FROM: SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT

DANIEL M. WATROUS, SENIOR PLANNER

SUBJECT: REFERRAL FROM TOWN COUNCIL REGARDING USES BY RIGHT IN THE R-2 (TWO-FAMILY RESIDENTIAL) ZONE

BACKGROUND

At its meeting of November 20, 2002, the Town Council referred to the Planning Commission for its study and recommendations a policy issue concerning the text contained within Section 2.05.01(2) of the Tiburon Zoning Ordinance with respect to uses allowed by right in the R-2 (Two-Family) Zoning District. A transcript of the Town Council’s discussion on the referral is attached as Exhibit 1.

The current wording of the R-2 zone allows as follows (only relevant portions are excerpted below):

2.05.01. Principal Uses Permitted (R-2).

One single-family dwelling.

Two dwelling units in a single building, or in two buildings if approved by the Board because of factors such as terrain, lot size, lot configuration, or other physical considerations in order to reduce visual, environmental, or other impacts.

The referral came after the Town Council had heard and decided two separate appeals of the Design Review Board’s decision to approve two dwelling units in two detached buildings located at 2355 Paradise Drive in the R-2 zone. At issue in one of the appeals was whether the existing language in Section 2.05.01(2) was properly interpreted by the Board, and whether it is unclear, inadequate, or otherwise should be modified.

The policy issue is summarized in a memorandum dated October 11, 2002 from the Director of Community Development to the Design Review Board (see attached Exhibit 2). Planning Division Staff sees this meeting as potentially the first of many meetings on this referral, and does not necessarily foresee Commission action on a formal recommendation at this meeting.

The purpose of this referral is for the Planning Commission to study the issue and recommend to the Town Council whether modifications to the Zoning Ordinance text are appropriate. If the Commission determines that no changes are appropriate, then its report to the Town Council should so state. If the Commission concludes that changes are appropriate, then the Planning Commission should, at the conclusion of its deliberations, adopt a Resolution of Intention to amend the Zoning Ordinance, pursuant to its Section 4.09.01, and forward this Resolution to the Town Council with its report. The Resolution of Intention would set the formal public hearing process in motion.

HISTORY

Between 1967 and 1990, the Tiburon Zoning Ordinance section addressing uses allowed by right in the R-2 zone read as follows:

Section 10-6(B). Uses Allowed by Right:

1. One or two-family dwellings.

(The complete section is contained within Exhibit 2.) The lack of clarity of this wording led to different interpretations over the years, and came to a head in 1989 when an applicant applied for multiple duplexes on a single lot in the R-2 zone, asserting that nothing in the ordinance prohibited more than one duplex on a lot. Staff disagreed with this rather loose interpretation, and the matter was referred to the Planning Commission, which was (and still is) the designated authority to interpret the meaning of the Zoning Ordinance when its meaning is unclear. On March 22, 1989 the Planning Commission declared as follows:

It is not the intent of the R-2 zone to allow multiple duplexes on a parcel, and henceforth no applications shall be accepted which propose more than one single family unit or duplex on an individual parcel in the R-2 zone, and that this has always been the interpretation of the Commission.

This interpretation was memorialized in a memo dated July 28, 1989, also included in Exhibit 2. Minutes from the March 22, 1989 Planning Commission meeting are attached as Exhibit 3.

Later in 1989, the Planning Commission began its review of a completely revised Zoning Ordinance. In its final draft sent to Town Council with a recommendation for adoption in early 1990, the Planning Commission had modified (and liberalized) the R-2 zone to allow the following uses by right:

One single family dwelling.

One two-family dwelling.

Two single family dwellings, provided that the lot has a minimum of 10,000 square feet of area.

The Commission further clarified the definition of a two-family dwelling as follows:

A two-family dwelling is such that the two units share a common wall, roof, and foundation. A breezeway, trellis, or similar connection does not constitute a two family dwelling.

Clarification of this definition section was necessary to prevent tenuously-connected single family dwellings from qualifying as two-family dwellings and thereby avoiding the 10,000 square foot lot area requirement for two single family dwellings that was being proposed by the Commission. Please refer to the Staff Report dated March 7, 1990 (Exhibit 4).

