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FROM: DIRECTOR OF PLANNING, BUILDING & CODE ENFORCEMENT
DATE: MAY 2, 2006
SUBJECT: APPEAL OF PLANNING CASE NO. ZON2003-00620 (LA CHARITE, 6010 OCEAN TERRACE DRIVE)
Staff Coordinator: Kit Fox, AICP, Associate Planner
Remand Planning Case No. ZON2003-00620 to the Planning Commission for further deliberation, based upon issues that warrant further study and consideration by the Planning Commission.
On March 14, 2006, the Planning Commission conditionally approved Planning Case No. ZON2003-00620 to allow 2,846 cubic yards of remedial grading and 803 cubic yards of non-remedial grading for the development of a new, 6,709-square-foot 2-story residence and 660-square-foot swimming pool on a vacant, corner lot at 6010 Ocean Terrace Drive in the Seacrest community. The Planning Commission’s action included denial of a requested variance to permit 5-foot-tall walls in the street-side setback area of the lot. On March 27, 2006, the City received a timely appeal of this action by Jim and Christy Beggans, the owners of a home across the street from the subject property at 6015 Ocean Terrace Drive. Although this matter is presented to the City Council tonight for consideration of the appeal, Staff recommends remanding the matter to the Planning Commission in light of issues not previously considered.
Tract No. 31617 and the BGR Line
On April 5, 1977, the City Council approved Tract Map No. 31617, an 80-lot single-family residential subdivision (Seacrest). The neighborhood has now been largely built out with custom homes, with only seven (7) vacant lots remaining. The conditions of approval for Tract Map No. 31617, as approved through Resolution No. 77-22, established Building/Grading Restriction (BGR) lines on portions of most of the lots in the tract, including the subject property. These lines delineate where grading and construction of structures are and are not permitted on a lot. Condition 4.d of Resolution No. 77-22 stated that “all future grading within the Building/Grading Restriction line shall be minor in scope (for footings, landscaping and site drainage) and that no grading or construction of structures shall occur outside the Building/Grading Restriction line.” This condition was imposed at the recommendation of Staff and the Planning Commission because the tract was being developed and marketed as a custom home subdivision, so limiting the allowable grading of existing building pads would help to encourage more uniform development of the individual lots than might otherwise occur. However, Staff reports and Minutes of the Planning Commission meetings do not provide any quantitative description of what “minor grading” was expected to be. The establishment of the BGR line was also recommended by Staff and the Planning Commission as a means to maintain the pre-existing ridgelines, control drainage into existing natural drainage courses, and provide view corridors.
The May 7, 1990, memorandum goes on to clarify that, in the context of the BGR line, the area “outside” the line means the area of the lot between the BGR and the rear property line. The memorandum states that “[grading] in this area is severely restricted and may only be permitted for the following uses: landscaping, site drainage and footings for walls and fences.” At-grade patio slabs, pool decks and one (1) 3-foot-tall retaining wall also continued to be permitted outside the BGR line, subject to the Planning Commission’s determination of August 10, 1982.
On October 5, 1993, the City Council adopted Resolution No. 93-86 to approve Amendment No. 1 to Tract Map No. 31617, and (more specifically) Condition No. 4.d of Resolution No. 77-22. This action was triggered by a request from the owner of an existing residence at 32015 Sea Ridge Circle to relocate the BGR line to construct an at-grade pool and spa. The requested relocation of the BGR line was denied by Resolution No. 77-22, but the resolution also formally revised Condition 4.d to “codify” the preceding Planning Commission and Staff policies regarding uses within and outside the BGR line. Condition No. 4.d was revised to read as follows (additions underlined, deletion struck out):
Provide that all future grading within the Building/Grading Restriction line shall be minor in scope (for footings, landscaping and site drainage) and that no grading or construction shall occur the Director of Planning, Building and Code Enforcement may approve limited accessory uses outside the Building/Grading Restriction BGR line, provided that such uses comply with all the requirements set forth in the attached Exhibit B.
Exhibit ‘B’ of Resolution No. 93-86 lists the uses and development standards for improvements outside the BGR line of the affected lots in Tract No. 31617. However, it provides no further guidance regarding what constitutes “future grading [that is] minor in scope” within the BGR line.
Planning Case No. ZON2003-00620
On November 19, 2003, the applicant, Mark LaCharite, submitted height variation, grading permit, and variance applications (Planning Case No. ZON2003-00620) requesting to construct a new residence on a vacant corner lot in the Seacrest community. The project proposed 2,846 cubic yards of remedial grading and 803 cubic yards of non-remedial grading for the development of a new, 6,709-square-foot 2-story residence and 660-square-foot swimming pool within the BGR line of the lot, and a 750-square-foot- recreational vehicle (RV) parking area outside the BGR line of the lot. Six-foot-tall walls were also proposed within the street-side setback area, necessitating the requested variance. The application was ultimately deemed complete for processing on December 6, 2005, and scheduled for Planning Commission review on January 10, 2006.
