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 material costs associated with the application processing.
This staff report has been prepared on an appeal filed by neighbors of a County Planning Commission decision to approve a minor subdivision application, County File #MS07-00024. The application includes a vesting tentative map which divides the subject one-acre lot into a parcel and a remainder, removal of 15 code-protected trees and installation of the necessary access and stormwater control improvements. The appellants have expressed concerns regarding the aesthetics, tree impacts and Zoning Code compliance of the project. Prior to filing the current appeal, the appellants have previously presented those concerns to both the Zoning Administrator and County Planning Commission. After completing its hearing, the County Planning Commission determined that the conditions of approval for the project that were imposed by the Zoning Administrator are reasonable, and sustained the Zoning Administrator approval decision. The Commission also determined that the neighbors' appeal did not have merit and denied it.
ENVIRONS AND SITE DESCRIPTION
The site is within an area of Alamo, which consists of lots zoned for single-family residential use. Lots in this area tend to be 20,000 square feet or larger. The site is approximately one-acre (43,560 square feet) in size and is rectangular in shape. Site access is provided by Lunada Lane which is a public road. The site’s topography ranges between steep slopes on the far northwestern corner to relatively flat where the potential new lot/residence would be located. Twenty nine trees are reported to be on the site, totaling seven different species and varying sizes. A row of valley oak trees and a redwood fence provide a visual break between the rear of the property and the Iron Horse Trail. Onsite development currently consists of one single-family residence, an accessory structure, and two small sheds.
MARCH 9th & 23rd 2009, ZONING ADMINISTRATOR HEARINGS
This subdivision application was initially heard at the March 9, 2009 Zoning Administrator hearing. After opening the public hearing, the Zoning Administrator took testimony from the applicant's legal representative (applicant) as well as the appellant. After completion of the public testimony, the Zoning Administrator closed the hearing and continued the matter to March 23, 2009 for a decision.
At the March 23rd hearing, the Zoning Administrator approved the subdivision request subject to modified conditions of approval (attached). As part of those modifications, the Zoning Administrator elected to add several tree protective measures to the project. Additionally, the Zoning Administrator required that those conditions be met prior to the filing of the parcel map.
Following that decision, two neighbors (Newlins and Zarlings) appealed that decision to the County Planning Commission. It should be noted that the applicant, reached a settlement with the Zarlings prior to the scheduled October 13, 2009 hearing. However, no settlement was reached with the Newlins, and staff scheduled a hearing on their appeal.
OCTOBER 13, 2009 COUNTY PLANNING COMMISSION HEARING AND DECISION ON NEIGHBORS' APPEAL
At the October 13, 2009 County Planning Commission hearing, staff reviewed the appeal of the Zoning Administrator decision, but recommended that it be denied and that the Zoning Administrator decision be sustained. The staff report reviewed several arborist reports that had been prepared on the project.
The Commission considered this appeal acting in its role as the Appeals Board. The Commission received testimony from the applicant’s legal counsel, and then from the appellant, Mr. Newlin. Mr. Newlin objected to:
• The project's potential negative effect of soil compaction on the root system of his two valley oak trees due to the installation of the proposed driveway to serve Parcel A;
• The area encompassed by the proposed driveway should not be counted toward the overall area calculation of the two resulting parcels;
• That a Cedar tree (#578 in Hobbs Arborist Report, attached), is actually on his (Mr. Newlin's) property although on the Konrad's side of their common fence, and should not be removed as part of this application.
After accepting the public testimony and closing the hearing, the Commission concurred with the staff recommendation, and unanimously voted to deny the appeal and sustain the Zoning Administrator's approval of the minor subdivision application.
APPEAL OF THE COUNTY PLANNING COMMISSION DECISION
Following the Commission's decision, the Newlins filed an appeal of that decision. In the appeal letter dated October 23, 2009, the appellants reiterate the points presented during the 2009 Zoning Administrator and County Planning Commission hearings. Below is a summation of the appeal points and staff’s response to those appeal points:
1. Summary of Appeal Point “Tree Protection”: The appellant contends that the planned driveway will be detrimental to the two large valley oak trees directly north of the proposed driveway. As part of the appeal package, the appellant included an arborist report dated March 19, 2009, prepared by E.L. Hobbs Company. In that report, Mr. Hobbs states that the valley oak trees are in good health. He concludes that the planned improvements will be particularly stressful to Trees #1 (18-inch Western Red Cedar) and #2 (21.5-inch Coastal Redwood), which are located on the appellants' property.