During the Town Council hearings on the revised Zoning Ordinance in March 1990, there was a great deal of discussion and controversy over a handful of issues, one of which was the R-2 zone requirements. Other controversial issues included (among others) the proposed creation of a "floor area ratio" for residential properties, treatment of non-conforming uses and structures, and what many local architects perceived as a generally "unfriendly tone" to the ordinance and certain of its provisions. Copies of some of the letters submitted regarding the R-2 zone are included in this report as Attachment A.

On March 27, 1990, the Town Council authorized a special Zoning Committee to work out the controversial issues, address the "tone" issues, and make recommendations to the Planning Commission. The Zoning Committee was comprised of two members of the Town’s Board of Adjustments & Review (precursor to Design Review Board); two local architects; and the President of the Lyford’s Cove/Old Tiburon Property Owners Association. Town Staff worked closely with the Zoning Committee to address these concerns, and on June 27, 1990 presented a revised document to the Planning Commission, which then held a series of ten (10) public hearings at which it reviewed the document on a line-by-line basis. The R-2 zone use-by-right section was extensively modified by the Zoning Committee, and further modified by the Planning Commission on July 9, 1990, to read as follows:

Section 2.05.01. Principal Uses Permitted (R-2).

2. Two dwelling units in a single building, or in two buildings if approved by the Board because of factors such as terrain, lot size, lot configuration, or other considerations in accordance with the Design Review Guidelines, in order to reduce visual, environmental, or other impacts.

The 10,000 square foot lot area requirement for detached buildings was deleted. Please refer to Exhibits 5 and 6 (minutes and staff report from 1990) for specifics.

The Town Council made the final minor modifications to the text of Section 2.05.01(2) prior to its adoption of the revised Zoning Ordinance on November 26, 1990. The text of this section has remained unchanged since adoption.

HISTORY OF RELEVANT APPLICATIONS SINCE 1990

Between 1990 and 2001, only two R-2 properties in Tiburon have been developed with two dwelling units in separate structures. The first such Site Plan and Architectural Review application was approved for the property located at 1860 & 1864 Centro West Street. This application involved a request to construct two new structures, each containing one dwelling unit, on a vacant 12,360 square foot lot. This application was deemed complete in 1990, and was processed exclusively under the prior zoning ordinance. The Town denied the application, but lost a subsequent lawsuit and was forced to approve the two dwellings, as well as a subsequent application to condominiumize the property. The two homes are very large, far exceeding the floor area limits now in place, and is probably not a good basis for comparison with projects that would be approved under the current Zoning Ordinance. However, the fact that the units were subsequently condominiumized is instructive.

The second Site Plan and Architectural Review application, approved in 1999, allowed the construction of a second residence in a detached structure on a lot with an existing residence. The site addresses for this completed project are 160 & 162 Solano Street. The lot area for the property is 11,391 square feet. The records for this application indicate that there was little or no discussion by the Design Review Board or Town Staff regarding whether the proposal was consistent with the requirements of Section 2.05.01. The subject property was rectangular in shape, had no significant slope or terrain characteristics, and had an area well in excess of the minimum lot size required in the R-2 zone. The Planning Commission subsequently approved a conditional use permit (File #19904) allowing this property to be condominiumized, but not without some Commissioners expressing concern about the project and the process (see Planning Commission minutes of December 8, 1999, attached as Exhibit 7).

PROJECT APPLICATION LEADING TO THIS REFERRAL

The project application generating the policy referral to the Planning Commission has not yet been built, but has been approved by the Town Council on appeal. In 2002, a Site Plan and Architectural Review application was submitted for the construction of a detached two-family dwelling on property located at 2355 Paradise Drive. This application proposed the construction of one dwelling unit within each of two separate buildings on this R-2 zoned site.

During the review of this application, concerns were raised by several neighboring property owners regarding the consistency of the project with the requirements of the Tiburon Zoning Ordinance. As noted above, Section 2.05.01 of the Zoning Ordinance (Principal Uses Permitted [R-2]) states that two dwelling units are permitted on an R-2 zoned lot "in a single building, or in two buildings if approved by the Board because of factors such as terrain, lot size, lot configuration, or other physical considerations in order to reduce visual, environmental, or other impacts."

