PURPOSE:

This report responds to a City Council member�s request for a first step report through the two-step process to discuss the possibility of adopting an Interim Development Control Ordinance (IDCO) in the Rancho area.

BACKGROUND:

At the City Council meeting of May 15, 2007, a City Council member requested that staff return with a first step report through the two-step process to discuss the possibility of adopting an IDCO for certain types of commercial development in the Rancho area.  The purpose of the IDCO would be to allow the City to study and possibly amend the Zoning Ordinance to prohibit grocery markets and to reinstate �food specialty store� as a permitted use in the Rancho Commercial zone and other Rancho zones and possibly make other changes to the use list or impose other development requirements in the Rancho area. During the time that the IDCO is effective, no approvals of subdivisions, use permits, variances, building permits, or any other applicable entitlement or permit for any grocery markets or other prohibited uses in the Rancho zones would be allowed since such uses could conflict with the ultimate Zoning Ordinance amendments.

In February and March 2007, the City Council considered and denied an appeal of the Planning Board�s decision to deny a proposed Whole Foods market at the corner of Alameda Avenue and Main Street in the Rancho Commercial zone.  The issue of zoning use classifications in the Rancho area came up numerous times during the Planning Board�s and City Council�s consideration of the application.  Specifically, there was concern expressed by some that grocery markets, which are now listed in the Zoning Ordinance as a permitted use in the Rancho Commercial zone and other zones in the Rancho area, were not intended to be permitted uses under the original Rancho Master Plan and Rancho zoning, and that �food specialty stores� were the only related use permitted under the zoning.

During the deliberations for the Whole Foods project, some Planning Board and City Council members expressed concern that allowing grocery markets as a permitted use in the Rancho area may not be consistent with the original intent of the Rancho Master Plan.  The Board and Council both requested that staff return to the City Council for further discussion on the intent of the Rancho Master Plan regarding the permissibility of certain land uses, and specifically grocery markets.  Staff is scheduled to provide the City Council with a report on this matter on June 26, 2007.  The report will provide background information regarding the Rancho zoning and subsequent changes to the list of permitted uses, and seek direction from the City Council about whether to proceed with a Zone Text Amendment to change the use list in the Zoning Ordinance.  No changes could be adopted by the City Council that night, and would have to go through the normal Zone Text Amendment process.  A Zone Text Amendment is the process that is followed when any changes are made to the City�s Zoning Ordinance (Chapter 31 of the Burbank Municipal Code).  Zone Text Amendments typically require noticed public hearings before the Planning Board and City Council, and are approved by the City Council by means of an ordinance.

An IDCO is a special type of interim zoning ordinance that is authorized and regulated under state planning and zoning law to control uses for a short duration.  An IDCO allows the City to maintain the status quo and/or carefully control the development of future uses that may otherwise conflict with a contemplated General Plan or Zoning Ordinance amendment until time for study and public hearings on the amendment can occur.  An IDCO may allow for continued development of uses with additional City review to eliminate any potential inconsistency with the pending study and future amendments, such as through a discretionary entitlement process.  Alternatively, an IDCO may impose a moratorium to prohibit the approval of certain uses.  The normal Zone Text Amendment process requires noticed public hearings, Planning Board review and recommendation (in most cases), and environmental review under the California Environmental Quality Act (CEQA).  An IDCO allows for a zoning ordinance to be adopted directly by the City Council without a public hearing, prior review by the Planning Board, or environmental review under CEQA.  California Government Code Section 65858 provides for IDCOs as follows:

Without following the procedures otherwise required prior to the adoption of a zoning ordinance, the legislative body of a county, city, including a charter city, or city and county, to protect the public safety, health, and welfare, may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or intends to study within a reasonable time. 

Unlike typical ordinances that require a second reading and then become effective 30 days after adoption (under the City Charter amendments recently approved by Burbank voters), an IDCO does not require a second reading and becomes effective immediately upon adoption by the City Council.  An IDCO can be adopted in one of two ways:

1. If adopted without a noticed public hearing, an IDCO is effective for no longer than 45 days, after which time it may be extended following a noticed public hearing for up to 10 months and 15 days, and subsequently extended for one additional year for a total effective period of 24 months; or

2. If adopted following a noticed public hearing, an IDCO is effective for no longer than 45 days, after which time it may be extended following a noticed public hearing for up to 22 months and 15 days for a total effective period of 24 months with no additional extension required.

