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1992-07 RESOLUTION NO. OE92-07 A RESOLUTION OF THE OLD ENCINITAS COHHUHITY ADVISORY BOARD APPROVING A KINOR USE PERMIT AND VARIANCE TO CONVERT AN EXISTING LEGAL NONCONFORMING DETACHED ACCESSORY STRUCTURE WITHIN THE REAR YARD SETBACK INTO A 2ND STORY ACCESSORY APARTMENT WITH A 2-CAR GARAGE BELOW FOR PROPERTY LOCATED AT 951 STRATFORD DRIVE (CASE HUMBER 92-009 KIN/V) WHEREAS, a request for consideration of a Minor Use Permit and Variance was filed by Ms. Dana Hill Dentz for the conversion of an existing legal nonconforming 2-story 670 sq ft detached accessory structure 15 ft into the 25 ft rear yard setback into a 2nd story accessory apartment with a 2-car garage below. A variance is requested to waive the requirement of section 30.48.040 W1 and W3, Chapter 30.04 which requires that accessory apartments conform to the main building setbacks and maintain the appearance of a single detached dwelling. In addition, a variance is requested to permit the existing 2nd story deck to encroach an additional 3 ft into the rear yard setback of an existing residential lot in the R-5 zone per Chapters 30.48 and 30.74 of the City of Encinitas Municipal Code, for the property located at 951 Stratford Drive, legally described as: All of Lot 20 in Block "B" of Encinitas Highlands, according to Map thereof No. 2141 filed in the Office of the County Recorder of San Diego County, December 4, 1928; EXCEPTING therefrom the Northerly 59.78 feet therefrom. WHEREAS, a public hearing was conducted on the application on March 24, 1992; WHEREAS, the Community Advisory Board considered: 1. The staff report dated March 17, 1992; 2. The application, site plan, floor plan, elevations and Statement of Justification submitted by the applicant dated received February 3, 1992; 3. Letter in support of the application submitted by Jose and Teresa Chavira dated received February 18, 1992; 4. Oral evidence submitted at the hearing; 5. Written evidence submitted at the hearing; and WHEREAS, the Old Encinitas Community Advisory Board made the following findings pursuant to Chapter 30.74 and 30.78 of the Encinitas Municipal Code: MN\92009VMI.RES (3-31-92) 1 (SEE ATTACHMENT "A") NOW, THEREFORE, BE IT RESOLVED by the Old Encinitas Community Advisory Board of the city of Encinitas that application 92-009 MIN/V is hereby approved subject to the following conditions: (SEE ATTACHMENT "B") BE IT FURTHER RESOLVED by the Old Encinitas Community Advisory Board of the City of Encinitas that: This project was found to be exempt from environmental review under Section 15301 (e) of the State CEQA Guidelines. PASSED AND ADOPTED this 24th day of March 1992, by the following vote, to wit: AYES: Cartwright, Birnbaum, Steyaert, Lewis, Cowen NAYS: None ABSENT: None ABSTAIN: None /! Vir inia C Ch irperson of t e Old Encinitas Community Advisory Board ATTEST: - -- /~ Tom Curriden Associate Planner MN\92009VMI.RES (3-31-92) 2 ATTACHMENT "A" Resolution No. OE92-07 Case No. 92-009 HIN/V Applicant: Dana Hill Dent. Findings for a Hinor Use Permit: The following findings must be made by the authorized agency to warrant approval of the Minor Use Permit in accordance with section 30.74.070 of the Municipal Code: 1. In reference to the Municipal Code Section 30.74.070 B1, the location, size, design or operating characteristics of the proposed project will not be incompatible with and will not adversely affect and will not be materially detrimental to adjacent uses, residences, buildings, structures or natural resources, with consideration given to, but not limited to: a. The adequacy of public facilities, services and utilities to serve the proposed project; b. The suitability of the site for the type and intensity of use or development which is proposed; and c. The harmful effect, if any, upon environmental quality and natural resources of the city; Facts: The proposal is to convert an existing 2-story accessory structure with 2-car garage into an accessory apartment. The detached structure encroaches 15 ft into the required 25 ft rear yard setback. The 2nd story of the accessory structure was illegally converted into a unit shortly after the building was completed in 1970 and has been utilized as such for much of the time since. Discussion: No interior or exterior changes are proposed for the accessory structure with the exception of a reduction in some of the 2nd story deck and the legal conversion of use. The structure was legally constructed over 20 years ago and accessory apartments are compatible with the medium density character of the surrounding neighborhood. All public utilities are provided on-site and no additional services will need to be provided. No negative impacts on adjacent properties or to the environment have been identified since parking is provided on-site and a maximum of two qualifying people can live in the unit. Conclusion: Therefore, the Board finds that the project is compatible with the surrounding neighborhood and any negative impacts from the accessory apartment are mitigated since only MN\92009VMI.SR (3-31-92) 7 I 2 elderly, handicapped or family members are permitted to live in the unit and the Code Enforcement officer may inspect the unit on demand to ensure compliance with the conditions of approval. 