As part of the discussion regarding this application before the Design Review Board, Sue and Wally Quinn, owners of the neighboring property at 2343 Paradise Drive, submitted a study to the Town that evaluated the current and potential development for all R-2 lots in Tiburon. The study is included in this report as Attachment B. The study found that out of 249 R-2 lots for which data is available, 117 properties have a lot size of at least 7,500 square feet, and therefore have the potential to be developed with two dwelling units. A total of 43 of these 117 lots are currently developed with one single-family dwelling, and have the potential to add another residence to the property. The remaining 77 lots are currently developed with two or more dwelling units per lot. However, of these 77 lots, only four (4) have been developed with two dwelling units in separate structures.

While the study indicates that only 43 of the 249 lots in the R-2 zone (17.3%) have the legal ability to increase the number of dwellings on their respective properties, the study also noted that many of the existing homes on these lots are older and have smaller floor areas and fewer amenities than recently constructed homes in Old Tiburon. Thus, there is an increasing potential for these homes to be demolished and replaced with new construction, possibly resulting in other requests to build two dwellings in separate structures on a site.

The Quinns also raised concerns about the potential for condominiumization of R-2 properties developed with dwellings in separate buildings. Such projects (the most recent example being 160 & 162 Solano Street) allow a lot greater than 7,500 square feet in area to be developed with two single-family homes, each under separate home ownership. The ability to develop two detached dwellings (each on 3,750 square feet of lot area) could be considered a de facto upzoning of these properties from the 7,500 square foot minimum lot size currently required by the R-2 zone and from the 10,000 square foot minimum lot size required in the Town’s single-family zone (R-1). The Quinns and other neighbors expressed concern that the character and pattern of development of Old Tiburon will be irreversibly altered over the long term by the proliferation of detached two-family dwellings, many of which are likely to be condominiumized.

The Design Review Board considered this information in its review of the application for 2355 Paradise Drive, and addressed the requirements of Section 2.05.01 in its deliberations. A majority of the Board concluded that it could justify a detached two-family dwelling based on the narrowness of the subject lot; the elevation change between the front and rear of the property that would encourage a two-structure design; the fact that the lot has access from two different streets; and that the separation of the two structures would result in less building mass and more open area on the site, and would spread out any impacts of the project. The Design Review Board conditionally approved the application on October 17, 2002 by a 3-1 vote (Comstock dissenting).

Two separate appeals of this decision were made to the Town Council, which held public hearings on these appeals on November 20, 2002. The Town Council Staff Report is attached as Exhibit 8. [The attachments to this staff report, which are voluminous, are available for review at Town Hall at the request of Commissioners or the public.] Minutes from this meeting are attached as Exhibit 9. The Council voted to partially grant one appeal regarding certain design issues associated with the application, but denied an appeal by the Quinns that addressed questions of compliance with Section 2.05.01. The Council, on a 3-2 vote, determined that the Design Review Board appropriately interpreted Section 2.05.01 in its review of this application. Town Council Resolution No. 68-2002 cited the sloping site terrain, the narrowness of the lot, and the access available from two different streets as physical considerations that justified the construction of a detached two-family dwelling, and stated that such a design would result in reduced mass and bulk and visual impacts on neighboring residences.

During the review of these appeals, the Town Council discussed the issue of whether Section 2.05.01 needed clarification, and if whether the policy issues regarding one structure versus two structures in the R-2 zone should be referred to the Planning Commission for further review. The Council voted (4-1) to direct the Planning Commission to review this ordinance section, with specific instructions to determine 1) whether the criteria for approving dwelling units in separate structures should be modified to require findings similar to those required for approval of variances; and 2) whether this ordinance should reflect a preference for two-family dwellings designed to have the appearance of a single-family dwelling.

 PENDING APPLICATIONS

The Town is currently processing a Site Plan and Architectural Review application for construction of a detached two-family dwelling on property located at 1790 Centro West Street. This application requests the conversion of an existing duplex into a single-family dwelling, along with the construction of a new residence beneath a detached garage, on a 7,819 square foot parcel. This application was reviewed by the Design Review Board on December 5, 2002, and has since been continued to the February 20, 2003 meeting. Based on the Town Council action on 2355 Paradise Drive, the Centro West Street application is being processed in the same manner. Any changes to the Zoning Ordinance that may result from this referral are unlikely to occur in time to affect the Centro West Street application.

