None. The applicant has paid the necessary application processing fees, and is obligated to pay supplemental fees to recover any and all additional staff time and materials costs associated with the application processing.
The actions that led to this application being filed with the County began in 2004 when staff discovered the owners were in the process of renovating a deck for their residence. After investigating the matter, staff determined that required permits had not been obtained for it. Among, other concerns, the deck has been placed within required side yards of the property.
Staff informed the owners of the violation and indicated that it could be corrected by either:
- Eliminating the unpermitted deck addition, or
- Seeking and obtaining a variance permit from the County to allow a deck to be placed within the required side yards; obtaining a building permit; and compliance with the building permit.
The owners contend a similar deck existed when they purchased the home in 1993. However, staff could find no record of any permits from the past that would have allowed an earlier deck in that location.
To try to salvage the deck, on January 30, 2008, the owners elected to file a variance application with the County.
After reviewing the application, the Zoning Administrator determined that there was not sufficient evidence to make the required findings for granting a variance and denied the application on April 23, 2008.
The owners then appealed the Zoning Administrator’s decision to the County Planning Commission. After taking testimony on August 26, 2008, the County Planning Commission denied the appeal and sustained the Zoning Administrator’s decision to deny the project.
A. Site and Area
The subject property is located within a semi-rural setting consisting of rolling hillsides in the El Sobrante area. The single family residence was constructed on this 9,100 square foot lot in 1960. The 19 foot high, 658 square foot deck is located along the west and southern edges of the residence. The topography is steep and slopes downward from the property’s frontage (Foster Lane) to the southern portion of the parcel. Appian Creek is located along the southern property line of the site where a portion of the lot is located in flood zone A. The surrounding property is developed as a single family high density residential area. The City of Richmond boundary line and cemetery lands are located further west of the subject property.
B. General Plan and Zoning
The General Plan designates the site as Single Family Residential – High Density (5.0 – 7.2 units per net acre). The Land Use Element contains policies for the El Sobrante area; however, these policies address the San Pablo Dam Road and Appian Way commercial corridors. The primary concerns for this area are protection of the scenic ridge lines, traffic circulation and retention of the residential character of the area.
The subject site is zoned R-6 Single-Family Residential District, (R-6). The R-6 Zoning Code requires a minimum lot area of 6,000 sq.ft., average lot width of 60 ft., and a lot depth of 90 ft., all of which the subject property complies with. In addition, the R-6 Zoning requires an aggregate side yard width of at least fifteen feet (11-foot side yard aggregate requested), with no side yard being less than 5 feet wide (1-foot side yard requested).
PROCESSING OF VARIANCE APPLICATION
A. Position of the El Sobrante Valley Planning & Zoning Advisory Committee
In a memorandum dated March 6, 2008 (attached), the Committee indicates that they have no objections to this variance application as long as it meets all of the building code requirements. The Committee also indicated that the immediate, adjacent neighbors at 4196 Foster Lane, Mr. and Mrs. Sias, expressed no concern about the deck's encroachment within the side yard adjacent to their residence, or its placement (See statement signed by Mr. & Mrs. Sias, Attachment F.3).
B. County Planning Commission Hearing and Decision
On Tuesday, August 26, 2008 the County Planning Commission conducted a hearing on the appeal of the Zoning Administrator’s decision. At the hearing, Mrs. Hornyak testified that her family purchased the home in 1993 with a similar deck that was in disrepair. Nancy Samuel (Resident of 4182 Foster Lane) and Joyce Briard (Resident of 4172 Foster Lane) both testified that the previous deck was already constructed when the Hornyaks purchased their home in 1993. Mrs. Hornyak also stated that her family does not utilize their backyard due to the steep slope and that the addition of stairs to the rear portion of the deck would be an inconvenient method of accessing their deck. In conclusion, Mrs. Hornyak stated that the variance request did meet the necessary variance findings due to the steep topography, and the existence of other structures in the area which appeared to be in violation of the R-6 Zoning Standards.
After completion of the public testimony, the Commission inquired about the status of other variances in the general vicinity. Staff indicated that one variance was approved at 4172 Foster Lane, for an approximate 120 sq.ft. deck, 3 ft. above grade. The deck overlooks open space and does not appear to pose any privacy issues with neighbors. The Commission then discussed the safety of the deck and the implications of approving a deck built without permits. Staff indicated to the Commission, that if the variance request was approved, the subject deck would have to be redesigned to comply with the 2007 California Building Code (2007 CBC).
