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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: DIRECTOR OF PLANNING BUILDING AND CODE ENFORCEMENT
DATE: JULY 15, 2003
SUBJECT: DISCUSSION OF THE CITY’S 16-FOOT HEIGHT LIMIT
Provide Staff with direction on how the continued discussion and resolution of this matter should proceed.
In the course of reviewing Height Variation Permit applications for new residences, or additions to existing residences, that exceed the City’s 16-foot height limit, the Planning Commission that was appointed in March 2002 found itself, at times, divided on the interpretation of the Height Variation Permit findings involving the protection of residents’ views. As a result, the Planning Commission agreed to take up the matter as an agenda item in an attempt to reach consensus on the issue. However, recognizing that the City Council may have an opinion on the issue, the Commission agreed to seek City Council guidance on the issue as part of the City Council/Planning Commission joint workshop held on February 8, 2003.
At the joint workshop, there was discussion by Council members and Commissioners on the specific code language that was creating the differences in interpretation (see attached minutes). At the workshop, the Council agreed to let Staff bring forward ideas to the Council at a future meeting on how to clarify or resolve the issues. The Council also encouraged the Planning Commission to attend the future meeting to provide its input and participate in the discussion.
Pursuant to Council direction, Staff was prepared to forward ideas for clarifying the issues to the Council for discussion. However, because newer questions had emerged at the Commission level related to the view protection issues since the time of the February 8, 2003 joint workshop, Staff sought feedback from the Planning Commission to ensure that all of the Commission’s issues were adequately identified before presenting the matter to the Council for resolution. Therefore, on June 24, 2003, the Planning Commission was asked by Staff to review and provide feedback on the content and format of a draft Staff Report to the City Council to ensure that all the relevant issues previously discussed by the Commission were included in Staff’s presentation to the Council.
At the Commission’s June 24th meeting, the Commission recommended that a more comprehensive report be drafted for the Commission’s continued review and continued the matter to July 22, 2003 (minutes attached). Anticipating that the Commission would only take one meeting to offer feedback, Staff planned on presenting a Staff Report on the issues to the City Council at its July 15, 2003 meeting. However, after the Commission recommended that a more comprehensive report be drafted for its continued review, Staff no longer anticipated taking the item to the City Council on July 15, 2003.
After the Commission’s June 24th meeting, Staff received a request from Councilman Larry Clark asking that an item be placed on the Council's July 15th agenda to discuss the 16-foot height limit issue. As a result, this item is being presented to the Council for discussion. To assist in the discussion, this Staff Report contains a brief summary of the 16-foot issue in context with the other issues that the Commission is seeking direction on, provides some background on the origin of the 16-foot height limit and its historical application, and summarizes the differing points of view on the application of the 16-foot height limit.
Summary of Issues
The differences in Code interpretation by the Commission, which originally prompted the request for clarification by the Council, focused on the language contained within certain Height Variation Permit application findings. As a result, this became the basis for most of the discussion at the joint workshop. However, lately there have been additional related questions that have come up at Commission meetings that also necessitate clarification. These more recent questions involve the application of the view protection finding for grading applications and application of the 16-foot height limit itself.
The collective list of view related issues/questions that the Commission is seeking Council direction/clarification are summarized below:
Height Variation Permit Application Findings
Grading Permit Application Finding
Application of the 16-foot Height Limit
To assist the Council in clarifying the issues noted above, it is Staff’s intent to present a comprehensive Staff Report to the City Council at a future date that describes each issue listed above in more detail and provides options for the Council, such as the possible initiation of Development Code or Guideline amendments. Given Staff’s understanding of Councilman Clark’s request, the discussion in this Staff Report is limited to issues related to the application of the 16-foot height limit (Issues 5 and 6).
Historical application of the 16-foot height limit
Provided below is some background on the origin of the 16-foot height limit as a code requirement and its application over the years.
The City’s 16-foot height limit was established when the City’s first Development Code was adopted on November 25, 1975. As shown in the attached code sections excerpts, the original Development Code established the 16-foot height limit as part of the residential development standards table and established a discretionary review process for "any individual or person desiring to construct a residence exceeding sixteen (16) feet in height" (the Height Variation Permit process).
In January 1976, applications began to be accepted and processed under the City’s first Development Code. According to City records, from the onset, applications for new homes or additions that exceeded 16 feet were processed under the Height Variation Permit process, while applications for new homes and additions to existing homes that were less than 16 feet in height were processed by Staff without any discretionary review (ministerialy) through a Site Plan Review Application.
In 1979, the Development Code was amended to clarify that the Height Variation Permit process applies to both new residences and additions to existing residences (essentially the same language that exists today). Staff believes that this change was to acknowledge that, since its inception, the 16-foot height limit had been applied to both new residences and additions to existing residences. It’s also interesting to note that the original Height Variation Permit process included a neighborhood compatibility finding that was removed in 1979. The neighborhood compatibility finding, as we know it today, was added back as a Height Variation Permit finding when the Proposition M language was incorporated into the Code in 1989. The Proposition M changes also modified the existing findings, added two additional findings (early neighbor consultation and compliance with all other code requirements), reduced the maximum height allowed with a Height Variation Permit from 30 feet to 26 feet, and clarified some of the methods for measuring height.
