PURPOSE:

This report recommends that the City Council approve a zone text amendment that would serve as a �cleanup� ordinance for the recently adopted development standards for the R-1 and R-1-H single family residential zones.  The proposed ordinance would also make minor changes to the requirements for side yard setbacks and the floor area ratio incentive program.

BACKGROUND:

On May 31, 2005, the City Council adopted Ordinance No. 3669 (Exhibit A) to approve new development standards for the R-1 and R-1-H single family residential zones.  The new standards applied to all single family projects submitted to the City for plan check on or after July 1, 2005.  In adopting the standards, the City Council requested that staff return several months after the new standards took effect with a status report on any issues or problems that had arisen from the new standards.  Specifically, the Council was interested in the floor area ratio (FAR) incentive program, which allows property owners to build over the maximum 0.4 FAR limit up to a maximum of 0.45 when certain design features are incorporated into a house project.

In administering the new R-1 standards, staff has identified typographical errors, omissions, and items in need of clarification in the new standards.  In addition to these �cleanup� items, staff is also recommending that the Council consider two minor but substantive changes to the new standards dealing with side yard setbacks and with the FAR incentive program, as discussed below.  Staff desires to fix the minor cleanup items as soon as possible, and to make the desired changes to the FAR incentive program to maximize residents� ability to take advantage of the program.  Therefore, staff has initiated the subject zone text amendment and is bringing it forward to the Council for its consideration in conjunction with the requested report on the status of the R-1 standards and FAR incentive program.

ANALYSIS:

New R-1 Standards

The new standards for the R-1 and R-1-H single family zones have been in effect for about five months.  Aside from the issues discussed in this report, staff has not experienced any problems with the new standards and no major issues have arisen through the administration of the standards.  Staff has found that homeowners have been able to build their desired new homes or additions to effectively meet their space needs, and that the new standards are not overly restrictive.  Staff has received very little to no complaints about problems with any specific standards or any design difficulties that have resulted from any specific standards.  Some homeowners have expressed general concerns about the new standards because they were not previously aware that new standards had been adopted, or because of issues with the timing or overall nature of the standards.  However, these homeowners have still been able to design their proposed house projects consistent with the new requirements.

FAR Incentive Program

Staff has processed only two applications to date from homeowners wishing to exceed the 0.4 FAR.  Both of these applications were approved, as the applicants provided at least five of the design features from the list of eight possible features.  One project took advantage of the maximum 0.45 FAR, while the other project was built to only a 0.42 FAR, but was still required to provide the incentives because it exceeded 0.40.  In both of these cases, staff found that the incentive program worked as intended, and no difficulties were encountered in processing the two requests.

One unintended side effect of the FAR incentive program is that only two-story homes are able to provide the needed incentives.  Because of changes made to the proposed ordinance by the City Council during the public hearing, this consequence was not initially realized by staff.  The Code requires five incentives from a list of eight to be incorporated into a house project in order to qualify for the increased FAR (see page 9 of Exhibit A).  However, it is only possible to include four of the eight incentives in a single-story house; the remaining four incentives can be applied only to a second story.  Therefore, it is not physically possible for a single-story home to provide five incentives.

During its deliberations on the R-1 standards, the Council stated that it did not wish to incentivize the construction of two-story homes, and wished to provide opportunities for people to build larger one story homes.  In keeping with this goal, staff recommends that the FAR incentive program be amended such that single-story homes could qualify under the program.  The two approaches to accomplish this objective would be to either reduce the number of incentives that a single-story home would be required to provide, or to create additional incentives that would be applicable to single-story homes.

In developing the incentive program, staff considered several additional incentives, including those dealing with window placement and privacy issues, and garage placement on a lot.  For a single-story home, privacy is not a concern as it is with two-story homes, so an incentive dealing with window placement would not be appropriate.  The garage placement incentive considered by staff was to place the garage at the rear of the lot when at least half of the homes on the street had such an arrangement, and/or to provide garage access exclusively from the alley when an alley was present.  Because garage placement has not been a critical part of the mansionization discussions in Burbank, staff did not recommend garage placement as one of the incentives.  While other incentives may be possible, incentives that deal more with design or aesthetic issues can be highly subjective and difficult to administer.  Staff has attempted to make the incentives as objective as possible, such that an increased FAR could be approved quickly and fairly through a ministerial process.  Staff believes that the eight incentives now used for the program are relatively straightforward and can be objectively administered without the need for subjective or discretionary review.

