DS 23-171 (Das): Consideration of a Concept Design Study and Lot Merger for the demolition of an existing 2,301-square-foot one-story, single-family residence with a 479-square-foot attached garage with 464-square-foot second-floor guesthouse, as well as 192 square feet of accessory structures, and construction of a new 2,466-square-foot one-story, single family residence with a 478-square-foot detached garage located at the northeast corner of Sterling Way and Perry Newberry Way in the Single-Family Residential (R-1) District. APN: 009-162-025-000.

The applicant is requesting approval of a Concept Design Study for the demolition of a single story single-family residence and reconstruction of a new one-story single-family residence and attached garage. An associated lot merger application was also submitted as part of this application.  

Staff has not identified any adverse privacy or view impacts, or impacts regarding the mass and bulk of the property.  The primary issues addressed within the report are the maintenance of an existing non-conforming building wall and encroachments within the right-of-way. 

Adopt a Resolution (Attachment 1) accepting a Concept Design Study for the demolition of an existing 2,301-square-foot one-story, single-family residence with a 479-square-foot attached garage with 464-square-foot second-floor guesthouse, as well as 192 square feet of accessory structures, and construction of a new 2,466-square-foot one-story, single family residence with a 478-square-foot detached garage located at the northeast corner of Sterling Way and Perry Newberry Way in the Single-Family Residential (R-1) District, APN: 009-162-025-000.

The project site is an 8,480 square-foot building site developed with an existing 2,301-square-foot one-story, single-family residence with a 479-square-foot attached garage with 464-square-foot second-floor guesthouse, as well as 192 square feet of accessory structures

The existing one story residence is finished primarily with horizontal wood siding with hipped composition shingle roof forms throughout. The applicant is proposing to demolish more than 50% of the existing building walls, which is defined as a demolition in the municipal code, and rebuild a new one-story 2,466 square foot single family residence with a 478 square foot attached garage. Staff notes the applicant has indicated that only 47% of linear feet of exterior walls are proposed for removal, however, staff does not concur with this assessment as “the nonconforming portions of any wall is counted as removed or taken down, even when retention of these portions is proposed” (CMC 17.70 - Demolition) which was not taken into consideration by the applicant in preparing this calculation and therefore the length of wall  counted as “demolished” would exceed the 50% even though some portions are proposed to remain. The linear wall calculation also did not appear to take into consideration the wall length of the second floor of the garage -only the first floor. 

The applicant is proposing to retain a section of non-conforming wall located within the front setback, however, despite the feature being physically retained, it is considered to be demolished which determines whether the structure meets the definition of a demolition. 

The applicant is also proposing an 791 square foot detached accessory dwelling unit (ADU).  The square footage of the ADU was not included in the square footage for the new residence, as described above, or the proposed total square footage of the new residence, however, has been described herein as reference as the ADU is shown on the project plans (Attachment 3). The resulting square footage of the site, including the ADU, is 3,735 square feet.  

In accordance with Gov. Code, § 65852.2 (emphasis added in bold), “A permit application for an accessory dwelling unit or a junior accessory dwelling unit shall be considered and approved ministerially without discretionary review or a hearing…. If the permit application to create an accessory dwelling unit or a junior accessory dwelling unit is submitted with a permit application to create a new single-family dwelling on the lot, the permitting agency may delay acting on the permit application for the accessory dwelling unit or the junior accessory dwelling unit until the permitting agency acts on the permit application to create the new single-family dwelling, but the application to create the accessory dwelling unit or junior accessory dwelling unit shall be considered without discretionary review or hearing.” As such, the ADU shall not be discussed at this hearing and is only described above for reference.  Questions regarding the ADU can be directed to the Community Planning and Building Department staff outside of the public hearing. 

The primary purpose of this conceptual review meeting is to review and consider the site planning, privacy and views, and mass and scale related to the project. However, the Commission may provide input on other aspects of the design. Staff will use direction from this concept review to work with the applicant on a final design that will ultimately be brought back to the Planning Commission for consideration and decision which will include the consideration of a Coastal Development Permit.

