EXECUTIVE SUMMARY
The applicant is requesting to legalize and maintain existing encroachments in the right-of-way. The subject encroachments were previously required to be removed from the right-of-way in accordance with the Conditions of Approval associated with a Design Study Application, however, the applicant has requested the encroachments be maintained in the right-of-way. The request for the encroachment has been referred to the City Council by the City Administrator for consideration in accordance with CMC 12.08.050.D.
BACKGROUND/SUMMARY
On May 8, 2024, the Planning Commission approved a Design Study Application, DS 23-171, Das, (Resolution 2024-034-PC) for a Final Design Study, Lot Merger, and associated Coastal Development Permit for the demolition of an existing 2,301-square-foot, one-story single-family residence with a 479-square-foot detached 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 attached garage located at the northeast corner of Sterling Way and Perry Newberry Way (CLICK HERE for staff report which includes link to approved project plans).
Staff had previously identified the subject encroachments which include walls, stairs, railings, and fencing area in the right-of-way during a Preliminary Site Assessment Application (PSA 23-089). In review of the property file, staff was unable to locate an encroachment permit for the subject encroachments or any form of associated approval for the existing installation. As such, the condition was included in accordance with CMC 12.08.125, Nonconforming Existing Encroachments.
The project approved by the Planning Commission included the removal of the subject encroachments. However, as standard practice for existing encroachments, a Condition of Approval (“CoA” - CoA #35) was included in the approval pertaining to the removal of the encroachments, which stated:
Prior to Building Permit Issuance, the applicant shall apply for and obtain a permanent encroachment permit for any existing unpermitted encroachments within the public right-of-way, or new improvements proposed to be located in the right-of-way. Any encroachments that are denied, or not approved, shall be noted for removal, as appropriate, on the plans submitted to the Community Planning and Building Department associated with the Building Permit application and indicate all unpermitted right-of-way encroachments shall be removed as part of the project. A right-of-way improvement plan (ex. landscaping) shall accompany the revised plan set, as appropriate.
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.
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 General Plan/Land Use Plan also maintain goals, objectives, and policies, which speak directly to the treatment of the right-of-way as well as encroachments (discussed below).
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.
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.
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 any justifiable need for maintaining the encroachment. The plans approved by the Planning Commission on May 8, 2024 included an alternative which proposed the removal of the subject encroachments and site modification all located within the property boundary. On July 22, 2024, the associated Building Permit Application (BP 240329) for the associated Design Study was submitted to the Building Division which also included the proposed removal of the subject encroachments.
Figure 1. Encroachments identified to be removed on existing site plan; Building Permit BP 240329.
Safety.
The granting of an encroachment permit shall not create a hazard to public health or safety.
Staff Analysis: The proposed encroachment would not create a hazard to public health or safety.
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 Public Works Superintendent had identified that previously installed pavers did support the drainage pattern for the block.
On November 21, 2023, the Public Works Superintendent inspected the site and found that “the wall on the Perry Newberry side does act as a berm. The flow line is up against it. If you do have them remove it, grading and a rolled AC berm would be needed. Other than that [the wall] really serves no purpose.”
Removal of the encroachment would bring the right-of-way into compliance with Design Guidelines for the treatment of the right-of-way, as described in Section F, below.
The Community Planning and Building Department and Public Works Department also apply a standard Condition of Approval to projects where there is a natural slope in the right-of-way that does not accommodate the parking of vehicles. That condition requires:
Projects with a natural slope within the right-of-way immediately adjacent to the property where parking is not practical shall install jute netting and a drought tolerant ground cover to manage post-construction erosion control. Plants installed within the drip line of trees shall be selected from the City’s “List of Compatible Plants Under and Around Native Trees” located in the Forest Management Plan.
Condition of Approval #35 for the associated Design Study already requires that “a right-of-way improvement plan (ex. landscaping) shall accompany the revised plan set, as appropriate” and additional measures could be implemented for erosion control, if necessary.
Figure 2a. Example landscaped/sloped right-of-way near subject site.
Figure 2b. Example landscaped/sloped right-of-way near subject site.
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: The existing encroachment does not substantially affect vehicular access. Removal of the encroachment may improve vehicular and pedestrian access as vehicles could be located further off the roadway and onto portions the unimproved right-of-way.
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: The encroachment diminishes public use and enjoyment by substantially reducing the amount of public open space of the right-of-way by effectively creating an extension of the property into the right-of-way. The walls surrounding the property reduces public use of the adjacent right-of-way by creating a physical barrier between the road way and the remainder of the right-of-way, as well as visual and physical access to the public greenbelt. While access could be made by stepping onto the retaining walls, a member of the general public has no way of discerning what is public property and what is private property.
