On August 9, 2023, the Planning Commission considered a Track 2 Design Study application (DS 23-019, De Caussin) and approved a new two-story addition to a single-family residence located at Carmelo Street 2 northeast of 8th Avenue. Resolution No. 2023-040-PC contained a number of standard and special Conditions of Approval, one of which addressed the existing unpermitted encroachments located in the City right-of-way adjacent to the property. The unpermitted encroachments include 110 square feet of sealed decomposed granite paving; 47 square feet of mortared river rock planter bed edging; and 12 square feet of stone walkway/landing with fan-shaped brick edging; (Attachment 2, Site Photographs, and Attachment 3, Site Plan). Condition of Approval #31 of Resolution 2023-040-PC read as follows:
Right of Way. The applicant shall submit a permanent encroachment application for any encroachments that meet the standards outlined in CMC 12.08.060 (Encroachment Application Review Standards) and obtain a permanent encroachment permit and insurance prior to issuance of a building permit. Alternatively, the applicant shall revise the plans to indicate unpermitted encroachments will be removed. All unpermitted encroachments shall be removed by the time of Final Inspection.
The associated Building Permit (BP 23-519, De Caussin), was approved on February 26, 2024 and issued on March 29, 2024. The Track 2 project has not yet been finaled by the Building Division.
In addition to the unpermitted extant encroachments (sealed decomposed granite paving; mortared river rock planter bed edging; stone walkway/landing with fan-shaped brick edging) there are extant “stones placed in a manner forming a curbing/planter” as well as 10.75 linear feet of mortared stone garden wall previously authorized by the City Council in 2004.
Staff identified both the unpermitted and authorized encroachments during a Preliminary Site Assessment (PSA 22-372, De Caussin) that preceded Design Study 23-019, De Caussin. In the course of compiling the Preliminary Site Assessment, staff review of the digitized property file revealed that in August 3, 2004, the City Council authorized the following encroachments, as identified in a letter dated April 8, 2004, from Building Official Timothy Meroney to then-property owner Charlotte Marchiando (Attachment 4, 2004 Encroachment Authorization):
1. Stones placed in a manner forming a curbing/planter.
2. Stepping stones placed flat along the front of the planter.
3. Landscape lighting fixtures. (Ordered removed by City Council).
4. Plants/shrubs carved in the shape of animals.
5. Statues and/or birdhouse structures standing approximately 24” tall.
While most of the features approved in 2004 either were never installed, no longer exist, or (in the case of the plants/shrubs) do not require an encroachment permit, the “stones placed in a manner forming a curbing/planter” are extant and thus are considered legal non-conforming. Additionally, a 2004 photograph indicates the stone garden wall was also in place in 2004 and presumably included in the encroachment authorization, even though it wasn’t explicitly referenced in the code compliance letter. However, there are additional extant encroachments not described in the April 8, 2004 letter that appear to have exceeded the scope of the 2004 authorization. These include the flagstone and brick step landing, the small crushed rock border around the planters, and the sealed decomposed granite parking area.
Because there are extant unpermitted encroachments, CoA #31 was included in Resolution No. 2023-040-PC in accordance with CMC 12.08.125, Nonconforming Existing Encroachments. CMC 12.08.125.A states: At the transfer of property ownership or the issuance of a building permit, the Building Official shall inspect the public right-of-way adjacent to the affected private property. He/she shall require the abatement of any nonconforming encroachments or the property owner may submit an application for an encroachment permit that will be processed in accordance with CMC 12.08.050. As part of the PSA report, staff informed the applicant of the unpermitted existing encroachments. The topic was also raised during the Design Study review process. While the city’s practice of performing property inspections at the transfer of property ownership ceased in 1984 (Ordinance 84-13), the Community Planning and Building Department regularly performs site inspections as part of project reviews and requires the abatements of non-conforming encroachments as a Condition of Approval associated with the project.
The current property owners wish to maintain all existing encroachments. The request for the encroachment has been referred to the City Council in accordance with CMC 12.08.050.D, which states: If the proposed encroachment does not conform to these standards (CMC 12.08.060), or it is the opinion of the City Administrator that the nature of the encroachment is contrary to the public interest or should be referred to the City Council for determination. It has been identified that the proposed encroachment does not conform to the standards below.
