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HomeMy WebLinkAboutStaff Report 8.B 10/17/2005CITY OF PETALUMA, UALIFORNIA AGENDA BILL .. Agenda Title: Appeal of Brian Heim of a Condition of Approvarof Meeting D Q'`f7c`t btF1'7, 2405 �8 D5 a Tentative Parcel Map for Property at 26 Cherry Street Requiring that an Existing Garage be in Compliance with Applicable Zoning Requirements Prior to Recordation of a Final Parcel Map Meeting Time: ❑ 3:00 PM ® 7:00 PM Cateeory (check one): ❑ Unfinished Business Department: Community Development ❑ Consent Calendar ® Public Hearing ❑ Presentation _ %) Director: V f Contact Person: Mike MooreMike Moore Cost of Prouosal: Appeals are a cost recovery item under the City's adopted fee structure. Costs for processing an appeal are to be paid by the project developer. Amount Budgeted: N/A Attachments to Agenda Packet Item: ❑ New Business Phone Number: 707-778-4301 Account Number: N/A Name of Fund: N/A 1) Aerial Photo of 26 Cherry 2) Letters of Appeal from Brian Heim 3) August 31, 2005 Letter from Kim Gordon, Associate Planner, to Brian Heim 4) September 15, 2005 Letter from Mike Moore to Brian Heim 5) Draft Resolution Denying the Appeal Summary Statement: Mr. Heim contends in his appeal that the requirement that his property be brought into conformance with applicable zoning requirements prior to the recordation of his parcel map is contrary to those sections of the state Subdivision Map Act cited in his attached letters of appeal. Mr. Heim's property at 26 Cherry Street includes an existing detached garage which, if his conditionally approved tentative parcel map were recorded, would result in the garage not meeting the required building set back from the new property line. Mr. Heim filed an appeal to the Planning Commission on August 24, 2005 stating that the condition of approval requiring modification of the garage to meet the set back requirement is a construction requirement that cannot be applied prior to the recordation of his parcel map under Section 66411.1 of the state Subdivision Map Act. Mr. Heim subsequently filed a second letter of appeal, this one requesting a hearing with the City Council on October 3, 2005. Community Development staff in two separate letters (from Kim Gordon and Mike Moore, respectively) informed Mr. Heim that the garage needed to be brought into compliance with applicable zoning before his parcel map could be recorded. Recommended Citv Council Action/Suggested Motion: Adopt the attached Resolution denying the Appeal of Brian Heim. Reviewed by Admin. Svcs. Dir: Date: Todav's Date: October 12, 2005 Reviewed by City Attornev: Date: Revision # hd Dke-Revised: Auuro;V,Jiv Citv Manager: Date: File /Code- CITY OF PETALUMA, CALIFORNIA OCTOBER 17, 2005 AGENDA REPORT FOR APPEAL OF BRIAN HEIM OF A CONDITION OF APPROVAL OF A TENTATIVE PARCEL MAP FOR PROPERTY AT 26 CHERRY STREET REQUIRING THAT AN EXISTING GARAGE BE IN COMPLIANCE WITH APPLICABLE ZONING REQUIREMENTS PRIOR TO RECORDATION OF A FINAL PARCEL MAP 1. EXECUTIVE SUMMARY: Mr. Heim contends in his appeal that the requirement that his property be brought into conformance with applicable zoning requirements prior to the recordation of his parcel map is contrary to those sections of the state Subdivision Map Act cited in his attached letters of appeal. Mr. Heim's property at 26 Cherry Street includes an existing detached garage which, if his conditionally approved tentative parcel map were recorded, would result in the garage not meeting the required building set back from the new property line. Mr. Heim filed an appeal to the Planning Commission on August 24, 2005 stating that the condition of approval requiring modification of the garage to meet the set back requirement is a construction requirement that cannot be applied prior to the recordation of his parcel map under Section 66411.1 of the state Subdivision Map Act. Mr. Heim subsequently filed a second letter of appeal, this one requesting a hearing with the City Council on October 3, 2005. Community Development staff in two separate letters (from Kim Gordon and Mike Moore, respectively) informed Mr. Heim that the garage needed to be brought into compliance with applicable zoning before his parcel map could be recorded. 