1 STAFF REPORT
DATE: November 2, 2021
TO: Justin Hess, City Manager
FROM: Patrick Prescott, Community Development Director
By: Fred Ramirez, Assistant Community Development Director – Planning Scott Plambaeck, Deputy City Planner
SUBJECT: Introduction of an Ordinance to Establish the Streamlined Minis terial Review and Public Oversight Process for Development Projects Submitted Under Senate Bill 35-Streamlined Ministerial Approval Process (Government Code Section 65913.4) and Adoption of a Resolution Amending the City Fee Schedule for Fiscal Year 2021-2022 to Esta blish Cost Recovery Fees to Mitigate City Incurred Expenses for Proce ssing of Said Applications
RECOMMENDATION
Introduce AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK AMENDING TITLE 10, CHAPTER 1 (ZONING) IN ORDER TO ESTABLISH THE
STREAMLINED MINISTERIAL REVIEW AND PUBLIC OVERSIGHT PROCESS FOR SENATE BILL (SB) 35 APPLICATIONS SUBMITTED UNDER THE STREAMLINED
MINISTERIAL APPROVAL PROCESS PURSUANT TO GOVERNMENT CODE SECTION 65913.4. (Zone Text Amendment No. 21-02; Project No. 21-0 006181) (Attachment 1).
Adopt A RESOLUTION OF THE COUNCIL OF THE CITY OF BURBANK AMENDI NG ARTICLE III, SECTION 1, OF THE FISCAL YEAR 2021-2022 CITYWIDE F EE
SCHEDULE TO ESTABLISH FEES TO DEFRAY THE CITY COSTS TO REVIEW T HE
NOTICE OF INTENT, UNDERTAKE TRIBAL CONSULTATION AND REVIEW AND PROCESS PROJECT APPLICATIONS SUBMITTED UNDER SB 35-STREAMLINED MINISTERIAL APPROVAL PROCESS (Government Code Section 65913.4.) (Attachment 2).
STAFF REP
COMMUNITY
DEVELOPMENT
ATTACHMENT 13-1
2 BACKGROUND
At the August 24, 2021 Council meeting, staff presented an over view of the SB 35- Streamlined Ministerial Approval Process (Attachment 3). After the presentation, the City Council directed staff to prepare a Zone Text Amendment (ZTA) and proposed Ordinance establishing a public oversight process that identifies the Cit y Council as the City body that will have final ministerial design review and approval aut hority under the State- mandated streamlined ministerial approval process for all SB 35 applications consistent with Government Code Section 65913.4. (See Attachment 4). In addi tion, the City Council requested further clarification of the City’s process for determining a proposed development’s compliance with the site requirements for an SB 35 project, as noted in the California Department of Housing and Community Development’ s (HCD) “Updated Streamlined Ministerial Approval Process Government Code Section 65913.4”, Sub- section (3) and (3)(A) of Section 401. Site Requirements (See Attachment 5, Pgs. 17-18 of HCD’s Updated Streamlined Ministerial Approval Process Government Code Section 65913.4.).
DISCUSSION
Ordinance
As described above, the City Council directed staff to prepare a proposed Ordinance (Attachment 1) establishing a public oversight process that ide ntifies the City Council as the City body that will have final ministerial design review an d approval authority under the State-mandated streamlined ministerial approval process for all SB 35 applications consistent with Government Code Section 65913.4. The attached ordinance creates a process separate from the City’s Development Review application that gives the City Council the authority to undertake ministerial design review and public oversight of all SB 35 applications.
The ordinance requires the Community Development Director to prepare a review of the application to determine completeness of the SB 35 application, which includes confirming the applicant has submitted all proper documentation and meets all applicable objective zoning, general plan, subdivision, and design review standards. The SB 35 application submittal would occur after the filing of a Notice of Intent to submit said application and the completion of the Tribal Consultation proce ss. Both processes are outlined in Government Code Section 65913.4. and further elaborated upon in the accompanying Updated Streamlined Ministerial Approval Process G overnment Code Section 6913.4. (The “HCD SB 35 Guidelines”). (See Attachment 3 for a timeline and accompanying overview of all the different steps in the SB 35 St reamlined Ministerial Approval Process.) The ordinance further requires the Community Development Director to forward their determination to the City Council for their final review.
