This Study Issue originated from neighborhood concerns about a new two story industrial building constructed in 1999 at 370 San Aleso Avenue. The neighbors were concerned that the new building impacted their privacy in their homes and on their properties. A study issue was developed that would require an analysis of code requirements related to industrial and commercial development adjacent to residential uses. The study issue paper is attached (Attachment B). This item was ranked 2 by Council for study this year.

In June 2002 Council approved a work plan that outlined the areas of focus for this study. Staff has met with neighborhood associations, contacted developers, business owners, and the Chamber of Commerce regarding this study issue. Staff has reviewed the comments and analyzed suggestions received during the course of study for this issue. Staff is recommending approval of modifications to the Sunnyvale Municipal Code (SMC) and changes in policies and procedures to protect residential privacy and provide wider opportunities for residential neighbors to comment on proposed developments (Attachment D). The recommended ordinance modifications relate to the following items:

• Increasing wall height between residential and non-residential properties to eight feet for two story non-residential buildings
• Limiting location of exterior security cameras on buildings to the height of the property line wall
• Providing specific criteria for the landscape buffer plant material to screen impacts
• Limiting the height of exterior lighting poles to ten feet within the required setback
• Noticing adjacent residential properties of non-residential project applications for additions or new construction
• Clarifying that trash enclosure locations on non-residential properties must be outside of required setbacks

The issue was raised in 2000 by residents who were concerned that the windows and surveillance cameras of adjacent commercial and office uses were invading their privacy. That year the study issue fell below the line. In response, staff prepared a memo to Council in 2001 outlining current codes related to privacy issues (Attachment A).

For 2002, Council adopted a study issue entitled "Privacy Issues Between Residential and Non-Residential Developments and Zoning Districts" (Attachment B). As stated in the study issue paper this study issue was adopted specifically to consider the issue of privacy and the line of sight into residential properties.

The following General Plan policies and action statements from the Land Use and Transportation Element relate to privacy between residential and non-residential uses:

Policy N1.2 - Require new development to be compatible with the neighborhood, adjacent land uses and the transportation system.

Action Statement N.1.1.4 - Anticipate and avoid whenever practical the incompatibility that can arise between dissimilar uses.

On June 25, 2002 the City Council directed staff to focus the scope of this study to the following issues:

• Line of sight from windows of non-residential buildings
• Use of exterior security cameras
• Height of masonry walls along the property lines
• Security lighting levels

In addition, the Council asked for a new potential Study Issue to address the following two items. Staff has been able to incorporate that analysis into the current study.

• Noticing neighbors of commercial/industrial projects
• Trash enclosure locations

Staff received many comments related to each of these items from residential neighbors. The majority of comments received were regarding the two story building at 370 San Aleso Avenue that was constructed in 1999. Initially, this building was proposed at greater than 35% Floor Area Ratio (FAR) which requires a Use Permit and public hearing. After the public notices were sent out, the applicant withdrew that application. This building was re-designed and constructed to meet all of the municipal code requirements and, therefore, was approved at staff level without any public notice. Although many comments were received about this building, the lack of any public notice to the neighbors appeared to be a common concern in this neighborhood and among other residents who commented on the privacy issue.

Staff analyzed each of these items, all comments received, and current and potential requirements to protect privacy for residential properties. The following is a description of comments received for each item, staff’s analysis, and recommendations.

It should also be noted that many of the concerns expressed by residential property owners were not strictly directed to non-residential uses. Many people were also very concerned with the privacy impacts of multi-family residential development projects in their neighborhoods. These issues were beyond the scope of this study.

Many comments were received regarding the line of sight from multi-story non-residential buildings into residential properties. Staff has drawn line of sight drawings that illustrate the potential line of site with the current municipal code requirements (Attachment C). It can be determined by the line of sight drawings that there is a potential line of sight above the first story of a non-residential building into adjacent first floor residential properties and homes. It should also be understood that these line of sight drawings are the worst case scenario and do not factor in any form of parking lot or property line buffer landscaping, window covering, or other factors that diminish visibility.

Several solutions were suggested by residential neighbors to reduce the line of sight from non-residential buildings. Suggestions ranged from limiting windows on sides of non-residential buildings that face residential properties, to requiring a public hearing (Use Permit) for non-residential buildings over two stories high, to prohibiting non-residential buildings over two stories high.

Staff understands that the potential line of sight is a major factor in feeling as if one’s privacy is impacted from adjacent non-residential buildings. However, other factors must also be considered including building aesthetics and building code requirements. A building without any windows on one or more sides is unlikely to be attractive and would likely not meet the building code requirements. Also, buildings of two stories in height are most probably required to obtain a Use Permit based on current zoning code standards/requirements. Staff does not recall a new non-residential building over two stories that has not required a Use Permit.

