PURPOSE:

This report recommends that the City Council approve a zone text amendment that would reinstate the requirement for an Administrative Use Permit (AUP) for new restaurants in Downtown Burbank. 

BACKGROUND AND ANALYSIS:

The Central Business District Downtown Parking Area (the �District�) is an eight block area bounded by Angeleno Avenue on the south, First Street on the west, Magnolia Boulevard on the north, and Third Street on the east.  The zoning in the eight block area consists of BCC-1 (Burbank Center Commercial Retail-Professional), BCC-2 (Burbank Center Commercial Limited Business), and six (6) PD (Planned Development) zones. 

The revitalization of the District occurring to date may be largely attributed to a combination of land use and economic strategies stemming back to the 1990�s.  These strategies have cumulatively resulted in an equitable balance of diverse and vibrant retail, restaurant, and entertainment uses in the District, solidifying the District�s place as a daytime, evening, and weekend activity center. 

1992 Parking District

In 1992, the City Council adopted the ordinance that created the District.  The intent of the ordinance was two-fold: to encourage activity in the District and provide increased economic feasibility for tenants to locate there.  For example, the retail parking requirement was and is 3.3 parking spaces for every 1,000 square feet of adjusted gross floor area.  The restaurant parking requirement was and is 10 spaces for every 1,000 square feet of adjusted gross floor area.  Restaurant tenants who attempted to occupy space in the District, if previously occupied by retail use, had to provide the additional parking required by the more parking intensive use.  In the District, meeting the increased parking requirement was extremely difficult. 

The ordinance envisioned the District as a unified business center, rather than as individual, self parked properties.  It was determined that the parking supply occurring in the District was adequate given the existing building square footage and accompanying uses.  Taking into consideration both the square footage of buildings occurring in the District, their accompanying uses, and the parking supply available for public use, the ordinance established a unified parking ratio of 3.5 parking spaces for every 1,000 square feet of adjusted gross floor area, applicable to all uses (except residential units) throughout the District.  Creating a uniform ratio allowed restaurants to locate in spaces, formerly occupied by retail, without having to provide additional parking.  Additional parking would only be required, for a restaurant or other permitted use, if square footage were added to a building.  If so, additional parking would be required at the District rate. 

2004 Administrative Use Requirement

The 1997 adoption of the Burbank Center Plan and the 2001 formation of the Property-Based Business Improvement District (P-BID) introduced new land use regulations and economic development strategies.  As the District continued to revitalize with new businesses replacing older, less intensive uses, concerns over whether the emerging mix of businesses was consistent with the original shared parking management strategy led to the adoption in 2004 of an ordinance requiring new restaurants to obtain an Administrative Use Permit (AUP) prior to opening (Exhibit A).

Implementing the AUP requirement was intended to provide an opportunity for City staff to evaluate each new restaurant in terms of its cumulative effect upon the overall parking supply and its consistency with the goals of the District�s economic development strategy.  Specifically, the AUP process looks at whether the parking characteristics of the proposed restaurant type would cause an over concentration of certain types of restaurants that may have an adverse impact on the parking supply; and whether the proposed restaurant would be consistent with the shared-use parking principles of the District.

Different restaurant types can have different traffic and parking patterns.  For example, fast food restaurants generally have high trip generation and parking turnover where quality restaurants generally have lower trip generation and parking turnover.  Not only would an overabundance of any restaurant type result in significant traffic and parking impacts at corresponding peak times, but also reduce the restaurant diversity occurring within the District and the opportunity for non-restaurant uses to locate in the Downtown area.  The District was established with the assumption that the mix of uses in the District would remain balanced.  However, prior to ordinance adoption, the District had experienced not just an influx of restaurants, but similar restaurant types. 

As approved by the Council, the AUP ordinance expired two (2) years after its effective date of July 31, 2004.  During the two-year period, it was intended that the City would conduct a parking study to determine whether or not the shared parking District concept, as created in 1992, remained valid.  A 1999 parking study had affirmed that an adequate parking supply existed in the District, provided that the current mix of land uses remained constant.  The recent analysis by the Public Works Department during the past two years has not found the parking supply to be inadequate, and has offered for consideration parking management strategies designed to make more effective use of the available District parking supply.  Since the adequacy of the parking supply is based upon a mix of different land uses in the Downtown area, staff believes it is appropriate to permanently codify the AUP requirement so as to ensure that, through proper land use controls, the economic vitality and diversity of the Downtown area can be preserved while providing for review of the District�s shared parking concept on a case-by-case basis as new restaurants seek to locate in Downtown Burbank. 

