PURPOSE:

To consider three appeals of the August 9, 2004 decision by the Planning Board to conditionally approve Project No. 2004-42 (Conditional Use Permit) to enlarge a building pad in the hillside area and for an accessory structure in the R-1 zone.  The applicant, Dr. Raffi Margossian, is appealing inclusion by the Planning Board of a condition requiring a traffic safety study and construction of a guardrail on the private driveway accessing the property (Exhibit F-4, Condition 4).  Mr. Lyle Hall, owner of 722 Wilson Court which abuts the private driveway (see Exhibit C-1) appealed the same condition requesting it be made more specific regarding future Planning Board actions. Mr. Garnik Mnatsakanyan, owner of the property at 1203 E. Elmwood, across the driveway, is appealing the Planning Board�s approval of a 396 s.f. accessory structure located on the applicant�s lot, but close to the building site on his own lot.

BACKGROUND:

The original application was submitted by Dr. Margossian on March 3, 2004 for a conditional use permit to allow grading to enlarge the existing building pad on the subject hillside property by from 7,226 s.f. to 10,100 s.f. (2,874 s.f.).  The applicant intends to build a 7,290 s.f. residence on the expanded pad.

The applicant also requested approval for a 396 s.f. detached accessory structure with a � bath about 120 ft. west of the main building pad.  The applicant states he intends to use the accessory structure as an office and exercise room. 

The Planning Board hearing on this project was held July 12, 2004 (Exhibit F-2), and continued to August 9, 2004 (Exhibit F-3) to allow staff time to research answers to several questions posed by the Board in response to testimony by neighboring property owners regarding the history of this property and previous development approvals.

Location: 

The subject property is at 1209 E. Elmwood Ave.  It is Lot 3 of Parcel Map 25082 (PM 289, pgs. 76-80, Exhibit C-1) recorded September 13, 1999.  The property does not front directly on Elmwood Ave. but is accessed via a private gated driveway which also serves the three other lots created by Parcel Map 25082.

Zoning:

The subject property is zoned Single-family Residential (R-1).  Adjacent properties to the north and west are also zoned R-1.  Adjacent properties to the east are in the Open Space (OS) zone (see Exhibit A-1).

General Plan Designation: 

The Burbank General Plan: Land Use Element designates the lower (southern) part of this property for Low Density Single-family Residential development, and the upper (northern) part as Mountain Reserve.

Property Dimensions:

The property is irregularly shaped and  299,310 s.f. (6.87 acres) in area, but most of it is steeply sloped.  The upper (northeast) approximately 5.3 acres is subject to an open space easement and agreement not to build (Exhibit H-7) leaving the lower approximately 1.5 acres developable.  The existing 7,226 s.f. building pad area is at the far southeast corner of the property immediately adjacent to 1207 E. Elmwood (Lot 2 of the Parcel Map).

Street Classification:

E. Elmwood Ave. the nearest public street providing access to this property, is classified as a �local street� with a 36 ft. wide roadway in a 60 ft. wide right-of-way, but the subject property does not front directly on the street.  This property and the three other lots created by Parcel Map 25082 are accessed via a 900 ft. long, 20 ft. wide, private gated driveway which intersects the west side of E. Elmwood Ave. just above (north of) the intersection of Sherlock Drive.

Current and Past Development of the Site: 

The subject lot does not currently have any structures on it, but it is developed with a private driveway (described above) for access, and is served with city water.  The adjacent lot immediately to the south (Lot 2 of the Parcel Map) is developed with a 5,900 s.f. house built in 2001.  In 2003, the owners of Lot 2 received a conditional use permit (CUP No. 2002-18, Exhibit J-1) permitting grading and filling to expand their building pad from 12,600 s.f. to 14,600 s.f. and building a retaining wall along the east side of their pad.  The subject lot has a 7,226 s.f. building pad at its extreme southeast corner adjacent to Lot 2, and another small (1,827 s.f.) flat area about 120 ft. west of the main building pad next to the cul-de-sac of the private driveway.  Lot 4 on the other side of the access driveway is undeveloped, but has a building pad off the cul-de-sac just opposite the location proposed for the accessory structure.

Project Description:

The applicant has applied for a conditional use permit to allow grading to expand the main building pad by 2,874 s.f. to 10,100 s.f. (Exhibit B-3)  The grading will include:

1. Approximately 550 cubic yards cut from the upslope north of the existing pad,   and construction of an 18 ft. high retaining wall north side the enlarged pad;

2.  Filling approximately 325 cubic yards on the downslope east of the pad, and     building a 10 ft. high retaining wall.  The fill and retaining wall will project           approximately as far and be slightly lower (10 ft. vs. 12 ft.) than the existing       retaining wall on the adjacent property at 1207 E. Elmwood.

3.  Removal and re-compaction of 775 cubic yards of soil on the existing pad for    engineering purposes, and building a four ft. high retaining wall on the south         edge of the pad next to the property line. No change to the elevation of the pad is         proposed.  The grading plan anticipates that about 135 cubic yards        of fill will be      disposed of off-site. 

