HomeMy WebLinkAboutMINUTES - 12021997 - D17 D. 17
THE BOARD OF SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on December 2, 1997, by the following vote:
AYES: Supervisors Rogers, Uilkema, Gerber, Canciamilla and DeSaulmer
NOES: None
ABSENT: None
ABSTAIN: None
This is the time noticed by the Clerk,of the Board of Supervisors for the hearing on
the appeal by Eagle Rock Financial (Applicant) and G.W. Scatena (Owner), from the decision
of the San Ramon Valley Regional Planning Commission (acting as the Board of Appeals
from the decision of the Zoning Administrator), on an application to approve a request for a
tentative map approval to subdivide a portion of an 18 acre parcel into two parcels with a
variance to allow Parcel B to be 4.3 acres in area (minimum 5 acres required). The applicant
has proposed parcels that comply with the minimum parcel dimension. (County File #MS 96-
0016), Alamo area.
Dennis Barry, Interim Community Development Director, and Heather Ballenger,
Public Works Department, presented the staff reports.
Ms. Ballenger noted that Condition 24 should read that the design speed would be 15
miles per hour on Via Del Gado from Alamo Ranch Road to the proposed access to Parcel B.
Mr. Barry advised that in Option II1, the Board could add conditions in terms of
development criteria for the omitted parcel, but only with the consent of the applicant under
the Subdivision Map Act.
The Board discussed the issues.
Supervisor Gerber requested that Victor Westman, County Counsel, comment on the
ramifications of what could happen if the Board denied the minor subdivision application.
Mr. Westman advised that the applicant may not then be able to build a residential
structure on Parcel B, which may lead to further legal concerns.
The public hearing was opened, and the following people presented testimony:
Gerry W. Scatena, applicant, Alamo;
John Henderson, Alamo Improvement Association, 2445 Southview Drive, Alamo.
All persons desiring to speak having been heard, the Board discussed the matter.
Supervisor Gerber moved to leave the hearing open; that the Board declare their intent
to approve the application subject to amended Conditions; that the Community Development
Department staff report back to the Board on January 13, 1998, with specific findings
including encompassing all of the property into two parcels; that on Parcel B, the building
height be limited to 25 feet for ridgeline mitigation; and that Condition 24 be amended as
recommended by the Public Works Department.
Dennis Barry inquired if the motion included the Conditions already recommended in
the staff report. Supervisor Gerber stated they were included.
1
Supervisor Rogers inquired if the motion included the eight acres in the two parcels.
Supervisor Gerber stated that they were included.
IT IS BY THE BOARD ORDERED that the hearing is CONTINUED to January 13,
1998, at 2:15 p.m.; and staffs recommendation Option III (attached as Exhibit A, the
November 11, 1997 staff report) is APPROVED as amended.
I hereby certify that this is a true
and correct copy of an action taken
and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED
Phil Batchelo Cler c of the Board
L"4ii�
0 County mistrator
BY
Barbara S.rraobeputy Clerk
cc. CAO
Community Development Department
Public Works Department
2
7
'i Contra
s Costa
TO: BOARD OF SUPERVISORS °; ""'' "s� %¢�
m�. o County
FROM: DENNIS M. BARRY - •c3'
DIRECTOR OF COMMUNITY DEVELOPMENT ��ST9 couK�
DATE: November 11, 1997
SUBJECT: December 2 , 1997 Public Hearing on an Appeal by G. W. Scatena of a
Disapproval Decision of the San Ramon Valley Regional Planning
Commission concerning a proposed Minor Subdivision in the Alamo area,
County File #MS960016 (Eagle Rock Financial, Inc . - Applicant; G.W.
Scatena - Owner)
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
Adopt Option I actions listed below.
FISCAL IMPACT
None . The applicant/owner is responsible for payment of
application fees to cover all staff time and material costs of
processing the application and appeal which exceed 1200-o of the
initial application fee. The fee responsibility extends to the
applicant even if the project is disapproved by the Board.
BOARD OPTIONS
Listed below are potential options for the Board to consider in
reviewing this appeal of the Commission' s action.
Option I - Declare the Board' s Intent to Deng the Applicant' s
Appeal and Sustain the Planning Commission' s
Disapproval Decision
A. Declare the Board' s intent to Deny the Applicant' s Appeal and
Disapprove the proposed minor subdivision.