2. BACKGROUND: This is the third parcel map in which Mr. Heim has appealed conditions of approval related to the timing of the construction of improvements prior to the recordation of a final parcel map. In the first two appeals, for parcel maps on properties at 511 "D" Street and 235 Edith Street, the conditions of approval were modified to allow the filing of improvement plans and bonds for required improvements prior to the recordation of those parcel maps. Unfortunately, due to an oversight by staff, the conditions were also modified to eliminate the requirement on each of the parcel maps to meet the parking requirements of the Zoning Ordinance prior to the recordation of the parcel. In those two cases, the subsequent recordation created a non -conformity with existing zoning that will have an impact on any subsequent development. Mr. Heim was notified in a letter dated September 15, 2005 (attached) that the City did not consider the recordation of the parcel maps for 511 "D" Street and 235 Edith Street and the consequent non -conformity with applicable zoning regulations to be precedent for allowing the recordation of the parcel map for 26 Cherry to proceed without the existing garage meeting the set back requirement. PA ALTERNATIVES: Following discussions of this matter with the City Attorney, staff can only recommend that the City Council deny the appeal. In our view, the Subdivision Map Act provision cited by Mr. Heim in his letter of appeal does not apply to "improvements" required to comply with the Zoning Ordinance. More importantly, in order to approve any tentative map, the City is required by our own Subdivision Ordinance to make a finding that the map is in conformance with the Zoning Ordinance (Section 20.20.041 of the Petaluma Municipal Code). The inability to make that finding would result in a decision to deny the tentative parcel map. 4. FINANCIAL IMPACTS: N/A 5. CONCLUSION: N/A 6. OUTCOMES OR PERFORMANCE MEASUREMENTS THAT WILL IDENTIFY SUCCESS OR COMPLETION: WIJ RECOMMENDATION: Adopt the attached Resolution Denying the Appeal. Pi New Property a! Line Arlo Required sideyard setback area Existing Garage A I St ` Chem p, 4-1: 17 ATTACHMENT 2 RECEIVED OCT 0 3 2005 October 3, 2005 MUMUNTIY DEVELOPMENT DEPARTMENT Notice of Appeal 0C f`• ��; qtr'. JZ`c To: Petaluma City Council, I hereby appeal to the Petaluma City Council my unheard Appeal to the Petaluma Planning Commission filed August 25, 2005. The grounds for my appeal to the City Council are based on Section 66452.5 of the Subdivision Map Act. Section 66452.5 mandates, "The hearing shall be held within 30 days after the date of filing the appeal." The subject of the appeal to the Planning Commission were the Conditions of Approval for the Application for Tentative Parcel Map to divide 26 Cherry St. APN 006-041-010, into two lots. The grounds for the appeal are the fulfillment of the construction requirements contained in the Conditions of Approval (condition # 2) prior to the recordation of the Final Parcel Map is prohibited by Section 66411.1 of the Subdivision Map Act. Appeal issues specific to the conditions of approval also exist. Relief sought is for recordation of the Final Parcel Map to be permitted immediately and that the construction of the on and off sight improvements not be required to take place "until the time a permit or other grant of approval for development of the parcel is issued by the local agency..." (Section 66411.1 (B) Subdivision Map Act). I request relief in the form of reimbursement of the fees for this appeal and recovery of other costs incurred to process the appeal, including attorney's fees and expenses, from the City of Petaluma. Further relief sought is reimbursement of all deposits and fees paid by applicant to the City of Petaluma for the processing of the tentative parcel map as a result of the City's breach of the agreements contained within the Agreement for Payment of Full Cost Recovery for Application Processing and Inspection Services. Specifically, the City of Petaluma agreed "to review and process the application in a timely manner in accordance with this Agreement and all applicable laws, regulations, ordinances, standards and policies." Applicant seeks any and all relief available, or recovery of damages, whether available relief or recovery is from theories of contract, tort, or equity. Brian E. Heim a U August 24, 2005 Notice of Appeal To: Petaluma Planning