The adoption of an IDCO and any extension of an IDCO requires approval by a four-fifths vote of the City Council.  Per Government Code Section 65858(f), an IDCO cannot be extended beyond a total of 24 months except in response to an �event, occurrence, or set of circumstances different from the event, occurrence, or set of circumstances that led to the adoption of the prior interim ordinance.�

Pursuant to Government Code Section 65858(c), the City Council must make specific legislative findings in adopting or extending an IDCO as follows:

The legislative body shall not adopt or extend any interim ordinance pursuant to this section unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare.[1]

If a four-fifths supermajority of the City Council fails to make this required finding that a current and immediate threat to the public health, safety, or welfare exists, an IDCO cannot be adopted.

ANALYSIS:

The purpose of an IDCO is to serve as a stopgap measure while a General Plan or Zoning Ordinance amendment is being studied or considered.  The idea is that by or before the time the IDCO expires, a General Plan policy or zoning regulation has been created and adopted to address the issue that created the original need for the IDCO.  The most recent IDCO adopted by the City Council was in 2004 related to development standards for the R-1 Single Family Residential zone.  The Council approved an IDCO to decrease the maximum allowed height and size of single family homes while new R-1 development standards were created and discussed with the community, Planning Board, and City Council.  The Council also considered adopting an IDCO to temporarily stop multiple family residential development while new multiple family development standards were created, but decided against an IDCO in that situation because of the more stringent findings that are required for IDCOs related to multiple family residential development.

While an IDCO may be used to prohibit all uses or certain types of uses on a particular property, IDCOs are more commonly structured to prohibit certain uses citywide, within a particular area, or within certain zones.  If the City Council�s concern in the Rancho area is only related to markets in the Rancho Commercial zone, an IDCO could be adopted prohibiting the issuance of any approvals for markets in that zone or in all Rancho zones.  If the City Council has larger concerns about other permitted uses potentially being inconsistent with the intent of the Rancho Master Plan, the Council could adopt an IDCO prohibiting approvals for all new development or all commercial uses in all of the Rancho zones.  In the June 26 staff report, staff will provide information about differences between the current zoning use list and the original lists of permitted uses in Rancho zones in addition to markets.

There are several approaches that may be used when adopting an IDCO.  An IDCO may be used to completely stop all development, stop only certain types of uses, or create interim standards that serve as interim use or development regulations.  An IDCO that completely stops all development or certain types of development is often referred to as a moratorium.  The R-1 IDCO adopted by the City Council in 2004 was not a moratorium.  It allowed construction of single family homes in the R-1 zone to continue and placed interim development standards on the development in lieu of a prohibition.  As an alternative to prohibiting development or establishment of uses in the Rancho area, an IDCO could require all projects in the Rancho zones to go through the Conditional Use Permit process or some other discretionary permit process.  Such a process would provide the Planning Board and/or City Council with approval authority over every project to ensure that no project would be approved that could be inconsistent with the Rancho Master Plan but could delay and complicate the reuse of existing buildings.

An IDCO may be adopted at any time and may be applied to projects at any point in the planning application process.  While an IDCO may be adopted before any project applications are submitted as a preemptive measure, IDCOs are often adopted by cities after an application for a project is submitted and it is found that the project may be inconsistent with an upcoming General Plan or Zoning Ordinance amendment.  So long as a project application has not already been approved or the owner does not otherwise have vested rights to build the project, the City Council may choose to have an IDCO apply to any project, even if the application has already been submitted and processing has already begun.

There are currently no Development Review applications in process in any Rancho commercial zone.  Staff therefore does not believe that an IDCO is necessary at this time.  If an application is received for any project that could be viewed as inconsistent with the intent of the Rancho Master Plan and zoning, the City Council could elect to adopt an IDCO at that time.  Staff would notify the Council of any applications received and the Council could direct staff to prepare an IDCO if it believed that the project would be contrary to the intended development for the Rancho area.

