CITY COUNCIL STAFF REPORT
Meeting Date: April 17, 2023
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: ADOPT RESOLUTION NO. __ -23 DENYING AN APPEAL AND
UPHOLDING THE DECISION OF THE PLANNING COMMISSION TO
DENY A VARIANCE REQUEST (PLN 22-0294) FOR A SIX-FOOT-TALL FENCE WITHIN A REQUIRED FRONT YARD IN AN R-10
RESIDENTIAL ZONING DISTRICT AT 2029 WESTOVER DRIVE
SYNOPSIS
This is a public hearing to consider an appeal submitted by Christine and Kevin Finkas, appealing the Planning Commission’s (“PC”) decision to deny a Variance request to allow a non-permitted six-foot-tall fence to remain within the front yard setback area, where three feet is the maximum allowable height. Per Pleasant Hill Municipal Code Section 18.20.040.I, the maximum height of any fence or wall in the front and corner side yard is three feet. The subject fence has a setback of 9 feet, 9 inches, where the subject zoning district requires 20 feet minimum for any fence that exceeds three feet in height.
BACKGROUND
In April of 2022, staff observed a fence was under construction in the front yard area of the subject property. Staff spoke with the property owners and advised them that, based on preliminary measurements, the fence was not in compliance with ordinance provisions and would need to be modified. After further discussions with City staff, the owners completed construction of the fence and submitted a Variance application, for review by the Planning Commission, requesting approval of the fence which is three feet over the allowable height and encroaches9 feet, 9 inches into the required front yard setback.
On December 8, 2022, the Planning Commission conducted a special hearing to consider the subject Variance request. The Commission continued its review of the Variance request to the January 10, 2023 Planning Commission meeting, and provided the following comments and direction:
The Commission continued this item to the next meeting of the Planning Commission, on January 10, 2023, in part to provide the applicants additional time to review the staff report, including all attachments thereto;
The Commission directed the applicant to work with staff to determine if modifications could be made to the fence that would resolve the existing non-conformity related to setback, height, and design;
The Commission discussed the possibility of a Minor Exception, which could allow up to a 12-inch increase in allowable fence height within the front yard setback area, for a total height of four feet.
On December 22, 2022, Planning staff met with the applicants to discuss the direction provided by the Planning Commission, namely, determining if modifications could be made to the fence that would resolve the existing non-conformity related to setback, height and design. After the meeting on December 22, 2022, the applicant provided a cost estimate for consideration by the Planning Commission (Attachment F). The estimate includes two options: Option 1) complete removal of the existing non-conforming fence and gate; Option 2) alteration of the fence and gate to achieve maximum four-foot height. Option 2 would require the applicants to apply for consideration of a Minor Exception for a 12-inch increase in allowable fence height. The applicants communicated that modifying the fence in any way was cost prohibitive for them at the time.
On January 10, 2023, the Planning Commission continued the public hearing and pointed to the difficulty in making the appropriate findings to support the Variance request, in part due to the potential alternate solutions that could negate the need for the variance. . In addition, Commissioners discussed the lack of consistency with Citywide Residential Design Guidelines, as the non-conforming fence does not incorporate any plane changes, and lacks a transparent design, resulting in a closed-off appearance along the property’s Westover Drive frontage. Accordingly, the Commission denied the Variance request, citing that it could not make the required findings.
The Commission’s decision was subsequently appealed in a timely manner on January 23, 2023.
DISCUSSION
Analysis
Fence Development Standards
The maximum height of any fence or wall is six feet, which further reduces to three feet within the required front and corner side yards. For single-family residences on corner lots, a five-foot setback from the corner side property line is required for a wall or fence over three feet in height.
Furthermore, Pleasant Hill Municipal Code Section 18.50.100, states, “visibility at street intersections shall not be blocked above a height of two and one-half feet or greater above the top of the curb by vegetation or structures, including but not limited to fences and walls. This restriction applies to all land within a triangular area bounded by the edge of pavement 35 feet back from the point of intersection.”
Fence Design
The existing, non-permitted fence consists of horizontal wood planks, mounted to 4x4 wood posts, with narrow expansion gaps in between each plank. A gate at the pathway leading to the front door is framed in tube steel, with horizontal wood planks to match the fence. The fence is placed in line with the front elevation of the home. The modern fence design has a single, planar, vertical surface with no plane changes, or articulation. The expansion gaps are minimal and create a visually solid appearance.
