PURPOSE

The purpose of this report is to provide information for a public hearing concerning an appeal of a denial decision by the Permit Appeals Panel.  The Permit Appeals Panel decision was the result of deliberations from a hearing conducted on November 8, 2006.  The November 8, 2006 decision upheld a May 9, 2006 business permit denial decision by the License and Code Services Division.

The business permit which was denied by both the License and Code Services Division and the Permit Appeals Panel was for a home occupation (residentially conducted business) known as Trygve Enterprises, Inc., located at 2511 N. Orchard Drive, Burbank (R-1 Residential Zone).  The grounds for both these denial decisions were based on non-conformance with the Burbank Home Occupation Rules and Regulations which are found in the Burbank Municipal Code (BMC) Section 31-672 (copy attached as Exhibit A).

BACKGROUND

The Permit Appeals Process

The permit appeals process is determined by Article 15, of Chapter 2 of the Burbank Municipal Code (copy attached as Exhibit B).  The full extent of this appeals process can include up to two hearings.  A first appeal hearing is conducted before the Permit Appeals Panel, and if requested, a second appeal hearing is conducted by the City Council. 

If an appellant is not satisfied with the results of a decision by the Permit Appeal Panel, the appellant can request a second hearing before the City Council.  The second hearing is considered  as a �de nuvo� hearing, which is a completely new review of the facts presented by the original Decision Maker (as defined in Exhibit B).  In this case, the original Decision Maker was the License and Code Services Division.

The permit appeals process begins when an appellant requests the Burbank Permit Appeals Panel to conduct a hearing for an independent review of the facts previously used by the Decision Maker as a basis for denying a permit.  In this case the appellant, Trygve Enterprises, Inc., requested the Permit Appeals Panel to overturn a previous permit denial decision by the License and Code Services Division.

On November 8, 2006, the Permit Appeals Panel deliberated on the facts presented from the appellant, the License and Code Services Division, and the City Attorney�s Office.  After deliberations the panel determined to uphold the License and Code Services Division decision to deny the business permit.  As such, Trygve Enterprises, Inc. has chosen to exercise their right to further appeal this decision to the City Council.

November 10, 2006 Appeal Letter Appealing Decision of the Permit Appeals Panel

Attached as Exhibit K is an appeal letter dated November 10, 2006, from Trygve Enterprises, Inc.�s attorney, Steven Haney.  This letter requests an appeal hearing before the Burbank City Council.  The appeal disputes the findings of the Permit Appeals Panel and in part by stating the following:

1. There is no prohibition in the BMC which prevents clients from coming to a residence, pursuant to BMC Sections 31-672 (b), (c).

2. The BMC allows firearm dealers to have clients visit Home Occupations��for the purpose of viewing and presumably purchasing firearms, as long as they do so during the hours of the day that most people are awake, (one presumes the intent is to prevent neighbors from having their sleep disturbed by gunfire when customers test the merchandise�).

3. Only three clients will come to the 2511 N. Orchard Drive residence a week thereby not creating any violation to the Purpose and Intent of the Burbank Home Occupation Ordinance (Section 31-671).

4. There �seems to be selective enforcement, and an unequal application of the Municipal Code�, because it �allows for the sale of firearms, jewelry, and artwork through artists studios� per BMC Section 31-672(e) and (f)��prevent the sale of any commodity, including hearing aids.�

5. Although BMC Section 31-672 (f) prohibits the repair, processing, or alteration of goods,��However, the Cotters neither manufacture nor repair hearing aids, but send them out to be repaired.�

6. There is no need for concern on the issue of the Home Occupation causing, per BMC Section 31-671, �an objectionable use of the property due to potential noise, glare, dust, vibration, increased pedestrian or vehicular traffic, or any other condition that interferes with the general welfare of the surrounding residential area.�  The reason given for non-concern, amongst others, was because �the Cotters are a retired couple who prefer to live in a quiet environment.�

7. Although the City of Burbank has received complaints about the business operation of Trygve Enterprises, Inc. conducted from the residence at 2511 N. Orchard Drive, five of the seven persons residing in the properties (including the 2511 N. Orchard Drive property where Georgia and Maxwell Cotter reside, signed a petition in support of the business operations from that location.

After receipt of the November 10, 2006 appeal letter by the Burbank City Clerk, the appeal process is to be further considered.  As with the first hearing by the Permit Appeals Panel, a public hearing by the City Council is also a �de nuvo� hearing for the purpose of deliberating on the facts surrounding the Permit Appeals Panel�s decision to deny this business permit.  The Permit Appeals Panel is now considered the second Decision Maker whose decision to deny will be independently reviewed by the City Council.

The Composition of the Permit Appeals Panel

The Burbank Permit Appeals Panel is a permit review panel authorized by Article 15, of Chapter 2 of the BMC to independently review decisions which are appealed by applicants for various permits (mostly business permits and business licenses).  When convened, this panel consists of the City Manager and two department heads selected by the City Manager.  The November 8, 2006 Permit Appeals Panel which reviewed the Trygve Enterprises, Inc. appeal, consisted of  Michael Flad (Assistant City Manager), Tracy Pansisi (Fire Chief), and Eric Hansen (Parks, Recreation, and Community Services Department Director).