The other option is to decrease the number of incentives required for a single-story home.  This is staff�s recommended approach.  Staff recommends that the number of incentives required for a single-story home be reduced to three.  Since four of the existing incentives could apply to a single-story home, a homeowner would be required to provide only three of those four to qualify for an increased FAR of up to 0.45.  The four incentives that could be incorporated into a single-story home are:

• The top plate does not exceed 20 feet in height.  (Staff notes that this would already apply to virtually all single-story homes.)

• The roof pitch is equal to or greater than 6:12.

• Both side yard setbacks are at least two feet greater than the minimum required.

• The roof is a hipped roof, or gables do not face interior side yard elevations.

Staff believes that requiring three of these four incentives to be included in a house project would be a good way to retain the FAR incentive program in its current form, while expanding it to incorporate single-story homes.  If a homeowner is willing to forego a second story, staff believes that it is reasonable to make it possible for them to build to a higher FAR and to make that higher FAR easier to achieve than it would be for someone building a two-story home.

Side Yard Setbacks

When the R-1 standards were adopted, the Council approved a change to the minimum interior and street-facing side yard setback requirements.  Rather than fixed setbacks of five and 10 feet, respectively, the Council approved changes such that the side setbacks would be based on a percentage of the lot width.  Minimum interior side yard setbacks were changed to 10 percent of the lot width with a minimum of three feet and a maximum of 10 feet, and minimum street-facing side yard setbacks were changed to 20 percent of the lot width with a minimum of six feet and a maximum of 20 feet.

Staff understands the Council�s desire to require side yard setbacks in proportion to the size of the lot.  However, staff has found the new side yard setbacks to be difficult to administer and difficult for some applicants to provide.  Homeowners and builders accustomed to dealing with whole-number setbacks have had some difficulty in providing a setback that is measured in inches and fractions of inches rather than feet.  Due to the imprecise nature of construction, it is difficult to determine whether the required setback has actually been provided.  For example, a lot with a width of 52 feet would have a minimum interior side setback requirement of 5.2 feet, or five feet, 2.4 inches.  Such a dimension cannot be shown to a precise degree on plans of typical scale, and cannot be accurately verified in the field once the structure is built.

This requirement has also led to an increase in the number of applications for minor exceptions to continue a non-conforming side yard setback with a house addition.  Many homes in Burbank were built with five-foot side yard setbacks, consistent with the previous Code requirement.  Under the old requirement, an addition could follow the same five-foot setback line and comply with Code.  However, some houses with five-foot setbacks are on lots wider than 50 feet, and therefore now have a setback requirement that is greater than five feet.  Staff has reviewed a number of minor exception requests where the required side yard would be only a few inches or fractions thereof greater than five feet, but where special permission is nonetheless required to expand that house at the five-foot line.

To make the side yard setback easier to administer and construct, staff proposes to change the requirement such that the 10 and 20 percent requirements would be retained, but the minimum required setback would be rounded down to the nearest whole number, or whole foot.  For example, any lot with a width from 40 to 49 feet would have a required interior side yard of four feet, and any lot with a width from 50 to 59 feet would have a required interior side yard of five feet.  Staff believes that this approach would be consistent with the intent of the Council�s desire to require houses on wider lots to provide wider side yard setbacks, but would make it easier for applicants to comply with the requirement.  Since the difference between rounded and unrounded setbacks would always be less than one foot, staff believes that there would be little to no noticeable difference between houses built with a rounded setback.

While it may be argued that it is unfair to require someone with a 50-foot lot to provide a five-foot setback while someone with a 49-foot lot only has to provide a four-foot setback, staff believes that this is a better approach than traditional rounding, since such an approach would require a lot as narrow as 45 feet to provide five-foot side yard setbacks.  One of the original goals with the new R-1 standards was to address side yard setbacks for substandard lots; staff believes that requiring lots smaller than 50 feet to provide five-foot setbacks is not consistent with that goal.

Errors and Omissions

Staff has identified several errors and omissions in the new R-1 standards.  All of the proposed changes for the purpose of fixing errors and omissions are shown in redline in the document attached as Exhibit B and summarized below:

• Section 31-603(D)(6)(d): Delete side yard language from FAR incentive program.

One of the incentives in the FAR incentive program is to provide side yard setbacks at least two feet greater than otherwise required.  There is additional clarifying language with this requirement that applied only when the side yard setbacks were fixed at five feet for interior side yards and ten feet for street-facing side yards.  The Council�s decision to change side yard setbacks to 10 and 20 percent of the lot width, respectively, makes this additional language incorrect and unnecessary.