Staff Response: Two separate arborists retained by the applicant have evaluated and reported on the potential impacts that the proposed driveway may have on Trees #1 and #2. The arborist report prepared by Mr. Yniguez included several mitigation measures that are intended to specifically reduce the likelihood that installation of the driveway may damage the appellants' trees. Two examples of protective measures are: the use of a pervious driveway material which allows water to reach the tree's root system, and secondly, the use of an "air spade". An "air spade" allows a contracter to expose roots safely to prevent unneccessary damage to the tree.
The County Planning Commission concurred with the Zoning Administrator and required these measures to be added to the improvement plans for this subdivision as a condition of approval. In addition, the conditions required that a qualified arborist be present to oversee any construction activity within the area surrounding the two valley oak trees. It was determined by the County Planning Commission that these measures were sufficient to protect the subject trees and that no other tree protection measures were required.
2. Summary of Appeal Point "R-20 Minimum Requirements": The Appellants contend the area within the proposed access easement should be deducted from the overall square-footage of parcel A and remainder parcel.
Staff Response: County Code Section 82-4.244(c), states “Right of way Excluded. No part, nor all, of a lot within a public road, street, highway, right-of-way, or easement, for vehicles or pedestrians, existing or proposed, shall be used to satisfy minimum area, yard, dimensional or coverage requirements.” As highlighted, this section of the County Code strictly applies to roads that are maintained by a public entity. A privately-maintained road such as the one proposed with this project does not constitute a public road. Rather, the private road would be limited to accessing Parcel A and is not a public right of way. Thus, the square-footage of the access easement is not subtracted from the gross area calculation of either lot.
3. Summary of Appeal Point “Vegetative Screening/Landscape Plan”: The Appellants contend that the required landscaping plan is insufficient for the project.
Staff Response: No analysis or evidence is offered to support this appeal point. The Zoning Administrator and County Planning Commission have both reviewed the requirements of the Planting and Irrigation Plan (COA #8 (a)) and have determined that the required six 15-gallon coast live oak trees and eight 1-gallon shrubs, are sufficient as mitigation for the project's effects on existing plants. Additionally, the Zoning Administrator modified this condition to require that the Landscape and Irrigation Plan be prepared by a licensed arborist or Landscape architect. The plan would have to be submitted for review and approval of the Zoning Administrator prior to the filing of the Parcel Map.
ADDITIONAL CONCERNS OF THE APPELLANT
As part of the appeal package, Mr. Newlin included a written statement that was submitted to the County Planning Commission at the October 13, 2009 public hearing. Within that letter, the appellant raises the following concerns:
1. Concern " Restitution for Tree Damage": The appellant is concerned that the effects to oak tree number one and two may take up to five years to be evident after the installation of the driveway. The appellant proposes to extend the time period for restitution (should the trees be damaged) to at least 5 years (currently 2 years).
Staff Response: Both the Zoning Administrator and Planning Commission approved the two year tree restoration bond length requirement which is consistent with the landscape improvement security provisions in the County Tree Protection Ordinance.
2. Concern "Supervising Arborist": The appellant requests that a mutually agreed upon arborist be present at the site during construction activities and impose specific penalties if construction continues when no arborist is supervising.
Staff Response: Imposing this condition would not be appropriate insofar as it may give control over the project to the neighbor and not keep the administration of the project between the County and the applicant.
APPELLANTS' HERITAGE TREE NOMINATION APPLICATION, COUNTY FILE #HT08-0003
Mr. Newlin has filed a Heritage Tree Nomination application with the County, File #HT08-0003, in an attempt to affect the processing of this minor-subdivision application. That Heritage Tree application refers to two valley oak trees on Mr. Newlin's property (Trees #1 ) and one other valley oak tree (Tree #3) at the subdivision site (see attached tree location map). The three Valley Oak trees range from 25 to 45-inches in diameter and are reported to be in good health. Tree #1 and #2 are located on the Appellants' property and Tree #3 is located at the northeast corner of Mr. Konrad’s property (see attached tree map).
Provisions of the Subdivision Map Act Pertinent to this Application
As detailed in the attached Zoning Administrator and County Planning Commission staff reports, Section 66474.2 (a) of the Subdivision Map Act requires that the "local agency shall apply only those ordinances, policies, and standards in effect at the date the local agency has determined that the application is complete". This subdivision application was filed with the County in November of 2007 and was deemed complete on March 28, 2008 (four months prior to the filing of Mr. Newlins Heritage Tree application, July 30, 2008).