B. Direct staff to prepare proposed findings : for Board
consideration.
C. Continue the hearing on the appeal for at least 6 weeks to
allow for preparation of draft findings .
CONTINUED ON ATTACHMENT: X YES SIGNATURE _ '
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF .BOARD COMMIJ5NE
APPROVE OTHER
SIGNATURE (S) :
CTION OF BOARD ON _ APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISO
I HEREBY CE Y THAT THIS IS A
UNANIMOUS (ABSENT TRUE RRECT COPY OF AN
AYES : NOES : ACT TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: TES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact : Bob Drake [ (510) 335-12141
Orig: Community Development Depar t TESTED
CC: Eagle Rock Financial, I PHIL BATCHELOR, CLERK OF
Alamo Improvement As cation HE BOARD OF SUPERVISORS
Public Works Dep OUNTY ADMINISTRATOR
County Couns
BY DEPUTY
. ~j :\grou cdadpool\bob\ms960016 .bo
RD\
Appeal of Minor Subdivision Disapproval
by the San Ramon Valley Regional Planning Commission
Option II - Declare the Board' s Intent to Grant the Applicant' s
Appeal and Approve the proposed Subdivision
A. Declare the Board' s intent to grant the applicant' s appeal and
approve the project as approved by the Zoning Administrator
subject to modifications contained in the November 5, 1997
staff report to the San Ramon Valley Regional Planning
Commission, including adoption of related environmental
determinations and documentation.
B. Direct staff to prepare proposed findings for Board
consideration.
C. Continue the hearing at least six weeks to allow for
preparation of proposed findings .
Option III - Declare the Board' s Intent to Approve the
Application subject to Additional Restrictions
Follow Option II actions above except the Board should specify
additional development restrictions which the Board wishes to
include in any approval action (e.g. , limit development of Parcel
B to one-story development not exceeding 25 feet in height; apply
development restrictions to omitted portion of source parcel) . The
Board should also direct staff to make appropriate proposed
modifications to the conditions of approval associated with the
Zoning Administrator approval for Board consideration.
Option IV - Declare the Board Is Intent to Approve the
Application but Subject to Reconfiguration for One
Parcel Only
Follow Option II actions above except the Board should specify that
it intends to approve Parcel A only (containing the existing
residence) ; and deleting Parcel B, and requiring the area of Parcel
B to be added to the omitted area of the source parcel . The Board
should also direct staff to make appropriate proposed modifications
to the conditions of approval associated with the Zoning
Administrator approval for Board consideration.
BACKGROUND
This minor subdivision application was filed with the County in
December 1996 . It followed from an earlier rezoning and major
subdivision applications which had been filed with the County in
1990 by the same applicant involving the same site, and later
withdrawn. The project involves a hillside site in the Alamo area,
immediately adjacent to Interstate 680, and south of Stone Valley
Road. The site is also located southeast of the business district
of the Alamo community. The general plan designates part of the
site Single Family Residential - Very Low Density and part of the
site Open Space.
The background for this appeal is contained in two staff reports to
the Zoning Administrator (dated 9/8/97 and 9/22/97) and a third
staff report to the San Ramon Valley Regional Planning Commission
(dated 11/5/97) .
The applicant has proposed to create two five-acre parcels from the
higher terrain of an 18-acre source parcel; the lower portion of
the source parcel is proposed to be omitted from the subdivision
pursuant to provisions in the Subdivision Map Act . Parcel A
contains an existing residence . Parcel B is presently vacant but
contains a flat site on which a knoll had been removed, and which
the applicant has proposed as a building site. The Map Act allows
County File#MS960016
Eagle Rock Financial(A); G.W. Scatena(0)
an applicant to omit a portion of a source parcel when the omitted
parcel is not divided for the purpose of sale, lease, or financing
(ref . §66424 . 6 of the Government Code) .
Environmental Review
For purposes of compliance with the California Environmental
Quality Act (CEQA) , staff prepared an initial study which concluded
that the project might result in several environmental impacts .
However, the applicant agreed to several measures which staff
determined would mitigate the potential impacts to a less than
significant level . Based on that agreement, staff proposed a
Negative Declaration determination for this application.
