PURPOSE:

This report responds to the City Council�s request to hold a study session regarding a proposed Zone Text Amendment (ZTA) that would reorganize sections of the Burbank Municipal Code (BMC) related to planning application processes and procedures.  This report also responds to a City Council member�s request to bring back a first step report through the two-step process regarding the Development Review (DR) process and projects that are appealed to the City Council.

DISCUSSION:

At the City Council meeting of May 8, 2007, a City Council member requested that staff bring back for Council discussion information regarding the DR process and projects that are appealed to the City Council as the first step in the two-step process.  The City Council previously directed staff on April 3, 2007 to schedule a study session for Council discussion of a staff-proposed ZTA that would reorganize sections of the BMC dealing with planning application processes and procedures.  Because these two issues are closely related, staff has consolidated a discussion of both issues into a single study session report.  This report includes discussion about the planning application process for all different types of projects and applications, the proposed ZTA, and the questions raised by the City Council regarding appealed DR applications.

Staff seeks direction from the City Council on the previously proposed ZTA, as well as any additional direction regarding further consideration of changes to the DR process.  This study session serves as the first step in the two-step process.  If the Council wishes to agendize any discussion about further changes to the BMC, staff would return at a future meeting as the second step.  The second step could occur in conjunction with the public hearing on the ZTA, or on another date prior to the public hearing as a separate agenda item.

Types of Application Processes

The Planning and Transportation Division processes many different types of applications for zoning permits and entitlements.  These applications range from simple Accessory Structure Covenants to complex Planned Development (PD) projects.  There are numerous steps that are followed as a planning application is processed and ultimately acted upon, which are discussed in detail below.  Before that discussion, it is worth noting two important differences in the way that applications are processed.

Ministerial vs. Discretionary

There are two types of planning application processes: ministerial and discretionary.  Ministerial applications are those that the City must approve if the proposed project would comply with all applicable BMC requirements and other regulations.  Other than BMC compliance, there are no findings that must be made before an application is approved.  The City cannot exercise any discretion over the application and is compelled to approve it if all requirements are satisfied.  The City cannot impose any conditions of approval upon a ministerial application except as necessary to ensure BMC compliance.  Examples of ministerial applications include Accessory Structure Covenants and DR applications for projects that are not located within 150 feet of a residential zone, would not generate 50 or more trips during peak traffic hours, and are not regionally significant.

Discretionary applications are those that the City may approve if it is found that the proposed project would satisfy certain required findings, in addition to complying with applicable BMC requirements.  The findings that must be made before an application can be approved are different for each application type, but typically include findings that the proposed project would be compatible with surrounding development and would not have an adverse impact on neighboring properties.  The City may impose conditions of approval upon discretionary applications for the purpose of ensuring project compatibility, mitigating project impacts, and generally protecting the public health, safety, and welfare.

Administrative vs. Planning Board or City Council Action

Planning project applications are generally acted upon by one of three decision makers.  Some applications are approved or denied administratively by the Community Development Director or its designee.  These applications may be ministerial or discretionary.  Following the required public notice, if any, the application is approved or denied by staff.  No public hearing is held for administrative applications.  Although some cities utilize an administrative hearing process with a Zoning Administrator or other planning staff member conducting an actual public hearing, the BMC does not include provisions for administrative hearings on planning applications.  With few exceptions pertaining to certain ministerial applications, any decision of the Community Development Director may be appealed to the Planning Board and further appealed to the City Council.

Applications that are not acted upon by the Community Development Director are approved or denied by either the Planning Board or City Council, depending upon the type of application, following a noticed public hearing.  All applications that are considered by the Planning Board or City Council are discretionary applications (except when ministerial applications are considered on appeal).  Some applications are approved or denied by the Planning Board, and the Board�s decision may be appealed to the City Council.  Other applications are considered by the Planning Board and the Board makes a recommendation to the City Council but does not take action on the application.  For both types of applications, staff serves in an advisory capacity and makes a recommendation to the Board and/ or Council about whether staff believes that the required findings for approval can be met.  The Board and Council may act upon the application consistent with or contrary to staff�s recommendation.

A common misconception is that ministerial and administrative are synonymous, and that ministerial applications are acted upon by staff while discretionary applications are acted upon by the Planning Board and the City Council.  However, these two concepts are separate and are not related to one another.  The Community Development Director acts upon both ministerial and discretionary applications.  The Planning Board and City Council act upon discretionary applications, but may consider ministerial applications on appeal.

Types of Applications

Burbank has over 20 different types of planning permit and entitlement applications.  These different applications correspond with all different types and sizes of development.  A table showing all of the different application types and the decision maker for each is attached as Exhibit A.  While planning applications are often associated with construction of new buildings, Burbank is a built-out city.  Many of the applications submitted are related to reuse of existing buildings and other such projects that do not involve new construction.  The following is a brief summary of the different types of projects and applications that are typically seen for each land use category.

Single Family Residential

Additions to single family homes and construction of new homes that comply with all applicable development standards are not subject to any planning application process.  Planning must sign off on all building permits, but no other approval is needed.  Planning applications for single family properties include Accessory Structure Covenants and Permits, Second Dwelling Unit Permits, Minor Setback Exception requests, Special Development Permits to exceed floor area ratio and height standards, Major and Minor Fence Exception Permits, and Hillside Development Permits.  All of these applications for single family projects are acted upon administratively by the Community Development Director with the exception of Major Fence Exception Permits, which are acted upon by the Planning Board.

Multiple Family Residential

Most multiple family projects involve the addition of new units to an existing project or an entirely new project.  All multifamily projects except for very minor additions to existing units are required to go through the Development Review process.  These applications are acted upon administratively by the Community Development Director.

Non-Residential

All new construction and any additions over 1,000 square feet for commercial, industrial, and other non-residential projects are required to go through the Development Review process.  These applications are acted upon administratively by the Community Development Director except when the project would generate 50 or more peak hour vehicle trips, in which case the application is acted upon by the Planning Board.

