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Eff.: ORDINANCE NO. ____________
AN ORDINANCE OF THE COUNCIL OF THE CITY OF
BURBANK TO AMEND THE STREAMLINED MINISTERIAL
REVIEW AND APPROVAL PROCESS FOR
DEVELOPMENT PROJECTS SUBJECT TO STREAMLINED
MINISTERIAL REVIEW WHEN REQUIRED BY STATE LAW,
INCLUDING CALIFORNIA GOVERNMENT CODE
SECTIONS 65913.4 (SB 35) and 65912.100 ET SEQ. (AB
2011)
(Zone Text Amendment No. 24-0006015)
City Attorney’s Synopsis
This Ordinance amends Title 10 (Zoning Regulations), Chapter 1, of the Burbank Municipal Code (BMC) to update the streamlined ministerial review process for multifamily housing development projects submitted in compliance with State law, including Senate Bill (SB) 35 and Assembly Bill (AB) 2011, codified as California Government Code Section 65913.4 and 65912.100 et seq., respectively. Specifically, this Ordinance removes the mandatory City Council public oversight and design review hearing requirement from BMC Section 10-1-19302 to comply with SB 423 (2023) and AB 2243 (2024), shortens the project resubmittal review timeline to 30 days as required by AB 3122 (2024),and makes other minor clarifying changes.
THE COUNCIL OF THE CITY OF BURBANK FINDS, DETERMINES AND DECLARES THAT:
A. On January 4, 2022, pursuant to the requirements in California Government Code Section 65913.4 (commonly referred to as Senate Bill (SB) 35) , the City Council adopted Ordinance No. 22- 3,964 establishing a ministerial review and public oversight process for SB 35 applications that required two rounds of City Council review - an initial review for determination of site eligibility on receipt of a Notice of Intent (NOI) to submit an SB 35 application, and a final City Council ministerial public oversight and design review for the approval of an SB 35 application.
B. On May 23, 2023, acknowledging the strict timeline and local government’s limited discretion to review site eligibility criteria and objective standards for housing development projects submitted under SB 35, the City Council adopted Ordinance No. 23-3,993, which amended the City’s streamlined ministerial review and public oversight process for SB 35 applications by establishing City planning staff review of site eligibility on receipt of an NOI to submit an SB 35 application, while maintaining the City Council ministerial public oversight and design review for final approval of SB 35 applications.
The Ordinance also extended the City’s local streamlined ministerial review and public oversight and design review process to any project where the State mandates streamlined ministerial review, including applications submitted pursuant to California Government Code Section 65912.100 et seq. (commonly referred to as Assembly Bill ATTACHMENT 1 - 2
(AB) 2011).
C. SB 423, effective January 1, 2024, among other things, removed authorization for local agencies to conduct “public oversight” of SB 35 streamlined ministerial development applications and removed “city council” and “board of supervisors” from the project review process. Similarly, recent amendments made by AB 2243 (effective January 1, 2025) removed “city council” and “board of supervisors” from the project review process for AB 2011 streamlined ministerial development applications. The City’s streamlined ministerial review process, codified at Burbank Municipal Code (BMC) Section 10- 1-19300 et seq., requires a City Council public hearing to conduct public oversight and design review and is, therefore, inconsistent with State law.
D. AB 3122 and AB 2243, both effective January 1, 2025, shorten consistency review times for streamlined ministerial development review application resubmittals from 60 days for projects of 150 or fewer housing units, and from 90 days for projects larger than 150 housing units, down to just 30 days. This change conflicts with the BMC resubmittal review period of 60 days for projects of 150 or fewer housing units, and from 90 days for projects larger than 150 housing units. Furthermore, failure to complete this consistency review within the shortened 30 -day timeline results in a project being deemed to satisfy state and local objective planning standards (and thereby, deemed approved by operation of law), regardless of actual compliance with such standards. AB 2243 also made other minor changes to the AB 2011 streamlined review process. An amendment to the BMC is needed to conform the BMC to these recent updates to State law.
