April 4, 2023
Public Works
DATE: April 4, 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 8 Western Drive. At City Council’s direction, City entered into Encroachment Agreement with owners; it now presents the Agreement to City Council, pursuant to RMC 12.30.200, et seq.
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 March 7, 2023. The March 7th hearing had
been continued from February 7th and 21st.
STATEMENT OF THE
ISSUE:
On March 7, 2023, the City Council adopted Resolution
27-23, 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 8
Western Drive, 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
April 4, 2023
RECOMMENDED ACTION:
APPROVE the Encroachment Agreement between the
City and the title of record property holders of 8 Western Drive 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 – Public Works
Department (Daniel Chavarria/Robert Armijo 510-620-
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 8 Western Drive submitted an Application to the City Engineer for approval of an existing fence paralleling the home’s frontage at 8 Western Drive (“Subject Property”) in an area within the public ROW on July 6, 2022. At the request of City staff, Owners revised their Application, and City staff received those revisions on February 9, 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 and then to March 7, 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, 2023; and, as a courtesy, simultaneously noticed the Neighborhood Council. The notice was also published in West County Times on
April 4, 2023
January 27, 2023. A courtesy notice of the Public Hearing’s continuation was sent to neighbors and the Neighborhood Council on February 10, 2023. A second courtesy notice of the Public Hearing’s continuation was sent to neighbors and the Neighborhood Council on February 17, 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 17, 2023.
On March 7, 2023, the City Council held a Public Hearing. After receiving Public Comment, the City Council adopted Resolution 27-23, 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 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.
April 4, 2023
(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. 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 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.
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 for approval. 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 March 7th 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 27-23 determining, inter alia, that those required 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
April 4, 2023
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 – Encroachment Agreement
Attachment 2 – City Council Resolution 27-23, adopted March 7, 2023 Attachment 3 – 8 Western Drive EA Application