Background/Summary:
The applicant is requesting to legalize and maintain existing encroachments in the public right-of-way. On behalf of the property owner, the Applicant is requesting City Council consideration of existing encroachments (Attachment 2) in accordance with Carmel-by-the-Sea Municipal Code (CMC) Section 12.08.050.D.
On August 12, 2024, Planning staff approved a Design Study Application, DS 24115 (Salehi), authorizing additions to the historic “Mary Haven House” (1941) located at the southwest corner of Santa Rita Street and 1st Avenue. The project was found consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (Resolution 2024-004-HRB). A new accessory dwelling unit was also approved by the Building Division. Building permits for the additions to the residence and the accessory dwelling unit were issued on February 4, 2025.
As part of the Design Study application review, staff identified existing encroachments in the City right-of-way, including retaining walls/garden walls, planter curbs, and step landings. A search of the property file did not indicate a previously granted encroachment permit or associated approval. The original planset (c.1941) does not include a site plan; elevation views depict natural grade sans retaining walls. Per CMC Section 12.08.125, Nonconforming Existing Encroachments, at the issuance of a building permit, nonconforming encroachments shall be abated or the property owner may submit an application for an encroachment permit. Rather than removing the existing encroachments, the applicant is requesting to legalize and maintain all existing encroachments.
The request for the encroachment has been referred to the City Council in accordance with CMC Section 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.
Project Description:
The Applicant is seeking to legalize and maintain all existing retaining walls/garden walls, planter curbs, and step landings in the public right-of-way located at the southwest corner of Santa Rita Street and 1st Avenue. The plans submitted with permanent encroachment permit 250005 (Salehi) indicate 56.5 square feet of existing retaining walls/garden walls with Carmel stone veneer; 14.9 square feet of existing stone planter curbs; and 28.7 square feet of step landings (one concrete landing fronting Santa Rita Street, and one Carmel stone landing fronting 1st Avenue). The retaining walls/garden walls vary in height from 6 inches up to 3 feet, 5 inches. The portion of retaining wall measuring 3 feet, 5 inches is located adjacent to an existing driveway fronting 1st Avenue. Much of the remaining sections of retaining wall just outside the north and east property boundaries measure 6 inches to 1 foot in height and are better categorized as garden walls as they do not appear to be supporting/retaining a surcharge. The stone planter curbs extend prominently into the right-of-way, and are comprised of a both loose rock and mortared rock.
Applicable Regulations:
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 granite or 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.
• Use simple planting plans when right-of-way landscaping is proposed.
• Emphasize native plants.
• Do not add paving or boulders to 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.
• Natural soil, shredded bark and wood chips are preferred surface materials. Gravel is prohibited.
• Separate an existing parking space in the right-of-way from any driveway with plantings.
• 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.
Residential Design Guideline 2.2 states,
Maintain existing patterns of street edge design and street paving.
• Avoid adding new pavement at the edge that would widen the street or create a parking space.
• Maintain an informal unpaved and/ or landscaped edge where it exists.
Residential Design Guideline 10.3 states,
Planting in areas visible from the street or other public places should continue the forest character.
• Locate plants in relaxed, informal arrangements that are consistent with the urban forest character.
• Avoid formal, unnatural arrangements of plants and paving except in areas out of public view.
• Reserve the use of bedding plants and exotic flowering plants to small accents at walkways, entries or near special site features.
• Lawns visible from the street are inappropriate to the forest setting and should be avoided.
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.
• Leaving the right-of-way natural is encouraged.
• Naturalized landscaping consistent with the City's forest character may be added to the right-of-way and be designed to blend into landscaping on site to enhance the sense of open space.
• If planted, the use of native trees, ground covers and low shrubs is preferred.
• Avoid the use of bedding plants and exotic species in the public right-of-way.
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 Section 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 requested 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.
ANALYSIS:
Encroachment Application Review Standards
There are nine (9) review standards contained in CMC Section 12.08.060.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.
Staff Response: The steeply sloping topography of the site presents a justifiable need for the planter-style retaining wall immediately east of and adjacent to the driveway fronting 1st Avenue, measuring up to 3 feet 5 inches in height. The retaining wall necessarily retains earth along the east side of the driveway. The remaining encroachments (remaining portions of retaining wall/garden wall, all planter curbs, and both step landings) do not appear associated with a justifiable need. Therefore, and in this particular case, staff recommends approval of the retaining wall along the driveway and denial of the remaining encroachments.
B. Safety. The granting of an encroachment permit shall not create a hazard to public health or safety.
Staff Response: The encroachments do not create a hazard to public health or safety. No incidents (pedestrian, vehicular, etc.) have been reported at this location. The retaining wall recommended for legalization and maintenance is visibly associated with the subject property driveway and does not extend past the driveway.
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 Response: The existing encroachments have not been shown to be disruptive to current drainage patterns. A City culvert is located in the immediate vicinity of the property, at the southwest corner of the Santa Rita Street and 1st Avenue intersection) to handle drainage of surface water.
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 Response: The topography of the site naturally encourages vehicular parking within the flat right-of-way fronting Santa Rita Street. The removal of the planter curb from the Santa Fe frontage would additionally allow for small car parking space (approximately 15 feet, per the City Public Works Department).
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 Response: The encroachments diminish public use and enjoyment by reducing the amount of public open space of the right-of-way. The partial-perimeter retaining/garden walls are located on City property but very closely abut the north and east property lines. The planter curbs, in contrast, significantly extend into the right-of-way and diminish public use and enjoyment of the space. The removal of the planter curb from the Santa Fe frontage would allow for the accommodation of one small car (per the City Public Works Department).
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 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.
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 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. With the exception of the driveway-adjacent retaining wall planter, for which a justifiable need has been identified (topography), the remaining existing encroachments are contrary to the policy direction, design objectives, and standards of the zoning code.
General Plan Policy P1-43 states, Maintain and enhance the informal, vegetated, open space character of the City’s rights-of-way. The existing planter curbs, in particular, introduce a formality to the right of way. 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. is typically discouraged in favor of a natural, informal forest edge.
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 Response: There are no existing trees in the right-of-way. Existing vegetation – comprised of low shrubs – do not appear to be impacted by the maintenance of the encroachments, nor would be impacted by the removal of the encroachments.
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 Response: Staff has recommended approval of the driveway-adjacent retaining wall deemed necessary due to topography and denial of the remaining encroachments requested by the Applicant. As such, action consistent with staff’s recommendation would result in the removal of the remaining existing non-conforming encroachments: remaining perimeter retaining/garden walls, planter curbs, and step landings. Mitigation has not been proposed. If the City Council is inclined to legalize all existing encroachments, 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.