The applicant intends to build a 7,290 s.f. (excluding patios, decks, loggias, and garages) two-story house, 22 ft. high to the ceiling plate, and 33 ft. to the roofline, with an attached 800 s.f. four-car garage.  The applicant submitted site plans (Exhibit B-2) that show the expanded pad can accommodate all requirements that go with the house such as off-street parking and setbacks from the streets and slopes.  The interior arrangement shown on the floor plans (Exhibit B-6) is conceptual, and may not represent the final configuration, but the exterior building envelope will be substantially as shown on the site plans.

The applicant also desires to build a 396 s.f. 14 ft. high accessory structure approximately 120 ft. west of the main dwelling next to the cul-de-sac turn-around area.  This location is a flat area of about 1800 s.f. created when a small arroyo was filled to extend the private access driveway.  This area is not proposed to be further graded or expanded.  Access from the main house is by driving or walking along (or alongside) the private driveway.  The accessory structure, intended for use as an exercise room and office, will be 18 ft. x 22 ft. (396 s.f.) and 14 ft. high to the roof ridge.  The applicant is requesting approval of a ��� bath (with shower) in the accessory structure.  The plans for the accessory structure show a single room except for the bathroom (Exhibit B-5).

ANALYSIS:

Zoning Code Conformance:[1]

Hillside Development Standards:

Under BMC �31-677 no permit may be issued for grading of a property in the Mountain Fire Zone (formerly Fire District No. 4) with an average slope greater than 20%, without a CUP.  Approval for grading the existing building pads came with the Parcel Map.  BMC �31-675(a) exempts parcels developed under BMC Ch. 27 �Subdivisions� from needing a CUP, but the subject project requires a CUP because new grading is proposed.

Lot Coverage and Density (Floor Area Ratio:)

Under BMC �31-614(i), the maximum allowed floor area ratio (F.A.R.) in the hillside area is the lesser of 0.6 times the lot area or 1.2 times the building pad area.  This lot totals 6.87 acres, and even excluding the area under the no-build agreement is still approximately 1.5 acres (65,340 s.f.).  This means that the area of the building pad is the limiting factor in determining allowable F.A.R. (see table).

Allowable Floor Area Computation

The proposed main dwelling has a floor area of 7,290 s.f. for purposes of computing F.A.R. (note that BMC �31-614(g) excludes one of the garage parking spaces from the F.A.R. calculation).  The proposed accessory structure is 396 s.f. for a total proposed floor area of 7,686 s.f.  As can be seen from the table above, CUP would not be required to build the main house on this site if it was constructed entirely on the existing pad, and no cut or fill was proposed.  Note that only the area of the main building pad was used in calculating allowable floor area.  It appears from the grading plan submitted for the Parcel Map (Exhibit H-3), that the area where the accessory structure is proposed, while level, was not included as part of the designated building pad area.

When CUP 2002-18 for Lot 2 was approved, a condition was included limiting the total floor area allowed on the lot to the floor area that would have been allowed prior to the pad expansion (Exhibit J-1).  As pointed out above, the proposed house could be built on the subject lot without a CUP.  The purpose of the grading is to allow room for amenities such as a swimming pool, lawn, landscaping and parking area rather than a larger house.  The staff is recommending a similar condition of approval for this CUP.

Setbacks:   

 The lot line separating the subject lot from adjoining Lot 4 across the access driveway is also the centerline of the 20 ft. wide easement for driveway.  The site plan shows the house set back 20 ft. from the centerline, however, it also appears to show that the access driveway lies partially outside the easement, and on the applicant�s property, and shows the house set back only five ft. from the edge of the actual paved area of the driveway. 

The Zoning Code does not require a setback from a private driveway.  Front setbacks are normally measured from the �front lot line� which BMC �31-203 defines as the �lot line separating the lot from the street�, but �31-203 also gives the Community Development Director authority to designate a front lot line.  In this case, there is no �street� narrowly defined, but most private driveways serve only one lot.  This driveway serves four lots, thus, even though it is technically a private driveway, in practice it serves like a street.  Because of this, the staff finds that there should be some setback from the driveway.  The normally required front setback in the R-1 zone is 25 feet, but many houses in the hillside area have smaller setbacks.  The BMC Yard and Open Space Standards (�31-1208(a)(3)) allow the Community Development Director to approve a reduced front setback in hillside areas where topographic conditions would result in a practical hardship.

In addition, BMC �31-1208 (a)(1) allows that:

�Where lots comprising fifty-one (51) percent or more of the block frontage are developed with a front yard less than that prescribed in Article 6 the average depth of such developed frontage shall establish the front yard requirement for the remaining lots on the block�. 

This section, narrowly interpreted, does not apply here, since only one lot (No. 1207) on this �block� has a substandard setback; the house at 1205 E. Elmwood being setback about 27 ft. from the driveway at its closest point.  However, staff finds that the intent of this section can offer guidance to establishing an appropriate setback in this case.  The intent is to ensure some regularity of setbacks, so that no house on a given block is prominently closer to the street than all of the others.  Therefore, the staff proposed that the house should be set back the same distance at the closest point to the driveway, as the house next door at 1207 E. Elmwood which is set back 12� ft. from the edge of the paved roadway.

