APPEAL OF PROJECT NO. 2004-195 SECOND DWELLING UNIT AND PROJECT NO. 2005-78 VARIANCE

PURPOSE:

The purpose of this report is to consider an appeal of the Planning Board�s decision to approve a second dwelling unit and variance at 438 North Ontario Street.  The second dwelling unit permit requested by Janet Gallegos is to permit the conversion of an existing guest house into a second dwelling unit.  The variance was required because the unit is proposed to be located within 300 feet of another approved second dwelling unit.  Appealing the Planning Board�s decision are three different parties: 1) David Heidenreich of 435 North Ontario Street, 2) Robin Wright and Steven Nazarians of 406 North Ontario Street, and 3) Traci and Ken Mayo of 341 North Ontario Street.

BACKGROUND:

Property Location:  The subject property is located at 438 North Ontario Street [Lot 7, Tract 6894; MB 77-58-61].  The property is located on the east side of Ontario, just south of Verdugo Avenue.

Zoning:  The subject property is zoned R-1 Single Family Residential. (Exhibit A-1)

General Plan Designation:  The Land Use Element designates the property Single Family Low Density, which is consistent with the existing zoning designation and which allows second dwelling units.

Property Dimensions:  The property is rectangular with a width of 45 feet, a depth of 135 feet, and a total lot area of 6,075 square feet.

Street Classifications:  Ontario Street is designated as a Local Street with a 60 foot right-of-way (36 feet paved with 12-foot sidewalks and parkways on each side).

Current and Past Development of the Site:  The property is occupied by two structures.  The structure in the rear was originally built in 1936 and was intended as a garage, however it was noted on the building permit issued at that time that the structure could be used as a dwelling unit while the residence was being constructed at the front of the property.  In 1940, the building permit was issued to construct the single family residence at the front of the lot.  In 1959, the Planning Director, in accordance with code at that time, approved the conversion of the garage structure to a guest house and no replacement off-street parking was required. (Exhibit C)  The property has existed in this matter until the present day.

Project Description:  The applicant requested approval to convert the 440 square foot guest home to a second dwelling unit (SDU). (Exhibits B-1 through B-3)  Guest homes, such as this one, are considered legal non-conforming structures as they were legal when constructed, but Burbank Municipal Code (BMC) no longer permits them for new construction.  Guest homes are to be used as temporary living facilities for guests of the main home and kitchen or cooking facilities are not permitted.  This is different from an SDU which must include a kitchen and may be rented for permanent living facilities to anyone of the owner�s choosing.

The applicant recently purchased the home and stated she wishes to rent out the SDU as she needs assistance in making the monthly mortgage payment.

In accordance with a the SDU ordinance adopted by the City Council in 2003 in response to changes in state law, SDUs are permitted only where another SDU does not exist within 300 feet as measured from the property lines.  Additionally, SDUs must include an off-street parking space that is separate from any parking spaces for the single family home.  Because the two car garage was legally permitted to convert to the guest house and no other off-street parking was required to replace it, the parking space required for the SDU can be located within the existing driveway, as proposed.

History of the Proposed Second Dwelling Unit:  In her application, the applicant gives a brief description of an error made by staff that led to her being the second property owner to request an SDU application in this area.  Below is a history of this issue.

In August 2004, the applicant made an initial contact with the Planning Division to discuss the possibility for converting her guest home into an SDU.  At the time, staff had worked with a neighbor, at 415 North Ontario Street, regarding two units on her R-1 zoned property. (Exhibit A-2)  She was claiming that her single family home had been converted into two units some time ago (before she owned it) and she wanted to now identify it as a single family home because she was having difficulty with her lender and obtaining insurance.  The property had two legal electrical meters, two kitchens and an outdoor staircase leading to the �second� unit.  It was also identified as two units in the Los Angeles County Assessor�s records.  The planner working with this neighbor, who was also the planner who worked on creating the new SDU ordinance, erred in identifying the additional unit at 415 North Ontario Street as a �second dwelling unit� subject to the 300 foot distance requirement.  The planner therefore informed the applicant that there was another SDU within 300 feet and she could apply if she wanted, but would be denied because of the inability to satisfy the distance requirement.