Many of the applications that are processed for non-residential projects are not related to new construction but rather reuse of existing buildings.  These include CUPs for alcohol, CUPs for residentially adjacent uses or certain classes of uses in general, Variances for parking due to a change in use, and other such issues.  These applications are acted upon by the Planning Board.

The most complex applications for non-residential development or mixed-use development are PDs and Development Agreements (DAs).  These applications are typically for large or complex projects that include extensive environmental review and are acted upon by the City Council following review and recommendation from the Planning Board.

Advance Planning

Advance planning projects include ZTAs, Zone Map Amendments (ZMAs), and General Plan Amendments.  These types of actions are typically not related to an applicant-driven development project, but rather planning policies and objectives of the City.  Although these types of applications are occasionally submitted by project applicants in conjunction with specific projects, these types of projects are generally City-driven rather than applicant-driven.  Therefore they are not specifically addressed in the below description of the application process.  These applications are acted upon by the City Council following review and recommendation from the Planning Board.

Subdivisions

Although not directly discussed in this report, planning applications also include Parcel Maps, Tentative Tract Maps, and Lot Line Adjustments filed under the Subdivision Map Act.  These applications may be standalone but are more frequently filed in conjunction with another planning application for a development project.  The general process for these applications is substantially similar to that described in this report for other application types, with some differences dictated by state law and the BMC.  The proposed ZTA would address these types of applications in the same manner as other application types in an effort to increase the consistency of application processing.

Steps in the Application Process

The application process is different for the various application types but can be generally summarized into three major process types based upon the decision maker (Community Development Director, Planning Board, or City Council).  Below is a description of each step in the planning application process.  Some steps do not apply to all application types.  Attached as Exhibit B are three flow charts showing how each of these steps apply to the three major process types.

Pre-Application Meetings

Staff frequently communicates and meets with prospective project applicants before project applications are submitted.  Applicants typically contact staff first via telephone to ask questions about the application process, schedules, and zoning requirements.  Staff often meets with applicants to discuss general or specific aspects of a proposed project and to review and provide comments on preliminary plan drawings.  Applicants sometimes submit preliminary plans at the public counter and ask staff for a preliminary review for compliance with zoning regulations; this approach is often used by applicants for multiple family residential projects.

At the request of a project applicant, an applicant may present preliminary project plans during the DR staff meeting with representatives from various City departments.  This provides an opportunity for the different departments to see preliminary plan drawings, provide initial comments on the project design and issues of concern, and ask questions of the applicant.  In some cases, the plans that are submitted with the application are the same as those reviewed during the pre-application process.  In other cases, the project may be substantially revised before the application is formally submitted.

The BMC specifically provides for a pre-application process for DR applications to provide applicants with input at the earliest possible opportunity.  The proposed ZTA would expand this provision to apply to all application types, as staff has done in practice for many years as a service to project applicants.  Pre-application communications and meetings occur for all different types and sizes of projects.  Although pre-application review is not regularly used by single family homeowners, such applicants do occasionally take advantage of opportunities to communicate and meet with staff prior to application submittal.

Application Submittal and Review for Completeness

Once the project design has been finalized, an application, plans, and any other supporting materials are submitted.  Applications must also be accompanied by the appropriate fees as established in the Fee Resolution.  Applications and supporting materials are submitted at the Planning counter.  The planner taking in the application conducts a quick review of the application at the counter to ensure that the application is the appropriate type for the proposed project and that all required application materials and fees are present.

Application materials vary based on project type, but they typically include sets of project plans including site plan, floor plan, parking plan, elevation drawings and landscape plans as well as a site survey and proof ownership consisting of a current title report. For projects that require Development Review with no Planning Board hearing 13 sets of plans are required. For applications reviewed by Planning Board an additional five sets of plans are required. Applicants are also required to submit a radius map and mailing labels for public notices, environmental information form, and a neighborhood compatibility checklist and photos for multi-family projects. Hillside Development Permit applications have the additional requirement of a view study.

Once the application has been accepted, the state Permit Streamlining Act provides staff with 30 days to review the application materials and determine whether the application is complete and ready for processing.  The application and supporting materials are reviewed by a senior staff planner.  If the application is deemed complete, it is assigned to a planner.  If the application is deemed incomplete, a letter is sent to the applicant within 30 days notifying them of the determination and the information needed to complete the application.  An application may be deemed incomplete due to missing application materials, incomplete information, inaccurate or incomplete plans, or other reasons.

Also within the 30 day period, staff will evaluate the expected traffic generation from the proposed project for DR applications.  This review is to determine whether the 50 trip threshold has been exceeded during the AM or PM peak traffic hour, as required by the DR process adopted by the City Council in 2006 and extended by the Council in May 2007 through July 31, 2008.  The traffic generation from the project determines whether or not a traffic study will be required and whether the application will be acted upon by the Community Development Director or the Planning Board.

Staff Review

The planner to which the application has been assigned reviews the application and supporting materials.  The project is reviewed for compliance with the Zoning Ordinance and other applicable provisions of the BMC.  The planner prepares a memo describing the proposed project that is routed, along with copies of the application and plans, to various City departments.  The departments are given one month to prepare and submit written comments regarding the project application. This review period used to be shorter, but departments have requested a minimum of one month of review time due to the volume of projects to be reviewed and the general workload.  The written comments provide information about BMC requirements, City policies that must be followed, permits and other approvals that must be obtained, and the manner in which utilities and other City services will be provided to the project.

In the case of DR applications, these department comments together form the DR approval package along with comments or conditions of approval imposed by Planning.  In the case of certain other application types such as Conditional Use Permits (CUPs), Variances, and PDs, the department comments form the basis for many of the conditions of approval placed upon the project.

Development Review Staff Meeting

For DR applications, City departments submit their written comments at a staff meeting where the project application is discussed.  This meeting provides an opportunity for affected City departments to discuss any issues or concerns they have regarding the project.  The project applicant is also invited to these meetings to directly hear comments and answer questions from City departments, and to have an opportunity to ask questions of the department representatives at the meeting.