At the Planning Board hearing, the applicants objected saying this would either require a complete redesign of the house, or greatly increase the volume of the proposed grading cut and increase expense.  The Planning Board granted the applicant a compromise setback at 10 ft. (Exhibit F-4, Condition 7).  The Planning Staff is able to support this requirement as substantially advancing the purpose of the setback requirement.  As can be seen from the site plan (Exhibit B-2), the road curves away from the house at the north end, and, although only 10 ft. at the closest point, the front of the house will be set back on average about 18 ft.  The north end of the house is set back over 50 ft.  The proposed garage apron parking area is 33 ft long at its shortest point which is deep enough to meet the garage setback and off-street parking requirement of BMC �31-680(a).

Accessory Structure:

Setback: The proposed accessory structure is shown on the site plan to be less than five feet from the edge of the private driveway.  Normally, no accessory structures would be permitted in a required front yard setback in the R-1 zone, however as noted above, lesser setbacks are allowed from private driveways and in the hillside area.  The Planning staff is aware of no case where a setback of less than five ft. has been allowed either from a private driveway or elsewhere in the hillside area.  From examination of the site plan, it may be possible to relocate the proposed accessory structure another five to six feet farther from the roadway, but going further back would require demolishing a concrete block wall, which is apparently part of the drainage improvements.  Moving the structure back would also put it less than 15 ft. from the toe of the slope which would be a building code violation, although, if a geotechnical report on the slope stability were submitted, this requirement could be waived.  It may also be possible  to increase the level area by grading, however, the applicant has indicated he does not wish to incur the expense of more grading, and if grading to accommodate an accessory structure is necessary, the staff believes it should be adjacent to the main building pad for aesthetic and environmental reasons.

Size: Accessory structures under 300 s.f. are allowed by right in the R-1 zone (BMC �31-610), but larger accessory structures require a CUP (BMC �31-611).  The applicant is proposing a 396 s.f. structure with a � bath.  For accessory structures under 300 s.f. no shower is allowed in the accessory structure unless there is a swimming pool on site (BMC �31-1111).  The site plans show an eventual swimming pool on this site, but it is located over 100 ft. from the proposed accessory structure.  However, for an accessory structure over 300 s.f. a shower can be authorized by the CUP.

Parking:

The hillside development standards (BMC �31-680) require four off-street parking spaces, two of which must be in a garage or carport.  The remaining two may be in a driveway leading to a garage.  The single-family residential development standards (BMC Sec. 31-606(g)) require that one additional off-street parking space in a garage or carport must be provided for a residence over 3600 s.f. but the additional space may be tandem, and is excluded from floor-area ratio limitation.  The applicant is proposing to provide four parking spaces in tandem in an attached garage, and two more parking spaces on the garage apron.  The expanded pad will be large enough for the planned house and the required parking, and as discussed, the front setback will be deep enough at the north end to allow parking in the garage apron.

Table: Summary of Applicable Zoning Code Development Standards

View Protection:

BMC �31-680(c) states that for hillside developments, �concern shall be given for the preservation of views of existing hillside developments.�  There are two possible views to be considered; views of the valley from hillside areas, and views of the mountain from properties located lower on the hillside.  There is no existing development uphill (north and east) of this property, therefore, it will not block any views of the valley.

Construction of the retaining walls (and eventual construction of the proposed house) will impact the uphill views from properties located lower on the hillside, particularly the residence located next door (Lot 2).  The proposed 18 ft. retaining wall on the north side of the pad will mostly be screened by the house.  The applicants have also proposed extensive landscaping to screen the retaining wall (see landscape plan, Exhibit B-4).  The proposed 10 ft. retaining wall east of the pad will be visible from properties along Paseo Redondo and E. Elmwood Ave. but is also proposed to be extensively landscaped.  Views from properties to the northwest are blocked by a spur of the Verdugo Mountains.  Properties to the south along Wilson Court may have a partial view of the upper part of the main house, but the embankment for the driveway largely blocks any view of the proposed house or retaining wall from this area.

Traffic Safety Improvements and Plans:

At the Planning Board hearings, the issue of the safety of the private access driveway particularly with respect to heavy construction vehicle traffic from the grading was raised by several public speakers including appellant Lyle Hall.  Several questions were asked by the Board with respect to previous development approvals involving the driveway.  The accident history on the driveway has brought into question whether the access driveway is safe and whether development potentially generating more traffic on it should be approved.

Guardrail Installation:

The Parcel Map 25082 approval (Exhibit H-1) did not specify that guardrails or other safety devices had to be installed on the private driveway.  The grading plan for the parcel map (Exhibit H-2) including improvements to the driveway, was not submitted until after approval of the tentative parcel map, and it could not necessarily be known whether the road would need a guardrail until the grading plan giving details of grades, curves, widths, etc. was submitted.  When the grading plan was approved in September 1999, the Public Works Department recommended a guardrail be installed along the west side of the roadway (Exhibit H-4).  The road was provided with a guardrail of sorts consisting of a series of about 4 in. diameter steel posts placed every 20 ft. or so for about 500 ft., and with a 3/8 in. steel cable strung between them (see Exhibit L, photos).

This, however, proved insufficient in April 2002 when a car coming down the road went through the barrier, taking out one of the steel posts (Exhibit J-2).  The car went down the embankment and came to rest just above the house belonging to appellant Lyle Hall at 722 Wilson Ct.  Subsequent to this incident, a security gate was installed at the bottom of the driveway, which will likely reduce traffic on the private driveway..  However, sometime after installation of the gate, a second accident occurred with a forklift apparently involved in construction on Lot 2 going out of control, smashing into one of the posts for the security gate, and damaging adjacent property at 1211 E. Elmwood.

