Based on a request by the owner, this application was continued from November 10, 2009 to December 8, 2009 to allow the owner’s new counsel sufficient time to become familiar with the details of the project. Staff also understands that the owner’s counsel has contacted the Blackhawk Homeowner’s Association seeking arbitration. The owner’s counsel has requested that the Board continue this item until such time as the arbitration is resolved. The Blackhawk Homeowner's Association has indicated that they do not support the request to continue the matter as the issues between the Homeowner's Association and the Singhs are unrelated to those of the County.
This is an appeal of the San Ramon Valley Regional Planning Commission's (SRVRPC) decision to deny a proposal to modify the Blackhawk Final Development Plan to allow a deck that has been built beyond the subject property's boundaries within an area designated as open space. The proposal concerns an elevated deck that has been constructed adjacent to a rear yard swimming pool. The resident of the adjoining lot, 101 Wild Oak Court, obtained a building permit for this improvement from the County. After a survey was prepared, it was determined that the deck had not been built in the location that had been represented in the application for the building permit. It had been built in an area where no structural improvements are permitted by the zoning and deed restrictions.
The owner of the residence filed this application to allow the existing deck improvements to remain, and is presently seeking to have the Commission decision overturned. Unless the Board takes that action, the owner will be required to remove the deck improvements.
Environs and Site Description
The Blackhawk residential community largely consists of graded estate lots on rolling terrain that are separated by common open space belts. These belts create separation of private residential activity and rear yard open space views.
The site is located to the rear of the residence at #101 Wild Oak Court. The subject private residential lot has an area of 18,787 square feet with a residence with a floor area of 6,774 square feet. The site has a graded pad that extends near the rear property line. The rear of the lot contains a pool and large patio area.
Beyond the edge of the pad and rear boundary of the lot, the terrain slopes downward. The sloping terrain constitutes the common open space and spans the entire length of the rear boundary. The fee title to this area is held by the Blackhawk Homeowners Association (HOA). This hilly open space abuts the other residential properties in the area. This is the area where the deck has been constructed.
Background
The Blackhawk project was created under the Planned Unit (P-1) zoning district with the County’s approval of a Final Development Plan. That project established residential lots and open space areas. Title to the open space areas is divided between the Blackhawk HOA and the Blackhawk Country Club.
At the time of the establishment of the subdivision in 1981, the subdivider conveyed to the County a Grant Deed of Development Rights (GDDR, or so-called “scenic easement”) for the common open space areas. That instrument prohibits any development without the approval of the County. Moreover, in recognition of the purpose of the common open space areas, the General Plan designates them with an open space land use category, Parks and Recreation (PR).
Concern that Residential Development Outside Lot Boundaries May Compromise Original Blackhawk Design Concept
From the beginning of the Blackhawk project, some residents have sought to expand the area of their private lots by extending private improvements into the common open space areas to the rear of their properties.
The continuation of private residential development incursions into the project open space area (e.g., decks such as this one, extension of padded yards supported by retaining walls), if left unchecked, would compromise the original intent of the Blackhawk Final Development Plan. To address this concern, over the last twenty years, staff has successfully worked with both the Blackhawk Homeowners Association (HOA) and the Blackhawk Country Club to stem these incursions into the common open space areas of the project.
1999 Amendment to the Blackhawk Final Development Plan to Allow “Expanded Residential Use” of Several Residential Lots
In 1998, with the support of the HOA, several homeowners applied to the County to amend the Final Development Plan (File #DP98-3022) to allow both lot line adjustments and landscape easements within the common open space area adjoining the respective rear yards of their properties. In making this request, the HOA indicated that it would be working with the County to otherwise maintain the integrity of the Blackhawk FDP, and to curtail further residential lot incursions into the open space area.
Changes to 101 Wild Oak Court Property
The property at 101 Wild Oak Court was one of the residential lots that had been proposed to be altered by both:
• A sliver transfer of real property from the adjoining common open space as an addition to the residential lot to facilitate construction of a proposed rear yard swimming pool; and
• A private landscape easement for a much larger, semi-circular area within the common open space.
At that time, 101 Wild Oak Court was owned by another party (Jensen).
After providing for public notice and reviewing the matter, on October 21, 1999, the Zoning Administrator approved the proposed uses, subject to conditions. Subsequently, the Board of Supervisors authorized the alterations to the restrictions of the scenic easement that had been approved by the Zoning Administrator.
Subsequently, the HOA conveyed both the sliver real property as an addition to the residential lot and a landscape easement to the owner of 101 Wild Oak Court as authorized by the Zoning Administrator and by the Board of Supervisors. The landscape easement instrument specified that no permanent structures were permitted in the landscape easement, and no improvements could be constructed without the approval of the HOA’s Architectural Review Committee.
