FAIRFAX TOWN COUNCIL MEETING
STAFF REPORT
AGENDA #4
MEETING DATE April 3, 2024
PREPARED FOR Mayor and Town Council
PREPARED BY Linda Neal, Principal Planner
Jeff Beiswenger, Planning and Building Services Director Janet Coleson, Town Attorney
SUBJECT Appeal of Planning Commission action approving a Conditional Use Permit legalizing the improvement of the bedroom level of the residence and denying the requested Height Variance for the unpermitted ground floor level improvements, for the residential property at 80 Crest Road.
CEQA Categorically exempt per sections 15301(a).
*This item was continued from the March 6, 2024, Council Meeting, because the attorney for the property owners planned to provide additional options for legalizing the construction.
RECOMMENDATION
Conduct the public hearing and then adopt Option A, a resolution upholding the Planning Commission’s October 17, 2019, action on the project including the conditions of approval, as stated in attached Resolution No. 2019-13 approving (legalizing) the unpermitted improvements to the bedroom level of the structure, but denying the unpermitted improvements to lowest, ground floor level of the structure.
Alternative Recommendation
The Town Council could conduct the public hearing and then adopt Option B, a resolution upholding the Planning Commission’s October 17, 2019 action on the project including the conditions of approval, as stated in attached Resolution No. 2019-13 approving (legalizing) the unpermitted improvements to the bedroom level of the structure, but denying the unpermitted improvements to lowest, ground floor level of the structure, and delaying enforcement, including issuance of permits for the approved (legalized) improvements, until such time as the property transfers ownership through sale, inheritance, gift or otherwise.
When the property ownership transfers to a new owner, the unpermitted improvements to the lowest, ground floor level of the structure, including the interior stairway from the first floor of the residence to the unpermitted ground floor area, shall be removed and the ground level underfloor area of the house shall be restored to its original condition except for any exterior walls or interior stability improvements, including but not limited to, full-height sheathed cripple walls, properly connected to the floor diaphragm above and the foundation below or comparable improvements approved by the Town Engineer. This can be accomplished by adding the following conditions to the resolution denying the appeal:
WHEREAS, As a result of the hardship request made by the appellants relating to the interior stairway access being necessary for safe access to the wine room and workshop areas, the Town Council has agreed to delay enforcement of all provisions of this resolution until such time as the property transfers ownership, whether by sale, inheritance, gift, or other means. At 2 that time, the new owner will have sixty (60) days to apply for permits to legalize the permitted improvements and a demolishment permit to remove the wine cellar, workshop, flooring unnecessary to maintain the building foundation, and interior stairway between the subfloor foundation area and the bedroom level of the structure. The only exterior or interior improvements allowed to remain in the subfloor area are those necessary to retain the existing stability of the structure, which shall be legalized with a building permit after the Town Engineer determines on what exterior/interior sheathing improvements are to be retained, including, but not limited to, full-height sheathed cripple walls, properly connected to the floor diaphragm above and the foundation below.
DISCUSSION
The property owners applied to the Planning Commission for a Conditional Use Permit and Height Variance to legalize as-built improvements to the residential structure for which the Town has no record of permit approval. These unpermitted improvements include:
Bedroom level: The Town’s approved 1972 plan set- Attachment B- for the (then) new house shows 4 bedrooms, 2 bathrooms, a laundry closet and a hallway in what those plans refer to as the “lower floor” (called out as the “basement” in the Assessor’s records – Attachment C, and the “second floor” in the appellant’s current plans by Henry Taylor, Architect Attachment D).
The bedroom level now includes 681 square feet of new, unpermitted, subdivided living space including: a) 509 square feet of conditioned space including a sitting room, hallway, photo lab and closet; b) 172 square feet unconditioned office/storage, and closet; and c) existing bedroom four has been remodeled and subdivided into a second office and part of the hallway (see sheets 2 and 4 of the existing plan set – attachment D). The area includes a stairway down to the lowest level of the structure (lowest level shown as just a foundation with no access stairway in the approved 1972 original building permit plan set – see page three of the approved building permit plans – Attachment B).
Ground Level Story: This is shown on the approved 1972 Town plan set as an open area with foundation and support posts for the upper three stories with only half of the foundation area enclosed as foundation/crawlspace and is not called out as an improved level in the Marin County Tax Assessor’s On-site Inspection Records for the property (See page four of Attachment B, the original building permit plans and the Marin County Tax Assessor’s records – Attachment C – that show no fourth, ground floor level).