Commission, I hereby appeal the Conditions of Approval for the Application for Tentative Parcel Map to divide 26 Chevy St. APN 006-041-010, into two lots. The grounds for the appeal are the fulfillment of the construction requirements contained in the Conditions of Approval (condition # 2) prior to the recordation of the Final Parcel Map is prohibited by Section 66411.1 of the Subdivision Map Act. Relief sought is for recordation of the Final Parcel Map to be permitted immediately and that the construction of the on and off sight improvements not be required to take place "until the time a permit or other grant of approval for development of the parcel is issued by the local agency..." (Section 66411.1 (B) Subdivision Map Act). I request relief in the form of reimbursement of the fees for this appeal and recovery of other costs incurred to process the appeal, including attorney's fees and expenses, from the City of Petaluma. Further relief sought is reimbursement of all deposits and fees paid by applicant to the City of Petaluma for the processing of the tentative parcel map as a result of the City's breach of the agreements contained within the Agreement for Payment of Full Cost Recovery for Application Processing and Inspection Services. Specifically, the City of Petaluma agreed "to review and process the application in a timely manner in accordance with this Agreement and all applicable laws, regulations, ordinances, standards and policies." Applicant seeks any and all relief available, or recovery of damages, whether available relief or recovery is from theories of contract, tort, or equity. 0 o a 0 o a�- 0 0 -, nl CJ tw M kl> H I Q W v. W ai W L'1 x a �L W S u � u J Brian E. Heim O I O M i rn m o t o L7 I 4'J W M I i�q � i I 1= o I E ¢ ¢ £ 1 I Y^. L7 O J O \ W W Y7 c'1 CC •—v W ii J o J I— • w ¢ in W O I— w � Y S iC S Cn W I— tL •. a1 J o H H J ti i— c> 0 o a 0 o a�- 0 0 -, nl CJ tw M kl> H I Q W v. W ai W L'1 x a �L W S u � u J Brian E. Heim ATTACHMENT 3 CITY OF PETALUMA David Glass Mayor August 31, 2005 Keilh Canevaro Nike Harris Nike Healy Karen Nan Brian Heim Mike O'Brien Pamela Torliatl 501 Cherry Street Councdmembers Petaluma, CA 94952 POST OFFICE BOX 61 PETALUM A, CA 94953-0061 RE: Appeal of Conditions of Approval for the 2 -Lot Tentative Parcel Map for the property located at 26 Cherry Street, APN 006-041-010 (File #05 - TPM -0095 -CR) Community Development Department I/ English Slrecl Dear Mr. Heim: Petaluma, CA 94952 E-mail cddrer pelahwa ca us The City has received your letter appealing condition of approval #2 for the 2- lot tentative parcel map for the property located at 26 Cherry Street, APN 006 - Carte Enforcement 041-010. The appeal cannot be scheduled to be heard by the Planning Phone (707) 778-4469 Commission until the enclosed Development Permit Application and the Cost Fax (707) 778-4498 E-nlad Based Fee System forms have been completed, signed and retumed to the codeen/orcemeni@ Community Development Department. cr Petaluma co us Engineering In order for the City to approve a tentative parcel map, the map must be Phone (707) 778-4301 Fax (707) 778-4498 consistent with the zoning ordinance setback requirements. For this reason, G.I.S condition #2 was applied to the project. The building permit referenced in Phone (707) 778-4301 condition #2 included the modifications to the existing garage that you proposed Fax(707)778-4498 and that would make the side setback conform to the minimum setback Housing Division requirements. Condition #2 simply requires that the work included in the Phone (707) 778-4555 building permit you applied for and the City issued to you is completed prior to Fax (70 7) 778-4586 E-mail the map being recorded. bgaebler©cm pelahmm ca us Inspection Services Without condition #2, the garage would not comply with the required side yard Phone (707) 778-4301 Fax (707) 778-4498 setback and the City would be unable to make the required finding for zoning To Schedule Inspections consistency. Without this finding, the City would be unable to approve the Phone(707)778-4479 project. Since you applied for and picked up the building permit that included Permits the necessary work to the garage, I was unaware that there would be any Ph(707) 77B-4498 �78-4301 Fax (707) . objection to condition #2. In addition' the tentative parcel map shows the Fax