In 2002, Mike Daglian, owner of Lot 2 (1207 E. Elmwood) adjacent to the subject lot, applied for a CUP to allow grading and fill to enlarge the building pad on his lot.  The Planning Board approved this CUP with a condition that �the applicant shall, if deemed necessary by the Public Works Department and the Building Division, install safety barriers along the downslope side of the private driveway, with particular attention to property lines addressed at the public hearing.�  After examining the driveway, the Public Works Department did not require Mr. Daglian to construct any safety barrier.

A condition of approval was included with the subject CUP approval (see Exhibit F-4, Condition 4) requiring completion of a safety study by a qualified, licensed traffic engineer to address the need for safety improvements possibly including but not necessarily limited to installation of safety guardrails.  The Planning Board added further language to this condition specifying that the guardrail should extend completely across the rear of the properties below the embankment on the driveway and that the guardrail should meet the design criteria contained in the California Dept. of Transportation (Caltrans) Traffic Manual, but providing that if the traffic engineer study showed that no guardrail was necessary, the Board could subsequently waive this condition (Exhibit F-4, Condition 4, see also Exhibit H-6).  Such a waiver was made subject to a separate appeal.

The applicant commissioned Korve Engineering to perform the required study.  A draft report became available on September 20, 2004, and is attached as Exhibit L.  The study recommends installation of approximately 110 ft. of guardrail constructed to the design and standards recommended by Caltrans, as well as other improvements to signage and marking along the driveway.  The guardrail recommended by the draft report is somewhat shorter than what the Planning Board specified and located slightly further up the hill taking in the approach to the sharp curve just behind the property of Lyle Hall. 

The Public Works Dept., and Planning Division reviewed this draft report and concur with the overall recommendations on the guardrail and other improvements.  The Staff is recommending deletion of Condition of Approval No. 4 (Exhibit F-4) as originally proposed and as amended by the Planning Board, and inclusion of a new condition of approval stating that prior to receiving a grading permit, the applicant will cause all the improvements recommended by the Korve report to be installed.  The installation will be inspected and accepted by the Burbank Public Works Dept. and Building Division.

Construction Traffic Safety Plan:

Grading and construction work has the obvious potential to add significantly to traffic on the driveway, especially heavy truck and construction equipment traffic.  The accident history of a construction forklift losing control and hitting the security gate was noted above.  At the Planning Board hearings neighbors commented on the difficulty larger vehicles (limousines) have negotiating the private driveway. The Public Works Dept. does not send its regular trash removal trucks up the private driveway, instead sending a small utility truck to bring the cans to the regular trash truck at the gate on Elmwood Ave.

If a grading or construction project will involve off-site movement of more than 45 cubic yards or 10 truckloads of fill in one day, the Public Works Dept. requires a haul-route permit, which dictates the route the trucks will take and may require use of other procedures such as a flagman. This project anticipates moving 135 cubic yards of fill.  A flagman is normally only required, however, if closure of a lane on a public street is necessary (Exhibit J-3).  Also, haul route permits normally only apply to construction traffic on public streets, not on private property.

The staff is therefore recommending a condition of approval to require a construction traffic safety plan be prepared by a licensed traffic engineer.  The objective of the plan will be to ensure that the construction traffic required by the grading and construction contemplated by this application does cause any additional traffic safety hazards.  This plan should recommend limits for the length, weight, loading, types and speed, etc. of construction vehicles using the private driveway.   Since the private driveway is not a public street, the Burbank Police Department does not patrol it, and the traffic safety plan will need also have to include provisions for enforcement.  This should include (but not necessarily be limited to) specific requirements for use of flagmen on the private driveway as it is probably not wide enough to accommodate two-way truck traffic.

Accessory Structure:

As noted above, the staff recommended that the Planning Board deny the subject CUP with respect to the accessory structure.  Certain aspects of the accessory structure were discussed above in the �Zoning Code Conformance� section of this report, however, the most fundamental concern the staff has regarding the accessory structure is its proposed location, and as a result of that location, its visual and audible impacts on nearby lots.

Accessory Structure Location:  

The site for the proposed accessory structure is a 1,827 s.f. area next to the cul-de-sac on the access driveway, approximately 120 ft. west of the main dwelling in a small arroyo that forms a natural drainageway from the higher slopes (Exhibit C-4).  As noted above, the arroyo was partly filled in when the private driveway was extended, creating a small flat area right next to the access driveway.  A storm drain was installed underneath the fill that discharges to a County storm drain at Elmwood Ave.  There is a concrete block wall about three ft. high at the rear of the flat area in a rough �U� shape with the top of the U facing the road.  The wall appears to be part of the drainage improvements built for the access road, as it would prevent erosion and divert runoff from the higher slopes to ditches on the side of the road. 

The only practical access to this site from the main building pad is to drive or walk along the road, as there is a short but steep ridge between it and the main pad area.  From the site plan it appears that if the accessory structure is built at the exact location proposed there would not be room adjacent to it for a standard parking space completely off the driveway.  The Fire Dept. required a condition of approval on the original  Parcel Map to prohibit any parking in the driveway including the turn around area (Exhibit H-1, Condition 20).  It may be possible to locate an off-street parking space in this area if the accessory structure were moved a few feet left or right.

