March 7, 2023
Public Works
DATE: March 7, 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
Director
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 8 Western Drive.
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 meeting(s) on February
7, 2023, February 21, 2023, and February 28, 2023.
STATEMENT OF THE
ISSUE:
On June 28, 2022, the City Council passed an
Encroachment Ordinance (Ord. 09-22 N.S.), which
codified the process by which landowners could build
private improvements that encroached into the public
right-of-way (ROW). The owners of 8 Western Drive
purchased the home whose front fence encroached in
the public ROW subject to an improperly issued
encroachment agreement which was revoked. Owners
were required to remove the encroachment or apply for
an Encroachment Agreement to ensure compliance with
City’s new ordinance.
AGENDA
REPORT
March 7, 2023
RECOMMENDED ACTION: ADOPT a resolution to approve an Encroachment Agreement Application for private landowner fence
encroachment into the unimproved public right-of-way at 8 Western Drive; 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:
A. Backstory/History
8 Western Drive’s property owners submitted an application for an Encroachment Agreement to the City to address an existing, six (6)-foot fence built within the public right-of-way (“ROW”) and paralleling the front of the residence. For a private structure to exist within the public ROW, property owner(s) Anna and James Ortiz (collectively, the “Applicants”) must have an Encroachment Agreement with the City. Thus, on or about July 6, 2022, Applicants submitted an Encroachment Agreement Application. At the request of City staff, Applicants revised the Application, and City staff received those revisions on February 9, 2023.
Applicants purchased the property on or around August 1, 2021. Prior to their ownership, 8 Western’s former property owners, Chloe Aftel and Benjamin Zicherman (collectively, the “Prior Owners”), elected to build the aforementioned fence. On or about December 21, 2017, the City issued Prior Owners a fence permit; circa January 2018, the fence was erected. Subsequently, the City discovered that the permit, and a later- issued Encroachment Agreement, were issued in error as described below.
After the fence had been completed, the City discovered it was built, in part, in the public ROW and sought to legalize the situation by issuing an encroachment agreement. Following an investigation, the City determined that the Prior Owners should apply for an encroachment agreement. Thereafter, on or around July 12, 2021, the Prior Owners applied for, and obtained, an encroachment agreement. Then, as noted above, on or around August 1, 2021, Applicants purchased the property.
Prior to February 7, 2022, the City discovered defects in the July 12, 2021 application, namely, that the City based its review on the assumption that the fence was along a side yard when, in fact, the fence paralleled the front entry. Because the fence was in the front yard, the initial application for the permit should have provided notice to neighbors and approval from the City Zoning Administrator in accordance with Richmond Municipal Code (“RMC”) 15.04.601.060. The City entered into the Encroachment Agreement partly in reliance on staff’s analysis, which was based on materials in the initial permit application; however, the Encroachment Agreement did not capture all encroachments.
March 7, 2023
Moreover, various neighbors brought suit (Katz, et al.), claiming that the encroaching fence was illegal for various reasons, but they withdrew the action through agreement with the City Attorney when the City determined to (i) develop a new Encroachment Ordinance; and (ii) revoke the improperly issued approvals.
Thus, the City issued a letter on February 7, 2022, which indicated defects in the aforementioned approval. The letter made clear that, if City approval had been mistakenly or illegally issued, a public official could not void the public’s rights, and thus the prior application would afford no rights. Because of this letter, the July 12, 2021 approval was terminated, effective May 8, 2022. The May 2022 date was intended to provide Applicants with a grace period to apply for an Encroachment Agreement pursuant to a newly proposed ordinance to address such applications. Subsequently, the City issued a letter dated May 2, 2022, extending the termination date of May 8, 2022 to July 7, 2022, to allow Applicants more time to apply for an encroachment permit under the newly passed Ordinance.
B. New Ordinance
On June 28, 2022, the City Council passed and adopted Ordinance No. 09-22 N.S. (“Ordinance”), which amended the 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.
C. Findings
As stated above, Applicants have applied for approval of a new fence paralleling the roadway at 8 Western Drive which is located in the public ROW. Given the location within the public ROW, Applicants submitted an Encroachment Agreement Application to the City Engineer. Applicants revised their submission, based on staff comments, and resubmitted their application on February 9, 2023. The City Engineer has reviewed the application and recommends the following findings for City Council pursuant to RMC 12.30.190(a)(1)(A-G):
(A) Complete application contains all necessary, supporting information.
March 7, 2023
On July 6, 2022, James and Anna Ortiz (collectively, the “Applicant”) submitted an application for an Encroachment Agreement, including supporting information. (B) The encroachment does not conflict with adopted street improvements or similar plans, or any in development or that can be anticipated.
The City has no adopted street improvement or similar plans for Western Drive. The encroachment does not conflict with any anticipated development. (C) The encroachment does not pose a public health or safety hazard as determined by City Engineer.
Western Drive is a narrow, two (2)-lane street with steep slopes on either side of the roadway. The encroachment does not block vehicle travel or impede sight distance.
Due to the slope and existing vegetation found along Western Drive, pedestrian access within the encroachment area is difficult. Due to the proximity of the fence to the intersection of S. Garrard Blvd and Western Drive, the Applicant should be conditioned to provide reflective materials on the fence and to provide an object marker to the satisfaction of the City Engineer. Thus, the encroachment does not pose a public health or safety hazard.
(D) The encroachment does not substantially obscure the main property frontage.
The encroachment is a fence that is six (6) feet tall; gravel driveway; stairs to access the house; waste/ recycling storage; and two (2)-foot tall retaining walls. The existing residence is located higher than the street and close to the property line. The stairs are required to access the house from Western Drive. As the residence is higher than the fence, this encroachment does not 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 if the property is not strictly necessary for the proposed use.
There are no residences across the street. Due to the topography and configuration of the residence on the existing parcel, the encroachment is necessary to provide reasonable access.
(F) The encroachment has a sufficient setback from street curbs or pavement edges and does not negatively impact the area's reasonable use as determined by the City Engineer. The proposed fence is set back 3-ft (or more) from the edge of pavement.
The encroachment varies from slightly less than four (4) to six (6) feet from the edge of pavement. RMC 12.30.190(a)(2)(J)(i) requires that a four (4)-foot area of space be allocated for a sidewalk. The Applicant should be conditioned to provide a four (4)-foot sidewalk with a protective curb to the satisfaction of the City Engineer. This may require a partial reconstruction of the fence.
March 7, 2023
D. Notice of Application
Pursuant to RMC 12.30.180(a)(8), the Engineering Division sent a Notice of Encroachment Agreement Application to properties within 300 feet of 8 Western.
Pursuant to RMC 12.30.200(d), the City Clerk’s Office sent a Public Hearing notice by U.S. Mail to neighbors within 300 feet of 8 Western on January 25, 2023. The notice was also published in West County Times on January 27, 2023. The City Clerk’s Office noticed the public hearing for February 7, 2023, which was continued to February 21, 2023, and later continued to March 7, 2023. A courtesy notice of the Public Hearing’s continuation was sent to neighbors on February 10, 2023, and a separate courtesy notice of the second continuation was sent on February 17, 2023. Additionally, pursuant to 12.300.200(b), a copy of the Encroachment Agreement Application was made available for review in the City Clerk’s Office on February 17, 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 for 8 Western Drive
Attachment 2 – 8 Western Drive Encroachment Agreement Application