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HomeMy WebLinkAboutMINUTES - 02071989 - T.1 TO: BOARD OF SUPERVISORS FROM: Harvey E. Bragdon Contra Director of Community Development Q/lJ.7la DATE: January 31; 1989 WU / ;SUBJECT: Marathon Partners appeal of San Ramon Valley Regional Planning Commission denial of Minor Subdivision 102-87. ;SPECIFIC REQUEST S) OR RECOMMENDATIONS(S) 6 BACKGROUND AND JUSTIFICATION On additional review of the Planning Commission' s action, the recommended findings from the transmittal to the Board dated January 4, 1989, have been modified to reflect the issues which the Commission felt had not been satisfactorily resolved. RECOMMENDATIONS 1. Make the findings listed below which, pursuant to Government Code Section 66474, require that the tentative map for MS 102-87 be denied. i 2. Deny the appeal of Marathon Partners and sustain the denial decision of the San Ramon Valley Regional Planning Commission. FINDINGS I 1. Approval of this minor subdivision would create parcels in the area in excess of the 15 lot limitation established by a prior minor subdivision approval, MS 128-74. 2. Due to; its proximity to State Park land, the project would be visually incompatible with the natural open space aria of Mt. Diablo, State Park. BACKGROUND/JUSTIFICATION FOR THE PROPOSED ACTION Acting as the Board of Appeals, the San Ramon Valley Regional Planning Commission considered this matter on September 21 , October 5 and October 19, 1988 . The Commission reviewed the appeal of Save Mt. Diablo ion the Zoning Administrator's approval of MS 102-87 for three parcels. Attached is the October 19 staff report which reviews the background associated with this property including development limitations established with an earlier subdivision approval. !That prior action limited the number of lots that could be createdlin the area. The current minor .subdivision would create lots in excess of the prior limitation (15 lots) for the area. i It was staff ' s position that the circumstances that led to the development limitations had altered and that the prior restrictions were no longer -appropriate. Consequently, staff supported the project. After concluding the hearing, the Commission voted to grant Save Mt. Diablo's appeal and deny the project (see attached Resolution) on a 4-3 vote. The Commission felt that the circumstances that caused the County to limit development in this area had not substantially changed and that the previously established developmeit limits should be enforced. APPEAL OF COMMISSION' S DENIAL The new applicant, Marathon Partners, appealed the Commission' s denial decision in a letter dated October 26, 1988 . This was followediby one more detailed letter from their legal counsel, Thiessen; Gagen and McCoy, in a letter dated December 19, 1988 (also attached) . Also attached is a letter dated January 20, 1989, from legal counsel for Diablo Community Services District, Richard J. Breitweiser, supporting the appeal of Marathon Partners. 1. r � CONTINUED ON ATTACHIO;NT: V/ YES SIGNATURE 'iT_Oa OF CQUWEY ADMINT-STR.ATOR RECOMMENAX OF 110r CM14ITTEE APPROVE OTHER SIGNATURE W : ACTION OF BOARD ON February 7. 1989 APPROVED AS RECOMIl MED OTHER �. The Board of Supervisors on January 24, 1989 continued to this :date the hearing on the appeal by Marathon Partners from the decision of the San Ramon Valley Regional Planning Commission as the Board of Appeals granting the appeal of Save Mt. Diablo and denying Minor Subdivision 102=87. Mary Fleming, Community Development Department, presented the staff report on' the appeal, a description of the project site, and the proposed project for 21 units. She commented on the Planning Commission's concern about modifying a condition that had been placed on an earlier minor subdivision restricting the number of units to fifteen and that based on that concern and the proximity to Mt. Diablo :State Park, the Planning Commission denied the project. She commented :on the staff recommendation to adopt the findings of the San Ramon Valley Regional Planning Commission, deny the appeal and sustain the decision of the San Ramon Valley Regional Planning Commission, commenting that if the Board did find merit to the project, that there is a set of conditions attached as Exhibit A to the October 19, 1988 :San Ramon Valley Regional Planning Commission staff report that staff would recommend be considered if the Board were inclined to approve the project. The public hearing was opened and the following persons appeared to speak: Brian Thiessen, Box 218, Danville, representing the :applicant/appellant, Marathon Partners, referred to a letter dated January 16, 