Accessory Structure Visibility:

Accessory structures, when permitted, are usually located in the rear of the property behind the main residence where they are not visible from other properties or the street.  Because of the arroyo, this site is mostly hidden from view except from the house on Lot 2 and the pad on Lot 4 right across the access driveway.  It may be distantly visible from houses on Paseo Redondo.  The site is definitely not visible from the main building pad on the subject lot.  On an ordinary rectangular, in-line lot fronting on a public street, the accessory structure would not be allowed in this location.  This accessory structure, if approved, will sit right at the front of the property in full view of the access driveway, and other properties fronting it. 

As noted above, the staff finds that the private driveway functions like a street in that it provides access to all four properties and finds that the proposed accessory structure at the proposed location right at the front of the property will likely have negative visual and other impacts on the adjacent properties along the driveway.  The City of Burbank has historically encouraged that all lots along a street or block should have similar setbacks, even if such setbacks are uniformly substandard (see BMC �31-1208(a)(1)).  It might be possible to construct the accessory structure with a conforming setback, but this would require demolition of the retaining wall and considerable grading and/or filling. 

Staff notes that the purpose of the grading provisions in the hillside ordinance is to, as much as practical consistent with maintaining development rights, preserve the visual and aesthetic integrity of the Verdugo Mountains.  Staff finds that the volume of grading necessary to build the accessory structure with a conforming setback is not consistent with the purposes of the ordinance, and is not necessary to preserve the essential development rights of this property.  The particular location of this site in the arroyo could lead to specific environmental and hydrologic impacts if extensive grading was done.  As noted above, the arroyo is a natural drainageway from the higher slopes. 

The staff is not opposed to construction of an accessory structure on this property per se.  The staff believes an accessory structure located on or adjacent to the main building pad, and hidden from view from the adjacent properties (possibly near the proposed swimming pool) would be appropriate.  This would likely require more grading at the main pad site, which may have some less than significant environmental and aesthetic impacts, but staff finds that a larger main pad would have fewer impacts than grading for a completely separate accessory building pad, especially at this location.  The staff discussed this possibility with the applicant and architect, but they felt the cost of additional grading to accommodate this would be too high, and have requested approval of the accessory structure at the proposed location.

Drainage and Soils at Accessory Site:

The applicants submitted a geotechnical report for the CUP, but it does not appear to address the accessory building site.  Since this site was landfilled for construction of the driveway, its geotechnical characteristics could be significantly different from the characteristics of the main building pad.  The Building Division indicated they would likely require a separate soils report for the accessory building site prior to issuance of building permits[2].  The private driveway and associated improvements including drainage and the culvert under the road are maintained by the property owners as provided in the subdivider�s �Declaration� (Exhibit H-5), and are not the responsibility of the City.  The staff is not recommending approval of the accessory structure at the proposed location, however, should the City Council decide to allow the accessory structure, the applicant would be responsible to the three other property owners for any damage to the drainage, irrigation or access improvements.

Public Correspondence: 

The Planning Staff has not received any correspondence regarding this project other than the letters submitted with the appeal applications by the applicant and by Mr. Mnatsakanyan.  Mr. Mnatsakanyan also submitted a short letter directly to the Planning Board at their July 12 meeting (Exhibit F-5).  Staff has spoken over the counter to owners of adjacent hillside properties who expressed concerns about this proposal, particularly the accessory structure.  William Schneider, owner of the large (11 acre) lot immediately west of the subject lot was concerned whether he would be responsible for brush clearance, since the accessory structure would be less than 200 ft. from his lot line.  The owner of the lot on Wilson Court south of Lot 4 at the foot of the arroyo expressed concerns about increased runoff across her property.

Department Comments:

The subject application and plans were routed to City departments and divisions for review and comment.  No department submitted comments or recommended conditions or restrictions beyond existing code requirements, however, the Public Works Department Traffic Division subsequently changed its recommendations to require the traffic safety study and a study for whether a guardrail was necessary.  Department comments are attached to this report as Exhibits D-1 to D-7.

California Environmental Quality Act:

Pursuant to the California Environmental Quality Act (CEQA), a Mitigated Negative Declaration was prepared for the project which indicates that with incorporation of the proposed mitigation measures, the project will not have significant environmental effects.  The MND identified potential impacts and proposed mitigations relating to air quality, geology/soils and traffic (Exhibit E-5).  All mitigation measures have been incorporated into the proposed conditions of approval, and the applicant has signed a consent agreement to implement the mitigations (Exhibit E-3).

PLANNING BOARD HEARING:

The Planning Board conducted a public hearing on this application at their regular July 12, 2004 meeting which was continued to August 9, 2004 to allow staff to research questions raised by neighboring property owners and the Board at the first hearing

CUP for Grading:

In addition to the issues already discussed above, the Board extensively discussed and questioned several areas relating to the history of approvals and permits for this property including approval of the 1999 Parcel Map.

Safety of the Private Driveway:

The Board and a number of adjacent property owners, including appellant Lyle Hall, questioned how the private driveway serving the subdivision came to be accepted in its current configuration.  The upper (northern) 450 ft. of the driveway was built in 1999.  However, the lower (southeast) half of the road is much older, and was originally the driveway for the single house at 1205 E. Elmwood. 

