• 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 9, 2003 � Demolition permits were issued to demolish 600 sf of the existing 1,400 sf residence (less than 50% as required by the Burbank Municipal Code Section 31-1810) and an existing, detached accessory structure.  Demolition began.

• October 24, 2003 � Plans were approved by the Planning and Building Divisions and a permit was issued  for a �2-story addition to an existing attached single-family dwelling.�  This description of work as an addition is accurately reflected on the building permit.

• November 3, 2004 � The first inspection was scheduled by the applicant, and the column pad footings were inspected and approved by the Building Division�s inspector.  In November, the applicant�s engineer states in a letter 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.

• November 25 & 26, 2003 � The foundation trenches and building location were inspected and approved by the Building Division.  Because of staff vacations, the trench and building location inspections were performed by different inspectors.  Despite the fact that the applicant has stated that the walls and foundation was removed prior to the November 25^th and 26^th inspections, both Building Division inspectors recall dry rot and/or termite damage on wood framing and structural cracks in the existing foundation during their November 25^th and 26^th inspections.  One of the inspectors also recalls speaking with the engineer -of-record about the condition of the existing structure at that time.   However, while the engineer-of-record maintains that the existing footings had been removed by this date, the existing footings were still in place because the inspectors could not have identified the existing condition of the footings and framing had the footings and framing not been present.  The presence of the existing footings and framing at that time is substantiated by the project engineer�s letter dated May 26, 2003, which states that he had also conducted an on-site inspection on November 26, 2003 at the request of the owner.  The letter states, �I find that existing foundations are not safe and not suitable for further use.  Please revise existing plans and obtain approvals from City of Burbank for new foundations.�   The applicant failed to revise the plans or obtain approvals prior to continuing demolition and construction.  The applicant (his licensed contractor) then continued with demolition beyond the scope of the approved plans which required that a portion of the existing structure remain, and without submission or approval of revised plans for removing the remainder of the existing foundation and wall framing.  New construction also continued without scheduling the other required inspections specifically listed, in the order required, on the job site inspection card.

• January 6 �The Building Division inspector, during the course of his daily inspection duties,  drove by the site at 1062 E. Magnolia and noticed that substantial progress had occurred in the construction without the required inspections having been scheduled.  The inspector then issued a Notice to Stop Work (RED TAG).

• January 7, 2004 � The inspector met with the owner and contractor in the Building Division office.  A Notice of Inspection was written, at the office counter, outlining the conditions under which an inspection would be conducted for the underfloor area that had been covered prior to the required inspections.  Although work had proceeded without inspections and work had been covered prior to inspection in violation of Section 108 of the Building Code, these conditions were in lieu of any requirement that the wall framing and floor sheathing be removed, therefore providing the applicant with the benefit of the doubt that work had been completed according to the approved plans. The Building Division will allow work to continue providing the owner and contractor are aware of, and agree to, make all the corrections, and agree to continue at their own risk until the corrections are completed.  Most contractors request this option so they can continue with the work at the same time that they are making corrections.  The foundation, however, was not a part of these conditions or corrections because they had been inspected, and approved, previously and when an item has been inspected and signed-off during a previous inspection it is normally not re-inspected.  In this case, then, the foundations were considered to be approved per plan and not re-inspected, and were not included on the corrections list.   It is always assumed, unless otherwise obvious, that no changes have been made to approved work after an inspection has been completed.  At this point, the inspector had no reason to believe that anything had occurred other than framing continuing without proper inspections. 

• January 12, 2004 � The first, partial underfloor inspection was conducted after the stop work order of January 6, 2004.  Once basic deficiencies were observed, the inspection was terminated and a Notice of Inspection written itemizing the required corrections.  One item on the Notice of Inspection stated �Need approved plan for first floor framing.�   This correction was required due to deviations in the framing from the approved framing plans.  Again, this correction would not include a re-inspection of the perimeter foundation because the job card had been signed off for the foundation inspection and deviations to the framing layout would not affect those perimeter footings.  The rough plumbing was partially complete and failed under test.  The applicant did not submit revised drawings in response to the January 12th corrections. 