Furthermore, Mr. Newlin's Heritage Tree application was not approved by the Board of Supervisors prior to this subdivision application being deemed complete. Thus, the Heritage Tree application is not applicable to the review of this subdivision application per state law.
It should also be noted that the three valley oak trees are considered protected under the County’s 1998 Tree Protection Ordinance. That protected status provides the subject trees with an equivalent degree of protection that a Heritage Tree designation would provide. Hence, there is no material difference in the County's review of the project as the trees are currently protected and are not proposed to be removed.
County Planning Commission 10/13/2009 Hearing on Heritage Tree Nomination
Per the Heritage Tree Preservation District Ordinance, the County Planning Commission must first determine if there is merit in a Heritage Tree application and if the Commission makes that determination, nominate the designation to the Board of Supervisors. On October 13, 2009, the County Planning Commission conducted a hearing on Mr. Newlin’s Heritage Tree application.
It should be noted that this hearing was scheduled for the same meeting that the County Planning Commission heard and denied Mr. Newlin’s appeal of this minor subdivision . As a result of that decision, Mr. Newlin left the hearing chambers prior to his heritage tree nomination application being opened for public comment. Nevertheless, the applicant of this subdivision application remained at the hearing. He testified that Mr. Konrad supports the nomination of Trees #1 and #2, but is in opposition to the nomination of Tree #3 which is located on his property. The Applicant testified that Tree #3 has been severely trimmed in the past and has begun to lean precariously toward Mr. Konrad's property. Mr. Konrad's concern is that, if the tree were to receive a heritage status and becomes a safety hazard in the future, that Heritage status would make it more difficult to address.
Upon the conclusion of public testimony on that Heritage Tree application, the Commission continued the hearing to January 26 to allow Mr. Newlin an opportunity to testify on behalf of his request.
DISCUSSION
The subdivision request:
- Is consistent with the Single Family Residential - Low General Plan designation and the Single Family Residential, R-20 Zoning standards for the site;
- As conditioned, contains tree protection measures aimed at specifically preserving the health of the three valley oak trees near the project site; and
- Includes conditions that require the applicant to produce a landscaping plan intended to provide additional vegetative screening between the appellant’s property and the subject site.
Staff also understands that the Applicant and Appellants were trying to see if a settlement could be reached. However, at the time of preparation of this report, staff has received no word on from these parties that a settlement has been reached.
Statutory Time Limits that Apply to Processing of Appeals of Subdivision Decisions, and Caution Should be Exercised Prior to the Board Considering Closing the Hearing on this Appeal
The Map Act imposes time limits on the County and other local agencies on the processing of appeals of subdivision decisions. Government Code section 66452.5 (d)(1) provides that any interested person adversely affected by a decision of the appeal board (Planning Commission) may file an appeal with the Board of Supervisors concerning any decision of the appeal board. Normally, the State law would require that this appeal be scheduled for hearing within 30 days of the receipt of the appeal (in this case, by November 22, 2009). However, pursuant to Government Code section 66451.1 (a), the Applicant and the County mutually agreed to delay an initial hearing on this appeal to January 26, 2010.
Government Code section 66452.5 (d)(2) provides that upon conclusion of the hearing on an appeal, the Board of Supervisors shall, within 10 days declare its findings based upon the testimony and documents produced before it. Pursuant to Government Code section 66452.5 (c)(2), if the Board fails to act upon an appeal within this time limit, this law provides that the tentative map, insofar as it complies with applicable requirements of the Map Act and the Subdivision Ordinance, shall be deemed approved or conditionally approved as last conditionally approved by the Planning Commission, and it shall be the duty of the Clerk of the Board to certify or state that approval.
The Board may sustain, modify, reject or overrule any ruling of the appeal board and may make any findings that are not inconsistent with the Map Act or the County Subdivision Ordinance. The Board may also continue the hearing on the appeal.
To avoid a potentially undesirable and automatic approval, the Board should exercise caution prior to closing the hearing on this appeal.
CONCLUSION
The appeal points are similar to what were presented to the Zoning Administrator and County Planning Commission and offer little new information. The project as proposed conforms to the development standards as required by the R-20 Zoning District and SL-General Plan designations. Therefore, staff recommends that the Board of Supervisors deny the appeal and sustain the County Planning Commission’s decision.
Appeal WITHDRAWN, No action required.