1992-11
RESOLUTION NO. OE92-11
A RESOLUTION OF THE OLD ENCINITAS
CODUNITY ADVISORY BOARD APPROVING A VARIANCE TO ENCROACH 3 FT
INTO THE REQUIRED 20' REAR YARD SETBACK OF THE R-11 ZONE FOR
A SECOND STORY ADDITION ABOVE AN EXISTING ATTACHED GARAGE FOR
PROPERTY LOCATED AT 661 MELBA ROAD
(CASE NUMBER 92-050 V)
WHEREAS, a request for consideration of a variance was filed
by Mr. Sidney Shaw to permit a 3 ft encroachment into the required
20' rear yard setback of the R-l1 zone for a second story addition
above an existing attached garage per Chapters 30.16 and 30.78 of
the City of Encinitas Municipal Code, for the property located at
661 Melba Road, legally described as:
Lot 1 in Block ilK" of Avocado Acres #5, according to Map
thereof No. 2130, filed in the Office of the County Recorder
of San Diego County.
WHEREAS, public hearings were conducted on the application on
May 11, 1992;
WHEREAS, the Community Advisory Board considered:
1. The staff report dated May 6, 1992;
2. The application, site plan, floor plan, elevations and
Statement of Justification submitted by the applicant dated
received April 10, 1992;
3. Oral testimony from staff, applicant, and public made a
part of the record at said public hearing;
WHEREAS, the Old Encinitas community Advisory Board made the
following findings pursuant to Chapter 30.78 of the Encinitas
Municipal Code:
(SEE ATTACHMENT" A ")
NOW, THEREFORE, BE IT RESOLVED by the Old Encinitas Community
Advisory Board of the City of Encinitas that application 92-050 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.
MN\92050V.SR (5-6-92) 5
PASSED AND ADOPTED this 11th day of May 1992, by the following
vote, to wit:
AYES: cartwright, Lewis, steyaert, Cowen
NAYS: None
ABSENT: Birnbaum
ABSTAIN: None /\\.\..t.\ -.. ..' .
\ .! ~ Ii ~
'--0 ~kr- \"'-~-
Virginia Cartwright,
Chairperson of
the Old Encinitas
community Advisory Board
ATTEST:
~,.---;:::--. .
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:..r c-....- é. ----~ ~----
Tom Curriden
Associate Planner
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ATTACHMENT "A"
Resolution No. OE92-11
Case No. 92-050 V
Applicant: sidney Shaw
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. In reference to the Municipal Code Section 30.87.030A, 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 3 ft into the required 20'
rear yard setback with a second story addition above an
existing garage which was legally permitted per County
Variance No. V82-56. The length of the encroachment is 34 ft.
The lot size is 18,943 sq ft with dimensions of 145' x 128'
which is large for lots in this neighborhood.
Discussion: Due to the location of the existing attached
garage and 2nd story deck on the property and the fact that
the applicant had originally intended to enclose the 2nd story
deck when the variance was requested, a special circumstance
is applicable. Further, the applicant has stated that the
garage was constructed to permit the 2nd story addition
utilizing existing bearing walls, footings and structural
members, and the requirement to set the 2nd story addition 3
ft back at the setback line would require reconstruction of
the garage.
Conclusion: Therefore, the Board finds that special
circumstances are applicable to the project due to the
location of the existing garage on the property and that
Variance Case No. 82-56 did not specifically prohibit the 2nd
story addition. In addition, the applicant contends that his
intention was to construct a 2nd story addition when the
original variance was requested.
B. In reference to the Municipal Code section 30.78.030B, any
variance granted shall be subject to such conditions as will
assure that the adjustment thereby authorized will not
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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 applicant states in his statement of justification
that the approval of this variance would not be a grant of
special privileges since the existing garage and 2nd story
deck already exists at 17 ft from the rear property line and
no expansion is proposed.
Discussion: The proposal for a 2nd story addition to encroach
3 ft into the rear yard setback may not a grant of special
privileges since the existing garage already legally
encroaches and no expansion is proposed.
