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.
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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.
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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.
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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.
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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.
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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.
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