Staff Report - April 2, 2002 - Agenda Item

This report responds to the City Council�s request for further discussion regarding the zoning use list and the classification of markets and other land uses in the Rancho area. The Background section of this report summarizes the history of the Zoning Ordinance amendments that created the Rancho zones and subsequently modified the lists of permitted uses as related to markets. The Analysis section of this report discusses the implications behind those amendments and other changes that have occurred to the zoning use list since the adoption of the original Rancho zoning. This report seeks direction from the City Council regarding the initiation of a Zone Text Amendment to further modify the uses permitted in the Rancho zones.

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 supermarket 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 by some that 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 under the original Rancho Master Plan to be a permitted use.

During the deliberations for the Whole Foods project, some Planning Board and City Council members expressed concern that allowing markets as a permitted use in the Rancho area was not 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 regarding the intent of the Rancho Master Plan regarding the permissibility of certain land uses, and specifically markets. This report responds to that request.

A staff report was provided to the Planning Board at its meeting of January 22, 2007 that provided a history of the zoning use classifications in the Rancho area with regard to markets and related uses. The report was also provided to the City Council prior to the Planning Board meeting as an attachment to Queue List Memo #772 dated December 27, 2006. In response to the Queue List memo, Council Member Gordon sent an email to staff on January 5, 2007 that raised additional questions and requested copies of additional documents related to this issue. Staff provided a supplemental memo to the City Council dated January 11, 2007 that responded to the questions and provided copies of additional requested documents. A copy of the January 22 Planning Board report was again provided to the City Council as an exhibit to the staff report regarding the appeal of the Whole Foods project, and the issue was again addressed in that report.

The information contained in these previous memos and reports has been consolidated into this report, and copies of relevant documents are again attached as exhibits.

Over the years, several General Plan amendments and Zoning Ordinance amendments have been adopted that created special planning areas throughout Burbank. These General Plan and zoning efforts are intended to create special land use goals and policies for specific areas of the City for the purposes of economic development, neighborhood preservation, maintaining and protecting an existing neighborhood character, or creating a desired neighborhood character. These include the Media District Specific Plan (1991), the Rancho Master Plan (1993), the Burbank Center Plan (1997), and the Magnolia Park commercial zones (1998).

Each of these identified planning areas has unique zoning designations that are found within the planning areas only. These zones are listed on the Zone Map in addition to and separate from the standard commercial and industrial zones that are found throughout the City. These zones implement the unique land use goals and policies for each area through the creation of development standards and use restrictions that differ from other parts of the City.

The Media District Specific Plan and Burbank Center Plan both resulted in the creation of standalone policy documents that are often cited as establishing the land use policies for those areas. The Rancho Master Plan and Magnolia Park planning efforts did not result in the creation of standalone policy documents. In both of these areas, the General Plan and Zoning Ordinance amendments adopted by the City Council were inserted into the Land Use Element of the General Plan and the Zoning Ordinance and were not produced as separate documents.

A standalone Rancho Commercial Recreation Master Plan document was prepared in 1992 as a draft document for discussion purposes. The document was never adopted by the City Council, and in some cases is not consistent with the Rancho zoning that was ultimately adopted by the Council. For example, �food markets� are listed in the draft document as permitted uses within the Rancho Commercial zone (then proposed to be called the Town and Country zone). Land use policies in the Rancho area were established through the General Plan amendment that was adopted in conjunction with the Rancho zoning ordinance. A copy of the resolution approving that General Plan amendment is attached hereto (Exhibit A). Similarly with Magnolia Park, the Magnolia Park Study Plan of Action/Recommendations document was prepared in 1995. However, this document was not adopted by the City Council and is not an official policy document. A General Plan amendment was adopted in 1998 in conjunction with the Magnolia Park zoning amendments that added language to the Land Use Element regarding the Magnolia Park area. The Magnolia Park Action Plan document was prepared in 2004, but also was not adopted as a planning policy document.