The driveway was to be constructed to the requirements of the Parcel Map approval (Exhibit H-1) which required a 20 ft wide driveway not to exceed a grade of 12%.  However, since part of the previously existing driveway had an 18% grade, the Fire Chief allowed this condition to remain after successfully testing the ability of a fire engine to negotiate the driveway.

The Planning Board also asked whether the Parcel Map and/or the CUP for Lot 2 could be revisited or amended, what liability the City might have in approving a Parcel Map, and whether the City could initiate a maintenance assessment district to improve the private driveway, and certain other questions.  The City Attorney�s Office provided a memorandum to the Board (Exhibit K) answering these questions.

Based on the subsequent accident history of the driveway, the staff recommended to the Planning Board that a qualified traffic engineer perform a study to determine if road safety improvements including possibly guardrails should be installed on the driveway and if so to provide specifications.  The Board substantially added to the staff recommendation by specifying a particular location, length and type of construction for the guardrail (see Exhibit F-4, Condition 9, Paragraph 2), with the provision that if the traffic engineer recommended no guardrail, then the Board could delete this requirement after reviewing the engineer�s report.

Drainage and Runoff:

Residents of Wilson Court below the subject site, complained at the Board hearing 204that storm-water runoff across their properties had increased since grading for the subdivision was done in 1999.  It is a matter of common law that construction on one property may not cause increased storm-water flow across downstream properties.  Wilson Court lies in the lower part of the arroyo that was partly filled to extend the access driveway, and has almost certainly always been subject to a certain amount of storm-water runoff, even before development of the subdivision.  The drainage plan (Exhibit H-3) for the Parcel Map concluded that construction of the driveway would decrease storm-water runoff on Wilson Court because some of the runoff previously going down the arroyo would be intercepted by the driveway and flow to the  Elmwood Ave. storm drain.  Exhibit H-2 shows the plans for the storm drain, and Building Division inspectors confirm that the storm drain was built and accepted to this design.

When city staff visited this property for the subject CUP approval, they noted that the surface drainage ditches draining the graded area of the arroyo were clogged with trash, construction debris, and dead vegetation.  It is likely that the stormdrain under the driveway is similarly clogged.  This could cause drainage from the higher slopes to back up until it crosses the filled area and spills down the arroyo.

BMC �13-117(j) requires property owners to maintain drainage improvements during and subsequent to construction.  It also appears from the �Declaration� (Exhibit H-5) recorded with the Parcel Map, that maintenance of drainage and irrigation facilities is a joint responsibility of all four property owners within the subdivision.  After the Planning Board hearing, the Building Division staff initiated a code enforcement action to ensure maintenance of the drainage improvements.

Planning Board Action:

Subject to the condition for a traffic safety study and related improvements, and the other conditions attached to their resolution (Exhibit F-4), the Planning Board voted 5-0 to approve the CUP to allow grading to expand the level building pad area.  The conditions of approval also require the applicant submit a hydrology study of the area to be graded, but this is a standard condition for all grading CUPs.  As noted above, the Board required a 10 ft. setback from the edge of the paved driveway for the main dwelling unit.

CUP for Accessory Structure:

In addition to the issues raised by Planning Staff and appellant Garnik Mnatsakanyan which have been discussed above, other adjacent property owners spoke at the Planning Board hearing on potential impacts of the accessory structure.

Brush Clearance:

Mr. & Mrs. William Schneider, owners of the property adjacent to the subject property to the west spoke at the Planning Board hearing, noting that if the accessory structure were built at the location proposed, they would become responsible for clearance of about 1� acres of brush lying within 200 ft. of the structure, but on their property.  They thought the applicants should be responsible for this clearance, since this part of the Schneider property lies up a steep trailless hill from their house, but is fairly easily accessed from the subject property.  Section 15-1-1103.2.4 (B)(2) of the Fire Code (BMC Chapter 15) requires that property owners are responsible for brush clearance on their own land whether the structure in question is on their land or on adjacent land.  BMC Section 15-1-1103.2.4 (B)(1)(l) allows the Fire Department to suspend or adjust the clearance requirement where difficult terrain, danger or unusual circumstances make compliance impractical.  The Planning Board added a condition of approval to the CUP requiring the applicant to approach the Schneiders to offer to perform the required brush clearance on their property (Exhibit F-4, Condition 9).

Planning Board Action:

The Planning Board voted 3-2 (Members Taylor and Jackson opposed) to approve the accessory structure as requested by the applicant subject to a minimum 8 ft. setback from the edge of the paved driveway, and recording a standard covenant prohibiting use of the accessory structure as separate living quarters.  The Board also imposed a condition of approval requiring the applicant to provide brush clearance on the part of the neighboring (Schneider) property lying within 200 ft. of the accessory structure.

ISSUES RAISED BY APELLANTS:

The Planning Division received three appeals of the Planning Board decision in this case.  The main issues raised by each appellant are listed, with a discussion of each issue following.

Appeal by Raffi Margossian, Applicant: (Exhibit G-1) 1) Requirement for traffic safety study and installation of guardrail is onerous and unfair.  Neighboring property was granted a similar CUP last year and no improvements were required.  There has been no change in the safety record or other circumstances since then.  Applicant should not have to bear expense of safety improvements alone.  2) Design of house as originally proposed should be allowed even if it does not meet new development standards. 