ATTACHMENT 13-2
3 The ordinance further details how the Council review and final determination of the application must be based on the California Government Code Sec tion 656913.4 and based on reasonable objective zoning standards, objective subdi vision standards, and objective design standards applicable to the project. Furthermore, the ordinance includes the mandated timeline of SB 35: projects with 150 units or less must be reviewed within 90 days and 180 days for projects with more than 150 units. It is important to note that both the Community Development Director’s review and the final review and determination by the City Council must be completed within note d 90-day or 180-day timeframes, based on the proposed project size.
Last, the ordinance outlines the City’s process for the review of any modifications to a proposed project that has been previously reviewed by the City Council. The Director’s review will be limited to the specific criteria as outlined in Government Code Section 65913.4, (g) (3) (A) and (B).
State and City SB 35 Eligibility Criteria
At the August 24, 2021 meeting, the City Council sought further clarification on the criteria that must be met by a project to be eligible for SB 35 streamli ned processing. More specifically, the process for determining how a project is determined to comply with the following site requirement as noted in SB 35 (Government Code Section 65913.4), the HCD Updated Streamlined Ministeria l Approval Process guidelines (“HCD SB 35 Guidelines”), and the City’s SB 35 Eligibility Checklist (Attachment 7). The following is an excerpt from the HCD SB 35 Guidelines:
“The project must be located on a site that is either zoned or has a General Plan designation for residential or residential mixed-use developmen t, including sites where residential uses are permitted as a conditional use or by any o ther discretionary review process [e.g., Conditional Use Permit, Planned Development revi ew, et cetera]. If the multifamily housing is a mixed-use development, at least two-thirds of the project's square footage must be designated for residential use.”
City Review Process for SB 35 Eligibility
The City typically verifies whether a project site is zoned or designated under the Burbank 2035 General Plan to allow multifamily housing development and/ or mixed-use development by reviewing all the following:
City’s Zoning Land Use Tables:
x All permitted and conditionally permitted uses for single famil y and multiple family residential zones are identified in Burbank Municipal Code (BMC ) Section 10-1-602 and 10-1-627, respectively.
ATTACHMENT 13-3
4 x All nonresidential zoning districts, the zoning classification and possible uses are noted in BMC Section 10-1-502 (City of Burbank Zoning Use List).
Zoning Designation of General Plan Consistency:
In addition to reviewing the land use tables, the City also con siders the “General Plan Consistency” requirements for permitted Floor Area Ratio (FAR) and Maximum Allowable Density for specific zones consistent with the Burbank2035 Gener al Plan (adopted February 19, 2013). The General Plan Consistency requirement includes all multifamily residential, commercial, industrial, airport, cemetery, and railroad zones as well as the following overlay and plan zones: the Media District Overlay Zones (Article 21 of Chapter 1 of Title 10 – Zoning Regulations), the Rancho Master Plan Zones (Article 24 of Chapter 1 of Title 10 – Zoning Regulations), the Burbank Center Overlay Zones (Article 25 of Chapter 1 of Title 10 – Zoning Regulations), and the Magnolia Park Commercial Zones (Article 26 of Chapter 1 of Title 10 – Zoning Regulations). The General Plan Land Use Designations related to FAR and Maximum Allowable Residential D ensity (subject to discretionary approval) were incorporated into the City’s zoning regulations pursuant to City Ordinance No. 3839 that was adopted in May 2013. (Attachment 8.) The adoption of this City Ordinance incorporated FAR and Maximu m Allowable Density for residential uses as designed in the General Plan. As such, residential is permitted and/or can be considered in these zones through discretionary approval under the current regulations (e.g., through a conditional use permit or other discretionary approval process outlined in the zoning code) and in the case of an SB 35 applic ation to the streamlined ministerial approval process as outlined in Government Code Sec tion 69134.4. and the accompanying HCD SB 35 Guidelines.
Planned Development Review Alternative:
As noted in the Burbank2035 General Plan, non-residential comme rcial and industrial land uses provide residential density with discretionary approv al. In zoning districts that do no list residential as a permitted or conditional use in the Zoning Table, the Planned Development process is an existing option within the City’s zoning code for applicants to seek discretionary approval for housing. BMC Code Section 10-1- 19118 through 10-1- 19134, establishes the Planned Development process as an “alter nate process to accommodate unique developments for residential, commercial, professional, or other similar activities, including combinations of uses and modified development standards, which would create a desirable, functional and community enviro nment under controlled conditions of a development plan.”
In addition, “any use may be permitted in any Planned Development, provided such use shall be specifically listed as a permitted use in the Developm ent Agreement for the Planned Development. Such uses shall be located and conducted in accordance with an approved Planned Development and Development Agreement, adopted pursuant to the ATTACHMENT 13-4
5 provisions of this division.” Furthermore, “any use may be permitted as a conditional use in a Planned Development, provided such use be specifically lis ted as a conditional use subject to the provisions of the Development Agreement for the Planned Development.