Facts Concerning the Permit Appeals Panel�s Decision to Deny a Business Permit for the Home Occupation Business known as Trygve Enterprises, Inc.

On November 8, 2006 the Burbank Permit Appeals Panel conducted a public hearing to appeal a May 9, 2006 decision by the License and Code Services Division which denied a home occupation business permit.  The appellant was Trygve Enterprises, Inc.  This business is a corporation listing Georgia Cotter as �President� and Maxwell Cotter as �Vice President�.

Georgia and Maxwell Cotter had applied on April 26, 2006 to conduct this business from their residence located at 2511 Orchard Drive, Burbank.  The nature of the business, which was to be conducted from a residentially zoned property, was described by the applicant on the business permit application as �Lawful Activity Medical Services & Sales Hearing Aids� (copy of application attached as Exhibit C).   This application was denied by the License and Code Services Division after an inspection of the residential premises on May 9, 2006 revealed that if the operations of the business were to be conducted as desired by the applicant, this commercial business activity would conflict with some of the Home Occupation Rules and Regulations of the BMC which govern such business activity in residential zones. 

Prior to April 26, 2006 this business had operated for three and a half years from an approved commercial business location at 500 E. Olive Avenue, Burbank.  A copy of the business permit application dated October 23, 2002 is attached as Exhibit D.  At this time the business was known as Trygve Enterprises, Inc., dba �Mayo Hearing Clinic�.  Approximately two months prior to the business being conducted from this approved commercial location, the business had been approved to be conducted as a home occupation located at 2511 Orchard Drive.  A copy of an application dated August 19, 2002 is attached as Exhibit E.  This home occupation application for a business permit to operate the business from the residence was approved because at that time it was not known to be out of compliance with the Home Occupation Rules and Regulations.

At the November 8, 2006 hearing the Permit Appeals Panel received testimony from Georgia and Maxwell Cotter and their attorney Steven H. Haney.  Providing testimony and information concerning complaints about this residential business activity were Elaine Pease, Senior License and Code Services Inspector; Terre Hirsch, License and Code Services Administrator; and, Jina Oh, Assistant City Attorney.  After receiving testimony, reviewing the facts, and conducting deliberations, the Permit Appeals Panel voted 3-0 to deny the appeal.  The Permit Appeals Panel denial was based on the following findings (copy of the official Permit Appeals findings is attached as Exhibit F):

1. The proposed home occupation business is a violation of BMC Section 31-672(e) which states �No commodity shall be sold or displayed on the premises�.  Trygve Enterprises, Inc. intends to conduct hearing tests and sell hearing aids to customers at this residence.  Such activity would be a violation of the above mentioned prohibition against the sale and display of commodities on residential premises.

2. The proposed home occupation business is a violation of BMC Section 31-672(h) which states in part��only materials, equipment, and/or tools recognized as part of a normal household or necessary or convenient for domestic purposes shall be used in the home occupation�.

• Trygve Enterprises, Inc. intends to use a hearing testing booth to conduct hearing tests in the residence.

• The hearing testing booth is a sound proof booth approximately the size of a refrigerator with wheels which has been and will continue to be utilized in a stationary manner wherein the customers will come to the residence for the hearing examinations.

• A hearing testing booth is not a recognized part of a normal household and is not a piece of equipment that has any domestic purpose or is convertible or convenient for a domestic purpose.

3. The proposed home occupation business is a violation of BMC Section 31-672(i) which states �the home occupation shall not create pedestrian or vehicular traffic in excess of that which is normal to a residential use of the premises�.

• Trygve Enterprises, Inc. indicated the number of customers will be limited to three per week.  It was uncertain if this number included the number of patients needing hearing tests only, or included the number of patients needing adjustments to their hearing aids, the number of customers wishing to purchase hearing aids, or a combination of tests, adjustments, and sales all to the same person.

• Orchard Drive is a small residential street in a cul-de-sac (map of street attached as Exhibit G).  Even three customers per week will create additional pedestrian and vehicular traffic in excess of what is normal to a residential use of the premises.  If it was not for the business operating in the residential area those particular customers would not be traveling to and from that particular location.

• Complaints regarding increased pedestrian and vehicular traffic due to the operation of Trygve Enterprises, Inc. were received by the City after the decision to deny the permit was issued on May 9, 2006 by the License and Code Services Division, but prior to the hearing before the Permit Appeals Panel.

4. The proposed home occupation business is a violation of BMC Section 31-672(l) which states in part �the home occupation shall not create any�unreasonable disturbance in excess of that which is normal to a residential use of the premises.  Nor may the home occupation cause or generate any other condition that interferes with the peace, health, safety or general welfare of people or property in the surrounding area.�

• Customers coming and going to the residence located at 2511 N. Orchard    Drive will create excess pedestrian and vehicular traffic that will result in a negative impact on the tranquility and peace of the surrounding residential neighborhood.  License and Code Services received numerous complaints regarding people knocking on neighbors� doors looking for the �hearing aid place.�

• Customers coming and going in a quiet residential street (cul-de-sac) will commercialize the character of the neighborhood and thereby interfere with the peace of the people and the enjoyment of the property in the surrounding area.

