April 19, 2005

PURPOSE:

This report responds to the City Council�s request that staff prepare an ordinance to amend the Burbank Municipal Code (BMC) regulations regarding residentially adjacent commercial and industrial uses [BMC Ch. 31, Art. 11.5, Exhibit A-1].  Specifically, the ordinance would alter the definition of �Late Night Hours� (currently midnight to 6:00 a.m.) to be consistent with the definition of �Nighttime� hours (10:00 p.m. to 7:00 a.m.) found in the Noise Ordinance [BMC Ch. 21, Art. 2, Exhibit A-2].  

BACKGROUND:

Last year, the City Council directed staff to prepare an ordinance to amend the business and operating hours specified in the Residentially Adjacent Commercial and Industrial Uses (RACI) Ordinance.  Specifically, the Council requested that the time frame of �Late Night Hours� in the RACI Ordinance (midnight to 6:00 a.m.) be amended to conform to the time frame of �nighttime� hours in the Noise Ordinance (10 p.m. to 7:00 a.m.).  The issue of noise generated by residentially adjacent businesses operating in the late night and early morning hours has arisen in the context of several public meetings and hearings. Among the most visible of these were Conditional Use Permit applications to allow operation of a coffeehouse (Starbucks) and a paint store on the property at the southeast corner of Hollywood Way and Magnolia Blvd. (the �old Thrifty� site), and a late night business Conditional Use Permit application for a 7-Eleven store at the northeast corner of Glenoaks Blvd. and Harvard Rd.  General noise complaints about late night and early morning business operations have also been raised before the City Council, Planning Board and the Community Development Department. 

The proposed ordinance to further limit late night business operations could have negative impacts for some considerable number of businesses. The most obvious impacts will be to new and startup businesses, but existing businesses which wish to extend their hours, or which are already doing late night business and wish to expand the size of the business would also be impacted.  Therefore, this report includes a discussion of some of the implications of the proposed ordinance and a discussion of possible alternatives that the City Council may wish to consider.  These include: possible restrictions on deliveries (a major source of noise complaints); adapting regulations to different areas of the city and/or different nights of the week; less stringent permitting requirements for earlier hours; and using existing permit requirements. 

Current Code Requirements:

The Burbank Municipal Code contains a number of regulations designed to lessen the impacts of noise generally, and particularly on residential areas close to commercial and industrial uses.     

Noise Ordinance Restrictions:

The Noise Ordinance applies citywide, and establishes �ambient noise base levels� for residential, commercial, and �all other� zones.  The ordinance specifies a base noise level in decibels (db) against which noise sources are measured.  For residential zones, the base level is 55 db during the �daytime� (7:00 a.m. to 10:00 p.m.), and 45 db during the �nighttime� (10:00 p.m. to 7:00 a.m.).   

Allowable base noise levels are higher for commercial zones (65 db day or night) and for �all other� zones (75 db).  However,  a noise source in a commercial or other zone  located close to residential property must comply with the lower residential noise restriction to the extent the noise can be heard in the residential zone [BMC �21-208].  Therefore, commercial or industrial uses in close proximity to residential uses may be subject to stricter noise limitations than similar uses located further away from a residential zone.   

The Noise Ordinance limits apply to �machinery, equipment, pumps, fans, air conditioning apparatus or similar mechanical devices�.  Staff notes, however, that BMC Section 21-212 specifically exempts motor vehicle engines with exhaust equipment regulated by state law [1].  The Noise Ordinance has other restrictions on noise-making activities, but does not specify different day or night noise levels except with regard to construction activity, leaf blowers, and sound trucks. 

Residentially Adjacent Uses:

The RACI Ordinance[2] put certain restrictions on commercial and industrial uses located in or within 150 feet of a residential zone.[3]  The ordinance distinguishes between �Late Night Business� and �Late Night Operations.�  Late Night Business means being open to patrons between the hours of midnight and 6:00 a.m. (�Late Night Hours�).  Late Night Operations means not open to patrons, but using noise generating equipment on the exterior of a building during the Late Night Hours [BMC �31-203].  

The ordinance requires a Conditional Use Permit (CUP) for any residentially adjacent business to commence Late Night Business, or extend its business hours or expand its size if already engaged in Late Night Business.  Businesses legally engaged in Late Night Business on the date of the Ordinance (12/26/98) were exempted from the CUP requirement [BMC �31-1151]. 

The ordinance requires an Administrative Use Permit (AUP) for any residentially adjacent business to engage in Late Night Operations.  However, an AUP is not required for delivery activities so long as no motors (refrigeration units, lift gates, etc.) are operated during the delivery [BMC �31-203].  Again, businesses legally conducting Late Night Operations on 12/26/98 were exempted [BMC �31-1152].  Although several CUPs have been approved for Late Night Business that incorporate the right to conduct Late Night Operations, no separate AUP applications to conduct Late Night Operations have ever been filed. 

The RACI Ordinance also puts certain restrictions on all residentially adjacent uses -whether or not they need a CUP or AUP.  Specifically: 

Refuse bins may not be moved or emptied in a street or alley that separates residential from commercial or industrial property during Late Night Hours [BMC �31-1154(a)].           