2006 Building Permit for On-Site Rear Yard Deck, and Discovery of Misrepresentation in Permit Application
In 2006, the current property owner, Mr. Singh, obtained a building permit to construct a deck to the rear of the residence (Permit #393301). Prior to issuing the permit and obtaining planning clearance, the applicant for the owner, Mr. Garrison, certified to the County on the building permit site plan that “the plans accurately reflect the physical constraints and/or characteristics of the site, e.g. showing all … easements.” The building permit site plan showed the whole of the proposed deck to be located within the boundaries of the private residential lot, and setback a minimum 15 feet from the rear property line.
After construction of the deck had commenced, the County required a survey to verify the location of the deck with respect to the property line and other applicable title interests. That survey showed that the deck had not been constructed in the location indicated on the building permit site plans. It had been constructed outside the boundary of the residential lot within the common open space parcel owned by the HOA. Staff also discovered that the building permit site plan had not shown the location of the landscape easement where the deck had been built. These errors constitute a misrepresentation in the application for a building permit. The building code authorizes the County Building Official to revoke or suspend a building permit at any time for fraud, misrepresentation or false statement contained in the application for a permit. (CCC Ord. Code, § 72-6.006)
After discovering the misrepresentation in the permit plans, the building inspector advised the owner that to correct the violation, the owner would need to either:
• Remove the deck improvements;
• Obtain zoning clearance from planning staff for the proposed deck based on a revised and corrected plot plan; or
• If existing zoning regulations do not allow the deck, and if allowed by planning staff, apply for and obtain approval of a development permit that might allow the proposed deck to remain.
In the latter course, pending a final decision on the development permit application, the building inspector advised the owner that he would allow the deck to remain in place during the processing of an application only if improvements were made to the deck to eliminate any hazard associated with its uncompleted condition. The building inspector indicated that he would allow the floor boards on the deck to be installed to mitigate the risk but that the entirety of the deck would have to be removed if the development permit were not granted.
Resident’s Development Permit Application Seeking to Allow Existing Deck to Remain
After planning staff advised Mr. Singh that the existing deck does not comply with the Blackhawk Final Development Plan, on July 22, 2008, Mr. Singh filed an application to modify the Blackhawk Final Development Plan to try to allow it to remain. The proposed deck has an area of approximately 1000 square feet and is up to 11-feet in height (measured to the top of the hand railing). The portion of the property that the deck is constructed on is at a higher elevation than many of the surrounding properties.
The current site plan shows that most of the existing deck is contained within the boundaries of the 2000 landscape easement, but portions of the deck extend beyond the easement boundary. It should be noted that the owner has no access (property) rights outside of the easement boundary. Moreover, the HOA remains the underlying fee owner of this real property.
On the application form, Mr. Singh identified himself as the owner of the property. The application was not signed by a representative of the HOA.
2008 San Ramon Valley Regional Planning Commission Hearings and Decision on Proposal
This application was initially scheduled for hearing before the San Ramon Valley Regional Planning Commission on October 22, 2008. Staff reported that the HOA had informed staff that the construction plans the HOA had reviewed for the building permit application had misrepresented the location and size of the deck.
Staff also identified for the Commission the ordinance findings that must be made before the County may grant a modification to the final development plan. Staff indicated that the applicant had not provided sufficient evidence to permit staff to recommend that the Commission make those ordinance findings. Consequently, staff recommended that the Commission deny the application.
After receiving the staff report, the Commission began the hearing on the application. The Commission received testimony from the applicant, and from the legal counsel for the HOA who oppose the granting of the application. After completing the testimony, the Commission continued the hearing to December 3,2008:
• To allow the applicant’s contractor and several neighbors an opportunity to testify who were not able to testify at the first hearing; and
• To have staff provide more information about the restrictions of the Grant Deed of Development Rights.
At the continued hearing, staff informed the Commission that the 1981 Grant Deed of Development Rights conveyed the development rights in the common open space areas of the Blackhawk project to the County. The instrument also defines “development rights” as “the right to approve or disapprove any proposed construction, development, or improvement which would substantially and materially change the nature of the current proposed use of said real property.” Staff also found nothing in that deed instrument that permits the construction of any private residential deck, including the one that has been built by the Singhs.
After completing the public testimony and closing the hearing, on December 3, 2008, the Commission concurred with the staff recommendation, and unanimously voted to deny the application.
Applicant’s Appeal of Planning Commission Denial Decision
In a letter dated received December 11, 2008, Sandy and Vinita Singh filed an appeal of the decision of the Planning Commission.
Review of Points Raised in Applicants’ Appeal Letter
The reasons given by the applicants for granting their appeal are similar to the ones they made to the Planning Commission when it heard their application.
A summary of those appeal points follows with a staff response:
1. Summary Of Appeal Point: The appellants contend the majority of the deck is constructed within the landscape easement granted to them by the Association and not the area designated as open space.
Staff Response: The majority of the deck is located within the landscape easement. However, the landscape easement is located entirely within the HOA’s open space area in which the County continues to retain development rights for approving or denying development within the area of the landscape easement.