In September 2004, the property owner at 430 North Ontario Street contacted the Planning Division about the possibility of constructing an SDU.  This property owner had applied for a Conditional Use Permit (CUP) for an SDU on two previous occasions under the previous SDU ordinance which required a CUP for all SDUs.  This property owner had also applied for variances in conjunction with both CUP applications because the units were detached from the main home, and the previous SDU ordinance required all SDUs to be attached to the main dwelling.  The Planning Board, on both occasions, denied the applicant�s request because they were not able to make the required findings.  Following Council adoption of the revised SDU ordinance, the property owner of 430 North Ontario Street contacted staff and inquired about filing an SDU application.  Staff again identified two units on the property at 415 North Ontario Street.  However, after a discussion between staff and the City Attorney�s office, it was determined that the additional unit on this lot did not qualify as a �second dwelling unit� subject to the 300 foot separation requirement.  The additional unit on the property, like a handful of other R-1 properties in the City, was not constructed pursuant to �second dwelling unit� provisions, but was apparently built (although its legal status is unclear) pursuant to other now-repealed Code provisions that allowed for more than one unit to be constructed on a single family property (similar to a duplex).  The property owner at 430 North Ontario Street was told that she could apply and a formal, complete search would be conducted once she applied for the SDU permit.

Later in September 2004, the property owner of 430 North Ontario submitted an SDU application.  Staff conducted the required search of building permit records for the 300 foot radius and found no indication of any SDU permitted within that radius.  Staff proceeded with the application and approved the request on November 15, 2004.  That same day, in accordance with code, a notice was mailed out to a 300 foot radius notifying neighbors of the Director�s tentative decision to approve the SDU application, and stating that an appeal must be filed within 15 days.  The notice also indicated that the permit is a by-right approval and that the only valid basis for appeal would be if the proposed project did not comply with Code.

During the appeal period in November 2004, the applicant contacted staff concerned that a home only two doors down was getting approved for an SDU when she was told she was within the 300 foot radius of another one.  At this time, initial staff error was discovered.  Ms. Gallegos did not appeal the decision; she was informed the proposed unit met all code requirements.

Ms. Gallegos applied for an SDU and after many months of determining the appropriate process (appeal of SDU denial, variance, Appeals Board, etc) that application was denied; Ms. Gallegos appealed the decision and also filed for a variance to vary from the 300 foot distance requirement.

Municipal Code Conformance:  Except for the 300 foot distance between another legal second dwelling unit, the proposed project meets all requirements for an SDU including the size limitation of 500 square feet, the height limitation of 13 feet to the ceiling and 17 feet to the top of the roof, the 6,000 square foot minimum lot size, and the owner occupancy of the lot.  The garage of the single family home was permitted for conversion and no new off-street parking was required.  Therefore, the applicant need only provide the one parking space for the SDU.

Planning Board Deliberations and Decision:  On July 25, 2005, a public hearing was held on applicant�s request to appeal the denial decision of the Community Development Director and to approve a variance for the 300 foot distance requirement.  The Board voted 3-1 to approve the SDU and variance. (Exhibits D-1 and D-2)  This was after much discussion and public comment.  There were five speakers who were in opposition to the project.  They stated the project would have negative impacts to their single family neighborhood including traffic and parking problems.  They felt that approving the project would set a precedent.  The Planning Board believed there were compelling arguments from both sides.  The members who supported approval stated that the location of the lot and situation of the existing guest house was unique and warranted approval of the variance.  Because the structure was existing as a guest house, they did not believe there would be density impacts.

Appeals and Public Correspondence: Prior to the public hearing, staff received three letters in opposition to the proposal and five letters in support.  One member of the public also brought a petition to the meeting with 16 signatures representing 10 households who were opposed to the project. (Exhibit E-1)  Those who were opposed stated there were already many legal and �illegal� second units on the block and they do not wish there to be a change to their single family neighborhood.  One resident stated they wish Ms. Gallegos� unit was legal and that the owner of 430 North Ontario Street be penalized.  The letters in support stated that Ms. Gallegos is a good neighbor and they have no doubt that she will continue to maintain and uphold the quality of their neighborhood with this rental unit.

Since the three appeals were filed, staff has received two additional letters in support of the project. (Exhibit E-2)  No other correspondence has been received since the appeals were filed.  It is important to note, however, that some of the appeals also contain letters and petitions from other neighbors opposing the project. (Exhibits E-3 through E-5)  In total, 22 households in the nearby area stated their opposition to the SDU and variance.  A full discussion of the appeals is below.