• January 16, 2004 � The second, partial underfloor inspection was conducted.  Again, once deficiencies were observed, the inspection was terminated and another Notice of Inspection was written, again itemizing the required corrections.  One item on the second Notice of Inspection stated, �Have foundation plan revised and approved for new work indicated as existing.�  This correction again referred to the deviations from the approved plans for the under-floor framing and foundation supports previously included  in the January 12, 2004 Notice of Inspection.  It did not include a re-inspection of, or corrections to, the perimeter foundation, but only to that portion of the construction which required inspection, in this case, the underfloor framing.  To date, the entire underfloor of the residence has not been completely inspected.

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

• February 2, 2004 � Revised floor framing plans were submitted for review and approval.  However, despite the fact that all existing perimeter footings, framing and garage slab and footings had been removed by that time, the plans continued to show existing footings, framing and garage slab and footings.  The revised underfloor framing plans were approved based on information on the drawings that existing perimeter footings were still in place.  There had still been no re-inspection of the perimeter footings and, the focus of the revision remained on the floor framing.   To date, accurate plans indicating the actual reconstruction of all footings and walls have not been submitted by the applicant.

• February 10, 2004 � A complaint was received and investigated concerning the size of the attached garage. During the investigation of that complaint, which included a review of the garage foundation for size and location, the inspector observed that the garage slab and footing was entirely new.  Because of the re-inspection required to complete the follow-up on the complaint, and because of the deviation from the approved plans that had been identified due to the re-inspection process initiated by the complaint, a Notice to Stop Work (RED TAG) was placed on the property for non-compliance with the approved plans.  However, at this point, only the portion of the structure related to the complaint was re-inspected.  Typically, once a complaint such as this has been substantiated, a review of the complete set of approved plans is scheduled to verify compliance for the entire project.

• February 11, 2004 � After meeting with the owner, another inspection was conducted and, at this time, the entire perimeter foundation was re-inspected.  The inspector observed that the entire foundation system was new.  Because of the removal of the foundations, the project was no longer a remodel and instead was considered to be new construction, which is required to conform to Municipal Code requirements (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.

• June 22, 2004 � City Council heard the matter and denied the appeal.

• July 13, 2004 � City Council discussed the issue and voted to reconsider the appeal.

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.  Since the Council�s denial of the appeal in June, the applicant removed his request for a variance for the garage.  Instead, the applicant is proposing to reduce the size of the garage in the front of the house to 9�6� x 19� for a one car garage and add another one car garage to the rear of the property that would be accessed off the alley. (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 pulled, 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.

As discussed at the previous Council hearing on this matter, the applicant offered a compromise to the setback variance request.  The applicant stated his willingness 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 rest of 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 a steel moment frame for seismic bracing 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.  The remaining portion of the second story would be setback to five feet as required by code.  In addition, the applicant further states that he will remove any doors and other structures that may encroach on the side yards within the reduced setbacks of the ground floor.

Municipal Code Conformance:  Other than the side yard setback, the partially constructed and proposed project conforms with the Burbank Municipal Code.  It is important to note that during construction of a project, many inspections of the work are required.  During the public hearings for this project, staff and the applicant made certain assertions as to when those inspections did and did not occur.  In a letter dated June 25, the applicant�s representative, Janelle Williams, makes statements that the proper inspections were called for and conducted. (Exhibit B-2)  As this is an issue that was important to both the Planning Board and City Council, below is a summary of the inspections that were required and a point by point response to the applicant�s claims.

Normal Building Inspection Procedure

Inspectors

City Building Inspector � Certified building inspector employed by the City to conduct inspections of permitted construction as required by the California Building Code.

