KEVIN BRYANT, ADVANCE PLANNER

SUBJECT: Z 2003-03: TOWN-INITIATED TEXT AMENDMENTS TO THE TIBURON MUNICIPAL CODE CHAPTER 16 (ZONING ORDINANCE) AND CHAPTER 16A (SIGN ORDINANCE)

The Town has initiated several amendments to the Zoning Ordinance and an amendment to the sign code as part of a periodic update to address issues and code sections that have been identified through actual use as in need of review and/or refinement. These amendments include:

Each proposed amendment is discussed separately below.

ANALYSIS

1. Indemnification Provisions in Application Procedures

The Town of Tiburon currently has a written policy requiring that applicants must agree to indemnify, defend, and hold the Town harmless from any losses or litigation or claims arising from the Town’s approval of any land development application. This language recognizes that the requested approval is for the benefit of the applicant, and keeps the Town from incurring potentially substantial legal costs in the defense of such an application.

Current Regulatory Framework

The Towns’ land development application form (required as part of all planning, design review and subdivision applications) currently contains the following statement that must be accompanied by the signature of the property owner or his/her legally appointed representative:

"I understand that the requested approval is for my benefit (or that of my principal). Therefore, if the Town grants the approval, with or without conditions, and that action is challenged by a third party, I will be responsible for defending against this challenge. I therefore agree to accept this responsibility for defense at the request of the Town and also agree to defend, indemnify and hold the Town harmless from any costs, claims or liabilities arising from the approval, including, without limitations, any award of attorney fees that might result from the third party challenge."

Section 16-3.1.1 of the Tiburon Municipal Code outlines the procedures for filing planning and design review applications:

"Applications for permits governed by this chapter shall be made on forms furnished by the planning department. The owner of the property for which any application is submitted, or the agent or authorized representative of the owner, shall file the application with the planning department. Potential applicants are encouraged to consult with town planning staff prior to application."

"Applications shall be full and complete, including all information required for the presentation of necessary facts for the permanent record and to assist in determining the merits of the application. Handouts and instructions listing submittal requirements shall be obtained from the planning department."

The Town Attorney strongly recommends that a requirement to indemnify, defend and hold the Town harmless from any losses, litigation or other claims arising from the Town’s approval or conditional approval of the application should be included in this section. In addition, it is recommended that this portion of the code be updated to reflect the title of the Community Development Department.

Recommendation

It is recommended that Section 16-3.1.1 be amended to read as follows:

"Applications for permits governed by this chapter shall be made on forms furnished by the Community Development Department. The owner of the property for which any application is submitted, or the agent or authorized representative of the owner, shall file the application with the Community Development Department. Potential applicants are encouraged to consult with town planning staff prior to application."

"Applications shall be full and complete, including all information required for the presentation of necessary facts for the permanent record and to assist in determining the merits of the application. Handouts and instructions listing submittal requirements shall be obtained from the Community Development Department."

"The application shall be accompanied by a written statement of the property owner, or his/her legally appointed representative, agreeing that if the Town grants the approval, with or without conditions, and that action is challenged by a third party, the property owner will be responsible for defending against this challenge. The property owner shall also agree to defend, indemnify and hold the Town harmless from any costs, claims or liabilities arising from the approval, including, without limitations, any award of attorney’s fees that might result from the third party challenge."

2. Modifications to Housing Density Bonus Provisions

Assembly Bill 1866, signed by Governor Davis on September 29, 2002, amended Section 65915 of the California Government Code, commonly known as the "density bonus law". The Town of Tiburon implements the density bonus law through provisions of Section 16-6.6 of its Municipal Code.

Prior to AB 1866, an applicant could submit a preliminary proposal for the development of housing pursuant to the density bonus law prior to the submittal of formal applications. The local government then had 90 days to notify the applicant how it would comply with the density bonus law.

Under the changes in the law, an applicant may now submit a request for specific incentives. The local government is required to grant the concession unless certain written findings are made. New subsection (b) of Section 16-6.6 (Density Bonuses) takes language directly from the state law to comply with the change.

