PROJECT NO. 2006-31 SPECIAL DEVELOPMENT PERMIT

PURPOSE:

The purpose of this report is to consider an appeal of the Planning Boards decision to deny an appeal of Project No. 2006-31, a Special Development Permit and uphold the Community Development Director�s approval of the project with conditions. The approval permitted the .4 floor area ratio (FAR) limit to be exceeded to .49 with conditions. The appeal is based on conditions of approval numbers 5 and 6 which require that a room, labeled �attic,� and a driveway with the porte-cochere be removed. The appeal was received from Ross Gunnell, also the applicant for the Special Development Permit application. 

BACKGROUND AND ANALYSIS:

Project History Prior to Special Development Permit Application submittal:

• March 24, 2004 � Permit Number B04-0532, with plans, was issued for a 413 square foot addition extending the living room, a kitchen, and a bedroom. The permit included a 506 square foot attached garage at the rear of the property with access off the alley and did not show the porte-cochere or front driveway remaining.

• March 24, 2004-February 18, 2005 � The property owner moved forward with construction of the permitted first floor. Several inspections by the Building Department ensued.

• April 16, 2004 � A Building inspector inspected the building layout and footings for the addition to the house and the garage. The work was not approved and the owner was given a list of required corrections.

• April 21, 2004 � A Building inspector inspected the building layout and footings for the addition and the garage. The work was not approved and the owner was given a list of required corrections.

• April 28, 2004 � A Building inspector inspected the building layout and footings for the addition and the garage. The work was not approved and the owner was given a list of required corrections.

• April 30, 2004 � A Building inspector inspected the building layout and footings for the addition and the garage. The inspector approved the building layout and footings.

• May 12, 2004 � A Building inspector inspected and approved the slab for the addition and garage.

• May 13, 2004-February 18, 2005 � No inspections were requested from the property owner and the property owner began illegal construction of an un-permitted 1,223 square foot second floor.

• February 18, 2005 � The Building Department issued a �Notice to Stop Work� for un-permitted construction of the second floor, as well as a 3-foot second floor setback that is short of the required five (5) feet. The original permit was never finalized as a result of the un-permitted construction. The property owner moved forward with construction while attempting to get plans approved, which were not to a level that the Building Division could approve.

• June 1, 2005 � First Notice of Violation letter is sent to property owner referencing the un-permitted second floor and its encroachment into the side yard setback. Owners given until June 14, 2005 to comply.

• July 1, 2005 � The new single family development standards became effective, requiring a .4 FAR instead of the interim .45 FAR.

• August 16, 2005 � The property owner submits a request for inspection to the Building Department.

• August 23, 2005 � A second Notice of Violation is sent to the property owner, and is given 10 days to begin correcting the building violations, and 30 days to complete the corrections.

• September 6, 2005 � A Final Notice letter is sent to the property owner, giving him until September 20, 2005 to comply.

• September 9, 2005 � The property owner attempted to obtain a permit for the second floor, but again the plans were not sufficient.

• September 20, 2005 � A letter was sent to the property owner by the Building Department and the Planning Division outlining each department�s requirements, specifically the new FAR and setback requirements. The property owner is given until October 31, 2005 to comply before legal action is taken.

• October 23, 2005 � The property owner submitted a letter requesting an extension, which was approved.

• February 22, 2006 � The applicant applied for a Special Development Permit to legalize a 991 square foot portion of the 1,223 square foot second floor, which would result in a .49 FAR home. The applicant proposed that the remainder of the second floor be walled off and made attic space. The applicant has shown that the second story has a 5�-1� setback and complies with the side-yard setback requirement.  The lot is only 5,000 square feet and therefore is eligible for a Special Development Permit.