Staff Response: Staff is recommending a traffic engineer study the access driveway and report on the necessity for a guardrail, and if one is necessary, to provide design specifications including length, location, type of construction, etc.  Staff is aware that previous development was permitted without these improvements, and that making the applicant shoulder the entire burden for these improvements seems unfair.  However, as the City Attorney points out (Exhibit K) it is not possible for the City to amend either the original Parcel Map or the 2003 CUP to require all parties to shoulder a portion of the cost of these improvements.  The �Declaration� recorded with the Parcel Map requires the cost of improvements to common areas to be shared among the four property owners, but the City is not party to the Declaration, therefore, has no standing to enforce its provisions.  However, the applicant as a party to the Declaration may be able to initiate action against the other three owners to recover some of his costs.

The second issue raised by the applicant, i.e. that the design of the house should be approved under the standards existing at the time of the application, is moot.  On September 14, 2004 the City Council adopted an Interim Development Control Ordinance (IDCO) with reduced height standards that would potentially affect the applicant�s proposed design.  However, the Ordinance exempted all complete CUP applications from the revised standards.  The subject application was determined complete on April 7, 2004, therefore is not subject to the IDCO.

Appeal by Garnik Mnatsakanyan et al, owners of Lot 4 (Exhibit G-4).  Accessory structure is too close to building site and frontage of Lot 4 (note, appellant refers to his property as �Lot D�).  Noise impacts of possible use of structure as exercise room, recreation room or playroom.  Visual impact of accessory structure, as it will be the first structure seen on approaching Lot 4.

Staff Response: Staff recommended denial of the subject CUP with respect to the accessory structure to the Planning Board, and continues to recommend denial.  The staff�s reasons for recommending denial of the accessory structure are much the same as the appellant�s, i.e. its visual and potential noise impact on Lot 4 and other properties.  These are discussed above (pgs. 12 -13) in this report.  The staff also finds that the proposed site does not offer sufficient space for an adequate setback from the driveway without additional grading, and that an accessory structure at this location will have brush clearance impacts on neighboring properties (see pg. 14)

Appeal by Lyle Hall, owner 722 Wilson Court below embankment on access driveway and site of 2002 accident: (Exhibit G-2) �Language regarding Comm.�s future actions is not specific enough.�  The applicant is concerned that the language of Condition 4 of the Planning Board Resolution (Exhibit F-4) might allow the Board to waive installation of a guardrail and wishes to keep his option for civil appeal open in this event.  In subsequent conversations with Planning Staff, the applicant indicated he is happy with the traffic engineer�s report and wants to see the guardrail installed as recommended.

CONCLUSION:

Staff finds that with the recommended conditions of approval, the six findings required for approval of a conditional use permit can be made for expansion of the building pad.

The staff finds that the six findings required for approval of a conditional use permit cannot be made for construction of the accessory structure at the proposed location.

Requirements for Approval of a Conditional Use Permit:

BMC � 31-1936 states that the Board or Council in granting a conditional use permit must find that:

(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.

         Building Pad: BMC �31-677 authorizes grading in the hillside area subject to a CUP. 

         Accessory Structure: BMC �31-611 authorizes other accessory structures (over 300 s.f.) upon granting of a CUP.

(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.

         Building Pad: The proposed use for the expanded building pad is for a single-family residence which is the purpose of the zone in which the proposed use is to be located. The enlarged pad will allow the applicant to have a swimming pool and lawn area adjacent to his house all of which uses are accessory to the single-family residence and specifically permitted in the R-1 zone.

         Accessory Structure: An accessory structure as such is not detrimental to uses allowed in the R-1 zone, and many properties in the R-1 zone have such structures especially on large lots such as this one.  The Planning Staff�s objection is not to the use but to the proposed location of this one because it is so far from the main dwelling, and so close to the roadway and the pad on Lot 4.

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

         Building Pad: The expanded building pad is proposed to be used for a single-family residence and accessory uses such as a swimming pool, lawn area and landscaping, driveway, etc.  The subject property and surrounding lots are zoned and designated for single-family residential use.  The expanded pad, and proposed retaining walls will not create any incompatibility if they are screened and landscaped as shown on the required landscaping plan and a hydrology report is completed and the recommendations thereof are implemented.

         Accessory Structure: Because of its proposed location, the accessory structure will likely have visual and audible impacts on adjoining properties.  The proposed location right at the front of the property, and immediately across the private driveway from the building pad for Lot 4 means the accessory structure will probably be closer to, and more visible from a house on Lot 4, than from the main dwelling on the subject property.  The accessory structure would also be visible from the house at 1207 E. Elmwood Ave.  Also, the proposed site does not appear to offer adequate setback from the driveway for construction of the proposed structure.  The staff is not opposed to an accessory structure on this property, but finds the proposed location is not the best in terms of visibility or other potential impacts on neighboring properties.

(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.

               Building Pad: The subject property totals 6.87 acres, and though most of this is under a �do not build� agreement, the remaining lot area is over 1.5 acres.  The expanded building pad will total 10,100 s.f. which is sufficient to accommodate the proposed house and accessory uses (e.g. swimming pool) shown on the plan subject to compliance with a condition of approval requiring a minimum ten ft. setback from the edge of the paved area of the driveway as actually built.

