CITY COUNCIL STAFF REPORT
Meeting Date: November 07, 2022
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: PUBLIC HEARING AND ADOPT RESOLUTION NO. ___-22 TO DENY
AN APPEAL AND UPHOLD THE DECISION OF THE PLANNING
COMMISSION TO DENY A REASONABLE ACCOMMODATION
REQUEST (PLN 21-0497) FOR AN ACCESSORY STRUCTURE WITHIN
SETBACK AREA AND A FENCE/GATE EXCEEDING ALLOWABLE
HEIGHTS AT 406 KAHRS AVENUE
SYNOPSIS
This is a public hearing to consider an appeal, submitted by Mariam Azamey, of the Planning Commission’s (PC) decision to deny a Reasonable Accommodation request for an existing, nonpermitted and nonconforming accessory structure (carport and attached physical therapy room) built within the required front and side yard setback and a proposed fence/motorized gate that exceeds the allowable height limit within a front yard setback. The appellant is requesting the City Council grant the appeal, overturn the decision of the Planning Commission, and approve the Reasonable Accommodation request to allow the existing accessory structure to remain, subject to the issuance of a building permit, and the proposed fence/motorized gate to be constructed.
DISCUSSION
Project Description
The applicant submitted a Reasonable Accommodation (PLN 21-0497) application to allow an existing, unpermitted, nonconforming accessory structure (carport and attached physical therapy room) to remain and construct a proposed fence/gate to be utilized by a resident with a disability.
The request includes the following:
A reduction in front and side yard setbacks. The existing structure is located two feet from the front property line where a minimum of 20 feet is required, and three feet from the side property line where a minimum of five feet is required.
A six-foot fence/gate in the required front yard across the vehicular access to the property, where a maximum height of three feet is allowed.
Background
In March 2021, the City received complaints regarding a structure (batting cage) under construction at the site. A Code Enforcement (“CE”) investigation found that a building permit had not been issued for the batting cage (follow-up continues by the City; the batting cage issue is not part of this appeal). Subsequently, in September 2021, CE was notified of another structure under construction at the site that included electrical work and had nonconforming setbacks (front and side). Dialogue between the City and the applicant has been ongoing regarding these complaints.
On October 21, 2021, the appellant submitted a Reasonable Accommodation application to legalize and allow the non-permitted and nonconforming accessory structure to remain in its current location. The Planning Commission reviewed the request at its March 8, 2022 meeting and denied the request. The applicant filed a timely appeal of the Planning Commission decision. The item was originally scheduled to be heard at the June 6, 2022 City Council meeting, but was continued to the August 1, 2022 meeting without any discussion and then subsequently at the request of the applicant/appellant, continued to the September 12, 2022, October 3, 2022 and November 7, 2022 meetings without any discussion.
Prior to the November 7, 2022 City Council meeting, Staff held a teleconference meeting with the applicant and subsequently completed a site visit at the property with the applicant and their surveyor to review and examine alternative locations for siting the non-permitted and nonconforming accessory structure. Various measurements were taken, including distances between the existing house and property lines. Given that the on-site meeting occurred the day prior to the distribution of the City Council agenda packet, staff will provide a summary of the visit as part of the presentation at the City Council meeting.
Analysis
A. General Information
1. Project Location
The project site is located on the west side of Kahrs Avenue and behind the single-family residential lots at 400 and 410 Kahrs Avenue; a private easement provides access to the subject property.
2. General Plan and Zoning Designation
The General Plan designates the site as Single Family Medium Density and the zoning designation is R10 Single Family Residential.
3. Site Description and Existing Land Use
The 16,552-square-foot project site consists of one legal parcel with two assessor parcel numbers assigned for tax purposes (8,276 square feet each). The site is currently developed with a 1,553-square-foot home, a 390-square-foot garage, and an approximate 300-square- foot batting cage structure (built without permits and subject to code enforcement action). The existing 99-square-foot physical therapy room is attached to an existing 289-square-foot carport; with both built without permits.
Access to the site is available from Kahrs Avenue via a private easement (slightly sloping up to the property) between 400 and 410 Kahrs Avenue. The Assessor’s Parcel Numbers are 149-032-037-9 and 149-032-038-7.