The area is now the lowest, split-level, ground floor. This level appears only on the appellant’s recently submitted plan set and was constructed without permits underneath the existing permitted threestory structure bringing the height of the structure from an improved approximately thirty-three feet to approximately fifty-feet feet in height. Approximately 894 square feet of this space remains unconditioned, while approximately 126 square feet of the ground floor has been converted into a conditioned wine room. A toilet and sink have been added into the southwest corner of the area while the center space has been converted into a workshop. Electrical improvements (outlets, etc.) have been made throughout this area. See pages one and four of the building permit plan set - Attachment B – the approved exterior side elevation and foundation plan, and pages one and four of the as built plan set - Attachment D.
Three-hundred-sixty-six square feet of storage area complete with two new windows has been added to the ground floor in the western side of the building, and an access door and stairway have been built into the north side.
The owners have asserted that the improvements to the ground level were added with the original construction of the house in 1972, and were permitted by the Town, and the 509 square feet of 3 conditioned space including a sitting room underneath the garage, and 172 square feet of unconditioned office/storage and closet, along with the remodeling of the fourth bedroom on the bedroom level of the residence were the only improvements done without permits.
The final inspection of the original house was for a three-level, 33-foot-tall structure and occurred on September 7, 1973. The approved plans were sent to be converted into a microfiche record #18 on September 13, 1973, and the three-level, four-bedroom, two-bathroom residence is what the Marin County Tax Assessor’s Records show to exist on the site (Attachment C – County Assessment Records, final inspection card, and the building permit file jacket).
On October 17, 2019, the Planning Commission approved a Conditional Use Permit for the unpermitted improvements to the bedroom level of the structure but denied the unpermitted improvements to the ground floor level of the structure (Attachment E Planning Commission Resolution No. 2019-13).
Building Levels and Historic Height Limits
Ordinance 230, in effect from 10/11/61 to 3/13/73, limited residential heights to 30 feet (referring to the mean, living space, height) and contained no limit on the number of stories a single-family residential building could have, and did not define what constituted a story. This was the ordinance in effect when the structure at 80 Crest Road was being built. If the lowest level had been constructed with permits at that time, it would have required height variance approval because the three living levels shown on the approved permit measure approximately thirty-feet and including the lower floor in the height measurement would have resulted in a fifty-foot-tall structure, with approximately fiftyfeet in height of improved living space, requiring a Height Variance.
Ordinance 352 was in effect March 13, 1973, through July 1, 1981, and limited residential structures on sites having over a ten percent slope to 45 feet in height and three stories. Ordinance 352 included the following definition of story, “The portion of a building included between the surface of any floor and the surface of the next floor above it, or if there be no floor above it, then the space between the floor and the ceiling next above it. A basement shall be counted as a story for the purpose of height measurement if subdivided and used for dwelling purposes.” The level of 80 Crest Road closest to the ground would not have qualified as a basement during the period when the house was built and basement was defined as “an area below the first floor having part but not more than half its height above grade” and the code indicated that only an area meeting this definition would not be counted as a story. Therefore, enclosing the lower area of the house during this time period and subdividing it into improved living space with windows, toilet, sink, wine cellar, flooring, interior stairway from the first floor of the residence to the unpermitted ground floor area, a workshop and electrical improvements would have required a Height Variance, Conditional Use Permit, and a building permit.
Ordinance 486 has been in effect since July 1, 1981, through today and limits maximum heights of residential structures on downward sloping sites to 35 feet and three stories. Whether the section limits houses on downward sloping lots to only 35 feet with no limit on the number of stories has been argued by applicants in the past. In this case, even if no consideration is made of the increase in the number of stories, the height of the enclosed and improved areas of the structure increased from 33 feet to 50 feet and was an improvement that would have required approvals for a Conditional Use Permit, a Height Variance, and a building permit.
Therefore, there is no period in time since 1961 when fifty foot tall residential structure legally could have been l built in Fairfax without a Conditional Use Permit, a Height Variance, and a building permit. 4 Describing the different building levels as they have been approved, subsequently constructed, and variously designated, is somewhat confusing. To assist in describing and comparing the levels as they have been variously referred to, please use the following table:
80 Crest Road Building Level Reference Comparison Table 1972 APPROVED
ORIGINAL
CONSTRUCTION
PLANS
1973 TO 1978
ASSESSOR
RECORDS
2018
APPLICANT’S
PLANS
ORIGINAL SQ.
