March 21, 2023
Public Works
DATE: March 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:
City Council approved an Encroachment Agreement
application at 130 E. Scenic Ave. At City Council’s
direction, City entered into an Encroachment Agreement
with owners; it now presents the executed Agreement to
City Council, pursuant to RMC 12.30.200.
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.
PREVIOUS COUNCIL
ACTION:
A Public Hearing was held, and public comment was
taken, on February 21, 2023 . The February 2 1st hearing had been continued from February 7th.
STATEMENT OF THE
ISSUE:
On February 21, 2023, the City Council adopted
Resolution 20-23, which determined that the requisite
findings of RMC 12.30.190(a)(1)(A-G) had been met; it
then approved the Encroachment Agreement application
for 130 E. Scenic Avenue, which allows for a private
landowner encroachment into the unimproved public right of way. City Council further directed and authorized City staff to enter into an Encroachment Agreement with the
property’s owners. The RMC requires that the City
Council formalize its Encroachment Agreement decision
within 30 days following the Public Hearing.
AGENDA
REPORT
March 21, 2023
RECOMMENDED ACTION:
ADOPT a resolution to approve the Encroachment
Agreement between the City and the title of record
property holders of 130 E. Scenic Avenue for a private
landowner fence encroachment into the unimproved
public right-of-way at said address; and reaffirm its
decision that the findings pursuant to RMC
12.30.190(a)(1)(A-G) have been met. The executed
Encroachment Agreement will be recorded on the
property’s title and thereby bind successors in perpetuity. – Public Works Department (Daniel Chavarria/Robert
Armijo 620-5477)
DISCUSSION:
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 12.30.180 requires private landowners to submit an Encroachment Agreement Application (“Application”) by way of a letter, pursuant to RMC 12.30.180(a), to the Engineering Division of the Public Works Department (“PW-Engineering”) for encroachments placed in the public ROW. RMC 12.30.200, et seq. grants City Council the 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 the property’s title and binds the owner(s) and any successive owners in perpetuity.
The title of record property owners (“Owners”) of 130 E. Scenic Avenue submitted an Application to the City Engineer for approval of a new fence paralleling the roadway at 130 E. Scenic Avenue (“Subject Property”) in an area within the public ROW on May 31, 2022. At the request of City staff, Owners revised their Application, and City staff received those revisions on February 7, 2023.
Pursuant to RMC 12.30.180(a)(8), PW-Engineering sent a “Notice of Encroachment Agreement Application” to properties within 300 feet of Subject Property; and, to the Neighborhood Council as per RMC 12.30.110(a)(1). Thereafter, pursuant to RMC
12.30.200(d), the City Clerk’s Office noticed a Public Hearing for February 7, 2023, later continued to February 21, 2023, at which time the City Council took public comment. Pursuant to RMC 12.30.200(d), the Clerk’s Office sent a Public Hearing notice by U.S. Mail to neighbors within 300 feet of Subject Property on January 25,
March 21, 2023
2023; and, as a courtesy, simultaneously noticed the Neighborhood Council. The notice was also published in West County Times on January 27, 2023. A courtesy notice of the Public Hearing’s continuation was sent to neighbors and the Neighborhood Council on February 10, 2023. Pursuant to 12.30.200(b), a copy of the Application was made available for review in the City Clerk’s Office on February 9, 2023.
On February 21, 2023, the City Council held a Public Hearing. After receiving Public Comment, the City Council adopted Resolution 20-23, which made the above- referenced, required findings pursuant to the RMC. Resultingly, the City Council approved the Application for a private landowner encroachment into the unimproved public ROW at Subject Property. Specifically, the City Council made the following determinations based on the City Engineer’s findings, pursuant to RMC 12.30.200(f) and 12.30.190(a)(1)(A-G):
(1) Findings.
(A) Complete application contains all necessary, supporting information. On May 31, 2022, the property owners, Eli Berland and Kathleen Berland (collectively, the “Applicant”) submitted an application for an Encroachment Agreement and supporting information. The application is complete.
(B) The encroachment does not conflict with adopted street improvements or similar plans, or any in development, or that can be anticipated. 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 City Engineer.
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, which are part of the application.
(D) The encroachment does not substantially obscure the main property frontage. The encroachment is a fence that is 72 inches high with the bottom two (2) feet constructed of solid wood, while the top four (4) feet are fifty percent (50%) open. Thus, 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 if the property is not strictly necessary for the proposed use.
March 21, 2023
There are no residences across the street. The encroachment occurs on a hillside that slopes steeply from the roadway to the home. The encroachment is a fence that has a base lower than the street’s elevation. Thus, the encroachment does not adversely impact or affect adjacent properties.
(F) The encroachment has a sufficient setback from street curbs or pavement edges and does not negatively impact the area’s reasonable use. A standard setback should be no fewer than three (3) feet, subject to City Engineer’s determination that the area’s conditions or environment allows otherwise.
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. While most of the proposed fence is set back more than three (3) feet, there are portions of the encroachment that are less 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 conflicts with a specific condition below, but the encroachment is warranted due to special circumstances specifically identified and addressed in the encroachment agreement.
The encroachment may conflict with RMC 12.30.190(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.**
[* On February 21st, the paragraph directly above cited RMC 12.30.180(a)(2)(J)(i), which was a scrivener’s error. The correct citation is RMC 12.30.190(a)(2)(J)(i).] [** The City Council subsequently approved this item.]
Following the City Council’s determination that the required findings of RMC
12.30.190(a)(1)(A-G) had been met, as detailed above, the City Council approved the Application for the Subject Property. As part of its approval, the City Council directed City staff to enter into an Encroachment Agreement with the Owners to be recorded on the Subject Property’s title and binding upon successors.
City staff complied with the City Council’s directive and now presents the Encroachment Agreement prior to recordation. Pursuant to RMC 12.30.200(e), the City Council must take the formal step of reaffirming its decision to approve the Encroachment Agreement based on the required findings it made at its February 21st meeting under RMC 12.30.190(a)(1)(A-G). Generally speaking, RMC 12.30.200(e) allows the City Council to approve, modify, or deny an Encroachment Agreement based on the required findings in RMC 12.30.190(a)(1)(A-G). Here, as noted above, the City Council adopted Resolution 20-23 determining, inter alia, that those required
March 21, 2023
findings had been met and thus directed and authorized City staff to enter into the Encroachment Agreement with Owners.
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 Encroachment Agreement 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 Encroachment Agreement at 130 E. Scenic Avenue Attachment 2 – Encroachment Agreement
Attachment 3 – City Council Resolution 20-23, adopted February 21, 2023 Attachment 4 – 130 E. Scenic EA Application