Persons associated with a residentially adjacent business (employees, agents, contractors, etc.), may not congregate behind the business or in a residentially adjacent alley or open space during Late Night Hours [BMC �31-1154(c)]. 

These two requirements do not apply to areas of the property more than 300 ft. from a residential zone even if part of the property involved is less than 150 ft. from the residential zone.  But the CUP and AUP requirements apply if any part of the property is within 150 ft. of the residential zone. 

�Residentially Adjacent� means any commercially or industrially zoned property located within one hundred fifty (150) feet of residentially zoned property measured at the two properties� closest points.   

Other sections of the Zoning Ordinance also affect residentially adjacent commercial and industrial uses.  These include: 

The Zoning Use List (Exhibit A-3) requires a CUP for many uses if they are �residentially adjacent,� regardless of their hours of operation [BMC �31-502]. 

A residentially adjacent drive-through establishment needs a CUP regardless of its business hours [BMC �31-1609] 

A residentially adjacent grocery market requires a CUP to operate between midnight and 6:00 a.m. [BMC �31-1119].  This requirement was added to the Code in 1997 before the RACI Ordinance, and was effectively superseded by the Ordinance. 

The Nature of Noise Complaints:

Planning staff consulted with the License and Code Services staff and the Police Department to better understand the nature of complaints about late night activities.  Unfortunately, the manner in which the License and Code staff and the Police Department record and archive complaints  makes it difficult to isolate complaints received during certain hours or specific types of  complaints.  Police Department complaints are archived by address.  To get a complete listing of noise complaints it would be necessary to look at the complaints received for each residentially adjacent business address  (approximately 1850 of them)  to see if it was about noise.  Complaints to the License and Code office frequently deal with multiple complaints about a single location and are not catalogued by type. 

However, the License and Code staff and the Police shared several observations about late night noise complaints.

- Complaints frequently involve multiple problem areas such as lighting, parking, and litter, and not just noise.

- A very small number of complainants and businesses account for a large share of all noise (and other) complaints.  Bars and similar establishments in particular receive a disproportionate share of complaints.

- In the last eighteen months, there has been a significant decrease in the number of noise complaints against businesses.  The License and Code staff believes this is due to the closure and change in management of a small number of specific businesses that were previously the subject of many complaints. 

Properties Potentially Affected by This Amendment:

Exhibit B is a map showing commercial and industrial zoned properties within 150 ft. of residentially zoned properties.  There are about 3100 commercially and industrially zoned properties in Burbank totaling about 1700 acres.  Of these, about 1850, or about 60%, are within 150 ft. of residential zoned properties.  However, the residentially adjacent properties tend to be smaller retail and service oriented businesses, and these 1850 properties total only 585 acres or about 34% of all commercially and industrially zoned land in the City. 

The bulk of the affected parcels lie along the commercial �corridors� in the City including West Magnolia Blvd., West Burbank Blvd., West Olive Ave., and South Victory Blvd.  To a lesser extent, residentially adjacent businesses are also found along Glenoaks Blvd., Hollywood Way, San Fernando Blvd., and Alameda Ave.   There are also a number of residentially adjacent commercial �nodes� around major intersections such as Buena Vista and Victory and Hollywood Way and Victory. 

The staff conducted a windshield survey to determine the location and types of businesses likely to be open in the late evening hours.  Distribution of late night businesses within the above areas is uneven.  In certain areas, there are no more than a handful of businesses open in the late evening hours.  Other areas, however, have noticeable concentrations of late evening businesses.  These areas include Riverside Drive and Magnolia Blvd. west of Buena Vista St., which have concentrations of �evening trade� uses such as theaters, restaurants and coffeehouses, and areas with concentrations of fast-food restaurants. 

As noted, new and start-up businesses will obviously be affected by this amendment, but an existing late night business wishing to expand, even minimally, requires a CUP also.  For example, a remodel that added no new floor area would not require a CUP, but if the remodel included even, say, a small new storeroom, then a CUP is required.  Also, any business wishing to stay open an hour or even half an hour later in the evening would potentially also need a CUP[4].  All these requirements actually already exist, but, as noted above, there are far more businesses operating, or potentially operating, after 10:00 p.m. or before 7:00 than after midnight and before 6:00 a.m. so the number of businesses needing a CUP or AUP will definitely be much greater. 

Types of Businesses Affected by the Amendment:

Staff also attempted to determine the types of businesses most likely to be affected by the proposed change to the definition of Late Night Hours.  Staff finds that the great majority of businesses in Burbank would not be affected by the proposed change.  Staff estimates that less than 10% of businesses are open after 10:00 p.m. or before 7:00 a.m.  Most residentially adjacent businesses appear to close between 5:00 p.m. and 7:00 p.m.   

However, certain categories of businesses will be affected.  These include: 

Restaurants. Many restaurants are open until at least 10:00 p.m. and often later on Friday and Saturday, notably:

            Pizza delivery and take-out places sometimes offer delivery and/or take out service until midnight or later, even when their dining room closes earlier[5].