E. The inconsistenc ies between the City’s current process for streamlined ministerial development review and the requirements of California Government Code Section 65913.4, as amended by SB 423 and AB 3122, and California Government Code Sections 65912.100 et seq., as amended by AB 2243, create uncertainty for housing developers, members of the public, and City staff, and jeopardize project approvals through a review process that cannot comply with conflicting State and local codes.
Failure to adopt this Ordinance would extend the City’s local review and approval process beyond State deadlines and, thus, risk projects being deemed approved for failing to complete timely review , without any project refinement to comply with applicable state or local objective standards.
F. This Ordinance shall apply to all pending and future applications submitted pursuant to California Government Code Sections 65913.4 and 65912.100 et seq. (unless otherwise specified in applicable state law), and any other project for which State law mandates streamlined ministerial review.
G. BMC Section 10-1985 authorizes the City Council to adopt amendments to Title 10 (Zoning Regulations) without a public hearing, for matters that do not involve either “amendments to land use regulations” (BMC 10- 1-1987), or “amendments to property development standards” (BMC 10-1-1988), and therefore no public hearing is ATTACHMENT 1 - 3
required for this Ordinance as the amendments contained herein relate to an application process.
H. T he City Council has determined that this Ordinance is exempt from California Environmental Quality Act ( CEQA) review pursuant to State CEQA Guidelines, Article 18: Statutory Exemptions, Section 15061( b)(3). This section of the CEQA Guidelines establishes a statutory exemption when “The activity is covered by the common sense 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 there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” Additionally, pursuant to California Government Code Sections 65912.114(o) and 65912.124(o), adoption of this Ordinance for implementing a streamlined, ministerial review process for AB 2011 applications shall not be considered a “project” under Division 13 (commencing with Section 21000) of the Public Resources Code and therefore, adoption of this Ordinance is not a project subject to CEQA review.
THE COUNCIL OF THE CITY OF BURBANK DOES ORDAIN AS FOLLOWS:
Section 1. Findings. All the findings set forth above are true and correct and are incorporated herein as if restated in their entirety.
Section 2. Amendments to BMC. Division 12 of Article 19 of Title 10, Chapter 1 of the Burbank Municipal Code, entitled “ Streamlined Ministerial Approval Process ”, is amended and restated in its entirety to read as follows:
“10-1-19300: PURPOSE AND INTENT:
A. PURPOSE.
The City Council declares and finds all the following:
1. The California Legislature finds and declares that ensuring access to affordable housing is a matter of statewide concern.
2. Pursuant to Senate Bill (SB) 35 and Assembly Bill (AB) 2011 , a development proponent may submit an application for a development that is subject to the streamlined, ministerial approval process provided by California Government Code Sections 65913.4 and 65912.100 et seq., and not be subject to a conditional use permit or any other discretionary local government review or approval.
3. The City shall undertake ministerial review as provided for in SB 35 and AB 2011 (California Government Code Sections 65913.4, 65912.114, and 65912.124, as may be amended), and any other project for which State law requires streamlined ministerial review.
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B. INTENT.
The intent of this Division is, to the extent permissible by law, establish a streamlined ministerial review process for the City’s final review and approval of projects requiring streamlined ministerial review, including SB 35 and AB 2011 applications pursuant to the requirements in California Government Code Sections 65913.4 and 65912.100 et seq.
10-1-19301: DEFINITIONS:
All terms not defined below shall, unless their context suggests otherwise, be interpreted in accordance with the definition established in Government Code sections 65913.4 and 65912.100 et seq. , and the Guidelines published by the California Department of Housing and Community Development (referred to herein as the Guidelines).
“Application” means a submission requesting Streamlined Ministerial Approval pursuant to Government Code section 65913.4, 65912.100 et seq., or any other state law requiring streamlined ministerial review, and the related Guidelines, which contain information as required by applicable State and local law, as well as applicable Guidelines.
“Ministerial approval” means approval of a project that complies with requirements and guidelines as set forth in Government Code Sections 65913.4, 65912.100 et seq., or other state law requiring streamlined ministerial approval that is non- discretionary and cannot require a conditional use permit or other discretionary local government review or approval.
