1993-01
RESOLUTION NO. OL-93-01
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A RESOLUTION OP THB OLIVBHBAIN COMMUNITY ADVISORY BOARD
OP THB CITY OP ENCINITAS DENYING
A MINOR USE PERMIT REQUEST TO EXCEED THE
12 FOOT HBIGHT STANDARD AND APPROVING A
VARIANCE APPLICATION POR A DBTACHED CABANA/GARAGE STRUCTURE,
A POOL AND RBLATED FENCING TO ENCROACH INTO SETBACKS
FOR PROPERTY LOCATED AT 243 AVENIDA ESPERANZA
AND LBGALLY DESCRIBED HEREIN
(CASE NO.: 93-008 MIN/V)
WHEREAS, a request for consideration of a Minor Use Permit
(pursuant to Chapter 30.48 of the Municipal Code) and Variance
application
(pursuant
to
Chapter
30.78)
for
a
Detached
Cabana/Garage structure measuring 1,114 Square Feet in size and
18.5 feet in height which encroaches 14 feet into the 30-foot Front
Yard Setback and for a Swimming Pool to encroach 20 feet into the
30-foot Front Yard Setback and for 6 foot high Solid Fencing to be
located in the 15 foot setback from the Private Road easement was
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filed by James and Kim Frost for property located at 243 Avenida
Esperanza, legally described as;
Parcel 2, in the City of Encinitas, County of San Diego,
State of California, as shown at Page 8911 of Parcel
Maps, filed in the office of the County Recorder of San
Diego County, July 12, 1979; as more fully described in
Exhibit "A" of Document #1991-0666406 as filed with the
County Recorder on December 23, 1991.
WHEREAS, a public hearing was conducted on the application on
February 2, 1993 and continued to the meeting on March 2, 1993
before the Olivenhain Community Advisory Board; and
WHEREAS, the Community Advisory Board considered:
1.
The staff reports dated January 28 and February 24,1993;
and
2.
The Minor Use Permit and Variance applications, the
Statement of Justification and other related material
received by the City on January 13, 1993; the revised
project description, the Minor Use Permit and Variance
Site Plan and Building Plans revised by the applicant and
dated received by the City on February 19, 1993; and
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v
3.
Oral evidence received from the public, the applicant and
City staff submitted at the public hearing; and
Written evidence submitted at the public hearing; and
4.
5.
The adopted General Plan, Zoning Code, and associated
Land Use Maps; and
WHEREAS, the Oli venhain Community Advisory Board made the
required findings to Deny the Minor Use Permit request to exceed
the
permitted
12
foot
height
limitation
for
Detached
storage/Recreation structures and Approved the Variance request for
the Swimming Pool to encroach 20 feet and the Detached
1=""00""-
Storage/Recreation Structure to encroach 16 feet into the 30^Front
Yard Setback and for Solid Fencing to exceed the 4 foot height
standard to 6 feet within the 15 foot setback from the Private Road
Easement pursuant to Sections 30.74.070 Band 30.78.030 of the
Municipal Code, as follows:
SEE ATTACHMENT "A"
NOW THEREPORE,
BB IT RESOLVED that the Minor Use Permit
request to exceed the 12 foot height standard for a Cabana/Garage
structure is hereby denied and the Variance application for a
Cabana/Garage structure and Swimming Pool to encroach into the
Front Yard Setback and for related Solid Fencing to exceed the 4
foot height standard to 6 feet is hereby approved by the Olivenhain
Community Advisory Board subject to the following conditions:
1.
GENERAL CONDITIONS:
A.
This Variance approval shall expire on March 2, 1995,
twenty-four months after the Community Advisory Board's
approval unless an appeal is filed, Building Permits have
been issued for the project, or an extension of time has
been approved pursuant to the Municipal Code.
This approval may be appealed to the Planning Commission,
pursuant to Chapter 1.12 of the Municipal Code, within 15
calendar days from the date of this approval.
B.
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C.
Approval of this application 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
herein.
2.
The Minor Use Permi t application is denied and the
Variance application is approved as submitted and
reviewed by the Community Advisory Board and as evidenced
on plans dated received by the City on February 19,1993.
Said plans consisting of 3 sheets including the (1) site
Plan, Property Profile and fence design, (2) the
Elevation and Floor Plans of the detached Cabana/Garage
structure and (3) the Conceptual Landscape Plan. Said
plans for the Variance aspects of the project are
approved as submitted or as conditioned herein and shall
not be altered without review and approval by the City as
provided by the Municipal Code.
