1 Job No. 2521
February 9, 2023
Mr. Robert Armijo, PE
Deputy Public Works Director, City Engineer
450 Civic Center Plaza
Richmond, CA 94804
Re: Ortiz Residence and Property at 8 Western Drive (APN 558-012-010), Richmond, California Richmond Municipal Code Section 12.30.170; 12.30.180
Application for Private Landowner Encroachment Agreement Existing Fence & Improvement along and within Western Drive Dear Mr. Armijo.
Our firm has been working with James and Anna Ortiz (“Ortiz Family”) with regard to their residence at 8 Western Drive (Ortiz Property), in the City of Richmond, California (“City”). The Ortiz Family also been working with a land use and permitting attorney, Allan Moore of Law Office of Allan Moore, APC.
On behalf of the Ortiz Family, we assisted with the submittal of an application for an Encroachment Agreement (“Application”), dated July 6, 2022. This Application was submitted pursuant to the recently enacted Richmond Municipal Code (RMC) Section 12.30.170, et seq. (New Encroachment Agreement Ordinance.”)
Our office is responding to your email of February 6, 2023, requesting additional information in support of the previously submitted Encroachment Permit application.
The following is provided as background information:
James and Anna Ortiz purchased this property in August of 2021. The subject fencing and improvements were already in place, having been installed by the prior property owner. One of the primary reasons that the Ortiz family purchased this property was the security provided by the subject fencing. The Ortiz residence fronts on Western Drive and is situated immediately across the street from the East Bay Regional Park District Miller/Knox Regional Shoreline Keller Beach Facility. The fencing provides security and prevents the undesirable gathering of uninvited guests and the associated undesirable debris that accompanies such activities. Fencing provides the added benefit as it prevents undesirable, illegal dumping which has become an ongoing problem for properties with large frontages on public roadways in rural areas with low traffic volumes, especially at night. It should be noted that the
2 neighboring property, apn 558-012-009, owners Richard Katz and Clair Brown, share the same exposure as the Ortiz property.
I. Background
While this is an Application for an Encroachment Permit, as the City is aware, the subject of this Application is the existing six-foot fence (“Fence”) along its property frontage on Western Drive. That Fence was constructed in January 2018 by the sellers of the Ortiz Property (Chloe Aftel and Benjamin Zicherman, or “Sellers’). The Fence was constructed pursuant to a fence permit issued by the City December 21, 2017.
Three years later, in the fall of 2020, a neighbor complained to the City about the location of the Fence. Pursuant to City request, the Sellers applied for and obtained an encroachment agreement from the City, entered into on July 12, 2021 (“Encroachment Agreement”). The City fully approved the Encroachment Permit, based on standard procedures it had used for years.
It is noted that on July 30, 2021, the City confirmed by email that: (i) based upon review of the vertical and horizontal geometry of the street (i.e., the clear line of sight from the intersection of Western Drive/Dornan Drive), as well as pedestrian safety, the City had properly granted the Encroachment Permit.
Thereafter, on or about August 1, 2021, the Property, together with the constructed Fence, the approved fence permit, and the approved 2021 Encroachment Agreement, was sold to the Ortiz Family.
By letter dated February 7, 2022 to the Ortiz Family, the City stated that City Staff has “recently” become aware that: (i) the initial application for the permit should have provided notice to neighbors and approval from the City Zoning Administrator in accordance with RMC 15.04.601.060; (ii) City review procedures for the initial permit were not followed; and (ii) The City entered into the Encroachment Agreement in reliance on staff’s analysis of the permit application. The City’s letter further states that if a permit is “mistakenly or illegally issued by the City, no rights are given thereby.” The City’s February 7, 2022, letter further stated that, for the above reasons, the City therefore “terminates” the 2021 Encroachment Agreement, effective on May 8, 2022. The City’s reason for the May 8 deadline was that this would allow time for the City to adopt its New Encroachment Agreement Ordinance,” and would further give the Ortiz Family time after such adoption to apply for an Encroachment Agreement under such new ordinance.
The City Council thereafter delayed in adopting the New Encroachment Agreement, finally adopting the Agreement in June 2022. By letter dated May 2, 2022, the City therefor extended the termination date of May 8, 2022, to July 7, 2022, giving the Ortiz Family time to apply for an encroachment permit under the New Encroachment Agreement Ordinance.