               Accessory Structure:  The site for the accessory structure is minimal for the proposed use.  The applicants have proposed placing the structure less than five feet from the private driveway.  Even though there is no specific code requirement for a setback from a private driveway, staff finds that five feet is not adequate.  Setting the structure further back will require demolition of existing drainage improvements (diverter wall) and possibly more grading.

(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.

         Building Pad: The site is accessed by a 20 ft. wide access driveway which was approved and built when the property was subdivided.  The Public Works Department has indicated that this access is adequate for the proposed development.  In addition, appropriate studies required as conditions of approval will insure appropriate driveway improvements and traffic safety should the studies demonstrate a need for such.

         Accessory Structure: The accessory structure as an accessory to the main dwelling will not generate additional traffic beyond that generated by the single-family residence.

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

         Building Pad: The conditions of approval for this project are intended to ensure that there are no adverse impacts on the surrounding properties and neighborhood.  The requirements for dust and noise control measures, in and for traffic safety studies are to ensure that the impacts from excavation and construction of the pad are mitigated to the extent feasible.  The remaining conditions are necessary as explained in the findings above.

         Accessory Structure: The staff is not recommending approval of the accessory structure, therefore, there are no recommended conditions.

RECOMMENDATION:

Staff recommends the City Council approve a resolution upholding the determination of the Planning Board granting Conditional Use Permit No. 2004-42 with respect to the expansion of the building pad.  However, staff recommends amending Condition No. 4 as approved by the Planning Board to require that the guardrail and other traffic safety improvements recommended by the traffic engineer�s report be installed and accepted prior to issuance of grading permits for this site.  Staff recommends the City Council reverse the decision of the Planning Board to grant Conditional Use Permit No. 2004-42 with respect to the proposed accessory structure

LIST OF EXHIBITS

Project No. 2004-42 (Conditional Use Permit)

(1209 E.Elmwood Ave. � Dr.Raffi Margossian, Owner)

Exhibit   A-1          Zoning and Fair Political Practices map

              A-2          Aerial Photo of Project Site

Exhibit  B-1            Application Package

              B-2          Site Plan and Building Elevations

              B-3          Grading Plan (KCE Matrix)

              B-4          Landscaping Plans (Ben Lundgren & Associates)

              B-5          Floor Plan of Accessory Structure

              B-6          Conceptual Floor Plan of Main Dwelling

Exhibit  C-1            LA County Assessor�s Map Book 5608, sheet 33

              C-2          Site Plan Map for CUP 2002-18 at 1207 E.Elmwood Ave.

              C-3          Photograph of Main Dwelling Building Pad

              C-4          Photograph of Proposed Accessory Building Site

Exhibit  D-1            Building Division Review Comments

              D-2          Public Works Dept. Review Comments

              D-3          Burbank Water & Power, Electrical Division Comments

              D-4          Burbank Water & Power, Water Division Comments

              D-5          Fire Department Review Comments

              D-6          Police Department Review Comments

              D-7          Parks, Recreation & Community Services Dept. Comments

Exhibit  E-1            Notice of Intent to Adopt a Mitigated Negative Declaration

              E-2          Public Notice of Environmental Decision

              E-4          Consent Agreement for Proposed Mitigation                            

              E-4          Proposed Mitigated Negative Declaration

              E-5          Initial Study

Exhibit  F-1            Public Notice of Planning Board Hearing

              F-2          Minutes of Planning Board Hearing July 12, 2004

              F-3          Minutes of Planning Board Hearing August 9, 2004

              F-4          Planning Board Resolution Approving CUP 2004-42

              F-5          Letter from Garnik Mnatsakanyan to Planning Board

Exhibit  G-1          Appeal by Dr. Raffi Margossian

              G-2          Appeal by Lyle Hall

              G-3          Letter to Applicant from Marshall Glick, Attorney for Lyle Hall

              G-4         Appeal by Garnik Mnatsakanyan

Exhibit   H-1         Approval of Parcel Map 25082, September 1, 1998

               H-2         Grading Plan for Parcel Map 25082

               H-3         Drainage Plan for Parcel Map 25082

               H-4         Memo from Public Works Dept. to Building Div. Re. Grading Plan for Parcel

                              Map 25082

               H-5         Declaration Recorded October 22, 1999 by Thomas Tunicliffe for

                               Parcel Map 25082

               H-6         Parcel Map 25082, Recorded Sept. 13, 1999

               H-7         Covenant Not To Build Recorded with Parcel Map 25082

                H-8         Letter from City Attorney�s Office to Thomas Tunicliffe, July 1, 1999

                H-9         Letter from Gilchrist & Rutter to Robert Teague & Mary Riley,

                               June 15, 1999

Exhibit    J-1       Planning Board Resolution No. 2906 Approving CUP 2002-18 at                                       1207 E. Elmwood Ave.

               J-2         Photographs of Private Driveway and �Guardrail� After April 26, 2002                                Accident.

                J-3          Manual on Uniform Traffic Control Devices, 2003 Edition;

                              Section. 6C-1 to C-15, Provisions for Use of Flagmen

Exhibit    K Memorandum from City Attorney�s Office to Planning Board,                                       August 4, 2004.

Exhibit        L       Draft �Traffic Safety Report: 1209 E. Elmwood Ave.� Korve Engineering,

                             September 13, 2004.

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