Following that discussion, a majority of the Commission concurred with the Zoning Administrator's evaluation that the required ordinance findings for this improvement could not be made, and voted (5-1-1; Battaglia dissenting; Gaddis - absent) to deny the appeal of the owners, and to sustain the denial decision.
APPEAL OF THE COUNTY PLANNING COMMISSION DECISION
On August 28, 2008, Mr. & Mrs. Hornyak filed an appeal of the County Planning Commission decision. The points of the appeal letter are summarized below together with staff’s responses:
Appeal Point #1: The appellants contend the decision was “unfair” as it appeared the Commission did not review the drawings of the deck that were submitted to all the members of the Commission.
Staff Response: It has been a policy of the Community Development Division to circulate staff reports for scheduled public hearing items approximately two weeks prior to the hearing date. A copy of the deck’s framing plan was included in staff’s report which was distributed to the Commissioners for review.
Appeal Point # 2: The appellants disagree with the Commission’s position that the lack of permits for the deck causes a potential health and safety risk. The Hornyaks contend that the photos of the deck’s framing and structural calculations prepared by an engineer should suffice as evidence of the deck’s stability.
Staff Response: Following the Planning Commission decision, the applicants submitted detailed construction plans for the project. As a courtesy to them, the County Building Inspection Division's Structural Engineer conducted a plan-check only review of the framing plans and structural calculations for the deck. Those plans also included a proposal to coat the deck with an interior coating material (Flame Stop Intumescent Paint) and an exterior version of the same type of coating material.
After reviewing the plans, the Structural Engineer concluded that:
- The project must comply with the 2007 California Building Code (2007 CBC) and Contra Costa County Ordinances.
- The plans and calculations that were submitted fail to meet these code requirements. If the variance were granted, to meet the building code standards, the structural engineering of the deck would have to be redesigned. The entire western edge of the deck (42+ feet in length) may have to be removed and rebuilt.
- Neither of the proposed coating materials would meet the design standards of the building ordinance.
- Additionally, a one-hour fire rated wall may be required to be constructed up to the walking surface of the deck (11 feet tall).
- The addition of a firewall could further reduce the proposed side yards, and aggravate the variance condition from what has been proposed to date (that is, reduce the side yard setback to less than the 1-foot setback that is proposed/exists).
- Not only would firewall and foundation additions to the deck encroach further into the side yard setback than what has been proposed to date, but it is not clear that there would be room for these improvements on the applicants' property. To provide for them may require significant redesign of the existing deck.
- Unlike zoning design standards, the building code design standards cannot be varied.
Moreover, in a memorandum dated October 20, 2008, the Structural Engineer summarized what would be required for the deck to comply with the building code.
a) “A 1-hour fire rated wall with no openings will be required where the edge of the deck is within 3 feet of the property line. The wall shall extend from a continuous foundation at the base to at least the top of the deck surface”.
b) “If the 1-hour fire rated wall is not provided, the portion of the deck within 5 ft. of the property line must be noncombustible materials, heavy timber construction or fire-resistant treated wood”.
c) “All work shall conform to the 2007 California Building Code (2007 CBC) and Contra Costa County Ordinances”.
d) Structural calculations by an engineer or architect licensed in the State of California will be required for the deck, privacy screen and railing”.
Appeal Point # 3: The appellants contend that their proposal meets the 3 variance findings necessary for granting an approval.
Staff Response: In a supplementary appeal package dated September 15, 2008, the appellants provided additional arguments as to why they believe the variance request meets the necessary three variance findings. The appellant’s arguments and staff’s response are below:
a) Required Finding – Variance authorized shall not constitute a grant of special privilege.
The applicant argues that “Special privilege does not require that others receive exactly the same privilege as the applicant, but only that the privilege be comparable to what others either currently have or have received from the County through the variance process”.
Staff Response: The County does not make a determination to approve or to deny a variance request based solely on precedence, but rather on individual, project specific circumstances. As previously discussed, staff was able to identify one variance that was approved for 4172 Foster Lane. The approval was for an approximately 120 sq.ft. deck, 3 ft. above grade which overlooked open space and did not appear to have any privacy issues. Staff contends the two variance applications are not similar as this request essentially places the Hornyak’s deck on the property line. Thus, approval of the variance request could be a grant of special privilege inconsistent with the limitations of other properties in the immediate vicinity.
b) Required Finding – Because of special circumstances involving lot shape, size, topography, location and surroundings, the strict application of the zoning would deprive the property of rights enjoyed by others.