Additionally, a portion of the existing encroachments physically enclose a portion of the yard. A wall and a fence located at the southeast corner of the adjacent right-of-way physically enclose a portion of the right-of-way and create an actual extension of a private yard with no opportunity for public access into this space.
Figure 3. Proposed Site Plan (with encroachments proposed to be maintained); Area in RED identifies existing area between exterior boundary of encroachments at street edge and property line.
Figure 4a. Portion of subject existing encroachment. RED dashed line indicates approximate location of property line.
Figure 4b. Portion of subject existing encroachment. RED dashed line indicates approximate location of property line.
Figure 4c. Portion of subject existing encroachment. RED dashed line indicates approximate location of property line.
Figure 4d. Portion of subject existing encroachment. RED dashed line indicates approximate location of property line.
Compatibility.
- 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.
- The encroachment shall not create, extend, or be reasonably likely to lead to an undesirable land use precedent.
- Granting of a permit shall not adversely affect the usability or enjoyment of one or more adjoining parcels.
- 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. Relevant General Plan/Land Use Plan Policies, Ordinances, and Design Guidelines are described below.
Applicable General Plan/Land Use Plan Goals, Objectives and Policies; Ordinances; Design Guidelines:
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-1 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)
- Subsection 1, above, specifically identifies General Plan Policy P2-3. As noted above, the Public Works Superintendent inspected the site and found that “the wall on the Perry Newberry side does act as a berm. The flow line is up against it. If you do have them remove it, grading and a rolled AC berm would be needed. Other than that [the wall] really serves no purpose.”
The use of a wall as a drainage control is inconsistent with the city’s design guidelines for the right-of-way. In accordance with the Residential Design Guidelines, “a rolled gutter made of asphalt is typical of most neighborhoods,” as suggested by the Public Works Superintendent. A retaining wall used to control the flow line is not only out of character with properties within the immediate vicinity (which use a rolled asphalt berm, when used) but is out of character with the Design Guidelines and General Plan Policy, noted above.
P2-6 Maintain and encourage informal landscaped median strips and natural landscaped areas within public rights-of-way. (LUP)
G5-5 Maintain and enhance the informality of streetscapes. (LUP)
O5-16 Remove or reduce unnecessary or excessive hardscape and other nonconforming encroachments on City parklands and within street rights-of-way to provide for and promote planting of trees and native vegetation. (LUP)
P5-91 Require at the issuance of a building permit, the abatement or retroactive approval of any nonconforming encroachments in the public rights-of-way. (LUP)
P5-92 Look for opportunities to reduce or eliminate hardscape areas Citywide on public and private lands. Identify hardscape in the public rights-of-way and on-site that does not meet current policies or codes during preliminary site assessments and/or design review for all projects in the R-1 District. Require that project landscaping plans include the public rights-of-way. (LUP)
CMC 12.08.125. Nonconforming Existing Encroachments
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.
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.
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.
The City Forester has visited the site and has determined the existing trees in the right-of-way not impacted by the maintenance of the encroachment or the removal of the encroachment, provided the trees are appropriately protected during construction activities.
There is one oak tree located in close proximity to the wall along Sterling Way, and the forester specifically observed the tree roots of the subject tree being located inward toward the property and expects those roots are viable to support the tree even with the removal of the adjacent wall.
Figure 5. Trunk of tree located nearest to encroaching retaining wall. Subject tree roots (partially visible through foliage) are directed toward interior of site away from retaining wall.
The forester also observed irrigation systems throughout the landscaped area of the public right-of-way. In accordance with CMC 17.34.060.D, Irrigation and Maintenance, “Privately installed irrigation systems within a public right-of-way adjacent to private property shall require the approval of an encroachment permit and shall be allowed only in the commercial and R-4 zoning districts.” As such, staff also recommends the associated irritation system also be removed.
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.
PUBLIC CORRESPONDENCE:
At the time of writing this report, staff has received a number of correspondences from neighbors in support of maintaining the encroachments, specifically the stonewall within the right-of-way. These correspondences have been included as Attachment 2. Staff has not received any correspondence in opposition.
ENVIRONMENTAL REVIEW:
According to Section 15270 of the California Environmental Quality Act (CEQA), State CEQA guidelines, and local environmental regulations, CEQA does not apply to projects which a public agency rejects or disapproves. Further, the physical removal of the encroaching features was considered as part of the associated Design Study (DS 23-171) as all encroaching features were proposed to be removed as part of that project. That project was found by the Planning Commission to be Categorically Exempt under Section 15303 (Class 3) – New Construction or Conversion of Small Structures. If the Council directs staff to return with a resolution approving the encroachment or provides alternative direction, the appropriate CEQA analysis will be completed for the appropriate action.