Lot Merger:

 The applicant has requested to merge lots 5 & 6 of block 3B in accordance with CMC 17.10.040.B.2, Other Owner-Initiated Mergers. Per CMC, 17.10.040.B.2, The City encourages the merger of small lots into larger lots to promote diversity in design and housing size and to preserve open space. Two or more contiguous lots of record, each of which would individually meet the standards for development as a building site, may be merged through the filing of a voluntary merger request by the owner(s).

By merging the two lots, an increase in base floor area and exterior volume of 3% becomes available, an incentive which the applicant has chosen to utilize for the proposed development. By merging the two lots, the project site becomes a single 8,480 square foot lot. Typically, an 8,480 square foot building site is permitted 3,056 square feet of base floor area, however, with the lot merger incentive, the base floor area allowed is increased by 3% to 3,310 square feet of base floor area. An additional amount of site coverage becomes available for the site (an addition 2.5%, up to 1,036 square feet total) provided the site complies with the recommended tree density standards (discussed below). 

As the lot merger is directly associated with this project, the Lot Merger will be required to be recorded with the Monterey County Recorder prior to issuance of a building permit as a Condition of Approval of the final project approval.  

Nonconforming Status:
The applicant is proposing to maintain an existing non-conforming portion of the building that is located within the front setback.  In previous discussion with the applicant, and based on past practice, staff was comfortable with the applicant maintaining the nonconforming building element despite the extensive demolition work to the site provided the structural wall (including wall framing remains). The applicant had acknowledged this requirement in an October 2023 email to staff, as noted below. 

From October 2023 email correspondence between applicant and staff: 

Applicant: We discussed it with the owner and confirmed that the existing non-conforming wall will remain (wall framing). We will make a written statement on the cover sheet. Our intent is to use (e) framing as much as possible to make this project cost effective. We also discussed the roof framing with a structural engineer. We will need to take the roof sheathing out, install 2x8 (or 2x10) roof rafters in order to support clay tile roofing (heavier than asphalt shingles). The new rafters will be placed on (e) top plate and "sister" (e) 2x6 rafters. It will result in 2" to 4" height increase (depends on structural calculations for load). Hopefully you accept it as a necessary reinforcement per building code requirements.

The written statement was not provided aside from this note above but the requirement has been included as Condition of Approval for Concept Acceptance #2. 

As noted in the project description section of this report, the proposed project would constitute a demolition based on the zoning code’s definition of demolition as more than 50% of the exterior walls are proposed for demolition. For this project, a portion of the building is non-conforming as there is a building located within the front setback. 

While in the past, the Commission has authorized preservation of non-conforming building walls when demolition or substantial alteration is proposed, in light of recent direction by the Commission, the Commission may be inclined to reconsider their past policy direction and further re-evaluate how non-conformities are treated when alterations are proposed.  

CMC 17.52.060 Duties and Powers of the Planning Commission

F. To interpret the meaning and intent of the City’s land use code.

Staff is seeking feedback from the Commission as to whether retaining a nonconforming wall in the front yard setback is appropriate when the project meets the definition of a demolition (e.g. removal of more than 50 percent of the exterior walls)  maintenance and alteration of the nonconforming wall located in the front setback can be maintained. Based on past approvals and consideration by the Commission, staff has prepared a resolution for Concept acceptance, however, the commission may with to continue the application or direct the applicant to bring the nonconforming wall into compliance based on the commission’s interpretation evaluation of the land use code and how nonconformities are assessed when demolition is proposed.  

If the commission finds the project, the subject wall located in the setback is required to maintain its existing structural wall framing, as indicated by the applicant. Should the wall be demolished, the subject wall will need to be brought into compliance with the appropriate setback requirements. New building walls (exterior wall framing) shall not be permitted within the setback.  

CMC 17.36.030.A: A lawful nonconforming structure may be maintained, repaired, or altered as long as such maintenance, repair, or alteration does not increase the nonconformity and all work performed conforms to all of the requirements of this chapter. 

CMC 17.36.030.B: Alterations, repairs or remodeling that enlarge, extend or increase a nonconforming feature of a building shall be prohibited, except [as allowed for historic resources].

CMC 17.36.040.D: The demolition of any nonconforming building or structure shall require that all new construction on the site meet all requirements for new buildings and structures.