The intent of the original ordinance was not to discourage development or deter restaurants from locating in the District.  Rather, the intent was to ensure that an equitable balance of land uses was maintained, and that the existing parking supply was sufficient to meet the demand of those uses.  During the two-year period that the ordinance was in effect, no restaurants were prevented from opening in the Downtown area.  Two AUP applications were processed for new restaurants while the ordinance was in effect, and both were approved.  For reasons unrelated to the AUP requirement, both restaurants ultimately did not open and the AUP approvals expired. 

Proposed Ordinance

With the recent expiration of the two-year AUP requirement ordinance, it is necessary to adopt a separate and new ordinance in order to continue requiring AUPs for new proposed restaurants in the District.  The proposed ordinance is essentially the same as that originally adopted by the City Council in 2004 (Exhibit B).  Some language, such as the language regarding the original sunset provisions, has been removed.  The requirements and findings have not changed. The proposed ordinance adds new language related to grandfathering provisions for existing restaurants as discussed below.  Although the same grandfathering provisions were intended under the original ordinance, the provisions were not explicitly called out in the ordinance. 

Requirements

The proposed ordinance would require that new restaurants in the District receive approval of an AUP before opening (Exhibit C).  The AUP would be approved or denied by staff (the Community Development Director) based on staff�s ability to meet the required findings.  This AUP process would follow the process already detailed in the BMC, which requires public noticing and provides an opportunity for the decision to be appealed to the Planning Board and City Council. 

Findings

The findings applicable to new restaurants in the proposed ordinance are the same as those that were applicable in the expired ordinance.  The findings relate to the various problems and issues that may result in the event of an overabundance of one restaurant type.  The findings require that new restaurants contribute to the shared parking concept occurring in the District and that an overabundance of restaurants with high parking generation rates does not occur. 

Additionally, there has been growing concern that some restaurants have placed too much emphasis on the business generated by their bar versus dining room.  A finding would require that new restaurants demonstrate the main purpose of the restaurant to be their dining room and not their bar.  This can be demonstrated by providing a floor plan of the tables and bar area, as well as an annual certification of the receipts of alcohol versus food.  Restaurants wishing to open as a drinking establishment with additional focus on the bar area are already required to obtain approval of a Conditional Use Permit.

The findings would focus foremost on preserving the diversity of the District, taking into consideration the type of restaurant, revenue, and parking generation.  Therefore, each restaurant would be placed into a category of quality, family, high turnover sit down, fast food restaurant, or other appropriate category.  These categories are based on the Institute of Transportation Engineers trip and parking generation handbooks.  Each restaurant would subsequently be judged to determine if they do or do not contribute to the existing economic balance and shared parking concept of the District. 

Applicability

The proposed ordinance would grandfather existing restaurants, meaning that an existing restaurant may remain without an AUP.  The proposed ordinance would also allow new restaurants to operate within previously existing restaurant space if the new restaurant is a similar type.  This relates to whether the restaurant is classified as quality, family high turnover sit down, fast food, or another category.  If a restaurant changes to another type with the same or lesser parking turnover, an AUP would not be required.  If a restaurant changes to another type with higher parking turnover, an AUP would be required.    Further, if the new restaurant proposed to serve alcoholic beverages where the previous restaurant did not or proposed to use a different type of alcohol license than the previous restaurant, an AUP would be required.  Staff is proposing that the ordinance apply to new restaurants on the day the ordinance is effective and would not apply to existing restaurants with approved business permits or with approved tenant improvement building permits.  The ordinance would also not apply to the PD zones in the District as they have vested rights for certain numbers and types of restaurants.    

Timing

This ordinance is scheduled to be considered by the City Council at a public hearing on September 19, 2006.  Given the timeline required by the City Charter for an ordinance to become effective, the ordinance would take effect on October 31, 2006 if adopted by the Council.