On January 10, 2006, the Planning Commission opened the public hearing on this application solely to hear public testimony. The Commission continued the public hearing to January 24, 2006 without discussion of the merits of the project. On January 24, 2006, the applicant asked that the item be continued to the Planning Commission meeting of March 14, 2006, indicating that possible project revisions were being contemplated to address the concerns raised by the January 10, 2006, public testimony. On January 24, 2006, the Planning Commission granted the applicant’s request to continue the matter to the March 14, 2006 meeting.
On March 14, 2006, the Planning Commission reviewed the project again, which had been somewhat revised to address the issues raised in previous public testimony. These revisions included replacing the rectangular concrete pad for RV parking outside the BGR line with an irregularly-shaped freeform concrete patio on grade; reducing the height of the walls in the street-side setback area to five feet (5’-0”); relocating the proposed pool and air conditioning and pool equipment; limiting the height of walls and other improvements within the intersection visibility triangle at Ocean Terrace Drive and Pacifica Drive; and clarifying the number and height of retaining walls adjacent to the driveway. After additional public testimony, the Planning Commission adopted P.C. Resolution No. 2006-12 on March 14, 2006, thereby approving the requested height variation and grading permit with further modifications, but denying the requested variance without prejudice. The vote was 4-2-1 to approve the project, with Chair Knight and Commissioner Lewis dissenting and Commissioner Perestam absent.
On March 15, 2006, Staff prepared and mailed a Notice of Decision to the applicant and all interested parties. On March 27, 2006, a timely appeal of the Planning Commission’s action was filed by Jim and Christy Beggans, the owners of a residence across the street from the subject property at 6015 Ocean Terrace Drive.
Attached to this report are the Planning Commission Minutes and Staff reports of the meetings of January 10, 2006, January 24, 2006 and March 14, 2006. These minutes and reports summarize the proposed project, the public testimony for and against it, the Planning Commission’s discussion of the matter, and the Planning Commission’s decision.
1. The proposed 803-cubic-yard non-remedial cut for the lower-level portion of the proposed house is not “minor in scope,” as required by Resolution Nos. 77-22 and 93-86.
The applicant proposes both remedial and non-remedial grading to construct the proposed residence. The remedial component consists of 1,423 cubic yards of over-excavation and 1,423 cubic yards of re-compaction of the existing building pad to prepare it for development, for a total of 2,846 cubic yards of remedial grading. To Staff’s knowledge, the appellants and other interested parties do not object to the proposed remedial grading component. However, they assert that the proposed 803 cubic yards of non-remedial excavation for the lower level of the house is excessive. They point to the language of Condition No. 4.d of Resolution No. 77-22, as originally adopted and later amended by Resolution No. 93-86, which states that “all future grading within the Building/Grading Restriction line shall be minor in scope.”
Neither Resolution No. 77-22 nor Resolution No. 93-86 provides a quantitative description of grading that would be considered “minor in scope.” However, the Development Code provisions in effect at the time when Resolution No. 77-22 was adopted—and which had been amended only a few months before its adoption—defined a process for a “minor grading approval” for “those applications determined to be minor in scope.” The threshold for consideration of such minor grading approvals was cut and/or fill totaling less than fifty (50) cubic yards, with a maximum depth of less than five feet (5’-0”). However, there was no actual definition of what constitutes grading that was “minor in scope.” The equivalent Development Code provisions in effect when Resolution No. 93-86 was adopted similarly provided for a minor grading approval process but no definition of grading that is “minor in scope.”
In order to assess the City’s past implementation of Condition 4.d, Staff reviewed the permit files for the twenty (20) nearest homes that were used for the neighborhood compatibility analysis for this project. This research yielded five (5) cases where it appears that more than fifty (50) cubic yards of non-remedial grading was approved in conjunction with the original construction of the house or some other site improvements, ranging from sixty (60) to two hundred thirty (230) cubic yards. It should be noted that all twenty (20) of these homes were approved prior to the adoption of Resolution No. 93-86, which enacted the current development standards outside the BGR line. Since that time, only two (2) new homes have been built in the Seacrest community, both of which involved remedial grading but one of which also involved ninety-six cubic yards (96 CY) of non-remedial cut. As such, the City has previously approved the construction of some new residences in Tract No. 31617 that involved grading within the BGR line that did not qualify for a minor grading approval (i.e., in excess of fifty (50) cubic yards).
