted before the overhang could be trimmed.

Since the Planning Board hearing, the applicant has offered a compromise to the setback variance request.  The applicant is willing to setback most of the second story to a five foot setback if the City Council will approve the reduced setback for the ground floor.  The applicant continues to request a reduced setback for the second story for a 17 foot long portion of the westerly side near the front of the house.  Although this area is as tall as the second story, there is no floor area and no window as the area is open to the first floor below.  The applicant states that the metal framing exists in this 17 foot long area on the westerly side and that is why he requests that this area be maintained at a 3� setback, but the remaining portion of the second story would be setback to five feet as required by code.  The analysis section below discusses both the original request by the applicant and this modified request.

Municipal Code Conformance:  Other than the side yard setback and garage dimensions, the partially constructed and proposed project conforms with the Burbank Municipal Code.

Public Correspondence: Staff has received six phone calls, two letters and three e-mails from nearby neighbors living on Magnolia and Sunset Canyon. (Exhibit C)  All of these calls and letters were in opposition to the proposed project.  They do not want the City to approve the substandard side yard setback because they feel the houses on the block are already too close to other houses.  The other reason that most callers stated is that they do not want to set a precedent that would allow others, not so well intentioned, who may do this on purpose.  Only two people who contacted staff on the matter were opposed to the smaller garage.  Most residents wanted to remain anonymous so as not to cause friction within the neighborhood.  Most also stated that the applicant was a very nice man and therefore they did not want to appear in person.  The applicant also submitted a petition signed by 16 people, some of whom live in the neighborhood.  When the applicant circulated the petition, he attached a letter describing his situation. (Exhibit B-1)  At the Planning Board public hearing, four members of the public spoke, two were opposed and two were in support.  One of the speakers in opposition was the son of the neighbor to the east.

ANALYSIS:

Surrounding Neighborhood: The subject property is located in the R-1 Single Family Residential zone.  Abutting and adjacent properties to the north, south, east, and west of the subject property are zoned R-1 Single Family Residential and farther in the easterly direction are the Verdugo Mountains which is zoned for open space. (Exhibit A-1)

The surrounding neighborhood is comprised of single-family homes, both one and two story.  The dimensions of the lots are mostly 50 feet by 155 feet.  The subject property is also of rectangular shape and with the same dimensions.  Most homes in the area appear to consist of original construction with additions.  Many have three foot side yard setbacks (about half).  However, many homes also have detached garages and therefore have an approximately 10 foot side yard setback on one side for the driveway.  There are also two newly constructed homes on the block that have five foot setbacks in accordance with current code.

Project Characteristics:  The approval of a variance appeal is contingent upon the ability of the City Council to meet required findings.  These findings generally relate to the unique nature of the property for which the variance is requested and the determination that granting of a variance will not result in a detrimental impact on the surrounding neighborhood.

One purpose of the side yard setback is to provide a comfortable setback from neighboring properties and improvements which would allow sufficient light and air to circulate in both homes.  With the five foot setback for both properties, that would create 10 feet between homes.  However, most properties put fences or walls at the property line and therefore the setback is simply the five feet from the property line.  A five foot setback requirement was not always the code requirement; previously, houses were built with only a three foot setback.  This was consistent with the Building code requirement of a three foot minimum setback.  Therefore, in many of the neighborhoods in Burbank, you will find houses with only six feet separation from the neighboring houses which is three feet setback from the property line (or wall).  However, the vast majority of existing homes with three foot setbacks are also one story in height.  About half of the homes on this block of Magnolia, however, appear to have code required setbacks of five feet even though they also appear to be original construction with a remodel and addition.  The compromise offered by the applicant to setback all but 17 feet of the second story to a five foot setback would be more consistent with the two story homes in the area.

Many garages are substandard by two or more feet in both width and depth, yet can still accommodate many vehicles made today.  The exact dimensions of the garages in the nearby neighborhood is unknown; however, it is reasonable to assume that houses consisting of the original garages are of substandard width and possibly depth.

The project has an attractive design, however, this is new construction and the design would not have to be compromised to comply with code requirements for setbacks and garage width.