Environmental Review

A major aspect of the application process is reviewing a project�s potential environmental impacts as required by the California Environmental Quality Act (CEQA).  A full discussion of the CEQA process is beyond the scope of this report.  Generally, a project may be exempted from environmental review if it meets certain criteria provided in the State CEQA Guidelines.  If a project is not exempt and is determined to have no significant environmental impacts, or it is determined that all environment impacts can be mitigated, a Negative Declaration or Mitigated Negative Declaration is prepared.  If a project is found to have potentially significant impacts that may not be able to be mitigated, an Environmental Impact Report is prepared.  The environmental document, if any, is reviewed by the decision maker at the time the application is considered and approved in conjunction with the project application if the application is approved.

Public Notice

Staff review and analysis of a project application is only part of the project review process.  Public input on proposed projects is important because it provides another perspective that staff often does not have.  The public is made aware of pending project applications through the public notice process.  The BMC requires that notice of nearly all decisions on planning applications be mailed to all property owners and tenants within a specified radius of the project site.  For most applications, the required radius is 1,000 feet; some applications require a lesser noticing radius.  Certain applications also require notice to be published in a �newspaper of general circulation.�  Notices are generally published in the Burbank Leader.

Public notices serve several purposes.  Notices provide information about the proposed project to persons living, working, or owning property in the vicinity of the project site and provide them with information about whom to contact to ask questions and get more information.  The City staff contact information also provides interested persons with a point of contact to submit comments, written or verbal, regarding a proposed project.  Notices provide information about community meetings, public hearings, and any other opportunities to provide input in person regarding a proposed project.  Finally, notices provide interested persons with information about when a decision will be made regarding the application and the timeline and process for filing an appeal of that decision.

In the case of applications that are approved or denied administratively by the Community Development Director, a notice is mailed notifying property owners and tenants that the Director will make a decision regarding the application on or after a certain date.  The notice must be mailed at least 10 days before the scheduled decision date.  Newspaper notice is not required for these types of applications.

In the case of applications that are acted upon by the Planning Board including appeals, a notice is mailed notifying property owners and tenants of the date that the Planning Board will hold its public hearing to consider the proposed project.  The notice must be mailed at least 10 days before the public hearing.  Notice of the hearing must also be published in the newspaper at least 10 days prior to the hearing.  Notice must be provided in the same manner prior to a City Council public hearing including when the hearing is for an appeal.

For DR applications, additional notice is also required for the DR Community Meeting (discussed below).  Notice must be mailed at least 10 days prior to the meeting, and may be combined with the notice of Director�s decision or Planning Board hearing, as applicable.  Further, DR applications also require a four foot by eight foot sign to be posted on the property at least 10 days before the Director�s scheduled decision date or the Planning Board public hearing, in addition to the mailed notice.  The sign must provide notice of either the Director�s decision date or Planning Board hearing date, as applicable.

Development Review Community Meeting

DR applications (aside from those for projects generating 50 or more vehicle trips during the AM or PM peak traffic hours) are approved or denied administratively by the Community Development Director.  As noted above, the BMC does not provide for administrative hearings for projects acted upon by the Director.  Prior to May 2006, there was no opportunity for concerned individuals to interact in a public forum with staff and project applicants to ask questions and submit comments regarding a DR application.  In May 2006, staff initiated a policy to require all DR applications to go through a community meeting to provide a public forum for interested persons to learn about and provide comments on projects prior to the Director�s decision on the application.  These meetings proved successful and were adopted into the BMC in August 2006 as a requirement for all DR applications.

Although the primary purpose of the community meetings was to provide a public forum where one did not otherwise occur, community meetings are required for all DR applications, even those that require a Planning Board public hearing due to their traffic generation or due to related discretionary applications for the same project.  In these cases, community meetings are required to occur prior to the Planning Board public hearing and provide an additional opportunity for community input on a project.

Another valuable aspect of the community meetings is the opportunity for the project applicant to interface with the public and directly hear their concerns about the proposed project.  The intent is to open a dialogue between the applicant and the community such that the applicant will revise the project design or make other concessions in response to concerns and that major issues can be addressed and resolved before a decision is made on the project rather than through the appeal process after the decision is made.

Public Review and Input

Once public notices have been mailed for a project, concerned individuals begin contacting the project planner to ask questions and/or provide comments regarding the project.  Concerned people can contact staff via telephone, electronic mail, or in person at the Planning counter.  People often come in to view the project plans and other documents from the project file to learn more about the project.  For some projects, many hours of staff time are required to respond to inquiries and comments from the public

Staff sometimes receives complaints from the members of the public that noticing is provided too late in the process and that the public should be made aware of project applications earlier in the process.  There is a common misconception among the public that their input on a project does not matter because once they receive the public notice, the decision on the project has already been made.  However, this is not the case.  Staff considers all input received and sometimes adds to or modifies the proposed conditions of approval in response to points raised by the public.  For projects with public hearings, public input is always carefully weighed by the Planning Board and City Council, and public input often affects the final decision on the project or results in changes being required to a project as a condition of approval.  Nonetheless, staff is continuously exploring ways to engage the public in the planning process.  The DR community meetings discussed above are an attempt to bring the public into the planning process at an earlier time to ensure that the public is aware of a project and is given an opportunity to provide input well before a decision is made.

As part of the City Council goals for the coming year that were recently discussed, one Council member suggested that persons living on the site of a proposed project that would be displaced or otherwise directly impacted by the project should be notified at the time the project application is filed.  If the Council is interested in pursuing this idea, staff would recommend that the responsibility be placed upon project applicants to provide notice to affected persons in conjunction with submitting their application.  Applicants would be required to submit with their application proof that notice was provided to all tenants on the project site of the pending application and whether they would be displaced by the project if it were approved.  This requirement could be added to the BMC as part of the proposed ZTA if so desired by the Council.  Staff would seek direction from the Council on whether such a requirement would apply to all projects, only certain types of applications, or only certain types or sizes of projects.

