EXECUTIVE SUMMARY
On January 15, 2025, Planning Commission adopted Reso. 2025-04-PC (Attachment 4) approving a Design Study Application, Variance, and associated Coastal Development Permit for substantial alterations to an existing single-family residence and modifications to the maximum site coverage limitations to the site.
There was no proposed increase in height or floor area, however, the exterior appearance of the residence was proposed to substantially change, and therefore the project required a Track 2 Design Study and Coastal Development Permit. The proposed project also required the Planning Commission to consider a Variance for site coverage.
The northern neighbor is aggrieved by the Planning Commission’s decision to approve the project, specifically as it relates to the Variance and a proposed deck on the west (front) elevation, and has appealed the Commission’s decision to the City Council. The neighbor has cited privacy from impacts a proposed deck at the front of the subject residence as their basis of the appeal (refer to Attachment 2) and the appellant’s representative argues the variance finders were not made (refer to Attachment 3).
BACKGROUND/ PROJECT DESCRIPTION
The project site is a 5,762 square-foot lot developed with a 3,693 square-foot single-family residence, inclusive of a 483 square foot attached garage. The site is non-conforming in respect to floor area as it exceeds the maximum allowable for the building site (2,390 square feet allowed) and height as the existing building exceeds the height limit for the zone district (located within the Beach Overlay; 18’ height limit. Current building is approximately 24’6” tall).
The existing structures are finished primarily with horizontal wood siding. The applicant is proposing to substantially alter the residence by replacing the existing exterior wood siding with stucco and stone elements; adding a new 461 square foot view deck off of the 2nd level; replacing windows and doors throughout; reroofing the residence; and making additional associated site modifications and repairs throughout.
While the applicant has not proposed any increase in floor area or height as part of the scope of work, as is typical with a Track 2 project that is reviewed by the Planning Commission, the project is considered a substantial alteration which qualifies for Track 2 processing in accordance with Carmel-by-the-Sea Municipal Code (CMC) Section 17.58.040.B.1. In accordance with CMC Section 17.52.90.B, the required Coastal Development Permit has been processed concurrent with the Track 2 review. An associated Variance for site coverage (discussed below) also requires approval at a public hearing. The project was approved by the Planning Commission at their January 15, 2025, hearing with findings and conditions adopted in Resolution 2025-04-PC (refer to Attachment 4).
On January 28, 2025, Dorothy Jernstedt submitted a timely appeal of the Planning Commission’s decision to approve the project (see Attachment 2). The ground for appeal, as provided in the January 28th appeal, state, “I am attaching my letter to the Planning Commission. A Variance was granted to allow this large deck. When standing on [the deck], residents will be able to look into my kitchen/sitting area. I object vehemently.”
On February 7, 2025, following the conclusion of the appeal period, a letter titled “Support for Appeal of Planning Commission Decision of January 15, 2025,” prepared by Krista Ostoich, who has been retained by the appellant (Attachment 3).
This staff report discusses appeal documents submitted as the basis for the applicant’s appeal as well as the support document received following the conclusion of the appeal period.
The project is located in the Beach and Riparian (BR) Overlay District (i.e. appeal jurisdiction) and therefore is appealable to the California Coastal Commission following a decision by the City Council.
The project plans for which the applicant is requesting approval of is the project which was presented at the January 15, 2025 and with the amended Conditions of Approval adopted in Resolution 2025-04-PC. Staff recommends the Council review staff report and the video from the January 15, 2025 project for a detailed analysis and overview of the subject project as this report is centered on the appeal. The applicant has made minor modifications to the plans to address the tree protection measures as identified in the staff report and Planning Commission Condition of Approval #34. These plans are included as Attachment 6.
STAFF ANALYSIS
Analysis Summary:
The underlying questions for the Council to consider are:
Does the Variance comply with the findings for Variance Approval? Does the proposed deck result in a privacy impact?
The Planning Commission found that Variance meets the required findings for approval. The Commission also studied the potential privacy impacts and determined the deck was consistent with the Residential Design Guidelines pertaining to privacy.
