Staff Report - April 2, 2002 - Agenda Item

This report recommends that the City Council approve a zone text amendment that would amend the City�s appeal processes for planning applications and the development review application process. The proposed amendment incorporates additional changes to the development review process as directed by the Council on June 27, 2006.

Article 19 of Chapter 31 of the Burbank Municipal Code (BMC) prescribes procedures for City consideration of various types of planning applications including development review, conditional use permits, variances, and other planning and zoning permits and entitlements. Some application types, such as development review, are approved or denied administratively by the Community Development Director. Some, such as conditional use permits, are acted upon by the Planning Board following a noticed pubic hearing. Others, such as planned developments and development agreements, must be approved or denied by the City Council following a noticed public hearing.

The BMC generally provides that decisions issued by the Community Development Director on a particular application may be appealed to the Planning Board, and that decisions of the Planning Board may be appealed to the City Council. In most cases, an appeal may be filed by �any interested party.�

For most decisions by the Planning Board, the City Council also has the ability to request a hearing on the application, even if no appeal is filed. A majority vote of the City Council is required to request a hearing. The notable exception to this process occurs with the development review process. In the case of development review, an individual Council member may appeal the Planning Board�s decision as an individual, without action from the whole Council. The BMC provides that the Council member filing the appeal is not required to pay the appeal fee that is otherwise required. The BMC does not stipulate whether or not a Council member filing an appeal is required to recuse him or herself from participating in the Council�s deliberations or voting on the project. This discrepancy between the appeals process for development review versus other planning applications recently came to light as a result of an appeal filed by Council Member Gordon regarding the Planning Board�s overturning of an appeal and approval of a multifamily residential development review application. The Planning Board does not have authority under the BMC to request hearings to review administrative decisions. Such decisions are only elevated to the Planning Board if an appeal is filed by a member of the public.

In some cases, an appeal is filed only to be later withdrawn prior to the appeal hearing. This typically occurs when the project applicant is able to modify the proposed project to address the appellant�s concerns, or otherwise reach an agreement with the appellant. The BMC is silent regarding the course of action to follow when an appeal is withdrawn. The two possible courses of action are either to proceed with the appeal hearing so as to allow the Planning Board or Council to consider the project, or to cancel the hearing and finalize the prior decision to approve (or deny) the project.

Prior to 1998, the City�s policy was to proceed with the noticed appeal hearing even if the appeal was withdrawn. However, in 1998 the City Council provided direction that clarified the intent of the Code to abandon the hearing process once an appeal had been withdrawn. This direction was provided in the context of a potential litigation matter in which a project applicant threatened to sue the City if the City proceeded with an appeal hearing after the appeal had been withdrawn as part of a negotiated agreement between the applicant and the appellant. Since that time, the City�s policy has been to cancel the appeal hearing and stop the appeal process once an appeal has been withdrawn. This approach is out of concern for protecting the due process rights of project applicants since the Code does not specify a prescribed course of action.

As a result of this shift in policy, it was discovered that in many cases when appeals were filed, individuals other than the appellant were relying upon the appeal hearing as their opportunity to express their opposition (or support) for a proposed project. Because a hearing had always been held once an appeal was filed, even if that appeal were later withdrawn, there was no perceived need to file additional appeals. The appeal hearing would occur regardless. The Code did not address the filing of multiple appeals because a single appeal would ensure completion of the appeal process. After 1998 however, this was found to be problematic if the appellant withdrew their appeal prior to the public hearing. With the hearing cancelled, other interested parties, who had not submitted additional appeals, were left without an opportunity to voice their objections on the public record. By the time the appeal was withdrawn, the appeal period had typically ended and there was no opportunity for a new appeal to be filed.

To address this situation, the Code was amended in November 2001 to specifically address and encourage the filing of multiple appeals. The Code language regarding the appeal process for all planning applications was modified to state that in the event multiple appeals were filed for a single application, the appeals would be consolidated into a single public hearing. The addition of this language made it clear that multiple appeals could be filed, and that the filing of the first appeal did not eliminate the need to file additional appeals. From that time forward, staff has made it clear to all concerned individuals that they must file their own appeal if they wish for a decision to be appealed. They may not rely upon an appeal filed by another individual, because that appeal may be withdrawn and the appeal hearing cancelled. This approach has been successful with some projects, where multiple appeals have been filed and each appellant has had the opportunity to address the Planning Board or City Council during the public hearing, even if one of the appellants has withdrawn.

For most projects, however, individuals continue to rely upon the first appeal filed, and are then disappointed when the appeal is withdrawn and the hearing is cancelled. This has occurred several times over the past few years, including at the Planning Board meeting of January 9, 2006. A neighbor�s appeal of the Community Development Director�s decision to approve a development review application for a multiple family residential project was withdrawn the day of the public hearing. The hearing was cancelled pursuant to City policy. This frustrated some neighbors who arrived at the public hearing to voice their own concerns about the project, only to find that the hearing had been cancelled.

Staff believes that most individuals decide not to file their own appeal or participate in a joint appeal for reasons associated with commitment, involvement, time, cost, or neighbor relations. Some of these issues are personal issues that cannot be remedied by the City. However, there are some changes to the appeal process that may be considered to address some of these issues to the extent practical.

On March 27, 2006 staff presented a report to the Planning Board discussing the City�s appeal process for planning applications and options to consider if the process were to be modified. The report was prepared at the request of Board Member Jackson, to discuss options for changing the appeal process such that once an appeal is withdrawn, the decision about whether to proceed with the public hearing lies with the hearing body (Planning Board or City Council) rather than with the appellant. In this way, an appeal withdrawal would not automatically cancel the public hearing as it does under current City policy; the Planning Board or Council would have to consent to the cancellation of the hearing, and could decide to continue with the hearing despite an appeal withdrawal.