Prior to 1998, permitted, conditionally permitted, and prohibited uses for each zone were listed in separate lists under each respective zone. When the Media District, Rancho, and Burbank Center zones were created, new use lists were added to the Municipal Code for each individual zone, based upon existing use lists. Most of the uses in the lists were not defined in the Code. The use lists that existed in the early 1990s at the time the Rancho zoning standards were being created included multiple use categories for food sales establishments, including �food market� and �foodstore-specialty.� Neither of these uses was defined in the Code. When the Rancho zones were adopted by Ordinance No. 3343 in 1993, �food specialty store� was listed as a permitted use in the Rancho Commercial zone (Exhibit B), which was presumably intended to be the same as the existing �foodstore-specialty� use category that was already permitted in other commercial zones.

In 1997, the City Council adopted Ordinance No. 3465 (Exhibit C) to establish new discretionary review requirements for residentially adjacent grocery stores. The ordinance was initiated over concerns about a 24-hour neighborhood market selling alcoholic beverages on Glenoaks Boulevard near Scott Road. At the time, the requirements of the Zoning Ordinance were such that the City did not have any discretionary approval authority for that type of business. Concerns about such a business in proximity to a residential neighborhood led to the adoption of an ordinance in 1996 that established new Conditional Use Permit requirements for certain alcohol licenses and the adoption of the 1997 ordinance that required a Conditional Use Permit for late night operations for residentially adjacent markets.

The ordinance required a Conditional Use Permit for any grocery store located within 150 feet of a residentially zoned property to operate between the hours of midnight and 6 a.m. As part of the ordinance, a new definition was created for �grocery/market.� Grocery/market was defined as follows:

�Grocery/Market� shall mean a grocery store, a convenience grocery store, a liquor store and/or a mini-market and shall also include any other retail market selling a variety of prepackaged food items, groceries, household goods and other similar items.�

This definition grouped all types of food retail stores into one category for the purpose of determining when a Conditional Use Permit was required for late night business operations. Different types of food stores remained in the individual use lists, including food markets and food specialty stores. Although combined under a single definition for the purposes of the restrictions on late night operations, the ordinance did not combine the uses into a single category for the purpose of determining whether the use was permitted in the zone. Burbank Municipal Code Section 31-1119(d), which was created by the ordinance, provides that businesses fitting under the grocery/market definition are subject to the requirements of the ordinance �regardless of the establishment�s use classification for zoning purposes and regardless of the establishment�s business license classification.� The individual use categories remained undefined.

To reiterate, the 1997 ordinance related to residentially adjacent markets did not allow grocery/markets in the Rancho Commercial zone. The ordinance defined grocery/markets only for the purpose of determining the types of businesses that were subject to the Conditional Use Permit requirements under that ordinance. Grocery/markets were not permitted in the Rancho Commercial zone until the 1998 use list table ordinance, as discussed below.

In 1998, the City Council adopted Ordinance No. 3504 (Exhibit D) to reorganize the Zoning Ordinance and replace the lists of permitted uses for each zone with a single use table. This ordinance originated in conjunction with the Residentially Adjacent Commercial and Industrial Uses (RACI) ordinance. The Conditional Use Permit requirement concept behind the 1997 market ordinance was expanded under the RACI ordinance to include all residentially adjacent businesses. The RACI ordinance required changes to the lists of permitted uses in each zone, because it required Conditional Use Permits for many types of businesses when residentially adjacent that were previously permitted by right. These changes led to the creation of the zoning use list table to replace the separate lists of permitted uses. The use list table consolidated the use lists from all existing commercial and industrial zones, including those in the Media District, Rancho, and Burbank Center areas. The Magnolia Park zones were created at the same time as the zoning use list. As such, the Magnolia Park zones never had separate use lists, and have been part of the table since their creation.