B. Discussion
1. Purpose
In accordance with PHMC Section 18.112.010 of the Zoning Ordinance, the City provides individuals with disabilities reasonable accommodation in the application of development regulations and procedures to ensure equal access to housing, and to facilitate the development of housing. Section 18.11.010 provides a procedure under which a disabled person(s) may request a reasonable accommodation in the application of zoning requirements.
Chapter 18.112 of the Zoning Ordinance is based on requirements of Federal and State fair housing laws, and further implements the Housing Element of the City’s General Plan. It is distinct from the requirements for: (1) a variance set forth in Government Code Section 65906 and PHMC Chapter 18.110, Variances or, (2) a minor exception cited in PHMC Chapter 18.111, Minor Exceptions.
2. Reasonable Accommodation Guidelines
When reviewing any Reasonable Accommodation request, the reviewing body is required to ensure that the project also addresses the Reasonable Accommodation Implementation Guidelines. The guidelines and a staff analysis is provided in Attachment F.
3. Reasonable Accommodation Findings
In order to approve a Zoning Permit for a Reasonable Accommodation request, findings have to be made for the project. A summary and discussion of the required findings can be found later in the staff report.
C. Other Requirements
PHMC Section 18.112.060 of the Zoning Ordinance contains other requirements applicable to the proposal if approval is granted for the reasonable accommodation request. The reviewing authority may condition its approval, as set forth in PHMC Section 18.112.060.B.3 of the Zoning Ordinance on any or all of the following:
a. Inspection of the property periodically, as specified, to verify compliance with this section and any conditions of approval.
b. Removal of the improvements, where removal would not constitute an unreasonable financial burden, when the need for which the accommodation was granted no longer exists. c. Time limits and/or expiration of the approval if the need for which the accommodation was granted no longer exists;
d. Recordation of a deed restriction requiring removal of the accommodating feature once the need for it no longer exists;
e. Measures to reduce the impact on surrounding uses;
f. Measures in consideration of the physical attributes of the property and structures; g. Other reasonable accommodations that may provide an equivalent level of benefit and/or that will not result in an encroachment into required setbacks, exceedance of maximum height, lot coverage or floor area ratio requirements specified for the zone districts; and h. Other conditions necessary to protect the public health, safety and welfare.
D. Compatibility
The existing, nonconforming carport and therapy room are located within two and three feet, respectively, of adjacent shared rear property lines at 410, 416, and 418 Kahrs Avenue.
Though the existing, unpermitted, nonconforming carport and therapy room have similar architecture to the existing structures on the same property, they are highly visible to the adjacent neighbors and could have a detrimental impact to surrounding property owners because of their proximity to property lines and the higher elevation (approximately two feet) of the subject parcel in relation to surrounding properties.
The proposed motorized fence/gate would be located on the front property of the project site, crossing the vehicular access to the site. Historically, the City does not support either gated entries or gated entries that are over three feet tall. Thus, generally allowing a six-foot-tall, motorized fence/ motorized gate would not be consistent with other single-family properties or past practice.
E. Compliance with Zoning Ordinance
As proposed, the existing, unpermitted, nonconforming carport and physical therapy room, and six-foot fence/gate, do not comply with the Zoning Ordinance. See the table below:
Development
Regulations: R-10
Ordinance
Standard
406 Kahrs Ave Complies?
Min. Site Area per Dwelling
Unit
10,000sf 16,552sf (both parcels
(8,276sf each)
yes
Minimum Lot Area 10,000sf 16,552sf yes
Minimum Lot Width 80’ 170’ yes
Minimum Lot Depth 90’ 98.5’ yes
Minimum Yards
Front 20’ 16’ garage
30’ house
no
Rear 15’ 33’ yes
Side 5’ 3’ no
Aggregate Side 15’ 15’ yes
Maximum Building Height 35’ 16’ yes
Maximum Number of Stories 2.5 1 yes
Maximum Lot coverage 30% 15% yes
Maximum Floor Area Ratio 0.40 0.09 yes
Garage Dimensions (interior) 20’ wide x 22’ deep 18’ wide x 21 deep (approx.)