1989 sent to the Board through Supervisor Schroder and commented on issues including the two findings before the Board that were used to deny the project, the number of units and the proximity to the state park. Joe McCole, Marathon Partners, presented photographs of the area indicating the various proposed sites. Richard Breitwiser, 736 Ferry Street, Martinez, representing Diablo Community Services District, spoke in support of the project. Chris Valle Riestra, 257 Vernon Street, #321, Oakland, representing Save Mt. Diablo spoke in opposition to the project on issues including the views of people using the trails near the site, visibility of roof lines from theother side of the ridge, and a trail easement for East Bay Regional Park. Lee Ditzler, 2410 Diablo Lakes Lane, Diablo, commented on the prior documents restricting development on the land in the area, and stated that he was presenting copies of the documents to the Board of Supervisors (no copy presented to the Clerk for the record) . Brian Thiessen spoke in rebuttal. The public hearing was closed. Supervisor Schroder commented on the Planning Commission reason, for denial of the project, not wishing to change conditions attached to prior approval of a project on this site. He commented on the changing times and on the request by the group, the Diablo Community Services District, who had requested the original restriction to approve this request. Supervisor Schroder recommended approval of the project with the conditions in the October 19, 1988 staff recommendations, giving to the Zoning Administrator an opportunity to review the proposed sites prior to the issuance of a building permit and he moved to grant the appeal of Marathon Partners based on those comments and conditions. I � 2. i The Board discussed the matter. IT IS BY THE -BOARD ORDERED that the appeal of Marathon partners is GRANTED; and; MS 102-87 is approved with amended conditions (Exhibit A attached) . VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT' ) TRUE AND CORRECT COPY OF AN AYES: II, III, IV NOES: I ACTION TAKEN AND ENTERED ON THE ABSENT: _ ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. .cc: Community Development Dept. ATTESTED February 7, 1989 Marathon Partners, PHIL BATCHELOR, CLERK OF Thomas Nokes THE BOARD OF SUPERVISORS Save Mt. Diablo AN COUNTY ADMINISTRATOR Diablo Community -Services Dist. East Bay Regional Park Dist. BY to DEPUTY Thiessen, Gagen & McCoy Steven Thomas Public Works-Tom ;Dudziak Assessor RHD:plp i i i i I i I I r BEFORE THE SAN RAMON VALLEY REGIONAL PLANNING COMMISSION CONTRA COSTA COUNTY - STATE OF CALIFORNIA APPEAL - Minor Subdivision 102-87 Marathon Partners (Applicant) Thomas Nokes (Owner) - Diablo Area WHEREAS, a request by Marathon Partners (Applicant) and Thomas Nokes (Owner) (MS 102-87) , for approval to divide 16.3 acres into three parcels, was received by the CommunityDevelopment Department December 21 , 1987; and WHEREAS, for purposes of compliance with the provisions of the California Environmental Quality Act, a Negative Declaration of Environmental Significance was issued for the proposed project; and WHEREAS, after notice thereof having been lawfully given a public hearing was held by the County Zoning Administrator on June 6, 1988, whereat all persons interested therein might appear and be heard, and at which time the public hearing was continued to July 11, 1988, July 25, 1988, to August 8, 1988; and WHEREAS, on August 8, 1988, the County Zoning Administrator approved the application with revised conditions; and WHEREAS, Christopher P. Valle-Riestra, representing Save Mount Diablo, appealed the Zoning Administrator' s decision to the San Ramon Valley Regional Planning Commission, acting as the Board of Appeals, for public hearing and determination; and WHEREAS, on September 21, 1988, the San Ramon Valley Regional Planning Commission held a public hearing on the appeal, whereat all persons interested therein might appear and be heard, and at which time the public hearing was continued to October 5, 1988 and to October 19, 1988; and WHEREAS, the San Ramon Valley Regional Planning Commission closed the public hearing for discussion and determination; and WHEREAS a motion to deny the appeal and sustain the Zoning Administrator' s approval was made, seconded and defeated by the following- vote: AYES: Commissioners - Nudelman, Cardinale, Cameron NOES: Commissioners - Auch, Kaye, Lehman, Moore ABSENT: Commissioners - None APPEAL MS 102-87 Page 2 ABSTAIN: Commissioners - None NOW THEREFORE BE IT RESOLVED that the San Ramon Valley Regional Planning Commission granted the appeal and DENIED the application. The foregoing order