STAFF ANALYSIS
CMC 12.08.050 outlines the process for which encroachment permits are reviewed. Encroachment permits may be approved by the City Administrator if the request conforms with the standards outlined in CMC 12.08.060, however, the City Administrator also reserves the right to refer any application to the City Council for consideration if the nature of the application is contrary to the public interested, or should be referred to the City Council for determination.
CMC 12.08.060 - Encroachment Application Review Standards.
A. Need. The applicant shall be determined to have a justifiable need for the encroachment, and the encroachment shall not be contrary to the public interest.
Staff Analysis: The applicant has not provided a justifiable need for the encroachment. The subject property accommodates on-site parking. Paving (included sealed decomposed granite) and other above ground encroachments are expressly prohibited (CMC 17.34.070.B.4) – refer to section F, below.
B. Safety. The granting of an encroachment permit shall not create a hazard to public health or safety.
Staff Analysis: The proposed encroachment does not appear to create a hazard to public health or safety.
C. Drainage. The proposed encroachment shall not adversely affect the normal drainage of surface water, unless an acceptable mitigation is included that will be advantageous to the general public and meet the standards herein.
Staff Analysis: The encroachments adversely affect the normal drainage of surface water, as sealed decomposed granite and mortared stone and brick are impermeable surfaces.
D. Circulation and Parking.
a. The proposed encroachment shall not adversely affect vehicular and/or pedestrian traffic nor the parking of vehicles.
b. The proposed encroachment shall not adversely impact existing rights-of-way nor preclude or make difficult the establishment or improvement of existing or potential streets or pedestrian ways.
Staff Analysis: While the sealed decomposed granite area is used for the parking of vehicles, there may be an unintended consequence of maintaining the appearance of a private parking space which would adversely affect the use of the right-of-way by pedestrians and use of the right-of-way for parking of vehicles by the public.
E. Public Use and Enjoyment.
a. The proposed encroachment shall not diminish public use or enjoyment, either visual or physical, of the City property or public right-of-way to be encroached upon.
b. The encroachment and enjoyment shall be in the public interest.
c. The length of time an encroachment has existed shall not by itself prejudice a decision.
Staff Analysis: Refer to staff analysis in Section D, above. The use of the right-of-way shall be a public benefit and encroachments shall not diminish enjoyment of the right-of-way either visual or physical.
Similarly, the City has adopted clear standards that guide the treatment of the right-of-way that are described and adopted in the General Plan, zoning code, and Residential Design Guidelines. The proposed encroachment is contrary to the policy direction, design objectives, and standards of the zoning code.
F. Compatibility.
a. The proposed encroachment and its mitigation shall be consistent with the General Plan and the adopted ordinances of the City. Particular attention shall be given to Section [P2-3] of the General Plan, which prohibits the construction of sidewalks and concrete curbs in the R-1 district, unless necessary for drainage and/or pedestrian safety.
b. The encroachment shall not create, extend, or be reasonably likely to lead to an undesirable land use precedent.
c. Granting of a permit shall not adversely affect the usability or enjoyment of one or more adjoining parcels.
d. The proposed encroachment and its mitigation shall be compatible with the surrounding area and adjoining properties.
Staff Analysis: The City has adopted clear standards that guide the treatment of the right-of-way that are described and adopted in the General Plan, zoning code, and Residential Design Guidelines. The proposed encroachment is contrary to the policy direction, design objectives, and standards of the zoning code. Allowing for a paved parking space, or other paved area within the right-of-way, could lead to an undesirable land use precedent. Relevant General Plan Policies, Ordinances, and Design Guidelines are described below:
General Plan/Land Use Plan
P1-43 Maintain and enhance the informal, vegetated, open space character of the City’s rights-of-way. Trees in the rights-of-way shall not be removed to provide parking. With the exception of driveways, installation of new paving in the rights-of-way by private property owners is prohibited. (LUP)
P2-3 Prohibit the construction of formal sidewalks and concrete curbs in the R-l district. Allow informal pedestrian paths and drainage improvements where needed. Control other construction (e.g., retaining walls, pavement, etc.) in the City’s public rights-of-way. (LUP)
CMC 17.34.070.B. Public Right-of-Way in the R-1 District.