            Coffeehouses and doughnut/pastry shops frequently are open very late (one Starbucks is open until 1:00 a.m. on Friday and Saturday) and many also have very early opening hours. A few are open 24 hours. 

Restaurants may be particularly affected by Late Night Operations restrictions.  Even if a restaurant closes to patrons at 10:00 p.m. it will often have employees on site for as much as 1� to 2 hours later [6].    Restaurants also frequently receive early morning deliveries of fresh bakery and dairy products[7].  

Staff notes that a residentially adjacent restaurant that serves alcohol needs a CUP under BMC �31-1116, regardless of its hours.  A drive-through restaurant requires a CUP under BMC �31-1608. 

Supermarkets and convenience stores.  Except for some chains that feature 24 hour operation (e.g. 7-Eleven) most of Burbank�s neighborhood convenience stores close between 9:00 p.m. and midnight, but some supermarkets are open 24 hours.  The Albertson�s store at 3830 Verdugo, for example, was issued a late night business CUP (Exhibit C-1) in 2000, and some other stores are legal non-conforming under BMC �31-1151(b), as they were in operation before the adoption of the RACI ordinance.  Like restaurants, many food stores (especially smaller ones) rely on early morning deliveries of fresh bakery and dairy products.  Most full-size supermarkets appear to restrict deliveries to between 7:00 a.m. and 10:00 p.m.  Three Burbank supermarkets have delivery hours restricted by a CUP or Planned Development (PD), and two others described themselves as �curfew� stores that voluntarily limit delivery hours.  Only one residentially adjacent supermarket said it routinely accepted deliveries before 7:00 a.m.  Most large supermarkets conduct operations around the clock with employees on-site at all times.   

Liquor stores: A few liquor stores are open until 2:00 a.m., the latest time that alcohol can be sold under state law.  There is overlap between this category and the food and convenience store category in that most food/convenience stores that are open to or past 10:00 p.m. also sell alcohol.  Most food stores that do not sell alcohol are specialty stores such as those specializing in ethnic foods, health foods, or bulk sales.  These stores usually close by 8:00 or 9:00 p.m.  Any store selling alcohol requires a CUP under BMC �31-1116. 

Theaters: None of Burbank�s movie theaters are residentially adjacent, but there are several live theaters in Burbank that are residentially adjacent.  According to theater managers, performances typically end around 10:00 or 10:30 p.m. on Friday or Saturday nights.  Most theaters sell refreshments, but their deliveries usually occur in the afternoon before the performance. 

Video rental stores: Most video rental stores are open until midnight.  Most deliveries occur during business hours. 

Laundromats: Most laundromats in Burbank appear to close around 10:00 or 11:00 p.m. 

Printing/copying: The Kinko�s at 4100 Riverside Dr. is open 24 hours, but this is an exception.  Most smaller, independent printing and copy stores appear to close by 7:00 p.m. 

Caterers: Caterer�s hours can be irregular.   A catered breakfast may require truck loading as early as 4:30 or 5:00 a.m.  

Drug stores: Most Burbank drug stores close by 10:00 p.m. but at least one (the Sav-On at Hollywood & Verdugo) is open 24 hours.  A residentially adjacent drug store with a drive-through window requires a CUP under BMC �31-1609 irrespective of its business hours, but the Sav-On does not have a drive through.  According to the manager, the store does not get late night deliveries. 

Bars, saloons, cocktail lounges: A large number of these establishments remain open until 2:00 a.m.  All such businesses require a CUP under BMC �31-1116 regardless of their operating hours.  The largest number of these businesses in Burbank are in the downtown area and are not subject to the RACI ordinance.  The License and Code Services staff observed that the recent closure of one residentially adjacent nightclub, and new management of one bar, has caused their volume of late night complaints to decrease markedly. 

Service stations:  Most gas stations in Burbank close by 10:00 p.m. but a few freeway-adjacent stations are open 24 hours.  Residentially adjacent service stations require a CUP under BMC �31-502 regardless of hours of operation. 

Late Night Business Restrictions in Other Jurisdictions:

Zoning Ordinances in a number of other cities restrict late night business operations in residentially adjacent locations.  The following list is not comprehensive but gives some idea of how Burbank�s restrictions compare to other cities. 

Pasadena�s restrictions are similar to what Burbank would have if the proposed ordinance were adopted.  The Pasadena Code requires a CUP for commercial uses, industrial uses, clubs and lodges, and cultural institutions in certain commercial zones to operating between 10:00 p.m. and 7:00 a.m. if they are within 150 ft. of a residential zone.  According to the Pasadena Zoning Administrator, this prohibition applies to any activity including deliveries.  However, certain areas of the city, including downtown and Old Pasadena, are not subject to this restriction. 

Monrovia requires any business that operates between 12:00 midnight and 6:00 a.m. within 100 ft. of a residential zone or residential planned development zone to have a CUP. 