One of the goals of creating the use list table was to simplify the lists of permitted uses by combining multiple uses into consolidated categories whenever feasible. Based upon the definition of grocery/market that was created under the 1997 ordinance, food retail uses including food market and food specialty store were combined under a single use category of grocery/market. The grocery/market definition was retained and remains in the Code today. Grocery/market uses were permitted by right in those zones where food markets and/or food specialty stores had previously been permitted. As such, grocery/market became a permitted use in the Rancho Commercial zone, where food specialty stores had previously been permitted. As discussed further below, grocery/markets were also permitted by right in other Rancho zones even where food specialty stores had not been previously allowed.

The Zoning Ordinance is a living document that evolves over time. Along with the General Plan, the Zoning Ordinance is a reflection of the community�s vision and goals for its built environment. Over the years, the Zoning Ordinance has become increasingly complex as specialized zones for the Media District, Rancho, and other planning areas were added. With each Zoning Ordinance amendment, every effort is made to ensure that the intent of previous amendments is not lost and that the zoning requirements remain internally consistent.

When the difference between the food specialty store and grocery/market zoning use permissions came to light, staff retraced the Zoning Ordinance amendment history through the various ordinances discussed in the Background section above. The intended difference between the two categories was not clear because the original food specialty store and food market terms were not defined in the Code. Staff reviewed staff reports and minutes from meetings of the Planning Board, City Council, and Rancho Master Plan Advisory Committee looking for an indication of the intent behind the food specialty store use category in the Rancho Commercial zone and any discussion of the change to grocery/market.

In April 1992, the Rancho Master Plan Advisory Committee, in conjunction with City staff and the City�s planning consultants, released a draft Rancho Commercial Recreation Master Plan. The draft plan listed �food market; in completely enclosed building� as a permitted use in the Rancho Commercial zone (then proposed to be called the Town and Country zone). Subsequent to the preparation of the draft plan document, further discussion of the Advisory Committee resulted in revisions to the list of proposed uses. Minutes from the Committee meetings in 1992 and 1993 reflect a concern among the Committee members about allowing uses in the Rancho Commercial zone that would be high traffic generators. This concern resulted in revisions to the list of uses permitted in the Rancho Commercial zone, including the deletion of �food market� from the list of permitted uses and the addition of �food specialty store� to the list. The minutes from all Advisory Committee meetings, which were held from 1991 to 1993, and the Rancho Blue Ribbon Committee that preceded it from 1989 to 1990, were made available for viewing on the Planning web site during the time that the Whole Foods project was being considered. Staff identified two Advisory Committee meetings where the discussion was focused on uses and traffic generation in the Rancho Commercial zone. The agendas and minutes from those two meetings, held on December 2 and December 16, 1992, are attached (Exhibit E).

Again, because the Code did not include a definition for either use and a definition was not added as part of the Rancho zoning amendments, the intended difference between food market and food specialty store is not clear, nor was the difference between the two uses documented in the Advisory Committee meeting minutes. It can only be inferred from reviewing the minutes that food specialty store was intended to be a smaller size and/or a lower traffic generator than a food market.[1]

The intent of the grocery/market definition in the 1997 ordinance was not to consolidate different food sale uses into a single use category, but rather to improve the administration of the Code by clarifying through the definition exactly which uses were subject to the Conditional Use Permit requirement. An unforeseen result of this definition was its use as part of the 1998 use list ordinance to create a consolidated use category. Staff believes that the consolidation under the 1998 ordinance was based upon the definition created in 1997. Since several years had passed since the adoption of the Rancho zoning, it is difficult to determine why the food specialty store use category was not retained, at least for the Rancho area. The question has been raised as to whether members of the Advisory Committee were consulted prior to the adoption of the 1998 use list ordinance. There is no indication in the City�s records that any committee members were notified or consulted regarding the ordinance. Staff that was involved with the ordinance at the time does not recall any involvement by the committee members. The Advisory Committee existed as a group only until 1993.