The following design guidelines apply to the project:
RDG II.10.b Fences and Walls: Front yard fences should have a transparent appearance, such as the use of picket, rail, grid or wire type fencing. The existing, non-permitted fence does not have a transparent appearance. It is constructed of minimally separated horizontal wood planks, mounted to a steel tube structure, which renders a solid, nontransparent appearance. RDG II.10.c Fences and Walls: The design of fences and walls in the front yard should create a visual openness. Fences and walls that isolate the front of the dwelling from the streetscape are strongly discouraged. The existing, non-permitted fence does not maintain visual openness, as the design closes off the front of the dwelling from the street thereby isolating the front of the home from the adjacent streetscape. RDG II.10.e Fences and Walls: Vertical elements, fence height changes, or change in plane should be incorporated into the design of fences and walls especially for long runs.
The fence design does not incorporate any plane changes, as it maintains a uniform height of six feet for a run of approximately 45 feet along the Westover Drive frontage.
Applicant’s Variance Justification
The applicants have submitted a Variance analysis of the request (Attachment F). The applicants’ analysis states that their property was impacted by the Pleasant Hill Road Improvement Project, which began after they purchased the home in late 2017. They argue that the project widened the road from two lanes (one lane in each direction) to four lanes (two lanes in each direction) resulting in increased traffic volume along Pleasant Hill Road and subsequently increased light and noise pollution. The City Engineering Division disagrees with this claim, however, and confirms that the roadway project, which was implemented to calm traffic, did not increase the number of lanes, did not make any noticeable change to the overall layout and dimensions of the Pleasant Hill Road and Westover Drive intersection, and did not add any additional traffic lights or street lights to the preexisting conditions. Therefore, the applicants’ rationale that the roadway improvement project made a significant impact on the property cannot form the basis of a Variance request. More discussion on the required findings are found in the section below.
Variance Findings
In order to grant a Variance, the City Council must make the following findings:
i. The Variance is based on the existence of special circumstances applicable to the property, including size, shape, topography, location or surroundings, such that the strict application of the zoning regulations deprives the property of privileges enjoyed by other properties in the vicinity under the identical zoning designation.
The Planning Commission reviewed the size, shape, topography, location and surroundings of this property compared to other properties in the vicinity and under the same zoning designation, and found that the size and shape of the project site is similar to others in the vicinity. Further, the Commission found the shape is generally rectangular (with an angled rear lot line that follows Grayson Creek) and typical of corner properties in the neighborhood, and that the topographical characteristics of the project site are typical of some of the properties in the vicinity, which is generally flat with a creek bank along the rear property boundary. Lastly, the Commission found that the location of the property with respect to the adjacent roads and public right-of-way is not unique, as there are many homes in the vicinity and throughout the City located on corner lots, including near major street intersections. Thus, the Commission determined that there are no special physical circumstances applicable to the site that prevent the property owners from building a fence in compliance with the City’s applicable development standards. ii. The Variance does not constitute a grant of special privileges inconsistent with the limitations on other properties in the vicinity and zoning district in which the property is located.
The Planning Commission found that allowing a Variance for a six-foot-tall fence in the front yard would constitute the granting of a special privilege because it would be inconsistent with the limitations applicable to other properties in the vicinity and within the R-10 zoning district. Further, there are no special circumstances associated with the subject site to form a basis for granting a special privilege, as there are numerous homes located on corner properties and adjacent to street intersections within the vicinity and zoning district.
iii. The variance substantially meets the intent and purpose of the zoning district in which the property is located.
The Planning Commission found that the Variance request does not substantially meet the intent and purpose of the zoning district, as it would double the allowed fence height from three to six feet, and more than halve the required setback for a six-foot-tall fence from 20 feet to 9 feet, 9 inches. Therefore, granting the Variance would present a substantial deviation from the intent and purpose of the zoning district, which is to maintain an openness across front yards that expand views and promote an open and connected neighborhood environment.
Planning Commission Action
At the December 8, 2022 meeting date, the Commission heard the request and continued it to January 10, 2023, to allow the applicant additional time to consider a reduced fence height, work with staff on the request, and allow additional time to review the staff analysis of the proposed variance. Subsequently, at the January 10, 2023 meeting, the hearing was resumed, the applicant and the public offered additional input, and the Commission deliberated before denying the request (6-1, Khalfin).