Staff detailed the appeal processes of several nearby cities, specifically noting the similarities and differences, particularly with regard to the process of handling withdrawn appeals, hearing implications, and the City Council�s role in the appeal process. A table summarizing the appeal processes of the surveyed cities is attached as Exhibit A. Some Board members expressed an interest in prohibiting an appeal from being withdrawn once a hearing is noticed to the public. Some Board members additionally expressed an interest in halting the appeal period upon receipt of an appeal, similar to the process used by the City of Pasadena. If the appeal were withdrawn, the appeal period would restart at the point from which the appeal was filed, allowing new appeals to be filed.

Development review decisions are administrative; they do not require public meetings, hearings or any other opportunity for direct public input in a public forum prior to the Director�s decision. Currently, if a member of the public wishes to convey their input to city staff, they may contact the appropriate staff planner or submit written comments. They may also elect to attend the Development Review Committee meeting on the proposed project. However, the foremost goal of these meetings is to allow for interdepartmental comment on the proposed project. Further, the meetings occur at a time not generally conducive to public attendance. Staff believes that public input on development review applications should continue to be encouraged, and that a more convenient and informative meeting should occur so that staff and the applicant may hear public input on a proposed project. Additionally, on several occasions, appeals of development review decisions have been withdrawn when the project applicant addressed the appellant�s concerns, or otherwise reached an agreement with the appellant. If a venue were provided so as to encourage public input on development review applications, prior to the issuance of a Director decision, the resultant number of appeals filed by the public may be reduced. In May, 2006 staff began requiring that all development review applications be subject to a community meeting process, so as to receive input from interested and affected members of the public, prior to issuance of the Director decision. Staff seeks to codify the community meeting process, so as to make the meetings a formally required part of the development review process and to set up noticing requirements for the meetings to increase public awareness of the opportunity that exists to provide input on development review applications.

All development review applications are acted upon administratively by the Community Development Director. However, the process and criteria used differ as provided in the BMC depending upon the type and location of the project. Development review applications are divided into four different categories as follows:

The BMC provides that projects falling within the first three categories are discretionary projects. This means that the Director can exercise discretion when deciding whether or not to approve an application and may impose conditions upon an application approval. This also means that the projects are subject to environmental review under CEQA. Some discretionary development review applications cannot be approved unless specific findings are made. Projects in multiple family residential zones may be denied if it is found that the project would be inconsistent with the neighborhood character or would have adverse impacts on nearby single family homes. Non-residential projects within 150 feet of a single family zone similarly may not be approved unless it is found that the project would not negatively impact nearby single family homes, based on specified criteria.

Projects falling within the fourth category are processed as ministerial applications per the BMC. This means that the Director cannot exercise any discretion when deciding to approve or deny an application beyond whether or not the project complies with all applicable zoning requirements. If the project complies with zoning, the application must be approved. No conditions of approval may be placed upon the project, except as necessary to achieve Code compliance. Ministerial projects are exempt from environmental review per the State CEQA Guidelines. The City cannot therefore conduct environmental review, including traffic impact analysis, on any projects falling into the fourth category. It is not a choice of the City to decide whether or not to look at the potential environmental impacts; once a project is deemed ministerial the City is prohibited by the State CEQA Guidelines from doing so. Under the current development review process, there is the potential for relatively large projects to be processed through the ministerial process. Such projects may have the potential to cause significant traffic or other environmental impacts, but because they are ministerial, no traffic analysis or other environmental review can be conducted.

On June 27, 2006, staff provided a report to the City Council regarding the ongoing update to the Land Use and Mobility Elements of the City�s General Plan and the related development and traffic model. The Council directed staff to return as soon as possible with a Code amendment to serve as an interim measure until the Council considers the proposed General Plan update. The purpose of the interim measure would be to ensure that all commercial and industrial projects with the potential to have significant traffic impacts would be subject to discretionary review by the City to ensure that traffic impacts are adequately analyzed, and to ensure that such projects would be automatically subject to review by the Planning Board or Council at a public hearing.

Based upon the City Council�s direction on June 27, staff has prepared two draft ordinances for consideration by the Council. The first ordinance contains only the proposed Code text considered by the Planning Board (proposed Code text attached as Exhibit B-1). This ordinance includes changes to the appeals process and some aspects of the development review process, but does not change the overall development review process except with regard to adding a community meeting requirement, as discussed further below. The second ordinance includes additional changes to the development review process as directed by the City Council on June 27 and discussed in detail below (proposed Code text attached as Exhibit B-2). Exhibit B-2 is not an alternative to Exhibit B-1, but rather an additional interim ordinance for Council consideration. Staff is recommending that the Council adopt both the ordinance changing the appeals process and some aspects of the development review process and the interim ordinance.

Although the Planning Board has not reviewed the additional changes requested by the Council on June 27, staff believes that it would be appropriate for the Council to proceed with adopting the ordinance that includes the additional changes. It is not uncommon for the City Council to make changes to an ordinance after it has already been reviewed by the Planning Board, and for the Council to adopt those changes without further Planning Board review. Since the proposed additional changes as reflected in the second ordinance were prepared by staff based upon the Council�s direction on June 27, staff believes that the manner in which the changes have been incorporated is comparable to the Council requesting the additional changes during the public hearing. Staff proceeded with drafting Code text in response to Council direction, and believed that incorporating the requested amendments into this ordinance was the simplest and most expeditious way to respond to the Council�s direction.

This report provides a detailed analysis of changes proposed to Article 19. However, this report addresses the standards topically and while detailed, only represents a summary of the proposed standards. The changes proposed in this report address not only the concerns of the Planning Board and City Council, but also the desire of staff to improve the organization and comprehensibility of the existing code. Staff believes that an opportunity exists to better organize applicable regulations, clarify existing regulations, remove any ambiguities, and make the Code more user-friendly wherever possible.