AB 1866 also added a new category of affordability for the purpose of defining when a density bonus is required. Now housing projects which provide twenty percent of the total units in a condominium project for moderate income households are awarded a density bonus of ten percent. This change has been reflected in the proposed change in subsection (a) of Section 16-6.6.

Finally, it is proposed that the original subsection (b), relating to senior housing projects, be deleted because state law defines "qualifying residents" as a person 62 years of age or older, or 55 years of age or older in a senior citizen housing development (Civil Code Section 51.3(b)(1)). This makes subsection (b) redundant with subsection (a).

Recommendation

Staff recommends that Section 16-6.6 be amended to read as follows:

(a) Pursuant to Government Code Section 65915 et seq., the town shall provide density bonuses of twenty-five percent for qualifying projects which provide twenty percent of the total units of a residential development for lower income households, ten percent of the total units of a residential development for very low income households, or fifty percent of the total units of a residential development for qualifying residents; or the town shall provide a density bonus of ten percent for condominium projects which provide twenty percent of the total units for moderate income households, in addition to the other incentives described in sections 16-6.3(g), (h), (i) and (j).

(b) Applicants who propose residential development which complies with the affordability requirements described in section (a) may submit to the Town a proposal for the specific incentive described in sections 16-6.3(g), (h), (i) and (j). The Town shall award the incentive unless either of the following written findings is made based upon substantial evidence:

(1) The incentive is not required in order to provide for affordable housing costs, or

(2) The incentive would have a specific adverse impact upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low and moderate income households.

(b) Pursuant to general plan housing element policy H-27, the town shall consider density bonuses for qualifying senior housing projects, in addition to the other incentives described in sections 16-6.3(g), (h), (i) and (j).

(c) Pursuant to general plan housing element policy H-15, The town shall grant density bonuses which allow the re-establishment of developments containing affordable housing units when such developments are destroyed by fire, earthquake, or similar disaster, even when such developments may exceed current allowable densities.

3. Height Restrictions for Walls and Fences in Required Yards

This issue has been raised in response to commonly occurring situations in many residential areas of Tiburon where there is a difference in elevation between adjacent yards. In many of these instances, a retaining wall has been constructed along the property line, creating a clear difference in the levels of the adjoining yards. Requests to construct a 6 foot tall fence on top of such retaining walls to provide adequate privacy for the neighboring property owners may only be approved with a variance for excess fence and wall height, due to the Town’s current requirement that fences and walls either separately or in combination not exceed a height of 6 feet within required yard setbacks.

Current Regulatory Framework

The Town’s current regulations for the height of walls and fences within required yards are set forth in Section 16-5.6.4 (B[2]) of the Municipal Code as follows:

"A fence, wall, or retaining wall shall not exceed six (6) feet in height in any yard."

The calculation of the height of a wall or fence is defined by Section 16-5.6.7 as follows:

"Height is the plumb vertical distance, measured using a plane, established by the lower of the natural or finished grade at the perimeter of the exterior surface of the building, structure, fence, or wall."

The height of a fence on top of a retaining wall is therefore measured from the top of the fence to the point where the lower portion of the retaining wall meets the finished or natural grade. For example, a 6 foot tall wooden fence constructed on top of a 3 foot tall retaining wall would be considered to be a 9 foot tall structure, even though the apparent height on the uphill side would only be 6 feet. This is because the apparent height on the downhill side would be 9 feet.

In the past, some applicants have attempted to skirt this requirement by proposing to construct a 6 foot tall fence mere inches from a retaining wall, with the intent of having these structures determined to be separate walls and/or fences for purposes of height calculation. As such construction has the same visual impact on property owners downhill from the wall as that of a taller structure, the Community Development Department adopted a policy years ago stating that there must be a 3 foot horizontal separation between walls and/or fences before the heights of such structures are individually calculated. Without such a separation, the wall and fence would be considered a single structure for purposes of height measurement.

