1993-03
RESOLUTION NO. OE 93-03
A RESOLUTION OF THE OLD ENCINITAS COMMUNITY ADVISORY BOARD
APPROVING A VARIANCE TO ENCROACH INTO THE REQUIRED 20 FT REAR
YARD SETBACK OF THE R-15 ZONE AND TO EXCEED THE MAXIMUM 40% LOT
COVERAGE FOR A 108 SQ FT ADDITION TO 2 EXISTING ILLEGAL
RESIDENTIAL UNITS, ENABLING THEIR LEGALIZATION THROUGH THE CITY'S
ILLEGAL UNIT POLICY FOR THE PROPERTY LOCATED AT 852 THIRD STREET
(CASE NUMBER 93-093 V)
WHEREAS, a request for consideration of a Variance was filed
by Mr. Donald Clark for a 108 sq ft addition to 2 existing illegal
units to encroach into the 20 ft rear yard setback of the R-15 zone
and to exceed maximum lot coverage in accordance with Chapters
30.78 of the City of Encinitas Municipal Code, for the property
located in the R-15 zone at 852 Third Street, legally described as:
Lot 7 in Block 32 of Encinitas, in the County of San Diego,
State of California, according to Map thereof No. 148, filed
in the office of the County Recorder of San Diego County June
12, 1883.
WHEREAS, a public hearing was conducted on the application on
July 22, 1993, by the Old Encinitas Community Advisory Board; and
WHEREAS, the Board considered:
1. The June 17, 1993 staff report to the Community Advisory
Board with attachments (continued to July 22, 1993 for
lack of a quorum)
2. Application and project plans dated received May 20,
1993;
3. Illegal Unit Policy authorization letter from the
Director of Community Development dated September 3,
1991;
4. Correspondence from the public consisting of 9 letters in
support of the project;
5. Oral evidence submitted at the hearing;
6. Written evidence submitted at the hearing; and
WHEREAS, the Community Advisory Board made the following
findings pursuant to Chapters 30.78 of the Encinitas Municipal
Code:
(SEE ATTACHMENT "A")
NOW, THEREFORE, BE IT RESOLVED that the Community Advisory
Board of the City of Encinitas hereby approves application 93-093
V subject to the following conditions:
(SEE ATTACHMENT "B")
cd/MN/SR93093.0El (6-10-93) 5
BE IT FURTHER RESOLVED that the Community Advisory board, in
their independent judgement, found the project exempt from
environmental review pursuant to CEQA Section 15301 (e) since the
project is an addition of less than 2,500 sq ft in an area with
existing facilities and not environmentally sensitive.
PASSED AND ADOPTED this 22nd day of July, 1993, by the
following vote, to wit:
AYES: Birnbaum, Elliott, Comeau, McGrath, Wells
NAYS: None
ABSENT: None
ABSTAIN: None
elL.. ~
Adam Birnbaum,
Chairman of the Old
Encinitas Community
Advisory Board
ATTEST:
~/".~,
Associate Planner
cd/MN/SR93093.0E1 (6-10-93) 6
I
ATTACHMENT "A"
Resolution No. OE-93-03
Case No. 93-093 V
Applicant: Donald Clark
Findings: (Code Section, Factual Circumstances, Reasoning,
Conclusion
What follows are the findings of fact the Board must make to
approve the variance request pursuant to Zoning Ordinance Section
30.78.030:
A. A variance from the terms of the zoning regulations 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
regulations deprives such property of privileges enjoyed by
other property in the vicinity and under the same zonlng
classification.
Facts: The proposal is to encroach 17 I 6" into the required 20
ft rear yard setback and to exceed the maximum 40% lot
coverage to 40.86% for a 108 sq ft, 6' x 18' addition to 2
existing illegal units in the R-15 zone. The approximate 55
sq ft addition to the front (south) side of each unit is
requested to enable their legalization through the city's
illegal unit policy which allows existing units constructed
prior to October 1986 to be legalized provided that they meet
zoning standards to the extent practical and comply with the
current Building and Fire Codes. The existing structure, a
480 sq ft garage converted into 2 units sometime in 1959,
encroaches 17'6" into the rear yard setback and 2'6" into the
5' north side yard setback. An additional 55 sq ft per unit
is required to meet the minimum 220 sq ft floor area
(excluding bathroom, kitchen and closet).