Deputy Inspectors � Certified special inspectors that observe and conduct special inspections as required by the California Building Code.  Deputy inspectors augment but do not take the place of the City building inspectors.  Deputy inspectors verify a limited number of code specified requirements, such as concrete strength, during periods when the City inspector cannot be present.

Structural observation � The architect or engineer responsible for the structural design shall perform structural observations to verify general conformance with the approved plans and specifications.  Structural observation augments but does not take the place of the City building inspectors.

Inspections

When a permit is issued, a job card is also issued. (Exhibit B-2)  The job card lists all required inspections in the order they are required, with a specific note stating �Call for inspection in the order listed below.�  For example, once the location of the structure and the foundation trenches are signed off, the applicant may proceed with floor framing and underfloor insulation, as stated on the card.  However, the instruction preceding the next group of required inspections states �Do not sheath floor until above (floor framing and underfloor insulation) is signed.�  The card is specific and the instructions are clearly stated.  Below is the order of normal inspections required on a residential project.

Building location / setback

Foundation � �Do not pour until above signed�

Floor framing

Underfloor plumbing

Underfloor electrical

Underfloor insulation � �Do not sheath until above signed� � All the underfloor   construction has to be inspected and approved prior the installation of the floor sheathing.

Floor sheathing

Applicant�s Claims

Again, these were stated in a letter from the applicant�s representative on June 25, 2004.

Additional foundations that were poured were not inspected

The applicant states it was all poured on December 2 and signed off, that there was no additional pour.  The City of Burbank was not at the site between November 26 and January 6 and therefore did not sign off on any foundations poured during that time period.  Staff believes the applicant is referring to the Deputy Inspector who observes the concrete quality and placement and/or Structural observation; neither of which take the place of the City Building Inspector�s inspection of the pour as consistent with the approved plans and overall building codes.  Again, the deputy inspection does not replace the City�s inspection, but allows verification of the required strength and proper placement of concrete that is used during the concrete pour when the building inspector cannot be present.

Under-floor framing was not inspected or approved

The applicant refers to inspections being called for at the end of the day.  The underfloor framing was covered with the floor sheathing and the first floor walls were erected and no inspection had been requested or performed for the underfloor framing.  Underfloor framing is inspected prior to the installation of the floor sheathing so that it can be inspected from above.

Plumbing was not inspected or approved

The applicant states that plumbing work was inspected/pressure tested by the inspector on January 6 and a plumbing permit was obtained on the 7^th.  To clarify, work cannot be inspected before a permit is issued.  When the inspector noticed work had continued without inspection, the project was red tagged and part of the red tag stated that permits had to be pulled for the work, like a plumbing permit.  The next day, the applicant pulled the permit.  The plumbing work was not inspected or approved in the proper order.  First the applicant obtains the permit, then does the work, then calls for inspection, this did not happen.  The first post plumbing permit issuance inspection was requested for and conducted on January 12, 2004.  The underfloor plumbing work was incomplete and failed under test. Underfloor plumbing is inspected prior to the installation of the floor sheathing.

Electrical was not inspected or approved

The applicant claims that no electrical work has been done so there is nothing to inspect.  Underfloor electrical has to be installed and inspected prior to the installation of the floor sheathing. Underfloor electrical is inspected prior to the installation of the floor sheathing in order for it to be inspected from above.  Thus, this construction project did not follow the normal course of calling for inspections.

Under-floor insulation was not inspected or approved

The applicant claims there is no under-floor insulation and that it has not been installed yet.  Underfloor insulation is required prior to installation of the floor sheathing.  It is inspected prior to the installation of the floor sheathing so that it can be inspected from above.  Therefore, inspections were not called for at the proper time.

First floor sheathing was not inspected or approved

The applicant claims that first floor sheathing was left open in several places for inspection, which was to be checked by the inspector at the end of the day along with the under-floor framing.  In point of fact, the floor sheathing was complete and the boundaries were covered by the walls for the first floor when the construction was stopped on January 6, 2004.  The boundary nailing has to be inspected prior to the erection of walls; the floor is a diaphragm and a component of the overall seismic design.