Staff Analysis and Decision/Recommendation

Once all staff review is completed and public input has been considered, a decision must be made regarding the application.  By this time staff has carefully reviewed the project to determine that it complies with all applicable aspects of the BMC and that the project has been reviewed in light of each required finding, when applicable.  Staff has conducted research on the project site including reviewing the history of zoning permits and entitlements, building permits, business licenses and permits, and code enforcement actions.  Staff has also visited the site one or more times to evaluate the existing and proposed improvements in relation to surrounding properties and the neighborhood.  Based upon all of the information available, staff makes a decision to approve or deny the application, or makes a recommendation to approve or deny the project.  For discretionary projects, staff also determines what conditions of approval are necessary and appropriate to place on the project and drafts them accordingly.

Director�s Decision

For applications that are approved by the Director, staff prepares a decision letter stating whether the application is approved or denied.  For discretionary applications, the letter includes a discussion of the required findings and the supporting facts and evidence that show why the findings can or cannot be made.  Approval letters are typically accompanied by lists of comments from Planning and other City departments, or conditions of approval.  Frequently, these comments or conditions require changes to be made to the project before the project is submitted for plan check.  These changes may be to ensure BMC compliance or may be for the purpose of satisfying required findings.  With a few exceptions for certain ministerial applications, decisions of the Community Development Director may be appealed by any interested party to the Planning Board within 15 days of the decision.  If no appeal is filed within 15 days, the decision of the Director becomes final and may not be further appealed.  The appeal process is described below.

Planning Board Decision

For applications that are approved by the Planning Board, considered by the Planning Board before going on to the Council, or appealed to the Planning Board from a Director�s decision, staff prepares a staff report that is forwarded to the Board.  The report contains factual information about the proposed project and the project site as well as a subjective discussion of staff�s recommendation on the project and the evidence that staff believes supports, or does not support, the required findings.  Staff also prepares a draft resolution to either approve or deny the project consistent with staff�s recommendation.  If the resolution recommends approval, the staff-proposed conditions of approval are attached to the resolution.  If the resolution recommends denial, no conditions of approval are attached.  However, staff typically prepares a proposed set of conditions in the event the Board decides to approve the application.

The Board holds a public hearing to receive public input and then deliberates on the project.  If the Planning Board approves a project, the Board may make any modifications to the staff-proposed conditions of approval.  Through the conditions, the Board may require changes to be made to the project.  The Board may choose to require the project to come back before the Board for final review before a building permit can be issued, or may give staff the responsibility of ensuring that the project is modified and built in a manner consistent with the Board�s decision and the conditions of approval.  Any changes to the resolution or conditions of approval that are approved by the Board are made by staff following the Board meeting.  The resolution is not brought back to the Board for further review or approval, even when the board adopts a resolution different from the one proposed by staff.

For applications where the Planning Board is the decision maker (including appeals), any decision of the Board may be appealed by any interested party to the City Council within 15 days of the Board�s decision as described below.  If no appeal is filed within 15 days, the decision of the Planning Board becomes final and may not be further appealed.  For applications where the Planning Board is acting as a recommending body to the City Council, the Board�s recommendation may not be appealed since no actual decision is made and the application is automatically forwarded to the City Council.

City Council Decision

For applications that are considered by the City Council or appealed to the City Council from a Planning Board decision, staff prepares another staff report that is provided to the Council.  In the case of appeals, staff generally provides the Council with a copy of the Planning Board staff report and then provides a supplemental report such that the Council can see the same original information considered by the Board.  The staff report includes a summary of the Board�s deliberations and recommendation or decision.  A copy of the meeting minutes is attached to the report to provide the full details of the meeting.

The City Attorney�s office prepares a draft resolution and/or ordinance (depending upon the application type) to approve or deny the project based upon staff�s recommendation.  Again, if approval is recommended, staff-proposed (or Planning Board approved) conditions of approval would be attached to the resolution.  For projects where the Planning Board is a recommending body, staff�s recommendation and proposed conditions of approval may be consistent with those recommended by the Planning Board or may differ from those recommended by the Board.  In those cases where staff�s recommendation differs from the Board, the staff report provides a complete discussion of the Board�s recommendations and the reasons for the differences in staff�s recommendations.

The City Council holds a public hearing to receive public input and then deliberates on the project.  If the Council approves a project, the Council may make any modifications to the proposed conditions of approval, or the conditions previously adopted by the Board in the case of an appeal.  As with the Planning Board, the City Council may require changes to be made to the project, and may or may not require the project to come back for final review and approval.  In situations where the City Council decision is consistent or generally consistent with the staff recommendation and draft resolution, the Council approves any desired modifications to the resolution and adopts the resolution at that time.  The nature of the changes to the resolution and conditions of approval when applicable are typically such that the Council is able to provide clear direction to staff on the desired changes and there is no need for subsequent City Council review or approval.  Staff and/or the City Attorney�s office make the modifications as approved by the Council and the Mayor signs the final resolution.

In situations where the City Council decision is contrary to the staff recommendation and the prepared resolution, the Council directs the City Attorney to prepare the appropriate resolution and to bring it back to the next Council meeting for adoption.  The resolution must document the Council�s ability or inability to make the required findings for the application, and it is appropriate for the Council to review the revised resolution and findings and formally approve it.

Most planning projects are approved by resolution.  Resolutions become effective immediately upon adoption.  There is no second reading or further consideration by the Council once the resolution has been adopted.  Only when the Council�s decision is contrary to the draft resolution does the resolution come back at a subsequent meeting for further consideration, as discussed above.

PDs, DAs, ZTAs, and ZMAs are legislative actions that are approved by ordinance rather than by resolution.  Per the City Charter, ordinances must be adopted through a two-step process where they are introduced at one meeting and then formally adopted at a second reading, typically at the next meeting.  The ordinance then becomes effective 30 days after adoption (per the recent City Charter revisions adopted by Burbank voters).  The second reading for ordinances was at one time generally viewed as a formality that served only to confirm a previously made Council decision.  More recently, second reading has been viewed by the public and the City Council as an opportunity to further modify the Council�s decision from the time the ordinance was introduced.

