The project site is a 2,500-square-foot lot on the north side of Ocean Avenue between Carpenter and Guadalupe Streets. The 562-square-foot single-story cottage was constructed in 1946 and was one of five cottages built for Mr. & Mrs. R. D. Weaver. The cottage features a chalk rock chimney centrally located on the front elevation.
Two driveways on Ocean Avenue were constructed in December 1965 and interconnected as a semi-circular driveway to serve all five cottages. In 1966, the cottages were being used for overnight accommodations under the name Buena Vista Cottages in violation of the R-1 zoning. In 1968, the Board of Adjustments adopted Resolution 629, granting a conditional use permit for the continued operation of the motel (four motel units and one manager unit). By 1974, the five cottages had reverted to single-family use, and the conditional use permit was revoked.
The applicant proposes a substantial alteration, including demolishing more than 50 percent of the exterior walls, constructing one-story additions totaling 333 square feet, constructing a 230-square-foot detached garage in the front yard setback, and associated site improvements. The property was reviewed for historical significance and, on February 5, 2021, was found ineligible for the historic inventory. This determination remains in effect for five years.
Prior Public Hearings
On April 12, 2023, the Planning Commission reviewed a concept design study for a substantial alteration to the existing cottage, including demolition of more than 50 percent of the exterior walls, construction of one-story additions totaling 363 square feet, construction of a 200-square-foot attached garage, and associated site improvements. The Commission adopted Resolution 2023-019-PC, accepting the concept design with conditions.
On July 19, 2023, the applicant submitted a new design study application DS 23-221 (Mardani) to construct one- and two-story additions totaling 363 square feet, a 200-square-foot detached garage in the front yard setback, and associated site improvements.
On August 10, 2023, the Forest & Beach Commission reviewed Tree Permit application TR 23-215 (Mardani) to prune limbs on a significant Coast live oak tree (tree no. 4) located on the western neighbor’s property to facilitate a second-story addition to the applicant’s cottage. The Forest & Beach Commission continued the public hearing to a date uncertain, pending a review of the project by the Planning Commission.
On November 8, 2023, the Planning Commission reviewed the two-story concept design and adopted Resolution 2023-056-PC, denying the project.
On November 28, 2023, the applicant submitted revised concept plans under Design Study application DS 21-376 (Mardani) for one-story additions totaling 333 square feet, a 230-square-foot detached garage in the front yard setback, and associated site improvements.
On February 13, 2024, the Planning Commission adopted Resolution 2024-012-PC, accepting the concept design with conditions (Attachment 2). The Staff report for this meeting is online HERE.
On June 11, 2024, the Planning Commission adopted Resolution 2024-043-PC, approving the project (Attachment 3). The Staff report of this meeting is online HERE.
Appeal:
On June 24, 2024, an appeal of the Planning Commission’s approval of the project was filed by Cathryn J Carlson (Attachment 4). The appellant asserts the following:
- Project does not comply with the applicable requirements as set out under the Carmel Municipal Code and, therefore, should have never been presented to and/or considered by the Planning Commission.
- No recent, independent, land survey required or done.
- Lot does not qualify as a legal building site for two reasons.
- Non-conforming setbacks combined with demolition greater than 50% require entire cottage to be rebuilt up to current code.
- Project entails more than 50% increase in floor area, among other contentions. Below is a summary of the grounds for appeal, followed by the staff’s response.
Project does not comply with the applicable requirements as set out under the Carmel Municipal Code and, therefore, should have never been presented to and/or considered by the Planning Commission in the first place.
1. There has been no recent, independent, professional topographical/land survey done on this property and the City failed to request one even though this is required as per CMC.
Staff Response: In April 2021, licensed engineer Ngoc Pham submitted an application on behalf of Azadeh Mardani for a Preliminary Site Assessment. This is the first step in the application review process for a Track 2 Design Study. Carmel Municipal Code Section 17.58.040.B.2, Step One: Preliminary Site Assessment, subsection b. Submittal Requirements states:
The applicant shall submit two copies of a topographic survey prepared by a licensed surveyor or a civil engineer prior to submittal of design plans for design review. The survey shall document property boundaries, topographic contours, the location of all trees over two inches DBH, the outline of all existing structures on the property, the location of any easements, existing access, the edge of pavement for all adjoining streets and all existing areas of site coverage.
In accordance with the Carmel Municipal Code and the submittal requirements for a Preliminary Site Assessment (Attachment 5), a topographic survey stamped and signed by a civil engineer was submitted (Attachment 6).