FT.
PROPOSED
SQ. FT.
LOFT LOFT LOFT 212 NO CHANGE
MAIN FLOOR FIRST FLOOR THIRD FLOOR 1,392 NO CHANGE
LOWER FLOOR BASEMENT SECOND FLOOR 1,056 1,737
FOUNDATION NO
DESCRIPTION
FIRST FLOOR 0 1,020
Ross Valley Fire Department The Ross Valley Fire Department has reviewed the as built plans, finds them incomplete, and has indicated they will need to be revised to show a 20–foot-wide (fire) road within 150 feet of any portion of the ground floor exterior walls, and will have to indicate how to address currently inadequate fire flow pressure which does not meet the minimum required 1,000 gallons.
The structure must be provided with a National Fire Protection Agency 13 or 13 R sprinkler system for both the legalization of the basement floor expansion and the ground floor improvements.
Legalization of the ground floor, improvements will require the provision of a second exit with a building code compliant pathway or stairway leading up to Crest Road.
These would be fire department requirements and conditions of approval whether the ground level is restored to unimproved underfloor area or not, being also required for approval of the unpermitted improvements to the bedroom level. The property owners have expressed concern about the cost associated with meeting the requirement for fire protection of the Ross Valley Fire Department. This is beyond the purview of the Town and must be separately resolved with the Fire Department.
Town’s Position/Appellant’s Position
The Town’s goal is to restore the ground floor area to a condition such that future owners will not find it to be living space. This includes removal of the interior stairway from the first floor of the residence to the unpermitted ground floor area, the rear windows, the toilet and sink, the wine room, the workshop and any flooring from the ground area beneath the house not necessary for the maintenance of the foundation. All the unpermitted improvements shall be removed including any electrical improvements other than those necessary to provide visibility to someone inspecting the foundation of the residential structure.
The appellants would like to retain the area as they believe it was originally constructed except, they have indicated they would be willing to remove the toilet and the sink (the plumbing).
The appellants have also indicated that they do not want the only access to the ground floor level to be via the exterior stairway which they find to be unsafe. After inspecting the site the staff believes 5 that a code compliant stairway/access path can be created outside the house to access the foundation area beneath the house.
The appellants provided an engineering evaluation of the underfloor area – attachment F- in which their engineer’s assessment is that a portion of the enclosed underfloor (ground level) area was infilled within the past ten to fifteen years to provide life-safety upgrades and adequate lateral rigidity across the ground floor area of the structure (Attachment F – page 2, third paragraph). The report provides calculations justifying that the added exterior walls add stability for the building.
The Town Engineers have reviewed the approved building permit, the appellant’s as built plans and the appellant’s engineering analysis. After reviewing the project Engineer’s analysis contained in the report dated January 6, 2020, by Kelly Turbin, P.E. the Town Engineers are not in agreement that all of the improvements made to the lower floor are necessary for the increased stability of the house. The Town Engineers have indicated that the interior stairway from the first floor of the residence to the unpermitted ground floor area, wine cellar, toilet room, sink, new rear windows, and much of the flooring and the electrical improvements are not necessary for the stability of the permitted three floors of the structure above the foundation. Additionally, if the improvements to the ground floor were designed to provide stability to the building, the improvements would have had to have been designed based on engineering calculations and include engineered plans prior to the Town issuing a building permit for the improvements to be legally constructed. The appellants have been unable to provide the required drawings and engineering calculations that would have had to have been prepared in order for a building permit to have been issued for the underfloor enclosure construction.
The Town Engineers also believe that if the intent of the construction was strictly seismic strengthening, that would be achieved by adding full-height sheathed cripple walls, properly connected to the floor diaphragm above and the foundation below.
ATTACHMENTS
A1. Resolution of the Town Council upholding the Planning Commission decision A2. Alternative Resolution of the Town Council upholding the Planning Commission decision but delaying enforcement until such time as the property transfers ownership, by sale, inheritance, or otherwise.
B. Town approved 1972 construction plans
C. Marin County Tax record and Town Building Permit records including final Inspection card and file jacket indicating 9/13/73 plan microfiche date.