Project Description and CDD Decision: On April 20, 2006, the Community Development Department Director approved, with conditions, a Single Family Special Development Permit application allowing an FAR of 0.49 (Exhibit 1). The house would have a .54 FAR with the attic. A condition of approval was added to remove the attic storage space so that the house would not appear as massive, would be more compatible with neighboring properties, and would meet the applicant�s request for a .49 FAR.  A condition was also added to ensure removal of the driveway and porte-cochere so that it would comply with the originally approved plans and so it would comply with code as no variance was requested.

Appeal of Community Development Director�s Decision:

The applicant filed an appeal of the Director�s decision citing many conditions that they did not support.  However, most of the focus was on the requirement to reduce the size to .49 rather than .54 and the requirement to remove the driveway and porte-cochere in accordance with code.

Planning Board Deliberations and Decision: On July 24, 2006, the Planning Board held a public hearing to consider the applicant�s request to appeal the Special Development Permit based on the conditions of approval. (Exhibit 2)  The Board asked many questions of staff, including the Building inspector, regarding what changes were made to the building that were not in conformance with the originally approved plans.  Some issues that were brought up during the meeting were the location of the air-conditioning unit, and how the room would be removed. A Building Division staff member explained that the roof could be further pitched at the room labeled �attic� in such a way that the room could be nullified, and the air-conditioning unit could be placed on the roof.

During deliberations the Board members stated the conditions seemed appropriate and believed staff had been generous with their recommendations.  They believed the property owner subjected themselves to financial punishment when they decided to add a second story without permits.  They felt the porte-cochere was in severe disrepair and should be removed.  They suggested if the applicants wanted to build a new porte-cochere and keep the driveway, they should file for a separate request that the Board would consider.

The Planning Board members voted 4-0 to deny the appeal and uphold the Community Development Director�s decision to approve the Special Development Approval with the Conditions of Approval (Exhibit 3).

Project History following Planning Board Hearing:

• August 11, 2006 � The appellant submitted an appeal of the Planning Board�s decision to uphold the conditions of approval for Project No. 2006-31 Special Development Permit. The appeal is based on the conditions of approval requiring the removal of the room labeled �attic� and removal of the driveway and porte-cochere (Exhibit 4). During the ensuing weeks the appellant commented to staff that he would withdraw the appeal if staff permitted him to keep the driveway. Staff informed the appellant that because removal of the driveway is a Code requirement, it can only be approved through a Variance process. He asked if we could separate the two issues and permit a proposal which meets the Condition of Approval requiring the removal of the �attic� and deal with the driveway and porte-cochere through the Variance process. Staff agreed to this proposal and informed the appellant that the driveway removal would not be enforced until the Variance process was completed. Staff informed the applicant that the driveway, however, could not be shown on the plans with the attic removed.

• September 21, 2006 � The appellant submitted an incomplete Variance application to keep the driveway and porte-cochere, but did not withdraw the appeal of the Planning Board�s decision (Exhibit 5). Staff informed the appellant that both applications may not be processed at the same time and we needed direction from him as to how he wanted to proceed.

• October 10, 2006 � The appellant submitted a letter stating that nowhere in the code does it say that the driveway must be removed when new legal off street parking has been provided. He stated that Public Works told him that the driveway can remain. In the letter he stated that there is a parking problem on this street and that many houses have been approved for driveways that do not lead to required parking (Exhibit 6).

• October 20, 2006 � Staff responded in writing to the appellant�s October 10, 2006 letter. The letter informed the appellant that a driveway must lead to required parking and the driveway at the rear leading to the garage meets this requirement. The front driveway does not lead to a required parking area and is therefore not permitted. The letter states that plans for the proposed project may not be approved as long as there is an active appeal on file. It mentions that a Variance is required to allow the driveway to remain, and the Variance application does not include plans and is therefore, incomplete. The letter states that staff cannot approve plans for the home unless the appeal is withdrawn or a decision on the appeal is made by the City Council. It states that the appellant can either direct staff to continue with the appeal or withdraw, it gives the appellant his options; if the appeal is withdrawn, plans for the home in compliance with the Planning Board�s approval, can be submitted. These plans cannot show the front driveway or the porte-cochere. The driveway and the porte-cochere would then be dealt with separately (Exhibit 7).

