FROM: SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT

SUBJECT: Z 2003-01: TOWN-INITIATED TEXT AMENDMENTS TO THE TIBURON ZONING ORDINANCE, INCLUDING BUT NOT LIMITED TO, MODIFIED REGULATIONS REGARDING DETACHED TWO-FAMILY DWELLINGS IN THE R-2 (TWO-FAMILY RESIDENTIAL) ZONE; NEW AND MODIFIED DEFINITIONS; AND ESTABLISHMENT OF LIMITATIONS ON PARKING AND HARDSCAPE IN FRONT YARD SETBACKS

BACKGROUND

The R-2 (Two-Family Residential) Zone, a map of which is attached as Exhibit 1, allows as principal permitted uses both single family dwellings and two-family dwellings, often called "duplexes". Usually, duplexes are either "stacked" units (one on top of the other), or side-by-side units that share a common wall, roof and foundation. However, the current Zoning Ordinance allows the Design Review Board discretion to approve a two-family dwelling in detached form (i.e., in two buildings) under certain circumstances. The operable section of the Zoning Ordinance is Section 2.05.01(2), which reads in pertinent part as follows:

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 physical considerations in order to reduce visual, environmental, or other impacts.

The interpretation of this section was the subject of an intensely-disputed appeal of the Design Review Board’s approval of a detached two-family dwelling at 2355 Paradise Drive a few months ago. In acting on the appeal, the Town Council referred Section 2.05.01 to the Planning Commission for a recommendation as to whether the text was adequate or should be modified.

Following meetings on January 22 and February 26, 2003, the Commission determined that the section was unclear and required modification through a zoning ordinance text amendment procedure. The Town Council endorsed this recommendation at its meeting of March 5, 2003.

At its meeting of February 26, 2003, the Planning Commission considered three very preliminary directions for possible text amendments regarding Section 2.05.01. The Commission received public testimony and provided direction to Staff for the preparation of refined text amendments to be considered at a future public hearing. Adopted minutes from the February 26, 2003 meeting are attached as Exhibit 2.

As it has been the practice of the Town of Tiburon to consolidate various zoning text amendments in a single amendment process, other generally minor or "clean-up-type" amendments are also included for the consideration of the Commission. These include primarily changes to definitions that have recently become outdated due to internal changes within the Community Development Department. Also, there has been some public interest expressed in establishing limits on the amount of parking area and hardscape allowed in front yard setbacks.

SUMMARY OF DIRECTION FROM PRIOR MEETING

At the February 26, 2003 meeting, the Planning Commission considered three (3) potential options for addressing the issue of detached two-family dwellings in the R-2 zone. These options are summarized as follows:

Option A attempted to clarify the current direction provided to the Design Review Board in Section 2.05.01 by making the section more specific and directive, while retaining the same basic framework and criteria. Two Commissioners (Smith and Collins) appeared to favor this option.

Option B attempted to address in advance the "land use compatibility" issue raised by the Planning Commission by imposing a set of objective standards that would need to be met before the Staff could accept an application for two detached units in the R-2 zone. Once these standards were met, Staff could accept the application and the Design Review Board would review the application in accordance with the clarified direction found in Option A.

No Commissioners expressed support for this option.

Option C would have created a separate new review process, whereby a design review application for detached units in the R-2 zone could be submitted to the Design Review Board only after a determination by the Planning Commission that the applicant had reasonably demonstrated that a detached two-family dwelling would be compatible with its surroundings from a land use standpoint. The Commission would use specific "guidelines" to evaluate the lot and the proposal in question, including an evaluation of the potential for detached units to reduce visual, privacy, environmental or other impacts based upon the subject lot and the surrounding pattern of development.

It appeared that Commissioners Greenberg, Snow and Stein favored Option C with some modifications.

Individual Commissioners also requested that the R-2 zone text amendments attempt to do the following:

Reflect a preference for two-family dwellings in one building rather than in two buildings, state why there is a preference and why approval of detached units should require a special exception.

Include a property’s permit history as a criterion for review.

Include restrictions on future subdivision or condominiumization of lots which are allowed to be developed with detached two-family dwellings.

Ensure the ability to place "conditions" on detached two-family dwelling exceptions.

Not use sSteep slope of a lot should not be as the sole factor for granting an exception.

Not use Aaccess from more than one street is often a poor solution and asshould not be a determining factor.

Express that establishing a minimum distance between buildings is not always be desirable.

Include Ccriteria for not allowing side and rear yard variances should be included.