The appellant states the subject lot is narrow and steep, thus dictating the placement of the deck.
Staff Response: Staff concurs with the appellant the subject lot is narrow and steep; however, according to the plans submitted with the application, the lot is not substandard in width, length or area. The lot has steep terrain; however; the slope of the property does not dictate the positioning of the deck within the required setbacks. According to aerial photos and staff’s site visit, two adjacent properties with similar topography have decks that appear to meet the required minimum sideyard setback (See attached aerial photo).
c) Required Finding – The Variance shall meet the intent and purpose of the land use district.
The appellant states, “There appears to be no conflict between the applicant’s position and staff – the variance would substantially meet the intent and purpose of the R-6 regulations provided the other two findings are made”.
Staff Response: Both the Zoning Administrator and the County Planning Commission have determined that the project does not substantially meet the required variance findings.
Appeal Point # 4: The appellant contends the Commission was overly concerned about the 8’6” privacy fence that was constructed atop the deck’s walking surface. The appellant goes on to state the neighbor at 4196 Foster Lane agreed to have the privacy fence placed upon the deck’s surface.
Staff Response: The County Planning Commission raised several concerns regarding the aesthetics of the subject deck. One concern raised by Commission members was the need for such a large fence atop the deck. As a standard practice, the Community Development Division reviews all new decks which are proposed to be 18 inches or more above grade. During this review process, deck proposals are reviewed for consistency with all applicable zoning standards (setback requirements). The design is not reviewable, unless, the application is subject to a Small Lot Occupancy design review. County Ordinance 82-10.002 (c) (Small Lot Design Review), requires the project to be aesthetically consistent with the neighborhood; however, this application is not subject to this ordinance.
Appeal Point #5: The appellants contend that they have not been given an opportunity to completely state their situation.
Staff Response: Both Mr. and Mrs. Hornyak testified at the Tuesday, August 26, 2008, County Planning Commission hearing. Their testimony has been summarized in the discussion above. See Attachment E.
CONCLUSION
The appeal points are similar to what were presented to the County Planning Commission and offer little new information. The project as proposed does not conform to the development standards as required by the R-6 Zoning/SH General Plan designations. Therefore, staff recommends that the Board of Supervisors deny the appeal of John and Jerilyn Hornyak and sustain the County Planning Commission’s decision.
ALTERNATIVE BOARD ACTION
Should the Board determine that the project has merit and that all required ordinance findings can be made, attached are suggested findings on which a Board approval might be based, and appropriate conditions of approval for the project.
To approve the project, the Board should adopt a motion to:
1. Find that the proposed project is categorically exempt from the review requirements of the California Environmental Quality Act - Class 3 (New construction of a small structure).
2. Grant the appeal of John and Jerilyn Hornyak.
3. Approve the Variance Application File #VR08-1008, subject to the attached conditions.
4. Adopt the findings which are included with the conditions of approval as the basis for the approval.
5. Direct staff to file a Notice of Exemption with the County Clerk.
Adjustments to Side Yard Standards to Accommodate Improvements that May be Required to Meet Building Code
In the discussion above, it was noted that the alterations that may be needed to comply with the building code may require firewall and foundation improvements located closer to the side property line than what is shown on the application site plan. To try to accommodate such an adjustment without the need for approval of an amended variance permit, the suggested conditions allow for greater flexibility in the side yard standards for this project than is reflected in the application site plan.
Instead of the proposed minimum side yard of 1-foot, the suggested permit would allow a zero-foot side yard.
Instead of the proposed aggregate side yard of a minimum 11-feet, the suggested permit would allow an aggregate side yard of a minimum 10 feet.
The legal notice for this hearing has accommodated this adjustment to what was proposed.
Aruna Bhat, Department of Conservation and Development, presented the staff report.
Chair Bonilla opened the public hearing. The following spoke in favor of granting of the variance:
John and Jerilyn Hornyak, applicants; Nancy Samuel, neighbor; Lisa Sias, neighbor.
Chair Bonilla closed the hearing.
Supervisor Gioia said he had visited the property and recognizes that there is unique topography in the area and that many homes have a deck. He noted that the El Sobrante Valley Zoning and Planning Advisory Committee had no objections to granting the variance if the building code requirements were met. He further noted that the aplication for variance and the permitting process are separate functions.