“Ministerial processing” means a process for development approval involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely ensures that the proposed development meets all the "objective zoning standards," "objective subdivision standards," and "objective design review standards" in effect at the time that the application is submitted to the local government but uses no special discretion or judgment in reaching a decision.
“Objective zoning standard”, “objective subdivision standard”, and “objective design review standard” means standards that involve 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 knowable by both the applicant or development proponent and the public official prior to submittal, and includes only such standards as are published and adopted by ordinance or resolution by a local jurisdiction before submission of a development application.
10-1-19302: STREAMLINED MINISTERIAL APPROVAL PROCESS:
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Development projects submitted pursuant to California Government Code Section 65913.4 shall be reviewed in accordance with the procedures set forth in Subsection (b) of Section 65913.4, and development projects submitted pursuant to California Government Code Section 65912.100 et seq. shall be reviewed in accordance with the procedures set forth in Government Code Sections 65912.114 and 65912.124, as such procedures may be amended from time to time, and as further set forth in this Division 12.
A. NOTICE OF INTENT TO SUBMIT A SB 35 APPLICATION
(1) The development proponent shall submit to the local government a notice of its intent to submit an application. The notice of intent (NOI) shall be in the form of a preliminary application that includes all of the information described in Section 65941.1.
(2) Upon receipt of a NOI, the Community Development Director shall engage in a scoping consultation regarding the proposed development with any California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed development as required by Section 65913.4(b), as may be amended from time to time.
(3) After completing the NOI to submit an application for streamlined ministerial approval process (also referred to as SB 35 processing) and Tribal Consultation process pursuant to Government Code Section 65913.4, subsection (b), an applicant may submit an application for streamlined ministerial approval processing to the City. The applicant must submit an SB 35 streamlined ministerial approval process application demonstrating the proposed project’s eligibility under California Government Code Section 65913.4. Once an application is submitted, the process set forth in subsections B-D, below, shall be followed.
B. COMMUNITY DEVELOPMENT DIRECTOR DETERMINATIONS
(1) The Community Development Director shall review the application s submitted pursuant to California Government Code Sections 65913.4, 65912.100 et seq., or other State requirement for streamlined ministerial review, as applicable , and determine if a project is consistent with or conflicts with any of the objective zoning standards, objective subdivision standards, and objective design review standards applicable to the project.
The Community Development Director’s consistency review of the project shall be completed within 60 days of an application submittal for projects of 150 or fewer units, and 90 days for projects consisting of more than 150 units, unless otherwise provided by applicable State law.
(2) If the City provides written comments as to any conflicts in the objective standards, or requests additional information to make such a determination, ATTACHMENT 1 - 6
then the Community Development Director’s review of the project shall be completed within 30 days of the resubmittal of a revised development application in response to such written notice, unless otherwise provided by applicable State law. The City’s written comments shall specify the standard or standards with which the development conflicts and shall provide an explanation for the reason or reasons the development conflicts with that standard or standards, within the timeframe specified.
(3) If the application can be brought into compliance with minor changes to the proposal, the City, in lieu of making detailed findings, will allow the applicant to correct any deficiencies within the timeframes noted subsection B(2) above.
(4) If the City fails to provide the required documentation determining consistency within these timeframes, the development shall be deemed to satisfy the City’s objective planning standards and shall be deemed consistent.
(5) As required by State law, upon the Community Development Director’s determination that a project is consistent with all applicable objective zoning standards, objective subdivision standards, and objective design review standards, the Project shall be approved in accordance with any applicable timelines as may be required by applicable State law. The Community Development Director’s consistency determination and related project approval shall be final and may not be administratively appealed under the provisions of the Burbank Municipal Code.
(6) The Community Development Director’s ministerial review process shall not in any way inhibit, chill or preclude the ministerial approval of the project if it is in compliance with criteria specified in Government Code Sections 65913.4 and 65912.100 et seq. or other applicable state law requiring streamlined ministerial review , and consistent with the objective zoning standards, objective subdivision standards, and objective design review standards applicable to the project.
