PURPOSE:

This report responds to Mayor Vander Borght�s request for a one-step, two-step report regarding the 300-foot radius separation requirement for second dwelling units in the R-1 single family residential zone. 

BACKGROUND:

At the City Council meeting of September 27, 2005, Mayor Vander Borght asked that staff bring back a one-step, two-step agenda item regarding second dwelling units (SDUs).  Specifically, the Mayor requested that the Council consider an amendment to the Burbank Municipal Code (BMC) to include legal nonconforming duplexes in the separation requirement for SDUs in the R-1 zone, such that an SDU could not locate within 300 feet of another SDU or a legal nonconforming duplex.

Current Requirement

In response to changes in the State laws that govern the regulation of SDUs, the City Council in 2003 adopted an amendment to the BMC that changed the City�s requirements for the establishment of SDUs in the R-1 zone.  One of the standards adopted by the Council was a spacing requirement between SDUs in an effort to limit their proliferation in single family neighborhoods.  The Code stipulates that no SDU may be established on a lot located within 300 feet of another lot on which an SDU is located.  For guidance in making this determination, BMC Section 31-625.7(a) provides:

For the purposes of determining whether a lot has a second dwelling unit, any lot which has been legally approved for a second dwelling unit under this Chapter will be deemed to have a second dwelling unit on it, whether or not such unit is in fact currently occupied or can be legally occupied.

Once a property has been approved for an SDU and the unit is constructed, no other property within a 300-foot radius of that property may be approved for an SDU so long as the structure remains in place and the property owner does not elect to abandon the SDU approval.  The phrase �or can be legally occupied� in the Code text refers to situations where a legal SDU is present on a property but where it cannot be occupied because the property owner does not live on the property.  To avoid a proliferation of rental units, one of the SDU development standards requires that the owner of the property live in either the primary dwelling unit or the SDU.  Both units cannot be rented.  Therefore, if an SDU is present on a property but the property owner rents out the primary dwelling unit and does not live on the property, the SDU cannot be rented separately or occupied.  However, so long as the SDU exists as originally permitted, it could be legally occupied again at a future time if the property owner or a future owner opted to live on-site, and therefore still must be considered for the separation requirement.

Review for Separation and Types of Second Dwelling Units

When an applicant submits an SDU permit application, staff must use two different sources to determine whether there are any existing SDUs within a 300-foot radius due to the varying ways in which SDUs were approved in the past.  Under the current requirements adopted in 2003, applications for SDUs are approved or denied through the ministerial SDU permit process.  Staff records and maps the location of each approved SDU permit and therefore knows with certainty where such SDUs are located.  Between 1983 and 2001 (a moratorium prohibited the approval of any SDUs from 2001 to 2003), SDUs were approved through the conditional use permit (CUP) process.  As with SDU permits, staff has recorded and mapped the location of all SDUs approved through the CUP process.  For these two types of SDUs, staff reviews the map of all existing SDU locations to determine whether the separation requirement would be satisfied.

Prior to 1983, no formal process existed for approving SDUs and there is no central file or map that documents the older SDUs.  Documentation for such SDUs is contained only within the building permit archives by address.  Therefore, staff must review the building permit records for all lots within a 300-foot radius of the lot where the SDU is proposed to determine if there is any evidence of a pre-1983 SDU.  Such evidence may be in the form of an approval letter from the Planning Director or other such approval document.  Often, such documents date back to the 1950s or 1960s, and occasionally as far back as the 1920s.

In addition to these SDUs, there are other situations where more than one unit is present on a lot.  A number of R-1 properties in the City have actual duplexes that were legal when constructed and are now considered legal nonconforming.  There are also a small number of properties that have two single family homes built on them, some of which have been approved through the CUP process (as currently allowed by the Code on lots of 11,750 square feet or greater).  Further, a large number of R-1 lots contain �guest houses,� which were at one time legally permitted in the R-1 zone.  BMC Section 31-1813 governs the use of such guest houses, and prohibits them from containing kitchen facilities or being rented out or used for sleeping purposes by other than temporary non-paying guests and family members.

Because BMC Section 31-625.7(a) only includes existing SDUs in the separation requirement, staff�s interpretation of that section has been to include those structures that were approved or built as SDUs as part of the separation requirement, meaning that a new SDU could not locate within 300 feet of any such structure, even if it were approved prior to 1983 under a previous permitting process.  Duplexes, additional single family homes, and guest houses have not been included for the purposes of the separation requirement, meaning that a new SDU would be permitted to locate within 300 feet of any such existing structure.

ANALYSIS:

If the Council wishes to consider the inclusion of duplexes or other such structures in the SDU separation requirement, the Council may direct staff to return with a second step report that would seek Council direction to initiate a zone text amendment.  Staff would provide the Council with additional information on this matter in the second step report.  However, staff offers two points for the Council to consider:

1.      The City�s current separation requirement for SDUs is not explicitly authorized by State law, and as such carries with it some risk.  While other communities have adopted similar spacing limitations and no legal challenges have yet been raised, there is some question as to whether a separation requirement is permissible under State law.  Revisiting the City�s spacing limitation and expanding it through the inclusion of legal nonconforming duplexes or other such structures could increase the risks of having such a requirement.  As the Council is aware, the City is largely preempted by State law in its regulation of SDUs, and the recent changes to the SDU law have left this area with a great deal of legal uncertainty.

2.      BMC provisions governing legal nonconforming uses and structures provide that if a legal nonconforming duplex in the R-1 zone were destroyed, it could not be reconstructed because there would be no way to do so in compliance with current Code requirements (since duplexes are prohibited in the R-1 zone).  Staff believes that there is a question of equity and fairness associated with including such structures in the separation requirement: all properties within a 300-foot radius of the legal nonconforming duplex would be denied the opportunity to construct a new SDU in compliance with today�s Code requirements because one of their neighbors maintained a structure that would not be legal to construct under current standards.

CONCLUSION:

Under current Code requirements, no SDU may be built within 300 feet of an existing SDU.  If the Council wishes to consider the inclusion of legal nonconforming duplexes or other such structures in the separation requirement, a zone text amendment would be required.  Any changes to the City�s SDU ordinance should be carefully considered in light of the legal uncertainties and risks inherent in SDU legislation.

RECOMMENDATION:

Staff recommends that the City Council determine whether it wishes for this matter to be placed on a future agenda.  Staff seeks direction from the Council on what additional information it would like included in the second step report to assist in its deliberations on whether to initiate a zone text amendment on this matter.

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