modified garage. Please be aware that the condition that you have appealed is Planning not related to an applicable provision of the Subdivision Ma Act as referenced Phone (707J 778-4301 Y PP P P Fax (707) 778-4498 in your appeal letter. ra inxl onoxrumn If you have any questions regarding this letter, please feel free to contact me, George White, Assistant Community Development Director, or Mike Moore, Community Development Director, at (707) 778-4301. Sincerely, Kim Gordon Associate Planner Attachments: Development Permit Application Cost Based Fee System Form c: File #05 -TPM -0095 -CR S:pland ept/le tters/26cherrya ppeal r David class September 15, 2005 mayor Al 1AU HMLNr4 CITE' OF PETALUMA Keith Canevaro As you are aware, Condition No. 1 on the 511 East D Street tentative parcel map Nike Harris applications was modified b the Planning Commission on appeal of that PP Y ue PP Nike Healy condition, and as it currently stands requires that standard parking (one covered Karen Nan Mr. Brian Helm ;]like O'Brien to "issuance of permits or other approvals for development of the parcels." This Pamela Torliatt 501 Cherry Street Cormnlmembers Petaluma, CA 94952 POST OFFICE Box 61 PETALUMA, CA 94953-0061 RE: 511 East D Street, 235 Edith Street, 26 Cherry Street Dear Mr. Heim: We are prepared to proceed with the final parcel maps for 511 East D Street and Community Development 235 Edith Street. With respect to 511 East D Street, as you have been Department repeatedly told, oral] and in writing, a formal application for a final parcel ma I l English Street P Y Y g, PP P P Petahmia, CA 94952 must be submitted with the required fees. Please note that in this particular case, E -Mail cddQctpem(urna, ca usthe required fees not only include the fee for processing the review of the final parcel map, but also the cost recovery amount for processing your appeal of the Code Enforcement 511 East D tentative parcel map conditions of approval. Once an application is Phone (707) 778-4469 submitted and the fees paid in full, the final parcel map will be reviewed, and if Fax (707)778-4498 complete and the conditions of approval are met the final parcel map will be codeenforcementQ approved for recordation. n petaluma.cetus Engineering As you are aware, Condition No. 1 on the 511 East D Street tentative parcel map (707) 778-4391 PhoneFax Fax (707) 778-4498 applications was modified b the Planning Commission on appeal of that PP Y ue PP condition, and as it currently stands requires that standard parking (one covered G.I.S. Phone (707J 778-4301 and two uncovered parking spaces) for the existing house must be provided nor P g P ) g p p Fax (707) 778-4498 to "issuance of permits or other approvals for development of the parcels." This Housing Division is not a condition of recordation of your final parcel map and staff is not Phone (707) 778-4555 requiring this provision be completed before recordation of the final map for 511 Fax (707) 778-4586 a6 East D Street. However, all other conditions required before recordation as bgaeblerQc, Petaluma. ca.us indicated by the Planning Commission must be fulfilled, an application must be Inspection Services filed, and fees paid in full. Please be advised that if you choose not to provide Phone (707) 778-4301 the standard parking before the recordation of the final parcel map, a non - Fax (le In pectio 98 To Schedule Inspections: s: conforming use will exist on that parcel at 511 East D Street that contains an g Phone (707) 778-4479 existing residence. This non -conforming use will need to be remedied before "a Permits permit or other grant of approval of development" of that parcel is issued, in Phone (707) 778-4301 order to bring the use on that parcel into compliance with the City's zoning Fax (707) 778-4498 regulations. Planning Phone (707) 778-4301 Fax (707) 778-4498 A condition requiring provision of standard parking facilities for the existing residence prior to recordation could have been imposed, because those facilities ttoe ttto OPPORTUNITY are needed to ensure consistency of the newly created lot with the City's zoning regulations, rather than being improvements whose construction is required pursuant to section 66411.1 of the Subdivision Map Act. Nevertheless, you have insisted, and the City in an attempt at compromise has modified Condition Into. I to allow