1. Landscaping in public rights-of-way in the R-1 district is limited to drought-tolerant plants that are native and are consistent with the character of the Monterey Peninsula environment.
2. Plants should be natural in character and informally arranged to reflect the surrounding forest atmosphere. Landscaping shall not include bedding plants, highly colorful flowering plants and “formal plant arrangements.”
3. Landscaping should consist of leafy ground covers, low shrubs and/or trees of the urbanized forest. Natural dirt rights-of-way with pine needles is also permitted. Parking spaces may be defined in the unpaved right-of-way with landscaping.
4. 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.
Residential Design Guidelines
· 1.5 Maintain and enhance the informal, vegetated, open space character of the right-of-way
o Use simple planting plans when right-of-way landscaping is proposed.
o Emphasize native plants
o Do not add paving or boulders to the right-of-way.
· 1.7. Where a parking area in the right of way is to be defined, use a design that will reinforce the forest image.
o Natural Soil, shredded bark and wood chips are preferred surface materials. Gravel is prohibited.
o Separate an existing parking space in the right-of-way from any driveway with plantings.
o Only the city is authorized to add paving or boulders in the public right-of-way, except in the cases of driveways and authorized encroachments.
· 2.2 Maintain existing patterns of street edge design and street paving
o Avoid adding new pavement at the edge that would widen the street or create a parking space.
o Maintain an informal unpaved and/or landscaped edge where it exists.
G. Public Property/Greenbelt.
a. The proposed encroachment shall not adversely affect any public property, including existing vegetation or its root structure, and shall not significantly reduce greenbelt area that may be used for tree planting.
b. Significant trees which would be affected by the proposed encroachment shall be identified by the Director of Forest, Parks and Beach and approval for removal shall follow City policy.
Staff Analysis: The General Plan describes the right-of-way as an important open space resource that contributes to the city’s parklike environment. As described in the General Plan:
The city of Carmel has nine formally designated park, open space, and recreational areas as well as the Rio Park, which is located outside of the City limits, but is owned by the City. The parks and open space amount to over 68 acres of land. In addition, the City has approximately 67 acres of other areas that can be considered an important open space resource, but are not available for the traditional park and recreation use. Unimproved Right of Way, otherwise known as a linear greenbelt, as well as miniature parks are examples of such resources. (Open Space and Conservation Element, Page 7-6)
The General Plan further defines the greenbelt area as:
An unimproved right-of-way (ROW), where roadway width is reduced and a certain percentage of the ROW is dedicated to self-sufficient landscaping. Linear greenbelt landscaping might include shrubbery, decorative rocks, occasional benches, and trees that may also act as traffic calming features. Management of these areas is limited.
Approval of the subject encroachments would preclude the ability to enhance the public right-of-way –Residential Design Guideline 1.5 states: Maintain and enhance the informal, vegetated, open space character of the right-of-way. Paving the right-of-way precludes the ability to establish, enhance, and provide for future landscaping.
H. Mitigation. When deemed appropriate by the City, the applicant shall include those measures appropriate to compensate the City for the loss of the use of City property or the public right-of-way, or to repair damage thereto.
Staff Analysis: As staff has recommended denial of the encroachment, mitigation has not been proposed. If the City Council is inclined to grant the encroachment, or a similar encroachment, mitigation may be considered to compensate the city for the loss of the use of the city’s property or the public right-of-way.
FISCAL IMPACT:
There is no fiscal impact associated with the denial of the encroachment permit. The property owner is responsible for the removal of unpermitted encroachments per CoA #31 of Resolution 2023-040-PC. Alternatively, the Council may consider CMC 12.08.125.B, below.
CMC 12.08.125.B. City staff may cooperate with the property owner to help remove and dispose of asphalt that has not been authorized by the City.