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FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT
DATE: SEPTEMBER 19, 2006
SUBJECT: APPEAL OF DENIAL OF PLANNING CASE NO. ZON2006-00218 (VARIANCE AND COASTAL PERMIT): REQUEST TO OVERTURN THE PLANNING COMMISSION’S DENIAL OF A REQUEST FOR AFTER-THE-FACT APPROVAL OF A 6-FOOT-TALL WALL IN THE STREET-SIDE SETBACK AREA OF A CORNER LOT
Staff Coordinator: Kit Fox, AICP, Associate Planner
Continue the public hearing to the City Council meeting of November 7, 2006.
The applicant/appellant constructed a 6-foot-tall wall in the street-side setback area of a corner lot in The Enclave at Oceanfront community, without City permission and in violation of the City’s Development Code and the City-approved fencing plan for the lot. The Planning Commission considered a variance and coastal permit application to legalize the wall after-the-fact, but denied the application based upon the inability to make the necessary finding that there were exceptional or extraordinary circumstances or conditions applicable to the property involved, or to the intended use of the property, which did not apply generally to other property in the same zoning district. The applicant/appellant has asked the City Council to overturn this decision and approve the wall as constructed.
On August 25, 2006, the applicant/appellant submitted the attached letter, asking for this matter to be continued to an unspecified future date. At the request of Mayor Wolowicz, Staff recommends continuing this matter to the City Council meeting of November 7, 2006.
On March 25, 2003, the Director of Planning, Building and Code Enforcement approved a fence, wall and hedge permit (Planning Case No. ZON2003-00001) to allow miscellaneous interior side and rear property line walls and fences on sixteen (16) lots in Tract No. 46628. The applicant for Planning Case No. ZON2003-0001 was Warmington Homes, who was developing twenty (20) homes in this area (The Enclave at Oceanfront) at the time. The approval for Planning Case No. ZON2003-00001 specifically noted that it did not include 5-foot-4-inch-tall fence and/or wall segments depicted in the street-side setback areas of Lots 63 and 64, stating that they would require separate discretionary approval. The street addresses for Lots 63 and 64 of Tract No. 46628 are 30 Pacifica del Mar and 9 Calle Viento, respectively.
On June 24, 2003, the Director of Planning, Building and Code Enforcement approved a minor exception permit (Planning Case No. ZON2003-00237) to allow fences consisting of 6-foot-tall pilasters and 5-foot-4-inch-tall tubular steel panels within the street-side setback areas of the properties at 30 Pacifica del Mar and 9 Calle Viento. These are both corner lots at the intersection of Calle Viento and Pacifica del Mar. The applicant for Planning Case No. ZON2003-00237 was Warmington Homes, who was still developing The Enclave at Oceanfront at the time. The conditions of approval for the minor exception permit stated:
The maximum height of new tubular-steel fencing shall not exceed five feet four inches (5’-4”) with the exception of masonry pilasters up to six feet (6’-0”) in height at the locations depicted on the approved plan. Tubular steel fencing shall be maintained so as to be 80-percent open for the passage of light and air through the fence. Vines and shrubs shall not be allowed to obstruct the passage of light and air through any of the fences approved by this permit and depicted on the approved wall and fence plan.
Warmington Homes subsequently constructed the approved fences on both properties in accordance with the conditions of approval of Planning Case No. ZON2003-00237. Warmington Homes sold both properties in 2004.
On April 4, 2006, the City received a complaint that the existing tubular-steel fence panels along the street-side property line at 30 Pacifica del Mar had been replaced with a solid, 6-foot-tall wall, in violation of the conditions of approval for Planning Case No. ZON2003-00237. On April 11, 2006, the property owner, Robert Critelli, discussed the violation with the City’s Code Enforcement Officer. Over the next week or so, Mr. Critelli also discussed the matter several times with Planning Staff, who informed him that, in lieu of removing the illegal wall, an after-the-fact variance and coastal permit would be required to legalize it.
On April 17, 2006, Mr. Critelli submitted an after-the-fact variance and coastal permit application (Planning Case No. ZON2006-00218) to the Department of Planning, Building and Code Enforcement. The request was for after-the fact approval of the existing 6-foot-tall wall in the street-side setback area of his property. The application was deemed complete on April 28, 2006, and the matter was scheduled for Planning Commission consideration on June 13, 2006.
On June 13, 2006, the Planning Commission conducted a public hearing to consider Mr. Critelli’s request. The Planning Commission found that three (3) of the four (4) required variance findings could be made for the proposal, and that both of the required coastal permit findings could also be made. However, the Planning Commission could not make the fourth required variance finding that there were exceptional or extraordinary circumstances or conditions applicable to the property involved, or to the intended use of the property, which did not apply generally to other property in the same zoning district. Therefore, the Planning Commission unanimously adopted P.C. Resolution No. 2006-26 denying Mr. Critelli’s request without prejudice.
On June 27, 2006, Mr. Critelli filed a timely appeal of the Planning Commission’s action. At Mr. Critelli’s request, Staff agreed to delay agendizing this matter until tonight’s meeting. Mr. Critelli asks that the City Council overturn the Planning Commission’s action and approve the existing wall as built.