Decisions of the City Council, whether adopted through resolution or ordinance, cannot be appealed.  The City Council is the highest decision making authority and all Council decisions are final.

Appeals

As noted above, decisions of the Community Development Director may be appealed to the Planning Board and decisions of the Planning Board may be appealed to the City Council.  Planning Board and City Council appeal hearings are conducted as de novo hearings, meaning that the Board or Council considers the application as a whole and is not limited to considering only those issues raised in the appeal.  Any interested party may file an appeal by filling out the required form and paying the appeal fee specified in the Fee Resolution.  Appeals may be filed by an individual or by multiple individuals jointly submitting a single appeal and fee.  All appeals received for a project are consolidated into a single appeal hearing.

In 2006, the City Council adopted an ordinance that created a uniform appeal process applicable to all types of planning applications.  The ordinance was adopted in response to concerns about inconsistencies in the appeal process among different application types and uncertainty about certain roles and responsibilities in the appeal process.  One of the issues that was dealt with through the ordinance is appeal withdrawals.  In recent years, appeals have been withdrawn for projects immediately prior to the scheduled appeal hearing, which resulted in cancellation of the hearing and concerned individuals feeling as though they had been denied an opportunity to comment on the project.  To address these concerns, the 2006 ordinance established specific requirements and deadlines for withdrawing an appeal and established a secondary appeal period to provide a second chance for others to file an appeal if the first appeal is withdrawn.

Changes to Projects Prior to Final Decision

An issue that has been discussed recently by the City Council is changes that occur to proposed projects that have been appealed prior to the final decision being made.  These changes may occur between the Director�s approval and the Planning Board hearing, or between the Planning Board and City Council hearings.  Typically, these changes occur after the Planning Board hearing and are made in an effort to address comments or concerns from the public or the prior decision maker.  At times these changes may be considered substantial and it has been suggested that such changes to projects during the application process should be sent back to the Planning Board for further review before the appeal is considered by the City Council.  Staff believes that this approach would be somewhat unwieldy to administer. Staff would need to interpret which changes warrant additional review by the Planning Board and which do not. Since such changes are made before the final public hearing with the City Council, the public is provided with an opportunity to review and provide comments on the revised project without sending it back to the Planning Board for further consideration.

Changes to Projects After Final Decision

Staff and the City Council have revisited for several years the concept of �substantial conformance� and changes that are made to projects after final approval has been given.  Nearly every project that goes through the planning application process is changed in some way after it receives planning approval and before a building permit is issued.  These changes are mostly minor in nature and often result from issues related to utility service, compliance with the Americans with Disabilities Act, construction issues that come to light during the preparation of construction drawings and other efforts that take projects from the design phase to actual construction.

Sometimes changes are more substantial, and additional review is required to determine whether the changes are consistent with the letter and the intent of the project approvals.  These issues most often arise for PD projects, since they are typically larger scale and more complex projects that see complicated issues arise once the entitlement process is complete and may take several years to build out.  The BMC currently provides the Community Development Director with the authority to determine which changes substantially conform to the project approvals and which do not.  For some PDs, the conditions of approval provide for a specific substantial conformance process that may include public noticing and other requirements.  As discussed later in this report, the proposed ZTA would address the substantial conformance issue by establishing a new process that is intended to address the ongoing concerns about this issue.

Amendments to Approved Projects

When proposed changes to a previously approved project are found not to be consistent with the intent or conditions of approval, an amendment to the original approval is required.  An applicant may also seek an amendment to modify conditions of approval related to operating requirements or other issues.  Conditions of approval cannot be modified except through a formal amendment process.  For all application types, the process for an amendment is the same as the process for the original application.  Amendment applications are treated as new applications and the same application fees must be paid.  The findings and any other requirements for approval of an amendment are the same as the findings required for the original application, and the same decision maker acts upon the amendment request as acted upon the original application.

Proposed Zone Text Amendment

In March and April 2007, the City Council discussed a proposed ZTA that would reorganize BMC provisions related to planning application processes and procedures and make some modifications to the application process.  The planning application process is summarized above in a generalized way for all application types.  The actual BMC requirements, however, are more complex.  In the current BMC, many of the requirements for different application types are duplicative.  In other cases, requirements that are applicable only to certain application types could be applied uniformly to all applications.

The proposed ZTA seeks to simplify and standardize the procedures for all types of planning applications by establishing five application processes.  All planning applications would be processed pursuant to one of the five processes.  The general procedures in place now for individual application types would not change, but would be grouped into the five process categories.  Three of the five categories (Processes Two, Three, and Four) are consistent with the three major categories discussed above where applications are acted upon by the Community Development Director, Planning Board, and City Council.  The additional two categories (Processes One and Five) are variations on the other processes that already exist in practice but apply only in certain circumstances to a limited number of application types.  The processes are summarized in the following table, along with examples of the types of applications that would fall under them:

Each of the five application processes would have requirements that would apply in the same manner to all applications falling under that process.  All public noticing and hearing requirements would also be standardized among the five process types.  Rather than each application type specifying the complete processing requirements, it would simply refer to the appropriate application process, and all procedures would be contained within that process type.  Each individual application type would include only those requirements specific to that application, including purpose, applicability, and required findings or other requisites for approval.

The proposed ZTA is part of staff�s ongoing effort to make the Zoning Ordinance more user friendly and to eliminate redundancy.  The primary reasons behind the ZTA are to create uniformity among the different application process types, increase the internal consistency of the Zoning Ordinance, simplify the process of adding new application types, and facilitate the use of the recently implemented Enterprise Permitting and Licensing System (ePALS) that is now being used to track planning applications and manage project workload.