South Pasadena requires any �extended hour� (11:00 p.m. to 6:00 a.m.) retail business to have a CUP.  According to South Pasadena planning staff, the restriction does not apply just to being open to customers, but extends to any business activity including deliveries. 

Santa Monica does not limit hours of business operation, but does prohibit any business from receiving deliveries, disposing of trash or recycling, or performing outdoor maintenance from 11:00 p.m. to 6:00 a.m. if the business is located within 100 ft. of a residentially zoned property.  There is an exception for the central city area.  Santa Monica provides an administrative process for exceptions to this restriction.   

Torrance prohibits deliveries or pickups, trash disposal, or parking lot sweeping from 10:00 p.m. to 7:00 a.m. within 300 ft. of any residence.  The 300 ft. distance applies to the actual location of the activity rather than the nearest property lines.  According to Torrance planning staff, getting an exception to this rule would require a variance. 

Berkeley requires CUPs for businesses operating during certain hours, but the hours vary depending on the area of the city and the day of the week.  Restricted hours vary from 10:00 p.m. to 12:00 midnight on weekdays and from 10:00 p.m. to 2:00 a.m. on weekends, ending at 7:00 a.m. 

Menlo Park requires a permit to operate any business between midnight and 6:00 a.m. within 300 ft. of residentially zoned property, but has an unusual provision that a permit is not required unless the business has been the subject of a written complaint. 

Outreach:

Staff contacted the Burbank Chamber of Commerce, the Toluca Lake Chamber of Commerce, the Magnolia Park Merchant�s Association, the Burbank Boulevard Merchant�s Association and the Magnolia Park Community Advisory Council (CAC).  Each group was sent a letter advising them of possible changes to the ordinance, requesting that they inform their members, and requesting any comments or input they might have.  Also, as noted above, the staff conducted a windshield survey of the residentially adjacent areas.  In the course of this survey, staff distributed flyers to those businesses that are open until or after 10:00 p.m.  The majority of contacts staff developed were as a result of distributing these flyers or later telephone calls to individual businesses.  It was primarily from these individual contacts that staff learned about the operating hours and practices, delivery hours, and other concerns of business owners. Staff developed a list of about 40 businesses that requested individual notice of hearings on the issue and distributed copies of the hearing notice to the above business groups.   

ANALYSIS:

The RACI Ordinance CUP requirement applies only to businesses open between midnight and 6:00 a.m.  The City has received a small number of Late Night Business CUP applications.  In the seven years since the ordinance was enacted, only six CUPs specifically for late night business have been approved, although the City has imposed limits on business and delivery hours via other types of CUPs and discretionary permits.  However, it is evident from the windshield survey that the number of businesses open past 10:00 p.m. is far larger than the number open past midnight.  If Late Night Hours were expanded to include the time between 10:00 p.m. and midnight, the number of CUP applications would likely increase.  The City has not yet received any applications for Late Night Operations AUPs. 

It is possible that the CUP/AUP requirement has acted as a deterrent to limit the number of late night businesses.  It is staff�s opinion that historically, Burbank has not had much demand for late night services, at least outside the downtown area where the RACI Ordinance does not usually apply.  But as lifestyles change and traditional 9 to 5 jobs become less common, the City could see more demand for late night services, as discussed in the attached article (Exhibit D).  The article deals with fast-food restaurants, but the staff believes other types of consumer oriented businesses could be affected too. 

Estimating Number of New Late Night Permits:

It is difficult to say how many applications for Late Night Business CUPs or Late Night Operations AUPs the City might receive if the RACI Ordinance Late Night Hours were changed as proposed.  For a rough estimate, the staff reviewed a list of about 900 new business licenses issued in 2004.  Staff filtered out non-residentially adjacent locations, licenses issued to a new owner/operator of an existing business, professional offices, home occupations, mail order only businesses, single-person businesses, and other businesses unlikely to be open in the late evening.  After calling or visiting the remaining businesses, staff estimates that no more than five or six of them (mostly restaurants or food-service operations) appear to operate after 10:00 p.m.  This could be an over-estimate, since imposing a CUP/AUP requirement may, as noted above, act as a deterrent to would-be late night businesses.   

However, staff notes that the RACI Ordinance also requires a CUP for any existing late night business expanding its size or extending its late night hours.  While a simple remodel would not usually require a CUP, in theory if the remodel included any expansion, even as simple as adding on say a new storage room, then it might require a CUP.  In theory, an existing business would also require a CUP if all it wanted to do was remain open a half-hour or hour later in the evening.  Such businesses would not normally require a new business license, so an estimate based on business license counts probably somewhat underestimates the potential demand for late night CUPs and AUPs. 

Enforcement:

The Noise Ordinance restricts noise above certain thresholds after 10:00 p.m.  It applies to all zones, including residentially adjacent commercial and industrial areas.  Thus, a business could be in violation of the Noise Ordinance if it were creating excessive noise after 10:00 p.m., even if it were not conducting Late Night Business or Late Night Operations.  However, enforcing this kind of decibel based noise limitation can be difficult.  Such regulations work well with respect to machinery or equipment that operates on a continuous or repeating basis.  It is difficult to enforce this kind of restriction against transient or irregular noise such as deliveries, trash dumping, and loud employees or patrons.  By the time a complaint is investigated, the offending noise source is frequently gone or stopped.   