Numerous lots in Tiburon have relatively level yard areas that have different elevations than the yard areas of adjoining lots, with a retaining wall along the common property line. A fence on top of the retaining wall in compliance with the Town’s maximum height requirements often does not provide adequate privacy separation between these yard areas. For example, a fence no taller than 3 feet could be constructed on top of a 3 foot tall retaining wall; such a structure would appear to have a height of 6 feet when viewed from the lower side and a height of 3 feet when viewed from the upper side. However, such a fence would allow people in the upper yard to easily look down into the yard of the lower property, resulting in unwanted privacy impacts for the residents of the lower lot.

In the recent past, the Design Review Board has approved a number of variances for excess walls and fence heights to mitigate such concerns. In each of these cases, the Board determined that the difference in lot elevations was a special physical circumstance, and that the strict application of the fence and wall height requirements would result in an unnecessary hardship on the property owners. However, the growing number of such applications has prompted discussion regarding the potential need to amend these zoning requirements, rather than requiring each property owner in such circumstances to apply for a variance.

The Design Review Board also often considers variance requests for overheight fences as a means of keeping deer out of a property. Such fences usually have the same height on both sides of the fence, with the appearance of a fence over 6 feet in height when viewed from either side. It is recommended that the Town continue to require variances for such fences, with the Board evaluating each application on an individual basis.

Discussion at Planning Commission/Design Review Board Workshop

This issue was discussed at the Planning Commission/Design Review Board Workshop held on May 8, 2003. There appeared to be a consensus from both bodies that the wall and fence height regulations should be reviewed and possibly modified to address these issues.

Recommendation

There appear to be enough residential properties in Tiburon with shared physical circumstances that create the necessity for walls and/or fences taller than 6 feet along common property lines to avoid unnecessary privacy impacts. Therefore, it is recommended that Section 16-5.6.4 (B[2]) be amended to read as follows:

"A fence, wall, or retaining wall shall not exceed six (6) feet in height in any yard, unless all of the following conditions are met:

The fence and/or wall is located along a private residential property line shared with another private residential property;

There is a difference in surface elevation between the two adjoining properties along the property line upon which the proposed fence and/or wall is to be located;

The fence and/or wall would have a maximum height of six (6) feet on the upper side of the structure; and a maximum height on the lower side of the structure of six (6) feet plus the difference in surface elevation between the adjoining yard areas at the property line, but in no instance more than nine (9) feet;

The Acting Body determines that a fence and/or wall with a height of six (6) feet on the lower side of the structure would not provide an effective privacy screen for the adjoining properties; and

The Acting Body determines that the proposed fence would not result in significant view obstruction or visual impacts on properties in the vicinity.

In addition, it is recommended that the Town’s policy regarding the 3 foot horizontal separation between walls and/or fences be codified by adding Municipal Code Section 16-5.6.7 (e) as follows:

"If two or more fences or walls are constructed with a separation of three (3) feet or less between the faces of the structures, the height of the respective structures shall be combined to determine the total wall or fence height. If the walls and/or fences are separated by a horizontal distance greater than three (3) feet, the heights of the structures shall be calculated separately."

4. Prohibition of Internally Illuminated Box-type Signs

The Town has recently adopted the Downtown Tiburon Design Handbook. The handbook contains design concepts and guidelines for buildings, storefronts and streetscapes within Downtown Tiburon.

The handbook includes guidelines for signs and awnings, with recommendations for appropriate types of signs, materials, locations and sources of illumination. The handbook also includes a list of sign types that are deemed to be "inappropriate and, in almost all cases, prohibited in Downtown Tiburon." Internally-illuminated, metal-frame "box" signs are included on the list of prohibited signs. A suggestion has been made to also prohibit these signs in the Tiburon Sign Ordinance. The Town has purposely not approved any such signs for several years.

