To: HONORABLE MAYOR AND From: Stephen M. Haase[PL1]
CITY COUNCIL
Subject: SEE BELOW Date: October 29, 2003
COUNCIL DISTRICT: 6
SUBJECT: PDC03-060. PLANNED DEVELOPMENT
REZONING OF A 0.15 GROSS ACRE SITE LOCATED ON EAST SIDE OF BIRD AVENUE
APPROXIMATELY 490 FEET NORTHEASTERLY OF SNYDER AVENUE TO ALLOW A HALF-STORY
OFFICE WITHIN AN EXISTING ACCESSORY BUILDING.
RECOMMENDATION
The Planning Commission voted 7-0-0 to recommend that the City Council DENY the subject rezoning.
BACKGROUND
On September 24, 2003, the Planning Commission opened the public hearing to consider a Planned Development from R-1-8 Residence Zoning District to A(PD) Planned Development Zoning District to allow a half-story office within an existing accessory building.
The applicant, Mr. Davis, spoke in support of the project and stated he disagreed with Planning staff’s recommended denial. He indicated that a Planned Development Zoning is an appropriate process to allow living space in accessory structures and stated that other property owners are able to file a Planned Development Rezoning application should they wish to pursue a similar use in accessory structures. Mr. Davis also indicated that State law permits second units as of right in single family residential zoning districts and expressed concern that the City attorney’s office had not fully responded to his queries regarding how this law is implemented in San Jose. He said the neighborhood’s integrity would not be undermined in any way by allowing the second floor of his accessory structure to function as a home office. He stated that his assistant employee collects papers and uses the office two to four hours a week.
Three members of the public spoke in opposition to the proposal. All three stated they were extremely concerned that Mr. Davis knowingly violated the City’s laws and procedures and had now filed an application to legalize his home office. They further stated that Mr. Davis had deceived his immediate neighbors and the City by requesting permits originally only for a garage with a taller pitched roof to match his historic home, while he intended to finish the second story space for living space purposes.
One citizen stated that she had illegally converted an accessory structure to a studio apartment for a relative 10 years ago, but removed the illegal studio apartment fixtures and converted the structure back into an accessory structure that met the Zoning Code requirements after citation by the City’s Code Enforcement Department. She indicated that should Mr. Davis’ request be approved, she would pursue permits for a separate studio apartment in her accessory structure.
The Planning Commission then closed the public hearing.
Commissioner Zito asked for clarification from the City Attorney regarding the rationale and findings that the Commission would have to make in order to support the proposal. He questioned how adding square footage to an existing residence for the purpose of a home office differed from allowing a home office in an accessory building.
Staff explained that the Commission’s recommendation to Council must be clearly based on the Council’s adopted land use policies found in the General Plan. Additionally, staff clarified that Planned Development zonings must be very clear in terms of permitted uses and must further goals and policies in the General Plan. Staff stated that the subject property is designated Medium Low Density Residential (8DU/AC) in the General Plan and an office with employees as a commercial use would not conform to this General Plan designation. Staff expressed concern that this property would enjoy benefits other similar properties in the surrounding single-family area do not enjoy, and reiterated that the Commission would need to make findings to support a home office in an accessory structure, and be able to articulate how the use would further the goals of the General Plan.
In response to a Commissioner question, staff clarified the Development Variance process and stated certain findings such as a property’s unique topography or shape need to be made in order to support a variance. Staff explained that a variance was filed for this particular proposal (File No. V03-001) and was denied because the findings could not be made.
Commissioner Zamora asked staff to discuss the subject proposal’s conformance with the General Plan goals. He suggested the proposal would facilitate work opportunities near residences and would reduce commuting. He also stated that home offices and living space in accessory structures are requested by residents all the time and that it may be time to consider a change in the Code to allow conditioned living space in accessory structures. Commissioner Zamora also mentioned the General Plan’s “Two Acre Rule” and questioned whether a second unit could be approved by increasing the density on the site using that Discretionary Alternate Use Policy.
Staff stated that the proposal does not meet the General Plan designation of Medium Low Density Residential (8DU/AC). The City Attorney reminded the Commission of the need to work within the existing policies and regulations approved by City Council. While the General Plan includes a Discretionary Alternate Use Policy that provides that parcels under two acres may be developed at a higher or lower density range, the Plan prefaces use of this “Two Acre Rule” as appropriate to respond to site characteristics or constraints, neighborhood compatibility issues, and isolated infill opportunity sites. Staff indicated that under this policy it would not be appropriate to allow a second dwelling unit through the Planned Development Zoning process for a single family property located within a large neighborhood of similarly-situated properties that would not enjoy the same benefit. Staff stated that a Council Committee is reviewing the issue of second units and that the Council welcomes statements and recommendation from the Commission regarding policy issues. Staff reiterated that all current projects should be reviewed by staff and the commission in light of existing General Plan policies, the Zoning Ordinance and other Council approved policies. Staff concluded that in this case the subject proposal does not conform to Council approved policies or the Zoning Code.
