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1993-01 RESOLUTION NO. OL-93-01 . 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 . 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 . . . . 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. . . . 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). . . . 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. . . . 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 . . . (B) . 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 . . . 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. . . B. . 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. . . D. . 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 . 4. Would authorize or legalize the maintenance of any private or public nuisance. . 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. .