• Section 31-603(F)(2): Change allowed street-facing side yard encroachment for swimming pools.

Under the adopted standards, swimming pools are permitted to encroach into street-facing side yards up to within five feet of the property line.  This standard was written in anticipation of the Council�s adoption of revised fence standards, which as proposed by staff would have allowed fences and walls taller than the currently allowed three feet to be built along street-facing side property lines to the rear of a house.  Because the fence standards were not adopted by Council, the Code does not allow fences taller than three feet to be placed within a street-facing side yard, which is 20 percent of the width of the lot.  Because the Building Code requires a swimming pool to be enclosed by a fence taller than three feet for safety purposes, it is not possible to build a pool within the street-facing side yard area and provide adequate fencing.  Therefore, staff proposes that the requirement be changed to not allow any encroachment by swimming pools into street-facing side yard areas.  This would allow the pool to be appropriately fenced consistent with the Building Code and the existing fence regulations.

• Section 31-606(G)(4): Insert number �10� accidentally left out of ordinance.

This fixes a typographical error and does not change any requirement.

• Section 31-674 et seq. (Article 6, Division 12): Delete Division 12, old hillside development standards.

The new R-1 standards include special development standards and discretionary permit processes applicable only to the hillside area.  These new standards replace the previous hillside standards contained in Division 12 of Article 6 of BMC Chapter 31.  This Division should have been deleted as part of the ordinance adopting the new R-1 standards.  The deletion was accidentally omitted from the R-1 ordinance adopted by the City Council, and is therefore still part of the BMC until another ordinance is adopted to formally delete it.

Clarifications

Staff has identified several development standards that are in need of clarification.  Again, all of the proposed changes to the R-1 standards are shown in redline in the document attached as Exhibit B and are summarized below:

• Section 31-603(D)(1): Clarify that carports are not counted toward FAR.

The Code currently provides that garages are not counted toward the FAR, but states that other enclosed spaces are included in the FAR.  A carport is considered an enclosed space, but staff�s intent was that carports not be included in FAR calculations, consistent with garages, since garages and carports serve the same purpose to provide off-street parking.

• Section 31-603(D)(6)(g): Clarify that the limitation on the size of the second story in the FAR incentive program is in comparison only to the first story of the primary dwelling unit.

One of the incentives in the FAR incentive program is that the second story is no larger than 75 percent of the floor area of the first story.  Staff frequently receives inquiries as to whether the area of an attached garage or detached accessory structures can be counted toward the floor area of the first story, to allow for a larger second floor.  This was not the intent of this incentive, and the proposed language would clarify that only the floor area of the dwelling unit itself may be used toward this requirement.

• Section 31-603(F)(2): Reorganize and clarify setbacks and encroachments for stairways, decks, and balconies.

The required setbacks and permitted encroachments for stairways, landings, ramps, decks, and balconies were largely carried over from the previous BMC requirements.  In administering these encroachment allowances in conjunction with the new standards, staff has encountered several unintended results of the encroachments as written.  For example, stairways providing access from grade level into the house on a lot with a sloped front yard are currently permitted to encroach only four feet into the front yard.  Depending upon the slope of the front yard, it may not be possible to provide stairway access into the house consistent with Building Code requirements while observing the maximum four-foot encroachment.  The proposed changes would bring the single family standards into consistency with the permitted encroachments in the multiple family residential zones, included as part of the recently adopted multifamily standards.

With regard to balconies and decks, staff has discovered that the language currently in the Code requires that a deck built at the floor level of the first story of the house cannot technically encroach as far as the same deck built higher than the first floor level.  The intent of the encroachments was to treat traditional balconies that project from a structure separately from decks that are typically larger and function as patio areas.  To remove this inconsistency, the proposed Code would therefore differentiate between balconies that are attached to the house and not separately supported from the ground and decks that are separately supported from the ground.  The height of the deck or balcony in relation to floor levels in the house would no longer be used to determine the amount of encroachment allowed.

Staff believes that the proposed revisions to the encroachment provisions will make the standards easier to understand and administer, and make them more consistent and fair to homeowners.