2. The lot may be less than 2,500 square feet and therefore does not qualify as a legal building site.
Staff Response: The information submitted with the design study application shows the lot to be 2,500 square feet in size, which is consistent with original subdivision maps from 1888 and 1902 (Attachment 7), Monterey County tax assessor parcel maps (Attachment 8), a 2002 survey prepared by M. Doolittle with Base Line Land Surveyors Inc. (Attachment 9), and the historic property file. Following the filing of this appeal, the applicant, Ms. Mardani, enlisted the services of Lucido Surveyors, who also confirmed that the lot size is 2,500 square feet (Attachment 10). The appellant has not provided any information to substantiate the claim that the lot is less than 2,500 square feet.
3. Not only is the property likely to be less than 2,500 square feet, but also it was in the same ownership as one or more adjoining lots of record on February 4, 1948, and thus is also (doubly) disqualified as a legal building site on this basis (even it if were 2,500 square feet).
Staff Response: Carmel Municipal Code Section 17.10.020 (Dimensional Standards – Lots, Parcels and Building Sites) defines a legal building site and states:
A. Legal Building Site Required. Parcels not meeting the criteria for legal building sites shall not be issued any building permits, other than permits for demolition, repair or maintenance, until the parcel has been brought into compliance with this section. A parcel of land within the R-1 land use district shall meet one of the following standards to be considered a legal building site:
1. At Least 2,500 Square Feet. A single, independent lot of record in existence on February 4, 1948, with at least 2,500 square feet of land area that was not in the same ownership as one or more adjoining lots of record on that date;
As noted above, the project site was created as a 2,500-square-foot lot (25-foot by 100-foot) in 1888 and remains unchanged. In June of 1946 (one year and eight months prior to February of 1948), building permits were issued for five cottages on five independent lots of record as single-family dwellings for Mr. & Mrs. R. D. Weaver. Four of the five lots, including the project site, are 25 feet by 100 feet, and one is 30 feet by 100 feet. All five cottages remain today; three are intact as originally developed, and two have been altered and expanded.
In 1966, it came to the City’s attention that the cottages were being used for overnight accommodations under the name Buena Vista Cottages in violation of the R-1 zoning. In 1968, the Board of Adjustments approved a conditional use permit for the continued operation of the property as a "motel." Four years later, the motel transitioned back to single-family residential use. It was at this time that the question of whether these 2,500-square-foot lots are building sites was raised (Attachment 11).
After reviewing the 1970-1971 decisions by former city attorneys and consulting with the current City Attorney, staff concluded that the municipal code provision cited pertains to adjacent legal lots of record under a single ownership and established as a single building site. Throughout Carmel’s history, it was not uncommon for a single owner to purchase multiple adjacent lots and build a cottage. The cottages were often constructed across property lines; however, this was not an issue because the lots were under single ownership. With the passage of legislation that became the precursor to the 1974 Subdivision Map Act, these building sites became non-conforming. The nonconformity could easily be rectified by merging the lots or adjusting lot lines. There remain instances today where multiple adjacent lots of record are under single ownership and utilized as a single building site. Building permits are limited to demolition, repair, or maintenance for these lots until the parcel has been brought into compliance (e.g., through a lot merger or lot line adjustment, or demolition). This is not the case with the Mardani project. The lot is a single, independent lot of record, established in 1888, developed with a single-family cottage in 1946, and existed before, on, and after February 4, 1948. Whether or not one or more adjacent cottages were owned by the same person(s) is irrelevant because each lot was independently developed as a separate legal building site.
4. Non-conforming setbacks combined with demolition of greater than 50% of a building or structure (a wall is a structure) trigger rebuilding to current code. The entire cottage must therefore be torn down and rebuilt in accordance with current code. This should be determined by calculation and acknowledged up front as part of the planning process.
Staff Response: Carmel Municipal Code Section 17.36.030 (Alterations and Enlargements of Nonconforming Buildings and Structures) allows,
a lawful nonconforming structure to be maintained, repaired, or altered as long as the maintenance, repair, or alteration does not increase the nonconformity.
Section 17.36.040 further states that,
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.
And,
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.
The minimum required side yard setback is 3 feet. The project has a nonconforming east side yard setback, where the cottage wall is within 3 feet of the property line (2.6’ at the southeast corner and 2.9’ at the northeast corner). The project includes the retention of this wall. All new construction must be 3’ from the side property line. The rear (north) addition complies with this requirement. It has not been the City’s practice to force property owners to demolish portions of their home that they wish to maintain when a project includes the removal of more than 50 percent of the exterior walls. Further, the definition of “demolition” presupposes that nonconforming portions of a wall may be retained.