The Appellant has appealed this decision and is requesting consideration by the Council. The Appellant asserts in their appeal documents that the proposed deck results in a privacy impact and the Variance findings were not substantiated.
Appeal Analysis
Grounds for Appeal (from submitted appeal): “I am attaching my letter to the Planning Commission. A Variance was granted to allow this large deck. When standing on [the deck], residents will be able to look into my kitchen/sitting area. I object vehemently”
Analysis: The appeal form states, “State the specific basis for your appeal, such as errors or omissions you believe were committed by the Planning Commission in reaching their decision, etc. You may also submit a letter or other material to explain your appeal.” The submitted grounds for appeal do not provide any specific errors or omissions to the Planning Commission’s decision, but rather re-state information already provided to and considered by the Planning Commission.
The referenced letter was provided to the Planning Commission ahead of the public hearing in the form of correspondence received after the posting of the agenda (late correspondence) and attached to the agenda as part of the record. A discussion regarding potential privacy impacts was provided in the Planning Commission staff report for the project for January 15, 2025, and the commission observed the potential privacy impacts at the tour of inspection prior to the public hearing. Staff also addressed the neighbor’s concerns as part of the staff report presentation at the public hearing.
The Planning Commission did hear and consider all said reports, attachments, recommendations, and testimony and used their independent judgment to evaluate the project and found the project consistent with the requisite requirements for approval.
Support for Appeal: “…While all of the Variance findings are insufficient since they fail to address the view deck and patio. I have outlined specifically how Findings A, B, and F lack the substantial evidence necessary to legally support the granting of Variance to the Zoning Ordinance.”
Analysis: The appellant’s representative asserts that all of the Variance findings are insufficient as they fail to address the deck and patio. While the appellant and the appellant’s representative has suggested the Variance was structured and/or intended to be used specifically for certain design features, the Variance approval by the Planning Commission was not structured, nor considered, for the Variance to be used specifically for specific design elements, but rather, the Variance allows for an additional amount of site coverage which may be used as the current or future property owner(s) sees fit for the site.
The appellant’s representative notes that, “According to the Staff Report, the site coverage consists of new driveways, new and replaced walkways, a new view deck, patio, new and replaced stairs and landings, and a new light well… None of the six legally required Variance findings discuss the view deck and patio in the analysis. Instead, each Variance finding only analyzes the need for safe access to the residence due to the unusual topography of the site.”
CMC Section 17.52.070.A, Variances, states that (emphasis added in bold and underline), “Only the development standards listed below shall be subject to modification through issuance of a Variance: A. Maximum site coverage and minimum open space regulations;…”.
This section (CMC 17.52.070.A) allows the maximum site coverage regulations to be modified through a Variance, however, there is no code, finding, or other standard which requires the modification be tied to or associated with a specific feature.
For the subject project (VA 24263), approval of the Variance allows an increase of the maximum allowable coverage of 756 square feet (with permeability bonus) to 1,017 square feet of coverage -an additional 261 square feet of permeable/semi-permeable coverage. This allowance was reflected in separate authorization which expressly separates the Variance approval out from the design features of the project (refer to Figure 1, below).
Figure 1. Excerpt from Planning Commission Resolution 2025-04-PC. Separate Variance authorization specifically allows for an additional 261 square feet of permeable/semi-permeable coverage.
In summary, the deck was not expressly referenced in the Variance findings as the deck feature was not part of the Variance request. The Variance request was for modification to the maximum site coverage regulations, as stated in the agenda title, resolution title, resolution recitals, and reflected in the “Variance Authorization” (Condition of Approval #1) as part of the Resolution (Reso. 2025-04-PC -see Figure 1, above).
The appellant’s representative has also provided counter points to Findings A, B, and F. These points have been summarized below. The full response has been included as Attachment 3.
Finding A: “…The existing site plan for the Project shows that there is already access to the residence via a long pathway with stairs and landings on the south side of the residence which is utilized to reach the entrance of the residence from Scenic Drive. (See Exhibit B). Access to the residence already exists in the same location as what is proposed in the project. What the Applicant is really seeking a Variance for is to add the view deck, patio and light well as no Variance is necessary access.
