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HomeMy WebLinkAboutAttachment 6-MacDonald Ltr 8/06 RECElveD AUG 1 0 2004 DUBLIN PLANNING LAW OFFICE PETER MACDONALD 400 MAIN STREET, SUITE 210 PLEASANTON, CALIFORNIA 94566-7371 (925) 462-0191 FAX (925) 462-0404 petemacd@ix.netcom.com August 6, 2004 Planning Commission City of Dublin 100 Civic Plaza Dublin, CA 94568 Subject: P.A. 04-014 Arace Fence Variance This letter follows up on several issues raised at the public hearing held on July 27, 2004. The Commission's vote to continue was influenced by several factors including fear of setting a precedent and a Public Works memorandum concerning the structural adequacy of the curb and sidewalk. Precedent The "precedent" that Dublin has never granted a variance is not consistent with the purposes of zoning - to provide for better planning, to protect property values, and to maintain the quality of neighborhoods. The variance process was developed in response to widespread criticism of conventional zoning for defining quality with mechanical formulas for lot size, setback and height that were not always practical or even good design. The variance fell into disrepute when some cities used it as a device to ignore existing zoning such as when use variances were approved to put service stations into residential neighborhoods. The California reforms of requiring specific findings, and prohibiting use variances, were adopted in the late 1960's and 1970's. These reforms were adequate to control misuse of variances - and too restrictive according to many urban commentators. Almost immediately, the need for flexibility to adjust zoning to actual land uses and peoples needs, rather than to mechanical formulas, led to widespread adoption of the planned unit development (PUD) process in the early 1970's. The PUD process replaces the rigidity of conventional zoning with design flexibility guided by findings requirements - essentially a more extensive variance process. But, in Dublin, it is West Dublin that is left with conventional zoning and the more restrictive variance process, while almost all of East Dublin has the design freedom of the pUD process. A systematic denial of variances, even on properties that meet the required variance findings, puts one whole side of town at a disadvantage and may encourage zoning blight. ATTACHMENT ~ Dublin Planning Commission August 6, 2004 Page 2 Curb and Sidewalk (Condition 9) The Public Works memo dated July 27,2004 raises a concern regarding the structural support of a 4" concrete sidewalk and curb. The City has already set the precedent of allowing RV equipment to roll over the curb and sidewalk by allowing RV storage in front and side yards everywhere in town. Removing the fence around the Arace's boat will not affect the location at which that RV is backed over the curb and sidewalk. Unlike most other property owners, Glenn and Melanie rebuilt their portion of the public sidewalk installing a 6 inch concrete slab rather than the 4 inch slab permitted by City standard. (See affidavit attached). Moreover, City Code specifically assigns the responsibility to maintain the sidewalk, and liability for the condition of the sidewalk, to the property owner, not the City (Dublin Municipal Code Section 7.04.420). Nothing in the City Code prohibits occasional backing of RV vehicles over the curb and sidewalk. Nor is there a threat to the curb, because a 6" concrete curb is a law onto itself. Every RV owner uses a ramp of some sort - typically two 2 x 4's laid by the side of the curb. According to the structural engineer we consulted, there is no threat to a sidewalk from occasional backing of an RV over a sidewalk. Denial of that option to the Arace's when that option is regularly exercised by every other property owner who stores their RV in their front and side yard, is inconsistent and unnecessary minutia management. Existing Condition Numerous court cases have upheld variances to permit existing conditions to continue, even when the condition may not have been permitted to a bare lot development (unless by PUD). One of the Planning Commissioners suggested that a more general ordinance amendment should be considered because of the obvious aesthetic superiority of screening front yard RV's. However, that approach would be extremely burdensome to the Araces, requiring them to tear down their perfectly acceptable enclosure and possibly reconstruct it later. Moreover, as pointed out by Chair and staff, there may be mid-block locations, not backing up to a corner lot fence, where the visual impact would be greater and might tilt the decision toward rejection of the ordinance change. Neighborhood Support The neighbor petition and support letter that you were not shown at the first hearing, the appearance of neighbors in support at the public hearing, and the absence of neighbors in opposition, confirm that this variance is consistent with the goals of zoning; protection of existing neighborhoods and preservation of property values. No weight should be given to an anonymous letter that could have been written by anyone, even a staff member. Findings Dublin Planning Commission August 6, 2004 Page 3 The staff has given you the set of required findings to approve this variance. In each case, the pro argument is more compelling than the con argument. Because the staff findings are necessarily brief, a more thorough statement of findings is attached for your information and use if desired. Problem Conditions Condition No.6: We request that this condition be modified to provide that "The fenced enclosure shall be used 1Jrimarily [rather than solelvl for the storage of recreational vehicles." We request that the last sentence of that