Staff further clarified that a home office within a separate dwelling unit would need to conform to the home occupation provisions of Title 20. The applicant has indicated that his proposed use generally conforms to the home occupation requirements, except that he has an employee, an assistant, who works on the site an average of 2 to 4 hours per week. Under the City’s home occupation requirements, only occupants of a dwelling may be employees or volunteers of a business operated in a dwelling as a home occupation. Based on this clarification from the applicant, staff concludes that even with approval of the garage structure on this site as a second dwelling unit, the applicant’s proposed office use would not be allowed as a home occupation.
Commissioner Zito stated that good law changes start somewhere. He expressed concern that living space is not allowed in accessory structures, yet a property owner may expand a single-family residence to accommodate a home office. In his opinion, a large home with five bedrooms and a home office would likely generate the same parking problems as a residence with a home office in an accessory structure. He opined that the location of the living space should not make a difference in how the proposal is evaluated. He also said that an in-law unit or second dwelling unit could make sense and help provide affordable housing, income to a homeowner and infill housing in centrally-located neighborhoods. He also pointed out that the Evergreen Specific Plan permits carriage house units with livable space in some areas.
Commissioner Levy agreed with Commissioners Zito and Zamora that the City needs to take a close look at accessory structures and so-called granny flats. He stated that the nature of the City is changing and that more people work from their homes and that land must be used efficiently to stay within the Urban Growth Boundary. He said the current Council policies may be out of date, but that the Planning Commission must delineate and make decisions within the bounds of the existing policies. He continued to say that there may be times to “bend the rules”, but he felt this particular application with its history of permit violations was not an appropriate one. Commissioner Levy introduced a motion to recommend denial of the subject rezoning.
Commissioner Dhillon stated that he believes the Planned Development Zoning process is expensive and onerous. He stated that the Zoning Code should be amended to allow living space in accessory structures and which would be applied equitably to all properties within the City.
Commissioner Zamora stated that he couldn’t support the motion to deny the rezoning. He stated that this applicant has experienced significant delays and is trying to get permits to correct his errors. He said that the integrity of the main house is beautiful, and felt a denial of 580 square feet of living space in an existing accessory structure was not appropriate.
Commissioner Zito again stated that the existing Code restrictions placed on accessory structures did not make sense. He did not support “breaking” the law, but working to fix it. He stated that although he doesn’t agree with the current regulations, residents and developers should follow the law. He noted that this applicant had violated the Code and the law on several occasions.
Commissioner Levy agreed that the applicant’s proposal is clearly not in line with the General Plan or Zoning Ordinance and that he felt it is clear the Ordinance should be updated. However, he cautioned that if this application were approved under the current Code, it would send the wrong message to other citizens. He stated that there are many reasons to deny the subject application and that the applicant lacks credibility.
Commissioner Campos stated that the Commission should practice forgiveness and learning from mistakes. He added that he felt the Commission needed to make a statement about the extremely restrictive code regulations that govern the uses of accessory structures. He felt that Council and the City should look seriously at this issue and explore amending the Zoning Code.
The Commission then voted on the motion to recommend denial and it failed 3-4-0 (Zamora, James, Campos, and Dhillon opposed).
Commissioner Dhillon requested that staff develop appropriate development standards restricting the use of the accessory structure for home occupation use only. He also questioned whether the accessory structure could be attached to the existing residence. Staff stated attaching the house and the garage via an addition could compromise the historic status and integrity of the residence and that to incorporate the two structures with an integral roof structure would be a significant challenge.
Commissioner Zito asked why the Deputy Director had recommended that the applicant file a Planned Development Zoning if it did not conform with the City’s policies and regulations, and if staff could not support it. Staff stated that the applicant was advised to file a Planned Development Zoning as a means to exhaust administrative remedies. Staff stated that the applicant, Mr. Davis was advised that the Planning Department would not support a Planned Development Zoning for this proposal.
Commissioner Dhillon stated that the Commission could forward a recommendation to Council and that the Council would make the final decision. He felt the Commission should recommend the proposal be approved as living space, not for commercial use, and felt that this proposal would make a good second unit.
Commissioner Zito echoed that he felt that changes to the Zoning Ordinance are warranted that that the Commission should provide a resolution or formal statement to the Council. He felt that given the current economic climate, alternative solutions for family members and home offices need to be accommodated in the City.
