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1991-11 . RESOLUTION NO. NE 91-11 A RESOLUTION OF THE NEW ENCINITAS COMMUNITY ADVISORY BOARD APPROVING A VARIANCE FROM SECTION 30.16.010 OF THE ZONING ORDINANCE FOR PROPERTY LOCATED AT 126 BEECHTREE DRIVE, ENCINITAS (CASE NO. 91-092V) WHEREAS, Steven Stromberg applied for a Variance in accordance with Chapter 30.78 Variances from Section 30.16.010 Residential Zones of the City of Encinitas Zoning Ordinance to allow a retaining wall and an existing fence height to exceed the required 4' height limit in the street side yard setback by 7' for a total of 11' in height (maximum stucco block retaining wall height: 5' 5"; maximum cedar fencing height: 5'6" for a total of 11'), located at 126 Beechtree Drive and legally described as follows: . Lot 1 of Summerfield Encinitas Unit No. 1, in the County of San Diego, State of California, according to Map thereof No. 7296, filed in the Office of the County Recorder of San Diego County on June 1, 1972. WHEREAS, a public hearing was conducted on application No. 91-092-V on July 1, 1991 by the New Encinitas Community Advisory Board, at which time all persons desiring to be heard were heard; and, WHEREAS, evidence was submitted and considered to to include without limitation: a. Site plan submitted by the applicant and received by the City on May 31, 1991. b. Written information submitted with the application; c. Oral testimony from staff, applicant, and public made a part of the record at said public hearing; d. CAB staff report (91-092-V) dated June 24, 1991 which is on file in the Department of Planning and Community Development; and . LN/CAB14-189wp . e. Additional written documentation. NOW, THEREFORE, BE IT RESOLVED by the New Encinitas Community Advisory Board of the City of Encinitas that: A. A variance from the terms of the zoning ordinances shall be granted only when, because of the special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. Evidence : The New Encinitas Community Advisory Board finds that the applicant's residence is located at the uphill side of a sloping lot but is at a lower elevation than the surrounding properties. Because of the location of the residence on the property and the topography of the property, the applicant is deprived of his privacy. if the 4' fence height limitation were applied. Further, due to the topography of the property and the surrounding properties, the applicant's property receives the storm . water runoff from the surrounding properties causing erosion of the bank on the north side of the property. The retaining wall will alleviate the erosion of the slope and deter the flow of erosion onto Elmbranch Street. B. Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized will not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated. Evidence: The granting of this variance would not constitute the granting of special privileges inconsistent with limitations upon other properties in the vicinity and zone in which the property is located because the fence height when measured from the grade of the lot retained by the wall does not exceed 6'. Further, the applicant would be deprived of his privacy if the required 4' height were maintained. . LN/CAB14-189wp . C. A variance will not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zoning regulation governing the parcel of property. Evidence: The granting of this variance would not authorize a use or activity not expressly authorized by the zoning regulations governing this property since the use is a single family dwelling which is consistent with the zone. D. No variance shall be granted if the inability to enjoy the privilege enjoyed by other property in the vicinity and under identical zoning classification: 1. Could be avoided by an alternate development plan; which would be of less significant impact to the site and adjacent properties than the project requiring a variance. 2. Is self-induced as a result of an action taken by the property owner or the owner's predecessor; 3. Would allow such a degree of variation as to . constitute a rezoning or other amendment to the zoning code; or 4. Would authorize or legalize the maintenance of any private or public nuisance. Evidence: 1. The fence and retaining wall are needed in its present location along the property's street side yard to control erosion and provide privacy to the residence's rear yard. In order to locate the fence outside the required 15' setback so as to not require a variance approximately 1,110 square feet of the applicant's usable side and rear yards would be eliminated. If the fence were to be setback 5' from the retaining wall as permitted per the Municipal Code, it would restrict access from the front yard into the rear yard because the fencing would be located close to the residence and would still eliminate approximately 370 square feet of usable side and year yard areas. . LN/CAB14-189wp . 2. The need for the variance is not self-induced since the residence was in its present location at the time the applicant purchased the property, and a six foot high fence was also in place. The applicant has erected a retaining wall to stop the erosion of the embankment caused by storm water runoff of the surrounding properties and replaced the 6' wood fencing to ensure his privacy. 3. The granting of the variance would only permit privacy fencing in association with a single family residence as currently allowed within the R-5 zone and would not, therefore, constitute a rezoning. 4. There has been no evidence submitted to indicate a private or public nuisance exists on the site which the variance would legalize or authorize. BE IT ALSO RESOLVED THAT the application for Variance for 91- 092-V is hereby APPROVED subject to the following conditions: 1. The project is approved as described on the plans received by the city on May 31 and shall not be altered . without Community Advisory Board approval or as provided by Municipal Code. 2. This approval may be appealed to the Planning Commission within 15 calendar days from the date of this approval. 3. In the event that any of the conditions of this permit are not satisfied, the Planning and Community Development Department shall cause a noticed hearing to be set before the authorized agency to determine why the City of Encinitas should not revoke this approval. 4. Upon a compelling public necessity demonstrated at a noticed hearing, the City of Encinitas, acting through the authorized agency, may add, amend, or delete conditions and regulations contained in this permit. 5. Nothing in this permit shall authorize the applicant to intensify the authorized activity beyond that which is specifically described in this permit. 6. Approval of this request shall not waive compliance with any sections of the Zoning Code and all other applicable City Ordinances as permitted by this approval. . LN/CAB14-189wp . 7. Permits or findings of exemption shall be obtained from the Coastal Commission prior to Building Permit issuance for the subject property if applicable. 8. Fire Department: Within 30 calendar days of the effective period of this variance, the applicant shall submit a letter from the fire district to the Community Development Department stating that all project review fees have been paid. Address numbers shall be clearly visible from the street fronting the structure. The height of the numbers shall conform to Fire District Standards. 9. The posts on the cedar fence shall be cut down to the height of the fencing and stained to match the woodwork of the residence and wood treated. The retaining wall shall be stucco coated and the stucco is to be painted to match the house. These improvements are to be completed within sixty days of the effective date of this varl.ance. 10. The footing located in the right-of-way be removed prior to finalization of the building permit. . PASSED AND ADOPTED this 1st day of July, 1991, by the following vote, to wit: AYES: Beck, Felker, Patton, Weaver NAYS: None ABSENT: Grajek ABSTAIN: None ATTEST: /1 e-~lf~ ~~ Craig Olson, Assistant Planner . mmb/CAB91-092wp