The following reflects the work complete to date to comply with the New Encroachment Ordinance:
3 II. Requirements of RMC 12.20.180
1. Letter to City Engineer
Section 12.30.180(a) requires a letter to the City Engineer requesting the Encroachment agreement. Our prior letter of July 7, 2022 accompanied by the completed Application form complied with this Ordinance section. This letter is in support of the prior application and will provide additional documentation as requested in your February 6th email.
2. 12.30.189(a)(1): Name and Address of the Applicant The Ortiz Family is the Property owner. The Applicant is Milani & Associates, with address notes as follows:
Attn: Mr. Michael Milani
Milani & Associates
2655 Stanwell Dr. #105
Concord, CA 94520
(925) 465-2033/[email protected]
3. 12.30.180(a)(2): Name of contractor for proposed work See the Background under Section I, above. Given the Fence is already fully constructed, under the direction and ownership of the prior property owner, this item is deemed not applicable.
4. 12.30.180(a)(3) Location, purpose, and extent of proposed work Please see the “Summary of Improvements Encroaching on Western Drive,” prepared by land surveyors/civil enginee1rs Kister, Savio & Rei, Inc. (KSR), dated 6/3/2021, attached hereto as “Exhibit A.” The KSR exhibit reflects the following existing improvements constructed by the prior property owner within the Western Drive Public Street right-of-way. The purpose of the Encroachment Permit Application is to retain and continue to use the existing improvements detailed below:
1. Six-foot wood fencing and sliding gate.
2. Concrete drive apron with connection to the existing edge of pavement of Western Drive.
3. Gravel staging area.
4. Three (3) tiered wood wall.
5. Access stairs to the upper residence
6. Storage area for garbage and recycling receptacles
Please note that items 3 through 5 have been present on the site for decades. 4 The house fronts on Western Drive. The following photos reflect the current improvements that are the subject to the Encroachment Permit application.
Figure 1: oblique shot reflecting full site improvements within Western Drive.
5 Figure 2: site photo looking directly are Ortiz residence from Western Drive. The improvements subject to the encroachment permit request are in the foreground of the photo.
5. 12.30.180(a)(4), (5) and (6): Time of work, control plan, insurance See the Background under Section I, above. Given the Fence is already fully constructed, this item is not applicable.
5. 12.30.180(a)(7): Detailed Plans
See Plat Map prepared by Milani & Associates, attached hereto as “Exhibit C.”
6. 12.30.180(a)(8): City written notice to adjacent landowners.
As shown below, the Applicant has posted and will maintain the Notice as required under
12.30.180(b). For purposes of this Notice the Hearing Date has been set for February 21 with the meeting being held as a zoom meeting. The posted Notice does also indicate that plans and other information can be obtained at the City Offices.
It should be noted that prior notices that Mrs. Ortiz has posted have subject to vandalism and graffiti and racial slurs. Richmond PD have been notified of the Notice vandalism on several occasions. The Ortiz family will do its best to maintain the notices as require. If complaints are made at the public hearing that proper posting of the Notices were not made, those complaints should be treated as moot.
6 Mrs. Ortiz has provided photographs of the posted notices per your request. She will also document any further vandalism and Graffiti for the record between now and the February 21st meeting date.
7. 12.30.180(a)(9): Any information requested by the City Engineer The Applicant and Owner have been working with City Staff in preparation of this Application.
The Applicant/Owner are ready to provide any information requested by the City Engineer in response to this Application.
(8) 12.30.180(a)(10): Encroachment Agreement Fee
The City Staff has indicated that the Encroachment Agreement Fee to be submitted with the initial application. No further action is needed on this task. (9) 12.30.180(b): Posted Notice
Notices have been posted. A copy of the posted Notice is attached hereto as “Exhibit B.” A copy of the application is on file with the City of Richmond and is available for review at the City Offices. (10) 12.30.180(c): Statement from Landowner
Set forth below the Applicant’s signature below is a signed confirmation from the Owner to the effect that all information in this Application is true and correct.