D. Appellant’s As Built Plans
E. Planning Commission Resolution No. 2019-13
F. Appellant’s appeal and supplemental information
G. Engineering Evaluation by Kelly P. Turbin, P.E. dated 1/6/20
ATTACHMENT A1
RESOLUTION NO. 24-__
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX
DENYING THE APPEAL AND UPHOLDING THE PLANNING COMMISSION ACTION APPROVING A CONDITIONAL USE PERMIT, APPLICATION 19-10, LEGALIZING THE
EXPANSION OF THE BEDROOM LEVEL OF THE RESIDENCE AND DENYING THE
REQUESTED HEIGHT VARIANCE FOR THE UNPERMITTED GROUND FLOOR LEVEL FOR THE RESIDENTIAL PROPERTY AT 80 CREST ROAD
WHEREAS, on February 25, 2019 the Town of Fairfax received an application from Verle and Marene Sorgen for a Conditional Use Permit and a Height Variance to legalize the following unpermitted construction at 80 Crest Road; 681 square feet of unpermitted, partitioned living space (509 square feet conditioned living space including a sitting room, hallway, photo lab, closet, 172 square feet unconditioned office/storage, and closet) and a 1,020 square-foot, 4th (ground floor) level underneath the existing permitted three-story structure that includes a conditioned wine cellar, a room with a toilet, another room with a sink and a workshop with minor electrical improvements throughout the entirety of the space, two windows, and an exit door and stairway on the north side; and
WHEREAS, the Planning Commission held a duly noticed Public Hearing on October 17, 2019, to consider approval of the owner’s requested Conditional Use Permit and Height Variance and at which time all interested parties were given a full opportunity to be heard and to present evidence; and
WHEREAS, at the conclusion of the October 17, 2019, Planning Commission meeting, that body did approve, by way of its adoption of Resolution 2019-13, the plans dated 5/5/18, prepared by Henry Taylor, Architect, pages 1 through 7, which the Commission conditioned to be modified to eliminate the following:
The 1,020 square feet of improvements in the ground floor 4th level, including all the stairways, flooring, any interior walls not necessary for the structural integrity of the building as recommended by the project structural engineer and verified by the Town Engineer after a peer review, the toilet, sink and wine storage room and any electrical not required to provide minimal visibility when accessing the underfloor area, as well as the 2 windows in the west side of the building.
WHEREAS, the Town Council has made the following findings provided the ground floor 4th story of the structure is abated:
The project conforms to the following 2010-2030 Town of Fairfax General Plan Policies:
Policy LU-7.1.5: New and renewed residential development shall preserve and enhance the existing character of the Town’s neighborhoods in diversity, architectural character, size, and mass.
2 Policy LU-7.2.1: New and renewed development shall be compatible with the general character and scale of structures in the vicinity.
1. Legalization of the 509 square-feet conditioned living and 172 square feet of unconditioned space including the sitting room, hallway, photo lab and closet, and office/storage closet, are similar in size, mass, design, and location on the site to other three-story residential structures in the Crest Road neighborhood. Therefore, the approval of the use permit regarding these issues shall not constitute a grant of special privilege and shall not contravene the doctrines of equity and equal treatment. However, granting approval of the four story, fifty-foot-tall structure, in this neighborhood of threestory structures, would result in a structure with a design out of character with the surrounding neighborhood.
2. The project will not exceed the Floor Area Ratio or Lot Coverage limitations, will comply with the RS-6 Zone District setback requirements and once the project is modified to eliminate the 4th, ground level story, it will comply with the height regulations reducing the height of the improved area of the structure from fifty to thirty-three feet in height.
Therefore, the development and use of the property as approved shall not cause excessive or unreasonable detriment to adjoining properties or premises, or cause adverse physical or economic effects thereto, or create undue or excessive burdens in the use and enjoyment thereof, or any or all of which effects are substantially beyond that which might occur without approval or issuance of the Conditional Use permit.
3. Approval of the Conditional Use permit, with the plans modified to eliminate the 4th, ground level of the house structure, is not contrary to those objectives, goals or standards pertinent to the particular case and contained or set forth in the 2010 to 2030 Fairfax General Plan and Zoning Ordinance, Title 17 of the Fairfax Town Code.