Department Comments:

The subject application was routed to City departments and divisions for review and comment.  Most departments did not have comments related to the variance request.  The Traffic Engineering Section of Public Works, however, did note that steps from the service porch into the garage encroach into the required parking space dimensions and therefore further reduce the size of the garage.  Specifically, the steps encroach approximately two feet into the width and three feet into the depth of the southerly parking space.  The applicant states that this problem has already been corrected and will be corrected to the satisfaction of the Traffic Engineer. (Exhibit D)

Environmental Status: The application is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15305 and 15303 of the State CEQA Guidelines regarding minor setback variances and new small scale construction. (Exhibit E)

CONCLUSION:

The approval of the appeal and variance by the City Council would allow the applicant to continue construction of the single family residence with substandard side yard setbacks and substandard width for the two car garage.  The City Council may approve one or both of these requests or may deny both requests.

REQUIREMENTS FOR GRANTING OF A VARIANCE:

It is staff's assessment that the four findings required by Burbank Municipal Code �31-1917 for approval of the variance permit cannot be made for either requests.  However, if Council wishes to approve the appeal and reverse the decision of the Planning Board, possible conditions of approval have been attached to this report. (Exhibit F)

            (1)                There are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that do not apply generally to other property or classes of use in the same vicinity and zone.

Other structures might not have the type and quantity of deterioration that the subject property had which forced them to demolish the entire structure.  However, if other property owners were to demolish their structures, they would be required to construct in accordance with current code (both for the side yard setbacks and the garage).  The size and shape of the property are the same or similar to properties in the vicinity and are not unique.

           (2)                The variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, possessed by other property owners under like conditions in the same vicinity and zone but which is denied to the property in question.

Others who may demolish their entire structure would also be forced to comply with current codes.  The applicant attempted a remodel with the substandard side yard setback and reduced garage; however, he was unable to accomplish this.  This is the same right that all property owners are permitted.  However, due to the age of this structure and the deteriorated condition, this owner was not able to take advantage of this code provision.

Other property owners are also able to maintain their substandard garage.  However, when they do demolish, they are required to meet current codes.

          (3)                The granting of the variance will not be materially detrimental to the public welfare or injurious to property or improvements in the vicinity and zone in which the property is located.

As many structures in the neighborhood have substandard side yard setbacks and substandard garages, this project would not be out of character for the neighborhood.  However, setbacks are designed to allow for appropriate light and air into the structures and this reduction, especially with two stories, will have an impact on how this and abutting properties achieve these goals.  It is for this reason that staff is considering a change to code which was considered by the City Council on June 15.  Deficiencies in our current code have been recognized and projects that begin as a remodel and addition can result in a large impact on light and air for at least the two abutting properties.  The compromise offered by the appellant that will require all but 17 feet of the second story to have a five foot setback reduces the impact to the abutting properties.

The garage being of substandard width may make it difficult for the applicant to park two vehicles in the garage which would result in more on street parking in the neighborhood.  However, many residents with existing substandard garages are in the same situation and therefore the reduced garage size would not create an additional impact on the neighborhood.

            (4)                The granting of the variance will not be contrary to the objectives of the General Plan.

The granting of the subject variance is not contrary to any objectives of the General Plan.  It is not contrary to the Land Use Objective of preserving the existing quality of residential areas.

PLANNING BOARD ACTION:

The Planning Board, at their regular meeting of May 10, 2004, voted 5-0 to deny the variance application. (Exhibit G)  The Board based this decision on their inability to meet the required findings. (Exhibit H)  Specifically, they stated that there is no unique situation or property configuration to warrant a variance and that financial hardship in not a reason for granting the variance.  One Board Member, however, did express reservations as he did not believe that increasing the setback by two feet to the current code requirement would make much of a difference for neighboring properties.

RECOMMENDATION:

Staff recommends that the City Council uphold the Planning Board decision and deny the appeal of Project Number 2004-34, a variance.

LIST OF EXHIBITS:

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

Exhibit A-2       Copy of notice mailed to residents and owners within 1000� radius

Exhibit A-3       Copies of corrections sheets from January 7, January 12 and January 16, 2004

Exhibit A-4       Copy of inspection record

Exhibit B-1       Project applications, photos, letters and appeal form submitted by the applicant

Exhibit B-2       Project plans and color photos (attached separately)

Exhibit C          Letters and e-mail from residents

Exhibit D          Public Works comments

Exhibit E           Public Notice of Environmental Decision posted April 12, 2004

Exhibit F           Draft Conditions of Approval

Exhibit G          Planning Board Resolution #2928 dated May 10, 2004

Exhibit H          Planning Board minutes of May 10, 2004

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