Aug 11 2017

How Big Can a House Be? Floor Area Ratio Discussion and Public Hearing by the Planning Commission Aug. 14

CONTROLLING BUILDING SIZE RELATIVE TO PROPERTY SIZE – 

– PUBLIC HEARING  – Monday, August 14, 2017, City Hall at an undetermined time following the completion of all other items on the Planning Commission Agenda.  The matter will likely be undertaken after 7:00 p.m.  For more specific information on the timing, contact the Planning Director, Kevin Jackson at 420-3050.

The meeting will be televised live on Cable Channel 27 and streamed from the City website.

As basements are enlarged, attics expanded, and rooms added, what should the floor area ratio (square feet of living space relative to lot size) requirements be? Questions on the intent of the building code and impacts to neighborhoods relative to property size will be considered.

At the July 10, 2017 Planning Commission meeting, “Planning Director  [Kevin] Jackson raised the topic of the floor area ratio (FAR) exemption, which was brought to light during the discussion for the project at 100 Dracena Avenue. He asked the Commissioners whether they would like to receive a report outlining the intent of the code provision and options for how the code language might be modified to improve the effectiveness of the regulation. The Commissioners agreed that they would like to discuss the topic further, and they each spoke briefly on their interests in the topic. They requested, at a minimum, to have a future discussion to clarify the priority or intent of the language. They also suggested that changes be made to the code to better define what constitutes a habitable area and to clearly separate projects that are eligible for the FAR exemption from those that include envelope expansions.” Draft Planning Commission Minutes

The Planning Commission will consider the following staff report at the August 14, 2017 meeting:

AGENDA ITEM NUMBER 11 [Last item of the agenda]

STAFF RECOMMENDATION:

Open the public hearing, receive this report and staff’s presentation, take testimony from members of the public and provide comments and direction to staff regarding floor area ratio (FAR) regulations and exemptions. The Commission will not be taking action or making any recommendations to Council on any code revisions as part of this discussion.

BACKGROUND:

Recent Discussion

Having acted on an application seeking approval for a variance from the City’s FAR limits at its last meeting on July 10, 2017, the Planning Commission requested that staff return with a report outlining the intent of the code provision and options for how the code language might be modified to improve the effectiveness of the regulation. The Commission was also interested in ways to better define what constitutes a habitable area and to clearly separate the sequencing of projects that are eligible for the FAR exemption from those that include envelope expansions.

Floor area ratio is currently defined in City Code section 17.90.020 as follows:

Floor area of a building means the sum of the gross horizontal area of the floors of the building, measured from the exterior faces of exterior walls or from the center line of party walls separating two buildings, and includes:

  1. living space on all levels, including within a basement;
  2. elevator shafts and stairwells at each floor;
  3. bay window or window seat that projects beyond the exterior wall, even if the window or seat does not have an average ceiling height of seven feet, six inches in which a person can reasonably stand or sit;
  4. living space within an attic, including space that does not have direct heat. An attic space that has exposed wall framing and/or does not have permanent access cannot be used for habitation, and does not count toward floor area. Permanent access includes built-in stairs (even if they do not meet all of the building code requirements), but does not include built-in or pull-down ladders;
  5. enclosed porch or lanai, heated or not;
  6. high-volume space that exceeds an average height of 15 feet, measured from finished floor to the outer roof, is counted as two stories; and
  7. area within a building used for commercial purposes.

Living space not considered habitable under the Building Code because of window size, ventilation, access, ceiling height, heating, or electrical service (e.g. unconditioned storage area) is not counted in the floor area, but if the space is actually used for living, sleeping, eating, bathing, washing, or cooking, the space will be included, subject to the interpretation of the Director.

Although modifications have occurred, the above definition is very similar to the one originally adopted into the City Code in 1979.

History of Floor Area regulations in the Piedmont City Code

The following represents a concise list of City Council actions that modified regulations related to floor area in Chapter 17 of the City Code:

Ordinance 391 N.S., November 1979
In this comprehensive update to Chapter 17, a definition floor area was added. The definition has remained largely unchanged since its adoption in 1979.

Ordinance 516 N.S., April 1990
In this comprehensive update to Chapter 17, regulations for floor area were added, but only for residential properties. The intent was to limit the size of a home (the bulk of a building) in relation to the size of the lot, which would allow small homes on small lots and large homes on large lots. The regulations were provided in a new Section 17.20 Home Expansion (see Exhibit A, page 9). The section outlined its intent, set limits and provided exemptions to the limits.