Such conditional uses shall be located and conducted in accorda nce with an approved Planned Development and Development Agreement…”
Zoning Code’s Definition of Discretionary Approval
Furthermore, the City’s zoning code has a definition for “Discre tionary Approval”. Per Section 10-1-633 (Definitions) notes that “Discretionary Approval” means any entitlement or approval as in Title 10 [Zoning] of the [Burbank] Municipal Code, including but not limited to a Conditional Use Permit, Variance, and subdivision m ap. Housing Development means one (1) or more groups of projects for residential units constructed or to be constructed in the City for sale or for rent.” Planned Development also qualifies as a City Discretionary Approval.
SB 35 Compliance with Residential Zoning and/or General Plan Designations Based on the analysis and the criteria for residential zoned or general plan designated site for residential uses pursuant to the SB 35 regulations (Go vernment Code Section 65913.4.), HCD SB 35 Guidelines, and the City’s SB 35 Eligibili ty Checklist, , a project could meet the required SB 35 application eligibility through an y one or more of the following scenarios:
1) Determination that the project site is in a zone that allows residential and/or mixed- use development by-right and/or by a conditional use permit or other discretionary review process;
2) Finding that the project site is located within any one of the City’s zones that provides for discretionary approval of a residential and/or mixed-use development including the following overlay and plan zones: Media District Overlay Zones, the Rancho Master Plan Zones, the Burbank Center Overlay Zones, and the Mag nolia Park Commercial Zones or a Planned Development that allows or conditionally allows residential uses;
3) Determination that the project site has a Burbank2035 General Plan land use designation that allows residential and mixed-use development whether by right or by discretionary approval, subject to the applicable maximum allowable residential density.
Per SB 35, all three scenarios for determining a project’s elig ibility as a property zoned for and/or having a Burbank2035 General Plan land use designation allowing residential by-right or through discretionary approval does not result in a requirement for a General Plan Amendment. For eligibility under SB 35 it is irrelevant whether a residential use is allowed through zoning and/or the general plan land use designation. However, based on the land use designations allowing residential with discretionar y approval in all the ATTACHMENT 13-5
6 commercial zones, adopted as part of the Burbank2035 General Plan (see pages 3-15 through 3-17), any proposed SB 35 project in a commercial zone will be allowed, if all other criteria is met. This is also true of any other site with a General Plan land use designation that allows for residential land uses through discr etionary approval as noted in the Burbank2035 General Plan and because of the City’s adoption of Ordinance No. 3839.
Further, SB 35 (Government Code Section 65913.4.) and the HCD SB 35 Guidelines both state that in the event that objective zoning, general plan, su bdivision, or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective standards if the development is consistent with the standards set forth in the General Plan. As part of this assessment, it must be confirmed that a project site is zoned for residential use or residential mixed-use development or has a general plan designation that allows residential use or a mix of residential and nonresidential uses.
Furthermore, to qualify for the Streamlined Ministerial Approva l Process a site must permit residential or a mix of residential and nonresidential u ses by-right or with a use permit or other discretionary approval. One of the following three designations meets this criteria:
x The zoning designation; or
x The applicable specific plan or master plan designation; or x The general plan designation. See Attachment 4 (Government Code Section 65913.4.) and Attachment 5 SB 35 Guidelines (Article III. Approv al Process, Section 300, Subsection (c)(6) and (c)(6)(A); Article IV. Devel opment Eligibility, Section 401, Subsection (a)(3) and (a)(3)(A).)
Lastly, a project that complies with the eligibility requirements in Government Code Section 65913.4., the HCD SB 35 Guidelines, and the City’s SB 3 5 Checklist, must be processed through a streamlined, ministerial approval process a nd shall not be subject to a conditional use permit or other discretionary approval process. The City may only evaluate the proposal against objective zoning standards, objec tive subdivision standards, and objective design review standards in effect at the time the completed Notice of Intent is submitted to the City.