Two Scenarios for Refinement of Option C

Option C would establish a separate review process before the Planning Commission for approval of Detached Two-Family Dwellings, prior to the filing of a design review application with the Design Review Board. Staff has identified two possible scenarios for implementing Option C. These are summarized as follows:

Scenario #1. Remove the use described as "two dwelling units in two buildings" from the Principal Permitted Uses list found in Section 2.05.01, and add it to the Conditional Uses Permitted list found in Section 2.05.02. Section 4.04.00, attached as Exhibit 3, would become the operable section of the Zoning Ordinance for review of detached units in the R-2 zone.

Scenario #2. Create a new permit process for Detached Two-Family Dwelling Permits in Subchapter 4 of the Zoning Ordinance. A new Section 4.13.00 would be added, setting forth the procedure for review of applications for detached two-family dwellings in the R-2 zone.

Draft zoning ordinance text amendments for Scenarios #1 and #2 are provided below, with double-underlining indicating text added to, and strike-though indicating text deleted from, the current Zoning Ordinance.

Scenario #1 Amendments (Conditional Use Permit)

Section 2.05.01 of the Tiburon Zoning Ordinance is amended to read as follows:

2.05.01 Principal Uses Permitted (R-2).

1. One single-family dwelling.

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 physical considerations in order to reduce visual, environmental, or other impacts.

3. Publicly owned park.

4. The providing of room and board for not more than one paying guest in each dwelling unit.

5. Nursery school, day care center, or preschool located in a single family dwelling and serving six or fewer children as defined and regulated by the California Health and Safety Code.

6. Intermediate or community care facilities (as defined by state law) or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code.

Section 2.05.02 of the Tiburon Zoning Ordinance is amended to read as follows:

2.05.02. Conditional Uses Permitted (R-2).

The following uses shall be permitted only when a Conditional Use Permit is granted therefore, as provided in Section 4.04.00 herein.

1. Church.

1.5. Two dwelling units in two buildings.

2. Nursery school, day care center, or preschool serving more than six children.

3. <Repealed by Ordinance No. 382 N.S.>

4. Parochial or other non-profit elementary or secondary school or college.

5. Private non-commercial club or recreational facility; civic club; or veteran organization.

6. Philanthropic or charitable building or facility.

7. Public utility and communication equipment building.

8. Publicly-owned building or facility.

9. Hospital.

10. Library or museum.

11. Playground.

12. Radio, microwave, and TV transmitter and broadcasting station, including amateur and professional.

13. Real estate tract office.

14. Additional specific uses which are, in the opinion of the Commission, similar or accessory to those uses listed above.

Scenario #2 Amendments (Detached Two-Family Dwelling Permit)

Section 2.05.01 of the Tiburon Zoning Ordinance is amended to read as follows:

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.

2.5. Two dwelling units in two buildings, provided that the Planning Commission has approved or conditionally approved a Detached Two-Family Dwelling Permit, as set forth in Section 4.13.00 of this chapter.

3. Publicly owned park.

4. The providing of room and board for not more than one paying guest in each dwelling unit.

5. Nursery school, day care center, or preschool located in a single family dwelling and serving six or fewer children as defined and regulated by the California Health and Safety Code.

6. Intermediate or community care facilities (as defined by state law) or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code.

Section 4.13 of the Tiburon Zoning Ordinance is added to read as follows:

4.13.06. Criteria for Review and Approval.

a. The lot area is adequate to reasonably accommodate two detached units in a functional site layout that substantially meets the land and structure regulations of the R-2 zone.

b. Physical conditions exist on the lot that render impractical or difficult the construction of attached units; or the site planning and superior land use compatibility benefits of detached units are clearly demonstrated for the lot.

c. Two dwelling units in two detached buildings would likely Rreductions e in visual, environmental, privacy or other impacts would likely occur as a result of two dwelling units in two detached buildings as compared to a probable attached two-family dwelling on the lot.

d. The permit history of the lot has been researched and provides no evidence of self-created hardship, self-created non-conformity, or other pattern of activity that would act to circumvent the purpose of this section.

Detached Two-Family Dwelling Permits shall expire and become null and void two (2) years after their effective date unless a subsequent zoning permit has been issued that further implements the project. In such case, the Detached Two-Family Dwelling Permit shall expire at the same time as the subsequently issued zoning permit.

 ANALYSIS

Both scenarios substantially increase the challenges involved in securing approval for a detached two-family dwelling, in terms of time, expense, and standard of review.

On the positive side, Scenario #1 would require fewer (and simpler) changes to the Zoning Ordinance. On the negative side, much of the text of Section 4.04.00 regulating conditional use permits is unrelated to the issues raised by detached two-family dwelling units, as Section 4.04 is primarily used to review commercial uses. Scenario #1 is probably an inferior option for this reason alone.

Scenario #2, on the positive side, would tailor the new section to the issues surrounding detached dwelling units in the R-2 zone, and would provide a clear permit process for the Planning Commission to address the land use compatibility issues over which it has previously expressed concern.

