1 STAFF REPORT
DATE: May 23, 2023
TO: Justin Hess, City Manager
FROM: Patrick Prescott, Community Development Director VIA: Fred Ramirez, Assistant Community Development Director, Planning Scott Plambaeck, Planning Manager
BY: Amanda Landry, Senior Planner
Greg Mirza-Avakyan, Associate Planner
Joseph Pangilinan, Assistant Planner
SUBJECT: Adoption of an Urgency Ordinance to Amend the City’s Zoning Regulations to Establish Objective Design and Development Standards for Mixed -Use and Residential Projects in Nonresidential Zones
RECOMMENDATION
Adopt AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BURBANK AMENDING TITLE 10, CHAPTER 1 (ZONING) OF THE BURBANK
MUNICIPAL CODE TO ESTABLISH OBJECTIVE DESIGN AND DEVELOPMENT
STANDARDS FOR MIXED -USE AND RESIDENTIAL -ONLY PROJECTS IN NONRESIDENTIAL ZONES (ATTACHMENT 1). (Requires 4/5th vote for adoption).
BACKGROUND
On September 28, 2022, Governor Newsom signed Assembly Bill 2011 (AB 2011), the Affordable Housing and High Road Jobs Act of 2022, into law amending California Government Code Sections 65400 and 65585, and adding and repealing Chapter 4.1 (commencing with Section 65912.100) of Division 1 of Title 7 of the Government Code, relating to housing. AB 2011 becomes effective on July 1, 2023. Amongst other provisions, AB 2011 makes certain multifamily housing development projects a by -right use subject to streamlined, ministerial review on sites within a zone where office, retail or parking is the principally permitted use and for mixed -income housing along commercial corridors, and the projects meet specified affordability, labor, and environmental requirements. Qualifying projects are exempt from California Environmental Quality Act (CEQA) requirements and must be processed within 90 days for projects that have 150 housing units or less and within 180 days for projects that exceed 150 housing units.
2 Although AB 2011 allows for jurisdictions to review these projects, the review is limited to verification of compliance with objective design and development standards within the prescribed limited timeframe.
AB 2011 is just one of numerous housing bills adopted by the State Legislature in recent years that imposes new state-mandated streamlined ministerial review approval processes on local agencies and limits local review to verification of compliance with objective design and development standards. Another such bill is Senate Bill (S B) 35 adopted in 2017 (adding CA Government Code Section 65913.4) , which is a state- mandated ministerial streamlined review process that preempts local zoning laws. SB 35 requires the approval of a housing development project on any property in the City that allows housing, so long as the site eligibility criteria are met and the process in the state statute is follow ed. The City is currently processing six SB 35 submittals for housing developments in nonresidential zones, whe re the objective development standards for such developments are minimal. It is anticipated that additional housing development proposals that seek to use SB 35 and other possible streamlined ministerial design review processes mandated by state law will lead to additional infill projects adjacent to single family residential neighborhoods with limited development and design oversight that could significantly alter the character for decades to come. In light of these state -mandated ministerial streaml ined reviews , and the number of applications already submitted for streamlined ministerial design reviews, the City must urgently establish objective design and development standards to account for the continually expanding site eligibility for streamlined ministerial reviews.
Currently, the City does not have clear objective design or development standards for mixed-use and multifamily-only housing projects in nonresidential zones and can only apply very limited nonresidential design and development standards. Failure to adopt the proposed objective design and development standards immediately could result in the submittal of multifamily housing projects that are contextually incompatible with the surrounding community and only comply with a short list of commercial development standards. The resulting built form would be inconsistent with the City’s effort to facilitate development that helps to build a safe, beautiful, and thriving community. The increased potential for these types of streamlined ministerial review projects could also result in monolithic structures that maximize development potential and, in many cases, directly abut lower scaled residential neighborhoods with reduced setbacks , privacy and increased density and building heights. Therefore, time is of the essence to adopt more robust objective design and development standards, as the City is seeking to put these objective standards in place as soon as practically possible to preserve a degree of local control.
DISCUSSION
A project’s eligibility for streamlined, ministerial review under AB 2011 is based on criteria such as: the subject site being zoned where office, retail or parking are pe rmitted uses by-right, the site’s distance from a freeway and oil or gas refinery, and whether it abuts a commercial corridor. This means that many commercially zoned parcels in the City may qualify as eligible sites for an AB 2011 housing or mixed-use project. In addition, other state laws, such as SB 35 , allow multifamily and mixed -use projects on properties that allow residential density pursuant to the Burbank2035 General Plan. 3 As such, most of Burbank’s properties are now potentially open to multifamily housing and mixed-use development. With the increase in state laws that require the streamlined and ministerial approval process for qualifying multifamily and mixed -use development projects, City plannin g staff anticipates an increase in applications for all types of streamlined ministerial reviews for sites throughout the community. However, the existing regulations for the zones where many of these properties are located are zone-specific (i.e., commerc ial and industrial regulations) and are not well -suited to facilitate the development of multifamily housing or mixed -use projects in nonresidential zones . In addition, many of the existing regulations do not qualify as objective development standards as defined under State law and are therefore unenforceable in a streamlined ministerial review process. Further, the existing commercial regulations are traditionally imposed through land use permits and other entitlements that are specifically tailored for commercial or industrial projects, and not residential uses . As noted above, the streamlined ministerial reviews are limited to a verification of compliance with the objective design and deve lopment standards that were in effect at the time the applications were submitted. All streamlined ministerial reviews are processed pursuant to Burbank Municipal Code (BMC) Section 10-1-19302, Subsections B-F.