Current Regulatory Framework

Chapter 16A of the Tiburon Municipal Code contains the Sign Ordinance, which provides standards and procedures for the review of new signs. Section 16A-8 of the Sign Ordinance prohibits the following signs:

(a) Moving signs (including pennants, airborne balloons, moving or flashing lights, and other nonstationary devices)

(b) Off-site signs (advertising signs which are not located on the property or premises of the use, business or service or which they advertise)

(c) Roof signs (signs erected upon or over the roof or parapet of any building)

(d) Vehicle signs (advertising signs attached to or suspended from a motor vehicle, such that the primary purpose of the vehicle is the display of the signs)

Roof signs and moving signs are also included in the list of prohibited signs in the Downtown Design Handbook.

The Sign Ordinance regulates signs throughout Tiburon, including other commercial and office areas outside of the Downtown area. An amendment to the Sign Ordinance that would add another type of sign to the list of prohibited signs would affect other commercial properties, including the Cove shopping center and the office building at the intersection of Tiburon Boulevard and Mar West Street.

During the review of the Downtown Design Handbook, internally-illuminated, metal-frame "box" signs were determined to be inconsistent with the desired visual character and appearance for businesses in Tiburon. The prohibition of such signs in the Sign Ordinance would also improve the consistency between the Downtown Design Handbook and the Sign Ordinance.

Recommendation

It is recommended that Section 16A-8 (e) of the Tiburon Municipal Code be added to read as follows:

(e) Internally illuminated, box-type signs

 5. Modifications to Uses Allowed in the P (Public/Quasi-Public) Zone

The P (Public/Quasi-Public) zone in Tiburon contains a rather broad range of uses, including government buildings (including town hall, library, fire stations); parks; public schools; water tanks, sewage treatment facilities, and private recreational clubs and facilities.

Staff believes that the distribution of "Permitted Uses" and "Conditional Uses" needs adjustment in order for the Town to better regulate certain types of uses on such lands. More specifically, Staff believes that parks and open spaces should be the only uses allowed by right, and all other uses should require a conditional use permit. This change would primarily have the potential to affect "governmental buildings and facilities" and "utility facilities". Of course, government agencies such as public schools, fire, water, and sewer districts have the authority under state law to exempt projects on their own property from the Town’s regulations should they so choose, at least for projects directly related to purpose and function of the agency. For example, the water district does not need the Town’s permission to replace or install a new water tank on its own property; nor does a public school district need Town permits to construct classroom or other school additions.

Recommendation

Staff recommends that Sections 16-2.13.1 and 16-2.13.2 of the Tiburon Municipal Code should be modified to read as follows:

16-2.13.1 Permitted uses (P).

(a) Parks and ancillary improvements thereto open spaces;

(b) Open Spaces and ancillary improvements thereto; Governmental buildings and facilities;

(c) Utility facilities.

16-2.13.2 Conditional uses permitted (P).

The uses listed below shall be permitted only when a conditional use permit is granted, as provided in section 16-4.4. Other uses may be added to this list by resolution of the planning commission.

(a) Educational facilities;

(b) Buildings or and F facilities operated by public/non-profit agencies;

(c) Recreational buildings or and facilities;

(d) Utility buildings or facilities;

(e) Governmental buildings or facilities;

(d) (f) Additional specific uses which are, in the opinion of the commission, similar or accessory to those uses listed above.

6. Rezoning of Certain Properties Secured as Open Space

Staff will be proposing that several properties and portions of properties that have either been purchased, dedicated, or protected by easement as open space be rezoned to the OS zoning designation. However, in order to provide better individual property owner notice, Staff will need additional time and recommends that this portion of the amendments be continued to the Planning Commission meeting of August 13, 2003. As the rezonings are unrelated to any of the other amendments proposed, the Commission may take separate action at a later date on the rezoning item.

Recommendation

Staff recommends that the rezoning item be continued without discussion to the Planning Commission meeting of August 13, 2003.

RECOMMENDATION

Hold a public hearing on the proposed text amendments to the Tiburon Municipal Code.

Discuss and make any desired changes or refinements to the draft amendments.

Adopt the Resolution recommending approval of the proposed text amendments to the Town Council.

EXHIBITS