This difficulty of enforcement is one reason many cities, like Burbank, restrict commercial or industrial activity generally (as opposed to just noise) adjacent to noise sensitive uses.  While complaints about late night activities sometimes result from other annoyances such as glare, odors, or dust, noise is usually a major factor. It is often more effective for cities to regulate late night business operations rather than try to enforce against irregular and unpredictable noise sources. 

Noise from Deliveries and Delivery Vehicles:

Noise from deliveries and delivery vehicles is one of the most persistent and difficult noise problems.  Some jurisdictions include deliveries in their late night business restrictions.  Some cities prohibit late night deliveries to residentially adjacent commercial properties even when operating hours are not regulated.  

However, as observed above, there are currently no general restrictions on deliveries during late night hours in Burbank.  The restrictions on �Late Night Operations� specifically exclude deliveries if vehicle and other motors (refrigeration units, forklifts, etc.) are not operated during the delivery.  While BMC �31-1154 prohibits trash pick-ups and congregating in alleys adjacent to residential property during late night hours, this prohibition does not extend to deliveries. The Planning Board and City Council have however included prohibitions on late night deliveries as conditions on CUPs and other discretionary approvals.     

It was suggested by some interviewed business owners/operators that new late night restrictions should be applied to deliveries specifically rather than to business operating hours generally. Staff conducted an informal survey of businesses to determine when what types of businesses usually receive deliveries during late night or early morning hours.  Staff believes that restricting deliveries between 10:00 p.m. and 7:00 a.m. would have an impact on a number of residentially adjacent businesses.   

Although most businesses in Burbank do not receive late night deliveries, there are significant exceptions.  Larger chain stores are typically staffed 24 hours a day and receive deliveries late at night.  Costco reported that most of its deliveries were made between midnight and about 1:00 p.m.; Target reported that it received deliveries occasionally as late as midnight; and Kmart receives its largest delivery at 5:00 a.m.  Large grocery stores also have night crews, although most of them do not receive late night deliveries.  Smaller operations are less likely to have night crews.   

Many food stores and restaurants receive late night or early morning deliveries.  The managers of several coffeehouses and restaurants indicated that they received dairy and baked goods deliveries after 10:00 p.m. or before 6:00 a.m.  Food stores often receive deliveries of dairy products and fresh baked goods in the early morning hours.  Conditions on the CUP for the 7-Eleven store at 600 N. Glenoaks Blvd. prohibit deliveries between 10:00 p.m. and 7:00 a.m. (Exhibit C-4) but make an exception for a single delivery during this time.  According to the store manager, this delivery is for fresh baked goods.  Since large chain grocery stores usually have on-site bakeries and produce their own doughnuts and pastries, the biggest impact of restricting deliveries may be on smaller businesses. 

CARB Engine Idling Regulations:

Even if a business does not accept deliveries during nighttime hours there can still be noise impacts.  One store manager observed that delivery trucks sometimes arrive before his loading dock opens at 7:00 a.m. and wait on the street with their engines idling.  There are legal (as well as practical) limitations on the ability of the City to control engine idling.  Noise from vehicles operating in the public right-of-way is generally controlled by Section 27200 et seq. of the California Vehicle Code.  The City�s Noise Ordinance makes a specific exception for motor vehicle engines with exhaust systems regulated by state law [BMC �21-212]. 

However, on air pollution prevention grounds, the California Air Resources Board (CARB) recently promulgated an administrative rule that restricts idling by diesel-fueled commercial vehicles over 10,000 lbs. gross vehicle weight (Exhibit E-1).  Such vehicles may not idle their primary diesel engine for more than five minutes at any location, and may not operate a diesel fuelled auxiliary power system (such as  an air conditioner) for more than five minutes when within 100 ft. of residentially zoned property.  There are a number of exceptions to the rule (see Exhibit E-1, Section (d), pgs. 1-3).  Further, the rule does not apply to smaller vehicles or gasoline powered vehicles, although diesel powered vehicles generally idle more noisily than gasoline vehicles.   

The CARB rule became Title 13, Section 2485 of the California Code of Regulations (Exhibit E-2) on February 1, 2005, and therefore has the force of law.  The City Attorney�s Office has advised the Police Department that it can now issue citations to vehicles violating this section (Exhibit E-3).  From a noise standpoint, however, it is not clear whether continuous idling would be more or less disturbing to nearby residents than the louder but briefer noise of a diesel truck starting up its engine.  Because of the existing state law, staff is not recommending any restrictions on engine idling beyond the existing RACI Ordinance requirement that engines may not run during Late Night Hours deliveries. 

