DATE: August 6, 2024
TO: Board of Supervisors
SUBMITTED BY: Steven E. White, Director
Department of Public Works and Planning
SUBJECT: Appeal Planning Commission’s approval of Variance Application No. 4165 (Appellant: Russell Efird; Applicant: Kyle Ehlers, Owners: Chad and Cindy Matoian)
RECOMMENDED ACTION(S):
TITLE
1. Consider appeal of the Planning Commission’s approval of Variance No. 4165 proposing to allow a zero-foot front yard setback for an attached deck, and an eight-foot front yard setback to recognize an existing residential addition, where a minimum 20-foot front yard setback is required; and allow a 38-foot tall building height for the residential addition, where a maximum of 35 feet is permitted. The property is located on an approximately 6,435 square-foot parcel in the R-1(m) Single-Family Residential, 6,000 Square-Foot Minimum Parcel Size, Mountain Overlay Zone District.
2. If the appeal is denied and the Planning Commission’s approval of Variance No. 4165 is upheld, your Board should:
a. Determine that the required Findings as specified in the Fresno County Zoning Ordinance Article 5, Chapter 860.5 can be made as recommended in the Planning Commission Staff Report.
b. Approve Variance No. 4165, subject to the Conditions of Approval and project notes as listed in Attachment A, Exhibit B and the additional conditions as recommended by staff.
c. Direct Staff to file a Notice of Exemption prepared for the project with the County Clerk and State Clearinghouse.
The subject parcel is located on the north side of Dalton Avenue, approximately 55 feet west of its intersection with Lakeview Avenue, within the unincorporated community of Shaver Lake (44452 Dalton Avenue) (120-291-11) (Sup. Dist. 5).
REPORT
This item comes before your Board on appeal of the Planning Commission’s approval of the subject application (5 to 2 with two Commissioners absent) at its May 16, 2024, hearing. The Zoning Ordinance requires your Board to determine, independent from the Planning Commission, whether the Variance Application (VA) should be approved, approved with modified conditions, or denied. A copy of the Planning Commission’s action is included in Attachment A which also includes the Conditions of Approval. The Planning Commission Staff Report is included as Attachment B. This item pertains to a location in District 5.
ALTERNATIVE ACTION(S):
If your Board is unable to make the required findings for granting VA No. 4165, you may make a motion to uphold the appeal, citing in the motion how the required Findings cannot be made, and deny VA No. 4165, overturning the Planning Commission’s approval.
FISCAL IMPACT:
There is no net County cost associated with the recommended action. Pursuant to the County’s Master Schedule of Fees, the owners have paid $6,426.00 to the County in land use application processing fees for the subject Variance. The Appellant paid $508.00 to appeal the Planning Commission’s decision.
DISCUSSION:
The subject Variance proposes to allow a zero-foot front yard setback for an attached deck, and an eight-foot front yard setback to recognize an existing residential addition, where a minimum 20-foot front yard setback is required; and to a allow 38-foot-tall maximum building height for the residential, where a maximum of 35 feet is permitted.
The subject dwelling was originally constructed in 1968. The current building permit for the 1,356 square-foot residential and 440 square-foot deck additions was approved on July 26, 2022. Construction on the additions commenced in August 2022.
On August 7, 2023, a complaint regarding the encroachment of the structure into the setback was submitted to Department staff by a member of the public. Department staff investigated the concerns and conducted an updated survey of Dalton Avenue for that portion abutting the residential addition in September 2023. The survey determined that the attached deck was encroaching into the setback area with a portion of the addition encroaching within approximately two-and-a half feet into the road right-of-way. Department staff acknowledges that there were errors in inspection including a comparison of the approved plan to actual field conditions that contributed to continued construction prior to notifying the contractor and property owner of the issues. The issue has been addressed to prevent similar occurrences in the future.
The applicants initiated a Pre-Application Review with the County on October 27, 2023 for the purpose of submitting a Variance request, and the Variance application was submitted on January 31, 2024 to permit the existing improvements encroaching into the required front yard setback area and for excess height of the existing residence and newly-constructed addition. Staff should note that encroachment into the road right-of-way is not permitted, not considered in the scope of the Variance request and will require some structural modification to the addition. Should your Board move to approve this Variance application, staff recommends an additional condition of approval to require that all improvements be removed from the County right-of-way and that an encroachment permit is obtained for the recent driveway improvements.