4. Approval of the Conditional Use permit, with plans modified as described above, will maintain the remainder of the site in its natural state requiring no significant excavation and/or removal of trees or vegetation and will provide the owners with additional living space and storage that is not available on the remainder of the site with its 48% slope.
Approval of the Conditional Use permit, as modified in accordance with the above, will result in equal or better development of the premises than would otherwise be the case, and that said approval is in the public interest and for the protection or enhancement of the general health, safety, or welfare of the community.
WHEREAS, at the conclusion of the April 3, 2024, public hearing, the Town Council found that the findings required by § 17.028.070 of the Town Code to approve a Height Variance for a 50- foot-tall residential structure at this location could not be made and made the following findings to deny the Height Variance:
1. The Town has not granted any height variances for a fifty-foot-tall residence that staff can find any record of since its incorporation in 1931 nor have the codes ever allowed for the creation of a fifty-foot tall and four-story residential structure. Therefore, approval of the project with a 4th level, creating fifty feet of improved residence area would constitute a grant of special privilege; and
2. There are no special circumstances applicable to this 33,632 square-foot site that require additional square footage to be designed only as a 4th level resulting in a 50- 3 foot-tall structure. There are opportunities, and it is physically possible, to design additional space as extensions to the other floors of the existing structure. Therefore, denial of the requested height variance for a fourth level will not deprive the applicant of privileges enjoyed by other property owners in the vicinity and in the RS-6 Zone District or of the ability to enlarge their residence in compliance with the Zoning Regulations.
3. The strict application of the thirty-five-foot height limit, would not result in excessive or unreasonable hardship for the owners as the removal of the unpermitted work and compliance with other agencies conditions is physically possible and would bring the property into compliance with the height regulations.
4. The denial of the height variance to allow a 4-story, 50-foot-tall residence will protect the public welfare, maintain the site in a compatible manner to the hillside development on Crest Road and will protect the property values of other property in the vicinity where the 3-story height limit is being adhered to and in which the property is situated.
WHEREAS, this action is exempt from the California Environmental Quality Act (CEQA) Guidelines under Section 15301 as an existing facility; Section 15061 (b)(3) since the project will have no significant effect on the environment; and Section 15270 since projects which are disapproved do not require environmental analysis.
NOW, THEREFORE, BE IT HEREBY FOUND AND RESOLVED by the Town Council of the Town of Fairfax:
Section 1. The recitals set forth above are incorporated herein.
Section 2. Based on the foregoing, the Town Council of the Town of Fairfax does deny the requested appeal and upholds the Planning Commission approval of the Conditional Use Permit and denial of the Height Variance as set forth in Attachment A, Planning Commission Resolution 2019-13.
The foregoing resolution was adopted at a regular meeting of the Town Council held in said Town, on the 3rd day of April 2024, by the following vote:
AYES:
NOES:
ABSENT:
________________________________
Barbara Coler, Mayor
Attest:
_______________________________
Christine Foster, Deputy Town Clerk
ATTACHMENT A2
RESOLUTION NO. 24-__
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX
DENYING THE APPEAL AND UPHOLDING THE PLANNING COMMISSION ACTION APPROVING A CONDITIONAL USE PERMIT, APPLICATION 19-10, LEGALIZING THE EXPANSION OF THE
BEDROOM LEVEL OF THE RESIDENCE AND DENYING THE REQUESTED HEIGHT VARIANCE FOR THE UNPERMITTED GROUND FLOOR LEVEL FOR THE RESIDENTIAL PROPERTY AT 80
CREST ROAD BUT DELAYING ENFORCEMENT, DUE TO HARDSHIP, UNTIL THE PROPERTY
TRANSFERS OWNERSHIP
WHEREAS, on February 25, 2019 the Town of Fairfax received an application from Verle and Marene Sorgen for a Conditional Use Permit and a Height Variance to legalize the following unpermitted construction at 80 Crest Road; 681 square feet of unpermitted, partitioned living space (509 square feet conditioned living space including a sitting room, hallway, photo lab, closet, 172 square feet unconditioned office/storage, and closet) and a 1,020 square-foot, 4th (ground floor) level underneath the existing permitted three-story structure that includes a conditioned wine cellar, a room with a toilet, another room with a sink and a workshop with minor electrical improvements throughout the entirety of the space, two windows, and an exit door and stairway on the north side; and WHEREAS, the Planning Commission held a duly noticed Public Hearing on October 17, 2019, to consider approval of the owner’s requested Conditional Use Permit and Height Variance and at which time all interested parties were given a full opportunity to be heard and to present evidence; and WHEREAS, at the conclusion of the October 17, 2019, Planning Commission meeting, that body did approve, by way of its adoption of Resolution 2019-13, the plans dated 5/5/18, prepared by Henry Taylor, Architect, pages 1 through 7, which the Commission conditioned to be modified to eliminate the following:
The 1,020 square feet of improvements in the ground floor 4th level, including all the stairways, flooring, any interior walls not necessary for the structural integrity of the building as recommended by the project structural engineer and verified by the Town Engineer after a peer review, the toilet, sink and wine storage room and any electrical not required to provide minimal visibility when accessing the underfloor area, as well as the 2 windows in the west side of the building.