Alley Deliveries:

Since the Code restricts late night trash pick-up and other activities in alleys, staff considered extending this prohibition to deliveries.  In some ways it seems reasonable to require or encourage late night deliveries to front entrances.  Front entrances frequently face a major or secondary arterial street with a higher ambient noise level than the side street or alley, and are typically farther from residences.  However, this is not always the case.  At the 7-Eleven store at 600 N. Glenoaks Blvd., noise from deliveries was a major issue considered during the CUP hearing even though all deliveries at that location are to a front door facing a major arterial (there is no alley).  The effectiveness of this solution may depend on the geometry of the situation.  At 7-Eleven, there is a multi-story apartment building behind the one-story commercial building.  Prohibiting alley deliveries may make a difference in situations where there is a solid wall of commercial buildings with single-family residences behind (such as on Magnolia Blvd.), but is unlikely to have a significant effect where the commercial buildings are separate stand-alone buildings or where residential properties are located across the street from the front door of the business.  

Implementing Delivery Restrictions:

A significant issue with restricting delivery hours is how to implement the restrictions.  If delivery restrictions are made retroactive, dozens of businesses that rely on late night or early morning deliveries could be affected.  Exempting any business with existing late night deliveries would also be difficult.  While the existing RACI ordinances includes grandfather provisions for existing businesses, it is generally easier to verify the operating hours of an existing business than to verify its delivery hours, which are determined by a number of factors and may change over time.   

Staff is not recommending any new limitations on deliveries beyond the existing restrictions in the RACI Ordinance.  If the Council wishes to restrict delivery hours, staff believes that an AUP requirement or other procedure for allowing exceptions will be necessary for many businesses due to their existing delivery practices.  Cities that limit deliveries have a wide variety of practices for allowing exceptions.  Some cities require variances, while others, such as Santa Monica, have an administrative hearing process.   

Existing Permit Requirements:

As noted throughout this report, many businesses that may operate late at night are subject to other discretionary permits, such as for alcohol sales or drive-through service.   

It is common for the city to use these types of discretionary approvals to impose restrictions on business hours and on deliveries.  For example: 

In 2002 the Trader Joe�s at 216 E. Alameda applied for a CUP for alcohol sales, but the CUP conditions of approval also included the following restrictions (Exhibit C-2):

a) Business hours were limited to 9:00 a.m. to 9:00 p.m. (because it is residentially adjacent they would have otherwise been restricted between midnight and 6:00 a.m.)

b) No site maintenance or trash collection between 10:00 p.m. and 7:00 a.m.

c) No deliveries allowed between 10:00 p.m. and 6:00 a.m. 

The September 2000 Planned Development agreement for the Rancho Marketplace on Alameda restricts store business hours to 6:00 a.m. to midnight and deliveries to 6:00 a.m. to 10:00 p.m.  Since the store is allowed to have employees on-site after midnight, this is equivalent to approving Late Night Operations through an AUP, but not approving a Late Night Business CUP (Exhibit C-3). 

Thus a large percentage of residentially adjacent businesses require some type of CUP or other discretionary permit, regardless of whether they operate late at night.  A notable exception is restaurants not serving alcohol and fast food restaurants in particular.  There is a specific CUP requirement in the use table [BMC �31-502] for residentially adjacent �fast food� restaurants open between midnight and 6:00 a.m. This requirement duplicates the requirements of the RACI Ordinance.  To address restaurants individually, one option would be to broaden this requirement.   

As shown above, it is common practice for the City to include restricted hours of operation and hours of deliveries as conditions on these CUPs as a means of mitigating the secondary effects of these businesses.  However, it is important that that there is an identifiable nexus between any conditions attached to a CUP or other discretionary permit and the actual impacts of the proposed use. 

Exceptions for Certain Districts:

As noted above, late night businesses in Burbank are generally concentrated in certain areas of the City.  The RACI Ordinance however applies uniformly to all residentially adjacent areas, and would still do so under the proposed amendment.  Other cities have recognized that certain areas are more likely to attract evening street life and activity, and recognize this in their regulations.  Berkeley does so explicitly by setting different hours for different districts. Pasadena does this by not applying its late night business restrictions to certain areas, such as Old Pasadena.   

Thus, one option for amending the RACI Ordinance would be to establish different late night hours for different areas of the City.  Identifying those areas for which later (or earlier) hours may be appropriate is beyond the scope of this report.  However, if the City Council wishes to investigate areas where different hours might apply, staff suggests that the core Magnolia Park district and possibly parts of the Media District are likely candidates.  The 1994 Magnolia Park Commercial Corridor: Plan of Action discusses encouraging uses to promote �evening trade� as long as they are neighborhood oriented (Exhibit F).  Staff attended an October 2004 meeting of the Magnolia Park Community Advisory Committee, at which committee members expressed concern about the effects of the proposed amendment on their efforts to encourage street life in the Magnolia Park area.   

Staff notes however that Magnolia Park is a classic example of problems that can result from a commercial/residential interface, and any allowance for later hours would directly impact the surrounding residential neighborhood.  The primary nightlife area of the City is the downtown area, which is generally unaffected by the existing RACI Ordinance and the proposed amendments. 

Weekend Hours:

The current RACI Ordinance and the proposed amendment prescribe uniform late night hours for all nights of the week.  It became evident in the course of the staff�s windshield survey and subsequent conversations with business owners that many businesses are open later on certain evenings, especially weekends.   