Another possibility is that because the Rancho zoning did not include a definition for food specialty store, perhaps the grocery/market category was viewed as consistent with the intent of the Rancho zoning as ultimately adopted by the Council. The General Plan Land Use Element includes policy statements regarding the intent of each Rancho subarea, which corresponds to the zoning. The statement of intent for the Rancho Commercial subarea is as follows:

The Rancho Commercial areas are intended to encourage and support the development of community-oriented retail shops and services in conjunction with professional offices. These areas will be the primary retail, service and professional office centers serving the Rancho area. These areas will provide essential goods and services to the Rancho such as appliance store, drug store, paint store, dry cleaners, laundromat, post office, theaters and medical offices. It is the intent of the Master Plan that development in the Rancho Commercial areas have retail sales and community-oriented services on the ground floor with professional offices limited to the second floor.

The purpose statement for the Rancho Commercial zone, contained in Burbank Municipal Code Section 31-2428, is similar to the General Plan and reads as follows:

The RC or Rancho Commercial Zone is intended to encourage and support the development of community oriented retail and service commercial uses in conjunction with professional offices.

These statements, as well as the General Plan statements of intent and zoning purpose statements for the other Rancho zones, do not provide any guidance to suggest that grocery/markets should not be permitted in the Rancho Commercial zone or other Rancho zones. A grocery/market is a community-oriented retail use, which is called for by both the General Plan and Zoning Ordinance for the Rancho Commercial zone. Of the three other Rancho zones where grocery/markets are permitted, two of them call for retail uses in their General Plan statements of intent. The third does not specifically call for retail uses, but also does not suggest that retail uses, including markets, should not be allowed.

The Planning Board held a study session in January 1998, and noticed public hearings were held with the Board and City Council in August, October, and November 1998 to consider adoption of the use list table. The related staff reports and meeting minutes do not include any detailed discussion of individual use categories or the intent behind any of the use category consolidations. At the study session and hearings the Board and Council were provided with a list attached to the staff reports that detailed all of the proposed changes (Exhibit F). The list clearly shows the deletion of the food market and foodstore-specialty use categories and the creation of the new grocery/market use category as a permitted use in the Rancho Commercial zone and the three other Rancho zones where grocery/markets are still permitted today. There is no indication in the minutes that the Planning Board or City Council members, or any public speakers at the hearings, raised any issues related to the use classifications for food sales or any potential affect on the Rancho zoning. Prior to the public hearings, Planning Board Member Greg Jackson and former Planning Board Member Carolyn Berlin worked with staff as members of a subcommittee regarding the creation of the use list table. Staff was unable to locate any record of the issues discussed at the subcommittee meetings to determine whether the issue was considered by the subcommittee. Staff that worked with the subcommittee in 1998 does not recall any discussions with the subcommittee members, or at any time during the ordinance process, specifically regarding markets in the Rancho zones. During the Planning Board�s discussion of this issue on January 22, 2007, Board Member Jackson indicated that he had no recollection of discussing the issue as part of the subcommittee discussions.

To provide the City Council with further information and perspective for its deliberation on this issue, staff reviewed the entire use list as it exists in the Zoning Ordinance today and compared the list of uses permitted in the various Rancho zones with the lists of permitted uses that were adopted as part of the original Rancho zoning in 1993.

The transition to the use list table in 1998 resulted in many changes to the use categories including the creation of new categories and the deletion, renaming, and/or consolidation of categories, as occurred with grocery/markets. These changes make it difficult to directly compare the use lists as they existed in 1993 to the use list table used today. Again, because there are also no definitions for the vast majority of use categories, the comparison of use categories and determination about how different uses are classified is often subject to interpretation.

In addition to the 1998 ordinance, other significant changes have occurred to the use list since 1993 that have modified the permitted uses in the Rancho area. For example:

Despite these differences, it can be seen that the intent of the original Rancho zoning was specifically maintained in certain cases. For example, the use category �ticket agency � incidental use only� was listed as a permitted use in the Commercial Recreation zone in the original Rancho zoning ordinance. That use category remains in the use list table today and is permitted only in the Commercial Recreation zone. The use category �blacksmith � horse shoeing only� was listed as a permitted use in the Rancho Business Park zoning in the original Rancho zoning ordinance. That use category also remains in the use list table today and is permitted only in the Rancho Business Park zone. These two use categories were purposefully carried over to the use table from the original Rancho zoning, since they are not permitted in any zones other than those within the Rancho area.