On November 7, 2006 California voters will consider Proposition 90: Government Acquisition, Regulation of Private Property, an Initiative Constitutional Amendment.  The proposed amendment generally seeks to require government agencies to compensate property owners for substantial economic losses resulting from new laws or rules and limits governmental authority to take ownership of private property through eminent domain.[1]  The proposed amendment would require government to compensate property owners if new laws or rules are passed resulting in a substantial economic loss.  Existing laws and rules would be exempt from the measure�s compensation requirement, as are laws or rules enacted to protect public health or safety. 

In the event that Proposition 90 is approved, its effective date occurs the very next day, November 8, 2006.  If the proposed ordinance were not taken to the Planning Board and City Council for consideration in this timely fashion, the ordinance may be subject to claim or protest under Prop. 90.  As aforementioned in this report, the proposed ordinance does not intend to discourage development or prevent restaurants from locating in the District.  Its intent remains as it did when originally adopted, to ensure that an equitable balance of land uses occurs in the District and to ensure parking supplies are adequate to serve those uses.  However, any zoning ordinance may be contested in the event Proposition 90 is adopted by the voters of the State of California. 

Community Outreach

Staff provided the Downtown Parking Management Committee and Downtown Burbank Partnership, Inc. (PBID) with a copy of this report.  Due to the timeline discussed above, there was not adequate time for either of these groups to consider the ordinance at their respective meetings.  In addition to publishing the hearing notice in the paper as required by Code, staff additionally mailed public notices to all property owners and tenants within the eight-block District.  Any comments received will be provided to the City Council. 

CEQA Determination

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 (Exhibit D).  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 will reinstate the requirement of an additional level of review for new restaurant projects to insure that land use and parking impacts associated therein would not adversely impact the District.  Furthermore, restaurants subject to this requirement would be required to undergo the appropriate CEQA review. 

PLANNING BOARD CONSIDERATION:

The Planning Board considered the proposed zone text amendment at a public hearing on September 11, 2006.  There were no public speakers at the hearing who spoke in support of or opposition to the proposed zone text amendment.  Mr. Jackson inquired as to what criteria would be used to designate a restaurant as being quality, family, high turnover sit down, fast food restaurant, or other type.  Staff clarified that a restaurant would be placed into a category based on the Institute of Transportation Engineers trip and parking generation handbooks.  Based upon the category, the restaurant would be evaluated to determine if it did or did not contribute to the existing economic balance and shared parking concept of the District. All Planning Board members expressed their support for the action as proposed by staff and voted 5-0 to recommend that the City Council adopt the zone text amendment (Exhibit E). 

FISCAL IMPACT: 

The proposed zone text amendment would reinstate the requirement for an AUP for new restaurants in Downtown Burbank.  Reinstatement of the proposed ordinance would not change the way in which the Code is administered and would not require additional staff time or resources in excess of that required under the prior ordinance.  Only two (2) AUP applications were processed during the two-year period that the original ordinance was in effect and staff does not believe that the volume of AUP applications will be substantially increased or decreased if this requirement is reinstated by the Council. 

CONCLUSION:

Staff believes that the success of the uniform parking ratio was, and continues to be largely contingent upon the land uses occurring in the District and the supply for available parking.  It is the intent of staff to preserve the economic vitality that has developed in the District.  An over concentration of restaurant types in the District may disrupt that balance by diminishing the diversity of the District, and adversely impact the District�s parking supply.  Staff believes that by reinstating the AUP requirement applicable to new restaurants in the District, the economic vitality of the District may be continued while ensuring that parking demands are not exceeded so as to render an insufficient supply. 

RECOMMENDATION:

Staff recommends that the City Council approve Project No. 2006-138, a Zone Text Amendment that would reinstate the AUP requirement for new restaurants in the District. 

LIST OF EXHIBITS:

Exhibit A          Ordinance No. 3644

Exhibit B          Proposed Municipal Code Text

Exhibit C          Proposed Zoning Use List

Exhibit D          Public Notice of Environmental Decision

Exhibit E           Planning Board Resolution No. 3040 dated September 11, 2006

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