Staff is suggesting several techniques to reduce the potential line of sight from non-residential buildings adjacent to residential properties. The first recommendation is increasing the minimum height of the required masonry wall along the property line between the two uses from six feet to eight feet. This recommendation is discussed in more detail in a following section. The next recommendation is regarding the use of landscaping in the required landscape buffer along the non-residential/residential property line. Although a ten foot wide landscape buffer is required, the type of landscaping planted in the buffer is not specific. Staff is recommending that SMC section 19.38.070 be clarified to require screening trees be planted in the landscape buffer that are of minimum 24" box size and spaced at a maximum of 20 feet on center versus the current recommendation of 30 feet on center. Staff will develop a list of approved screening trees for this type of location that will provide a visual screening between the two uses. Additionally, the recently approved parking lot landscape requirements related to shading are also expected to assist in providing a visual screen over the long term.

The use and placement of exterior mounted security cameras on existing non-residential buildings has caused residential neighbors to feel their privacy is being impacted. Security cameras that are mounted on buildings and directed towards the parking lot and indirectly, the residential properties, provide an appearance of intrusions to the residents. The general feeling is that if the camera is directed towards the residential properties and can be seen from the residential property, that the camera can see the residential property.

Crime Prevention staff from the Public Safety Department have been consulted regarding any potential limitations as to the placement of exterior security cameras. Crime Prevention staff noted that the vast majority of exterior security cameras have poor optical resolution and although images can be seen, specific faces and events happening in a distance, cannot be clearly seen. More importantly, they stated that exterior security cameras do discourage crime and reduce the attractiveness of the site to criminal activity. Crime Prevention also noted that reducing the potential for criminal activity on one property also protects neighboring properties.

There are currently no code or policy requirements for the use exterior security cameras. In trying to balance the differing objectives on this issue, staff is recommending specific limitations for security cameras that are directed towards residential properties. Specifically, staff is recommending a municipal code requirement that exterior security cameras facing towards residential properties be mounted no higher than the elevation of the property line wall. This requirement will allow non-residential properties to maintain the ability to install exterior security cameras, but will also limit the impact of the cameras onto the adjoining residential properties. If a business owner would like to mount cameras higher than the elevation of the property line fence, they would be required to be mounted on poles facing towards the site and away from any adjacent residential properties.

Currently the municipal code requires that a six foot high masonry wall be constructed on the property line between adjacent residential and non-residential uses. Many comments were made that this height is not adequate for all situations. Suggestions ranged from allowing each residential property owner to determine the height of the masonry wall along adjacent to their property, to requiring a 12 foot high to block all potential privacy impacts.

Staff does not believe that requiring various heights for the masonry wall would be aesthetically pleasing, practical, or provide the privacy desired by neighbors. Staff understands that the currently required six foot high wall does not protect privacy for residential neighbors in all situations. Therefore, staff recommends that the current six foot high masonry wall requirements remain in place when single story non-residential buildings are developed. Non-residential buildings over one story would be required to install an eight foot high masonry wall. This recommendation would modify SMC section 19.38.070. This recommendation, as with all code requirements, would be a minimum requirement and could be increased by Use Permit when circumstances warrant.

At the Planning Commission study session on September 9, the Commission suggested requiring a minimum seven foot high wall in all cases. Based on the comments received by staff from residents, different fence heights may be appropriate in different situations. Therefore, staff is not recommending a minimum fence height of seven feet.

Comments were also received regarding lighting levels on non-residential properties. The level of lighting on a non-residential property can impact the feeling of privacy for residential properties in a couple of ways. Light from an adjacent property can illuminate the inside of a residential house and impact privacy. Also, a large level of lighting can increase the appearance of privacy impacts of the line of sight from non-residential buildings and the impacts of exterior security cameras.

This issue was also discussed with Public Safety Crime Prevention staff. Similar to the exterior security lighting issue, Crime Prevention was very concerned about the parking lot lighting levels of non-residential buildings. A certain amount of lighting is necessary as it does serve as a deterrent for crime. The deterring of criminal activities is not only for the benefit of the non-residential building, it also benefits any adjacent properties, including residential, by preventing criminal activities on or near their properties.

In trying to balance these two issues, staff recommends for non-residential buildings adjacent to residential uses, that the maximum height of light poles within the required setback be a maximum of ten feet tall. This standard will limit the height of light poles and the potential of direct illumination and glare on adjacent properties.

The Planning Commission recommended additional modifications to the definition of glare. The modification would be to limit the term to light visible because it reflects off of another surface (in contrast to direct illumination where the light source is directly visible). The Planning Commission felt that a more specific definition of "glare" would provide a better understanding for the public and simplify enforcement.