clause be amended to allow up to a "9 month" vacancy rather than a "3 month" vacancy, to discourage enforcement staff prying behind the privacy of the fence during transitions between RV ownerships. Condition No.9: We request deletion of Condition No.9 because the impact of twice a month backing across the owner built sidewalk is minimal, and such backing is permitted de facto throughout the City for front and side yard storage ofRV's already. Conclusion We sincerely hope that the next Dublin homeowner who needs a variance faces a less burdensome and more user friendly process. The government is a part of the community and exists to serve the best interests of its citizens. The City should reach out to encourage a family like Glenn and Melanie Arace who have contributed to the revitalization of their entire neighborhood by participating in their community schools and events, and by rebuilding an aging home and a decrepit City sidewalk. When you can legitimately make the required variance findings, and allow a family to keep its existing investment with the open support of their neighbors, there is no good reason not to grant that variance. S~ncerely, ()~tLA yn {i (~ I.) CWlJ~ Peter MacDonald Attachments: Affidavit of Glenn Arace re sidewalk depth Dublin Municipal Code Section 7.04.420 Additional Variance Findings Cc: Glenn and Melanie Arace Marnie Nuccio Aug 08 04 01:50p Arace-Signature Appraisal 925-829-1428 p. 1 Affidavit of Glenn Arace I had the sidewalk and driveway approach to my home replaced at my own expense by Yaney Concrete in the year 2000. After obtaining an Encroachment Penllit and posting a $500.00 bond for 6 months, I instructed the contractor to follow the City guidelines with respect to the depth of the concrete for the sidewalk except for the sidewalk between the driveway and its closest property line. I directed him exceed the required depth of 4" along the small area in front of the side yard access to match the depth of the driveway concrete - which I understand to be 6". The curb was replaced about a year or so before I purchased the home. The curb, gutter and sidewalk are in excellent condition and are tree of cracks or any other problems. I declare this statement to be true and correct to the best of my infonnation and o ledge. ~ fib/at+- D e ' Title 7 PUBLIC WORKS Page 1 of 1 7.04.420 Repair of sidewalks-Reporting defects. Any person owning real property in the city shall repair any dangerous or defective sidewalk lying in front of, in back of, or along the side of his property. Any tenant of real property in the city shall report to the City Engineer in writing any dangerous or defective sidewalk which exists in front of, in back of, or along the side of property occupied by him. If, as a consequence of any sidewalk being dangerous or defective sufficient to endanger persons passing thereon, any person exercising ordinary care to avoid the danger who proximately suffers damage to his person or property because of a dangerous or defective sidewalk shall have recourse for such damages against the person failing to repair such defect. The election of the City Engineer to repair any dangerous or defective sidewalk with city forces or by contract at such times as the City Council may direct, shall not in any respect limit or modify the foregoing provisions. (Ord. 15-89 § 38: Ord. 13 § 1 (part), 1982) httn·/l"p.~r~h mr"~ {)rp/n1(t/pMp.w~v rIll/rIhlnm~/rIlIhlinn7 htm l?f=tpmnhtp"<¡;fn=r1hlnr1("\{'_fr,,, 7 /')Q/')nnt1 Reasons in Support of a Variance for 11671 Manzanita Lane Glenn and Melanie Arace Summary · Glem1 and Melanie Arace request a variance to keep an existing 6 foot RV enclosure along the property line of their front yard. · The specific variance request is to permit the already existing front yard fence of 6 feet -- 2 feet higher than permitted in the front yard. · Their R -1 zoned home is on a trapezoidal lot without adequate sideyard width for R V storage. · The enclosure has no impact upon street views because there is already a legal property line fence of 6 feet in height forming one side of the enclosure. That fence will not be removed even if this variance were denied because it is the backyard fence to a corner lot. Background: Variances exist because it is recognized that, within a zone, there will be individual lots or tracts that, because of peculiar shape, unusual topography, or some similar peculiarity, cannot be put to productive use if all the detailed requirements for that zone are to be strictly applied. Fences, when required by the City of Dublin Zoning Ordinance or voluntarily built by a property owner, shall comply with the following (Section 8.71.080 of the Landscaping and Fencing Regulations): o 4-feet in height in the front yard; 6-feet in height in the side and rear yards (Section 8.n.080.A.l). This was also the standard under the Alameda County Zoning Ordinance prior to the City of Dublin incorporation. The exact status of the Alameda County Zoning Ordinance regulations in approximately 1964 when the original fence and home at that location were apparently built has not been established with certainty. Recreational Vehicle parking: In a Residential Zoning District, a recreational vehicle (including a boat on a trailer) m-ªy be parked in the side or rear yard if screened by a 6-foot high fence or wall. A recreational vehicle parked in the front yard between the driveway and the nearest side lot line (including a boat on a trailer) is penl1itted and not required to be screened. (Section 8.76.070.A.14 & 8.76.060.E.2 of the Off-Street Parking and Loading Regulations) For the purpose of budding a fence, the front yard is defined from the front of the dwelling to the back of sidewalk (Figure 71-2 in Section 8.n.080.A of the Landscaping and Fencing Regulations ). Variance: A Variance may be granted for dimensional standards relating to the landscaping and fencing regulations. (Section 8.l12.020.A of the Variance chapter) Relevant Facts: I. Pre-existing condition. The original home was built about 1964 before incorporation of the City of Dublin in 1982. (Photo 1 shows dilapidated condition of home when purchased in 1998. Photo 3 shows dilapidated condition of sideyard fence and concrete in 1998). 