Related Issue: Construction Hours and Noise

Staff has received a number of inquiries and complaints from residents of single family neighborhoods regarding the hours during which construction activities may be conducted in the R-1 and R-1-H zones.  This issue has perhaps received more attention over the past several months, given the high volume of construction activity in Burbank�s single family neighborhoods and heightened community awareness about single family development due to the recent Code amendments.  BMC Section 21-209 limits construction activities within 500 feet of any residential zone to 7:00 a.m. to 7:00 p.m. Monday through Friday and 8:00 a.m. to 5:00 p.m. on Saturday.  Construction activities may not be conducted on Sundays or specified holidays.  Although construction within 500 feet of a single family residential zone is restricted to these hours, construction within the single family residential zone itself is not restricted.  All construction must maintain sound levels within the limitations established by the noise ordinance, but there is no restriction on when construction may occur so long as the specified noise levels are not exceeded.

At the time these construction hours were adopted in 2001, a conscious decision was made by the Council to exempt construction work occurring within the single family zones from the day and time restrictions.  The intent was to not limit the ability of homeowners to work on home improvement projects during evening and weekend hours when they are home from work and most likely to work on their homes.  However, with the high volume of construction activity that has occurred in the City�s single family neighborhoods over the past few years, many homeowners and contractors have taken advantage of the ability to work at all hours of the day and night.  Although such work may be within the noise limits set by the noise ordinance, the resulting noise can still be disturbing and annoying to neighbors.

Staff will recommend that the City Council consider amending the noise ordinance to change the permitted hours of construction within R-1 and R-1-H zones to be more consistent with the hour restrictions in other zones.  In particular, staff will recommend that the Council consider a prohibition of construction activity on Sundays and holidays to provide residents with one day that is free of construction noise and activity.  Staff is currently working on other amendments to the noise ordinance, and will recommend that any desired changes to the single family construction hours be considered along with the other noise ordinance amendments.  Staff is not recommending any immediate changes to the construction hours, and is only seeking direction at this time to include any desired changes in the forthcoming noise ordinance amendments.  Given the connection between construction hours and the other issues discussed in this report, staff believes that this status report on the new single family standards is an appropriate venue to introduce this issue.  Staff seeks input from the Council on this matter as staff studies this issue along with other changes to the noise ordinance.

Public Notice

In addition to publishing a notice in the newspaper as required by Code, staff sent notices of the Planning Board and City Council hearings on this issue to all persons on the R-1 mailing list, which includes all attendees of previous community meetings and others who requested to be included on the list.  Staff received two inquiries from residents who received a notice; one of the residents was concerned about making it easier for people to build larger homes by requiring fewer incentives for single-story homes under the FAR incentive program.

Environmental Review

Pursuant to the California Environmental Quality Act (CEQA) a Negative Declaration was approved by the City Council in conjunction with the amendments to the single family development standards, indicating that the amendments would not have any significant environmental impacts.  The proposed cleanup ordinance would not cause any actions that may impact the environment or result in any environmental impacts beyond what was already studied in the adopted Negative Declaration.  An addendum to the Negative Declaration has been prepared that documents the additional proposed amendments and the fact that no environmental impacts would result from the amendments beyond those already analyzed in the Negative Declaration (Exhibits C-1 and C-2).

PLANNING BOARD CONSIDERATION:

The Planning Board considered the proposed zone text amendment at a public hearing on November 14, 2005.  As of the publication of this report, the minutes from the Planning Board meeting were not yet complete.  Staff has attempted to document as completely as possible the Planning Board�s discussion at the hearing.  There were no public speakers at the hearing.

FAR Incentive Program

Chair Thomas questioned the effect that the proposed change to the FAR incentive program would have on properties of substandard size, such as the narrow lots along Chandler Boulevard.  Staff noted that under the existing standards, lots less than 6,000 square feet in size are allowed to exceed the 0.40 and 0.45 FARs with approval of a special development permit without having to provide any incentives.  This is not proposed to change.  If an owner of a lot smaller than 6,000 square feet opted to provide the required incentives to exceed 0.40 FAR rather than go through the special development permit process, they could do so.  However, it may be difficult or impossible to provide the incentives on a very narrow or small lot, and the special development permit process allows a homeowner to build a larger home without going through the incentive process.  Special development permits are approved if specific findings can be made regarding a proposed house�s compatibility with neighboring properties.

Board Member Taylor believed that the current incentives on the list were clear and easy to administer through a ministerial process.  She believed that it made sense to reduce the number of incentives required for a single-story home rather than trying to expand the list of incentives.  The other Board members generally agreed and were supportive of the change proposed by staff.