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.
Staff disagrees that the City should compel the property owner to demolish the entirety of her cottage. Additionally, the appellant asserts the cottage should be torn down and rebuilt. This contradicts appeal points 2 and 3, asserting that the property is not a legal building site. The existing cottage could not be rebuilt if the property were found not to be a legal building site.
5. I also challenge the Planning and Building Department/Planning Commission’s June 11, 2024 decision to categorically exempt the project from CEQA pursuant to Section 15301 (Class 1) – Existing Facilities and ask that this also be overturned. It is clear that the project entails more than a 100% increase in floor area and the exemption, therefore, does not apply.
Staff Response: Section 21084 of the Public Resources Code requires the CEQA Guidelines to include a list of classes of projects which have been determined not to have a significant effect on the environment and which shall, therefore, be categorically exempt from the provisions of CEQA. In response to that mandate, the Secretary of the Natural Resources Agency has found that thirty-three classes of projects do not have a significant effect on the environment, and they are declared to be categorically exempt from the requirement to prepare an environmental document. Those 33 classes of categorically exempt projects are found in CEQA Guidelines Sections 15301-15333.
Each Class includes a description and specific criteria that must be met in order for the exemption to apply. Some of the classes also include examples of the types of projects that are categorically exempt from CEQA; however, the list is not exclusive. The Guidelines also include “exceptions to the exemptions” found in CEQA Guidelines Section 15300.2, which include several unique conditions that, when met, can disqualify a project from reliance on a categorical exemption.
Staff Analysis of Exemptions
The following section provides a detailed analysis of how the entire project qualifies for Class 1 and Class 3 categorical exemptions and demonstrates why none of the exceptions to the exemptions apply.
The Project falls under the Class 1 Categorical Exemption in CEQA Guidelines Section 15301 for Existing Facilities.
Class 1 exemptions are defined as follows,
Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features involving negligible or no expansion of existing or former use. The types of “existing facilities” itemized below [under Class 1 exemptions] are not intended to be all-inclusive of the types of projects which might fall within Class 1. The key consideration is whether the project involves negligible or no expansion of use. Examples include but are not limited to:
(e) Additions to existing structures provided the addition will not result in an increase of more than
(1) 50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less; or
(2) 10,000 square feet if
(A) the project is in an area where all public services and facilities are available to allow for maximum development permissible in the General Plan and
(B) the area in which the project is located is not environmentally sensitive.
The existing cottage is 562 square feet. Carmel Municipal Code Section 17.10.030.D.1 (Floor Area) states, in part, …All required parking shall be counted as floor area whether supplied by a garage, carport or other means. Section 17.10.030.D.2.d.i (Required Parking) states,
On each site, a minimum of 200 square feet of base floor area and 2,200 cubic feet of exterior volume shall be reserved for each required parking space whether provided by means of a garage, carport or parking pad. Inability to provide on-site parking shall not authorize more floor area or exterior volume for other purposes in lieu of parking.
Based on these provisions, the existing square footage on the project site is 762 square feet. Staff utilized the total existing square footage when calculating whether the proposed new square footage (363 square feet total) exceeds 50 percent of the existing floor area.
However, the appellant is correct that, under the existing conditions, the 200 square feet of required parking is not contained within a “structure” (carport or garage) but is satisfied by an informal parking pad.
Carmel Municipal Code Section 17.70 defines a structures as follows,
Structure. A stable assembly of parts. The term “structure” includes, but is not limited to, any building, deck, garage, carport, arbor, fence, wall, stairway, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line.
If the council agrees that the floor area for the required parking should be excluded from the existing square footage calculation for the purpose of making a CEQA determination, the existing structural square footage is 562, and the 333-square-foot addition to the existing cottage exceeds 50 percent by 52 square feet.
However, the second part of the Class 1 exemption includes additions up to 10,000 square feet. The proposed 333 square feet of additions to the existing cottage are well under 10,000 square feet. Additionally, the project meets the two qualifiers: it is located in an area where all public services and facilities are available and it is not located in an environmentally sensitive area. Therefore, the project qualifies as a Class 1 exemption.
The Project also falls under the Class 3 Categorical Exemption in CEQA Guidelines Section 15303 for New Construction or Conversion of Small Structures.
In addition to the Class 1 exemption, the project qualifies as a Class 3 exemption (New Construction or Conversion of Small Structures). Class 3 consists of the construction and location of limited numbers of new, small facilities or structures. Subsection (a) includes one single-family residence or a second dwelling unit in a residential zone. In urbanized areas, up to three single-family residences may be constructed or converted under this exemption. The project consists of one single-family residence in a residential zone and, therefore, qualifies for the Class 3 exemption.