In this case, the Planning Commission made all of the required findings for a grading approval—which are the same for both minor and major grading approvals—in approving the proposed 803-cubic-yard cut to create a “tucked-under” garage for the 2-story home. However, there was no explicit analysis or finding that this grading was or was not “minor in scope,” as described in Resolution Nos. 77-22 and 93-86. In addition, although the current and previous Development Codes have provided for minor grading approvals for certain projects, grading that is “minor in scope” has never been defined in the context of Resolution Nos. 77-22 and 93-86. Therefore, Staff believes that this matter warrants further analysis and consideration by the Planning Commission.
2. The proposed freeform concrete patio outside the BGR line cannot be constructed without grading on a slope in excess of ten percent (10%), which is contrary to the development standards for the area of the lot outside the BGR line, as established by Exhibit ‘B’ of Resolution No. 93-86.
The City’s Development Code has, for many years, exempted cut and/or fill of less than twenty (20) cubic yards with a maximum depth of less than three feet (3’-0”) from the requirement for any grading approval, pursuant to Sections 17.76.040(C)(1) and (2). In practice, Staff has come to consider such earth movement as “not grading,” while Development Code Section 17.96.820 actually defines “grading” as “excavation or fill, or any combination thereof, [including] the conditions resulting any excavation or fill,” regardless of quantity or depth. As such, earth movement that does not trigger the requirement for any grading approval is still “grading” by definition. The language of Exhibit ‘B’ of Resolution No. 93-86 states that “[no] grading, excavation or construction shall be allowed on an existing slope which is greater than 10% in steepness.” However, based upon the City Council Staff reports and Minutes related to the adoption of Resolution No. 93-86, it is not clear if this language was intended to prohibit all grading (as defined in the Development Code), or only non-exempt grading (i.e., greater then twenty (20) cubic yards of cut and/or fill over three feet (3’-0”) in depth).
In order to assess the City’s past implementation of Exhibit ‘B’ of Resolution No. 93-86, Staff reviewed the permit files for all of the Planning applications for a variety of site improvements that have been submitted to the City since the adoption of Resolution No. 93-86. Staff identified seventeen properties for which Planning approvals had been granted in this period. Of these, two (2) that proposed significant grading and/or structures outside the BGR line were withdrawn by their applicants when advised that the provisions of Exhibit ‘B’ of Resolution No. 93-86 would not permit them. A third case involving two hundred seventy (270) cubic yards of grading outside the BGR line was denied by Staff, but was approved on appeal to the Planning Commission. In this instance, the grading approved by the Planning Commission created a level yard area outside the BGR line and adjacent to a swimming pool located within the BGR line. The remaining fourteen (14) properties did not propose improvements that affected or otherwise conflicted with the restrictions placed upon the areas outside the BGR line. As such, the City has previously approved at least one case of non-exempt grading outside the BGR line for a lot in Tract No. 31617 since the adoption of Resolution No. 93-86.
In the case of the freeform concrete patio outside the BGR line, the Planning Commission conditioned its approval to prohibit any grading for construction, but the Commission’s intention (as Staff understood it) was that no grading requiring a grading approval (i.e., non-exempt grading) could be conducted to create this patio. However, the Planning Commission did not explicitly find that the grading required to construct the patio was consistent with the provisions of Exhibit ‘B’ of Resolution No. 93-86. In addition, there has never been a formal determination whether the prohibition against grading on slopes in excess of ten percent (10%) steepness in areas outside the BGR line in Tract No. 31617 is to be interpreted as “no earth movement whatsoever,” or “no earth movement requiring a grading approval.” Therefore, Staff believes that this matter warrants further analysis and consideration by the Planning Commission.
3. The necessity for the height variation is predicated upon the approval of the 803-cubic-yard cut to create the lower level of the house. If the approval of this grading is overturned, the project would no longer exceed the 16-foot height limit and the issue of the height variation would become moot.
The appellants are correct that, without the grading to accommodate the garage and lower level of the house, the current project would not require the approval of a height variation. As discussed in the March 14, 2006, Planning Commission Staff report, the applicant designed a single-story alternative to the proposed project that would have required no height variation and no more than remedial grading of the building pad to prepare it for development. However, in the event that this appeal is upheld and/or the project is otherwise ultimately denied, the applicant could apply for another height variation using the existing pad elevation rather than grading down the lot.
In addition to the three (3) issues discussed above, the appellants and other residents of the Seacrest community have repeatedly asked why the City enforces the restrictions imposed by the BGR line, but does not enforce other provisions of the CC&Rs for Tract No. 31617. The City does not enforce CC&Rs because CC&Rs are private agreements made by and between individual property owners, and do not carry the weight of law that the City’s Development Code does. Conversely, the BGR line was established for lots in Tract No. 31617 as a development standard for this tract pursuant to Condition No. 3c of Resolution No. 77-22, which was the resolution that approved Tentative Tract Map No. 31617 in 1977.