In addition to the restrictions of the Grant Deed of Development Rights, the Planned Unit district ordinance provides that no person shall erect any structure on any land except when in compliance with an approved final development plan and/or this chapter. (CCC Ord. Code, § 84-66.404)
2. Summary of Appeal Point: The appellants contend that the easement stipulates that no structure can be built within the easement unless the Association approves the development, and that the appellants received authorization from the Association prior to constructing the deck.
Staff Response: The County does not administer the deed instruments executed by the HOA, and cannot base its decision on this appeal on how the private easement has been administered by the HOA.
However, the applicant does not appear to have accurately cited the provisions of that private instrument. The 2000 Grant of Easement instrument stipulates that “no permanent structure … may be installed, constructed or maintained” in this area. It also provides that “no improvements may be constructed” in this area unless they have been approved by the HOA Architectural Review Committee. Staff assumes that this wording was intended to circumscribe the types of improvements that could be allowed in this area to landscape/irrigation improvements.
Staff has found no provision in the Grant of Easement instrument that allows a deck or other permanent structures to be built in that area. In any case, the deck is not permissible unless:
• The County were to find it consistent with the Final Development Plan, and
• The Board of Supervisors approved a request from the property owner (HOA, not the Singhs who only possess an easement to allow landscape improvements in this area) to construct a deck in this County deed-restricted area.
3. Summary of Appeal Point: The appellants contend that the County building inspector/code enforcement officer verbally authorized the deck contractor to complete the walking surface of the deck after all the facts about the location of the deck were well known.
Staff Response: When staff discovers a code violation, to the extent that it may be possible to correct the violation within the terms of the code, the County will normally provide a property owner the opportunity to pursue that administrative remedy, including pursuit of a development permit. The County will also try to avoid requiring the violation to be removed until a final decision on an application is rendered. However, while an application is in process, the County may require/allow continued improvement on a structure to eliminate a hazard.
In this case, after the code violations were discovered, the Building Inspector determined that the open framing of the deck constituted an unacceptable risk to public health and safety, and allowed the installation of the walking surface of the deck. However, that authorization does not obviate the need to obtain other required County approvals, and if those approvals are not approved, the deck would continue to be in violation, and must be removed.
4. Summary of Appeal Point: The appellants contend that they were not aware of the location of the property line, and that they assumed that their rear property line coincided with the location of the fence. They only learned about the easement at a later date.
Staff Response: It is the owner’s responsibility to accurately depict the property on which development activity is proposed. It was their responsibility to investigate the boundaries and limitations in their real property title before proposing improvements to the County.
DISCUSSION
The proposed deck:
• Is not consistent with General Plan open space designation for the site;
• Does not comply with the Blackhawk Final Development Plan as amended (zoning regulations), including the 1999 FDP Amendment that authorized the conveyance of a landscape easement for this property; and
• Is not a use that is permitted by the existing 1981 Grant Deed of Development Rights that continues to apply as an encumbrance to this site. It would only be permitted if the Board of Supervisors were to authorize a request by the property owner, the HOA, to place it in this area.
A. Review of Required Findings for Granting a Modification to the Final Development Plan
The 2006 application for the building permit for the deck misrepresented the boundaries of the property and failed to disclose the existing landscape easement. Had the information about site boundaries and easements been accurately depicted at the time of the application, County staff would have been able to determine that the proposal did not comply with the Blackhawk Final Development Plan, and no building permit would have been issued.
The P-1 ordinance stipulates that before a final development plan may be modified, the hearing body must find that (1) the proposal is consistent with the intent and purpose of the P-1 district, and (2) the proposal is compatible with other uses in the vicinity of the district. [CCC Ord. Code, § 84-66.1804 (b)].
The appeal letter from the applicant still does not show sufficient evidence that would support making either of the required findings for this project. To the contrary, approval of this project would conflict with the concept of the Final Development Plan to leave open, undeveloped area separating the graded residential building sites. Approval of this project may encourage other residents to pursue similar private residential development within the common open space area, with the result that the undeveloped area separating private lots would be significantly reduced. By allowing substantial improvements to the rear of the property, the County may also encourage larger residences to be built with smaller on-site yards than was intended by the original Final Development Plan.
The elevated deck also reduces the privacy and rear yard open space views of nearby residential properties. Consequently, it would not be appropriate for the Board to find that the project is compatible with nearby residential development.
In consideration of these concerns, the Board should sustain the Planning Commission denial of this application, and deny the applicants’ appeal.
B. The Board Should Direct Staff to Initiate Code Enforcement Action
Should the Board deny the appeal, the Board should also direct staff to initiate appropriate code enforcement action that would require the applicant to remove the deck improvements.
CONCLUSION
The appeal points are similar to the ones presented to the San Ramon Valley Regional Planning Commission and offer little new information. The project as proposed does not conform to the development standards as required by the Planned Unit/SL General Plan/Parks and Recreation designations. Therefore, staff recommends that the Board of Supervisors deny the appeal of Surainder & Vinita Singh and sustain the San Ramon Valley Regional Planning Commission’s decision.