Further, the project includes the construction of a new 230-square-foot detached garage. Class 3, Subsection (e) includes accessory (appurtenant) structures, including garages, carports, patios, swimming pools, and fences. The project qualifies for the Class 3 exemption.
None of the Exceptions to the Exemptions Apply.
The following is a list of exceptions to categorical exemptions. If any of these exceptions apply, a project cannot be found categorically exempt from CEQA. As demonstrated below, none of the exceptions apply to this project.
Location. Classes 3, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located – a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant. Therefore, these classes are considered to apply all instances, except where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.
Staff Response: The project site is located on Ocean Avenue, 4 northeast of Guadalupe Street. The project is not located in an area that has been designated, precisely mapped, or officially adopted by federal, state or local agencies as an environmental resource of hazardous or critical concern. This exception does not apply to the project.
Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place over time is significant.
Staff Response: There is only one project: 333 square feet of additions to a one-story single-family cottage and construction of a 230-square-foot detached garage. No successive projects are proposed. This exception does not apply.
Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.
Staff Response: The project involves one-story additions to a one-story cottage and the construction of a detached garage. The project site has a General Plan Land Use of Single-Family Residential and is located in the Single-Family Residential (R-1) District which provides an appropriate land area for permanent single-family residential uses and structures and to enhance and maintain the residential character of the City. The project site is surrounded on all sides by single-family residences. There are no unusual circumstances. This exception does not apply.
Scenic Highways. A categorical exemption shall not be used for a project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway. This does not apply to improvements which are required as mitigation by an adopted negative declaration or certified EIR.
Staff Response: The project site is located within Block 64 on the north side of Ocean Avenue. Block 64 is bounded by Carpenter Street to the east, Guadalupe Street to the west, and 6th Avenue to the north. None of these roadways are designated as state scenic highways. This exception does not apply.
Hazardous Waste Sites. A categorical exemption shall not be used for a project located on a site which is included on any list compiled pursuant to Section 65962.5 of the Government Code.
Staff Response: Government Code Section 65962.5 requires the Department of Toxic Substances Control to submit a list of (1) All hazardous waste facilities subject to corrective action pursuant to Section 25187.5 of the Health and Safety Code. (2) All land designated as hazardous waste property or border zone property pursuant to former Article 11 (commencing with Section 25220) of Chapter 6.5 of Division 20 of the Health and Safety Code. (3) All information received by the Department of Toxic Substances Control pursuant to Section 25242 of the Health and Safety Code on hazardous waste disposals on public land. (4) All sites listed pursuant to Article 5 (commencing with Section 78760) of Chapter 4 of Part 2 of Division 45 of the Health and Safety Code.
On September 4, 2024, City staff reviewed the California Environmental Protection Agency Cortese List of Data Sources (https://calepa.ca.gov/sitecleanup/corteselist/) and confirmed that the project site is not on any of the following lists:
This exception does not apply.
Historical Resources. A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.
Staff Response: The project site was evaluated for historical significance in 2021 and was found ineligible for the Carmel Historic Inventory. This determination remains valid for five years and will expire on February 5, 2026. This exception does not apply.
Environmental Review: Staff recommends that the project be found categorically exempt from the California Environmental Quality Act (CEQA), State CEQA guidelines, and local environmental regulations, pursuant to Section 15301 (Class 1)—Existing Facilities and Section 15303 (Class 3)—New Construction or Conversion of Small Structures.
Class 1 exemptions include additions to existing structures provided that the addition will not result in an increase of more than 50 percent of the floor area of the structures before the addition or 2,500 square feet whichever is less. The project includes demolishing more than 50 percent of the exterior walls of a single-family residence, expanding the 562-square-foot cottage to 895 square feet, and converting a 200-square-foot parking pad to a 230-square-foot detached garage. The total existing square footage is 762 square feet. The proposed square footage is 1,125 square feet. The net increase in square footage is 363 square feet which is less than 50 percent of the existing square footage and therefore the project qualifies for a Class 1 exemption.
The project includes the demolition of more than 50 percent of the exterior walls of a single-family residence in a residential zone, the construction of additions totaling 333 square feet, and the construction of a 230-square-foot detached garage in a residential zone and therefore qualifies for a Class 3 exemption. The proposed project does not present any unusual circumstances that would result in a potentially significant environmental impact and no exceptions to the exemption exist pursuant to section 15300.2 of the CEQA Guidelines.