CMC 17.36.040.E: The substantial alteration of any nonconforming building or structure, that includes removal of any nonconforming building element or structural element, shall require correction of that specific nonconforming building element or structural element in conformance with all requirements for new construction. The removed nonconformity shall not be rebuilt or reestablished at that location on the site or elsewhere on the site.

CMC 17.70 - Definitions
Alteration. Any change, addition, or modification of any of the supporting members of a structure, such as bearing walls, columns, beams or girders, that changes the exterior architectural appearance or materials of a structure or object. “Alteration” includes changes in exterior surfaces, changes in materials, additions, remodels, demolitions, and relocation of buildings or structures but excludes ordinary maintenance and repairs.

Demolition. The act of reconstructing, removing, taking down or destroying all or portions of an existing building or structure, or making extensive repairs or modifications to an existing building or structure, if such changes involve removal or replacement of 50 percent or more of both the structural framing and cladding or of the exterior walls within a 24-month period. When determining whether a building or structure is demolished, the following applies:

A. The nonconforming portions of any wall is counted as removed or taken down, even when retention of these portions is proposed.

B. Any continuous run of remaining exterior wall surfaces measuring 10 feet or less in length are counted as removed or replaced.

Reconstruction. The act or process of reproducing by new construction the exact form and detail of a vanished building, structure, or object, or a part thereof, as it appeared at a specific period of time.

Figure 1. Partial proposed floor plan.  Area within front setback highlighted on top right of figure. 

Figure 2. Proposed front elevation from Perry Newberry. Elevation within front setback.

Figure 3. Existing front elevation from Perry Newberry. Elevation within front setback.

Figure 4. Existing and proposed elevations overlaid. Gray background shows proposed elevation; Orange foreground is existing elevation. Red box shows portion of elevation within front setback.

 

Forest Character: Residential Design Guidelines 1.1 through 1.4 encourages preserving significant trees and minimizing impacts on established trees; protecting the root systems of all trees to be preserved; and, maintaining a forested image on the site. Residential Design Guidelines 1.5 through 1.7  discuss the characteristics of the Right-of-Way. 

The site contains 15 trees split between the project site and immediate adjacent right-of-way (6 trees on-site; 9 in right-of-way).  Of the trees located on the site, only two are rated significant and the remaining are not significant.  The right-of-way trees are a mix of significant, moderately significant, and non-significant trees.  The Forester reviewed the project and did not recommend any additional tree planning for the site.  The applicant is proposing to remove one non-significant 7” tree (located on the site), the species of which was not noted in the preliminary site assessment. All other trees are proposed to remain and be protected.

As the site is over 8,000 square feet, the recommended tree density is required to be determined by the Forest and Beach Commission (CMC 17.48.080.A.2).  Condition of Approval for concept acceptance #3 has been included stating “prior to scheduling for Final Details Review, the project shall be reviewed by the Forest and Beach Commission to determine the appropriate number of upper and lower canopy trees for the site and the additional planting requirement, if any. Any additional required new trees shall be incorporated into the revised plans submitted to the Community Planning and Building Department for Final Details Review. The size, species, and locations shall be clearly indicated in the plans and are subject to approval of the Forest and Beach Commission and/or the City Forester as appropriate.”

The tree density (to be determined by the Forest and Beach Commission) is also directly associated with the allowable site coverage as “up to 2.5 percent of additional site coverage is allowed if the site complies with the City’s tree density standards” (CMC 17.10.040.B.2.c). Provided the site is able to comply with the density established by the Forest and Beach Commission, the site would be eligible for bonus site coverage (summary below).

Lot Merger Site Coverage Summary:

• Max allowable Site Coverage if tree density (established by FBC) is met: 1,036 sf
• Max allowable Site Coverage if tree density (established by FBC) is not met: 1,011 sf

Should the applicant elect to not take advantage of the lot coverage lot coverage bonus (1,017 sf currently proposed), the tree density is still required to be determined by the Forest and Beach Commission in order to make the appropriate determination for number of trees on-site which is considered as part of Concept Finding #2.  As conditioned, the project would meet this finding (Concept Finding #2). 