The BMC generally provides that decisions of the Community Development Director on a particular application may be appealed to the Planning Board, and that decisions of the Planning Board may be appealed to the City Council. In most cases, an appeal may be filed by, �any interested party.� �Any interested party� may include a member of the Planning Board or City Council. However, in the event that a Planning Board or City Council member chooses to assume the role of appellant, it is generally not appropriate for that person to act as a decision making participant due to the potential for a conflict of interest. The proposed ordinance would explicitly state when it is necessary for a Planning Board or City Council member to recuse him or herself from participating as a decision maker in a public hearing.

If a Planning Board member appealed a decision of the Community Development Director, the Board member would not be permitted to participate as a decision maker in the Planning Board public hearing. Similarly, if a City Council member appealed a decision of the Community Development Director, the Council member would not be permitted to participate as a decision maker in the City Council public hearing, if the Planning Board�s decision on the project application were subsequently appealed to the City Council, whether or not the Council member appealed the Planning Board decision. If a City Council member appealed a decision of the Planning Board, the Council member would not be permitted to participate as a decision maker in the City Council public hearing.

City Council members would still be able to appeal development review decisions of the Planning Board. However, the proposed code text would explicitly state that, in the event a Council member forgoes action by the Council body and pursues an individual appeal, the Council member must recuse himself from the hearing. Currently, when a Council member appeals a development review decision of the Planning Board, the code does not define whether the Council member is acting as an individual or on the behalf of Council, which then leads to speculation as to whether or not that Council member should recuse him or herself. Normally, an individual Council member filing an appeal would be acting as an individual and not on behalf of the Council. However, because the Code explicitly provides that a Council member may appeal a Planning Board action as an individual, it is not clear if the Code intends the Council member to be acting within their duties as a Council member on behalf of the Council, rather than as an individual. Proposed code provisions would clarify the existing code to state that Council members can indeed appeal a development review decision of the Planning Board. However, when doing so, they are acting as an individual and not on behalf of the Council, and recusal from the decision making process would be required.

Appeals by any individual other than a Planning Board or Council member, including a project applicant, would continue to be allowed as under current Code provisions. An appeal of the Director�s or Planning Board�s decision would have to be submitted by 5:00 p.m. on the 15^th day following the date that the Director�s or Planning Board�s decision is issued. This deadline is the same regardless of who is filing the appeal: the public, Planning Board, or City Council member. Although the 15-day appeal period remains unchanged from current code requirements, existing BMC provisions start the appeal period of a Planning Board decision on the date that the resolution is mailed to the project applicant. Because this date can vary after a Planning Board hearing, this sometimes results in confusion about when the appeal period officially starts and ends. Changing the appeal period start to the date that the Planning Board resolution is adopted provides a more consistent and fair approach that adds certainty to the appeal window.

Existing BMC provisions permit the Council to take action, in-lieu of appeal, to review decisions of the Planning Board. The notable exception to this policy is development review applications. Planning Board decisions on development review applications cannot be subject to an in-lieu appeal action. Rather, they are subject to individual appeal as noted above. The current process for Council in-lieu action occurs in two-steps, with the Council first having to vote to place the matter on a future agenda, then voting a second time to decide whether to review the Board�s decision. It is frequently difficult to complete both steps within the 15-day appeal window. If Council meetings are dark during the appeal period, effectuating this process can sometimes be impossible.

Under the proposed new Code, the procedure would be as follows. As an alternative to the individual appeal or in-lieu process, the City Council may, as a body, vote to hold a public hearing to review a decision of the Planning Board. Any Council member may request that the City Council consider holding a hearing to review the decision of the Planning Board. This request must (a) be made on or before the 15^th day following the date that the Planning Board adopted the resolution regarding the decision and (b) be made orally during a City Council meeting. In the event that no City Council meeting is scheduled between the date of the Planning Board resolution and the 15^th day thereafter, such request must be submitted in writing to the City Clerk. After a request is made to review a decision, the City Clerk will place the review request on the next regular City Council meeting agenda for consideration by the City Council. At the time the review request is heard by City Council, the Council would vote whether to hold a hearing to review the Planning Board�s decision. If a majority of Council members vote to review the Planning Board�s decision, a public hearing would be scheduled. The Council would consider the application in the same manner as if an appeal had been filed. If a majority of Council members vote not to review the Planning Board�s decision and no appeals have been filed, there would no City Council hearing and the City Council would not consider or act upon the application. The Planning Board�s decision becomes final and may not be further considered. However, if the Council votes not to review the decision, and the appeal period has not yet ended, a Council member may still elect to file their own individual appeal.

Staff notes that the only action that need occur within the 15 day appeal period under the proposed Code would be the oral (or written request if such request cannot be made orally within the 15 day appeal period) request to review the Planning Board�s decision. The meeting whereby the City Council considers hearing the item need not occur within the 15 day appeal period. Staff additionally notes that if a review request was approved by a majority of the Council, it is not necessary for the Council member who initiated the review to recuse him or herself from the subsequent public hearing, as the action to hear the item was approved by the body. In the event that a City Council member files an appeal of the Community Development Director�s decision to the Planning Board, the Council member would not be permitted to submit a request for City Council review or participate as a decision maker when considering whether to review a Board decision.

As discussed above, in the case of development review under the current Code, an individual Council member may appeal the Planning Board�s decision as an individual, without action from the whole Council. The BMC provides that the Council member filing the appeal is not required to pay the appeal fee that is otherwise required. In addition, the BMC does not stipulate whether or not a Council member filing an appeal is required to recuse him or herself from participating in the Council�s deliberations or voting on the project. The proposed ordinance would provide two courses of action for Council members, applicable for both development review and all other planning applications. The Council member could elect to request a review of the Planning Board�s decision, with subsequent voting by the Council as to whether or not to hear the item. If the item is voted to be heard by the Council, the Council member initiating the request would not be required to recuse him or herself or pay any fee; the City Council as a whole is electing to review the Planning Board�s decision. However, a City Council member may elect to forgo the review request process and instead appeal the decision as an individual. In this instance, the Council member serving as appellant would be required to pay the appeal fee and recuse him or herself from the decision making process.