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Under the standard set by the Orinda Ass n. v. Bd. of Supervisors Court, the legal finding above is not sufficient since the City did not analyze how a strict application of the Zoning Ordinance, which would dictate a smaller view deck and patio. would deprive the Applicant of privileges enjoyed by other properties due to the special physical circumstances of the Applicant's own Property. The fact that the legal findings solely address access as a reason for needing a Variance and seemingly elect not to mention the view deck and patio is misleading and a clear attempt to circumvent the legally required Variance procedures.”
Analysis: The applicant proposed to remove all the 2,236 square feet of existing site coverage improvements and requested approval of a Variance [AG1]to replace the site coverage with an amount of 1,017 square feet (526 sf allowed; 756 sf allowed with permeability bonus), 261 square feet above what would otherwise be permitted. In its existing state, the site is considered non-conforming.
Upon submission of the initial application, the applicant had proposed to reduce the site coverage from 2,236 square feet to 1,834 square feet, for a reduction of 351 square feet (6%). Through the review process staff and the applicant worked together to revise the project to reduce the proposed coverage to 1,017 square feet, for a reduction of 1,219 square feet (21.2%) with the additional amount of coverage being requested for the Variance (261 square feet) being quantified by identifying the area of the sloping area required for access to the rear of the site.
A strict application of the zoning code requires (from Residential (R-1) Base Floor Area & Site Coverage Handout)
Sites not in compliance with site coverage limits shall not be authorized to increase site coverage (CMC 17.10.030.C.2). Site coverage that was lawfully established but not in compliance with current zoning regulations may be maintained in its current state, however, shall be considered non-conforming. If a non-conforming element is removed, or substantially altered, it shall not be permitted to be rebuilt or re-established in the same location or elsewhere on the site (CMC 17.36.040.E).
For example: if a property has non-conforming site coverage and a patio is removed, new site coverage (such as a new deck, for example) could not be added to the property unless the remaining coverage for the site were brought into compliance with the site coverage limits.
As noted previously, as part of the project, the applicant proposed to remove all existing coverage, however, sought relief from the site coverage limitations due to the topographic constraints of the site.
Variance finding “A” (CMC Section 17.64.210.A) relates to “special physical circumstances applicable to the property, the strict application of the Zoning Ordinance will deprive the property of privileges enjoyed by other properties in the vicinity.” The addition of the deck does not relate, impact, or contribute to a finding for “special physical circumstances,” however, as noted in the discussion above, granting of the Variance was not expressly limited to specific features, but rather a modification to the site coverage allowance for the whole site.
That is, building a deck is not a result of a hardship. In this case, the city granted a general site coverage Variance based on the special physical circumstances applicable to the property, and not one specific to the deck.
While the applicant has elected to pursue a Variance for which the Planning Commission approved, the Council may find the Variance is inappropriate as suggested by the appellant’s representative. While a much smaller deck could be constructed with the denial of the Variance, a deck of similar size could also be constructed should the applicant elect to not proceed with the site coverage alterations.
As referenced above, a strict application of the zoning code requires, if a property has non-conforming site coverage and a patio is removed, new site coverage (such as a new deck, for example) could not be added to the property unless the remaining coverage for the site were brought into compliance with the site coverage limits. However, if the site coverage is existing and is not removed, a structure could potentially be constructed above the existing feature since the site coverage is increasing and there is no net increase and site coverage is not “double counted” if elements are stacked above one another.
If the applicant had not proposed site coverage modifications, a deck would still be subject to a design study approval, and a deck could be considered regardless of site coverage regulations provided it is constructed above existing site coverage.
(Staff note: the discussion regarding the alternative to not pursue a Variance, to not remove existing site coverage, and still constructing a deck should not be construed to imply an actual project alternative, or an elective option for the applicant during construction, should the appeal be denied. The project before the Council includes the removal of existing site coverage and replacement of new site coverage, as provided in the project approval by the Planning Commission. Changes to the project shall require appropriate review and approval from the Community Planning and Building Department, as provided in the Conditions of Approval. This example was intended to illustrate that a deck of similar size could have been proposed without the application for a Variance.)