Compliance with RMC 12.30.190 – Findings and Conditions In response to your February 6th email and per RMC Section 12.30.190 this office offer the following responses in support findings and conditions in support of the subject Encroachment Permit application:
A) Complete Application contains all necessary, supporting information.
Response:
A complete application and supporting documentation have been submitted to the City of Richmond.
B) The encroachment does not conflict with adopted street improvements or similar plans, or any in development or than can be anticipated.
Response:
Milani & Associates submitted street cross sections along the encroachment frontage of 8 Western Avenue. The cross sections indicate that no reduction in lane travel widths have been impacted. No public safety or visibility constraints have been created by the installation of the subject improvements.
See Figures 3 & 4 below:
7 Figure 3: Western Drive looking easterly. Project frontage is in the left side of the photograph.
8 Figure 4: Western Drive looking westerly. Project frontage is in the right side of the photo.
C) The encroachment does not pose a health or safety hazard as determined by the City Engineer.
Response:
Joe Leach, the City’s prior City Engineer had walked the limits of the encroachment area and determined that the improvements did no pose a health or safety hazard. In addition, Milani & Associates submitted street cross sections along the encroachment frontage of 8 Western Avenue. The cross sections indicate that no reduction in lane travel widths have been impacted. It is this office’s professional opinion that no public safety or visibility constraints have been created by the installation of the subject improvements.
D) The encroachment does not substantially obscure the main property frontage.
Response:
The house fronts on Western Drive. The Figures 1 and 2 above are site photos which reflect the current improvements that are the subject to the Encroachment Permit application. The photos clearly indicate that the main property frontage and improvements are not substantially obscured.
9 E) The encroachment does not adversely impact or affect adjacent properties; and/or result in facilities discordant or inconsistent with the other structures placed or erected upon the main property or in the existing ROW; and or make gratuitous use of ROW if he property is not strictly necessary for the proposed use.
Response:
Our office submitted Exhibit “C,” Cross Sections - 8 Western Drive. The exhibit clearly identifies the current paved roadway limits before, along and after the subject fencing and encroachment improvements. The exhibit clearly indicates that the subject improvements have not and continue to not inhibit vehicle traffic along Western Drive. The area in question gives the appearance of excess lands that were never intended to support public street improvement. The same condition occurs on the adjoining parcels lying westerly of the subject property, in particular apn 558-012-009.
F) The encroachment has a sufficient setback from street curbs or pavement edges and does not negatively impact the area’s responsible use. A standard setback should be no fewer than three feet (3’), subject to the City Engineer’s determination that the area’s conditions or environment allows otherwise.
Response:
Our office submitted Exhibit “C,” Cross Sections - 8 Western Drive. Section C-C on the exhibit clearly identifies the setback from the fencing to the edge of travel lane being in excess of three feet (30)’. As previously noted It is this office’s professional opinion that no public safety or visibility constraints have been created by the installation of the subject improvements.
I trust this provides you with the information that you require.
Please do not hesitate to call my office with any questions or any requests for more information regarding this Application.
Sincerely Yours,
Michael Milani
Michael Milani
Project Manager
Milani & Associates
Attachments (A, B and C as referenced)
cc: Allan C. Moore
Owner
We hereby confirm that all information in support of this Application is true and correct.
James Ortiz
Anna Ortiz
ENCROACHMENT
HEARING NOTICE
Exhibit "B"
WESTERN DR8 WESTERN DR
ENCROACHMENTAREA
ENCROACHMENT HEARING: 2/21/23
ENCROACHMENT NOTICE
WESTERN DR
NO.BY REVISIONS
CITY OF RICHMOND
APPDATE
MICHAEL E. MILANI
N/A
JMG
MEM
DESIGNED UNDER THE DIRECTION OF:
CALIFORNIA
DATE
2521
SCALE:
NOVEMBER 2022
OFSHEETS
1 SHEET
CONTRA COSTA COUNTY
CROSS SECTIONS
AS SHOWN
R.C.E. No. 35121 REGISTRATION EXPIRES 9-30-23
DESIGN:
DRAWN:
CHECKED:
JOB NO:
DATE:
L.S. No. 5311 REGISTRATION EXPIRES 12/31/23 CROSS SECTIONS 8 WESTERN DRIVE
1 EXHIBIT "C"