In some cases, an appeal is filed only to be later withdrawn prior to the appeal hearing. The BMC is silent regarding the appropriate course of action when an appeal is withdrawn prior to public hearing. The two possible actions are either to proceed with the appeal hearing, allowing the Planning Board or Council to consider the project, or cancel the hearing and affirm the prior decision to approve (or deny) the project.

As noted above, in the past, the City proceeded with the noticed appeal hearing even if the appeal was withdrawn. This policy was later modified so as to cancel the appeal hearing and terminate the appeal process in the event the appeal was withdrawn. This shift in policy sought to protect the due process rights of the project applicant since the BMC does not specify a prescribed course of action.

It was subsequently realized that, in many cases, when appeals were filed, individuals, other then the appellant, were relying upon the appeal hearing as their opportunity to express their opposition (or support) for a proposed project. Rather than file an additional appeal to ensure that the public hearing occurred, reliance was made on the initial appellant(s). However, appellant(s) may withdraw their appeal at any point leading up to the noticed appeal hearing. Although the BMC was amended to encourage the filing of multiple appeals, individuals continue to rely upon the first appeal filed and are then disappointed when the appeal is withdrawn and the hearing cancelled.

In response to this, the proposed ordinance would specifically state that it would be in the best interest of individuals to file an appeal, collectively or individually, to ensure that their concerns are heard, in the event that other appeals are withdrawn. The proposed code text would explain that, if multiple persons wish to appeal a decision for the same reasons, they may collectively submit a single appeal form containing a single set of reasons for appeal. In the event that multiple persons submit a single appeal, payment of only one appeal fee would be required, and the appellant(s) may divide the appeal fee amongst themselves at their discretion. Proposed code text would additionally explain that, alternatively, multiple persons may elect to file their own individual appeal forms. In this instance, payment of the full appeal fee would be required for each individual form submitted.

All appeals filed, whether occurring on one appeal form or multiple forms, must be considered together at a single hearing and acted upon by the Planning Board or Council at the same time. This is consistent with existing Code requirements. As such, in order for an appeal to be withdrawn and not heard by the Planning Board or Council, all appeals filed, whether occurring on a single appeal form (by multiple persons, if filing on a single appeal form) or multiple forms must be withdrawn prior to the appeal withdrawal deadline proposed and discussed in the following section.

At the request of the Planning Board, staff has and will continue to update application forms, public handouts, and notices so as to clearly define the appeal process and encourage persons, who seek to have the project further considered by the Planning Board or Council, file their own appeal or a multi-party appeal.

BMC provisions currently allow for an appeal to be withdrawn by the appellant(s) at any point in time prior to the noticed appeal hearing. An appellant may elect to withdraw their appeal at any point up to an hour prior to the appeal hearing. Regardless of when the appeal is withdrawn, current City policy dictates that the appeal hearing is cancelled and the appeal process terminated, provided that the 15-day appeal period has expired.

However, as discussed above, individuals, other than the appellant, rely upon the appeal hearing as their opportunity to express their opposition (or support) for a proposed project. These persons most frequently become aware of the appeal hearing through the mailing of public notices, mailed to impacted properties occurring within 300-1000 feet of the proposed project, depending upon the application type. Although the BMC encourages the filing of multiple appeals, many individuals elect to instead rely upon the appeals of others. This can be problematic in the event that an appeal is withdrawn and the public hearing process is cancelled, rendering the person who elected not to file an additional appeal with little course of action.

Staff believes that it is necessary to equitably balance the due process rights of the applicant with those of the public. Staff believes that it is unnecessary for a project applicant to undergo an appeal hearing in the event that all appellant(s) have elected to withdraw their appeals, under the presumption that the project applicant was able to modify the proposed project to address the appellant�s concerns or otherwise reach an agreement with the appellant. However, staff also believes it is reasonable for a member of the public to expect that a public hearing will transpire following the receipt of public notice, generally issued 10-15 days prior to the public hearing.

Because of this, staff proposes a compromise. The proposed ordinance would not permit an appeal to be withdrawn 20 days prior to a scheduled public hearing. If an appeal is filed, then later withdrawn prior to this deadline, the appeal hearing would be cancelled. In the event that multiple appeals are filed, individually or by multiple persons, all appellant(s) must withdraw their appeal prior to the public hearing in order for the hearing to be cancelled. However, if an appeal has not been withdrawn by the appellant 20 days prior to the public hearing, it may not be withdrawn, and the public hearing would occur. Staff has recommended a 20 day deadline versus a 10 or 15 day deadline because, at the 20^th day prior to the hearing, staff has begun to prepare for mailing public notices to those properties occurring within 300-1000 feet of the proposed project and has submitted the necessary documentation to the City Clerk for publication in the Burbank Leader newspaper. In essence, once the public noticing process is underway, an appeal may not be withdrawn. This ensure that noticed property owners will have an opportunity to express their opposition (or support) of a proposed project.