Other Code Conformance

The following table summarizes how the project is proposed to be consistent with various development standards:

Public Correspondence: Staff has received many phone calls, letters and e-mails from nearby neighbors. (Exhibit C-1)  Most of these were from people who are in opposition to the proposed project.  They stated 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 people 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.  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, in support of the project.  When the applicant circulated the petition, he attached a letter describing his situation. (Exhibit B-1)  However, one neighbor who signed the letter, the next door neighbor to the south, indicated later by telephone and by e-mail that he was not in support of the project and made a mistake by signing the petition.

At the Planning Board public hearing, three members of the public spoke, two were opposed and one was in support. (Exhibit H)  One of the speakers in opposition was the son of the neighbor to the east.  At the first City Council public hearing, eight members of the public spoke. (Exhibit J)  The son of the neighbor to the east spoke in opposition and seven members spoke in support of the request.

Since the Council meeting, staff has received a letter from the neighbor to the east stating he is now in support of the project. (Exhibit C-2)  He is pleased with the concessions that the applicant has made and believes it is in the best interest of the City and the neighborhood to have the development completed.  Staff also received e-mails from the property owner and tenant to the west. (Exhibit C-2)  Their comments are not in support of the proposed project and urge the Council to deny the project.  In addition, staff has received three e-mails requesting denial of the appeal. (Exhibit C-2)

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 code.

Based on years of experience in the field, City staff has found that many of the older houses were built without the proper quality control of the concrete.  That meant that some houses were built soundly and some may have had the improper mix of cement to water.  Therefore, many homes have been able to add a second story with only reinforcing the existing foundations.  That does mean, however, that some homes have had to support the second story independent of the first floor footings or remove the existing footings completely.

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.

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 of the State CEQA Guidelines regarding minor setback variances. (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 on the first floor and a 17� portion of the second floor.

REQUIREMENTS FOR GRANTING OF A VARIANCE:

It is staff's assessment that two of the four findings required by Burbank Municipal Code �31-1917 for approval of the variance permit can be made.  However staff has difficulty making the other two findings.  However, if Council is able to make all four findings and 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.  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; 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.

(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, 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 approved 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.  It is important to note that the 17 foot encroachment of the second story is set back approximately 45 feet from the front property line.  Therefore, because of this particular design, the neighbor to the west is actually able to maintain the light and air that reaches both their front and side windows.  For example, if this property were to construct to the 25 foot front yard setback permitted with a five foot side yard setback on both the first and second floors, this would have more impact on the adjacent neighbors access to light and air than the way the building is currently designed.

Having two one car garages accessed from different sides of the property is an unusual situation, but is not expected to cause an impact on adjacent properties.

(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.

PREVIOUS CITY COUNCIL ACTION:

On June 22, 2004, the City Council voted 4-0 to deny the appeal and uphold the Planning Board�s decision to deny the variance application. (Exhibit I)  The Council based this decision on their inability to meet the required findings. (Exhibit J)  Specifically, the Council stated that the applicant left portions of the existing building to take advantage of the setback rules and therefore if that was removed, so was the right to a non-conforming setback.  Council was concerned with the lapse in time without inspections while construction continued and did not want to set a precedent.  Council did, however, commend the applicant on his willingness to have further setbacks on the second floor.

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 plan and additional materials received by the applicant after the June 22, 2004 Council meeting

Exhibit C-1       Letters and e-mails from residents received prior to June 22, 2004 hearing

Exhibit C-2       Letters and e-mails from residents received after June 22, 2004 hearing

Exhibit D          Public Works comments

Exhibit E           Public Notice of Environmental Decision posted July 20, 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

Exhibit I            City Council Resolution #26,734 dated June 22, 2004

Exhibit J           City Council draft minutes of June 22, 2004

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