EXECUTIVE SUMMARY
The subject encroachment permit (EN 240031, Das) was considered at the August 6, 2024 City Council hearing with a staff recommendation for denial. Following deliberation, the Council moved to approve the encroachment. Staff has returned with a resolution of approval with findings for adoption by the City Council.
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.
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.
The application for the permanent encroachment was referred to the City Council and considered at the August 6, 2024 hearing. The item was 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 found the subject encroachment did not conform to these standards as such the encroachment was referred to the city council. When referred to the City Council, the municipal code does not expressly require the council to make all findings in the affirmative unlike the administrative process.
At the August 6, 2024 hearing, Staff had recommended denial of the encroachment permit and had prepared a resolution for denial based on the project not meeting the necessary findings for approval. Following public testimony and deliberations the Council moved to approve the encroachment based on specific findings of fact. Staff has returned with an amended resolution for approval for adoption of the findings of approval by the City Council. The Council also elected to only approve a portion of the encroachment permit application, and omit a portion of the encroachment at the southeastern corner of the site –this direction has been reflected in the associated resolution.
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, as was the case with the application at the August 6, 2024 hearing.
Staff has reviewed the discussion from the August 6, 2024 hearing. Where a finding was made by the Council, staff has included the finding under the applicable subsection below. In some cases, a specific discussion was not had about a required finding, however, the encroachment was found consistent with the subsection at the previous hearing and that finding had been carried over to this report.
These findings have been incorporated into the associated resolution (Attachment 1).
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.
Council Finding: No specific finding was made for this standard
Safety. The granting of an encroachment permit shall not create a hazard to public health or safety.
Council Finding: 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.
Council Finding: The subject encroaching wall supports the drainage pattern for the block.
Circulation and Parking.
- The proposed encroachment shall not adversely affect vehicular and/or pedestrian traffic nor the parking of vehicles.
- 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.
Council Finding: The encroachment allows for the free and safe movements of pedestrians and vehicles as the encroachment limits vehicular parking in the street that may otherwise create a “pinch point” in the street by allowing more access to parking, should the encroachment be removed.
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.
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.
Council Finding: The encroachment fits the character of the surrounding neighborhood.
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.
Council Finding: The existing vegetation contained within the area of the encroachment is significant and removal of the encroachment would diminish landscaped area, and the walls protect the trees within the right-of-way.
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: Mitigation was not proposed.
PUBLIC CORRESPONDENCE:
Following the August 6, 2024 hearing, staff received one letter of correspondence. This letter was provided to the Council as late correspondence and has been re-attached to this report as Attachment 2. In summary, a neighbor is stating the subject encroachment is a hazard and creates parking issues for the street.
ENVIRONMENTAL REVIEW:
Staff recommends the project be found categorically exempt from the California Environmental Quality Act (CEQA), State CEQA guidelines and local environmental regulations, pursuant to Section 15305 (Class 5) – Minor Alterations in Land Use Limitations, and Section 15303 (Class 3) – New Construction or Conversion of Small Structures.
Class 5 consists of minor alterations in land use limitations in areas with an average slope of less than 20%, which do not result in any changes in land use or density, including the issuance of minor encroachment permits.
Class 3 consists of construction and location of limited numbers of new, small facilities or structures including but not limited to: accessory (appurtenant) structures including garages, carports, patios, swimming pools, and fences.
The project consists of approval of an encroachment permit for the legalization of existing encroachments on a site with an average slope less than 20%. Additionally, minor alterations and some removal of existing encroachment are proposed to walls, fences, and walkways within the right-of-way. The project does not present any unusual circumstances that would result in a potentially significant environmental impact, and no exceptions to the exemption exists pursuant to Section 15300.2 of the CEQA Guidelines.