Commissioner Zamora stated that he felt the current proposal is in line with General Plan policies because it will improve people working close to home and increase the number of housing units.
Commissioner James stated he felt it was a good idea to recommend a change to the Zoning Ordinance regarding the use of accessory structures to Council.
Commissioner Platten recommended the Commission defer their decision to October 22, 2003 because the issues were difficult to frame and that the questions were still unresolved.
Chair James agreed that deferring further discussion to October 22, 2003 was warranted.
The Commission voted 7-0-0 to defer the application to October 22, 2003. The Commission also appointed Commissioners Zito and Dhillon to comprise a subcommittee to work with Planning staff and the City Attorney’s office to develop recommendations for Zoning Code changes to forward to the Council’s Building a Strong Economy (BSE) Committee to enhance flexibility in on-site living space in single-family neighborhoods.
On October 22, 2003 the Commission reopened the public hearing. Staff gave a brief supplemental staff report. Staff clarified that there are three possible use scenarios for approval of a proposed Planned Development Zoning that would allow the applicant to retain the 530 square-foot half story and office use that the Commission appeared to be considering. These scenarios included: 1) use of the half story for a home office within the accessory building; 2) use of the half story for a commercial office within the accessory building; and 3) connection of the garage to the house and use of the half-story space as a home office incorporated within the residence. Staff further stated three additional pieces of correspondence had been received since the last Commission hearing. Additionally, staff noted that the applicant was informed verbally prior to submitting the Planned Development zoning that staff did not support rezoning the property, but the applicant the right to exhaust all potential administrative remedies. Staff also cited a July 31, 2003 letter sent to the applicant that stated staff did not support the subject rezoning and recommended the applicant withdraw the application. The letter further stated that the subject application would be set for the September 24, 2003, Planning Commission hearing with a denial recommendation if a withdrawal was not received in a timely manner.
The applicant, Mr. Davis, was not in attendance at the hearing. Four members of the public spoke in opposition to the project citing that the use of the second floor of the accessory structure as a home office or other type of living space was illegally constructed, did not meet Code and should be denied. One member expressed disappointment with the Commission for appearing determined to find a solution to Mr. Davis that was not in conformance with City policies.
The Commission then closed the public hearing.
Commissioner Zito stated that he and Commissioner Dhillon met with staff to work on recommending a solution to the larger problem of acceptable uses of accessory structures. He continued to say that he and Commissioner Dhillon have made some progress with respect to this issue, but that work to date would not support the second-story living space in the accessory structure that the subject rezoning proposes.
Commissioner Levy recommended that the Commission accept staff’s recommendation and recommend denial of the subject rezoning. He stated the living space was blatantly illegal and that the applicant disregarded the law when constructing it. He continued to say that the Commission must abide by the City’s current goals and policies, and send the right message to the Council and the community. The use of the structure as proposed is illegal and not justified for this single parcel and that a broader study of accessory structures and secondary living units is warranted.
Commissioner Zamora indicated he supported the motion to deny with regret. He supported the effort to explore the expanded uses of accessory structures and felt that the current Zoning Code is too limiting. He stated that he believes current guidelines and polices for accessory structures and secondary living areas is too constrained. He said that allowing a wider variety of uses in accessory structures could relieve congestion and further General Plan goals to accommodate affordable housing in the City.
Commissioner Zito agreed with Commissioner Zamora and stated that the City’s effort to study issues related to secondary units and accessory structures working with a Council Subcommittee was the appropriate method to propose a change to the laws. He felt it was time to find creative solutions to accommodate a wider variety of uses in accessory structures.
Commissioner Campos also reluctantly supported the motion. He said that San Jose is a large city with diverse family types with differing needs. He also said he looks forward to a change in the General Plan and the Zoning Code to correct the problems of overly restrictive uses of accessory structures and lack of granny units.
Chair James agreed that there is an urgent need for affordable housing in the City and second units could be an appropriate tool to use to alleviate the problem. He also looks forward to City policies and regulations changing to support living space in accessory structures and second units on single-family lots.
The Commission voted 7-0-0 to recommend denial of the proposed rezoning.
PUBLIC OUTREACH
A notice of the public hearing was distributed to the owners and tenants of all properties located within 1,000 feet of the project site.
COORDINATION
As standard procedure in the development review process, this project was coordinated with the Department of Public Works, Fire Department, Police Department, Environmental Services Department and the City Attorney.
CEQA
Under the provisions of Section 15303(e) of CEQA this project is exempt from the environmental review requirements of Title 21 of the San Jose municipal Code, implementing the California Quality Act of 1970, as amended in that the project consists of minor modification and conversion of an existing small structure from one use to another.
STEPHEN M. HAASE, AICP
Secretary, Planning Commission