5. The proposed home occupation business is a violation of the BMC Section 31-673(f) which prohibits as home occupation �[t]hose occupations that entail the repair, processing, or alteration of goods, materials, or objects�� Trygve Enterprises, Inc. stated hearing aids may occasionally be altered/modified on the premises for individual customers as deemed medically necessary.  

6. Appellant, Trygve Enterprise, Inc., has the burden of proof to establish the actions of the License and Code Services Division were contrary to the BMC or and abuse of discretion and they have failed to do so.

New Facts Since the Permit Appeals Panel Denial Decision

There are new facts which have occurred since the November 8, 2006 Permit Appeals Panel Hearing.  On November 16, 2006 a new application for Trygve Enterprises, Inc., was submitted to the License and Code Services Division for conducting business at 2600 W. Olive Avenue, 5^th Floor, Burbank, which is a commercial business location.  This application also noted that Trygve Enterprises, Inc. has an additional business name which is �Alternative Healthy Hearing Aids�.  2600 W. Olive Avenue is a properly zoned location and as such this business permit application was approved by the Burbank Planning Division on December 12, 2006.

Prior to zoning approval an inspection of the 2600 W. Olive Avenue business location was conducted on December 9, 2006 by License and Code Services Inspector I, Bill Weyandt.  Attached to this report as Exhibit H is an April 3, 2007 memo from Mr. Weyandt in addition to the November 16, 2006 business permit application for Trygve Enterprises, Inc. dba �Alternative Healthy Hearing Aids�, attached as Exhibit I.  The application and the memo detail the intentions for use of the 2600 W. Olive Avenue  premises.  At the time of the inspection Maxwell Cotter indicated to Mr. Weyandt that the only activity to occur at the 2600 W. Olive Avenue location would be the performance of hearing tests.  He further stated that the general office work would still be conducted from his residence at 2511 N. Orchard Drive, Burbank.  

CONCLUSION

Based on findings derived from testimony received by the Permit Appeals Panel during a hearing on November 8, 2006, the panel upheld a previous May 9, 2006 business permit denial decision by the License and Code Services Division for Trygve Enterprises, Inc., to conduct a home occupation business from a residence located at 2511 N. Orchard Drive, Burbank.  A copy of the November 8, 2006 hearing staff report is attached as Exhibit J.  The grounds for denial of the business permit by the Permit Appeals Panel were based on sections of Division 11, Chapter 31 of the BMC.  The specific code sections that would be violated if Trygve Enterprises, Inc. operated a home occupation business as intended, are:

1. Section 31-672(e) �No commodity shall be sold or displayed on the premises.�

2. Section 31-672(h)��only materials, equipment, and or tools recognized as part of a normal household or necessary or convenient for domestic purposes shall be used in the home occupation.�

3. Section 31-672(i)��the home occupation shall not create pedestrian or vehicular traffic in excess of that which is normal to a residential use of the premises.�

4. Section 31-672(l)��the home occupation shall not create any�unreasonable disturbances in excess of that which is normal to a residential use of the premises. Nor may the home occupation cause or generate any other condition that interferes with the peace, health, safety or general welfare of people or property in the surrounding area.�

5. Section 31-673(f)��those occupations that entail the repair, processing, or alteration of goods, materials, or objects��

RECOMMENDATION

Staff recommends the City Council affirm a denial decision by the Permit Appeals Panel (Decision Maker) which on November 8, 2006 denied a business permit for the operation of a home occupation business known as Trygve Enterprises Inc., located at 2511 N. Orchard Drive, Burbank.

EXHIBITS

            A         City of Burbank Home Occupation Rules and Regulations,

                        Burbank Municipal Code, Section 31-672

            B          Permit Appeals Process

                        Burbank Municipal Code, Article 15, Chapter 2

            C         Trygve Enterprises, Inc., Application, Dated April 26, 2006

            D         Trygve Enterprises, Inc., Application, Dated October 23, 2002

            E          Trygve Enterprises, Inc., Application, Dated August 19, 2002

            F          Permit Appeals Panel Findings, Dated December 18, 2006,

                        for Trygve Enterprises, Inc., Permit Appeal Hearing Conducted

                        on November 8, 2006

            G         Aerial Map of Cul-de-sac Neighborhood (2522 N. Orchard Drive)

            H         Memo From License and Code Services Inspector Bill Weyandt

            I           Trygve Enterprises, Inc, (dba �Alternative Healthy Hearing Aids�)

                       Application Dated November 16, 2006

            J           Staff Report for November 8, 2006 Permit Appeals Panel Hearing

           K         November 10, 2006 Appeal Letter Appealing the November 8, 2006 Decision

                      of the Burbank Appeals Panel

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