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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
CHAIRMAN AND MEMBERS OF THE PLANNING COMMISSION
FROM:DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: FEBRUARY 8, 2003
SUBJECT:DISCUSSION OF THE "BY RIGHT" HEIGHT LIMIT AND OTHER CODE INTERPRETATIONS THAT APPLY TO VIEW PROTECTION
Staff recommends that the City Council review the code interpretations discussed and provide Staff and the Planning Commission with direction as noted.
In the course of reviewing numerous development applications involving new residences, or additions to existing residences, at times the Planning Commission has found itself divided on the interpretation of existing codes and how findings should be applied in cases that involve protecting existing residents’ views from proposed construction. At a point last year, the Planning Commission agreed to take up the matter as an agenda item in an attempt to reach consensus on the issue. Recognizing that the City Council may have an opinion on the issue, the Commission agreed to seek City Council guidance on this issue.
Clarification of the "by right height limit"
Although the term "by right height limit" is not defined in the Code, it is a term that has been used for years to describe the maximum height that a residential structure can be built in the City without having to go through a discretionary review process. In a discretionary review process, the City (be it the Director, Planning Commission, or City Council on appeal) has the discretion to deny an application, if certain review criteria are not met. In a non-discretionary review process (ministerial review), the City does not have the ability to deny a project if it meets a code designated standard.
Pursuant to the current Development Code, the maximum height for residential structures is 16 feet. This is noted in Table 02-A (titled "Single-Family Residential Development Standards"), which is referenced in Development Code Section 17.02.030 (attached). The procedures for proposing to construct a residential structure over 16 feet in height are contained in Development Code Section 17.02.040.C. The Code states:
Any person proposing to construct a structure above sixteen feet shall submit a height variation permit application to the City. A determination on the application shall be made by the director in accordance with the findings described in Section 17.02.040.C.1.e.
The Height Variation permit application process is the discretionary review process that provides the ability for the City to regulate or deny applications that do not meet the review criteria. The review criteria include, but are not limited to, a determination of whether the proposed structure significantly impairs a view, infringes privacy and is compatible with the immediate neighborhood.
Therefore, under the existing Development Code, residential structures that are 16 feet or less in height (as measured using the different methods described in the Code which vary by lot topography) can be built without discretionary review. Whereas, residential structures that exceed 16 feet in height must go through a discretionary review process (the Height Variation process). This means that every owner of a lawful residential property in the City has the Development Code given right to build up to 16 feet, regardless of whether the structure impairs a view or creates other unwanted impacts to neighbors. Hence, over the years the 16-foot height limit has often been referred to as the "by right height limit". This is how the Code has been implemented by previous Directors, Planning Commissions and City Councils since the process was first introduced in the City’s original Development Code adopted in 1975.
In reviewing development applications, some Planning Commissioners have questioned whether there really is a "by right height limit" since there is no section in the Code that explicitly states that you may build up to 16 feet, by right, regardless of view or other impacts that may result. Therefore, Staff and the Planning Commission seek City Council clarification of this matter.
Clarification of the relationship of the General Plan Goals and Policies and the Development Code Standards
When considering applications, the City (be it the Director, Planning Commission or City Council on appeal) must abide by the necessary findings specified in the Development Code for a particular application. The City decision makers will discuss a proposed project’s consistency to the policies of the General Plan if the Development Code calls for a finding of consistency with the General Plan (i.e. a Variance or CUP application). For non-discretionary applications, or for applications that do require a specific finding of General Plan consistency (i.e. a grading application), the General Plan policies will usually not be discussed. This is not to say that approving projects without a General Plan consistency finding means that they are not consistent with the General Plan. The tool to implement the General Plan is the City's Development Code. The Development code sets specific development standards that strike a balance among the almost 200 General Plan Goals and Policies. When the Development Code was originally drafted and subsequently amended, the City Council made a finding that all the rules and standards are consistent with the City's General Plan when the code regulations were adopted. Therefore, as long as projects meet the Development Code standards, or the Code mandated findings to allow exceptions to the standards, the projects are considered consistent with the General Plan. This is how the Code has been implemented by previous Directors, Planning Commissions and City Councils since the City’s first Development Code was adopted in November 1975 after the General Plan was adopted in June 1975.