2. In reference to the Municipal Code section 30.74.070 B2, the impacts of the proposed project will not adversely affect the policies of the Encinitas General Plan or the provisions of this Code. Facts: This proposal is for the conversion of an existing 2- story accessory structure into a 2nd story accessory apartment with a 2-car garage below. The structure was legally constructed and complied with the Codes in effect at the time it was built in 1970. Discussion: The Municipal Code and the policies of the General Plan explicitly provide for accessory apartments with the issuance of a Minor Use Permit. This project will comply with all policies of the Encinitas General Plan or the provisions of this Code with the exception of the regulations for which a variance is requested. A condition is provided in the resolution which requires that either the unit be reduced in floor area to 640 sq ft enabling it to be rented to elderly, handicapped or family members, or remain at 670 sq ft and be rented solely to elderly persons 62 years and older to conform with state law. Conclusions: Therefore, should the variance request be granted, this project will comply with the Municipal Code and the Policies of the General Plan. 3. In reference to the Municipal Code Section 30.74.070 B3, the project complies with all other regulations, conditions or policies imposed by this Code. Facts: This proposal is for the conversion of an existing legal nonconforming accessory structure into an accessory apartment. Discussion: with the exception of the standards with which a variance is requested, the proposed accessory apartment conforms with all regulations within the Municipal Code including building setbacks, height, parking requirements and lot coverage. The project is conditioned to require that the accessory apartment be made available only to qualifying tenants who are elderly, handicapped or family members, and that a covenant be recorded which sets forth these conditions. Conclusions: Therefore, the proposed accessory apartment will comply with other conditions or policies imposed by this Code. MN\92009VMI.SR (3-31-92) 8 Findings for a Variance: (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. In reference to the Municipal Code section 30.87.030 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 zoning classification. Facts: The proposal is to encroach 15 ft into the required 25 ft rear yard setback to enable the conversion of an existing legal nonconforming 2-story detached accessory structure to an accessory apartment with a 2-car garage below. The existing structure does not retain the appearance of a single dwelling since it is 38 ft east of the main residence as it has existed for more than 20 years. In addition, an existing 2nd story deck encroaches further into the rear yard setback almost to the property line, but the applicant proposes to cut back the deck to the eave line, approximately 3 ft from the accessory structure. Discussion: The applicant contends that special circumstances are applicable to this project since the existing accessory structure is legal nonconforming and the conversion of the unit will only legalize a use that has existed for many years. In addition, the size, shape and appearance of the structure is compatible with other homes in the neighborhood. Finally, the deck is proposed to be reduced to the minimum allowable width per Uniform Building Code and will not encroach any further than the existing building eaves. Conclusion: Therefore, the Board finds that special circumstances are applicable to the project since the detached accessory structure was legally constructed over 20 years ago which is a circumstance enjoyed by few others in the vicinity. It is compatible with other structures in the neighborhood, and the deck has been reduced in size as much as possible while retaining the use of the deck. In addition, a requirement for providing an accessory apartment anywhere else on the property would require construction of a new structure and the reconversion of the existing unit back to nonhabitab1e space, resulting in an additional structure on the site and not taking advantage of existing resources. 9 B. In reference to the Municipal Code section 30.78.030 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 convert an existing detached accessory structure into a 2-story accessory apartment with a 2-car garage below. The variance request is to encroach 15 ft into the rear yard setback with the unit and another 3 ft with a 2nd story deck. In addition, the request is to waive the requirement that the accessory apartment retain the appearance of a single detached dwelling. Discussion: The applicant contends that the approval of this request does not represent a special privilege since there are several other structures in the neighborhood that encroach into setbacks and this structure was legally created in the rear yard setback. In addition, there are other properties in the neighborhood with second story decks that encroach into the setbacks more than that which is permitted by Code. Conclusions: Therefore, this variance does not constitute special privilege since other property owners also enjoy encroachments