Whether or not the City Council decides to adopt an IDCO, staff will seek direction from the Council on June 26 as to whether the Council wishes to proceed with a Zone Text Amendment to amend the Zoning Ordinance and change the list of uses permitted in the Rancho zones.  If the desire of the City Council is to restore the use list for the Rancho zones to its original form as adopted in 1993 with no additional study or public outreach, the process could be completed in as little as a few months, including Planning Board and City Council hearings.  However, staff notes that several new citywide use classifications have been added to the Zoning Ordinance since 1993 that should be accounted for in the Rancho zones.  Additional neighborhood protections have been added to the Zoning Ordinance through the use list, such as the use restrictions of the Residentially Adjacent Commercial and Industrial Uses (RACI) ordinance that were added in 1998.  Some additional review would be required to ensure that these issues are carefully considered and not inadvertently deleted or changed to the detriment of the Rancho area.

Further, staff notes that one of the reasons for the apparent differences between the original list of permitted uses in the Rancho area and the use list today is the lack of definitions for the different use categories that were used in the original Rancho zoning.  With no definitions, the intent of the different use categories is not clear and is open to interpretation.  Staff would recommend that if the Council wishes to return to the original Rancho use list, that definitions be added for many of the use classifications to make clear the intent and reduce the need for interpretation.  Creating definitions for use classifications would have impacts on zones across the City and would have to be carefully studied.  Staff would also recommend community participation in reviewing the definitions to ensure that the intent of the Rancho Master Plan is properly memorialized.  This process would add several additional months to the Zone Text Amendment process.  Finally, staff notes that there was substantial community support, including from many Rancho area residents, for the proposed Whole Foods market.  Based upon this sentiment, the desire of many people in the Rancho area may not be to simply revert the zoning back to what was adopted in 1993 but rather to have a thoughtful community discussion about what types of businesses are appropriate for the Rancho area today.  Such a process would require community outreach and meetings, and could add several months to the Zone Text Amendment process.

FISCAL IMPACT:

Adopting an IDCO that prohibits certain types of development for an interim period would likely have little fiscal impact on the City.  Staff would be working on a Zone Text Amendment with or without an IDCO, and additional staff time would not be required to administer the IDCO itself.  A greater fiscal impact could potentially occur in the form of lost tax revenue from businesses that may have otherwise opened in the Rancho area during the time the IDCO was in effect.  If the IDCO took the approach of allowing projects to go forward through a discretionary review process before the Planning Board or City Council, this would require additional staff resources.  Projects that might otherwise be subject only to administrative review would require public hearings and staff reports with substantial additional staff time.  The amount of staff time required would be dependent upon the number of project applications received while the IDCO was in effect.

CONCLUSION:

Staff does not believe there is a need to adopt an IDCO at this time since there are no pending project applications for the Rancho area.  To adopt an IDCO, the City Council must find that there is a current and immediate threat to the public health, safety, or welfare.  Staff will seek direction from the City Council on June 26 regarding a Zone Text Amendment to modify the permitted uses in the Rancho area as deemed appropriate by the Council.  If the Council does not wish to proceed with an IDCO, staff would make the City Council aware of any future development applications received for the Rancho area while the Zone Text Amendment is in process.  The Council could elect at any time to adopt an IDCO if it were deemed necessary.

If the Council wishes to proceed with consideration of an IDCO at this time, the Council should direct staff to return with the second step report in the one-step two-step process.  That report would include more detailed discussion about a possible IDCO and a proposed ordinance for Council consideration and adoption.  If the Council directs staff to return with a second step report, the report would be done in conjunction with the Zone Text Amendment discussion scheduled for June 26, 2007.

RECOMMENDATION:

Staff recommends that the City Council note and file this report and not pursue an IDCO at this time.  Staff will return on June 26 to seek Council direction regarding a Zone Text Amendment for the Rancho area.

If the City Council wishes to pursue an IDCO, staff would recommend that the Council direct staff to return with a second step report including a proposed ordinance for Council consideration in conjunction with the June 26 report.

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