WHEREAS, the Town Council has made the following findings provided the ground floor 4th story of the structure is abated:
The project conforms to the following 2010-2030 Town of Fairfax General Plan Policies:
Policy LU-7.1.5: New and renewed residential development shall preserve and enhance the existing character of the Town’s neighborhoods in diversity, architectural character, size, and mass.
Policy LU-7.2.1: New and renewed development shall be compatible with the general character and scale of structures in the vicinity.
1. Legalization of the 509 square-feet conditioned living and 172 square feet of unconditioned space including the sitting room, hallway, photo lab and closet, and office/storage closet, are similar in size, mass, design, and location on the site to other three-story residential structures in the Crest Road neighborhood. Therefore, the approval of the use permit regarding these issues shall not constitute a grant of special privilege and shall not contravene the doctrines of equity and equal treatment. However, granting approval of the four story, fifty-foot-tall structure, in this neighborhood of three-story structures, would result in a structure with a design out of character 2 with the surrounding neighborhood.
2. The project will not exceed the Floor Area Ratio or Lot Coverage limitations, will comply with the RS-6 Zone District setback requirements and once the project is modified to eliminate the 4th, ground level story, it will comply with the height regulations reducing the height of the improved area of the structure from fifty to thirty-three feet in height. Therefore, the development and use of the property as approved shall not cause excessive or unreasonable detriment to adjoining properties or premises, or cause adverse physical or economic effects thereto, or create undue or excessive burdens in the use and enjoyment thereof, or any or all of which effects are substantially beyond that which might occur without approval or issuance of the Conditional Use permit.
3. Approval of the Conditional Use permit, with the plans modified to eliminate the 4th, ground level of the house structure, is not contrary to those objectives, goals, or standards pertinent to the particular case and contained or set forth in the 2010 to 2030 Fairfax General Plan and Zoning Ordinance, Title 17 of the Fairfax Town Code.
4. Approval of the Conditional Use permit, with plans modified as described above, will maintain the remainder of the site in its natural state requiring no significant excavation and/or removal of trees or vegetation and will provide the owners with additional living space and storage that is not available on the remainder of the site with its 48% slope. Approval of the Conditional Use permit, as modified in accordance with the above, will result in equal or better development of the premises than would otherwise be the case, and that said approval is in the public interest and for the protection or enhancement of the general health, safety, or welfare of the community.
WHEREAS, at the conclusion of the April 3, 2024, public hearing, the Town Council found that the findings required by § 17.028.070 of the Town Code to approve a Height Variance for a 50-foot-tall residential structure at this location could not be made and made the following findings to deny the Height Variance:
1. The Town has not granted any height variances for a fifty-foot-tall residence that staff can find any record of since its incorporation in 1931 nor have the codes ever allowed for the creation of a fifty-foot tall and four-story residential structure. Therefore, approval of the project with a 4th level, creating fifty feet of improved residence area would constitute a grant of special privilege; and
2. There are no special circumstances applicable to this 33,632 square-foot site that require additional square footage to be designed only as a 4th level resulting in a 50-foot-tall structure.
There are opportunities, and it is physically possible, to design additional space as extensions to the other floors of the existing structure. Therefore, denial of the requested height variance for a fourth level will not deprive the applicant of privileges enjoyed by other property owners in the vicinity and in the RS-6 Zone District or of the ability to enlarge their residence in compliance with the Zoning Regulations.
3. The strict application of the thirty-five-foot height limit, would not result in excessive or unreasonable hardship for the owners as the removal of the unpermitted work and compliance with other agencies conditions is physically possible and would bring the property into compliance with the height regulations.
