AGENDA REPORT
CITY OF SAN CLEMENTE
City Council Meeting
910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org
Meeting Date: 3/21/2023 Agenda Item: 7A
Department: Public Works
Prepared By: Kiel Koger, Public Works Director / City Engineer Subject:
CONTINUATION OF CONLEY HEARING ON APPEAL OF ADMINISTRATIVE ENCROACHMENT PERMIT E22-0112
Fiscal Impact:
None
Summary:
On January 17, 2023, City Council held a hearing for consideration of an appeal of Administrative Encroachment Permit E22-0112. After discussion, the City Council voted to continue the item for two months so the Conleys and Irions could meet and hopefully resolve the issue of competing interest in the use of the public right-of-way. Staff has been informed by both parties that there was a meeting to discuss a potential resolution but unfortunately, no progress was made.
Section 12.20.020 of the San Clemente Municipal Code (SCMC) governs Encroachment Permits for private improvements constructed within the street right-of-way. In accordance with the Municipal Code, the Public Works Director revoked Administrative Encroachment Permit (AEP) E22-0112. The decisions of the Public Works Director may be appealed to the City Council per SCMC 17.12.140.
Upon revocation of the Conley AEP another AEP application was submitted by the Irions whose property is directly abutting and adjacent to the street right-of-way.
Background:
The Conleys, residents of 4055 Via Manzana in San Clemente, informed staff that they have been maintaining a portion of the city right-of-way in front of 27001 Paseo Activo in San Juan Capistrano for approximately 30 years. The City limit runs between the properties and a majority of 27001 Paseo Activo is within the City of San Juan Capistrano (see Attachment 1). The Conleys were issued an Administrative Encroachment Permit (AEP) by San Clemente staff in May 2022 (Attachment 2) to continue maintaining this parkway with the understanding that the permit could be revoked if their neighbors (Irions), who live at 27001 Paseo Activo, utilized or needed access to their property located on the other side of the easement. The Irions subsequently applied to the City of San Clemente for an AEP in August 2022 to maintain this area and to construct a border wall in the city right-of-way.
The Irion’s application was partially approved in October 2022. The partial approval would allow retaining walls, landscaping and lights in the public right-of-way area, but not in the area of the Conley improvements.
The Irions resubmitted their application in October 2022 to include all elements of the original request in addition to the construction of a pergola and privacy walls on their property in San Juan Capistrano. The application also included a building permit for the privacy wall issued from the City of San Juan Capistrano. The Irion AEP application was tentatively approved by San Clemente staff CITY OF SAN CLEMENTE Page 1 of 4 Printed on 3/16/2023
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Meeting Date: 3/21/2023 Agenda Item: 7A
of San Juan Capistrano. The Irion AEP application was tentatively approved by San Clemente staff on November 15, requiring revocation of the Conley’s previous (revocable) AEP on the same day (Attachment 3).
Staff has been involved with this issue for over a year. Below is a timeline of key events:
· November 30, 2021 - Staff met with the Conleys on site to assess the issue (the Irions were present).
· December 9, 2021 - After review of the City’s Municipal Code and the State Streets and Highway Code, staff determined that the maintenance of the City right-of-way should be conducted by the neighboring property owner (the Irions). · January 2022 - The Irions removed landscaping.
· May 2022 - The Conleys formally applied for and were awarded an AEP (E22-0112) to maintain the right-of-way area with the understanding that the Irions would be allowed access to their property through this area in the future if needed and the permit may be revoked at any time.
· August 1, 2022 - The Irions submitted an AEP application to install walls within the city right-of-way, landscaping, lights, etc. up to the Conley’s property line. · September 22, 2022 - The Irion’s application was partially approved with the exception of the right-of-way walls in the area of the Conley’s existing permit. · October 4, 2022 - Staff met with the Irions to discuss the permit application. · October 26, 2022 - The Irions resubmitted their AEP application with a copy of a building permit from San Juan Capistrano (dated 10/24/22) to build a privacy wall on their property. They requested also to install walls within the city right-of-way, landscaping, lights, etc. up to the Conley’s property line. The associated pergola is proposed to be less than 120 square feet therefore it does not require a building permit from San Juan Capistrano.