Discussion: Special circumstances are applicable to this
property since the existing structure already encroaches 17' 6 II
into the rear yard setback and no feasible addition to the 2
units is possible without a variance to encroach into the rear
yard setback, exceed lot coverage, or both (as is requested).
In addition, the 6 ft expansion will not encroach any further
into the setback than the existing building and the proposal
will only exceed the permitted lot coverage by 60 sq ft.
Finally, the applicant has identified 10 other properties
within 300 ft of the subject site with encroachments and 4
other properties with 3 or more units on an identical 5,000 sq
ft lot (Chapter 30.09, Use No. 102 provides for only 2 units
on a 5,000 sq ft lot in the R-5 zone).
cd/MN/SR93093.0E1 (6-10-93) 7
I
Conclusion: Therefore, the Board finds that special
circumstances are applicable to the project due to the
inability to legalize both units through the city's illegal
unit policy without benefit of a variance and since there are
other properties within the neighborhood with similar rear
yard encroachments, multiple units and lot coverage which
exceeds the standards.
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 same vicinity and
zone in which property is situated.
Facts: The proposal is to encroach 17'6" into the required 20
ft rear yard setback and to exceed the maximum 40% lot
coverage to 40.86% for a 108 sq ft, 6' x 18' addition to 2
existing illegal units in the R-15 zone. The applicant has
identified 10 other properties within 300 ft of the subject
site with encroachments and 4 other properties with 3 or more
units on an identical 5,000 sq ft lot. The applicant received
a preliminary approval from the city to proceed with
legalization of the 2 units through the city's illegal
dwelling unit policy.
Discussion: The grant of this variance does not constitute a
grant of special privileges inconsistent with the limitations
upon other properties since there are other properties in the
neighborhood which enjoy building encroachments into the rear
yard and multiple units on a 5,000 sq ft lot.
Conclusion: Therefore, the Board finds that the grant of this
variance does not constitute a grant of special privileges
inconsistent with the limitations upon other property owners
in the neighborhood.
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 regulations governing the parcel of
property. The provisions of this section shall not apply to
use permits.
Facts: The proposal is for a variance to encroach 17'6" into
the 20 ft rear yard setback of the R-15 zone and to exceed the
40% lot coverage to 40.86% for a 108 sq ft addition to 2
illegal units, enabling their legalization through the city's
illegal unit policy. The addition will not change the
residential use or character of the neighborhood since the 2
units have existed (illegally) since 1959.
cd/MN/SR93093.0E1 (6-10-93) 8
Discussion: The grant of this variance does not authorize a
use or activity which is not expressly permitted in the R-15
zone or through the illegal unit policy.
Conclusion: Therefore, the Board finds that the grant of this
variance will not change the residential use or character of
the subject parcel.
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;
4. Would authorize or legalize the maintenance of any public
or private nuisance.
Facts: The proposal is to encroach 17'6" into the required 20
ft rear yard setback and to exceed the maximum 40% lot
coverage to 40.86% for a 108 sq ft, 6' x 18' addition to 2
existing illegal units in the R-15 zone. The approximate 55
sq ft addition to the front (south) side of each unit is
requested to enable their legalization through the city's
illegal unit policy. The existing structure, a 480 sq ft
garage converted into 2 units sometime in 1959, encroaches
17'6" into the rear yard setback and 2'6" into the 5' north
side yard setback. An additional 55 sq ft per unit is
required to meet the minimum 220 sq ft floor area (excluding
bathroom, kitchen and closet). The primary duplex is located
10 ft east of, and at a lower elevation than the converted
garage. There are 2 parking spaces located approximately 7 ft
south of the converted garage.
Discussion: Based on a site analysis which includes building
size and location on the site, there is no alternate
development plan available which would allow the legalization
of both illegal units through the city's illegal unit policy
without benefit of a variance. Although an addition to these
units could be constructed to the east of the converted garage
and outside of the 20 ft rear yard setback, this option would
result in elimination of natural light to the main duplex unit
and would "attach" the converted garage to the main structure.
