Recommendation
Review Public Hearing Testimony and Direct Staff to Prepare a Draft Ordinance per Attachment A, and Prepare a Resolution to Amend the Landscaping, Screening and Lighting Manual

Change in Law or Policy
The proposed text amendment (Attachment A) has been filed to make clarifications and corrections to the City Zoning Ordinance, adopted December 15, 2008 and effective March 16, 2009. The proposed amendment to the Landscaping, Screening and Lighting Manual will implement one of the recommended changes to the zoning ordinance regarding maintenance of required landscaping.

Discussion
In reviewing the text of the Zoning Ordinance as adopted, the staff has found a number of typographic errors that need to be corrected. In addition, as the staff has been working with the provisions of the new ordinance, some items have come to light that require some additional clarification or explanation. The staff report to the Planning Commission (Attachment B) identifies the proposed text changes and the reasons for them.

Most of these are corrections and clarifications that do not change the policy intent of the ordinance as adopted by the Mayor and Council. Some other items have been brought forward that are beyond the scope of simple corrections, but are presented for consideration as part of the text amendment. These include the following:

1. The addition of a new allowed land use, to be termed an "Ancillary Restaurant" This use would be permitted within an office building with more than 150,000 gross square feet of floor area. An ancillary restaurant could not exceed 5 percent of the floor area of the building, and cannot have drive-through or walk-up service. There would not be a separate parking requirement for this use. The concept is that during the day the restaurant would primarily serve the workers and visitors to the office building. After working hours, when the offices are largely empty, parking will be available for evening diners. The changes are shown in the Definitions (Sec. 25.03.02), the land use tables for the Mixed-Use zones (Sec. 25.13.03) and in the provisions for Planned Development Zones (Sec. 25.14.07.b).

The Planning Commission supports the modification as recommended in the staff report. However, the Commission notes that this change seems to be very similar to the current provision for an Accessory Restaurant. The Commission suggests examining whether these two provisions can be either combined, or dispense with the Accessory Restaurant use. The staff notes that the Accessory Restaurant, in contrast to the Ancillary Restaurant, is intended to primarily serve the occupants of the building and is not limited by the size of the building. The Accessory Restaurant use is also allowed in hotels as well as office buildings. As such, the use cannot have any exterior signs or an entrance directly to the outside. The staff believes the two uses should be retained at this time.

If this modification is not done, the current provisions for accessory restaurants would apply, limiting the use essentially to serving the office use. Without this new use, a restaurant in a Mixed-Use zone would have to provide parking beyond what would be required for the office use, and in the PD Zones, an amendment to the PD Governing Documents would be required.

Testimony submitted by William Kominers (Exhibit 1 in Attachment C) from Holland and Knight supports including the new use as proposed in the staff report, with specific reference to the site at 2000 Tower Oaks Boulevard.

2. The ordinance as adopted did not include a parking standard for a Life Care Facility in Sec. 25.16.03. The text amendment as introduced proposes to provide parking standards for a Life Care Facility with the standards allocated between the independent living units, assisted and nursing care, and the number of employees on the major shift.

The proposed modification would change the parking requirement for the nursing and assisted living portion to one space for each 4 beds plus one space for each employee on the main shift. This is consistent with provisions in the County and other nearby jurisdictions. This should have the effect of reducing the amount of parking that must be provided. The proposed modification also separates the parking standards for hospitals and nursing homes. The standards remain the same for hospitals, but nursing homes would also have the one space per 4 beds plus one space per employee on the main shift as shown within the Life Care Facility provision.

3. Section 25.06.02 of the text amendment as introduced would restore the procedure from the prior ordinance whereby the Mayor and Council must review and authorize the filing of private sector text amendments. However, we now suggest that this change not be made. In discussion with the staff and the City Attorney, the Planning Commission agrees that having the Mayor and Council make a determination on the acceptance of a text amendment without the benefit of any technical analysis by the staff or the Planning Commission is problematic. The Commission believes that these text amendments should be allowed to be filed and processed through the normal processing and review procedures.

4. The prior ordinance imposed a limit of 65,000 square feet for any one retail tenant. As adopted, the current ordinance has no limits on the size of a retail tenant. Section 25.13.05 of the text amendment proposes to add regulations for "big box" retail stores that would limit the ground floor area to a maximum of 65,000 square feet. It does not limit the total floor area for the use but it will require a design that is more urban and can be integrated into mixed use projects with structured parking rather than large-footprint single use stores with surface parking lots. The Commission supports this recommendation.
5. Section 25.05.07 of the text amendment proposes to clarify the review process for amendments to existing development. The Planning Commission supports the changes with a minor change to subsection (d) as set forth in their recommendation (Attachment D).

6. Modifications are proposed to the site plan "point calculations" in Section 25.07.02, as set forth in the staff report (see p. B-6, Attachment B).

The Planning Commission also recommended the following modifications to the proposed text amendment and included in Attachment A:

1. In the Definitions, examine the need to change the definition of "Easement" to replace the word "property" with the word "land". The City Attorney recommends leaving the definition as is and not making the proposed change. Making reference to land instead of property makes the definition somewhat broader, which can allow the inclusion of items such as air rights within the term.

2. In Section 25.05.03.d.3(a), revise the change to the distance between posted notice signs from 750 feet, as shown in the text amendment, to 500 feet. The staff supports this change as a balance between requiring a large number of signs for sites with extensive frontage, and adequacy of public notice.

In Sec. 12.07.14, The Planning Commission recommended a change to the language that would have excluded internal landscaping and walkways from review by the Historic District Commission for a designated historic site. Further discussion with the preservation staff and the HDC members has resulted in a recommendation that the language be modified in both subsections a and c, as shown in Attachment A. Max van Balgooy, chair of the Historic District Commission, testified in support of the revisions.

