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