FAR Limits: 55% for lots less than or equal to 5,000 s.f.
50% for lots greater than 5,000 s.f. and up to 10,000 s.f. 45% for lots in excess of 10,000 s.f.
The limits have remained unchanged since their adoption in 1990.

Exemptions from FAR limits:

  1. a)  When the improvement adds nor more than 350 s.f. of floor area. The exemption may be used no more than once per parcel, and never within 36 months of another application in which floor area is increased.
  2. b)  When the total proposed floor area does not exceed 2,000 s.f.

The minutes for the January 16 and April 16, 1990 City Council meeting are provided in Exhibit B, pages 11-14, and Exhibit C, pages 15-18.

Ordinance 523 N.S., March 1991
In this ordinance, Council deleted the exemption for additions of no more than 350 s.f. of floor area. In doing so, the Council stated the original intent of this exemption was “to allow small older homes which already exceed permitted FAR coverage a one-time opportunity to modernize.” In deleting this exemption, the mayor stated it “was being used far more often than originally anticipated by the Council, was being viewed as a ‘right’ by homeowners and architects and was also not being limited to small older homes per her understanding of the intent of this section.” In its discussion the Council added that the exemption was unnecessary because the Planning Commission had the “discretion to grant variances from the FAR restrictions in exceptional hardship circumstances.”

Ordinance 547 N.S., October 1993
With this ordinance, Council made two modifications to the FAR regulations: 1) the addition of this provision to the limitations: “The area comprised of a driveway which is not entirely contiguous with and an integral part of the main lot, as in the case of a ‘flag lot”, shall be excluded from the calculations set forth below;” and 2) deleted the exemption for houses where the total proposed floor area does not exceed 2,000 s.f. Council minutes do not include a discussion that provides the intent of these modifications.

Ordinance 573 N.S., February 1996
In January 1996 the City Planner asked the City Council to consider an amendment to the provisions of Chapter 17 to include an exemption to the FAR limitations when the floor area expansion is entirely within the existing building envelope. The intent of the exemption was twofold. In order to gain more living space without having to seek a variance from the FAR limits, homeowners were using areas in basements and attics that did not meet building code habitation requirements. The exemption was intended to mitigate this evasive and potentially unsafe action that was prompted because FAR variances were rarely granted. Secondly, the intent was to incentivize floor area expansions that do “not add to or change an existing residence’s exterior size.” As noted in the attached minutes from January 2 and 16, 1996 (Exhibit D, pages 19-20 and Exhibit E, page 21), when considering the ordinance, the Council directed the inclusion of provisions in the exception that mitigated the potential problem of residents “sequencing” improvements in order to evade the FAR limitations. The exemption (Section 17.22.3) was adopted as follows:

If a residential improvement is proposed which will not alter the exterior dimensions of the residence, the improvement shall not be required to meet the requirements of section 17.22.2, provided that this exemption shall not apply within three years of the issuance of a building permit for a prior improvement that was subject to section 17.22.2.

Ordinance 728 N.S., March 2017
In this comprehensive update to Chapter 17, the entire chapter was reformatted. The reformatting moved the FAR regulations, including the intent provisions, from Section 17.22, Home Expansion and Construction, to the code divisions providing regulations for the specific zones: Division 17.20, Zone A Single Family Residential; Division 17.24, Zone C Multi-Family Residential; and Division 17.28, Zone E Estate Residential (See Exhibit F, separate). As part of the comprehensive update, a technical correction was made to the exemption from the FAR limitations so that start date for the interim period between a prior expansion of the building envelope and a project to exceed the FAR limitations by expanding within the envelope is the final inspection of a building permit rather than the issuance of a building permit. In order to better prevent the sequencing of improvements in order to circumvent the FAR limits as the City Council originally intended, the exemption was modified and adopted as follows:

The floor area ratio standard is not applied to finishing an area into habitable space if: (1) there is no expansion of the exterior building envelope; and (2) the owner has not obtained a final inspection within the prior three years on a building permit issued for an expansion of the building envelope.

DISCUSSION:

As noted above, the intent of the FAR limits is to maintain a community development pattern in which homes are sized in proportion to the lots on which they are sited for a resulting sense of openness and appropriate scale. The regulations are meant to prevent a “McMansion” development pattern in which homes seem oversized with multiple-story facades abutting each other. When originally adopting the FAR limits in 1990, the City Council wanted to allow owners of small homes on small lots the ability to make small additions so that the housing stock was maintained and accommodating to modern living. Thus, the Council included exemptions to the FAR limits to allow for such small home remodels: an owner could exceed the limits when constructing an addition of 350 square feet or less if an addition had not been constructed within the past three years; and the limits could be exceeded if the total proposed floor area did not exceed 2,000 square feet.