4. The denial of the height variance to allow a 4-story, 50-foot-tall residence will protect the public welfare, maintain the site in a compatible manner to the hillside development on Crest Road and will protect the property values of other property in the vicinity where the 3-story height limit is being adhered to and in which the property is situated.
WHEREAS, As a result of the hardship request made by the appellants relating to the interior stairway access being necessary for safe access to the wine room and workshop areas, the Town Council has agreed to delay enforcement of all provisions of this resolution until such time as the property transfers 3 ownership, whether by sale, inheritance, gift, or other means. At that time, the new owner will have sixty (60) days to apply for permits to legalize the permitted improvements and a demolishment permit to remove the wine cellar, workshop, flooring unnecessary to maintain the building foundation, and interior stairway between the subfloor foundation area and the bedroom level of the structure. The only exterior or interior improvements allowed to remain in the subfloor area are those necessary to retain the existing stability of the structure, which shall be legalized with a building permit after the Town Engineer determines on what exterior/interior sheathing improvements are to be retained, including, but not limited to, full-height sheathed cripple walls, properly connected to the floor diaphragm above and the foundation below.
WHEREAS, this action is exempt from the California Environmental Quality Act (CEQA) Guidelines under Section 15301 as an existing facility; Section 15061 (b)(3) since the project will have no significant effect on the environment; and Section 15270 since projects which are disapproved do not require environmental analysis.
NOW, THEREFORE, BE IT HEREBY FOUND AND RESOLVED by the Town Council of the Town of Fairfax:
Section 1. The recitals set forth above are incorporated herein.
Section 2. Based on the foregoing, the Town Council of the Town of Fairfax does deny the requested appeal and upholds the Planning Commission approval of the Conditional Use Permit and denial of the Height Variance as set forth in Attachment A, Planning Commission Resolution 2019-13.
The foregoing resolution was adopted at a regular meeting of the Town Council held in said Town, on the 3rd day of April 2024, by the following vote:
AYES:
NOES:
ABSENT:
________________________________
Barbara Coler, Mayor
Attest:
________________________
Christine Foster, Deputy Town Clerk
ATTACHMENT B_
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5 RESOLUTION NO. 2019-13
A Resolution of the Fairfax Planning Commission Approving a Conditional Use Permit Legalizing the Expansion of the Basement Level of the Residence and Denying the Requested Height Variance for the Unpermitted Ground Floor level for the Residential Property at 80 Crest Road
WHEREAS, the Town of Fairfax has received an application from Verle and Marene Sorgen for a Conditional Use Permit and a Height Variance legalize 681 square feet of unpermitted, partitioned living space (509 square feet conditioned living space including a sitting room, hallway, photo lab, closet, 172 square feet unconditioned office/storage, and closet) and for a 1,020 square-foot, 4
th (ground floor) level underneath the existing
permitted 3-story structure that has been subdivided into a conditioned wine cellar, a room with a toilet, another room with a sink and a workshop with minor electrical improvements throughout the entirety of the space, two windows, and an exit door and stairway on the north side; and
WHEREAS, the Planning Commission held a duly noticed Public Hearing on October 17, 2019 at which time all interested parties were given a full opportunity to be heard and to present evidence; and
WHEREAS, the plans dated 5/5/18, prepared by Henry Taylor, Architect, pages 1 through 7, are conditioned to be modified to eliminate the following:
The 1,020 square feet of improvements in the ground floor 4 th level, including all the
stairways, flooring, any interior walls not necessary for the structural integrity of the building as recommended by the project structural engineer and verified by the Town Engineer after a peer review, the toilet, sink and wine storage room and any electrical not required to provide minimal visibility when accessing the underfloor area, as well as the 2 windows in the west side of the building.