Landscaping, Screening and Lighting Manual

In addition to the proposed amendment to the zoning text, a modification to the Landscaping, Screening and Lighting Manual is proposed. This change will add new language defining the modifications that may be done to existing landscaping as part of routine maintenance. This change is to be made in conjunction with the modifications proposed to Section 25.05.07, Amendments to Approved Developments, which allows landscaping maintenance without the need for a full site plan review process. The Chief of Planning would review the proposed landscaping changes to assure consistency with the original intent approved by the initial approval. The Planning Commission recommends approval of this modification, with a clarification that any changes be in accordance with the provisions of the Forest and Tree Preservation Ordinance. The proposed language should therefore read as follows:

As part of the maintenance, the species of landscaping materials may be changed, so long as the resulting materials will meet the design and intent of the original approved landscaping plan, and conform to the requirements of the Forest and Tree Preservation Ordinance. Where such changes are proposed, a revised landscaping plan must be approved by the Chief of Planning and maintained in the file with the original project approval. This modification, if approved, will be made by resolution amending the Manual.

Testimony Submitted for the Public Hearing

Two persons spoke at the public hearing on September 14. Mr. Kominers spoke in support of the proposed new ancillary restaurant use. His testimony is included as Exhibit 1 in Attachment C. Mr. van Balgooy spoke regarding the proposed changes to Sec. 25.07.14, and supported the latest revisions as shown in Attachment A.

Mr. van Balgooy submitted further testimony beyond the modifications noted above (Exhibit 2 in Attachment C) regarding the process by which historic site nominations are processed. He advocates deleting the requirement for the Mayor and Council to authorize the filing of the sectional map amendment ahead of any formal review by the HDC and the Planning Commission. This would require amending Section 25.14.01 to delete the requirement for Mayor and Council authorization and instead allow the HDC or, alternatively the Planning Commission to file the SMA and proceed through the normal review and public hearing process. The staff recommends that the Mayor and Council consider this matter as part of a separate text amendment since it involves a policy matter as well as procedural issues.

Exhibit 3 in Attachment C is a letter submitted by Mr. Scott Wallace for Linowes and Blocher. He supports the revisions in the submitted text amendment regarding the additional uses proposed to be allowed in the MXNC Zone. As noted in the staff report, these changes were recommended in the adopted Twinbrook Neighborhood Plan. Mr. Wallace also suggests a minor change to the revised language regarding Major Amendments to Approved Development (Sec. 25.05.07(d). This would add an additional phrase to the proposed language, to read as follows (suggested new language underlined): (d) any other significant change to the site that results in an increase in the parking requirement and requires the construction of additional parking spaces. The language in the revised text amendment (Attachment A) reflects the recommendation of the Planning Commission. The issue has been to make it clear that a significant change requiring a major amendment process be the result of an actual expansion of the improvements on the site. The mix of tenants in a project may change over time. Different types of uses have different parking requirements. However, so long as the overall parking requirement does not exceed the number of spaces provided, there should be no need for a major amendment in that case. The additional language proposed by Mr. Wallace is intended to make it clear that the need for construction of additional parking spaces may trigger the major amendment process. The staff can support this modification since it further clarifies that physical changes to a site are one of the triggers for a major amendment. If acceptable to the Mayor and Council, this change will be included in the final version of the ordinance.

Exhibit 4 in Attachment C is an e-mail from the staff regarding the definition of a buildable lot. In the prior zoning ordinance, a lot was defined as follows: "A parcel of land occupied or to be occupied by a building and its accessory buildings or by a group of dwelling and their accessory buildings, together with such open spaces as are required under the provisions of this chapter, having at least the minimum areas required by this chapter for a lot in the zone in which such lot is situated and having its principal frontage on a public street". The current ordinance breaks down the definition of lot into its various iterations. However, the requirement for having frontage on a public street was not carried forward.

In reviewing this matter further, the staff has determined that more study is needed. While frontage on a public street is normally necessary and desirable, it may not be required in all cases, such as with townhouses or some multi-family developments. The study may also include an examination of the need for a minimum street frontage requirement for those residential zones that do not establish a minimum frontage. A separate text amendment on this matter will be drafted for consideration by the Mayor and Council.

Mayor and Council History
The Mayor and Council held a public hearing on the text amendment on September 14, 2009.

Public Notification and Engagement
The Planning Commission held a public meeting on the proposed amendments, and received comments from the staff and citizens. The public hearing before the Mayor and Council was advertised in the local newspapers for two weeks prior to the date of the hearing.

Boards and Commissions Review
The Planning Commission reviewed the proposed amendments at its meeting on July 22, 2009. Their recommendation is shown as Attachment C.

Fiscal Impact
There is no fiscal impact associated with this agenda item.

Next Steps
Based on the instructions given by the Mayor and Council, the staff will prepare an ordinance approving the text amendment with the necessary changes. The staff proposes that the ordinance be introduced. The Mayor and Council will then be requested to vote to waive the layover period and proceed to vote on the ordinance. The staff will also prepare a resolution to amend the Landscaping, Screening and Lighting Manual.

Attachments
Attach A - Revised Proposed Text Amendment


Attach B - Staff Report to the Planning Commission


Attach C - Public Hearing Exhibits



Attach D - Planning Commission Recommendation

Department Head:



Susan Swift, Director of Community Planning and Development Services
Approved on: 09/29/2009

Assistant City Manager:


Jenny Kimball, Assistant City Manager
Approved on: 09/30/2009

City Manager:

Scott Ullery, City Manager
Approved on: 10/02/2009