A major update and overhaul of the Development Code was approved in 1996-97, which resulted in some changes to the Height Variation Permit section of the Code, although no changes were made to the 16-foot height limit (the trigger for a Height Variation Permit review). The 1996-97 amendments clarified how to measure 16 feet on pad lots, clarified finding iv (regarding significant view impairment), added a ninth finding for the protection of privacy, and established thresholds for Planning Commission review of certain Height Variation Applications (up until 1997, all Height Variation Permit decisions were made by the Director).
Therefore, since the adoption of the original Development Code in 1975, the language related to the establishment of the 16-foot height limit has not changed, while the Height Variation Permit process for dealing with new residences or additions over 16 feet has been modified over time. Development Code Section 17.02.030.B.1 currently states:
Building Height. Any individual or persons desiring to build a structure or an addition to an existing structure exceeding sixteen feet in height, may apply for a height variation permit, which, if granted pursuant to the procedures contained herein, will permit he individual to build a structure not exceeding twenty-six feet in height…"
Under the existing Code, new residences or residential additions that are proposed to exceed 16 feet in height (using the different measurement methods described in the Code) must go through the Height Variation Permit review process. The Height Variation Permit review process is a discretionary review process whereby the City (be it the Director, Planning Commission, or City Council on appeal) has the discretion to deny an application, if specific review criteria are not met. Included in the review criteria, are findings that protect views from surrounding properties, as defined in the Code. Conversely, new residences or residential additions that are proposed to be 16 feet or less in height may be built without the need for a Height Variation Permit and thus not subject to the view protection findings. Hence, over the years the 16-foot height limit has been referred to as the "by right height limit".
Although the term "by right height limit" is not defined (nor mentioned) in the Code, it is the term that has been used for years to describe the maximum 16-foot height that a residential structure can be built in the City without having to go through the City’s Height Variation Permit review process. This is because, as chronicled above, since its inception, the Development Code has been applied in a manner that allows an owner of a lawful residential property in the City the right to build up to 16 feet, regardless of whether the structure impairs a view, provided the project does not involve any grading or exceed any other Development Code standards. This is because the Code does not require a discretionary review process with view findings for structures less than 16 feet in height. Furthermore, the "by right height" term has been helpful in answering inquiries over the years from residents who wish to know what they can and can’t do to improve their property or what view protection they can reasonably expect from construction on a neighboring lot.
The application of the 16-foot height limit as described above has been consistent over the years, as it has been implemented by previous Directors and Planning Commissions since the height limit was first introduced in the City’s original Development Code adopted in 1975. Furthermore, the implementation of the Code in this manner has been upheld by previous City Councils, on occasion, when considering application appeals. For example, in 1998 the City Council heard an appeal by a resident objecting to the construction of a new residence, that involved grading, partly on the basis that the resident’s view would be significantly impaired. The project did not require a Height Variation since it was proposed below the 16-foot envelope. The City Council denied the appeal, partly on the finding that "the proposed project is at or below the maximum 16-foot height permitted by right for a structure on a pad lot, and any views from adjacent sites which are affected by the proposed residence are not protected views as defined in Section 17.02.040 of the RPV Development Code…" (Resolution attached).
Based on a research of City files, Staff estimates that since January 1976 (the point where applications began to be processed under the City’s first Development Code), the City has approved about 3,000 applications for additions less than 16 feet in height and about 300 applications for new homes under 16 feet under the Code application outlined above.
Summary of differing views on the application of the 16-foot height limit
Notwithstanding the historical application of the 16-foot height limit, provided below is a summary of the differing views that have been expressed by some Planning Commissioners on this topic in the last few weeks.
1. The original 16-foot height limit was intended to apply solely to new residences built on vacant lots and therefore it is incorrect to apply the 16-foot height limit to situations where an existing residence seeks to increase its height to 16 feet.
2. Even though a new residence or addition may be proposed below the 16-foot height limit, views should still be considered since there is a general plan policy that "prohibit[s] [the] encroachment on existing scenic views reasonably expected by neighboring residents" (General Plan pg. 78).
3. Although the 16-foot height limit has been often referred to as the "by right" height limit, there is no language in the City’s Development Code that explicitly states that you may build up to 16 feet, by right, regardless of view or other impacts that may result.
Planning Commission Input
As noted earlier in this Staff Report and summarized in the attached minutes, the Planning commission discussed this and other related issues at its June 24, 2003 meeting. On July 8, 2003, the Commission was informed about the Council’s pending discussion of this item on July 15, 2003 and was informed that unless otherwise directed by the Council, Staff still intended on providing the Commission with the more comprehensive report that it requested on June 24, 2003 for its continued review. However, given the scope of work Staff recommended, and the Planning Commission agreed, to continue Commission discussion of the item to its August 26, 2003 meeting.
Furthermore, the Commission was informed of Councilman Clark’s invitation to attend the July 15th City Council meeting to provide their individual views on the issue.
The City Council may also wish to consider the following alternatives to the Staff recommendation:
At the request of Councilman Larry Clark, a discussion of the City’s 16-foot height limit has been placed on the Council's agenda. To assist in the Council’s discussion of the item, Staff has provided a brief summary of the 16-foot issue in context with the other view-related issues that the Planning Commission is seeking direction on; has provided some background on the origin of the 16-foot height limit and its historical application; and has summarized the differing points of view on the issue. At this time, Staff is seeking direction on how the continued discussion and resolution of this matter should proceed.
Joel Rojas, AICP
Director of Planning, Building and
June 24, 2003 approved PC excerpt minutes
Chapter 1, Part 1 of Original Development Code
CC Resolution No. 98-10