Some Planning Board members had expressed interest in the appeal process utilized by the City of Pasadena that stops the appeal period once an appeal is filed. In the event that the appeal is subsequently withdrawn, the appeal period is restarted. Persons would then have an additional opportunity to file a new appeal. Staff is concerned the �stop-start� appeal method could be detrimental if there were organized opposition to a project, the process could subsequently be taken advantage of by having a series of persons submitting appeals and then withdrawing them in such a manner as to drag out the appeal period to its fullest extent. Although Pasadena staff indicated that they have not had such a problem with their appeal process, staff believes that it could be utilized in a manner that is unfair to the project applicant. Staff believes that setting a withdrawal deadline provides a more consistent appeal approach for both the public and staff. Further, staff believes that it would be difficult for staff to provide the public with up to date information regarding the stopping and restarting of the appeals period, especially if multiple appeals were filed or the clock were stopped and restarted multiple times. In addition, many persons rely on the mail rather than computers for receipt of public information, which can take several days to disseminate. Mailing additional notices to update the affected public as to the continually changing status of an appeal would be complicated and costly to the City and the project applicant. Furthermore, it is the assessment of staff that the public should not have to bear the burden of having to continually solicit information as to the status of an appeal. By making the deadline for appeal withdrawal consistent with that of public noticing, the public would be ensured that, 20 days prior to public hearing, a hearing would occur.

The proposed ordinance would locate all information detailing the appeals policies and processes into new Sections 31-1907.1 through 31-1907.3 of Article 19. Additional appeal information, relating to a specific planning application, would be found in Article 19 in conjunction with the specific planning application. Cross references have been included as necessary to link related code provisions. Staff believes that, by locating all appeals policies and processes information within a single Article of the BMC, project applicants, potential appellants, and the public will be able to access and comprehend applicable code provisions with greater ease and generally improve the readability of the Code.

Currently, if a member of the public wishes to convey their input to city staff on a proposed development review project, they may contact the appropriate staff planner or submit written comments. Further, existing BMC provisions provide for a formalized Development Review Committee, comprised of representatives from appropriate departments involved in the land development process, who meet regularly to discuss planning applications submitted for development review. By codifying the presence and function of the Development Review Committee, the process and activity is formalized and subject to the provisions of the Brown Act, specifically that the public may be in attendance at meetings. Staff believes that the opinions of the public are of the utmost importance. However, it is the assessment of staff that Development Review Committee meetings are not the most appropriate avenue to solicit public input. Development review meetings should foremost provide an opportunity for interagency comment on the proposed projects, so that concerns and comments of City departments may be voiced for staff and applicant consideration. Staff believes that, in-lieu of the formalized Development Review Committee, the proposed community meetings would provide a more suitable setting with which to receive public input and concerns regarding a proposed project, occurring at a time having greater public accessibility.

Citizen participation meetings would occur following review of the proposed project by staff from all City departments. At this point in the planning application process the project will have already taken into consideration the concerns and comments of appropriate staff through the development review meeting, with necessary changes and conditions for approval reflective in the proposed project description and plans.

The proposed ordinance would thereby delete all language referencing the Development Review Committee, allowing for future development review meetings to continue in an informal setting comprised of appropriate staff and the project applicant. In the absence of a formalized Development Review Committee, the proposed ordinance will codify the Community Meeting requirement for all development review applications, allowing the public to have an opportunity and venue to provide public input on the proposed project.

Staff continually seeks to increase the level of public involvement in the planning process, especially with regard to development review projects. Development review projects are approved by the Community Development Director and do not require a public hearing. However, it is the assessment of staff that, by holding a community meeting the public would have an opportunity to be better educated about the proposed project and to share their questions, comments, and concerns with both staff and the project applicant prior to issuance of a decision by the Community Development Director.

Information offered by the public prior to the Director�s decision may prove beneficial to both the applicant and the timeliness of the process. Information shared at this meeting may prove beneficial by allowing project issues to be mitigated or resolved prior to issuance of a decision by the Director. Additionally, if project issues are mitigated or resolved prior to the issuance of the Director�s decision, the incidence of appeals may be reduced. Some cities have �community participation� ordinances that require project applicants to host their own community meeting during the application process and provide information to the city about the concerns of the community and the manner in which the applicant proposes to respond to those concerns. The proposed community meeting requirement is modeled after these types of ordinances, but places some responsibility for the outreach on the city rather than placing it all on the project applicant.

The proposed ordinance would codify the occurrence of a community public meeting. Community public meetings would be required for all development review applications prior to a decision being issued by the Director. For projects that also required a public hearing, such as when a project requires both a conditional use permit and development review, the community meeting would have to be held prior to the public hearing. The meeting would be open to the general public and conducted at a time and location that is convenient for public attendance. Staff is currently holding the meetings on alternate Monday evenings when there is no Planning Board meeting. The meeting would not be conducted as a hearing and there would be no formal minutes of the meeting produced. Rather the meeting would serve as an informal opportunity for the public to be educated about the proposed project and provide public input to staff and to the project applicant. Staff will take notes on the comments provided by those attending and consider those comments and concerns when taking further action on the proposed project. The proposed ordinance would require that the project applicant be present at these meetings in addition to staff so that the applicant can answer questions about the project and listen to the community�s concerns about the project. Public notice of the community meeting would be mailed to the same people receiving notice of the Director�s decision no less than 10 days prior to the community meeting. Staff�s intent is to combine, when practical, the public notice for the community meetings into the notice of Director�s decision that is already mailed out for development review applications to fully educate the public about the development review process and their opportunities for input in a single notice. A sample notice that combines both notice of the Director�s decision and the community meeting is attached as Exhibit C.

Staff believes that this process would provide an efficient and timely method of soliciting public input on a proposed project. To date, citizens wishing to solicit their input on a proposed development review project may either submit their comments to staff or attend the Development Review Committee meetings, which occur during the week at an inconvenient time for most. As noted above, staff has already begun holding these public meetings on development review projects. Meetings occur on alternating Monday evenings not having a Planning Board meeting at 5:30 p.m. in the City Hall Annex training room. An agenda for the first community meeting is attached as Exhibit D. Although no public members were in attendance at the first community meeting, staff believes that, in the future, public attendance will increase as more persons become aware of the community public meeting policy.

At the 2006 City Council Goal Setting Session, it was suggested that the public noticing requirement for development review applications be increased from 300 to 1000 feet of the proposed project site. This would make the noticing radius for development review applications consistent with most other types of applications, such as conditional use permits and variances.