into front and rear yards. In addition, since the existing structure was legally created more than 20 years ago, the request is to legalize a use in the setback that has existed for many years. C. In reference to the Municipal Code section 30.78.030 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 to encroach 15 ft into the 25 ft rear yard setback with an existing detached accessory structure which is proposed to be converted to an accessory apartment upon the issuance of a Minor Use Permit. Discussion: The accessory apartment is a use which is permi tted upon the issuance of a Minor Use Permi t. The variance request will enable the unit to be legalized within the rear yard setback and detached from the main house. Conclusions: Approval of the accessory apartment within the rear yard setback upon issuance of a Minor Use Permit will not resul t in any change in use not permitted in residential zones. 10 I D. In reference to the Municipal Code section 30.78.030 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 resul t 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 convert an existing legal nonconforming 2-story detached accessory structure to an accessory apartment with a 2-car garage below. The variance is required to enable the uni t to encroach 15 ft into the required 25ft rear yard setback as required per section 30.16.010 A10, to waive the requirement that the unit retain the appearance of a single detached dwelling, and to permit an 2nd story existing deck to encroach an additional 3 ft further. The existing structure is 38 ft east of the main structure and, therefore, does not comply with section 30.48.040 W1 and W3 which require that accessory apartments be outside of main building setbacks and retain the appearance of a single detached dwelling. Discussion: An alternate development plan which would involve constructing the accessory unit between the main house and the accessory structure is possible, but this would result in a result in an additional structure on the site. This option may be more impacting to the site and to the neighborhood since more of the site would be built on. In addition, while the removal of the entire 2nd story deck is possible, this option would deny the applicant a privilege that many others in the neighborhood enj oy and the 3 ft wide deck is the minimum that can be constructed per the Uniform Building Code. The need for the variance is not self-induced since the existing detached accessory structure was legally constructed, but illegally converted. This application is requested to bring the illegal unit into compliance with City Codes. The only other option available to the property owner would be to reconvert the unit into nonhabitable space and construct an accessory apartment elsewhere on the property. As noted above, this option would be more impacting to the site. Finally, the approval of the Minor Use Permit would provide 11 housing for elderly, handicapped or family members. The approval of this variance would not legalize the maintenance of a private or public nuisance since the structure is in good condition, ample parking is provided on-site, and a maximum of two qualifying people can live in the unit. Conclusions: Therefore, the Board finds that no alternate development plan is possible which would be less impacting to the site and adjacent properties, that the encroachment into the rear yard is not self induced, and that the approval of this variance will not result in the legalization or the maintenance of any public or private nuisance. 12 RESOLUTION NO. OE92-07 CONDITIONS OF APPROVAL ATTACHMENT "B" Applicant: Hill Dentz Case No: 92-009 MIN/V Subject: Minor Use Permit and Variance to convert an existing legal nonconforming detached accessory building in the rear yard into a 2nd story accessory apartment with 2-car garage below. In addition, variance to allow the unit to be detached from the main structure and to allow a deck to encroach further into the rear yard. Location: 951 Stratford Drive 1. SPECIFIC CONDITIONS A. Prior to permit issuance, the applicant shall record a covenant which sets forth the conditions and use limitations of this approval. B. The applicant shall bring the Code violations into compliance with City regulations within 60 days from the date of this approval. The violations may be brought into compliance as follows: 1. Receive a Building Permit for the 2nd story deck and reduce its width to approximately 3 ft. (the width of the building eaves on the structures east side) . 