C. SUBMISSION OF APPLICATION AND PAYMENT OF FEES
Application for development projects submitted pursuant to California Government Code Sections 65913.4, 65912.100 et seq. , and other projects requiring streamlined ministerial review shall be made as follows:
1) On forms furnished by the Community Development Director.
2) Signed by the owner of the property or his duly authorized agent and sworn to by declaration or before a notary public.
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3) Filed with the Community Development Director.
4) Submitted with the City SB 35 , AB 2011, or other applicable Checklist Application as may be amended from time to time to comply with changes to applicable State law.
5) Submitted with a payment of applications fees based on the City adopted fee schedule.
6) If required by applicable state or local objective zoning standards, objective subdivision standards, or objective design review standards, the application must be submitted with a Phase I Environmental Site Assessment (ESA) for sites identified by the Burbank Fire Department (the Fire Marshal) as having a history of hazardous materials use or storage and any associated follow -up environmental site assessment. Developer shall be responsible for any cost related to third party review of Phase I ESA.
7) If required by applicable state or local objective zoning standards, objective subdivision standards, or objective design review standards, when the Phase 1 ESA recommends further study including preparation of a Phase II ESA or any additional environmental site assessments , the developer shall submit the additional studies as a part of the application.
The developer shall be responsible for any and all cost related to third party review of additional environmental documents.
D. MODIFICATION
Applicant can request modification of approval after ministerial review and approval but prior to issuance of final building permit pursuant to California Government Code Section 65913.4, 65912.100 et seq., or other applicable State law. The modification shall be reviewed by the Community Development Director to confirm compliance with California Government Code Section 65913.4, 65912.100 et seq., or other applicable State law.
10-1-19303: CHANGES TO STATE LAW
Notwithstanding any of the foregoing, any future amendments to California Government Code Sections 65913.4 and/or 65912.100 et seq. or the Guidelines that conflict with any provision of this Division 12 shall supersede the conflicting provision in Division 12.”
Section 3. Severability. If any section, subsection, sentence, clause, phrase, or word of this Ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed and adopted this ATTACHMENT 1 - 8
Ordinance, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid.
Section 4. Environmental Review. The City Council has determined this Ordinance is exempt from California Environmental Quality Act (CEQA) review pursuant to State CEQA Guidelines, Article 18: Statutory Exemptions, Section 15061(b)(3). This section of the CEQA Guidelines establishes a statutory exemption when “The activity is covered by the common sense 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 there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.” Additionally, pursuant to California Government Code Sections 65912.114(o) and 65912.124(o), adoption of this Ordinance for implementing a streamlined, ministerial review process for AB 2011 applications shall not be considered a “project” under Division 13 (commencing with Section 21000) of the Public Resources Code and therefore, adoption of this Ordinance is not a project subject to CEQA review. The City Planner shall file a Notice of Exemption with the Los Angeles County Clerk and submitted to the State Clearinghouse, within 5 days of the City Council’s decision.
Section 5. Effective Date. This Ordinance shall become effective at 12:01 a.m. on the thirty-first (31st) day after the date of adoption.
PASSED AND ADOPTED this day of , 2024.
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Mayor, City of Burbank
Approved as to Form:
Attest: Office of the City Attorney
_________________________ By: _______________________ Kimberley Clark, City Clerk Joseph H. McDougall City Attorney
STATE OF CALIFORNIA )
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COUNTY OF LOS ANGELES ) ss.
CITY OF BURBANK )
I, Kimberley Clark, City Clerk of the City of Burbank, do hereby certify that the foregoing Ordinance No. _____ was duly and regularly passed and adopted by the Council of the City of Burbank at its regular meeting held on the day of , 2024, by the following vote:
AYES:
NOES:
ABSENT:
I further certify that said Synopsis was published as required by law in a newspaper of general circulation in the City of Burbank, California within 14 days following of the ordinance’s adoption on .
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Kimberley Clark, City Clerk