· November 15, 2022 - The Irion’s permit was verbally approved and the Conleys were notified in writing that their permit was being revoked giving them 3 weeks to remove landscaping from the area per the signed AEP.
· November 24, 2022 - The Conleys sent an email requesting an appeal of revocation of AEP.
· December 6, 2022 - City Council requested staff return with a summary of the revocation of the Conley AEP.
· December 12, 2022 - After staff consultation with the City Attorney, the Conley’s were notified of the appeal fee and requirements for providing public notice documents. · December 19, 2022 - The Conley’s paid the appeal fee and provided the necessary public notice documents.
· December 20, 2022 - City Council received and filed staff’s report on a summary of the Conley AEP and revocation of the permit.
· Per Municipal Code 17.12.140, a public hearing on an appeal was held on January 17, 2023. City Council voted to continue the item for two months to allow time for the Conleys and Irions to meet and potentially resolve the issue.
Discussion:
The City of San Clemente Municipal Code (SCMC) states under Chapter 12.24 “Maintenance, Repair, Protection and Landscaping of Public Property by Abutting Property Owners” and subsection CITY OF SAN CLEMENTE Page 2 of 4 Printed on 3/16/2023
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Meeting Date: 3/21/2023 Agenda Item: 7A
Repair, Protection and Landscaping of Public Property by Abutting Property Owners” and subsection
12.24.020A that “the owner of any property fronting on or adjacent to any portion of a street, sidewalk, bikeway, trail or parkway shall perform landscape maintenance on any and all trees, shrubs, hedges and/or ground cover (excluding street trees) on his or her property including any portion of such a tree, shrub, hedge or ground cover which encroaches into the street, sidewalk, bikeway, trail or parkway.”
The Street and Highways Code of California also states in Chapter 22, Section 5610 that “the owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.” The term “sidewalk” includes a park or parking strip maintained in the area between the property line and the street line and also includes curbing, bulkheads, retaining walls or other works for the protection of any sidewalk or of any such park or parking strip.
According to the Conley’s Notice of Appeal (Attachment 4), the grounds of the appeal are related to the matter of the Irions residing in San Juan Capistrano, and that there is no need for the 3 foot walkway to access the Irion’s property. There is also mention of the Irions potentially planning an Accessory Dwelling Unit (ADU) or another structure in the area.
The Administrative Encroachment Permit (Attachment 2) executed by the City and the Conleys states that the “City reserves the right to allow and permit future modifications to the City Property at any time and for any reason. The modifications to the City Property may result from, among other things, the issuance of an encroachment permit to another party and/or activities by City, another government agency or public utility, or any other party allowed by City to obtain access to inspect and/or maintain, repair, replace, or add other facilities or improvements within the City Property.” Consistent with the executed agreement, and City and State codes, staff revoked the Conley’s AEP (Attachment 3) upon receipt of an AEP application from the Irions whose property is directly abutting and adjacent to the subject area of street right-of-way.
Although there are a lot of external elements and discussion, the role of the City Council is quite narrow in this case. Plainly stated, the City Council is being asked to affirm or reverse the decision of the Public Works Director to revoke the Administrative Encroachment Permit issues to the Conleys at 4055 Via Manzana in San Clemente. The interests of the City are to ensure the right of way is maintained in an attractive manner that will not have a negative impact on any property owners in the vicinity, and to provide necessary and appropriate access to private property.
City Council Options and Recommended Actions:
City Council Options
· Affirm the decision of the Public Works Director to revoke the Administrative Encroachment Permit granted to the Conleys at 4055 Via Manzana.
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Meeting Date: 3/21/2023 Agenda Item: 7A
· Modify and affirm the decision of the Public Works Director to revoke the Administrative Encroachment Permit granted to the Conleys at 4055 Via Manzana. · Continue the Item and direction the staff to take a specific action. · Reverse the decision of the Public Works Director and reinstate the Administrative Encroachment Permit granted to the Conleys at 4055 Via Manzana.
Staff Recommendation
Staff recommends that the City Council affirm the decision of the Public Works Director revoking Administrative Encroachment Permit E22-0112.
Attachment:
1. Site Plan
2. Conley AEP E22-0112
3. City Letter Revoking AEP E22-0112
4. Conley Notice of Appeal
Notification:
Notice was previously mailed to property owners within 300 feet, posted on-site, and published in the SC Times.
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