2. Either receive building permits to convert the existing unit into an accessory apartment at its current size and record a covenant which limits its occupancy to a maximum of 2 elderly persons 62 years or older; or reduce the size of the structure to 640 sq. ft. floor area and record a covenant which restricts its occupancy to elderly persons 60 years and older, handicapped persons or family members. C. The applicant shall pay project review and permit processing fees at double the current rate since the application is the result of a Code Enforcement action. MN/04/CRO10-901wp51 (4/3/92-3) D. One of the dwelling units shall be occupied by the property owner. The dwelling unit not occupied by the owner shall only be occupied by person(s) that qualify as elderly, handicapped, or immediate family members. E. Separate sale or ownership of accessory apartment from the primary dwelling on a lot or parcel is prohibited. F. On a form provided by the Department of Planning and Community Development the owner shall file with the application a signed affidavit agreeing to accessory apartment occupancy requirements. The affidavit shall include provisions stating that 1) the owner consents to inspection of the premises by the code enforcement officer in order to verify occupancy and 2) that the owner shall furnish a new affidavit to said officer upon request. G. Prior to issuance of a building permit for an accessory apartment the owner shall submit a notarized recorded copy of an agreement between the owner and the City of Encinitas on a form supplied by the Department of Planning and Community Development. Said agreement shall be filed with and become a permanent part of the minor use permit which granted the Accessory Apartment. H. On a form provided by the Department of Planning and Community Development, subsequent owners shall be required to file an affidavit to establish eligibility before occupying the second dwelling unit on said property. 11. STANDARD CONDITIONS 1. GENERAL CONDITIONS A. This approval will expire in 60 days on May 23, 1992 at 5:00 p.m. unless the conditions have been met or an extension has been approved by the Authorized Agency. B. This approval may be appealed to the Planning Commission within 15 calendar days from the date of this approval. C. Approval of this request shall not waive compliance with any sections of the Zoning Code and all other applicable City Ordinances in effect at the time of Building Permit issuance unless specifically waived here. MN/04/CRO10-901wp51 (4/3/92-3) I D. 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 unless specifically waived here. E. Permits from other agencies will be required as follows: state Coastal Commission F. Project is approved as submitted/modified as evidenced by the site plan dated received by the City of Encinitas on February 3, 1992 and signed by a City Official as approved by the Old Encinitas Community Advisory Board on March 24, 1992 and shall not be altered without Planning and Community Development Department review and approval. G. Nothing in this permit shall authorize the applicant to intensify the authorized activity beyond that which is specifically described in this permit. APPLICANT SHALL CONTACT THE DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS: 2. SITE DEVELOPMENT A. site shall be developed in accordance with the approved site plan which is dated and signed as approved on March 24, 1992 by the Old Encinitas Community Advisory Board and which is on file in the Planning and Community Development Department and the conditions contained herein. 3. PARKING AND VEHICULAR ACCESS A. Driveways shall meet the standards of the Zoning Ordinance, Public Works Standards, and the Offstreet Parking Design Manual. MN/04/CRO10-901wp51 (4/3/92-3) APPLICANT SHALL CONTACT THE ENCINITAS FIRE PROTECTION DISTRICT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS: 4. FIRE A. Prior to final recordation, the applicant shall submit a letter from the Fire District stating that all development impact, plan check and/or cost recovery fees have been paid or secured to the satisfaction of the District. Address numbers shall be clearly visible from the street fronting the structure. 5. All City Codes, regulations, and policies in effect at the time of final map submittal shall apply. APPLICANT SHALL CONTACT THE PUBLIC WORKS DEPARTMENT REGARDING COMPLIANCE WITH THE FOLLOWING CONDITIONS: 1. Concentrated flows across driveways and/or sidewalks shall not be permitted. 2. The developer shall make an offer of dedication to the City for all public streets and easements required by these conditions or shown on the SITE DEVELOPMENT PLAN. The offer shall be made PRIOR TO ISSUANCE OF ANY BUILDING PERMIT for this project. All land so offered shall be granted to the city free and clear of all liens and encumbrances and without cost to the City. Streets that are already public are not required to be rededicated. 3. 8 feet shall be dedicated by the developer along the lot frontage of Melba Road based on a center line to right-of-way width of 28 feet and in conformance with City of Encinitas Standards. Stratford Drive right of way is a 40 feet wide special case street. 4. Developer shall execute and record a covenant with the County Recorder agreeing not to oppose the formation of an assessment district to fund the installation of right-of-way improvements. MN/04/CROI0-901wp51 (4/3/92-3) 5. The developer shall comply with all the rules, regulations and design requirements of the respective utility agencies regarding services to the project. 6. The developer shall be responsible for coordination with S.D.G. & E., Pacific Telephone, and Cable TV authorities. 7. All proposed utilities within the project shall be installed underground including existing utilities unless exempt by the Municipal Code. 8. The developer shall be responsible for the relocation and undergrounding of existing public utilities, as required. MN/04/CROI0-901wp51 (4/3/92-3)