Notably, staff interviewed the managers of several live theaters in Burbank.  Although their closing times vary somewhat depending on the production, typically they let out between 10:00 to 10:30 p.m. on Thursday, Friday, and Saturday evenings.  Sunday shows typically start earlier and thus let out earlier.  There are usually no performances on Monday, Tuesday, or Wednesday evenings. 

It was also clear from the staff�s survey and interviews that it is common practice for all categories of restaurants to remain open later on Friday and Saturday evenings.  A few other types of businesses also have later hours on weekends.  For example, the Ralph�s market at 1100 N. San Fernando closes at 2:00 a.m. weekdays, but is open 24 hours on weekends.   

Late night ordinances in some other cities (e.g. Berkeley) provide for later hours on weekend evenings.  If the City Council adopts more restrictive late night business hours, staff recommends considering an exception for Friday and Saturday evenings.  This option would still leave a discrepancy between the RACI Ordinance hours and the Noise Ordinance hours, but the difference would be limited to only two nights a week. 

Administrative vs. Conditional Permits:

Staff has found that for many project applicants, the time and effort of going through a discretionary approval process is more of a concern than the cost of the process.  A CUP typically takes several months to process.  An AUP can be processed in as little as four to six weeks because there is no public hearing if no appeal is filed.  For the City, the difference in processing cost is considerable.  A staff study determined that the average cost of processing a CUP or variance with a public hearing is about $5,500, while an AUP without a public hearing costs about $1,900.  From a staff resources standpoint, consideration might be given to requiring an AUP rather than a CUP for Late Night Business between 10:00 p.m. and midnight or 6:00 to 7:00 a.m., while retaining the CUP requirement for after midnight and before 6:00 a.m. 

Other Options:

Advisory Signs:

The City of Santa Monica requires residentially adjacent nightclubs, bars and certain restaurants to post signs at the exits stating: 

(1)     �This establishment is located near residences.  Please be courteous to our neighbors and do not disturb their peace and quiet as you leave.�

(2)     �If you used valet service to park your car, please ask your passengers to remain inside this establishment until your car is retrieved.� 

Santa Monica also requires bars and nightclubs to designate an employee with the responsibility of ensuring that departing patrons do not become loud and disorderly for 30 minutes before and after closing. 

The last requirement works best with establishments where a large number of patrons depart all at once, such as a nightclub.  Burbank does not have many of these uses, and those that do exist are mostly located downtown where the RACI Ordinance generally does not apply. Further, any new establishments of that type would likely be subject to a CUP process, where conditions of approval can be used to address these issues.   

Requiring a Permit in Response to Complaints:

As described above, the City of Menlo Park, California requires a CUP for businesses within 300 ft. of a residential zone to operate between midnight and 6:00 a.m., but only if the business has been the subject of a written complaint.  This has the advantage of giving businesses a strong incentive to get along with the neighbors, and may also reduce the number of permit applications submitted to the City.  However, the City Attorney�s office questioned this approach on due process grounds.  The requirement could turn out to be arbitrary if one business is required to obtain a CUP because of a disgruntled neighbor, while other similarly situated businesses are not. 

Excepting Certain Types of Businesses:

Late night ordinances in some cities make exceptions for certain types of businesses.  For example, Pasadena exempts ATM machines, offices with less than 15 employees, mortuaries, hotels and motels, personal services such as barber shops and beauty salons, personal improvement services such as ballet and karate schools, and a few others.  Some of these exceptions seem logical.  Hotels and motels operate at night by the nature of their business, and small offices probably create minimal noise. Others seem less obvious; in the windshield survey, staff did not find any barber shops, beauty salons, or dance studios that were open at or after 10:00 p.m.  Further, staff believes that exempting certain classes of businesses could reduce the effective of the ordinance.    

CONCLUSION:

Historically, Burbank has not seen a high demand for late night business services.  The City has approved only a handful of Late Night Business CUPs in the seven years the RACI Ordinance has been in operation.  On the other hand, there is some evidence that changes in the business climate and lifestyles may be increasing the demand for some late night business services.  Although it is difficult to estimate, staff believes that some businesses would be affected by extending the late night hours to 10:00 p.m. to 7:00 a.m. 

As noted by the License and Code Services Division and Police Department, historically a small number of establishments have been responsible for a disproportionate share of complaints received.  The License and Code staff attributes the marked decrease in noise complaints over the last year to the closure or new management of only two or three establishments.  While the method of archiving noise complaints makes it difficult to get a broad overview of noise complaints, it can provide a history of a chronic problem business.  Staff also finds that the existing code requirements for CUPs and other discretionary permits can help limit late night disturbances.  Anecdotal evidence from License and Code Services and the Police Department suggests that certain types of uses such as bars and nightclubs are most likely to generate complaints, and these uses require a CUP.  Most existing residentially adjacent bars and nightclubs predate adoption of the RACI Ordinance. 

The decline in complaints following closure of, or new management at, just a few businesses suggests that late night business disturbances can be dealt with by enforcement under existing regulations.   