The subject site maintains substantial right-of-way encroachments for which no encroachment permit is currently on-file. Residential Design Guideline 1.5 states: “Maintain and enhance the informal, vegetated, open space character of the right-of-way.” The municipal code also requires that nonconforming existing encroachment be abated prior to building permit issuance (CMC 12.08.125). 

Staff has provided direction to the applicant to note on the plans that the nonconforming encroachments shall be abated to which the applicant has been unresponsive.  In addition to maintaining the encroachments, the applicant has also proposed alterations to the encroachments which would qualify as new construction and not be permitted as this work is not located on the subject property. 

CMC 17.34.070.B.4 states, “Paving, gravel, boulders, logs, timbers, planters or other above-ground encroachments are prohibited, except paving for driveways. Pathways paved only with decomposed paved only with decomposed granite or other soil materials made of soil materials are permitted.”

An encroachment is also defined in CMC 12.08, Encroachments, as “any excavation, structure or object, temporary or permanent, upon, over, or under any City property or public right-of-way, except driveways which are addressed in Chapter 12.24 CMC.”

Staff discussed removal of the subject encroachment with the Public Works Superintendent who found that the wall served no purse other than providing a flow line which could be reestablished by providing rolled asphalt berm which is the typical drainage characteristic of the city and is supported by Residential Design Guideline 2.3. 

Figure 5. Proposed site plan. Yellow highlight shows existing wall/fence in right-of-way. Orange highlight shows proposed wall/alterations (new construction) in right-of-way.

 

Figure 6. Existing right-of-way.  Subject encroachment is lower wall. Property line is located at upper wall terrace (refer to Figure 5).

As such, staff has included Condition of Approval for concept acceptance #4 stating that prior to scheduling for final details review, the applicant shall revise the proposed plans so the existing right-of-way encroachments are proposed for removal as part of the project, as well as a right-of-way improvement plan (ex. landscaping) be included in the submittal to be reviewed at the Final Details Hearing.  

As conditioned, the project is consistent with the Design Guidelines pertaining to the forest character and complies with the Residential Design Guidelines for Forest Character and meets Concept Phase Approval Findings #2, and #7 pertaining to the protection and enhancement of the urbanized forest (CMC 17.64.080).

Privacy and Views: Residential Design Guidelines 5.1 through 5.3 encourages designs that preserve reasonable privacy for adjacent properties and maintain view opportunities to natural features.

Staff has not identified any adverse privacy or view impacts associated with the project. The one-story form minimizes the potential for privacy and view impacts and the majority of the windows face the street or toward the interior of the site. At the time of writing this report, staff has not received any correspondence from neighbors stating privacy or view impacts. 

As proposed, the project complies with the Residential Design Guidelines pertaining to privacy and views and meets Concept Phase Approval Findings #5 pertaining to maintaining a reasonable amount of solar access and reasonable privacy to adjoining sites (CMC 17.64.080).

Mass/Bulk and Building/Roof Form: Residential Design Guidelines 7.1 through 7.7 encourages a building’s mass to relate to the context of other homes nearby; minimize the mass of a building as seen from the public way or adjacent properties; and, relate to a human scale in its basic forms.  Residential Design Guidelines 8.1 through 8.5 encourages traditional building forms; using restraint with variations in building planes; using simple roof forms that are in proportion to the scale of the building; and, roof eave lines that are low in scale. Guideline 8.3 states to “limit the number of subordinate attachments, such as dormers, to avoid cluttered design.”

The building is primarily proposed to maintain its existing U-shape and is generally proposed to be re-constructed on the same footprint while being expanded and enlarged to accommodate the new construction. The heights comply with the height limits throughout and is proposed to a maximum height of 15’6” whereas 18’ is allowed and the plate heights vary between approximately 8’9” to 12’ where 12’ is allowed.  The primary dwelling and garage are proposed to be 2,944 square feet total where 3,310 square feet are permitted (with lot merger incentive granted). The roof is comprised to a combination of hipped and gabled roof forms pitched at 4:12 throughout. The eaves will vary between 6” and 12” and will have painted galvanized half round gutters with round downspouts.