Zoning Administrator Hearing
After reviewing the project, staff determined that all required
findings for approval of the project could be made and recommended
approval of the application subject to conditions. The subdivision
was initially scheduled for hearing before the Zoning Administrator
on September 8, 1997 but was rescheduled with the consent of the
applicant to allow for additional public review.
On September 22, 1997, the Zoning Administrator conducted a
hearing. At that hearing, the applicant appeared in support of the
application and the Alamo Improvement Association testified in
opposition to the project. The Association was concerned that the
subdivision should address the whole of the 18-acre parcel, and
that insufficient development restrictions had been recommended on
proposed Parcel B.
After taking testimony, the hearing was closed and the matter
continued for decision. On October 6, 1997, the Zoning
Administrator approved the application generally as recommended by
staff .
On October 16, 1997, the Alamo Improvement Association (AIA)
appealed the Zoning Administrator' s approval to the San Ramon
Valley Regional Planning Commission.
San Ramon Valley Regional Planning Commission Review
Acting as the Board of Appeals, the Planning Commission heard the
appeal on November 5, 1997 .
After taking testimony, the Commission unanimously voted (4-0 ;
Mulvihill, Ho, and Pancoast absent) to grant the AIA appeal and
disapprove the project . The Commission determined that the project
would not conform with the general plan particularly with respect
to scenic route (Circulation Element) and scenic ridge (Open Space
Element) policies . The Commission felt that allowing development
on this site is particularly difficult from a site design
standpoint because of the site' s conspicuous location relative to
several nearby designated scenic routes and lack of existing
natural vegetation that otherwise might help screen and soften the
view of the site from off-site vantage points .
The Commission also agreed with the AIA that any development
application for this site should include the whole of the 18-acre
source parcel, and provide greater restrictions than were imposed
by the Zoning Administrator to limit future development of the
site . Specific general plan policies which the Commission felt
this project would not meet are identified in Commission Resolution
#32-1997 .
-3-
Appeal of Minor Subdivision Disapproval
by the San Ramon Valley Regional Planning Commission
Applicant' s Appeal of Planning Commission Disapproval
On November 6, 1997, the applicant filed an appeal of the Planning
Commission' s disapproval decision. The applicant feels that the
Commission action was not adequately supported by evidence, and has
asked that the Board overturn the disapproval decision and sustain
the approval of the Zoning Administrator.
REQUIRED FINDINGS
The staff report to the Planning Commission identifies legal
findings which pertain to the review of this application. They
include findings which must be made in order to approve the
application. They also include findings in State law, any one of
which if made, requires disapproval of a subdivision application.
DISCUSSION
After reviewing the record in the staff report and testimony, the
Commission was convinced that there was not substantial evidence in
the record to support an approval decision of the application.
Section 26-2 .2202 of the Ordinance Code places the burden of
producing evidence to convince the County Planning Agency of
applicable regulations and general plan conformance on the
applicant . It also provides that failure to meet that burden shall
result in a denial decision.
The applicant did not meet that burden at time of the Commission
hearing. In the recent appeal of the Commission' s decision, the
applicant has offerred no new evidence as to why the Commission' s
disapproval decision should be overturned. Accordingly, the
applicant' s appeal should be denied and the Commission' s
disapproval decision sustained.
CONSEQUENCES OF A DISAPPROVAL DECISION BY THE BOARD OF SUPERVISORS
In the event that the Board of Supervisors should deny the appeal
and sustain the Commission' s disapproval decision, the applicant
may still be motivated to subdivide the site . The applicant would
have several options .
A. Refiling of the Same (or Similar) Application - The applicant
could refile the same minor subdivision application as was
disapproved. Unlike denials of a land use permit, variance or
rezoning application, there is no mandatory one-year grace
period before an applicant is permitted to refile a
subdivision application.
Of course, the applicant risks the County taking similar
disapproval action of a future application as may be taken in
this instance, and the applicant would continue to be
responsible for staff time and material costs in excess of
12001 of the initial application fee.
B. File Entitlement Applications for Ultimate Development of the
Entire 18-acre Site - The applicant could submit entitlement
applications for ultimate development of the entire 18-acre
site. Such an application may be composed in different ways :
subdivision application of the entire 18-acre parcel ; or, a
subdivision application and a rezoning of a part of the site
to a conforming single family residential zoning district
(e .g. , R-40, R-65, R-100) .