Existing
nonconforming
Garage Setback 20’ 16’ Existing
nonconforming
Accessory Structure(s)*
Total Floor Area per
Structure
500sf 99sf physical therapy room
(inside 289sf carport)
yes
Cumulative Floor Area** 600sf 289sf yes
Height 14’ (peak) 12’ yes
Rear Setback 3-5’ range - dependent
on height of structure
N/A N/A
Side Setback *** 3-5’ range - dependent
on height of structure
3’ no
* Accessory structures are not permitted in the front yard setback. ** Does not include non-permitted batting cage
*** See explanation below
PHMC Section 18.20.050.A.3 provides standards for accessory structure setbacks within the R10 zoning district. As it pertains to the requested Reasonable Accommodation, the required rear and side yard setbacks are both five feet; the proposed side yard setback is three feet.
Additionally, pursuant to PHMC Section 18.20.040.I, the maximum height of any fence or wall is three feet within the required front yard.
F. Findings Analysis
Pursuant to Section 18.112.060, the City must make each of the following findings to approve the Reasonable Accommodation request. Each finding is listed below followed by analysis:
a. The housing will be used by a disabled person;
Analysis: A disabled person resides at the property.
b. The requested accommodation is necessary to make specific housing available to a disabled person;
Analysis: (Accessory Structure) he request for the reasonable accommodation includes allowing a non-permitted, nonconforming structure (physical therapy room attached to a carport) to remain as is, with a front yard setback of two feet (minimum of 20 feet is required) and a side yard setback of three feet (minimum of five is required). The applicant states that the current location of the physical therapy room is more feasible than converting the existing 390- square-foot car garage, as it houses the appellant’s accessible van and is not insulated (see Applicant’s Analysis, Attachment D). The applicant notes that to construct the physical therapy room at any other location of the site would pose a hardship and be cost prohibitive.
The disabled person will use the unpermitted, existing physical therapy room for therapy.
The unpermitted accessory structure is necessary and related to the disability; however, Planning Commission and staff believes that there are other locations on the site where the structure/use could have been built to better accommodate the proposed use, comply with zoning regulations, and minimize detrimental impacts to adjacent properties, particularly if the smaller physical therapy room was built without the attached carport. These locations include: (1) within the existing house; (2) as an addition to the rear of the home (west); (3) to the south of the home where the required setbacks could be met, as the parcel is approximately 16,552 square feet (see Attachment F for additional discussion).
In conclusion, the Planning Commission observes that, had the applicant approached the City to discuss location prior to building the structure without permits, the accessory structure could have been sited both in compliance with zoning regulations and to the satisfaction of the applicant’s needs.
Fence: The project also includes a request to allow construction of a six-foot-tall fence/motorized gate on the front property line of the parcel at the easement. PHMC Section
18.20.040 of the Zoning Ordinance provides that fences in the required front yard shall not be taller than three feet. The applicant’s basis for the request for a taller fence is for safety of the person with the disability.
In conclusion, the Planning Commission does not believe that granting this fence height request is necessary to make the housing available to a disabled person, as it does not appear that a six-foot tall fence is related to the disability. Further, a three-foot-tall fence, which is allowed per Code, would also provide safety and security for the appellant. In addition, the site is significantly recessed from the public street and accessed through an easement. Thus, these factors afford the subject site greater security than other properties in the vicinity that front upon the public street.
c. The requested accommodation would not impose an undue financial or administrative burden on the City.
Analysis: There would not be an undue financial or administrative burden imposed on the City as a result of approving the proposed reasonable accommodation. Inspections for the existing carport and attached physical therapy room, and the proposed fence would occur as part of the routine building and zoning permit processes. d. The requested accommodation would not require a fundamental alteration in the nature of a City program or law, including land use and zoning.
Analysis: (Accessory Structure) the unpermitted, existing physical therapy room and attached carport would result in a fundamental alteration to land use and zoning, as the structure would encroach upon the required front yard setback by 18 feet and the required side yard setback by two feet.
The resident at the property does have a disability (as determined by a medical professional), and the reasonable accommodation request is sought to allow, retroactively, an otherwise non-permitted structure built without prior City consultation or approval.