Staff believes that, by increasing the public notice requirement, more individuals would be notified as to planning applications that could potentially impact their property, business, or residence. Additionally, if the public noticing requirement for development review applications is extended, more persons would become aware of the community meetings held prior to the issuance of the Community Development Director�s decision on a project. This would provide more persons with the opportunity to participate in community meetings and share their questions, concerns, and comments regarding a proposed project with both staff and the project applicant.

Under current Code requirements, new non-residential buildings and additions to non-residential buildings that are 300 square feet or less in gross floor area are exempt from development review. With the addition of the proposed community meeting requirement, staff has re-evaluated the criteria for projects that are exempt from development review. The community meeting requirement will bring increased public awareness and scrutiny to development review projects, and staff believes that projects required to go through development review should rise to a level that requires that level of review and scrutiny. Staff therefore believes that it would be appropriate to increase the threshold for requiring development review from 300 square feet to 1,000 square feet. Staff has processed a number of development review applications for projects having less than 1,000 square feet, and believes that such projects do not typically have the possibility of impacting a neighborhood in such a way that development review is needed. Most such projects are either additions to existing buildings, or small buildings that are located on the interior of a large property or otherwise within a larger project, and do not warrant the higher level of review that accompanies the development review process, particularly with the new community meeting requirement in place.

In addition, given the direction of the City Council at their June 27, 2006 meeting, those projects having 50 or more trips will be subject to development review, even if the project has less than 1,000 square feet. The purpose of this interim measure would be to ensure that all commercial and industrial projects with the potential to have significant traffic impacts would be subject to discretionary review by the City to ensure that traffic impacts are adequately analyzed.

Staff has additionally proposed a number of minor substantive changes affecting the development review process. These modifications are topically summarized below.

Existing BMC provisions allow for a project applicant to appeal the Director�s decision, that a development review application is incomplete, to the City Council. The proposed ordinance would delete provisions allowing for an appeal based on application completeness. No other application type allows for an appeal based on completeness. Staff believes that an appeal to determine application completeness is not necessitated for development review applications and that appeals of this nature unnecessarily delay the development review process.

The proposed ordinance would permit staff to request that the project applicant submit revised plans inclusive of code required changes and reflective of conditions of approval, in the event that a development review decision is appealed to the Planning Board. In the past, Planning Board members have requested that the project applicant submit revised plans, indicative of changes that have been made to the project during the planning application process and reflective of conditions of approval as required by staff. However, it is currently not required that the applicant do so upon request. Providing revised plans in the event of appeal provides Planning Board and Council members with an accurate description of the project and its design.

The proposed ordinance would require that, in the event that a development review application is being processed in conjunction with another application that requires a decision by the Planning Board or City Council, the development review application be processed with the other application and acted upon by either the Planning Board or City Council. The Community Development Director would not act upon the application, but rather defer the development review application to be decided concurrently with additional permits necessitating Planning Board of City Council approval. This process has been used for many years in practice, but is not currently codified.

Existing BMC provisions require that a zone map amendment be recommended for approval by the Planning Board before going to the City Council. If the Planning Board recommends denial, the amendment is not forwarded to the Council unless the applicant appeals the Planning Board�s recommendation. Staff believes that, like zone text amendments, zone map amendments are legislative acts that should be automatically considered by the City Council regardless of the Planning Board�s recommendation. The proposed ordinance would accordingly change the zone map amendment process to make it consistent with the process for consideration of a zone text amendment.

Existing BMC provisions permit appeal fees to be waived for proposed projects occurring in the Media District upon approval by a majority or by two City Council members, for Director and Planning Board decisions, respectively. The proposed ordinance would delete this provision; appellants of projects in the Media District would be subject to the payment of appeal fees without the possibility of waiver through Council action. Staff believes that is not equitable for projects located in a certain area of the community to receive appeal fee waivers, even at Council discretion, while projects or persons occurring in the balance of the community have no such opportunity to receive an appeal fee waiver.

In response to Council direction on June 27, staff is proposing changes to the development review process. The proposed changes to the process are intended to be in place for an interim period of time until the Council considers the proposed General Plan update and related development regulations. Staff is recommending the changes be adopted for a period of approximately 10 months. The ordinance would be adopted as a standard ordinance through the regular process, but would only be effective through July 31, 2007, which would be approximately 10 months after the ordinance becomes effective. Staff is recommending that the process changes be effective only for an interim period in response to concerns expressed by the Chamber of Commerce during a meeting with staff on July 12. Further, staff believes that the 10-month time frame will help to keep the General Plan update process moving and provide an end date to ensure that the update is completed as quickly as possible given the additional studies and outreach directed by the Council. Since the ordinance would be adopted as a standard ordinance and not a true Interim Development Control Ordinance (IDCO), the effective period of the ordinance could be extended at any time by the Council if deemed necessary and appropriate by the Council. The interim changes to the development review process are intended to ensure that all projects are adequately evaluated based on their traffic and other impacts until such time that the General Plan update is considered by the Council.

As proposed by staff, all non-residential projects that are expected to generate 50 or more trips during the AM or PM peak traffic hours would be processed as discretionary applications and would be subject to environmental review. This is in response to the Council�s direction that additional discretionary review was desired over development review applications. Under current Code requirements, only multifamily residential projects, projects that are deemed regionally significant under the California Environmental Quality Act (CEQA), and non-residential projects within 150 feet of a single family residential zone are processed as discretionary applications and are subject to environmental review under CEQA. Non-residential projects that are greater than 150 feet from a single family zone are processed as ministerial applications, and as such are not subject to CEQA review.

