Code Section: 205 (b)

Subject: Temporary uses in other than C or M Districts

Effective Date: 6/90

Interpretation:

   This Section states that, "uses listed in Section 205.1 and uses listed in Section 205.2 if located in a C or M District may be authorized by the Zoning Administrator." The phrase, "located in a C or M Districtmodifies only the reference to Section 205.2, not Section 205.1. Therefore, the Zoning Administrator could authorize those uses listed in Section 205.1 even though not located in a C or M District.

Code Section: 205.2 (a)

Subject: Gas station detox equipment

Effective Date: 10/91

Interpretation:

   Groundwater detoxification monitoring equipment placed on the ground in the open and surrounded by a fence is comparable to the temporary uses allowed under this Section and therefore can be authorized under the procedures found therein. For purposes of this Section, this applies also to the NC Districts.

Code Section: 206.6 (e) and 415A.5

Subject:   State Density Bonus Projects and Planning Commission Approvals

Effective Date:   09/24

Interpretation:

   Ordinance No. 187-23 became effective on October 15, 2023. Among other things, it added Section 415A et seq. to the Planning Code, which provides an administrative path for certain previously approved projects to reduce their inclusionary housing obligations. Pursuant to Section 415A.5 and Planning Commission Resolution No. 21353, the Planning Commission delegated authority to the Planning Director to administratively amend certain conditions of approval related to inclusionary housing obligations for eligible projects. Projects that propose a “significant modification,” however, would continue to require a Planning Commission hearing per Section 415A.5.(a) to approve the modified project.

   Ordinance No. 248-23 subsequently became effective on January 14, 2024. Among other things, it amended Section 206.6(e) to exempt most Individually Requested State Density Bonus projects from Planning Commission approvals that would otherwise be required, with some caveats.

   This interpretation addresses whether a “Pipeline Project” per Section 415A.2 that proposes a “significant modification” pursuant to Section 415A.5(a), but is also an Independently Requested State Density Bonus project that does not otherwise require any Planning Commission hearing per Section 206.6(e), would require a Planning Commission hearing to approve the modified project and amend the conditions of approval.

   It’s important to note that a new development application does not necessarily represent a new “project.” In certain instances, an existing “project” may need a new application merely because the project requires an additional approval, or because it is using an alternative approval option currently available under the Planning Code or State law. Even though the requirements for the new application may differ, the underlying project is still the same. As such, an Individually Requested State Density Bonus project that 1) qualifies as a Pipeline Project pursuant to Section 415A.2, 2) qualifies for administrative approval pursuant to Planning Code Section 206.6(e), and 3) does not change to the extent that it becomes a new project, may be approved pursuant to Section 206.6(e) without a Planning Commission hearing, and any previous Planning Commission approval for such project will be superseded with no need to amend any prior conditions of approval. Additionally, any such prior Planning Commission approval will continue to qualify the project for any applicable grandfathering provision of the Planning Code or State law (e.g., Pipeline Project status, impact fee triggers and rates, etc.).

Code Section: 207.1

Subject: Dwelling unit density, mixed use

Effective Date: 12/91

Interpretation:

   This Section sets forth rules for calculating dwelling unit density. This Section does not indicate whether that portion of the lot on which nonresidential uses exist counts as lot area when calculating density. Since those sections which indicate density (207.4, 207.5, 208, 209.1, 215) simply state that the density shall be one dwelling unit per stated number of square feet of lot area, it has never been the policy to discount that lot area occupied by nonresidential use. Therefore, nonresidential uses present on a lot are to be ignored when calculating the dwelling unit density for that lot.

Code Section: 207.1 (c)(5)

Subject:   Dormer Additions for Local Program ADUs

Effective Date:   09/24

Interpretation:

   This section prohibits Local Program ADU projects from including a vertical addition, with certain exceptions. The question was raised if adding dormers to the attic level of an existing building to make it habitable for a new ADU is considered a vertical addition. The determination was made that such dormers would not be considered a vertical addition for this purpose so long as they fully complied with the area limit for dormers above the height limit found in Section 260(b), which is no more than 30% of the horizontal roof area. It’s important to note that this specific threshold for defining a vertical addition applies even if the proposed dormers are not above the height limit.

Code Section: 207.1 (c)(5)

Subject:   ADUs Restricted to Permitted Buildable Area

Effective Date:   09/24

Interpretation:

   This section requires Local Program ADUs to be within the permitted buildable area or within the built envelope of a legally existing building. For example, a variance cannot be granted to construct an addition into the required rear yard to add a Local Program ADU. The question was raised if this prohibition would also apply to a rear stair structure associated with or otherwise required by the new ADU (i.e., a second means of egress, etc.). The determination was made that this buildable area limitation only applies to the ADU itself, and therefore a variance may be granted for other features that extend beyond the unit itself, such as decks and stairs. Additionally, a variance may be granted for other applicable Planning Code requirements, such as the exposure requirements of Section 140, so long as the ADU itself is within the permitted buildable area.

Code Section: 207.1 (e)

Subject: Density rules

Effective Date: 2/86

Interpretation:

   This Subsection states, "Where a lot is divided by a use district boundary line, the dwelling unit density limit for each district shall be applied to the portion of the lot in that district, and none of the dwelling units attributable to the district permitting the greater density shall be located in the district permitting the lesser density." This implies that the dwelling units attributable to the district permitting the lesser density may be located in the district permitting the greater density. Logic would indicate the same. Therefore, when a property zoned for multiple dwellings is joined with the vacated half of a street zoned RH-1, which half could be recorded as a legal lot and developed with a single-family dwelling, the development on the enlarged lot could have an additional unit credited from the RH-1 property without that unit actually being built upon the RH-1 property. This also avoids, without rezoning, the creation of potentially incompatible uses.