you to record the final parcel map for 511 East D Street without first providing the standard parking facilities for the parcel containing the existing residence. However, recordation prior to provision of standard parking will, as I have indicated above, result in the existence of a non -conforming use. Accordingly, a notation will be placed in our electronic permit tracking system that will require the provision of the required standard parking prior to the approval of any subsequent permit application for the parcel containing tine existing residence at 511 East D Street. With respect to 325 Edith Street, the application for a final parcel map is currently in review, and it is anticipated that it will be completed in the very near future, and you will be advised of same. The following requirements need to be satisfied in order for the Final Parcel Map to be approved and recorded: 1. A maintenance declaration between Iots two and three is required for the shared sewer line and driveway. This agreement needs to record with the final parcel map. The agreement shall be reviewed and approved by staff prior to recordation. 2. The final parcel map needs private easements for a water line and sewer line over lot two appurtenant to lot three. 3. Remove reference to the State of California (Note 3) on page two of the final parcel map. 4. Remove reference number (1) to the 189 foot dimension on the Lands of Sado because Book 3 Maps, Page 28 has no dimensions to refer to. Although again, a condition requiring provision of standard parking facilities on the parcel that has the existing house prior to final map recordation could have been imposed, the Planning Commission modified Condition No. I on approval of the tentative parcel map for 235 Edith Street to allow you or your subsequent purchaser to construct those improvements "prior to the issuance of permits or other approvals for development of the parcels." As with 511 East D Street, however, please be on notice that the filing of the final parcel map without the construction of the parking improvements will result in a non -conforming use on the parcel that has the existing house and will also be noted in our permit tracking system. As for 26 Cherry Street, as you are aware, you have currently filed an appeal to Condition No. 2 which requires "prior to Final Map approval, the building permit . . , for the modification of garage on Parcel 1 shall be finaled." Apparently, you believe that this condition is inappropriate under section 66411.1 of the Subdivision Map Act. The City does not agree with that position, because as with D Street and Edith Street, the filing of the final parcel map prior to provision of standard parking for the existing residence will result in the creation of a non -conforming use on the parcel containing the existing residence at 26 Cherry Street. Although the City will allow you to proceed with the filing of your final parcel maps for D Street and Edith Street without first providing standard parking facilities for the existing residences located there, this is in no way is binding precedent for the City's processing of other parcel maps. Therefore, with respect to Cherry Street, you have received a letter from Kim Gordon, dated August 31, 2005, regarding the status of that application_ and your appeal. Sincerely, Mike Moore Director of Community Development 3 11 h i 1 h'�Vf-tiVIGIV I J RESOLUTION NCS DENYING THE APPEAL OF BRIAN HEIM REGARDING A CONDITION OF APPROVAL OF A TENTATIVE PARCEL MAP REQUIRING CONFORMANCE WITH APPLICABLE ZONING REGULATIONS PRIOR TO RECORDATION (26 Cherry Street) WHEREAS, on February 28, 2005, Brian Heim filed an application for a tentative parcel map to subdivide the property at 26 Cherry Street; and WHEREAS, in a letter dated March 29, 2005, the City of Petaluma Community Development Department informed Brian Heim that said application for a tentative parcel map was incomplete; and WHEREAS, said application for a tentative parcel map was determined by the City to be complete on July 21, 2005; and WHEREAS, on August 11, 2005, said tentative parcel map was conditionally approved by the City, including condition of approval number 2 requiring that the existing detached garage accessory to an existing residence at 26 Cherry Street be modified to meet the applicable zoning set back