| | | | | | | |  | CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
Staff Report |
January 14, 2025
PUBLIC HEARINGS |
| | | | | | | | TO:
| Honorable Mayor and City Council Members
| SUBMITTED BY:
| Brandon Swanson, Assistant City Administrator
| APPROVED BY:
| Chip Rerig, City Administrator
| | SUBJECT: | Resolution 2025-08 - Consideration of a partial after-the-fact Permanent Encroachment Permit, PERM EN 23-077 (Givens), for development in the public right of way which includes a series of terraced retaining walls, a new staircase with handrail, and a new driveway retaining wall located on the southeast corner of Torres Street and 5th Avenue in the Single-Family Residential (R-1) District - Item Continued from December 3, 2024 |
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| | | | | | | | | RECOMMENDATION: | | Adopt Resolution 2025-08 (Attachment 1) denying Permanent Encroachment application (EN 23077) for the installation of additional encroachments, including two terraced landscape walls and railroad tie and decomposed granite steps, the legalization of, and modification to, existing encroachments, including wood retaining walls at the northwest corner of the property, driveway river stone retaining wall and wood steps on the north side of the property in the public right-of-way, adjacent to a single-family residence located at the southeast corner of Torres Street and 5th Avenue. |
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| | | | | | | | | BACKGROUND/SUMMARY: |
The applicant is requesting to both create new and to legalize and maintain existing encroachments in the public right-of-way. On behalf of the owners, the Applicant is requesting City Council consideration of the encroachments (Attachment 2).
On March 3, 2023, the Planning Commission approved a Design Study Application, DS 22-226, Givens (Resolution 2023-014-PC), for a Final Design Study and associate Coastal Development Permit for the demolition of more than 50 percent of an existing 1,216-square-foot single-story residence and detached garage and the construction 1,470-square-foot single-story residence with a detached garage at the Southeast corner of Torres Street and 5th Avenue.
As part of the Design Study approval, staff identified the subject encroachments, which include the existing driveway, retaining wall, and garden. An encroachment permit for the subject encroachments or any associated approval was not on file. The applicant was required to obtain an encroachment permit for the right-of-way improvements to retain the existing driveway, retaining wall, and garden wall without modifications. The Planning Commission did not discuss or make any recommendations; they only agreed with the staff's condition to obtain an encroachment permit. In accordance with CMC 12.08.125, Nonconforming Existing Encroachments, Condition of Approval (“CoA” – CoA #35) was included as part of the project that was approved by the Planning Commission.
Prior to final inspection, the Applicant shall obtain an encroachment permit for existing right-of-way encroachments and provide proof of liability insurance.
Rather than removing the unpermitted work, the applicant is requesting to legalize and maintain the existing encroachments that were identified as part of the Design Study Application in addition to creating new encroachments that include a new staircase with a handrail and a series of terraced retaining walls.
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.
The Applicant is seeking approval to replace existing railroad tie steps from Fifth Avenue onto parcel add a new railroad tie and decomposed granite staircase, a series of terraced retaining walls of redwood with 2x12 boards (not to exceed 29”), stump removal and to landscape the ROW. Secondary encroachments include repairing/replacing the wood stairs in NE corner of ROW on 5th Ave, planting ROW with zero water CA natives from Carmel Plant list and maintaining the existing plants in the right-of-way. The applicant is requesting these encroachments as the right-of-way erodes into 5th Avenue and Torres Street during winter rain.
General Plan Policy P1-43 states,
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)
CMC Section 17.34.070.B (Public Right-of-Way in the R-1 District) states that pathways paved only with decomposed granite or other soil materials are permitted and above-ground encroachments are prohibited (except paving for driveways). The full text of the section is provided below.
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 Guideline 1.5 states,
Maintain and enhance the informal, vegetated, open space character of the right-of-way.
Residential Design Guideline 1.7 states,
Where a parking area in the right-of-way is to be defined, use a design that will reinforce the forest image.
Residential Design Guideline 2.2 states,
Maintain existing patterns of street edge design and street paving.
Residential Design Guideline 10.3 states,
Planting in areas visible from the street or other public places should continue the forest character.
Residential Design Guideline 10.4 states,
Plants in the public right-of-way should be predominantly green foliage plants, in keeping with the design traditions of Carmel.
Note: No new paving for parking may be created in the right-of-way and when development occurs on a site any existing paving in the right-of-way must be removed unless specifically authorized through an encroachment permit.
Carmel Municipal Code Chapter 12.08 (Encroachments) states that it is the policy of the City to discourage encroachments onto public lands. When approving an encroachment, they shall be kept to a minimum and permitted only when a) consistent with the General Plan, b) preserve the public health, safety, or welfare, c) contribute to the general planning and zoning objectives of the City, and d) are characteristic with the appearance of the neighborhood and City.
A permit is required to place or maintain any encroachment in the public right-of-way. “Encroachment” is defined as, any excavation, structure or object, temporary or permanent, upon, over, or under any City property or public right-of-way, except driveways… A permanent encroachment is any encroachment that remains in the public right-of-way for more than 90 days.
Applications for encroachments are submitted to the Director of Community Planning & Building for coordination of reviews by appropriate City departments. The City Administrator is authorized to approve encroachments that conform to the standards in CMC 12.08.060. If the proposed encroachment does not conform to these standards, 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, then the application shall be scheduled for action by the City Council. Due to the nature of the encroachment, the City Administrator is referring the application to the City Council for action. Each standard is listed below, followed by the applicant’s response to the standard and the staff’s response. The City Council has the authority to exercise discretion in determining conformance with applicable review standards. Unlike the City Administrator, Council has these standards to use as a guide for review, but is not required by the code to find that the proposed encroachment all the standards.