Staff is recommending that all projects generating 50 or more trips be subject to additional discretionary findings. An application for such a project could not be approved unless it was found that the proposed project would not have an adverse impact on traffic flow and circulation, or that the benefits to the community of the proposed project would outweigh the potential adverse impacts. The traffic related finding and the ability to conduct environmental review would provide the City with a much greater degree of control over development projects with the potential to create traffic impacts. With the proposed findings in place, such projects could be denied based upon their traffic or other negative impacts, or could be approved subject to conditions of approval to ensure that any impacts are appropriately mitigated. Multifamily residential projects would continue to be subject to findings of compatibility related to the neighborhood character and potential impacts on nearby single family homes. Non-residential projects within 150 feet of single family zones would also continue to be subject to the findings of compatibility with nearby single family homes; those existing findings are not proposed to change.

In addition to having additional discretionary approval over projects, the Council provided specific direction that projects exceeding a certain threshold should be subject to approval by the Planning Board or City Council at a public hearing, rather than being approved administratively by the Community Development Director. Staff is proposing that the same threshold discussed above be used, and that any non-residential project that would produce 50 or more trips during either the AM or PM peak traffic would have to be approved by the Planning Board following a noticed public hearing, rather than being approved administratively by the Community Development Director. This would subject all projects with the potential to create significant traffic impacts to a higher level of public scrutiny at a public hearing. Planning Board decisions could be appealed to the City Council, as with other types of planning applications. All development review applications, including those subject to Planning Board approval, would require a community meeting as proposed by staff. The community meeting would have to be held before the Planning Board hearing.

The 50-trip threshold proposed to trigger discretionary review and a Planning Board hearing is consistent with current City policy for determining when a traffic study is required for a project.[1] Staff believes that this trip limit is a conservative but appropriate threshold for determining when formal traffic analysis is required. It is highly unlikely that a project that would generate fewer than 50 new trips during either peak traffic hour would have a significant traffic impact. As proposed by staff, any project requiring a traffic study would now require discretionary review and approval by the Planning Board at a public hearing. The expansion of this threshold to trigger discretionary review would ensure that no project with the potential to have significant traffic impacts could be approved through a ministerial process, as could happen under current Code requirements.

The table below includes a sampling of uses that would exceed the 50-trip threshold. The trip generation for a proposed project would be calculated by staff at the time a development review application is submitted. The generation would be calculated using standard Institute of Transportation Engineers (ITE) trip rates, or a comparable rate determined by the Director to be appropriate. As proposed by staff, project applicants would have the ability to conduct their own research and submit their own suggested trip rates, but it would ultimately be up to staff to determine the most appropriate rate to use.

Size of Various Land Uses Generating 50 Peak Hour Trips

Use	Size (S.F or Units)
Business / Professional Office	32,258
Light Industrial	51,020
Warehousing and Storage	106,383
Media Office / Post Production¹	42,903
Low Turnover Restaurant	6,676
High Turnover Restaurant	4,340
Fast Food Restaurant	941
Shopping Center Retail	13,333
Boulevard/Strip Retail	13,889
- Based on AM and PM trip rates (Whichever is Higher)
- All trip generation rates from Institute of Transportation Engineers, 7th Edition or
San Diego Association of Governments
¹ Rate derived from Media District Specific Plan Office Equivalency Factor of 1.33

Staff believes that the proposed approach provides a good balance by requiring a higher level of scrutiny for those projects with the potential to have an adverse traffic impact. Many projects, including smaller projects that would not have traffic impacts, would still be approved administratively, with the opportunity for appeal (but may still be subject to discretionary review based upon their distance from a single family zone). Those larger projects, or those including uses that are high traffic generators, would be subjected to increased scrutiny through the Planning Board public hearing process. Ultimately, any project could still be considered by the City Council through an appeal.

The proposed zone text amendment is exempt from environmental review under the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State CEQA Guidelines. This section provides that a project is exempt from environmental review where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. The proposed zone text amendment deals only with application process issues and would not change any development regulations of cause any development to occur. It would therefore have no environmental impacts (Exhibit E).

The Planning Board considered the proposed text amendment (not including the additional changes requested by the Council as noted above) at a public hearing on June 12, 2006. The minutes from the meeting were not yet completed at the time this report was published. Therefore, staff has documented the Planning Board�s discussion as completely as possible in this report. There were no public speakers at the hearing who spoke in support of or opposition to the proposed zone text amendment. All Planning Board members expressed their support for the development review community meetings and increasing the noticing requirement from 300 to 1,000 feet for development review projects.

Ms. Lawrence recommended that in addition to the initial 15-day appeal period, a second 10-day appeal period be provided in the event that an appeal is withdrawn prior to the appeal withdrawal deadline as proposed in the ordinance. This proposal is similar to an approach used by the City of Pasadena, where the appeal period is halted when an appeal is filed, and restarted if the appeal is withdrawn. In the event that an appeal was withdrawn prior to the deadline, Ms. Lawrence suggested that all persons within the noticing radius be re-notified via mailed notice that the appeal(s) previously filed have been withdrawn and that any persons wishing to appeal the project would now have 10 additional days to file a new appeal on the project. Generally, the 10-day period would provide the public with a second chance to appeal the project, in the event that earlier appeal(s) are withdrawn prior to the withdrawal deadline. The Board split on recommending this provision to the Council by a 2-2 vote, but advised the Council to take the provision into consideration.

Ms. Jackson additionally recommended that, in the event an appeal is filed by a member of the public, Planning Board, or Council, that the public hearing be required by Code to occur no later than 75 days following its filing. All Planning Board members expressed their support for that proposal. The Board voted 4-0 to recommend that the City Council adopt the zone text amendment as proposed by staff, with the additional provision regarding the timing of the appeal hearing (Exhibit F).