In addition, this option would still require a variance to
exceed lot coverage since the existing coverage is already
cd/MN/SR93093.0E1 (6-10-93) 9
1,954 sq ft and a 108 sq ft addition is required to meet the
minimum Uniform Building Code standards. Secondly, a 2nd
story addition to the converted garage would also require a
rear yard setback variance.
The need for the addition is not self-induced since the
request for the variance is due to the unit size requirements
contained in the Uniform Building Code and the illegal unit
policy provides for their legalization since they existed
prior to October 1986. Addi tionally, the grant of this
variance wLII not constitute a rezoning or other amendment to
the Municipal Code since this is processed under the illegal
unit policy. Finally, there is no evidence that the grant of
this variance would authorize the maintenance of a public or
private nuisance.
Conclusion: Therefore, the Board finds that there are no
alternate development plans available which would be of less
impact to the site, the variance is not self-induced, it will
not constitute a rezoning or amendment to the Municipal Code,
and it will not authorize the maintenance of a public or
private nuisance.
cd/MN/SR93093.0E1 (6-10-93) 10
ATTACHMENT "c"
Project description. : CLARK, DON
Project number. . . : 93-93
Project type. . . . . MAJOR VARIANCE
.
Application date . 05/18/93
. . .
Variance to encroach into the required 20 ft rear yard setback of
the R-15 zone and to exceed the maximum 40% lot coverage for a
108 sq ft addition to 2 existing illegal residential units (to be
legalized).
Applicant: Donald Clark
Case No.: 93-093 V
Location: 852 Third street
Environmental status: Exempt per Section 15301 (e) of CEQA
specific Conditions:
1. The applicant shall comply with all conditions contained
within the illegal unit policy in effect at the time of approval
including making the units available to low or very low income
households, unless otherwise waived by the city.
General Conditions:
1. The project is approved in accordance with the plans dated
received May 20, 1993 and shall not be altered without Community
Development Department review and approval
2. The applicant shall obtain permits from the California
Coastal Commission and all other applicable regulatory agencies.
3. This approval may be appealed to the Authorized Agency
within 15 calendar days from the date of this approval.
4. Approval of this request shall not waive compliance with any
sections of the Municipal Code and all other applicable City
Ordinances in effect at the time of Building Permit issuance
unless specifically waived here.
5. This approval shall become null and void if building permits
are not issued for this project within 2 years from the date of
project approval. If the applicant is not able to obtain
building permits due to a growth management program within the 2
year period, this approval may be extended by the Community
Development Director to allow for the issuance of building
permits.
6. Prior to permit issuance, the applicant shall execute and
record a covenant setting forth the terms and conditions of this
approval to the satisfaction of the Community Development
Department.
7. For new residential dwelling unites), the applicant shall pay
development fees at the established rate. Such fees may include,
but not be limited to: Permit and Plan Checking Fees, School
Fees, Water and Sewer Service Fees, Traffic Mitigation Fees,
Drainage Fees, and Park Fees. Arrangements to pay these fees
shall be made prior to Final Map approval (where applicable) or
building permit agency to the satisfaction of the respective
agencles.
8. The applicant shall comply with the latest adopted Uniform
Building Code, Uniform Mechanical Code, Uniform Plumbing Code,
National Electric Code, Uniform Fire Code, and all other
applicable codes and ordinances in effect at the time of Building
Permit issuance.
9. A Building permit is required for this project. Submit plans
and specifications to the Building Division for a complete
plancheck and review. Please contact the Building Division if you
have specific questions about your plan submittal.
THE APPLICANT SHALL CONTACT THE ENCINITAS FIRE PREVENTION
DISTRICT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS:
10. ADDRESS NUMBERS: Address numbers shall be placed in a
location that will allow them to be clearly visible from the
street fronting the structure. The height of the numbers shall
conform to Fire District Standards. NOTE: Where structures are
located off a roadway on long driveways, a monument marker shall
be placed at the entrance where the driveway intersects the main
roadway. Permanent numbers shall be affixed to this marker.
11. SMOKE DETECTORS: Smoke detectors shall be inspected by the
Fire Department.
PLEASE CONTACT THE ENGINEERING DEPARTMENT REGARDING THE FOLLOWING
CONDITIONS:
The applicant shall pave the alley to city standards.