In reviewing development applications, some Planning Commissioners have questioned how the policies of the City’s General Plan are applied when reviewing applications and what is done when there is an apparent conflict between a General Plan policy and a Development Code process. Specifically, if the Code does provide a "by right height limit", which allows residents to build up to 16 feet regardless of whether the project impairs someone else’s view, how is that possible given the General Plan policy that "prohibit[s] [the] encroachment on existing scenic views reasonably expected by neighboring residents" (General Plan pg. 78).
In this example, the provisions would not be in conflict because it is also reasonably expected that any legal residential lot will be developed with a structure. Notwithstanding, given the questions raised by certain Planning Commissioners about the relationship of the General Plan Goals and Policies and the Development Code Standards, Staff and the Planning Commission seek City Council clarification of this matter.
Clarification of the intent of Height Variation Finding No. iv
The City’s current Height Variation application process requires that 9 findings be made by the City in order to allow residential structure to exceed 16 feet in height (see attached Section 17.02.040.C.1.e). Height Variation finding iv reads as follows:
The structure is designed and situated in such a manner as to minimize impairment of a view;
When considering Height Variation applications, previous Directors and Planning Commissions have applied this finding only to the portion of a proposed structure that is over 16 feet in height (the portion that triggers the need for the Height Variation analysis). For example, if a proposed project involves both a proposed first and second story addition, the above Height Variation finding is only applied to the second story portion of the project (provided the first story is less than 16 feet in height). By doing so, view impacts resulting from the first story are not addressed. This is consistent with the discussion above, where it has been pointed out that the Development Code allows residents to build up to 16 feet, regardless of whether the structure impairs a view or creates other unwanted impacts to neighbors. Furthermore, this approach is supported by the City’s Height Variation Guidelines (last adopted by the City Council in December 1996). The Guidelines attempt to clarify the intent of the finding by stating:
Minimizing view impairment does not apply to construction or additions 16 feet or less in height, even when attached to and a portion of the overall addition which includes construction which exceeds 16 feet in height.
It should also be pointed out that when applying this finding, it has been the practice of Staff and previous Planning Commissions to only assess the view from the "viewing area" of a residence, as defined in the Development Code (see section 17.02.040.A.15). This is to be consistent with the method that has been used for years for determining significant view impairment, from the "area where the best and most important view exists" (viewing area).
In reviewing Height Variation applications, some Planning Commissioners have questioned whether the application of Height Variation finding iv should be limited to solely the portion of a project that is over 16 feet height and whether the view assessment should be limited to the viewing area. Notwithstanding the clarification contained in the Height Variation Guidelines, some Commissioners point out that the actual Code finding is written broadly enough to be applied to all portions of the project (regardless of whether less than 16 feet in height). Furthermore, the finding does not specifically mention "viewing area", whereas the significant view finding (finding No. vi) does. Therefore, Staff and the Planning Commission seek City Council clarification of this matter.
In the course of reviewing numerous development applications involving new residences, or additions to existing residences, at times the Planning Commission has found itself divided on the interpretation of existing codes and how findings should be applied in cases that involve protecting existing residents’ views from proposed construction. In an attempt to clarify the intent and purpose of the existing Code language, Staff recommends that the City Council review the code interpretations discussed and provide Staff and the Planning Commission with direction as noted.
Providing direction as recommended would not result in a fiscal impact.
Joel Rojas, AICP
Director of Planning, Building
and Code Enforcement
Development Code Section 17.02.040
Height Variation Guidelines (adopted December 3, 1996)