-4-
County File#MS960016
Eagle Rock Financial(A); G.W.Scatena(0)
However, in this circumstance where visual, topographic, noise
protection considerations are manifest, the preferred approach
for ultimate development of the site might be through a
rezoning to the Planned Unit (P-1) District, rather than with
conventional zoning. The P-1 approach would allow for
consideration of more detailed project information (e.g. ,
specific residential designs fitted to specific sites) than is
normally required for residential subdivision projects
processed under conventional zoning. Further, the P-1
district allows for incorporation of those designs as part of
a rezoning/project approval . The P-1 approach was applied
recently by the County and the Town of Danville in the
approval of an adjoining residential project to the south,
Alamo Springs .
It should be noted that any new application(s) would be subject to
the requirements of the California Environmental Quality Act . A
new review of any subsequent application would be required. If
staff were to determine that a new development application might
result in a significant impact, then an Environmental Impact Report
(EIR) might be required prior to consideration of any project
approval . The County generally hires a consultant to prepare an
EIR. The County fee schedule requires the applicant to bear the
full cost (including administrative costs) of an EIR.
BOARD OPTIONS
If the Board is not satisfied with the staff recommendation, then
listed above are several options which the Board could consider.
The Board could grant the appeal and approve the project generally
as approved by the Zoning Administrator with some minor
modifications (see Option II) .
If the Board felt that general plan conformity (or other required)
findings could be made if additional development restrictions were
incorporated into the project, then the Board could also approve
the project with modified conditions (Option III) . If the Board
wished, it could refer the project back to the San Ramon Valley
Regional Planning Commission for additional review of development
restrictions prior to rendering a decision on the appeal .
The Board might also reconfigure the subdivision in various ways .
For example, the Board might limit the subdivision to one parcel
only (and omitted area) . This might be configured to allow only
Parcel A (which contains the existing residence) as presently
configured, and require the deletion of Parcel B and instead have
its area added to the omitted parcel (Option IV) . Or, the Board
might require the area of Parcel A and B merged into one 10-acre
parcel . Or, the Board might require that the omitted area be added
to Parcel B.
PREPARATION OF FINDINGS
Whatever project decision the Board is inclined to make, findings
should be prepared on which to base the Board' s final decision. In
this regard, it would be helpful to have the Board express its
intent for a particular decision and direct staff to prepare
findings in accord with the Board' s intent .
LIMITED TIME TO ACT ON APPEAL ONCE THE BOARD CLOSES THE HEARING
State law provides for special consideration of appeals involving
planning agency decisions of subdivision applications . State law
allows the Board to continue the hearing of this appeal
-5-
Appeal of Minor Subdivision Disapproval
by the San Ramon Valley Regional Planning Commission
indefinitely. However, once the Board closes the hearing, Section
66452 .5 of the Government Code requires the Board to render a
decision on the appeal within 10 (calendar) days . Failure of the
Board to act within that timeframe may result in an automatic
approval of the project as conditionally approved by the Zoning
Administrator. Thus, were the Board to close the hearing on
December 2, 1997, the Board would need to act on the appeal by
December 12 , 1997, or risk an automatic approval .
-6-
W
cA 7
"ON.TRA COSTA
GERALD W. SCATENA 91 NOV 21 AM 9-- 40
1061 Via del Gato
Alamo,CA 94507COMMUNITY
510.838.1468 DEVELOPMENT DEPT
Facsimile: 510.743.1151
November 17, 1997
Mr. Dennis M. Barry, Interim Community
Development Manager
Community Development Department
651 Pine Street, 4`h Floor, N. Wing
Martinez, CA 94553-0095
Subject : MS 96-0016. Appeal of November 5, 1997 Grant of Appeal
by the San Ramon Valley Planning Commission
Dear Mr. Barry:
On October 6, 1997 the Zoning Administrator approved minor subdivision 960016. The
Alamo Improvement Association ("AIA") appealed that decision by letter dated October
15, 1997 (copy attached). The appeal hearing was heard on November 5, 1995 before the
San Ramon Valley Regional Planning Commission for November 5, 1997. The
Commission granted the appeal and denied the subdivision primarily on the ground that
the proposed map is not consistent with the scenic resources policies of the General Plan.