This issue was a major concern of the residential neighbors that staff received comments from. The majority of comments received were related to expanded/additional noticing and the language of the notices. Public notices, for projects that require a public hearing, are currently mailed to nearby property owners and residents (either adjacent properties, within a 300 feet radius, or expanded notices as necessary), posted at the project site, and advertised in The Sun newspaper. Many neighbors stated that they do not receive notices that are mailed and when they do see the notices they are not easy to read and do not provide a clear description of the project. Some suggestions made by residents for additional locations of noticing were in neighborhood association newsletters/meetings, the special page on the City’s web site, on the light/telephone poles of the residential streets, in the Quarterly Report, in the Mercury Newspaper (many residents do not receive The Sun), and on The Sun web site.

Other comments received were that there should be time provided for neighbors to be able to comment on proposed non-residential projects. Currently, a public comment period is provided for applications that require a public hearing. Additionally, several residential neighbors suggested that the non-residential developer be required to meet with the adjacent neighborhood to hear comments from the residents directly.

Although many of the suggestions received from residents can be further reviewed and possibly implemented, some of these suggestions would require altering the review process of applications and greatly increasing the project review timeframes. Staff believes that noticing language and processes can be refined to provide a public comment period without greatly impacting the development review timelines.

For staff level review projects, staff is recommending that noticing procedures be modified similarly to those of second story additions to single family homes. After an application is submitted and staff has reviewed the project, notices would be sent to all adjacent property owners letting them know of the proposed application. The neighbors would have an opportunity to view the plans at City Hall and provide comments that are considered by staff prior to making a decision on the project. This process has been in place for about one year for second story additions to single family homes and has seemed to work well. The notification and opportunity to understand what will happen on an adjacent property appears to ease the worries and concerns of neighbors.

For public hearing items, staff is recommending additional noticing disbursement procedures. Including public notices in publications other than The Sun will require increasing the timeline for project review. Staff does not believe that this is necessary. In order to increase the opportunities for residents to become aware of proposed development projects, staff recommends that an electronic mail program (eBOT) be established for public notices. This will allow residents to select certain areas of interest and be automatically notified by e-mail about upcoming projects. The Information Technology Department (ITD) is working on a study issue develop the electronic mail program.

Additionally, staff is recommending that the envelopes, format, and language of public notices be reviewed. Public notices are currently mailed in plain white City envelopes. Staff is recommending printing special envelopes with large bold print on the front that tells the recipient this is a public hearing notices (i.e. NOTICE OF PUBLIC HEARING). The current public notice format includes a great deal of legal language that may not be required or could be placed on the back side of the paper, leaving more room for the project description. Additionally, the wording of the project description could be modified in order to more clearly explain the proposed project. For example, rather than just including the entire building square footage, the project description may also include the number of stories and the setbacks from the property lines.

In addition to the staff recommendations, the Planning Commission recommended that a web page be created to provide information about public notices and meetings.

Staff received comments from residential neighbors regarding existing trash enclosures on non-residential properties that are located near the shared property lines. It appears that these enclosures are impacting the privacy of the residential properties, even though there are limited hours within which the trash can be picked up.

SMC section 19.38.030 requires that trash enclosures not be located within the setback requirements unless approved by a Use Permit. The intent of this section is to limit impact of trash enclosures on neighboring properties. For many years this section has been interpreted to pertain to the least restrictive setback requirement. For example, in some instances the trash enclosure location has been approved where it meets the setback for the M-S (Industrial Service) zoning district, but not the increased setbacks imposed when it is adjacent to residential zoning districts.

Staff notified the community of this study issue in the following ways:

• Met with the SNAIL and HNDA neighborhood associations at the August meetings
• Notice placed in the August issue of the Lakewood Villager
• E-mailed contact person for other neighborhood associations with a notice to be forwarded to their members
• A web page was created on the Planning Division web site
• Placed an advertisement on KSUN
• Article was published in the summer issue of the Quarterly Report
• Display advertisement was published in the August 28 and September 11 issues of The Sun
• A legal ad was published in The Sun on September 4

A public hearing was held with the Planning Commission on September 23, 2002. The Planning Commission opened the public hearing and no one from the public spoke on this item. The Planning Commission adopted the code revisions as recommended by staff with changes as discussed in this report.

• Wall height between residential and non-residential properties
• Location of exterior security cameras
• Landscape buffer plant material
• Exterior lighting poles
• Noticing adjacent residential properties of non-residential project applications for additions or new construction
• Trash enclosure locations
• Definition of "glare" (as recommended by Planning Commission)

2. Introduce ordinances to the Municipal Code with modifications.
3. Do not modify the Municipal Code.