The majority of changes in the proposed ZTA deal with the organization and language of the BMC, and would not result in any substantive changes to the process or other requirements.  Those changes that would result in modifications to the application process or other requirements are discussed below. The changes have been categorized according to application type and the type of change.  The rationale for each change is discussed with the description of the change.

General changes applicable to multiple application types

• Existing BMC requires that during a public hearing, persons in favor of the matter under consideration be heard before persons opposed to the matter (Section 31-1903).  This requirement has not been followed in practice for many years.  The proposed ZTA would remove this requirement and allow members of the public to speak in any order, as is now done in practice.

• Existing BMC reiterates many requirements of CEQA with the requirements for various application types, including stating that a project that may have a significant environmental impact cannot be approved unless an Environmental Impact Report has been prepared.  Such requirements are entirely duplicative of the State CEQA Guidelines and are not necessary to repeat in the BMC.  In an effort to eliminate redundant or unnecessary language from the BMC, all requirements that are duplicative of CEQA requirements would be removed.  The City is required to comply with the State CEQA Guidelines regardless of whether the requirements are duplicated in a local ordinance.

• Some application types specify timelines within which certain actions must be taken, including acting to approve or deny an application.  The state Permit Streamlining Act and CEQA both specify timelines within which action must be taken regarding applications for non-legislative actions.  Consistent with the above statements regarding duplication of CEQA requirements, staff believes that it is unnecessary to specify timelines in the BMC.  Staff recommends against specifying timelines that are more restrictive than those already provided under state law.  As recommended by the Planning Board, the proposed BMC language includes a reference to the timelines that are applicable under state law to make applicants aware of the timelines.  The exception to this general recommendation to not include specific timelines is with regard to Second Dwelling Unit Permit applications.  Due to the separation requirement between Second Dwelling Units and the potential competition for permits, the processing timelines and application deadlines adopted as part of the Second Dwelling Unit ordinance are not proposed to change.

When the City Council considered the ordinance regarding the appeals process on July 25, 2006, the Council directed staff to return at a later date with an ordinance to provide a 75-day timeline within which an appeal of a Director or Planning Board decision must be considered by the Planning Board or City Council, respectively.  This timeline was originally suggested by the Planning Board in an effort to ensure that appeals were considered in a timely manner.  The City Council was supportive of the timeline.  As such, the 75-day time limit is included in the proposed ZTA.  The proposed ZTA provides, however, that the 75-day timeline is waived if the applicant fails to provide any required information or plans an adequate time in advance of the appeal hearing.

• During the second reading of the appeals ordinance on August 8, 2006, the City Council directed staff to return at a later date with an ordinance that would provide the City Council with authority to require the Planning Board to review a decision of the Community Development Director in lieu of an appeal being filed.  The City Council currently has the authority to review decisions of the Planning Board but does not have the authority to require the Planning Board to review a Director�s decision.  The proposed ZTA incorporates the City Council�s direction and provides this additional authority.

• Existing BMC requires that all Planning Board and City Council ordinances be prepared by the City Attorney�s office (Section 31-1905).  In practice, the Planning staff prepares all Planning Board resolutions in an effort to reduce the workload of the City Attorney�s office, and has done so for many years.  This requirement has been removed in the proposed ZTA to reflect current practice.

• Existing BMC does not have a specified process for handling cases where different application types are required for a single project with different decision makers.  For example, a project requiring a CUP and DR has two different types of applications that would separately require decisions by the Planning Board and the Community Development Director.  In practice, the highest level of authority to approve one application would approve all related applications.  In this example, the Planning Board would approve the DR application in addition to the CUP.  The proposed ZTA explicitly codifies this process so that there is no ambiguity about how applications are to be acted upon.

Application-specific requirements to be applied to all application types

• The procedures for DR applications include much more detail than other application types, including pre-application conferences, the process for deeming an application complete, and other such details that are not included for other application types (BMC Section 31-1909).  These aspects of the DR process would be useful for all application types, and the proposed ZTA would expand these procedural requirements to apply to all types of planning applications.  The requirements for community meetings and sign posting for noticing purposes would continue to be required for DR applications only.

• The procedures for DR provide that a DR approval expires one year after the approval date if a building permit application is not filed within that one year period.  The procedures for CUPs and Variances provide that a CUP or Variance approval expires if not used within the time limits specified in the approval or within 180 days if no time is specified.  To be consistent with the DR timeline, CUP and Variance approvals have for many years specified a one-year period for expiration.  Further, the approvals typically provide that an applicant may request an extension of the expiration date no less than 30 days prior to the expiration.  The proposed ZTA would establish a one-year period before expiration for all types of planning permits and entitlements, except in certain situations where other timelines are already in place, such as for Second Dwelling Unit Permits.  The BMC would further specify that an applicant could submit a written request to extend an expiration date no less than 60 days prior to the expiration date.  The decision about whether to grant the extension would be made by the decision maker that approved the permit or entitlement.  This 60-day time period would ensure that there is adequate time for the extension to be considered by the appropriate decision maker.

• The procedures for CUP and Variance applications include provisions for the revocation, expiration, and termination of the entitlements, and reapplication in the event applications are denied.  Such processes would be useful for all application types, and the proposed ZTA would expand these procedural requirements to apply to all applications, except in cases where other requirements are already in place, such as with PD projects.  The minimum noticing period for revocation of a permit or entitlement is proposed to increase from the current 20 days to 30 days to ensure that ample notice is provided to a property owner of the City�s intent to revoke a permit or entitlement.

• The existing DR and CUP requirements discuss specific allowances for the types of conditions of approval that may be imposed on an application (BMC Sections 31-1912(f) and 31-1937).  Since conditions of approval may be imposed upon any project approval, the proposed ZTA expands the requirement to apply to all application types.