While a reasonable accommodation does allow flexibility and the waiving of certain development standards and requirements, the extent of the appellant’s request equates to a fundamental alteration of zoning provisions that does not appear justified when several reasonable alternative solutions are available to the appellant. In addition, the physical therapy room is significantly smaller than the attached carport, thus, siting the smaller physical therapy room by itself would provide additional options due to its smaller footprint.
Had the request come before the City in advance of construction of the non-permitted accessory structure, staff is confident other locations on the property could have been identified that satisfy both zoning regulations and the appellant’s needs.
Fence: The project also includes a request to allow construction of a six-foot-tall fence/ motorized gate on the front property line of the parcel at the easement. PHMC Section
18.20.040 of the Zoning Ordinance provides that fences in the required front yard shall not be taller than three feet
The Planning Commission believes that granting this fence request is not necessary to make the housing available to a disabled person, as it does not appear that a six-foot-tall fence is related to the disability. Further, a three-foot tall fence, which is allowed per Code, would also provide safety and security of the site. In addition, the site is significantly recessed from the public street and accessed through an easement; thus, these factors afford the subject site greater security than other properties in the vicinity that front upon the public street.
G. Applicant/Appellant Appeal
The applicant filed a timely appeal after the decision by the Planning Commission. No additional information was provided by the appellant/applicant.
H. Conclusion
The existing, unpermitted, nonconforming accessory structure (carport and attached physical therapy room) associated with the Reasonable Accommodation request are located in the front yard setback, with an approximate distance of two feet from the front property of the site (which is the rear property line of 410 Kahrs Avenue). The existing, unpermitted, nonconforming accessory structure is approximately three feet from the shared property line with 416 Kahrs Avenue. In addition, the proposed fence/gate (six feet tall), is not allowed on the front yard property line; a three-foot tall fence/gate is permissible.
The Planning Commission does not support the request because there are other viable, alternative locations to accommodate the accessory structure that satisfy zoning regulations and the applicant’s needs, including separating the smaller physical therapy room from the attached larger carport, which will create additional location opportunities due to its smaller footprint. Further, it is not clear how the resident’s disability relates to the request for an increase in fence height to six feet within the front yard. The Planning Commission and Staff note that a three-foot-tall fence would both provide the same safety barrier and comply with zoning ordinance provisions.
CEQA
Pursuant to Sections 15303, and 15305, of the Guidelines for the Implementation of the California Environmental Quality Act of 1970, as amended, if the reasonable accommodation is approved, the proposed project is determined to be categorically exempt (Classes 3 – New Construction or Conversion of Small Structures, 5 – Minor Alterations in Land Use Limitations).
If the project is not approved, no CEQA determination is necessary.
FISCAL IMPACT
None.
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center and at the Pleasant Hill Police Department. A ten day public notice was also mailed to all property owners within 300 feet of the project site.
The agenda and staff report are posted on the City’s web page.
RECOMMENDED CITY COUNCIL ACTION
Adopt the Resolution to deny the appeal and uphold the Planning Commission’s decision, without prejudice.
ALTERNATIVES TO RECOMMENDED ACTION
Continue the item to a later date with direction provided to Staff. Approve the appeal, overturn the decision of the Planning Commission approving the Reasonable Accommodation request, and direct staff to bring a Resolution consistent with this direction at the subsequent City Council meeting date.
ATTACHMENT(S):
Attachment A Proposed Resolution
Attachment B Planning Commission Resolution No. 7-22
Attachment C Applicant Appeal
Attachment D Proposed Project Plans
Attachment E Applicant’s Reasonable Accommodation Analysis Attachment F Reasonable Accommodation Zoning Administrator Guidelines with Staff Analysis
Attachment G PHMC Section 18.112 Reasonable Accommodation Ordinance Attachment H Site Photos
Attachment I Setback Aerial Map
Attachment J Assessor’s Parcel Map
Attachment K Public Hearing Notice
Attachment L Location Map
Attachment M Public Comments
Prepared by: Troy Fujimoto, City Planner
Reviewed by: Ethan Bindernagel, Public Works and Community Development Director/ Assistant City Manager
Approved by: June Catalano, City Manager