However, in practice the exemptions did not have the desired effect. Owners sequenced construction so that homes both big and small were being expanded in excess of the limits on a regular basis. In response, the Council deleted both exemptions within four years of their implementation. In doing so, the Council determined that the Planning Commission had the discretion to grant variances from the FAR limits when there was evidence of exceptional hardship circumstances. The ordinance deleting the second exemption also limited the lot area used for calculating the FAR to only contiguous areas. For example, driveways of flag lots could not be used.

The consequence of having FAR limits (located in section 17.22 of the City Code until March 2017) without exception was that rather than seeking a hard-won variance from the provisions, owners were using areas within basements and attics that did not meet building code requirements for habitation, risking the residents’ health and safety in the process. To solve this problem, the City Council amended the FAR regulations in 1996 to add the following exemption.

If a residential improvement is proposed which will not alter the exterior dimensions of the residence, the improvement shall not be required to meet the requirements of section 17.22.2, provided that this exemption shall not apply within three years of the issuance of a building permit for a prior improvement that was subject to section 17.22.2.

As in 1990, the Council was concerned that the sequencing of projects to expand the building envelope and projects to expand within the interior of the home could result in ineffective regulations. Therefore, the Council included a provision that required at least three years to elapse between a project to expand the exterior dimensions of the building envelope and a project to develop floor area in excess of the FAR limit within the envelope of the building. The start date for the three year period was the issuance of a building permit for the expansion of the building envelope.

There were unforeseen consequences from the designation of the issuance of a building permit as the start date of the 3-year hiatus period between building expansion and development within the envelope. In order to avoid being subject to the FAR limitations, property owners would get a building permit issued with 12 months of the approval date of the design review permit application (as required by the Code) and either: 1) delay construction for 3 years (paying to renew the building permit every six months) and then submitting a permit application to create floor area within an attic or basement in excess of the FAR limitations; 2) extend construction for at least three years so that toward the end of the lengthy construction period they could seek approval for an application to modify the permit to include additional floor area within the envelope and in excess of the FAR limitations.

To better implement the Council’s intent to allow the FAR to be exceeded if the expansion is within the existing building envelope, but not if the building envelope has been expanded within the past three years, and to close the loophole that allowed the circumvention of the FAR limitations, staff recommended a technical correction to the start date of the three year period, replacing “from the issuance of a building permit” with obtaining “a final inspection.” This change was included in the comprehensive update to City Code Chapter 17 recommended by the Planning Commission on November 10, 2016 and adopted by the City Council on March 20, 2017.

Also included and approved in the same comprehensive update was the elimination of the exclusion of noncontiguous driveway areas of flag lots in the calculation of floor area ratio. There are very few flat lots in Piedmont, some of which have curvilinear lot lines which make the border between contiguous and noncontiguous area subjective and arbitrary. And, for the most part, the noncontiguous driveway areas are not so significant in size as to make an appreciable difference in the resulting floor area ratio.

Effectiveness of the Exemption

Unfortunately, short of reviewing by hand each planning and building permit application that has been processed during a number of years past, there is not an effective way to document how many projects since 1996 have taken advantage of the exemption to the FAR limitations by expanding habitable area within the building envelope, rather than building outwards or upwards. During the years 1996 through 2015 variances from the FAR limitations was one of the least sought after variances, accounting for only 71 of a total 1,110 variance requests over a 20 year period (6% of variance requests). Only variances from building height and hardscape coverage limits were fewer in number. And anecdotally, on a number of occasions staff has been able to guide homeowners to expand within the envelope rather than building upwards, using the FAR limit exemption as a tool in that guidance.

Ultimately, the effectiveness of the regulations and the exemption depends on how rigorously the limits are enforced. To this end, the Planning Commission and staff might give increased consideration to developable basement or attic areas when considering applications to expand the building envelope.

Possible Improvements to the Regulations

The historical record shows that the City Council had specific goals in mind when it originally adopted the FAR limits and exemption. The intent of the limits was to have residential building sized in scale with the lot area. The goals of the exemption were to incentivize expanding floor area within the building envelope, rather than expanding the envelope; and to mitigate the unsafe practice of using for living purposes areas of a building that do not meet building code safety standards. The Council also required a 3-year period between a project to expand the envelope and a project taking advantage of the exemption in order to limit the use of permit sequencing as a means to avoid being subject to the FAR limits. The City Council also wanted to provide some flexibility to the FAR limits as they applied to small houses on small lots, ultimately finding that the best way to implement this was to provide the Planning Commission the discretion to allow variances in exceptional hardship circumstances.