• The Media District currently has additional noticing requirements for projects of 25,000 square feet or greater (BMC Section 31-2101).  The existing BMC specifies that the additional noticing is required �in addition to the 1,000-foot radius already required.�  This language makes it unclear as to the type of applications to which the noticing requirement is intended to apply, since until recently DR applications required only a 300-foot noticing radius.  The proposed ZTA would clarify that the additional noticing requirement applies to all projects of 25,000 square feet or greater regardless of application type and would clarify that it applies only to 25,000 square feet or more of new construction.  This requirement would also be moved from the Media District section of the BMC to Article 19 where all other public noticing requirements are located, so that all notice requirements are in one location.

• The existing PD regulations include a basic requirement for making substantial conformance determinations when minor changes to a project are proposed following approval by the City Council.  The existing BMC also contains a separate process for Planning Board review of minor changes to site plans for previously approved CUPs.  The proposed ZTA would combine and expand upon both of these processes to apply to all application types since changes to a project after approval are an issue that arises regularly with all types of projects and not just PDs or CUPs.

As staff has discussed previously with the Planning Board and City Council, the existing substantial conformance provisions in the BMC are minimal and in need of modification.  Staff had intended to return to the Planning Board and City Council in the near future with a separate ordinance to create a more formalized substantial conformance process.  Instead, staff has incorporated a proposed substantial conformance process into the proposed ZTA.  As proposed by staff, the substantial conformance process for all types of applications would work as follows:

1)      The Community Development Director would review any proposed change to a project following project approval.  If the change were substantially consistent with the approved application and plans and consistent with the conditions of approval, the change would be approved by the Director.

2)      If the change was different from the approved application and plans but still consistent with the conditions of approval and the intent of the approved application, the matter would be forwarded to the Planning Board or City Council (depending upon which body approved the project) for consideration.  If the Director approved the original application, the Director could make the determination regarding the change, or elect to forward the matter to the Planning Board for its consideration.

3)      If the Director, Planning Board, or City Council determined that the proposed change was not consistent with the conditions of approval or the intent of the application approval, the applicant would have to apply to amend the permit or entitlement.

Staff is proposing that no public hearings or notice be required by default for projects under this process.  This is because the majority of projects undergo some minor changes between the time they are approved and the time they are constructed or operated due to issues that arise before and during the plan check process.  Staff believes that requiring public notice or a public hearing for most projects would be unnecessary due to the minor nature of most changes, and the fact that Planning Board or City Council review would still be required for all except the most minimal changes.

Nonetheless, the proposed ZTA would provide that any project could, through its conditions of approval, have a unique substantial conformance review process, which may include public notice and a public hearing, as appropriate for that particular project.  This would provide the Planning Board and the City Council with an opportunity to ensure that large or controversial projects that are of particular interest to the surrounding neighborhood or the community would have to go through a public process if any changes were proposed, even if such changes were minor.  This approach of creating a specialized substantial conformance process has been used in the past on several PD projects.  The proposed ZTA would explicitly allow for this to be used on any project through the conditions of approval.

Changes to application-specific requirements

• Zoning Clearance

• The proposed ZTA creates a new type of application called a �Zoning Clearance.�  A Zoning Clearance is simply a review by the Planning and Transportation Division of an application for a building permit, business license, business tax registration, or other such application to ensure compliance with the BMC.  Such applications are already subject to Planning review and approval.  Zoning Clearance is being proposed as a formal type of zoning application to allow for improved project tracking through the ePALS software system and to provide a formalized process for Planning approval of permit types other than those established by the BMC.

• Permit to Alter or Remove a Historic Site

• This permit type is not frequently utilized.  The proposed ZTA would move the requirements for this permit out of the Historic Preservation Ordinance (BMC Section 31-929) and into Article 19 with other permit processing requirements.  The proposed ZTA creates a more formalized process for this permit type and establishes an appeal procedure consistent with other application types, in lieu of automatic forwarding to the City Council upon denial as provided in the existing BMC.

• Development Review

• The existing DR process includes a provision for appealing to the City Planner a decision to deny a building permit for a project that is exempt from DR (BMC Section 31-1915).  The existing BMC and the proposed ZTA include other procedures for appealing to the Permit Appeals Panel a decision regarding a building permit.  Staff believes that the process for appealing to the City Planner is duplicative of other existing processes and is not necessary.  The proposed ZTA does not include the provision for appealing to the City Planner, and provides that appeals on building permits as related to zoning matters are considered only by the Permit Appeals Panel (appeals on building permits related to Building Code issues are appealed to the Building and Fire Code Appeals Panel).

• Conditional Use Permit

• The existing BMC includes six findings required for approval of a CUP.  Although the BMC states elsewhere that a CUP cannot be approved unless it complies with the General Plan, none of the six findings address that issue.  The sixth finding deals with the conditions of approval placed upon the approval of the application.  Under the proposed ZTA, the ability to place conditions on a project approval and the nature of those conditions and adherence to them will be explicitly addressed.  Therefore, staff believes that it is no longer necessary to have a finding that deals with conditions of approval.  The proposed ZTA replaces that finding with a new finding that addresses the consistency of the proposed project with the goals and policies of the General Plan.

• Variance

• The existing BMC provides separate provisions for Variances that were granted prior to the effective date of the previous Variance ordinance and for Variances granted for a temporary period (Section 31-1930).  Such requirements are no longer applicable or necessary, and the proposed ZTA does not include them.

• Sign Variances are currently treated the same as other Variances but with separate findings.  To recognize the unique nature of the Sign Variance distinct from a traditional Variance, the proposed ZTA treats Sign Variances as a separate type of permit application.  This would not have any practical effect on the manner in which Variance or Sign Variance applications are processed.

• Planned Residential Development

• Planned Residential Developments (PRDs) are similar in concept to PDs in that they allow for deviations from otherwise applicable development standards for unique projects, but they apply only to residential development projects.  Unlike PDs, which are a type of project application and act as the zoning for a property once approved, PRDs are classified as uses under the existing BMC and are approved through the CUP process.  No PRDs have been applied for in Burbank for many years.  The proposed ZTA would treat PRDs as a type of project application with its own findings for approval, rather than as a use subject to approval with a CUP.  Staff believes that the proposed approach is a better means of recognizing the intended purpose and function of PRDs as an entitlement vehicle rather than as a type of use.