While staff appreciates the concerns expressed by the Planning Board, it is the recommendation of staff that Council approve the proposed zone text amendment as recommended by staff without the additional provisions recommended by the Board. The proposed zone text amendment, as recommended by staff would permit an appeal to be withdrawn by the appellant(s) at any time prior to the 20-day appeal withdrawal deadline (coinciding with the mailing of notices). In the event that the appeal is withdrawn prior to this deadline, no public hearing will result. However, in the event that an appeal is not withdrawn prior to the 20-day deadline, the appeal cannot be withdrawn and the public hearing will automatically occur. This does not prevent the appellant from resolving their issues or concerns with the project applicant, but rather ensures that a public hearing will occur and those persons, who did not elect to file an appeal on the project, may attend the public hearing and voice their support or opposition of the project. Staff believes that this process serves as a compromise and would equitably balance the due process rights of the applicant with those of the public. With this provision in place, staff believes that it is unnecessary to also provide a second appeal period. Prior to receiving notice of an appeal hearing, most individuals will not even know that an appeal has been filed. Those that are concerned enough about a project to follow its status would be encouraged to file their own appeal if they have a concern. It is the assessment of staff that a second, 10 day appeal period would unnecessarily confuse the public and extend the process. Additionally, the Planning Board�s recommendation to require the preparation and mailing of additional notices to inform members of the public that a second, shorter opportunity exists for an appeal to be filed, would result in substantial additional costs to the City and would further delay the process due to the time required to print the additional notices and prepare them for mailing.

It is also the assessment of staff that, given the current caseloads of staff and the agendas of both the Planning Board and Council, that setting a 75 day public hearing deadline is unadvisable. Staff has and will continue to expedite the appeal process so as to ensure a public hearing on the project in a timely manner. However, the length of time necessitated to prepare the staff report and related materials for an appeal is often in excess of 75 days and, given the current caseloads of staff and the availability to the Planning Board and Council to hear these items, staff advises against setting a definitive deadline by which time an appeal must be heard. Staff further notes that the Planning Board and City Council have previously requested to be provided with plans during an appeal hearing that are reflective of a Code compliant project, and/or reflective of conditions of approval that were imposed as part of the original project approval. In many cases, this requires the project applicant to prepare new or revised plans following the original project approval. This process can take several months, which further makes the 75-day requirement impractical.

The proposed zone text amendment as considered by the Planning Board would amend the City�s appeal processes for planning applications and the some aspects of the development review application process. The proposed changes to the appeals process would not substantially change the way in which the Code is administered and would not require additional staff time or resources. The proposed addition of the community meeting requirement for all development review applications would require a substantial amount of additional staff time to administer. As noted above, staff has been requiring such meetings on a trial basis since May for applications now in the process. The meetings are held twice per month, and require staff time to schedule items and coordinate the agenda schedule, prepare the agenda for each meeting, and attend the meeting. This requires time from the project planner and a supervising planner. Staff also notes that the community meeting requirement may slightly lengthen the time needed to process development review applications in some cases, since the application cannot be acted upon until after the meeting is held.

The additional changes proposed at the direction of the City Council would substantially change the development review application process and would require considerable staff time and resources to administer. As proposed, an increased number of development review applications would be discretionary and subject to environmental review. This will require staff to analyze environmental impacts and prepare environmental documentation for some projects that currently would not require such analysis. Further, the proposed standards would require staff to calculate the expected traffic generation from every non-residential project subject to development review, which will require additional staff time. As proposed by staff, all projects exceeding the 50-trip threshold would require a Planning Board public hearing. Depending upon the number of projects affected, this could require substantial additional staff time to prepare the staff report and related information, and to prepare for and attend the public hearing for a project that today would be subject only to administrative approval with no hearing required. Staff will be monitoring the fiscal impacts of these changes as they are implemented, and will report back to the Council on whether additional costs exceed what is currently anticipated.

The recommendation of Board member Lawrence to allow for a second, 10-day appeal period, in the event that an appeal(s) is withdrawn prior to the withdrawal deadline may result in increased fiscal impact. The additional public noticing that would be required as recommended by the Board would incur an additional cost to the City and would require additional staff time and resources to print and prepare.

Staff believes that it is imperative that appeal processes be clarified and made consistent and that these processes be documented through a change to the Municipal Code. The City�s appeal process, including provisions for the filing of multiple appeals and courses of action in the event of appeal withdrawal, should be explicitly codified. By doing so, staff believes that project applicants, potential appellants, the public, and hearing bodies may become increasingly familiarized with the processes and limitations associated with appeals and planning application decisions.

Staff additionally believes that, by creating a line of communication between the public and applicant, a line of communication that previously did not exist; the project applicant would have the opportunity to hear those issues that foremost concern the public and potentially remedy them prior to the issuance of the Director�s decision. If public concerns are addressed and taken into consideration proactively, the number of projects facing appeal following decisions may be reduced.

In conclusion, the proposed ordinance seeks to balance the interests of multiple parties at work in the planning application process and provide for Municipal Code text that is simple and straightforward as possible. If the code clearly explains the development review and appeal process and explicitly states correct courses of action, then all parties will be given fair and proactive notice of what can be expected of staff and what is expected of them.

With regard to the additional proposed changes to the development review process, staff believes that the changes would adequately address the Council�s goal to ensure that development projects with the potential to create traffic impacts are adequately reviewed by the City. The proposed changes would make all non-exempt development review projects subject to discretionary review and environmental analysis, and would ensure that any project with the potential for significant traffic impacts is reviewed by the Planning Board at a public hearing. Staff believes that these changes would ensure that traffic impacts are adequately considered and that no projects with potential traffic impacts be subject to City and public review.

Staff recommends that the City Council recommend approval Project No. 2006-008, a Zone Text Amendment, as proposed by staff, which would modify the appeal processes for planning applications and the development review application process.

[1] The 50-trip threshold under existing City policy represents 50 net new trips. Any trips generated by existing uses or structures to be demolished are subtracted from the expected trip generation of the proposed project. This is also the method proposed for the development review process to maintain consistency with current City policy.

Council Agenda - City of Burbank

Tuesday, August 8, 2006