The Planning Commission has determined that, as amended by the conditions of approval, the applicants have met the burden of proof required to support the findings necessary for the project's requested discretionary Conditional Use Permit to approve the portion of the unpermitted improvements to the basement/bedroom story of the residence; and
WHEREAS, the Planning Commission has made the following findings provided the ground floor 4th story of the structure is abated:
The project conforms to the following 2010-2030 Town of Fairfax General Plan Policies:
Policy LU-7.1.5: New and renewed residential development shall preserve and enhance the existing character of the Town's neighborhoods in diversity, architectural character,
ATTACHMENT E
TOWN OF FAIRFAX
142 BO LI NAS ROAD, FAIRFAX. CA LI FORN IA 94930
(415) 453-1584/FAX (415) 453·1618
NOTlCE OF APPEAL
FOR STAFF USE
OCT :l 3 2019 Date:/C1/Z�S//'1 Fee: .ff f;(}(),. ,:.:_J:::
Appl.#
Receipt# I -; �7 ?5't; r. , .. :
·
1 i.•· ., ,•,·J //,( Recvd. By: .:::,• .. .;"--;:�(.•/', \J'-•.JC� \'L, .. ) c,:,�x;.t ric,,.v 1V t ,,...... 1 ·- Action: ___________
The purpose of the appeal procedure is to provide recourse in case it is alleged that there is an error in any order, requirement, permit, decision or determination by any administrative official, advisory body or commission in the administration or enforcement of tlie City Ordinances. Any person aggrieved by the action of any administrative official, advisory board or commission in the administration or enforcement of any ordinance in the Town Code may make verified application to the Town Clerk in the manner prescribed by the Town Council within ten (10) days of action that is appealed.
FEE: Fees are set by resolution of the Town Council. See fee schedule for current application fees.
■ f & & U l @MIi 111M e
r I i ii 1 J 1 MIT 11f & &PF
PLEASE PRINT lOlb � �\Zt"
Appelia nt's name \,ft,:J "- o.�J. Ma, �l)L 3 o r§Uv C/o I( ,\\:i ,d l,,_,,_, G-ro.,p ,;;:: ll!._��C,A <,'f'l,, 1 Mailing address ?JO Cr"�T �otJ, :fu.v�b)(, Zip: q½'�D Day phone l(J'5"-1�-:+q?f& )
Property Address: <co Cc-ask W
I ap eal the decision of: (list board, commission, or department and decision, for example:
lanning Commissio denial of variance) application# lq-lb 6,.1\dt a.ff ro-,.;� � Res-ol�:!\ �o. Lb\ �-\3
The following are my reasons for appeal:
S-t-t- Atl:d.-�-
hereby declare that I have read the foregoing Notice of Appeal and know the contents thereof. I further declare under penalty of perjury that the information supplied by me is true and correct.
ATTACHMENT F
January 6, 2020
Marny and Verle Sorgen
E-Mail: [email protected]
Project No: 19-164
RE: EVALUATION OF PLANNING REPORTS AND ON-SITE STRUCTURAL ASSESSMENT 80 CREST ROAD, FAIRFAX, CALIFORNIA
Dear Marny and Verle:
As requested we performed a review and general assessment of structural conditions and Fairfax Planning reports for the above listed property concurrent with our contract for engineering consulting services.
No representations or warranties are made with respect to the condition or capability of members hidden by surface finishes or otherwise obscured. The observations, conclusions, and guideline recommendations contained in this report have been made using that degree of care and skill customarily performed under such conditions by reputable Engineers practicing in that field, in the same locality under similar conditions. No Guarantees or warranties, implied or explicit are, or have been made particularly in regard to work performed by other contractors, design professionals, or local Geologic conditions.
We performed an on-site assessment on November 15, 2019 at approximately 1 :00pm.
The weather was clear with good visibility. Our comments and conditional conclusions on existing field conditions visible at the time of our site visit.
This report has been prepared for your exclusive use, based upon your particular personal specific concerns; it may not be relied upon by others without the written permission of the undersigned. Third party readers of this report should engage their own experts to provide them with opinions and advice.
WE REVIEWED THE FOLLOWING INFORMATION AS PART OF OUR WORK:
• Planning Application Form - Town of Fairfax, February 25, 2019 • Transmittal- Rifkind Law Group., October 9, 2019, Points and Authorities regarding variance and use permit requirements.
• Town of Fairfax Staff Report, October 17, 2019, Points and Authorities regarding variance and use permit requirements.
• Notice of Appeal, October 23, 2019. Leonard A. Rifkind on behalf of Verle and Marene Sorgen.
• Fairfax Planning Commission Resolution 2019-13
TURBIN
Turbin Structural Engineering
655 Redwood High\'/ay
Suite 332
Mill Valley, CA 9•1941
415.373.9472 o
415.789.4552 f
TurbinStructu, al.com
ATTACHMENT G