On November 6, 1997 I submitted a letter formally requesting an appeal before the Board
of Supervisors. The applicant's letter of appeal was written the day after the hearing and
the applicant was not then in receipt of the Commission's formal Resolution, specifying
the Commission's findings and reasoning. The letter of appeal acknowledged that fact and
respectfully reserved the right to comment upon receipt thereof. The applicant is now in
receipt of the Commission's Resolution and based upon the findings therein now states
his basis for the subject appeal.
While the Commission's Resolution is lengthy (it recited various goals, policies and
implementation measures found in the General Plan as support for its findings), the basis
for the Commission's disapproval is the potential visual impact of the one home planned
for Parcel B and a possible home on the 8+ acre omitted portion. The Commission's
findings are found on page 2 of the Resolution.
Subdiv.GW Sapp.basisltr
Regarding Parcel B
"... the Commission finds that the restrictions imposed on further development
within the subdivision (i.e., the home on Parcel B) would not be adequate to
mitigate potential view impacts ..." (Clarification added.)
Regarding the Omitted Portion
"[the Commission finds] ... that the mere existence of the omitted property without
any restrictions to mitigate potential impacts of further development including
impacts associated with off-site views would be unacceptable ..." (Emphasis
added.)
Findings reeardine Parcel B
With respect to the Commission's findings concerning Parcel B, the Commission
felt further mitigations for Parcel B were required and, thus, disapproved the
subdivision. Although the applicant encouraged the Commission to ask him
questions or comment, the Commission did not suggest or request further
mitigations and disapproved the subdivision.
It must be emphasized that staff had reviewed the application and the site for over
one year; had visited and investigated the site on numerous occasions; and, had
ultimately approved the application recommending numerous conditions designed
to mitigate the potential visual impact noted by the Commission. In addition, the
Zoning Administrator had conducted a full hearing; received the concerns by the
AIA regarding the same"potential visual impact;" had continued the hearing to
conduct her own on-site investigation; and, thereafter approved the subdivision
with the mitigations recommended by staff. Yet, notwithstanding the
comprehensive studies undertaken by staff, their findings and recommendations
and the decision of the Zoning Administrator, the Commission disapproved the
subdivision without any on-site review of its own and without any new evidence
whatsoever. Their decision was based entirely upon the"opinions" of John
Henderson of the AIA, unsupported by any expert investigation or study.
I respectfully suggest that the decision of the Commission was not based upon
competent evidence; that the evidence presented by staff clearly supported
approval of the subdivision; and, that the decision of the Commission was arbitrary
and not based upon the weight of evidence presented by staff.
Findings Regarding the Omitted Portion
With respect to the Commission's findings concerning the omitted portion, the
Commission felt that the application of Government Code 66424.6 and its result,
i.e., allowing the creation of the omitted portion as a buildable lot and "without
Subdiv.GW Sapp.basisltr
any restrictions to mitigate potential impacts," was unacceptable. Although the
applicant submitted his application in complete compliance with the law, the
Commission was displeased with the law and its result, and, thus, disapproved the
subdivision. I respectfully submit that the Commission acted contrary to law by
effectively denying the applicant his right to submit his application pursuant to
Govt. Code 66424.6.
The Commission's action penalizes the applicant for submitting his application
pursuant to Govt. Code 66424.6, a right granted by State law. The applicant
should not be penalized for acting in accordance with the law nor be denied the
benefits intended by that law. I respectfully submit that the Commission's action
is contrary to law, denying the applicant the rights and benefits intended by that
law.
CONCLUSION
Notwithstanding the applicant's bases for appeal stated above, I certainly
understand the Commission's concerns. Given the Commission's findings and the
concerns expressed in their Resolution, specifically that the restrictions
recommended are not adequate, the applicant would gladly entertain any further
mitigations, including conditions on the omitted portion, as may be recommended
by the Board. The applicant has never been asked to accept conditions on the
omitted portion. Staff and County Counsel have always maintained that conditions
could not be placed on the omitted portion. Certainly, if the Board of Supervisors
feels additional mitigations are appropriate, the applicant is open to such.requests.
Once again, the applicant should not be penalized for a lawful exercise of his
rights. However, notwithstanding the law, the applicant appreciates the concerns
of AIA and wishes to reach a compromise which would assure that the visual
impact of any home built on the project be properly softened by landscaping and
other reasonable building restrictions.
Very t fScatrena-,
�,
erald WOwner
Subdiv.GWSapp.basisltr