On the negative side, while Scenario #2 establishes a clear procedure for the Town, it is not at all clear precisely what materials an applicant would need to submit to convince the Planning Commission to approve a permit. Should an applicant design the buildings fully, as he would for a Design Review application? Should he be required to design and submit an alternate attached two-family dwelling project design against which to compare potential impacts? Should he simply let the physical characteristics of the lot, or of the surrounding pattern of development, be evaluated by the Commission without undertaking the great expense of designing actual buildings? What if the Planning Commission and Design Review Board reach conflicting conclusions on a project?

Staff believes that both scenarios create a time-consuming and not particularly efficient process, especially since the difference between an Attached Two-Family Dwelling and a Detached Two-Family Dwelling may be as minor as having a five foot separation between the two buildings (in order to meet fire access requirements).

A general principle of land use regulation is that the burden imposed by a new regulation should be roughly commensurate with the severity of the potential impact that the new regulation is seeking to address. Two formal permit processes involving two separate decision-making bodies, both with separate appeal opportunities, may be unnecessarily burdensome if a satisfactory method could be devised to provide the Design Review Board with clear policy direction and criteria for evaluation of land use compatibility issues.

For example, by specifying underlying policy, review criteria, and standardized conditions of approval (similar to those described in Scenario #2 above) into a "Detached Two-Family Dwelling Exception" procedure for the Design Review Board, a much more efficient process could result that still reaches the heart of the matter from a land use compatibility standpoint. The "exception" procedure could be set forth in a new section 2.05.04 of the Zoning Ordinance. Using this approach, the Planning Commission and Town Council would establish policy and criteria, and the Design Review Board would implement them.

Staff urges the Planning Commission to consider modifications to Option C based upon the above analysis. Staff has prepared a possible Scenario #3 for consideration:

Scenario #3 Amendments. Detached Two-Family Dwelling Exception.

Section 2.05.01 of the Tiburon Zoning Ordinance is revised to read as follows:

2.05.01 Principal Uses Permitted (R-2).

1. One single-family dwelling.

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 physical considerations in order to reduce visual, environmental, or other impacts.

2.5. Two dwelling units in two buildings, provided that the Design Review Board has approved or conditionally approved a Detached Two-Family Dwelling Exception, as set forth in Section 2.05.04.

3. Publicly owned park.

4. The providing of room and board for not more than one paying guest in each dwelling unit.

5. Nursery school, day care center, or preschool located in a single family dwelling and serving six or fewer children as defined and regulated by the California Health and Safety Code.

6. Intermediate or community care facilities (as defined by state law) or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code.

Section 2.05.04 (A) through Section 2.05.04 (I) of the Tiburon Zoning Ordinance areSections 2.05.04 (A) through Section 2.05.04 (I) of the Tiburon Zoning Ordinance are added to read as follows:

Following the denial of an application for Detached Two-Family Dwelling Exception, no application for the same or substantially the same exception shall be filed within one year of the date of denial unless the denial is made without prejudice.

Miscellaneous Zoning Text Amendments

Modification to RMP (Residential Multiple Planned) Zone

The RMP zone is the only other zoning district besides R-2 in which two-family dwellings are an allowed use. RMP zones are scattered throughout Tiburon and are not limited to Old Tiburon. Staff sees no reason why detached two-family dwellings should be permitted in a "planned" residential zone. Therefore, the following amendment is proposed:

Section 2.08.01 of the Tiburon Zoning Ordinance is amended to read as follows:

2.08.01. Principal Uses Permitted (RMP).

1. Single family dwelling.

1.5 Attached Two-family dwelling.

2. Multi-family dwelling.

3. Dwelling group.

4. Provide room and board for not more than one paying guest in a single family dwelling.

5. Public park or open space use.

6. Nursery school, day care center, or preschool located in a single family dwelling and serving six or fewer children as defined and regulated by California Health and Safety Code.

7. Intermediate or community care facilities (as defined by state law) or any other residential care facility for the handicapped (as defined by the Fair Housing Act) located in a single family dwelling. All such facilities shall be subject to all regulations of the California Health and Safety Code.

Design Review for Parking Lots & Limits on Parking in Front Yard Setbacks

Staff believes there is a need for design review of modifications to commercial or larger residential parking lots, which are currently unregulated. The concern is that unregulated modifications to existing parking lots may preclude opportunities to modernize stall sizes, improve back-up distances, apply appropriate landscaping, or upgrade circulation patterns in older parking lots. Recommended text is found below.