SITE DEVELOPMENT: Developer shall contact the Community
Development Department regarding compliance with the Following
conditions:
D.
A.
Prior to any use of the project site in reliance on this
approval, all conditions of approval contained herein
shall be completed, or agreed upon, to the satisfaction
of the Director of Community Development.
For new residential dwelling unit (s) and/or accessory
structures, the developer shall pay development fees at
the established rate. Such fees may include, but shall
not be limited to: Permit and Plan Checking Fees, School
Fees, Water and Sewer Service Fees, Traffic Fees,
Drainage Fees and Park Fees. Arrangements shall be made
to the satisfaction of the appropriate department or
agency to pay the impact fees prior to Building Permit
issuance or Final Occupancy approval.
B.
C.
Any change to the natural drainage or concentration of
drainage shall be adequately handled and shall not impact
adjacent properties to the satisfaction of the City
Engineer.
D.
A plan shall be submitted for approval by the Community
Development Director and the Encinitas Fire Prevention
District regarding the treatment of the site during the
construction phase, and the circulation and parking of
construction workers' vehicles and any heavy equipment
needed for the construction of the project.
E.
Property owner{s) shall agree to preserve and save
harmless the City of Encinitas and each officer and
employees thereof from any accident, loss, or damage to
persons or property happening or occurring as the
proximate result of any of the work undertaken to
complete this project, and that all of said liabilities
are hereby assumed by the property owner{s).
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F.
The Cabana/Garage structure is to be used exclusively as
an accessory structure to the single family residence.
Use of the detached structure as a separate dwelling or
rental unit is strictly prohibited.
G.
The "Gazebo" shown on the conceptual landscape plan is
not a part of this Variance application and, if
constructed in the future, would require separate review
and approval by the City in conformance with Municipal
Code requirements in effect at that time.
The approved solid fencing shall not exceed 6 feet in
height at any point adjacent to the fence. The fence
shall be setback approximately 25 feet to the north of
the driveway entry to the detached structure to allow for
suitable line-of-sight distance for vehicles entering or
exiting the structure as determined by the Director of
Community Development.
H.
I.
Prior to Framing Inspection approval, the developer shall
submit to the Community Development Department a
certification of the height of the detached structure to
assure it conforms with the 12 foot standard permitted
for Detached storage/Recreation structures. Said
certification shall be prepared by a State licensed
Surveyor or Civil Engineer who shall affix their stamp
onto the Height Certification.
Prior to foundation and/or pad preparation for the
proposed detached structure and swimming pool, the
property shall be staked to indicate the Private Road
easement to the satisfaction of the Director of Community
Development. An inspection by Community Development
Department staff shall be made of the site prior to
Building Division approval of the inspection of the
foundations for the portion of the structures requiring
the variance.
J.
K.
The property owner 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 Community Development.
3.
FIRE PREVENTION DISTRICT: Developer shall contact the
Encinitas Fire Prevention District regarding compliance with
the following condition:
Prior to Building Permit issuance, the developer shall submit
to the Community Development Department 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 Fire District.
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4.
BUILDING DIVISION: The developer shall contact the City
Building Division regarding compliance with the following
condition:
Complete structural plans and details shall be checked for
Uniform Building Code requirements when submitted to the
Building Division for Plancheck. A Soils Report for the
foundation design and Energy Calculations for the proposed
structure are required. Grade must slope away from structure
for.5 feet around Cabana/Garage at 2% slope (see north
elevation) or otherwise conform to Code requirements to
adequately direct water runoff away from the structure.
BE IT FURTHER RESOLVED that the Olivenhain Community Advisory
Board has found that the project is exempt from environmental
review pursuant to Section 15303 (e) of CEQA since an accessory
structure to an existing single family residential structure is
proposed within a residentially zoned area. This determination
reflects the Board's independent judgement as the Lead Agency
pursuant to CEQA and the City's Environmental Review Guidelines.
PASSED AND ADOPTED this
following vote, to wit:
2nd day of March,
1993
by the
AYES: Van Slyke, Bode, Kitnick, Greer
NAYS: None
ABSENT: None
ABSTAIN: None
,..,
Paul Van Slyk, ce-Cha1rman
of the Olivenhain Community
Advisory Board, City of
Encinitas
AC:~e .~~
Craig R. Olson
Assistant Planner
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(B)
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ATTACHMENT "A"
RBSOLUTION OL-93-01
Findings Pursuant to Section 30.74.070 B
of the Municipal (Zoning) Code
Related to Minor Use Permits
(A)
The location, size, design or operating characteristics of the
proposed project will be compatible 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:
1.