The effects of the above issues are summarized in the following table, which highlights the major differences between the lists of permitted uses in the Rancho zones in 1993 as compared to today. The column on the left shows categories of uses that are permitted in one or more Rancho zones today. The columns to the right describe any differences between the allowances for that use today versus its permissibility under the original Rancho zoning. A blank box indicates that there is no difference between the current permissibility of the use and its permissibility under the original Rancho zoning (this does not necessarily mean that the use is permitted; in some cases, the use may be prohibited both under the original Rancho zoning and the current use list). This table is not intended to be comprehensive and is intended to show only major differences. If so directed by the Council, staff would conduct an exhaustive comparison of the current use list and the original Rancho use lists to determine what other differences exist.

Uses Listed as Permitted in Current Use List	Status of Uses in Original Rancho Zone Ordinance (blank box indicates no difference between current use list and original Rancho zoning)
Uses Listed as Permitted in Current Use List	Neighborhood Business	Garden Office	Rancho Commercial	Commercial Recreation	Rancho Business Park
Barber shop and beauty salon		Permitted as incidental use only		Permitted as incidental use only
Bicycle and mini-bike sales and repair				Permitted as incidental use only
Child day care facility		Permitted as incidental use only			Permitted as incidental use only
Film Duplication*	Not listed as permitted use
Film Storage/Vault*	Not listed as permitted use
Foley stage*	Not listed as permitted use
Grocery/Market	Not listed as permitted use (comparable uses include bakery, butcher shop, candy store, ice cream shop, pharmacy)	Not listed as permitted use (comparable use is pharmacy)	Not listed as permitted use (comparable uses include bakery, butcher shop, candy store, drug store, food specialty store, pharmacy)		Not listed as permitted use (comparable uses include bakery, butcher shop, candy store, drug store)
Messenger Service	Not listed as permitted use
Offices � business, professional, or medical				Not listed as permitted use
Parcel delivery service	Not listed as permitted use
Personal or physical arts studio*	Not listed as permitted use
Personal Wireless Telecommunications Facility*	Not listed as permitted use
Plumbing Service	Not listed as permitted use
Post Office	Not listed as permitted use
Restaurant/Eating Establishment					Not listed as permitted use
Retail sales � all	Warehouse retail sales listed as prohibited use
Schools		Not listed as permitted use

* These use categories were specifically created to address particular issues subsequent to the adoption of the Rancho zoning. Comparable uses did not exist as a use classification at the time the Rancho zoning was adopted.

In addition to the differences shown in the above table, there are at least two examples of uses that were permitted under the original Rancho zoning and are not permitted today (in addition to cases where a Conditional Use Permit is required due to the RACI ordinance):

While some of the changes described above occurred for specific reasons and can be traced to specific ordinances, such as the addition of new use categories, most of the changes occurred as a result of the 1998 conversion from the multiple use lists to the consolidated use list table. Due to the number of different use categories, it was not practical at the time to provide a detailed explanation for the reasons behind each of the use category changes.

A Zone Text Amendment to amend the use list table would require Planning staff resources. The degree of staff commitment required would depend upon the scope of the amendment and the degree of public outreach desired by the Council, as discussed below. Aside from a commitment of staff resources and minor direct costs associated with public outreach and community meetings, there would be no additional costs to the City to undertake a Zone Text Amendment. The nature of the amendment is such that it would be most appropriate for City staff to prepare the amendment and no consultant would be required.

The Zoning Ordinance is an evolving document and is continuously amended in response to changing community needs and concerns. Many of these changes have resulted from the creation of designated planning areas. These areas have unique zoning that was created out of efforts by task forces or other community involvement. Although such groups may have a certain reason or intent for recommending certain zoning standards in these areas, it is what is ultimately adopted into the General Plan and Zoning Ordinance that dictates land use policies and use and development standards. The use list in the Zoning Ordinance (Burbank Municipal Code Section 31-502) is the only authoritative source used to determine the permissible uses of property.