Side Yard Setbacks

Board Member Taylor stated that she saw the logic in rounding side yard setbacks down to the nearest whole number to simplify the requirement.  The other Board members generally agreed and were supportive of the change proposed by staff.

Board Member Jackson expressed his concern over allowing decks and larger balconies on the side and rear elevations due to privacy concerns.  The current standards require balconies to be set back at least 10 feet from side and rear property lines in an effort to address privacy issues; this requirement is not proposed to change.  Mr. Jackson believed that a 10-foot setback was not adequate, and asked the other Board members to consider recommending to Council that decks and balconies larger than some specified minimum size be prohibited entirely on side and rear elevations.  Board Member Gabel-Luddy agreed with this recommendation.  Board Member Taylor was opposed to such a prohibition without further study and consideration and noted that there had not been any public outcry on this issue.  Board Member Humfreville asked Mr. Jackson if he would consider requiring balconies through a discretionary approval process rather than a full prohibition, and Mr. Jackson indicated that he would agree to that.  However, that approach did not gain support from the other Board Members.  Chair Thomas said he believed that a full prohibition was too sweeping of a change, and stated his belief that the size of the balcony should be considered and that the issue should be studied further before any changes are recommended.

Ultimately, the Board decided not to recommend that balconies of any size be prohibited, but that the issue be forwarded to the Council for its discussion and consideration.  Staff recommends that the existing 10-foot setback requirement for balconies be retained, and that no further restrictions be adopted at this time.  While balconies can pose a privacy concern, staff believes that prohibiting them entirely on side and rear elevations would be overly restrictive.

Cleanup Items

All of the Board members expressed their support for the cleanup actions proposed by staff, including correction of errors and omissions and clarification of existing standards.

Recommendation

The Board voted 5-0 to recommend that the City Council adopt the zone text amendment as proposed by staff (Exhibit D).

Related Issue: Construction Hours

The Planning Board members were generally supportive of placing some restrictions on construction activity in the single family residential zones.  However, the Board members also wished to preserve some ability for homeowners to complete their own work and to supervise the work of contractors during the evening and weekend hours.  Board members made the following suggestions for the Council and staff to consider as hour and day restrictions are further studied:

• Differentiate between interior and exterior work.

• Consider the scale and scope of the work, including whether a building permit is required, whether a professional contractor is required, and the valuation of the project.

• Consider exempting from any restrictions activities that make very little noise, such as painting.

• Differentiate between activities that require the use of power tools or other tools that may generate noise.

• Review data on the types of complaints that have been submitted by residents of single family neighborhoods to determine the type of work that is most frequently associated with a complaint.

FISCAL IMPACT:

The proposed zone text amendment would make minor changes to the existing single family development standards.  The changes would not change the overall scope or complexity of the standards and as such would not require any additional staff time or resources to administer.  There would be no fiscal impact to the City resulting from the proposed ordinance.

CONCLUSION:

Staff has not experienced any major difficulties with the single family development standards adopted by the City Council in May 2005.  The standards have allowed development in the R-1 and R-1-H zones to continue, and the vast majority of homeowners have proposed house projects that are consistent with the new standards.  Two homes have been approved to build larger than the 0.40 FAR through the incentive program.  Staff�s experience thus far shows that the incentive program seems to work well by allowing homeowners to build slightly larger homes in exchange for providing greater setbacks and other design features to reduce the impact of the larger house on the surrounding neighborhood.  Staff believes that that the proposal to expand the incentive program to include single-story homes with fewer required incentives will help to encourage people to expand their single-story homes in lieu of adding a second story.  Finally, the proposed changes to the side yard setback requirement would make the setback requirements easier to comply with and administer.

RECOMMENDATION:

Staff recommends that the City Council adopt the proposed ordinance to approve a zone text amendment to make minor changes to the FAR incentive program, side yard setback requirement, and to clarify and fix various provisions of the single family standards.  Staff further recommends that the Council provide any desired input regarding possible changes to the noise ordinance dealing with construction hours in single family residential zones.

LIST OF EXHIBITS:

Exhibit              A         Ordinance No. 3669 adopted May 31, 2005

Exhibit              B          Redline of proposed changes to single family development standards

Exhibit              C-1      Public Notice of Environmental Decision

                          C-2      Addendum to Negative Declaration

Exhibit              D         Planning Board Resolution No. 3009 dated November 14, 2005

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