Deliveries

Staff is not recommending any changes to the regulations for deliveries during late night hours.  They are currently allowed if no motors are run during the delivery.  If late night delivery restrictions were applied to existing businesses, a large number of businesses (restaurants, cafes, doughnut shops, food stores and others) would be affected.  Even if an AUP or other means for granting exceptions was available, it would still be a burden on businesses (especially smaller or start-up businesses). If delivery restrictions were applied only to new or businesses, they could be applied through the AUP or CUP process where restrictions could be tailored to the individual situation.   

Further, the RACI Ordinance currently prohibits running motors during the delivery.  This, as one store owner pointed out, does not prevent delivery vehicles from idling while waiting off-site to make a delivery.  However, the new California Air Resources Board regulation, while intended as an air pollution reduction measure, may give the City a tool to regulate engine idling at all hours.  While engine idling is not the only possible source of noise during deliveries, it is a persistent source of complaints from neighboring property owners.  Therefore, staff is not recommending any changes to the RACI Ordinance regarding delivery hours. 

CEQA DETERMINATION:

Pursuant to the California Environmental Quality Act (CEQA), a Negative Declaration has been prepared for the proposed ordinance amendment that indicates that the project will have no significant environmental effects.  The Negative Declaration is attached to this report as Exhibits G-1 to G-5.   

FISCAL IMPACT:

Adoption of the proposed Zone Text Amendment would likely increase the number of AUP and CUP applications.  If the above estimate of five to six additional CUP applications per year is correct, then based on a estimated average cost of $5500 in staff time and materials to process a discretionary permit application, the estimated fiscal impact of the amendment will be in the range of $27,500 to $33,000 per year.  This estimate includes only costs to the Community Development Department and does not include costs borne by other City departments such as notice printing and mailing.  As discussed above, the estimate of five to six additional CUP applications per years is probably on the conservative side.  If an administrative permit (AUP) were required rather than a CUP, the estimated impact would be between $9500 and $11,500, based on an estimated average cost of $1900 to process administrative permits.   To the extent that the proposed amendment could result in a few businesses operators deciding not to start a business, or operating for fewer hours than they would otherwise, City revenues from sales tax and business license receipts could be slightly reduced. 

PLANNING BOARD ACTION:

The Planning Board considered the proposed amendment at a public hearing on February 14, 2005.  Minutes of the Planning Board meeting are attached as Exhibit H-1.  Because Staff believed the restrictions proposed by the proposed amendment could have a significant impact on many businesses, staff presented two draft ordinances.  One ordinance would have simply changed the definition of Late Night Hours as directed by the Council.  The alternative Ordinance (Exhibit H-4):  1) provided for later hours on weekend (Friday and Saturday) evenings, and 2) proposed requiring an AUP rather than a CUP for operations during the hours from 10:00 p.m. to midnight and from 6:00 a.m. to 7:00 a.m. 

In its deliberations, the Planning Board determined that the information available regarding the nature, source, time, and type of noise complaints did not warrant proceeding with an amendment to the code.  Board Member Jackson said that he could support extending the time frame for �Late Night Hours� as requested by the City Council but believed that 11:00 p.m. rather than 10:00 p.m. would be an appropriate cut off time.  Other Board members, however, believed it was premature to adopt any changes without having additional information about the nature of noise complaints.  The Board recommended that, within budgetary constraints, the Council direct staff to conduct a specific study of noise complaints for a period of six to 12 months during which the staff would collect data on noise complaints received.  Such data would be used to determine if late night noise problems would be better resolved by targeting specific locations or areas, targeting certain  types of businesses, or targeting certain business activities (deliveries, trash removal, etc.) rather than a uniform City-wide regulation.  The Planning Board recommended against both the amendment as requested by the City Council and the alternative proposed by staff.  The Board voted 4 to 1 (Mr. Jackson opposed) to adopt Resolution No. 2974 (Exhibit H-2) which recommends against adopting Zone Text Amendment No. 2004-161 and recommends collecting additional data about future noise complaints. 

STAFF RECOMMENDATION:

Staff concurs with the recommendation of the Planning Board that the City should undertake a targeted survey of noise related complaints before deciding whether to adopt more restrictive Late Night Hours regulations.  Although adequate evidence is not available for current or past complaints, License and Code staff believes that a disproportionate number of late night noise complaints are generated by only a few businesses and complainants.  This suggests that noise problems may be more effectively addressed through case-by-case enforcement rather than through a broad-brush approach as in the proposed code amendment.  Collecting adequate data for future complaints would help to better assess the situation. 

Planning staff consulted with the License and Code Services staff and determined that it would be possible to catalogue all complaints involving noise for a certain period of time.  Planning staff would examine all noise complaints to gather more specific data on the time, place, source, and context of noise complaints.  The study could be targeted to determine the geographic distribution of complaints and the main sources of noise problems. Planning and License and Code staff believe that a period of six to 12 months would be sufficient to determine what changes are needed to the RACI Ordinance, if any, to more effectively or efficiently address noise complaints.

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