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1989-20 . . . - RESOLUTION NO. L-89-20 A RESOLUTION OF THE LEUCADIA COMMUNITY ADVISORY BOARD TO DENY A VARIANCE TO . PERMIT A SPECIAL PARKING PLAN IN LIEU OF FIVE REQUIRED SPACES AND TO DENY A VARIANCE TO PERMIT A 5 1/2 FOOT WALL IN A FRONT YARD SETBACK WHERE A MAXIMUM OF 4 FEET IS PERMITTED FOR A PROPERTY AT 996 NORTH HIGHWAY 101 (CASE NO. SS-099-V) WHEREAS, a request for consideration of a Variance to allow a special parking plan in lieu of the five parking spaces required and for consideration of a Variance to allow a 5 1/2 foot glass wall in the front yard setback where a maximum of 4 feet is permitted was filed by Shiree Rose, as per Chapter 30.78 of the City of Encinitas Municipal/Zoning Codes, for the property located at 996 North Highway 101, legally described as: Lots 3 and 4, Block 4, South Coast Park, Map No. 1859. WHEREAS, public hearings were conducted on the application, April 14, 1988, January 26, 1989, March 30, 1989 and October 5, 1989 and all persons desiring to be heard were heard; and WHEREAS, evidence was submitted and considered to include without limitation: 1. The staff reports dated April 11, 1988, January 19,1989, March 24, 1989 and September 29, 1989; . 2. The proposed General Plan, Local Coastal Program, Zoning Code and maps; 3. Oral evidence submitted at the hearing; 4. Written evidence submitted at the hearing; 5. Documentation and site plans submitted by the applicant; and WHEREAS, the Leucadia Community Advisory Board was unable to make the required findings pursuant to Section 30.78 of the Zoning Code: SEE ATTACHMENTS A and B NOW, THEREFORE, BE IT RESOLVED by the Leucadia Community Advisory Board of the City of Encinitas that the Variance Applications are hereby disapproved. 8 (CCjeconres2) CASE NO. 88-099-V PAGE 1 OF 7 - " PASSED AND ADOPTED this 5th day of October, 1989, by the following vote, to wit: 8 AYES: Harwood, Kaden, Shur ~ None None ~ Locko, Eldon ~Sfi"'J1 Harwood, Chairperson Leucadia ity Advisory Board ATTEST: Llnda Niles Associate Plan er . 8 (CC/econres2) CASE NO. 88-099-V PAGE 2 OF 7 - .' ATTACHMENT A LEUCADIA COMMUNITY ADVISORY BOARD 8 RESOLUTION NO. L-89-20 Findings for a Variance (Section 30.78.030 Municipal Code) 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 to Consider: The applicant has stated that other parcels in the vicinity have been developed and modified without supplying sufficient parking. The applicant feels, therefore, that a hardship is being imposed on his site by enforcing the current zoning standards that make it considerably more difficult to develop the parcel than if these constraints didn't exist. . The City, however, adopted these more stringent standards to avoid exacerbating the already difficult parking situation found in several parts of the City including the area of the applicant's business. In conclusion, special circumstances do not exist which would justify the granting of the variance. 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 to Consider: The granting of the variance would grant a special privilege and would set a precedence which could be used to justify the expansion of other businesses without the addition of badly needed parking. 8 (CC/ econres2) CASE NO. 88-099-V PAGE 3 OF 7 - 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. The provisions of this section 8 shall not apply to conditional use permits. Evidence to Consider: The use of the property is proposed to be commercial which is expressly allowed in the General Commercial 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 to Consider: 1. There is not sufficient available room on the site to develop the five additional parking spaces needed. Staff has worked with the applicant to develop a formal legal agreement authorizing a special parking plan with an adjaent property in lieu of five additional required parking spaces. This plan would have enabled the applicant to use five spaces after 5:00 PM and weekends, an off-peak time for the office use but a peak time for the restaurant. This effort however, failed. The alternative exists of closing off the patio area for dining and thereby, reducing floor area sufficiently to eliminate the need for additional parking spaces. This addition was made relatively recently and, therefore, is not essential to the operation of the business. 2. The need for the variance was self-induced, because the kitchen area was expanded by the owner without meeting City parking requirements. 8 (CCjeconres2) CASE NO. 88-099-V PAGE 4 OF 7 - 3. The granting of the variance would not constitute a rezoning because the use which is permitted in the zone would not change. 8 4. The granting of the variance would not authorize or legalize the maintenence of any private or public nuisance except for the fact that parking congestion would be exacerbated. . 8 (CCjeconreS2) CASE NO. 88-099-V PAGE 5 OF 7 - . ATTACHMENT B LEUCADIA COMMUNITY ADVISORY BOARD 8 RESOLUTION NO. L-89-20 Findings for a Variance (Section 30.78.030 Municipal Code) 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 to Consider: There appear to be no special circumstances which would justify the granting of the variance. 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 to Consider: The granting of the variance would potentially establish a precedence that could be used by other property owners to justify over height walls in the front yard setback. 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. The provisions of this section shall not apply to conditional use permits. Evidence to Consider: The commercial/restaurant use is expressly permitted in the General Commercial zone and the granting of a variance would not authorize any other use. 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 8 (CCj econres 2) CASE NO. 88-099-V PAGE 6 OF 7 - , 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 to Consider: 1. The outdoor seating area will not be used and, therefore, is not essential to the operation of the restaurant. The removal of this area or reduction of the height of the wall to 4 feet is, therefore, feasible. 2. The need for the variance is self-induced because it was built recently and did not comply with the height requirements in effect at the time of construction. 3. The granting of the variance would not constitute such a degree of variation as to constitute a rezoning since the use would remain the same and is permitted in the zone. . 4. The granting of the variance might legalize the maintenance of a nuisance since the outdoor seating area and wall do partially obstruct pedestrian traffic. 8 (CCjeconreS2) CASE NO. 88-099-V PAGE 7 OF 7