Finding B: “Just like in Finding A above, here, the legal finding approved by the Planning Commission again completely omits that the Variance is not for access to the residence, as access already exists, but is actually a Variance to allow the Applicant to construct a 558 sq li view deck, as well as a patio…
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The granting of the Variance is a special privilege the City denied my client whose residence is directly next door to the Project. when she remodeled the Jernsledt Residence in 2006. The Jernstedt Residence was given Track I approval in 2006 the a remodel of an existing residence. Just like the Applicant, my client also desired to have an expanded "view deck" on the west end of the residence to take advantage of the oceanfront views. Unlike the 558 square foot deck proposed by the Applicant, my client was only asking for an approximately 13'x 6'(total of78 sq. ft.) deck expansion- Just like the Applicant's project, the Jernstedt Residence would have exceeded standards for the zoning district...
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The City's granting of the Variance on the Project is a special privilege the City refused to afford the Jernstedt Residence in 2006.”
Analysis: The argument in respect to the omission of the deck and patio has already been discussed at length, above.
On July 18, 2005, the city received a Track 1 Design Study Application for minor alterations to the residence, adjacent to the subject property, located in the Residential (R-1) and Beach and Riparian (BR) Overlay Districts (the Jernstedt Residence -refer to Attachment 5). On August 3, 2005, staff provided a Completeness Review letter to the Applicant that included two corrections. One of the two corrections stated: “The front setback is 15 feet from the front property line. The proposed deck expansion on the front of the residence encroaches into this front setback and needs to be reduced.”
There is no record of when revised plans were resubmitted, however, the project was subsequently approved on September 21, 2005. There is no application for a Variance on file, nor was a denial issued. The city maintains record of a correction letter being issued due (in part) to a setback violation, followed by an approval of the project (refer to Attachment 5).
The subject Design Study (DS 24164, Brown) includes the proposal for a deck which complies with setback standards, whereas, the deck described in the supporting appeal document (DS 05-98, Jernstedt) encroached into the front setback. The applicant for the Brown project also requested a Variance for modification to site coverage regulations, whereas the applicant for the Jernstedt project did not pursue a Variance for modification setback regulations.
The circumstances for which the two projects were considered are also not the same, therefore, the claim that approval of the Variance was a grant of special privilege because the neighbor’s deck was not approved is without merit.
Finding F: “…Since the current view deck design violates Residential Design Guideline 5.1. granting the Variance will be in direct conflict with the general zoning objectives of the R-1 district, Finding F is not supported by substantial evidence.
The Project does not meet the City’s Residential Design Guidelines and is inconsistent with Concept Finding Number 5.
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As discussed above in the section regarding Variance Finding F, the approval of the Variance allows the Applicant to construct an extended view deck that looks into the kitchen of the Jernstedt Residence, in violation of Residential Design Guideline 5.1 . The location and size of the view deck does not afford the Jernstedt Residence reasonable privacy. As such. Concept Finding # 5 cannot be met.”
Analysis: As previously discussed, approval of the Variance allows for modification to site coverage limits and is not specific to construction of the deck. The Variance application for additional site coverage was evaluated independently of the design study application for with the deck was considered.
The Residential Design Guidelines are used to implement the city’s design objectives listed in CMC Section 17.10.010 (CMC 17.10.060). The design objectives listed in CMC Section 17.10.010 are those same objectives referenced in the Design Study Findings for Approval (finding #5 below, for example):
Concept Design Study Finding #5:
The project is consistent with the City’s objectives for public and private views and will retain a reasonable amount of solar access for neighboring sites. Through the placement, location and size of windows, doors and balconies the design respects the rights to reasonable privacy on adjoining sites.
CMC 17.10.010 – Purpose and Design Objectives
Privacy. Designs should respect the privacy of neighbors. The placement of windows, doors, balconies and decks should be sensitive to similar improvements on neighboring properties
This objective is implemented through Residential Design Guidelines 5.0, and 5.1 which state:
Residential Design Guideline 5.0 Privacy, Views, Light, and Air
- Neighborhoods originally developed at relatively low densities and the amount of planted open space was extensive. Most blocks evolved with a reasonable degree of privacy for individual houses. Retaining this sense of privacy, in spite of higher densities, remains an objective.