• November 5, 2006 � Appellant submitted a letter to the Planning Division addressed to the City Attorney and the Community Development Director. The appellant states that the building permit application expires November 10, 2006, and therefore action must be taken. The letter makes similar arguments to the CDD Director and the City Attorney, and accuses staff of misrepresentation, abuse of authority and unethical/inconsistent practices. (Exhibit 6).

• November 16, 2006 � Planning staff and the City Attorney each send a letter to the appellant in response to the appellant�s November 5, 2006 letter. It states that the plan check deadline has been extended six months to May 10, 2007. The letter offers the applicant a tentative public hearing for the appeal for January 9, 2007, and requests a response confirming this date. The City Attorney�s response states that the City Attorney does not get involved at this stage and explains the benefits of the appeal process (Exhibit 7).

• December 12, 2006 � Planning staff informed the appellant in writing that because the appellant had not confirmed the January 9, 2007 hearing date, it was no longer available. The letter informed the appellant that he had to direct staff whether to continue with the appeal (Exhibit 7).

• December 18, 2006 � After a discussion with the appellant, Planning staff sent a letter to the appellant confirming the appeal hearing for the next available date which was January 16, 2007.

Appeal Request: The applicant is appealing the Planning Board�s decision to uphold the Community Development Department�s approval of Project No. 2006-31 Special Development Permit, because certain Conditions of Approval in the Planning Board Resolution were found to be unacceptable by the applicant. Specifically, Condition of Approval 5, requiring the removal of the 232 square foot room labeled �attic� on the plans, and condition of approval 6, requiring that the driveway, curb cut and porte-cochere on the south side of the property be removed as required by Code. The home is currently 2,718 square feet with an unfinished 991 square foot second floor which was constructed without Building Permits (Exhibit 4).

Appeal of Planning Board�s Decision:

Below are arguments made by the appellant in italics, followed by staff comments:

The appellant stated that the �attic� should be allowed to remain because it is not livable space.

A building inspector determined that the room is livable space because it meets the definition of livable space, namely that the building height is 7�6� and the floor area exceeds 70 square feet.

Staff concluded that the large house would have an imposing affect on the abutting property to the north. It would block sunlight, air, views from neighboring properties, and affect the privacy of the neighboring home owner. The structural floor in the attic cannot be removed without jeopardizing the structural integrity. Therefore, the attic space would be habitable. The Board agreed that removal of the attic would give the neighboring property owner some relief.

The appellant stated that the driveway and porte-cochere should be allowed to remain because they were constructed with permits and should be grandfathered, and that no where in Code does it state that if a garage is added with a new driveway, the original driveway must be removed.

Maintaining the front driveway and porte-cochere increases the non-conformity of the property and therefore cannot be grandfathered. The home, in its previous condition did not have a garage; therefore, the driveway and porte-cochere served as the homes parking space. However, with the approval of the new garage, a front driveway and porte-cochere are no longer necessary and now violates code. Current Code states that a driveway must lead to required off-street parking (garage). The driveway at the front of the property would not lead to required parking; as such the driveway must be removed. The original plans approved did not show the driveway and porte-cochere remaining; these were to be removed once the new garage at the rear was constructed.  Staff agrees that the driveway was likely legal non-conforming, but cannot confirm the same for the porte-cochere.  It appears patio permits were granted at one time, but staff believes that the structure that is located on the site was not likely one that received a permit.

Public Correspondence: Prior to the public hearing, staff received a letter with no contact information opposing the project because of parking concerns rising from the excessive size of the home, the possibility of multiple families living on the premises, and the potential for the garage to be converted into living space (Exhibit 1). A phone call was received from a resident in favor of the project. She stated that the uncompleted house is an eye-sore and has been in this state for too long. The appellant submitted a petition signed by residents in the area. The petition lists the findings for a Special Development Permit, including that the home is compatible with and would not encroach upon neighboring properties. It states that the house would not be detrimental to neighboring properties. The petition was signed by eight individuals representing seven properties in the area (Exhibit 1).

