February 21, 2023
Public Works
DATE: February 21, 2023
TO: Mayor Martinez and Members of the City Council
FROM:
Daniel Chavarria, PE, Director of Public Works
Robert Armijo, PE, Deputy Director of Public Works
Subject:
Hold a Public Hearing to consider approval of an
Encroachment Agreement Application for a private
landowner encroachment into the unimproved public right of way at 130 E. Scenic Avenue.
FINANCIAL IMPACT: This item does not impact the City’s General Fund. The applicant has paid the processing fee(s) for this request and will also remit all costs associated with entering into an Encroachment Agreement and performing
improvements, should City Council approve this request.
PREVIOUS COUNCIL
ACTION:
This matter was continued from the February 7, 2023
meeting.
STATEMENT OF THE
ISSUE:
On June 28, 2022, City Council passed an Encroachment
Ordinance (Ord. No 09-22 N.S.), which codified the
process by which landowners could create private
improvements encroaching into the public right of way – subject to an Encroachment Agreement between
landowner(s) and the City. Owners at 130 E. Scenic
Avenue wish to construct a front fence within the public ROW. Owners have applied for an Encroachment
Agreement to ensure compliance with City’s new
ordinance.
AGENDA
REPORT
February 21, 2023
RECOMMENDED ACTION:
ADOPT a resolution to approve an Encroachment
Agreement Application for a private landowner fence
encroachment into the unimproved public right-of-way at 130 E. Scenic Avenue; and DIRECT City staff to enter
into an Encroachment Agreement regarding same to be
recorded on the landowner’s property title – Public Works Department (Daniel Chavarria/Robert Armijo 510-620-
5477).
DISCUSSION:
130 E. Scenic Avenue’s property owner submitted to the City an application for a fence permit. Although a portion of fence sat on private property, other fence portions sat within the public right-of-way (“ROW”). To have a private structure within the public ROW, the fronting property owner(s) must have an Encroachment Agreement.
Therefore, the City required title property owner Eli Berland (“Applicant”) to remove the earlier built fence constructed in public ROW. The Applicant subsequently complied and removed the fence. On or about September 30, 2022, Applicant submitted an Encroachment Agreement Application. At the request of City staff, Applicant revised his Application, and City staff received those revisions on February 7, 2023.
On June 28, 2022, the City Council passed and adopted Ordinance No. 09-22 N.S. (“Ordinance”), which amended the Richmond Municipal Code (“RMC”) to address public ROW encroachments. Specifically, the Ordinance amended Article XII - Public Works, Chapter 12.30 - Encroachments and Easements in the Public Rights-of-Way, Part 3 - Private Landowner Encroachment(s) Into Unimproved Portions of Public ROW (i.e., Section 12.30.170, et seq.). The amendments incorporated provisions to codify the City’s long-standing practice of allowing private landowner encroachments into the public ROW, subject to certain conditions.
RMC Chapter 12.30.180 requires private landowners to submit an Encroachment Agreement Application (“Application”) to the Engineering Division of the Public Works Department for encroachments placed within in the public ROW. RMC Chapter
12.30.200, et seq. grants City Council authority to approve such applications based on the City Engineer’s Findings. The effect of an approval then authorizes City staff to enter into an Encroachment Agreement between City and the property owner(s). This Encroachment Agreement, once finalized, is recorded on property’s title, and binds the owner(s) and any successive owners in perpetuity.
Applicant has applied for approval of a new fence paralleling the roadway at 130 E.
Scenic Avenue (“Subject Property”), which is located in the public ROW. Given the fence’s public ROW location, Applicant submitted an Application to the City Engineer.
City staff has reviewed the Application and recommends the following findings for the City Council, pursuant to RMC 12.30.190(a)(1)(A-G):
February 21, 2023
(A) The application is complete and contains all necessary, supporting information.
(B) The encroachment does not conflict with adopted street improvements or similar plans, nor any street improvements that are in project development; nor are there any street improvements anticipated in this area in the foreseeable future.
(C) The encroachment does not pose a public health or safety hazard as determined by the City Engineer. City staff did conduct a sightline study and the Applicant did provide renderings to demonstrate the sight distances for this proposal. See the Application for these documents. (D) The encroachment does not substantially obscure the main property frontage.
(E) The encroachment does not adversely impact or affect adjacent properties; and/or result in facilities discordant or inconsistent with other structures placed or erected upon the main property or in the existing ROW; and/or make gratuitous use of ROW. It only uses space that is strictly necessary for the proposed use.
(F) The encroachment has a sufficient setback from street curb(s) or pavement edge(s) and does not negatively impact the area's reasonable use as determined by the City Engineer. While most of the proposed fence is set back more than three (3) feet, there are portions of the encroachment that are fewer than three (3) feet. In its existing state, the affected portion of road has a very minimal shoulder (i.e. two to three (2-3) feet). The proposed fence structure does not seek to worsen the existing condition. (G) The encroachment may conflict with RMC 12.30.180(a)(2)(J)(i). This section requires that a four (4)-foot area of space be allocated for a sidewalk.
However, the encroachment may be considered permissible due to the conditions of the site and the potential complications of building a sidewalk on such an extreme slope. Creating an acceptable refuge area for pedestrians will be addressed in the encroachment agreement conditions should Council approve this item.
Pursuant to RMC 12.30.180(a)(8), the Engineering Division sent a “Notice of Encroachment Agreement Application” to properties within 300 feet of Subject Property. Thereafter, pursuant to RMC 12.30.200(d), the City Clerk’s Office noticed a Public Hearing for February 7, 2023, which was later continued to February 21, 2023.
Pursuant to RMC 12.30.200(d), the Clerk’s Office sent the Public Hearing notice by U.S. Mail to neighbors within 300 feet of Subject Property on January 25, 2023. The notice was also published in West County Times on January 27, 2023. A courtesy notice of the continuation of the Public Hearing was sent to neighbors on February 10, 2023. Pursuant to 12.300.200(b), a copy of the Encroachment Agreement
February 21, 2023
Application was made available for review in the City Clerk’s Office on February 9, 2023.
ENVIRONMENTAL REVIEW:
Section 21084 of the California Public Resources Code specifically requires that CEQA Guidelines include a list of project classes or categories determined not to have a significant environmental effect, thus making said categories exempt from CEQA provision(s). CEQA Guidelines, section(s) 15301 through 15333, list exempt specific project categories, including relevant criteria necessary for a project to meet an exemption. CEQA Guidelines Section 15300.2 includes a list of exceptions precluding categorical-exemption use; here, the proposed project does not trigger any exception that would require an exemption override. The current Application meets the requirements for a categorical exemption pursuant to Section 15303(e), “New Construction or Conversion of Small Structures,” where subsection (e) addresses accessory/appurtenant structures, which specifically includes fence(s).
DOCUMENTS ATTACHED:
Attachment 1 – Resolution
Attachment 2 – Application for Encroachment Agreement