• Planned Development

• The existing BMC contains detailed requirements for the contents of a PD application, referred to in the BMC as a �project report.�  In practice, many of the items supposed to be included in a project report have not been required for PD applications.  The Director is authorized by the BMC to maintain a list of required items for submittal of all types of project applications.  Staff believes that a list maintained by the Director separate from the BMC is a better approach than trying to exhaustively list all application requirements in the BMC itself since application requirements may evolve over time.  As such, the project report provisions are not included in the proposed ZTA.

• Development Agreement

• The proposed ZTA clarifies that Development Agreements (DAs) cannot be used in lieu of other zoning permits and entitlements, and can be used only for the purpose of implementing or providing vested rights to the approvals granted through other permits or entitlements.  Due to ambiguous language in the existing BMC, it may be interpreted that DAs may be used in lieu of other zoning permits, but that is not the intended use of DAs.  A DA in absence of another permit or entitlement application would be for the purpose of providing vested rights to existing zoning provisions.

• Specific Plan

• Specific Plans are a vehicle for implementing the General Plan and can provide more detailed development policies for a specific site or geographic area.  Specific Plans may also be used to supplement or replace the zoning for a particular area.  Although authorized under state law, the existing BMC does not contain any provisions for the creation of a Specific Plan.  The Media District Specific Plan and the Burbank Center Plan were both adopted through the traditional General Plan and zoning processes, rather than through the Specific Plan process specified under state law.  Staff believes that the type of Specific Plan authorized under state law may be an appropriate vehicle for implementing the updated Land Use Element of the General Plan in certain areas of the City, and as such has included a process for adopting Specific Plans in the proposed ZTA.

• Zone Text Amendment

• The existing procedural requirements for processing a ZTA provide that some types of ZTAs must be considered by both the Planning Board and City Council, while other types of Amendments must be considered only by the Council (BMC Sections 31-1987 and 31-1988).  These requirements have led to confusion about which process is required by the BMC, most recently with the Council�s adoption of the ordinance to change the DR process.  The proposed ZTA would clarify that Planning Board review is required prior to City Council action for all ZTAs involving development or use standards.  Amendments not involving a development standard or use regulation and dealing only with a procedural matter or application processing requirement could be approved by the City Council without Planning Board review if the Council found that the amendment was of an urgent nature, or that the amendment set or directly implemented a City Council policy, and that Planning Board review was therefore not needed.  This would not prevent the City Council from adopting an Interim Development Control Ordinance (IDCO) to modify development or use standards for an interim period pursuant to state law (Government BMC Section 65858).

  • The existing BMC provides that an application fee for a ZTA is refunded to the applicant if the City Council approves the ZTA, or if the Planning Board recommends denial of the amendment (BMC Section 31-1990).  Application fees are not refunded for any other type of planning application, and staff believes that it would not be appropriate to refund fees for a single type of application.  City time and resources are nonetheless required to process the application.  This provision is not included in the proposed ZTA.

• Zone Map Amendment

• The existing BMC allows the City to withhold building permits for projects that would conflict with the proposed zoning in an area proposed to be down zoned to an R-1, R-2, or R-3 zone, but where such zoning has not yet been approved (Section 31-1962).  If the Council ever wished to stop projects that may be inconsistent with anticipated zoning, an IDCO would be the proper means to do so.  The existing BMC provision is outdated and is not, in staff�s opinion, an appropriate means of regulating development.  It is not included in the proposed ZTA.

• Another provision of the existing BMC allows the Planning Board to consider a CUP, Variance, or more restrictive zoning in lieu of a proposed ZMA (BMC Section 31-1968).  Staff believes that this provision is not practical and if ever used in practice, could result in confusion and misunderstanding on the part of the public as to what action is being considered by the Planning Board.  It is not included in the proposed ZTA.

• The existing BMC provides that any land that is annexed to the City or �becomes unzoned� is automatically zoned R-1 until the proper zoning can be determined (BMC Section 31-1995).  Although it is highly unlikely that the City will annex any additional land, the zoning of such land would be determined and approved in conjunction with the approval of the annexation, and there would be no need for a default R-1 zone designation.  The proposed ZTA does not include this provision.

• The existing BMC contains a provision for the City Council to adopt an urgency interim ordinance by a four-fifths vote of the Council (BMC Section 31-1996).  Such an ordinance may be in effect for 90 days initially, and may be extended for up to two additional years.  This allowance is not consistent with state law provisions dealing with the adoption of IDCOs and therefore is not included in the proposed ZTA.  The City Council would still be authorized to adopt IDCOs under the provisions of state law.

CONCLUSION:

The City of Burbank has many different types of planning applications and varied processes.  The proposed ZTA would reorganize portions of the BMC to create standardized application processing procedures.  The ZTA would assist with the implementation of the ePALS project tracking software system, increase consistency in application processing, and facilitate the addition of other types of planning permits in the future.  The ZTA is intended to make the BMC more user-friendly by improving its organization and simplifying the text to clearly define the roles and responsibilities of all parties involved in the planning project application process.  Staff seeks direction from the City Council regarding the proposed ZTA.

Further, this report serves as the first step report in response to a City Council member�s request regarding DR applications.  This report provides information about the DR application and appeals process.  Staff seeks direction as to whether the City Council wishes to proceed with a second step report on this issue, and what specific topics or changes the Council wishes to consider.  A second step report could be provided in conjunction with the report for the proposed ZTA as part of the ZTA public hearing, or could be provided as a separate report at an earlier date.  If the Council wished to consider any changes to the DR process, such changes could be incorporated into the proposed ZTA.

RECOMMENDATION:

Staff recommends that the City Council provide direction to staff regarding the proposed ZTA and regarding a possible second step report for further discussion of the DR process.

LIST OF EXHIBITS:

Exhibit A          Table of planning application types

Exhibit B          Flow charts of three major planning application processes

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