Since the public hearing, no public correspondence has been received.  

CONCLUSION:

It is staff's assessment that with the conditions of approval imposed by the Planning Board, the four (4) findings required by Burbank Municipal Code Section 31-607 for approval of a Special Development Permit can be made for this project.

Requirements for Granting a Special Development Permit

(1)   The house is compatible with existing houses in the neighborhood and consistent with the prevailing neighborhood character.

The proposed house would be two (2) stories with the garage located at the rear of the property. Several homes in the vicinity are also two (2) stories, and have garages at the rear of the lot. The neighborhood is characterized by medium to large homes, and the proposed home would also be medium to large, which would be consistent with the neighboring houses. The style of the proposed home is similar to neighboring homes, and the proposed addition will maintain the characteristic and style of the home.

(2)   The house is reasonably consistent in scale and proportion to existing houses in the neighborhood.

The house would be consistent with existing houses in the vicinity. There are several homes within a 300 foot radius that have a floor area ratio equal to or greater than the proposed house. However, not all of these homes appear to have proper permits. Many lots in the vicinity are substandard, and contain medium to large homes on them, which would be consistent with the subject property. The height of the proposed home matches the height of the immediately adjacent neighboring home, and to homes in the vicinity. The bulk of the proposed project is larger than other homes, but if the mass of the �attic� space identified was removed, the home would not have the appearance of a .54 FAR home.

(3)   The house does not unnecessarily or unreasonably encroach upon neighboring properties or structures in a visual or aesthetic manner through its size, location, orientation setbacks, or height.

The proposed second story addition meets current setback requirements. The site is adequate in size to accommodate the proposed addition and setback requirements. The adjacent home to the north is equal in size and shape to the proposed home and is, therefore, not expected to encroach upon this home or other homes to the north. To the south of the subject property is a parking lot which would not be affected by the proposed home. Behind the subject property to the west is an alley which buffers the home from properties to the west. Condition of Approval No. 5 requires that the 232-square foot attic space be removed in order to reduce the structure�s mass.

(4)   The house does not impose unnecessary or unreasonable detrimental impacts on neighboring properties or structures, including but not limited to impacts related to light and glare, sunlight exposure, air circulation, privacy, scenic views, or aesthetics.

No detrimental impacts are expected because the structure will meet setback requirements and will be sufficiently buffered from neighboring properties. The subject property and neighboring properties are on level ground with no prevailing view. As such, views of neighboring homes are not expected to be impacted. The only adjacent home is equal in size to the proposed home, so their privacy is not expected to be impacted by the proposed home. Condition of Approval No. 5 requires that the 232-square foot attic space be removed in order to reduce the structure�s mass. As proposed the home addition has an impact on aesthetic views as you enter the street. With the elimination of the attic space, at full height, the home has more reasonable massing that is consistent with some homes on the street.

RECOMMENDATION:

Staff believes that without Conditions of Approval No.5 and No. 6 the proposed 2-story structure would negatively impact neighboring properties and would not be compatible with the prevailing neighborhood character. Staff recommends that the City Council deny the appeal and uphold the Planning Board�s Decision to approve Project No. 2006-31, Special Development Permit with all Conditions of Approval placed on the project.

LIST OF EXHIBITS:

Exhibit              1          Planning Board Staff Report for appeal of Project No. 2006-31

Exhibit              2          Planning Board Minutes dated 7/24/06 for appeal of Project No 2006-

                                      31

Exhibit              3          Planning Board Resolution No. 3030 for hearing on 7/24/06

Exhibit              4          Appeal application

Exhibit              5          Variance application

Exhibit              6          Appellant letters to Planning Division after Planning Board hearing

Exhibit              7          Planning Division and City Attorney letters to appellant after Planning                                       Board hearing  

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