ANALYSIS

Surrounding Neighborhood:  The subject property is surrounded by other R-1 zoned properties.  Besides the recently approved SDU, there are no other SDUs found in the immediate area.  However, based on the reports of neighbors, there appear to be some homes within the adjacent neighborhood that have illegal second units.  There are two pending code enforcement actions on nearby properties (including 415 North Ontario Street) and staff has asked the neighbors to provide addresses of other possible illegal units.  Any updates on these enforcement items will be presented at the Council meeting.

One neighbor mentioned that there are already many cars parked on the street now.  The applicant submitted photographs taken at different times of the day indicating available street parking. (Exhibit B-2)

New Policy on Second Dwelling Unit Applications:  After the staff error with the applicant on this matter, the Planning Division changed their policy on SDU applications.  The first response was to simply require all potential applicants to apply for the permit as a first step rather than staff providing a �courtesy check� of the 300-foot radius prior to application filing.  The staff would then do a complete building permit search to determine if there was another SDU within 300 feet only after the application was filed.  While this approach provides the ultimate guarantee, it is not customer friendly as it requires the applicant to put much time and expense into preparing the application and plans for a project which may not be permitted.  The Division, therefore, has implemented a two step application process.  A two page application briefly describing the project will be submitted and staff will conduct the 300 foot radius search.  If no SDU is found, the applicant will have 30 days to submit the remainder of the application including plans.  If an SDU is found within 300 feet, the applicant is refunded the application fee and no expenses or additional time are incurred by the property owner.  This maintains the guarantee that the first application in is the first processed, but it saves the applicant time and money if there is another SDU within 300 feet.

Issues Raised by the Appellants: Although three appeals were filed, most of the issues discussed are the same.  Therefore, all issues are discussed below with staff responses in italics.  Just to note, some appellants mentioned that the appeal fee was waived for the applicant and they too wish the appeal fee to be waived; staff has arranged for the return of all appeal fees.

1)  The project does not meet the 300 foot distance requirement from another SDU [�31-625.7(a)].  This is a development standard for SDUs and like other development standards, an applicant may request a variance from this standard.  The Planning Board was able to make the four findings required for a variance and therefore this project did not have to comply with the 300 foot distance requirement.

2)  There is a �duplex� at 415 North Ontario Street that is also within the required 300 foot separation from both 430 and 438 North Ontario Street.  As staff has discussed earlier, a legal non-conforming duplex is not considered in the 300 foot distance limitation.  Only units that were approved as second dwelling units are considered.  The legal non-conforming duplexes act as if they are zoned R-2 temporarily.  However, in the case of 415 North Ontario Street, the City has no records indicating this is a legal duplex.  The County Tax Assessor�s office, which lists this property as a duplex, often has incorrect information.  The homeowner recently received a permit to remodel the single family home and those plans indicate only one unit with one kitchen.  This is currently a code enforcement case and the City is following up to make sure there is not an illegal second unit.

3)  There is no covered parking for 438 North Ontario Street main house and no off street parking for the future second dwelling unit.  Code states the parking shall not be located within the driveway [�31-625.5(g)].  In 1959, permission from the City was granted to convert the garage to a permanent guest house.  At that time, the two car garage was not required to be replaced with another garage.  Therefore, the main house has no required parking spaces.  Codes states that there shall be one parking space for the SDU in addition to the spaces required for the single family home.  Because no spaces are required for the single family home, only one space is required on this lot with the SDU.  Codes states that this space is not to be located in a driveway so a tandem parking situation is not created.  Because the existing �driveway� does not lead to a legal parking space, it is not considered a driveway and therefore, having the new off street parking space at the end of the �driveway� is not creating a tandem situation.