There are numerous differences between the current use list and the original use lists from the Rancho zoning. The consistency of the current zoning with the intent of the original Rancho Master Plan and zoning is open to interpretation in many cases because most of the use categories are undefined. Some of the subsequent amendments to the use list have provided additional protections to the Rancho area and further changes to the use list should be carefully considered. Simply returning the use list to its original form as it appeared when the Rancho zoning was adopted may remove some of the subsequent protections and cause other unintended side effects.

Specifically regarding grocery/markets, there was apparently some intent on the part of the Rancho Master Plan Advisory Committee to specify food specialty stores as a permitted use in the Rancho Commercial zone rather than food markets. However, this intent was not reflected in the General Plan policies for the Rancho area or through the Rancho zoning. Subsequent amendments to the Zoning Ordinance revised the list of permitted uses in the Rancho zones, but such revisions were consistent with the General Plan and with the purpose statements for the zones, and were not identified by staff, the Planning Board, the City Council, or the public as being contrary to the intent or purpose of the Rancho zoning.

If the City Council initiates a Zone Text Amendment to change the lists of permitted uses in the Rancho zones, it will be important to clearly define the different uses in the Zoning Ordinance such that the need for subjective interpretation by staff, the public, and the decision makers is reduced and the intent of the zoning is clear. Staff would recommend community participation in the creation and review of any new definitions to ensure that the intent of the Rancho Master Plan is properly memorialized when appropriate.

Whatever the content of the Zone Text Amendment, staff recommends that public outreach to the Rancho community be included. The varied input from Rancho residents regarding the proposed Whole Foods project indicates that there may not be a unified vision for the future of the Rancho area and that further community discussion may be needed. The Rancho Master Plan was adopted 14 years ago, and Burbank and the Rancho area have changed considerably since that time. Rather than simply restoring the zoning from 14 years ago, staff believes that good planning practice would be to engage the Rancho community in a new visioning process to determine what types of uses and development are viewed as appropriate for that area today. The result of the process may be that the vision for the area today is the same as it was 14 years ago. Nonetheless, staff believes that it would be best to seek input from the community.

If the City Council is specifically concerned about grocery/markets as permitted uses in the Rancho area, the Council could direct staff to immediately process a Zone Text Amendment to make grocery/markets a conditionally permitted use (requiring a Conditional Use Permit) or prohibited use in the Rancho zones with no public outreach while simultaneously working on another Zone Text Amendment to address the larger concerns discussed in this report. If this approach is used, staff believes that it would be appropriate to examine the use list in it entirety to identify other areas where clarification and definitions are needed and to ensure that the intent has been appropriately preserved in other planning areas.

If the City Council is concerned that the land uses permitted in the Rancho zones today may be inconsistent with the intent of the original Rancho Master Plan and zoning, staff recommends that the Council initiate a Zone Text Amendment and direct staff to prepare the appropriate revisions to the use list and seek public input at the appropriate time. If the Council is concerned about addressing the grocery/market issue immediately while pursuing additional amendments, staff recommends that the Council initiate two Zone Text Amendments as discussed above.

Exhibit B Ordinance No. 3343 creating Rancho zones (excerpt showing permitted uses

Exhibit C Ordinance No. 3465 creating requirements for residentially adjacent grocery

Exhibit F List showing proposed changes to zoning use categories as part of use list

[1] As an aside, staff notes that the Rancho Master Plan Advisory Committee recommended that department stores be prohibited in the Rancho Commercial zone, presumably because of their larger size and potentially high traffic generation. However, when the City Council adopted the ordinance to establish the Rancho zones, the Council specifically changed department stores to be permitted with a Conditional Use Permit in the Rancho Commercial zone. The use category of department store was retained as part of the use list table under the 1998 ordinance and as such is still included in the Code today as a conditionally permitted use in the Rancho Commercial zone.

Council Agenda - City of Burbank

Tuesday, June 26, 2007