Also, tThe Town has recently received letters from several residents expressing concern that there are currently no formal restrictions on the amount of parking that is allowed in the front yard of residential lots (see Exhibit 4). The concern is that lot owners may choose to "pave over" considerable portions of their front yard for parking of vehicles without the need for any permits from the Town of Tiburon.

The Planning Commission tangentially discussed the concept of limiting front yard parking during the rewrite of the Zoning Ordinance in 1989/1990. At that time, the primary concern was that the parking of vehicles was not restricted to improved parking areas (i.e., cars could park on lawns). In 1990, the Town created Section 5.06.04(d) to address this issue as follows:

(d) In any residential zone, a front yard shall not be used for storage of junk materials as described in Subchapter 1 under the definition of "junkyard". This restriction includes the storage of operable or inoperable vehicles in areas other than improved parking areas.

The concern being expressed at this time is that the "paving over" of front yard areas is essentially unregulated. While Town Staff is not aware that paving over front yards for parking purposes is a current or growing problem in Tiburon, the Commission may wish to consider whether some regulation addressing the issue should be created. This issue is not easily addressed through a zoning permit process, and will definitely be difficult to enforce and to spread awareness of the requirement. Nearly all contractors know that at-grade paving on private property does not require a building permit, and almost universally does not require a municipal permit of any kind. A contractor or homeowner would not intuitively conclude that a permit is required to perform such work.

That said, should the Commission wish to impose regulation in this area,If so, Staff has prepared the suggests the following zoning text amendments for consideration:

Section 5.06.04(d) is amended to read as follows:

(d) In any residential zone, a front yard shall not be used for the storage of junk materials as described in Subchapter 1 under the definition of "junkyard". This restriction includes the parking storage of operable or inoperable vehicles in areas other than improved parking areas on an improved parking surface, as defined in this Chapter.

Section 5.06.04(e) of the Tiburon Zoning Ordinance is renumbered to become Section 5.06.04 (f).

A new Section 5.06.04(e) of the Tiburon Zoning Ordinance is added to read as follows:

(e) In any required front yard in a residential zone, the creation or establishment of more than two non-tandem, open or uncovered parking spaces (or other areas capable of being used for parking) on an improved parking surface, shall require Site Plan & Architectural Review approval as provided in Section 4.02.02 of this Chapter. The purpose of this regulation is to prevent excessive use of required front yards for the parking of vehicles.

Subsections (f) and (g) are hereby added to Section 4.02.02 of the Tiburon Zoning Ordinance to read as follows:

(f) Modifications to the layout or design of parking lots located in a non-residential zone, or in any parking lot or parking area containing more than ten (10) parking spaces that is located in an R-3 or RMP zone. This excludes simple repainting of existing stall lines absent any substantive modifications.

(g) Creation or establishment of more than two non-tandem, open or uncovered parking spaces (or other areas capable of being used for parking) on an improved parking surface, if located in a required front yard on any lot in a residential zone.[Insert from Brian]

Definition Changes

Several new definitions, and several changes to existing definitions within the Zoning Ordinance are recommended, some in response to the proposed R-2 zone changes and front yard parking changes, and others to achieve consistency with current staff positions and other municipal code chapters. These modifications to definitions are as follows, with new text being double-underlined and deleted text being struck-through.

New Definitions

Planning Division: The division of the Community Development Department charged with responsibility for the current and advance planning functions of the Town of Tiburon, including land use regulation, zoning permits and enforcement thereof.

Revised Definitions

Community Development Department: See Planning Department. The Planning Division and the Building Division of the Town of Tiburon, which together are charged with implementing the land use regulations of the Town and providing staff support to the various Boards, Commissions, and the Town Council.

Director: The Planning Director, or his designee. See Director of Community Development.

Dwelling, Two-Family: Two dwelling units located 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. An Attached Two-Family Dwelling or a Detached Two-Family Dwelling, as defined herein.

Planning Department: The branch of Town government charged with implementing the land use regulations of the Town and providing staff support to the various Boards, Commissions, and the Town Council. See Planning Division.

Planning Director: The Director of the Town's Planning & Building Department. The Planning Director is primarily responsible for the administration of this Chapter. See Director of Community Development.

Notification of Proposed Text Amendments

Notification of the proposed zoning text amendments was provided through a quarter page display advertisement in The Ark,Ark and through mailed notice to all property owners in Old Tiburon. Notice was also sent to speakers at prior meetings on this topic and to persons who submitted correspondence prior to the report date.

RECOMMENDATION

Hold a public hearing on the item.

Discuss and make any desired changes or refinements to the zoning text amendments, and provide direction to Staff regarding text amendments to address parking limitations in front yard setbacks.

If appropriate, direct Staff to prepare a Resolution for consideration at the next meeting, recommending approval of the zoning text amendments to the Town Council.