Encroachment Application Review Standards
There are nine (9) review standards A through I. Standard I applies only to wireless communication facilities and does not apply to this application.
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.
Applicant’s Response: The applicant has indicated that the homeowners manage the soil that erodes into the ROW after heavy rains. They are requesting the encroachments as a mitigation measure of the erosion concerns that arise from the hillside of Torres Street.
Staff’s Response: The applicant has not provided a justifiable need for maintaining or expanding the existing encroachments. The scope of this application would significantly expand encroachments in the public right-of-way. Staff has discussed with the applicant potential mitigation measures to prevent further erosion. The options provided included the installation of a 6" rolled AC berm at the edge of the road continuing around the north and south sides of the driveway and the installation of jute netting, filter fabric and ground cover landscaping.
B. Safety. The granting of an encroachment permit shall not create a hazard to public health or safety.
Applicant’s Response: The proposed encroachments will improve public safety by creating safer access to the property and result in the reclaiming of areas that can be impeded by soil erosion each rainy season.
Staff Response: The proposed encroachments do not 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.
Applicant’s Response: Proposed encroachments will not disrupt current drainage patterns. The intention of the proposed work is to slow the existing drainage speeds and to prevent erosion.
Staff Response: The proposed terraced retaining walls are not in compliance with the Design Guidelines for the treatment of the right-of-way. The proposed preferred method of mitigating the erosion that is compatible with the General Plan, Carmel Municipal Code and Residential Design Guidelines would be with the use of jute netting and native plants.
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.
D. Circulation and Parking.
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The proposed encroachment shall not adversely affect vehicular and/or pedestrian traffic nor the parking of vehicles.
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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.
Applicant’s Response: The proposed encroachment will not adversely impact existing right-of-way or preclude existing right-of-way. The encroachment will improve vehicular traffic by preventing soil erosion into the street during rain events. There are no sidewalks or pedestrian areas in the right-of-way
Staff’s Response: The existing encroachment does not substantially affect vehicular access. The proposed terraced retaining walls may improve vehicular and pedestrian access as vehicles can be located further off the roadway onto portions of the unimproved right-of-way.
E. Public Use and Enjoyment.
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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.
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The encroachment and enjoyment shall be in the public interest.
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The length of time an encroachment has existed shall not by itself prejudice a decision.
Applicant’s Response: The applicant is proposing landscaping that will increase visual interest along an area that is not landscaped near the downtown area. The proposed encroachments include flowering CA Native landscaping that will increase the public enjoyment of the right-of-way.
Staff’s Response: The proposed encroachments diminish public use and enjoyment but reducing the amount of public open space of the right-of-way. The proposed encroachment effectively creates an extension of the property into the right-of-way. The landscape walls create a barrier between the roadway and the remainder of the right-of-way. The terraced retaining walls act to close off a portion of the right-of-way to create an extension of a private yard.
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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 P1-48 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.
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The encroachment shall not create, extend, or be reasonably likely to lead to an undesirable land use precedent.
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Granting of a permit shall not adversely affect the usability or enjoyment of one or more adjoining parcels.
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The proposed encroachment and its mitigation shall be compatible with the surrounding area and adjoining properties.
Applicant’s Response: The proposed encroachment follows the General Plan. The stairs are a natural material that allow for safe access pedestrian access to the parcel. The proposed encroachment does not create a undesirable land use precedent as there are similar encroachments present in the City. The proposed encroachment would not adversely affect adjoining parcels. The proposed encroachments and their mitigation are compatible with the surrounding area and adjoining properties.
Staff’s Response: 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. The addition of the proposed encroachments would bring the property further out of compliance for the treatment of the right-of-way.
General Plan Policy P1-43 states, Maintain and enhance the informal, vegetated, open space character of the City’s rights-of-way. The current property frontage treatment is a natural finish, without landscaping, and a rolled asphalt berm at the street edge to keep surface water from flowing from the street onto private property.
CMC Section 17.34.070.B (Public Right-of-Way in the R-1 District) states that above-ground encroachments are prohibited (except paving for driveways). Logs, timbers, planters or other above-ground encroachments are prohibited. Defining the boundary of a landscaped area with stones, rocks, logs, etc. are typically discouraged in favor of a natural, informal forest edge.
G. Public Property/Greenbelt.
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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.
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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.
Applicant’s Response: The encroachment will retain the existing trees and bushes in the right-of-way. A large tree stump will be removed, at the request of the Planning Commission. The right-of-way will be planted with flowering CA Natives. Significant trees were identified by the City Forester during the planning phase of the home remodel in 2022. The trees are marked on the site plan and will be protected during encroachment work.
Staff’s Response: 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 are not impacted by the maintenance of the encroachment or the removal of the encroachment, provided the trees are appropriately protected during construction activities. The significant trees are designated on the site plan and will be protected during encroachment work. No removal of any significant trees is proposed.
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.
Applicant’s Response: The applicant agrees to 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’s Response: 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.
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| | | | | | | | | FISCAL IMPACT: | | The applicant has paid an encroachment permit fee, which covers the costs associated with processing the permit. The adjacent property owner is responsible for maintaining approved encroachments. |
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| | | | | | | | | PRIOR CITY COUNCIL ACTION: | | None. |
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