- Objectives: To maintain privacy of indoor and outdoor spaces in a neighborhood
Residential Design Guideline 5.1 Organize functions on a site to preserve reasonable privacy for adjacent properties
- Position a building to screen active areas of adjacent properties when feasible.
- Locate windows and balconies such that they avoid overlooking active indoor and outdoor use areas of adjacent properties.
- Preserve significant trees that will help to screen views into adjacent properties.
- Screen patios, terraces and service areas.
At their January 15, 2025 hearing, the Planning Commission was provided with the appellant’s letter (refer to Attachment 2) ahead of the public hearing in the form of correspondence received after the posting of the agenda (late correspondence) and attached to the agenda as part of the record. The January 15, 2025 Planning Commission staff report included a discussion regarding potential privacy impacts. In addition, the commission observed the potential for privacy impacts at the tour of inspection prior to the public hearing. Slides #5 (see Figure 2 below) and #10 of the staff report presentation specifically drew attention to potential privacy impacts to the southern neighbor, and staff specifically requested the Commission consider privacy impacts in their decision making as part of the public hearing.
The Commission discussed the deck and potential impacts which included comments to the effect of a recommendation from one commissioner to add some kind of privacy screening on the deck railing to relieve the neighbor of any concerns, while another commissioner commented that the deck will not have a significant impact on the on the neighbor to the to the South. Another commissioner was not supportive of the deck nor Variance.
The Track 2 Design Study is a form of Design Review. As provided in CMC Section 17.10.070, “Design review involves discretion and judgment regarding the appropriateness of each design within the context of site constraints and neighborhood character.”
The Planning Commission did hear and consider all said reports, attachments, recommendations, and testimony and used their independent judgment to evaluate the project and found the project consistent with the Residential Design Guidelines and consistent with the findings for concept acceptance as provided in their motion and resolved in the associated resolution (refer to Attachment 4). The deck was approved as proposed.
Figure 2. Slide #5 from Staff Report Presentation to Planning Commission. Slide #5 specifically drew attention to potential privacy impacts to the southern neighbor (right-most residence in figure).
Figure 3. Slide #10 from Staff Report Presentation to Planning Commission. Slide #10 specifically drew attention to the concerns of the southern neighbor.
Public Correspondence: At the time of writing this report, staff has not received any correspondence relating to the appeal aside from the “Support for Appeal of Planning Commission Decision of January 15, 2025,” prepared by Krista Ostoich, who has been retained by the appellant (Attachment 3) -discussed in detail above.
Alternatives: Staff recommends the City Council adopt a resolution denying the appeal, and upholding the Planning Commission’s decision (i.e. the project approval stands as approved by the Planning Commission). Should the council be inclined to grant the appeal, or adopt their own findings of approval/conditions of approval, staff recommends the following action:
- Grant Appeal: The Council should make necessary findings and continue hearing with direction to staff to return with a revised resolution for adoption. The project would also need to be revised based on direction/findings. Design changes could be remanded back to Planning Commission.
- Adopt New Findings/Conditions for Approval: The Council may not be inclined to grant the appeal but may wish to adopt their own findings/conditions which differ from the Planning Commission’s approval. Should Council pursue this option, the Planning Commission’s resolution could be used as a “template” for the approval and Council could add or strike conditions of approval, in an effort to take final action on the project at the April 1, 2025 hearing. Alternatively, the Council could provide findings/condition through their motion with direction to staff to return with a resolution for adoption at a later date.
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 15301 (Class 1) – Existing Facilities. Class 1 exemptions include, alterations to existing private structures involving negligible or no expansion of the existing or former use such as additions to existing structures provided that the addition will not result in an increase of more than 50 percent of the existing floor area or 2,500 square feet, whichever is less. The project consists of interior and exterior alterations to an existing single-family residence. There is no proposed increase in floor area. The project does not change the existing or former use of the property as a single-family residence and 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.