After making its decision, the Commission subsequently asked staff to research a possible zoning ordinance amendment that would specifically address the placement and height of front yard fences on corner properties throughout the City. In response, a study session was held on March 28, 2023, during which the Commission reviewed a potential ordinance amendment related to citywide front yard fences on corner lots. A discussion of front yard fences on corner properties was provided to the Commission for consideration (Attachment D), and no further direction was provided by the Commission to pursue any modifications to existing regulations applicable to fences within the front yard setback.
Applicant Appeal
The applicant submitted a timely appeal request on January 23, 2023.
Public Comments
The applicants have provided a petition with over 75 signatures from neighbors in support of the existing, nonconforming front yard fence. In addition, other public comments received by the Planning Division are attached to this staff report (Attachment F).
SUMMARY
A solid wood fence was constructed within the required front yard with a height of six feet and a setback of 9 feet, 9 inches, both in violation of applicable standards. In addition, the nonconforming six-foot-tall fence encroaches upon the street corner visibility triangle – an area where vegetation, structures, walls and fences are limited to a height of two-and-one-half feet above the top of the curb. The property owners sought an after-the-fact Variance to allow the fence to remain as-is, and have subsequently appealed the Planning Commission’s denial of their request.
The solid fence is not consistent with Citywide Design Guidelines, because it is not built with a transparent appearance (such as a picket fence), does not have variation in the horizontal plane, and creates visually impenetrable barrier between the front of the home from the streetscape, which is also inconsistent with the intent of the underlying zoning district In reviewing the required Variance findings, the Planning Commission determined there were no special circumstances applicable to the property and that approval of a Variance would constitute the granting of a special privilege and undermine the intent and purpose of the zoning district.
Lastly, the Variance analysis provided by the applicants does not satisfy the required Variance findings. In addition, despite the lack of a valid basis for a variance, the analysis incorrectly claims that the Pleasant Hill Road Improvement Project constructed by the City increased the number of lanes on Pleasant Hill Road. The project did not add any new lanes, add new traffic or street lights, or make any significant changes to the layout of the road and intersection that resulted in increased traffic volumes.
CEQA
The project is categorically exempt from environmental review pursuant to section 15311 of the guidelines for the implementation of the California Environmental Quality Act, pursuant to California Code of Regulations, Title 14, Chapter 1 (Class 11 – small accessory structures) as the project scope involves the placement of a small structure, accessory to the primary residence.
FISCAL IMPACT
None.
PUBLIC CONTACT
Public contact was made through posting of the City Council Agenda on the City’s official notice bulletin board, in the City Clerk’s office, at the Pleasant Hill Library, and at the Pleasant Hill Police Department. The agenda and staff report are posted on the City’s web page and are available in the City Clerk’s office. In addition, notice of the public hearing (Attachment H) was provided to all property owners and residents within 300 feet of the project site. A sign was also placed on the project site.
RECOMMENDED CITY COUNCIL ACTION
Adopt the proposed resolution denying the appeal and thereby upholding the Planning Commission’s decision to deny the Variance, subject to the recommended findings and conditions.
ALTERNATIVES TO RECOMMENDED ACTION
1. Provide direction to staff to grant the appeal to overturn the Planning Commission’s decision to deny the Variance, and direct staff to prepare a Resolution for consideration by the City Council at the next meeting, with appropriate findings and conditions of approval.
2. Request further information from staff and/or the applicant and continue the hearing to a later date.
Prepared by: Andrew Shiflet, Assistant Planner
Reviewed by: Troy Fujimoto, City Planner
Ethan Bindernagel, Community Development Director and Assistant City Manager
June Catalano, City Manager
Attachments: A City Council Proposed Resolution (Denial of Appeal) and Findings B Planning Commission Resolution 02-23 and Findings, dated Jan. 10, 2023 C Appeal form (Date Stamped “Received January 23, 2023) D Planning Commission Study Session Staff Report, dated March 28, 2023 E Project Plans
F Written Description, Variance Analysis, Estimate, and Neighbor Petition G Site Photographs
H Public Hearing Notice
I Public Comments
J Additional Applicant-provided Materials