Pursuant to Zoning Ordinance Article 5, Chapter 860.5, to approve a Variance, the following four Findings must be made:
1. There are exceptional or extraordinary circumstances or conditions applicable to the property involved which do not apply generally to other property in the vicinity having the identical zoning classification.
2. Such Variance is necessary for the preservation and enjoyment of a substantial property right of the applicant, which right is possessed by other property owners under like conditions in the vicinity having the identical zoning classification.
3. The granting of a Variance will not be materially detrimental to the public welfare or injurious to property and improvement in the vicinity in which the property is located.
4. The granting of such a Variance will not be contrary to the objectives of the General Plan.
During the Planning Commission hearing, the property owners requesting the Variance provided testimony that they believed the improvements had been constructed within the required setbacks. The Appellant gave testimony stating that the building and site plans submitted to the County were based on inaccurate measurements relating to the property boundaries.
The appeal to Variance Application No. 4165 was filed on May 28, 2024. The appeal asserts a number of issues: 1) the site plans submitted to the County were inaccurate, that the residence and attached deck were not constructed according to the site plan; 2) the improvements were encroaching into the required setbacks and that a variance was not applied for; 3) the building and deck were not built according to the site plan; 4) an encroachment permit was not obtained for the new (reconstructed) portion of the concrete driveway that is in the right-of-way, and not consistent with State Responsibility Area (SRA) standards; 5) the original building and leach lines were identified on two different site plans in different locations; 6) County staff presented an incomplete set of facts regarding the Variance request; and 7) if there is any future road widening it is to be done within the existing right-of-way and that any steep slope(s) be preserved by a retaining wall to prevent erosion.
Staff notes that the site plan submitted for the existing improvements, at the time of permit issuance, showed the improvements as being located twenty (20) feet away from the property line and edge of road right-of-way. Although there is no record of an encroachment permit for the driveway improvements undertaken in 2023, Department staff confirmed that the existing septic system meets the required separation from the existing building and additions and the system is in the correct location as shown in septic permit records for the property and on the updated site plan submitted before the Planning Commission.
Staff recommends that if your Board chooses to approve the Variance, the following additional conditions be included in your motion.
1. Within 30 days of the effective date of approval of the variance application an encroachment permit shall be applied for and obtained from the Department of Public Works and Planning, Road Maintenance and Operations Division for driveway improvements made for 44452 Dalton Avenue.
2. Within 30 days of the effective date of approval of Variance Application No. 4165, the existing septic leach line located parallel to the concrete surface under the front deck shall be exposed (beginning and end of line) to verify the existing line has not been covered by impervious surfaces and to ensure an operational septic system is maintained. Verification of said septic leach line shall be conducted by a Department of Public Works and Planning building inspector. Should inspection determine the line has been covered or compromised, necessary modification up to and including removal of impervious surfaces or line reinstallation shall occur prior to release of permit and occupancy.
3. Within 60 days of the effective date of approval of Variance Application No. 4165 a certified geotechnical report shall be prepared to analyze the stability of the embankment adjacent to Dalton Avenue and include corrective measures if needed. Said report shall be submitted to the Department of Public Works and Planning, Development Services and Capital Projects Division for review and acceptance. If the geotechnical report supports that the embankment is stable, the existing slope shall be permitted to remain. If the geotechnical report does not demonstrate embankment stability, the property owner shall within 30 days of the report’s release date, construct recommended improvements pursuant to the engineer’s report subject to applicable permitting and inspections by Fresno County
4. The owner(s) shall enter into an agreement indemnifying the County for all legal costs associated with its approval of Variance No. 4165 and provide security in an amount determined by the County for any such legal costs incurred. The agreement and payment of security shall be due unless the litigation period has expired, in which case the requirements for the indemnification agreement and security shall be considered null and void.
Staff notes that should the Variance be approved; the Variance shall become void unless the final permits and inspections sought for the existing improvements are completed within one year from the date of the Board’s approval. Where circumstances beyond the control of the property owners cause delays, they may file an extension request. The Planning Commission may grant a maximum of two, one-year time extensions.
If your Board is unable to make the required Findings for granting Variance (VA) No. 4165, a motion to grant the appeal and deny the Variance would be appropriate.
ATTACHMENTS INCLUDED AND/OR ON FILE:
Attachments A - E
Additional Information
CAO ANALYST:
Salvador Espino