Copies of P.C. Resolution No. 2006-26 and the Minutes and Staff report for the June 13, 2006, public hearing are attached to tonight’s report. As discussed in the Staff report, Staff recommended denial of the requested variance and coastal permit with prejudice, based upon inconsistency with one (1) of the four (4) required variance findings. In adopting P.C. Resolution No. 2006-26, however, the Planning Commission denied the applications without prejudice, which allow Mr. Critelli to immediately submit a revised application to try to legalize the wall (rather than having to wait a year to resubmit).
Mr. Critelli has appealed the Planning Commission’s action on a number of grounds, as articulated in his appeal letter of June 27, 2006.
- Appeal Point Nos. 1, 2, 3, 6 and 8 raise the issue of the personal safety of the appellant’s family as justification for the wall. Mr. Critelli raised this same issue to the Planning Commission, but the Commission did not find that it constituted an exceptional or extraordinary circumstance or condition that did not apply generally to other property in the same zoning district.
- Appeal Point No. 4 claims that the Planning Commission ignored Mr. Critelli’s privacy concerns. However, as reflected in the June 13, 2006, Staff report, Staff argued to the Planning Commission in Mr. Critelli’s favor that a fence along the street-side property line would deprive Mr. Critelli of the same level of privacy in his rear yard that was enjoyed by the other similar corner lot in the neighborhood at 9 Calle Viento.
- Appeal Point No. 5 claims that none of Mr. Critelli’s neighbors object to the wall. Mr. Critelli has repeatedly told Staff that all of the other homeowners in The Enclave at Oceanfront are supportive of his requested variance and coastal permit. However, aside from Mr. Critelli, no one has ever provided written or oral testimony to the City in support of this application. Instead, two (2) neighbors have submitted written comments refuting Mr. Critelli’s claims regarding traffic hazards on Calle Viento.
- Appeal Point No. 7 notes that there are 6-foot-tall walls along street-side property lines in other areas of the City. This is true, particularly in the areas of the City that were developed under the County’s jurisdiction. Mr. Critelli raised this same issue to the Planning Commission, but the Commission did not find that it constituted an exceptional or extraordinary circumstance or condition that did not apply generally to other property in the same zoning district.
For all the foregoing reasons, Staff believes that Mr. Critelli’s appeal raises no new issues and provides no new information or evidence that warrant overturning the Planning Commission’s unanimous decision in this matter.
Applicant/Appellant’s Continuance Request
Mr. Critelli requests continuance of this matter on the grounds that his legal counsel is unavailable to attend tonight’s meeting. He also states that his homeowners’ association will have a new management company and board of directors by year’s end, and that “with the new management company a solution/compromise can be reached and therefore avoid using valuable City Council time to resolve this matter.” Regardless of what solution or compromise may be reached between Mr. Critelli and his homeowners’ association, this matter is before the City Council because Mr. Critelli constructed a wall without City permission and in violation of the City’s Development Code and the City-approved fencing plan for the lot. Since this application arises from a code violation, Staff wishes to expedite its resolution. Therefore, if the City Council wishes to grant Mr. Critelli’s request for a continuance, Staff recommends continuing this matter to the City Council meeting of November 7, 2006.
Coastal Commission Appeal Jurisdiction
The subject property is located within the appealable portion of the City’s coastal zone. As such, the Coastal Commission or any interested party retain the authority to call up any coastal permit approved by the City on appeal within ten (10) working days of the date of the City’s final action. However, since Staff recommends denying the appeal and upholding the Planning Commission’s denial of the variance and coastal permit, the Coastal Commission has no jurisdiction over this application unless the City Council ultimately approves it.
On August 30, 2006, public notices were mailed to the applicant/appellant, twenty (20) other property owners within a 500-foot radius of the project site, and the Oceanfront homeowners’ association. Public notice was also published in the Palos Verdes Peninsula News on September 2, 2006. Two (2) e-mails from interested parties received after the Planning Commission hearing are attached to this report. In addition, as of the date that this report was completed, Staff had received one (1) additional comment in opposition to the appeal from Lorraine O’Grady.
For the reasons discussed above, Staff recommends that the City Council deny the appeal and uphold the Planning Commission’s denial of the project as currently proposed. In denying the proposed project, the Planning Commission determined that this project is statutorily exempt from the provisions of the California Environmental Quality Act (CEQA), pursuant to Section 15270 (Projects Which Are Disapproved) of the CEQA Guidelines.
As discussed above, Staff believes that there is no basis to overturn the Planning Commission’s unanimous decision in this case. Therefore, Staff recommends that the City Council deny the appeal and uphold the Planning Commission’s denial of the requested variance and coastal permit without prejudice (Planning Case No. ZON2006-00218).
Pursuant to Section 17.72.100(E) of the Rancho Palos Verdes Development Code,”[all] appeal fees related to the City’s coastal permit appellate procedure, pursuant to [Section 17.72.100], shall be waived.” As such, the costs associated with the processing of this appeal have been borne by the City’s General Fund.
In addition to Staff’s recommendation, the alternatives available for the City Council’s consideration include:
1. Grant the appeal and overturn the Planning Commission’s denial of the requested variance and coastal permit to allow the wall to remain as built, and direct Staff to prepare a revised resolution for adoption at the next City Council meeting.
2. Grant the appeal and overturn the Planning Commission’s denial of the requested variance and coastal permit to allow the wall to remain in a modified form, and direct Staff to prepare a revised resolution for adoption at the next City Council meeting.
3. Identify any issues of concern with the project, provide direction to Staff and/or the applicant/appellant, and continue this matter to a date certain.