These “objective standards” are defined as “standards that invo lve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowa ble by both the development applicant and the public official before submittal. ” 1 A n e x a m p l e o f a n
objective standard includes but is not limited to a building setback or building height, which can be measured. Guidelines that refer to making sure that a project maintains community
1 Subsection 65913.4(a)(5).
ATTACHMENT 13-6
7 character or is in scale with the surrounding neighborhood are subjective and therefore do not meet the strict interpretation in SB 35 of an objective standard. SB 35 further provides that when “objective zoning, general plan, subdivision , or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective zoning and subdivision standards … if the development is consistent with the standards set forth in the general plan.”2
In other words, where the general plan and municipal code conflict on matters such as permitted uses or development standards, a proposed project is deemed consistent as long as it meets the general plan standards – even if the zoning is more restrictive or protective.
Senator Portantino Letter and Response
In response to City Council’s direction at the October 26, 2021 City Council meeting, staff has attached the October 7, 2021 letter from Senator Portantino regarding the proposed application for SB 35 – Streamlined Ministerial Approval Process for the Pickwick property. Also attached is the October 27, 2021 letter from the City to Senator Portantino seeking further clarification regarding the matters expressed in his letter. See Attachment 9 and 10.
ENVIRONMENTAL ASSESSMENT
The requested ZTA and proposed Ordinance has been reviewed for compliance with the California Environmental Quality Act (CEQA). The proposed amend ments to Title 10 Chapter 1 of BMC seek to establish the City’s streamlined minis terial review and public oversight process for development projects submitted under SB 3 5( G o v e r n m e n t C o d e Section 65913.4). The proposed Ordinance provides the process f or the City Council to be the decision-making body in the final review and considerati on for approval of an SB 35 pursuant to the State-mandated streamlined ministerial approval process.
The proposed Ordinance will not affect the City’s underlying zon ing and/or land use designation as currently exists in the City’s Zoning Ordinance and the Burbank2035 General Plan. As a result, the proposed ZTA and associated prop osed Ordinance will not have a significant adverse impact on the environment. The proposed Ordinance has been determined to be exempt from CEQA review pursuant to State CEQA Guidelines, Article 18: Statutory Exemptions, Section 15061(B)(3). This section of CEQA establishes a statutory exemption for “The activity is covered by the commo nsense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that ther e is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”
2 Subsection 65913.4(a)(5)(B).
ATTACHMENT 13-7
8 FISCAL IMPACT
The proposed Ordinance seeks to establish the City’s streamlined ministerial review and public oversight process for development projects submitted und er SB 35 (Government Code Section 65913.4). The proposed Ordinance provides the process for the City Council to be the decision-making body in the final review and consideration for approval of an SB 35 pursuant to the State-mandated streamlined ministerial approval process.
As part of the City Council’s consideration of the proposed Ord inance, City staff is also recommending that the City Council approve a Resolution (Attach ment 2) to amend the City Fee Schedule for Fiscal Year (FY) 2021-2022 to establish cost recovery fees to mitigate the City expenses resulting from the processing of future SB 35 Notice of Intent submittals, tribal consultation, and applications. The proposed fees are based upon the amount of staff time to review similar applications and determi ne whether an application is complete.
CONCLUSION
The State approved the SB 35 streamlined ministerial approval process to address the State’s Housing Crisis. The purpose of SB 35 is to streamline th e development review process to encourage the production of housing. SB 35 applies to jurisdictions that did not meet 50% of Regional Housing Needs Allocation (RHNA) at midp oint of the 5 th Planning Cycle. The City met only 12% of its RHNA at midpoint of the 5th Planning Cycle.
The City met 26% of its RHNA through 2020. Therefore, the City is subject to the requirements of SB 35 until it reaches the goal of 50% of its RHNA.
The proposed Ordinance outlines the City’s ministerial review process as it relates to the Notice of Determination Process undertaken by staff as well as establishes the streamlined ministerial design review and public oversight proc ess for development projects submitted under SB 35 (Government Code Section 65913.4) . The proposed Ordinance identifies the City Council as the City body that wil l have final review and approval authority under the State-mandated streamlined ministerial approval process for all SB 35 applications consistent with Government Code Section 65913.4. and the HCD SB 35 Guidelines.
ATTACHMENTS
1. Ordinance
2. Resolution
3. August 24, 2021 City Council Staff Report
4. SB 35 (Government Code Section 65913.4)
5. HCD Updated Streamlined Ministerial Approval Process guidelines
6. Excerpts from SB 35, HCD’s SB 35 guidelines, and City Planned Development Regulations
7. City SB 35 Eligibility Checklist and Application
ATTACHMENT 13-8
9 8. City Ordinance No. 3839
9. Letter from Senator Portantino dated October 7, 2021
10.Letter from the City of Burbank to Senator Portantino dated October 27, 2021 ATTACHMENT 13-9