4)  The SDU will impact the single family zone and change the quality living conditions.  Temporary occupants with safety, traffic, and parking issues ruin the integrity of the R-1 neighborhood.  All appellants state code �31-625.1(6) but because that code section does not exist, likely they meant 31-625.2(6).  However, these are the findings Council adopted when creating the ordinance.  Council was stating that �these second dwelling units, as regulated in this Chapter, will not jeopardize the character and quality of single family neighborhoods.�  Through the adoption of the ordinance, Council was stating that SDUs would not impact the single family zones.  The SDU permit is not discretionary and these types of qualitative measures cannot be considered.  However, to approve the variance, Council has to find that �the granting of the variance will not be materially detrimental to the public welfare or injurious to property or improvements in the vicinity and zone in which the property is located.�     The Planning Board was able to make this finding and believed that the code section that requires the property owner to live on site was key.  They found that the homeowner will insure that the conversion of the structure from a guest house to a rented SDU would not have a detrimental effect on nearby properties.  When considering this finding, the Board looked at safety, parking and traffic impacts as well.  They did not believe one additional permitted SDU within the 300 foot radius would injure property within the zone.

5)  Approval will set a precedent for future unwanted SDU rentals.  Because of the unique situation, staff does not believe this approval will set a precedent.  A variance would have to be approved and it would be difficult to make the finding of �extraordinary circumstances.�

Environmental Status: The project has been determined to be Categorically Exempt pursuant to Section 15303(a) of the California Environmental Quality Act, pertaining to single family homes and second dwelling units. (Exhibit F)

CONCLUSION:

Without approval of the variance, it is clear that the SDU application must be denied.  There is, in fact, an SDU within 300 feet and Burbank Municipal Code states that one may not be approved within 300 feet of a previously approved application.  However, the applicant makes the claim that the 430 North Ontario Street erroneously became the first application received, because of an error by staff.  If the variance is granted, staff believes the ministerial findings for approval of an SDU can be made.

Although there are extenuating circumstances, staff is not able to make two of the four required variance findings.  The Planning Board, however, was able to make these findings.  Below is the staff analysis of each finding.  Attached is the Planning Board resolution of approval which lists the findings they were able to make with conditions of approval attached. (Exhibit D-1)

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

The lot is a typical rectangular lot in the City of Burbank.  There are not exceptional circumstances with this property that are not applicable to other properties in the R-1 zone.  When state law changed requiring the City to adopt a new second dwelling unit ordinance, the City Council was faced with a possible proliferation of by-right units and therefore placed the 300 foot radius requirement on these projects.  This lot, like others, must comply with this limitation.

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

The right to have an SDU within 300 feet of another SDU is not a right possessed by other property owners under like conditions.  The only property owners with this right are ones who had received a CUP for approval of an SDU within 300 feet of another property with a CUP for an SDU before the code change.  Such is not the case with this applicant.  Ultimately, the only guarantee to receive an SDU is to apply for one.  Granted, the applicant was given erroneous information which she states led to her not applying for the permit.  However, the neighbor had been denied a CUP on two previous occasions for an SDU and therefore when the code changed to permit them by-right, she was prepared to apply and did.

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

Staff does not believe that granting of this variance would be materially detrimental to the public welfare or injurious to property or improvements in the vicinity and zone in which the property is located.  Two residents have stated their concern for a change to the single family residential character of the neighborhood, but one additional second dwelling unit would not cause this change.  Also, the project is a conversion from a guest house to second dwelling unit and while guest homes are not rented, like SDUs, the property owner is required to live on the property with an SDU.  Therefore, the homeowner will insure the use does not have a detrimental effect on the public welfare or nearby properties.

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

A General Plan Objective includes a goal to �maintain attractive residential neighborhoods.�  The subject property and surrounding neighborhood is classified as Single Family Low Density Residential, permitting two units per lot.  The conversion of the guest house, which is currently adequately maintained, will not conflict with this objective.

RECOMMENDATION:

Staff recommends that the City Council deny Project No. 2005-78, Variance, and Project No. 2004-195, Second Dwelling Unit, thereby upholding the appeal of the project�s approval.

LIST OF EXHIBITS:

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

             A-2     Map of neighborhood with addresses

Exhibit B-1       SDU & Variance Application Package

             B-2     Project Plans and photographs

             B-3     SDU Appeal

Exhibit  C        Permits for the subject property

Exhibit  D-1     Planning Board Resolution #2994 approving SDU and Variance

             D-2     Planning Board minutes of July 25, 2005

Exhibit E-1       Public correspondence before Planning Board Hearing

             E-2     Public correspondence received since the appeals were filed

             E-3     Appeal of David Heidenreich

             E-4     Appeal of Robin Wright and Steven Nazarians

             E-5     Appeal of Traci and Ken Mayo

Exhibit F           Public Notice of Environmental Decision

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