requirement of the new property line prior to the recordation of the parcel map; and WHEREAS, on August 24, 2005, Brian Heim filed an appeal to the City Planning Commission with the City Clerk stating that the "fulfillment of the construction requirements contained in the Conditions of Approval (condition #2) prior to the recordation of the Final Parcel Map is prohibited by Section 66411.1 of the Subdivision Map Act; and WHEREAS, in a letter dated August 31, 2005, the City Planning Department informed Brian Heim that his appeal could not be set for hearing until he had completed an enclosed Development Permit Application form and an "Agreement for Payment of Full Cost Recovery Fees for Application Processing and Inspection Services" form, and further informed Mr. Heim that condition of approval number 2 had been imposed to allow the City to make a finding, required for subdivision map approval, of consistency with zoning ordinance setback requirements; and WHEREAS, in a letter dated September 15, 2005, the City Planning Department informed Mr. Heim that the City disagreed with his grounds for appealing condition of approval number 2 in that said condition had been imposed to allow the City to make a finding, required for subdivision map approval, of consistency with zoning ordinance setback requirements of his subdivision application for 26 Cherry Street and was not barred pursuant to Government Code Section 66411.1; and WHEREAS, on September 20, 2005, Brian Heim submitted a completed Development Permit Application form and an "Agreement for Payment of Full Cost Recovery Fees for Application Processing and Inspection Services" form to complete his application for an appeal to the Planning Commission; and WHEREAS, on October 3, 2005, Brian Heim filed a subsequent appeal with the City Clerk on the same grounds as the appeal filed on August 24, 2005, requesting that said appeal be heard by the City Council pursuant to Subdivision Map Act Section 66452.5, "within 30 days after the date of the appeal"; and WHEREAS, the City Council scheduled and heard said appeal on October 17, 2005. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma, following a public hearing and consideration of all of the evidence in the record, does hereby deny the appeal of Brian Heim based on the following findings: 1) Section 21-201.1(d) of the Zoning Ordinance (Standards and Considerations for Certain Accessory Uses) requires that a detached accessory building "maintain a three foot side yard" setback from the property line. The recordation of the approved tentative parcel map for the property at 26 Cherry without the application of Condition #2 would result in the creation of a new property line that would further result in the existing detached accessory structure (the existing garage) encroaching into the setback required by Section 21-201.l (d) and thereby create a land use inconsistent with the zoning ordinance. 2) Section 20.20.041 of the Petaluma Municipal Code (Findings for tentative parcel map) states that "In approving, conditionally approving or denying a tentative parcel map, the planning director ... shall make the findings set forth in this chapter for tentative maps". Said findings for a tentative map are found in Section 20.16.410 ("Written report by planning director") which provides that "the planning director shall prepare a report on the conformity of the tentative map to the provisions of ...the zoning ordinance". Condition of approval number 2 placed on the tentative parcel map for 26 Cherry is necessary to allow the finding that the tentative parcel map is in conformance with the zoning ordinance and, therefore, condition of approval number 2 must be fulfilled prior to approval of the final parcel map. 3) The City Council has determined, based on evidence in the record, that Section 66411.1 of the state Subdivision Map Act regarding the prohibition on construction of certain improvements prior to the recordation of a final parcel map, does not prohibit the City from imposing condition of approval number 2, in order to ensure that Brian Heim's parcel map application to subdivide the property at 26 Cherry Street is consistent with the City's zoning regulations prior to approval of the final parcel map application for that property. SACC -City Council\resolutions\heimdenial26cher y.doc W