With this in mind, the Commission might want to consider the questions below along with staff’s comments on the questions.

Are the regulations of floor area effective in limiting the size of homes?

On average, the City’s Planning Division receives about 400 applications annually. Over a twenty year period 71 requests for FAR variance were submitted and only 47 of those requests were approved. This is 0.6% of planning applications. If we consider the low number of variance requests and approvals, we find that the vast majority of projects conform to the FAR limits and therefore we may infer that the regulations and the discretion of the Planning Commission are effective.

Without a labor-intensive review of permits to compare the period between 1990 and1996 to recent years to document any decrease in the number of homes using unsafe basements or attics as living area, I can only report anecdotally that in recent years it has been uncommon for such circumstances to be brought to the City’s attention.

Are the regulations effective in preventing the circumvention of the FAR limits by means of project sequencing?

As brought to light by a recent application for a variance from the FAR regulations, unintended loopholes in the regulations allowed owners to avoid being subject to the FAR limits if the project is sequenced in a variety of ways. One of those loopholes was closed when the City Council recently approved that the start date for the interim period between a project to expand the envelope and a subsequent project to exceed the FAR limits by expanding within the envelope was changed from the issuance of a building permit to the final inspection of a building permit. This eliminated the ability to string out a construction project to over three years or to delay the start of a construction project by three years as a means to avoid the FAR limits.

However, even with this correction to the start time of the three-year interim period, nothing in the City Code prohibits an owner from providing most, but not all the features that meet the habitability standards of the building code: ceiling height, heat, adequate natural light and ventilation (windows), electrical outlets and light fixtures, finished floor and ceiling materials. Rather than trying to develop a planning or building code provision to address this, staff recommends that the Commission consider developing a policy that would guide the Commission, staff and the public when new or remodeled “non-habitable” space is being proposed. Window size, finish materials, the number of electrical fixtures could all be limited under the policy so that a de facto habitable space is not being created. The policy might also state that proposed non-habitable area will be evaluated when additions to the building envelope are proposed.

Is three years a length of time that effectively separates a project to expand the building envelope from one that develops habitable area within the envelope?

The minutes for the Council’s meetings from 1990 and 1996 do not indicate how three years became the time period to differentiate between projects to eliminate a sequencing of projects to circumvent the FAR limits. The intent of this hiatus period was to prevent the purposeful sequencing of projects in order to increase the size of the house without being subject to the FAR limits. One could infer that Council thought it was enough time to make it inconvenient to start a project after having finished another, and to allow for a change in a family’s needs. However, there is nothing in the record to indicate that this was an evidence-based time period, and the Commission may want to consider a change to this provision that would make the regulations more effective.

CONCLUSION:

The floor area regulations in City Code Chapter 17, which were originally implemented in 1990, can be considered effective for the purpose of limiting the size of single-family residences in relation to the size of the lot. Perhaps less effective is the exemption from the FAR limits. It appears that the exemption may still provide a homeowner the ability to sequence projects so that the home can be expanded upwards and/or outwards with a floor area in excess of the limits, without having to seek a variance from the Code requirements.

Should the Commission want to improve the effectiveness of the regulations, it might consider: 1) a policy that gives guidance to the Commission, staff and the public regarding “finished” conditions when new or remodeled “non-habitable” space is being proposed; and/or 2) a change to the hiatus period between a project to expand the building envelope and a subsequent project to exceed the FAR limits by developing the living area within the building envelope.

NEXT STEPS:

Should the Commission direct staff to develop draft code amendments or a draft policy, those draft documents would be brought to the Commission at a subsequent meeting for its consideration. The Planning Commission’s responsibility is to make a recommendation to the City Council. The Council is the decision-making body for the adoption of new code amendments or City policies.

ATTACHMENTS:

Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F

Page 9 Pages 11-14 Pages 15-18 Pages 19-20 Page 21 Separate

Section 17.20 Home Expansions, adopted April 16, 1990

Abridged City Council Minutes, January 16, 1990, Ord. 516 N.S. 1st Reading

Abridged City Council Minutes, April 16, 1990, Ord. 516 N.S. 2nd Reading

Abridged City Council Minutes, January 2, 1996

Abridged City Council Minutes, January 16, 1996, Ord. 573 N.S. 1st Reading

City Code Chapter 17, Planning and Land Use, available at:

http://www.ci.piedmont.ca.us/html/city_code/pdf/chapter17.pdf

Exhibit F Separate City Code Chapter 17, Planning and Land Use, available at: http://www.ci.piedmont.ca.us/html/city_code/pdf/chapter17.pdf

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