2. Reliance on pre-existing condition. The home has had a front yard fence enclosing the portion of the front yard since long before the incorporation of Dublin. (Photo 2 shows that aged fence with fiberglass panel rather than lattice.) The Araces state they would not have purchased and improved their lot had there not been an adequate front yard enclosure for their boat. There is no available evidence that the original fence was not legal when built in approximately 1964. 3. Neighborhood investment and support. The Araces have substantially remodeled the home. (Photo 3) They even spent $6,000 replacing the broken up City sidewalk that the City did not have resources to replace or maintain. A number of their neighbors appreciate these improvements. (See neighbor petition in support of front yard enclosure ). 4. Adjacent to corner lot fence. The front yard enclosure does not obstruct street views that would not already be obstructed by the property line fence shared with the adjacent lot. The home immediately adjacent to the front yard enclosure is a corner lot. The Arace's east side yard is the comer lot's backyard. By City ordinance, the corner lot fence at that location is permitted to extend along the Arace's front yard setback, and it does. (Photos 5 and 6) 5. Trapezoidal lot. The Arace's lot is a trapezoid with 70 foot front width and 66.89 foot back width. (See site plan attached) As a result, the east side yard narrows down from 9 feet at the front of the home to 6 feet at the back of the home. It is not possible to store an 8.5-foot wide by 25-foot long boat or similar private recreation equipment in the narrowed sideyard at the edge of the home. Of the hundreds of lots in the vicinity, only five are known to be trapezoidal. Few of those lots have the same sideyard restriction created by existing buildings. Few of those lots are adjacent to corner lots with 6 foot fences extending almost to the sidewalk. Specific Findings Required: A. Special Circumstances: I. Trapezoidal lot and the placement of the existing home results in a pinching down of the side yard to approximately 6 feet in width, making side yard enclosure of 8 Yz feet wide recreational equipment impossible on this lot but not others. 2. The home was purchased and improved in reliance upon a pre-existing front yard enclosure. The Araces screened their boat to improve the aesthetic appearance of their home and neighborhood without any legal requirement to do so. 3. Their location adjacent to a corner lot with a fence along their front yard property line means their enclosure does not block any street views that would not already be blocked by the existing property line fence. There are other lots adjacent to corner lot fences, and other lots with trapezoidal shape, but this combination of special circumstances is quite unusual and would not set a precedent that would recur frequently. B. Not Grant of Special Privilege: Storage and screening of recreational vehicles in the front yard is not a special privilege but is generally permitted and conducted within this residential zone. The only difference is that the variance will allow the recreational vehicle to be screened by a 6 foot fence rather than a 4 foot fence. Height variances are specifically authorized by the Zoning Code. C. Not be detrimental to persons or property in the vicinity or to the public health, safety and welfare: I. Existence of a 6 foot property line fence means this enclosure does not limit view profile of neighbors or drivers from either direction. The existing enclosure terminates more than 3 feet from the sidewalk allowing a reasonable view corridor for the Arace's to see the sidewalk when they back out of their driveway. An RV vehicle or the unscreened boat would have equal or greater impacts on the view of the sidewalk, and could extend to within 1 foot of the sidewalk. 2. The existing enclosure is aesthetically superior to open boat storage or a four foot enclosure. 3. Upgrading the enclosure and Arace home were interrelated projects: Had the upgraded enclosure not been allowed, the Araces probably would have left this property in its prior condition as a rental. That would have been detrimental to the neighborhood. 4. Probably because of#2 and #3 above, neighbor support has been overwhelming. D. Consistent with purpose and intent of the applicable zoning district. I. The aesthetic storage of recreational vehicles in a manner not visible from the street is typical and compatible with the residential neighborhood and ought to be preferred. 2. Key purposes for residential zoning are to encourage investment in properties and provide a haven for the uses homeowners typically engage in, including aesthetic ( preferably screened) storage of recreational vehicles. Both of those purposes are advanced by grant of this variance. E. Consistent with Dublin General Plan. 1. There are no policies in the Dublin General Plan that speak directly to the situation unique to this variance application. 2. The Housing Element seeks to encourage investment and enhancement in existing neighborhoods, which would not have occurred had this front yard enclosure been disallowed by the City when the remodel was proposed.