On March 29, 2006, notices were mailed to the applicant, forty-six (46) other property owners within a 500-foot radius of the project site, and two (2) other interested parties residing beyond the 500-foot notification radius. Public notice of this application was published in the Palos Verdes Peninsula News on April 1, 2006. As of the date that this report was completed, Staff had received additional comments from one (1) notified property owner.
Appeal of Denial of Variance
Although the applicant has verbally expressed his opposition to the Planning Commission’s denial of the requested variance for 5-foot-tall walls in the street-side setback area, Staff has received no written appeal from the applicant to the City Council to reconsider this component of the project. This appeal hearing is a de novo hearing, so it is within the City Council’s purview to also re-consider the denial of the requested variance. However, if the City Council is inclined to hear this appeal rather than remand the matter to the Planning Commission, for the reasons articulated in P.C. Resolution No. 2006-12, Staff recommends that the Planning Commission’s denial of the requested variance be upheld.
Project Plan Revisions
The project plans presented for the City Council’s review through this appeal have been revised, as compared to the plans reviewed by the Planning Commission. Specifically, the plans have been revised to incorporate some of the Planning Commission-approved revisions to the project, as described in Condition No. 27 of P.C. Resolution No. 2006-12, to wit:
27. Notwithstanding the plans reviewed by the Planning Commission on March 14, 2006, the approved project shall be revised as follows:
a. The freestanding wall and gate in the easterly side yard shall not exceed 6’ in height;
b. Any future gate providing access to the freeform concrete patio slab in the rear yard shall not exceed 7’ in width; and,
c. The slopes and retaining walls on both sides of the driveway shall be modified such that the walls do not exceed 5’ in height, any new slopes adjacent to these walls do not exceed 67%, and no grading occurs outside the BGR line.
The revised plans depict compliance with Condition Nos. 27a and 27c, but do not clearly depict compliance with Condition 27b. Nevertheless, Staff believes that these revised plans substantially conform to the plans reviewed by the Planning Commission on March 14, 2006.
Based upon the foregoing discussion, Staff believes that new information and issues not previously considered by the Planning Commission have been identified by Staff as a result of the issues raised by the appellants. Specifically, the definition of grading that is ”minor in scope” within the BGR line of Tract No. 31617 has never been formally established, and the Planning Commission’s action on this application did not explicitly address whether the approved grading was “minor in scope.” Furthermore, the scope of the prohibition against grading outside the BGR line in Exhibit ‘B’ of Resolution No. 93-86 has never been formally delineated as either “no earth movement whatsoever” or “no earth movement requiring a grading approval,” so it is unclear if the Planning Commission’s action regarding the patio slab is consistent with Exhibit ‘B’ of Resolution No. 93-86. Finally, there are six (6) remaining vacant lots in Tract No. 31617, and the resolution of these remaining ambiguities with Resolution Nos. 77-22 and 93-86 will assist property owners and Staff in the future. Therefore, Staff recommends that the City Council remand Planning Case No. ZON2003-00620 to the Planning Commission for further deliberation, based upon issues not previously considered by the Planning Commission.
The appellants paid the applicable $1,081.00 appeal fee for this hearing. If the City Council remands this matter to the Planning Commission, the appellants will be entitled to a full refund, although they may elect to keep these funds “on deposit” with the City until the Planning Commission’s action on the project is final if they wish to file a future appeal. If the City Council elects to hear this appeal and the appellants prevail in full and the Planning Commission’s action is overturned, the appellants will receive a complete refund of the appeal fee. If the appellants prevail only in part and the Planning Commission’s action is upheld with modifications, the appellants will receive a refund of one-half (½) of the appeal fee. The costs associated with the refund of all or a portion of the appeal fee will be borne by the City’s General Fund.
In addition to Staff’s recommendation, the following alternatives available for the City Council’s consideration:
1. Deny the appeal and uphold the Planning Commission’s conditional approval of Planning Case No. ZON2003-00620, and direct Staff to prepare an appropriate Resolution for adoption at the next meeting.
2. Deny the appeal and uphold the Planning Commission’s conditional approval of Planning Case No. ZON2003-00620 with modifications, and direct Staff to prepare an appropriate Resolution for adoption at the next meeting.
3. Uphold the appeal and overturn the Planning Commission’s conditional approval of Planning Case No. ZON2003-00620, and direct Staff to prepare an appropriate Resolution for adoption at the next meeting.
4. Identify issues of concern with the project, provide direction to Staff and/or the applicant, and continue this matter to a date certain.