Conclusions: The Board needs to determine whether the
approval of this variance would be a grant of special
privileges since the applicant has not identified any other
properties in the neighborhood that also encroach into the
rear yard setback.
C. In reference to the Municipal Code section 30.78.030C 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 3' into the 20' rear yard
setback with a 2nd story addition above an existing attached
garage.
Discussion: The 2nd story addition is accessory to the
primary residential use on the lot which is permitted in the
R-l1 zone.
Conclusions: Approval of the 2nd story encroachment will not
result in any change in residential use on the property.
D. In reference to the Municipal Code Section 30.78.030D, 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;
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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 3 ft into the required 20'
rear yard setback with a 2nd story addition above and existing
attached garage which was legally permitted per County
Variance Case No. V82-56. The applicant has stated that he
had intended to construct the 2nd story addition when the
original variance was granted, and would have been permitted
to do so under County regulations.
Discussion: In his statement of justification, the applicant
states that although an alternate development plan which
involves construction of the 2nd story addition 3 ft further
back is possible, this option would not be less impacting to
the site and would result in undue hardship on the property
owner. This is because existing garage and 2nd story deck was
legally permitted per variance V82-56 and the requirement to
locate the structure at the setback line would result in
unwarranted structural changes to the garage. The applicant
states that the need for the variance is not self induced
since it was permitted by the variance in 1982. Finally, the
enclosure of the 2nd story deck would not result in a new rear
yard setback standard and change to the zoning code, or
legalize any private or public nuisance.
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 2nd story
encroachment is not self induced, and that the approval of
this variance will not result in a new rear yard setback
st~ndard or legalize the maintenance of any public or private
nUl.sance.
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ATTACHKENT "B"
Resolution No. OE92-11
Case No. 92-050 V
Applicant: sidney Shaw
Conditions:
1. Buildina Deoartment: Plans shall be submitted to the Building
Department for plan check approval. A complete plan check
will be done when plans are submitted to the Building
Department.
2. Fire Deoartment: Prior to building permit issuance, applicant
shall submit a statement from the Fire District to the
Community Development Department indicating that all
development impact, plan check and/or cost recovery fees have
been paid.
Address numbers shall be clearly visible from the street
fronting the structure. The height of the numbers shall
conform to the Fire District Standards. 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 road. Permanent numbers shall be affixed to this
monument.
3. Enaineerina:
a. Eight feet shall be dedicated along the property frontage
of Melba Road and Arcadia Road based on a center line to
right-of-way width of 28 ft and in conformance with city
of Encinitas Standards.
b. 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.
c. The developer shall comply with all the rules,
regulations and design requirements of the respective
utility agencies regarding services to the project.
d. The developer shall be responsible for coordination with
S.D.G. & E., Pacific Telephone and other applicable
authorities.
e. All proposed utilities within the project shall be
installed underground including existing utilities unless
exempt by the Municipal Code.
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4. If substantial construction has not been completed in reliance
upon a granted variance within one year of the grant, then
upon notice to the property owner, and an opportunity to
present information to the community Development Director, the
Director may declare the variance to have expired with the
privileges granted thereby canceled.
5. In the event that one or more of the conditions imposed on the
variance is violated, the Director, upon notice and an
opportunity to present information, may revoke the variance or
impose additional conditions.
6. The approved project shall conform to plans reviewed and
approved by the Old Encinitas community Advisory Board and
shall not be increased in height, extend beyond the
limitations of the approved variance, or otherwise modified
beyond the approved plans and limitations of this variance
without prior approval by the city.
7. Permits or findings of exemption shall be obtained from the
state Coastal Commission and any other applicable Government
Agencies.
8. The applicant shall cause to be recorded a covenant regarding
real property which sets forth this grant of approval. The
Covenant shall be in form and content satisfactory to the
Director of Planning and Community Development.
9. A proponent or protestant of record may appeal a final
decision of the hearing body by filing the appeal within
fifteen (15) calendar days of the hearing body's decision
pursuant to Chapter 1.12 of the Encinitas Municipal Code.
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