FRAMING THE ISSUE

The policy question is whether Section 2.05.01(2) of the Zoning Ordinance is adequate or whether it should be amended.

Critics of this section believe (among other things) that the language is overbroad; is easily subject to differing interpretations by different Boards and Staff; does not adequately protect the character of Old Tiburon; and will result in long-term changes in the pattern of development and property ownership in Old Tiburon. They believe that the section was adopted with the intent that it be applied narrowly, based on extreme or unusual physical conditions on a lot that would make attached units impractical or infeasible or greatly undesirable.

Supporters of the section believe that it provides the necessary flexibility for the Design Review Board to review projects, on a case-by-case basis, and determine whether detached units are appropriate based on physical considerations and whether they reduce visual, environmental, or other impacts. They believe that the section correctly reflects the original intent that the Board be given broad discretion over the detachment issue, provided that the necessary findings implied by the section are reasonably supported by evidence. Supporters also believe that the character of Old Tiburon is not threatened by detached two-family dwellings, but that separate smaller structures (as opposed to larger single-building duplexes) recapture and preserve the historic character of the neighborhood.

Questions that the Planning Commission may wish to consider are as follows:

What is the "character" of Old Tiburon? Is it definable, and if so, is it threatened by a proliferation of detached two-family dwellings? Is it threatened by potentially accelerated condominiumization of property?

Is the example set by 160/162 Solano Street acceptable? Should it be repeated?

Is the specificity of direction given to the Design Review Board by Section 2.05.01 adequate?

Is the level of discretion given to the Design Review Board by Section 2.05.01 appropriate?

OPTIONS

If the Planning Commission determines that changes to Section 2.05.01(2) may be warranted, then it has a number of options from which to choose. These include, but are not limited to, the following:

Addition of a simple statement to the section indicating that the strong preference of the Town for the R-2 zone is for a single building that strongly resembles a single family home, even if it contains two dwelling units.

Clarification of the section to require that extreme or unusual physical conditions must exist in order for a detached two-family dwelling to be considered. Examples such as very step terrain that lends itself only to detached units; or the presence of rock outcroppings, prominent trees or historic structures that mediate against attachment; could be included for clarity.

Require a minimum lot size of 10,000 square feet for detached two-family dwellings (as originally recommended by the Planning Commission in 1990).

Development of a specific list of criteria that must be met prior to qualifying for detached units. This list could include (for example), a slope greater than 25%, usable access from more than one street or lane, a lot size of at least 10,000 square feet, etc.

Adoption of an "exception-like" procedure that would require specific findings to be made before a detached two-family dwelling could be approved in the R-2 zone. Granting of the exception could be within the permit review authority of the Planning Commission, and not the Design Review Board.

Adoption of a formal "variance" procedure for allowing a detached two-family dwelling in the R-2 zone, with the State-required findings attendant to such a process.

Planning Division Staff does not recommend the "variance" process as an appropriate course of action, but believes that all of the other listed approaches could be workable.

RECOMMENDATION

Staff anticipates that the Planning Commission will have a great deal of deal of material and testimony to absorb, and will have many questions to be answered. The Planning Commission may wish to simply review the material, receive the Staff Report, take public comment on the item, and continue it to a date specific in order to assimilate the information presented and allow time for questions to be answered that may require research.

However, if the Planning Commission has concluded by the end of the discussion that no changes to the Zoning Ordinance are appropriate, then it should direct Staff to forward that recommendation to the Town Council.

If the Planning Commission determines that changes to the Zoning Ordinance may be appropriate, then if possible, it should state preferences among the options discussed above and direct Staff to return with refinements for more detailed discussion at a future meeting, to be broadly noticed to the public.

Transcript of Town Council discussion on referral to the Planning Commission.

Memo dated October 11, 2002 from Director of Community Development to the Design Review Board.

Minutes of Planning Commission meeting of March 22, 1989.

Staff report to Planning Commission dated March 7, 1990.

Minutes of Planning Commission meeting of July 9, 1990.

Planning Commission Staff Report dated August 8, 1990.

Planning Commission minutes of December 8, 1999.

Town Council Staff Report dated November 20, 2002.

Town Council minutes from November 20, 2002.

ATTACHMENTS