The adequacy of public facilities, services and utilities
to serve the proposed project;
The suitability of the site for the type and intensity of
the use or development which is proposed; and
2.
3.
The harmful effect, if any, upon environmental quality
and natural resources of the City:
Pacts: The Minor Use Permit application proposes a 18.5 foot
Detached Storage/Recreation structure. Primary single family
dwellings adjacent to the subject property are generally one
story in height and typically do not exceed 14 feet in height.
Discussion: The Board received testimony from adjacent
property owners in the neighborhood objecting to the intensity
of the detached structure given the location of the structure
on the property as compared to adjacent primary residences
which generally do not exceed a height of 14 feet. As
presented to the Board, the design of the detached structure
would exceed the 12 foot standard by 6.5 feet and would be
located closer to property lines than normally permitted by
Code requirements by benefit of a Variance approval.
Conclusion: Therefore, the Olivenhain Community Advisory
Board finds that the requested height of 18.5 feet for the
detached structure is not suitable for the proposed location
on the property since the intensity of the structure at the
location granted by the Variance approval would adversely
impact adjacent uses by the property owners in the enjoyment
of their residences.
The impacts of the proposed project will not adversely affect
the policies of the Encinitas General Plan or the provisions
of the Municipal Code:
Pacts: The applicant has applied for a Minor Use Permit to
exceed the height limitation for the Detached storage and
recreation structure. The property owner has also applied for
Variance approval for encroachment into the Front Yard Setback
for the detached structure.
Discussion: Due to the unique restrictions on the property
related to the Private Road easement, the location of the
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existing residential structure on the lot and the slope of the
existing building pad, the applicant has requested and has
received Variance approval for the detached structure to
encroach into the Front Yard Setback. The granting of
additional approval of aspects of the structure's design which
do not conform to standards applicable to all proposed
detached structures can be seen as adversely affecting the
provisions of the Municipal Code.
Conclusion: Therefore, the Board finds that the proposed
project, if approved, would adversely affect the provisions or
standards of the Municipal (Zoning) Code since Variance
approval is warranted and the further granting of additional
approval of aspects of the structure's design which do not
conform to standards applicable to all proposed detached
structures would adversely affect the provisions of the
Municipal Code.
(C)
The project complies with all other regulations, conditions or
policies imposed by the Municipal Code.
Pacts: All aspects of the project's design conform to
Municipal Code regulations except for those encroachments into
the Front Yard Setback and the 6 foot height of the solid
fencing encroaching into the 15 foot setback which are the
subject of the Variance request.
Discussion: The project, as conditioned, will be required to
be reviewed for conformance to Uniform Building, Fire,
Plumbing, Electrical, etc. Codes during Plancheck review prior
to Building Permit issuance. The 6 foot solid fence in the 15
foot setback is needed to provide security and privacy for the
swimming pool area located in the southern portion of the lot.
The fence will not impact the line-of-sight for vehicles
entering or exiting the detached storage structure since it is
conditioned to be approximately 25 feet to the north of the
driveway entering the Cabana/Garage structure.
Conclusion: Therefore, the Board finds that the project
complies with all other regulations, conditions or policies
imposed by the Municipal Code. However, since Findings cannot
be made for items A and B above, the requested Minor Use
Permit to exceed the 12 foot height standard for the detached
structure is denied.
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B.
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ATTACHMENT "A" (continued)
Findings Pursuant to Section 30.78.030
of the Municipal (Zoning) Code
Related to Variances
A.
A Variance from the terms of the zoning ordinance 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.
Pacts: The usability of the property is impacted by the 40-
foot Private Road easement, the placement of the existing
residential structure on the property in relation to the lot' s
configuration (Le., the Code defined "Front" yard is used as
the property's rear yard), and the slope of the existing
building pad. These existing conditions impact the buildable
area on the southern portion of the lot.
Discussion: The applicant presented information to the Board
at the February 2nd meeting related to the impact the Private
Road easement and setbacks have on the buildable area of the
lot. The buildable area of the total lot (+/- 35,720 s.f.) is
reduced by 22,165 s.f. due to the Private Road easement and
setbacks. Therefore, 62% of the lot is impacted due to the
easement and setbacks. The strict application of the "Front
Yard" Setback restrictions on the use of the property would
deprive the property owner the privilege of utilizing the
southern portion of the property as the "rear yard" with the
type of accessory structures which other property owners may
enjoy in their rear yards.