Necessity for Urgency Ordinance
Although the City Council is considering a regular, non-urgency ordinance to establish objective design and development standards, the Council has expressed an interest in considering possible options to implement these objective design and development standards as soon as possible in order to reduce any potential lapse in time that would otherwise occur between the effective date of objective standards adopted under a regular zone text amendment and the submittal of additional SB 35 proj ects now and potential AB 2011 projects after July 1, 2023. Adopting the zone text amendment as an urgency measure will allow the objective design and development standards to become effective immediately upon adoption, and immediately apply to applicable projects submitted after the Urgency Ordinance’s effective d ate. The proposed Urgency Ordinance will establish objective standards for development and design elements where the state law is silent and will apply in its entirety when a project does not fall within the realm of a state preemption law.
The Urgency Ordinance helps mitigate the potential adverse impacts to public health, safety, welfare and convenience that the community wo uld be susceptible to from the ongoing submittals of state-mandated, by-right SB 35 and AB 2011 projects that could be built next to and/or in close proximity to residential neighborhoods . These projects are currently only subject to a limited number of applicable objective design and development standards under current zoning regulations . This type of development with limited City oversight could permanently change the fabric of community while altering the pattern of development along the City’s commercial corridors with increased de nsity and intensity, increased building heights, little to no on-site parking, and reduced setbacks and privacy between development sites and neighboring land uses.
Adoption of an Urgency Ordinance will also preserve as much local control with objective design and development standards that are tailored to local needs while still facilitating state-mandated multifamily and mixed-use projects through the streamlined ministerial 4 design review process . This strategy ensures that the City’s values continue to be reflected in new development that is approved through the state-mandated streamlined ministerial reviews.
ENVIRONMENTAL ASSESSMENT
Pursuant to California Government Code Sections 65912.114(o) and 65912.124(o), a local government may adopt a n ordinance to implement the provisions of California Government Code Title 7, Division 1, Chapter 4.1, Article 2 (Affordable Housing Developments in Commercial Zones) and Article 3 (Mixed -Income Housing Developments Along Commercial Corridors (enacted by AB 2011), and the adoption of such ordinance shall not be considered a “project” subject to the requirements of the California Environmental Quality Act (CEQA). Therefore, the proposed Urgency Ordinance that establishes the objective design and developmen t standards is not a “project” subject to CEQA.
FISCAL IMPACT
There is no fiscal impact to the City’s General Fund by adopting the proposed Urgency Ordinance. The purpose of the Urgency Ordinance is to provide certainty for property owners and applicants by establishing clear objective design and development standards that are easy to implement and verify, which will provide greater clarity in the streamlined ministerial design review process for both staff and applicant s. In addition, the Urgency Ordinance would establish such standards immediately, reducing the likelihood of the City being required to approve projects that are incompatible with surrounding neighborhoods and a potential threat to the public health, safet y and welfare . The proposed Urgency Ordinance and resulting objective design and development standards do not introduce additional discretionary review procedures that would necessitate additional staff time or consultant resources or otherwise require funding from the General Fund.
Both SB 35 and AB 2011 impose mandatory shortened review timeframes for eligible streamlined ministerial projects, which requires existing staff to expedite these reviews, and prioritize them over other core City services. In response to AB 2011, SB 35/AB 2011 processing fees are proposed as part of the Fiscal Year (FY) 2023 -2024 Citywide Fee Resolution being presented to Council for consideration. These proposed fees are intended to cover the processing of SB 35 and AB 2011 applications. For FY 2023-2024, the City is proposing an AB 2011 deposit fee of $18,039.71, which ensures the City recovers the cost of staff time needed to review and complete the processing of these applications.
CONCLUSION
The proposed Urgency Ordinance will assist staff and applicants to work together to build a safe, beautiful, and thriving community by establishing a more complete set of mixed - use and multifamily residential development standards . The proposed Urgency Ordinance will implement objective design and development standards that can be applied to the streamlined ministerial review process required by SB 35 and AB 2011, as well as mixed-use projects that are already conditionally permitted in the current code .
The proposed Urgency Ordinance will establish objective standards for development and design elements where the state law is silent and will apply in its entirety when a project 5 does not fall within the realm of a state preemption law . The Urgency Ordinance would be effective immediately.
This effort will help the City of Burbank to achieve several goals:
A. To provide the Burbank community, as well as the City’s decision makers an opportunity to identify important objective design concepts that need to be either refined or incorporated into a set of objective design and development standards.
B. To maintain as much local control as possible and protect existing residential neighborhoods, by implementing consistent design language and thoughtful development standards to facilitate the anticipated infill projects and help pr otect existing neighborhoods.
C. To avoid lackluster projects from being approved by-right through the streamlined ministerial review process with ill-fitting commercial regulations.
D. To remove outdated and cumbersome design requirements that would not app ly to a streamlined ministerial review project, and that create an impediment to much- needed housing-production.
E. To clarify when local objective design and development standards apply and when they are preempted by state law.
ATTACHMENTS
Attachment 1 – Urgency Ordinance