Conclusion: Therefore, the Board finds that the Variance is
warranted for encroachment of the detached structure and the
swimming pool into the front yard setback and for the solid
fence to exceed the 4 foot standard height to 6 feet due to
the special circumstances applicable to the property. The
special circumstances include the location of the Private Road
easement, the property's topography, the location of the
existing structure on the property and the limited useability
of the southern portion of the lot given the setback from the
Private Road easement. Without the Variance, the strict
application of the zoning ordinance related to setbacks would
deprive the property owner of the privilege of utilizing the
portion of their property utilized as their "rear" yard which
other property owners in the vicinity and under an identical
zoning classification could enjoy in their rear yards with
similar accessory structures.
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.
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D.
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Pacts: The Variance allows for encroachments into the Code
defined "Front Yard" for a swimming pool and a detached
Recreation/storage structure and for the 6 foot high solid
fencing to encroach into the 15 foot setback from the Private
Road easement.
Discussion: If the site was not impacted by the Private Road
easement on the southern portion of the property the southern
portion of the lot would be defined by the Municipal Code as
the rear yard and the detached Cabana/Garage structure and
swimming pool would be permitted to extend to within 5 feet of
the rear and interior side yard property lines.
Conclusion: Therefore, the Board finds that the Variance is
warranted and that no conditions are necessary since the
Variance approval does not constitute a grant of special
privilege inconsistent with the limitations upon other
properties in the vicinity and zone in which such property is
situated.
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.
Pacts: The proposed height of 18.5 feet for the detached
Recreation/storage structure, as submitted by the applicant,
requires Minor Use Permit approval. The Board could not make
the required findings to approve the Minor Use Permit to
exceed the 12 foot standard.
Discussion: Municipal Code Section 30.48.040 G permits
detached Storage/Recreation rooms (in conjunction with a
detached garage) as long as the structure does not exceed 1200
square feet in size nor 12 feet in height. The proposed
structure measures 1114 square feet and the Minor Use Permit
to exceed the 12 foot standard was denied.
Conclusion: Therefore, the Board finds that the Variance does
not authorize a use or activity which is not otherwise
expressly authorized by the zoning regulation governing the
parcel of property.
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
consti tute a rezoning or other amendment to the
zoning code; or
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4.
Would authorize or legalize the maintenance of any
private or public nuisance.
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Pacts: The applicant did submit a revised plan that
eliminated a proposed encroachment by the subject structure
into the Exterior Side Yard setback and decreased the
encroachment into the 30-foot Front Yard setback from 20 feet
to 16 feet. The Variance request was initiated due to the
existing location of the Private Road easement on the property
defining the southern portion of the property as the "Front
Yard" along with other unique circumstances applicable to this
property.
Discussion: The applicant provided a revised plan (dated
received by the City on February 19, 1993) to show the
Cabana/Garage structure to be setback 15 feet from the
easement along the side yard to conform with the Zoning Code
standard for the Exterior Side Yard Setback. In addition, the
structure was moved approximately 2 feet to the north and
reduced in length by 2 feet. Therefore, the originally
requested Variance to encroach into the Exterior Side Yard
Setback was eliminated and the request to encroach 20 feet
into the 30 foot Front Yard Setback was reduced to a 16 foot
encroachment. The Variance request was not self-induced since
the location of the Private Road easement along the western
and southern portion of the property requires the southern
portion of the property to be defined by the Municipal Code as
the "Front Yard", even though the area is used asa rear yard.
The property owner had no control over the location of the
Private Road easement nor the Zoning Code definition for
"Front Yard". The Variance does not constitute a rezoning or
other amendment to the zoning code since single family
residences and their accessory structures are permitted in the
RR-2 Zone. No evidence has been submitted to indicate that
any private or public nuisance exists on the property.
Conclusion: Therefore, the Board finds that the project does
not impose any significant adverse impacts to the site and
adjacent properties and that the Variance is not self-induced
as a result of an action taken by the property owner or the
owner's predecessor. The project does not allow such a degree
of variation as to constitute a rezoning or other amendment to
the zoning code nor has any evidence been submitted to
indicate that the project would authorize or legalize the
maintenance of a private or public nuisance.
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