was given by the San Ramon Valley Regional Planning Commission on Wednesday, October 19, 1988, in a regular meeting as follows: AYES: Commissioners - Moore, Auch, Kaye, Lehman NOES: Commissioners - Cardinale, Nudelman, Cameron ABSENT: Commissioners - None ABSTAIN: Commissioners - None BE IT FURTHER RESOLVED that on Wednesday, October 26, 1988, Marathon Partners appealed the San Ramon Valley Regional Planning Commission' s decision to your Board for public hearing and determination. FRANK G. CAMERON Chair of the San Ramon Valley Regional Planning Commission, Contra Costa County, California ATTEST: ey B g n, Secretary of th San Ram Valley Regional Planning C ission, Contra Costa County, California RHD:plp I l I LAW OFFICES OF ,BRIAN D.THIESSEN ! THIESSEN, GAGEN & McCOY MICHAEL W.CARTER WILLIAM E.GAGEN,JR. A PROFESSIONAL CORPORATION VICTOR J.CONTI GREGORY L.MCCOY 279 FRONT STREET ROBERT M.FANUCCI PATRICK J.MCMAHON P.O.BOX 218 KENNETH J.FISHBACH M.SUE GREICAR DANVILLE,CALIFORNIA 94528-0218 RICHARD A.FRANKEL MARK L.ARMSTRONG BARBARA DUVAL JEWELL LINN K.COOMBSCHARLES A.KOSS STEPHEN W.THOMAS TELEPHONE(415)837-0585 CAROLE A.LAW FAX(415)838.5985 CYNTHIA LOVE MAREK MICHAEL J.MARKOWITZ OF COUNSEL DIRECT DIAL Ext I DOLORES S.SARGENT EVELYN SPIROU WILLIAM W.BASSETT SUE GOUGE WILLIAMS JOHN S.CLAUSEN December 19, 1988 I Mr . Robert Drake Hand Delivered Community Development Dept . 651 Pine Street = 4th Floor , North Wing Martinez, CA 94553 Re: County File No. MS102-87 Dear Mr . Drake: These offices represent Marathon Partners and Thomas Nokes with respect to the above-referenced file number which contains •an application to subdivide 16. 3 acres in the Diablo area into 3 parcels. Karl Wandry, Deputy Director, Community Development Departmenti notified my clients by correspondence dated October 21, 11988 that the application for that minor subdivision was denied ion appeal by the San Ramon Valley Regional Planning Commission,, acting as the Board of Appeals, at the meeting of October 19; 1988. Previously, the zoning administrator had approved a ; request. My clients filed a Notice of Appeal with you by a letter dated October 25, 1988 . It is my understanding that a resolution and findings will be issued shortly. Based upon the testimony at the public hearing and the discussions among the Planning Commissioners, it is our understanding that the San Ramon Valley Regional Planning Commission 1 had two primary areas of concern in refusing to uphold theldecision of the Zoning Administrator : (1) whether or not the approval of the subdivision would in some way violate previous Conditions of Approval and/or CCsRs establishing earlier subdivisions for the property; and ( 2) the suitability of the site for the project as proposed. It is my belief that the issues of site suitability have been addressed throughout the course of this development proposal and Mr. Robert Drake December 19, 1988 Page 2 it is unclear as of the date of this correspondence as to the exact objections that the Planning Commission had to the project as proposed. The building envelopes were modified after both staff and public comment. The house site envelopes which allow for construction of accessory structures are located on flatter terrain and are relatively free of trees. No development, be it house or building construction, is to be allowed outside the building site, and a scenic easement is to be established for all of the area outside of the envelopes. Height limitations were proposed which would follow the standard hillside height and which would allow for a maximum height to 18 feet above the apex of the grade and 25 feet on the down slope. Proposed Conditions of Approval impose various restrictions on improvement to these parcels, all of which sought to and did mitigate the impact of this development. Significantly, at the time of the final public hearing before the San Ramon Valley Regional Planning Commission, staff recommended that the decision of the Zoning Administrator approving the project subject to the Conditions of Approval be sustained. The record of the hearing established no grounds pertaining to the site suitability aspect of the deliberation which were not mitigated by the conditions. Without guidance as to the specific items which may concern the Commission, the applicant as of this date cannot offer further evidence of such suitability. It is elementary that an agency must prepare and adopt findings supported by a substantial factual basis in the course of any action undertaken with regard to a project . In this matter , the application has been pending for a great while, and in connection therewith, hearings have been continued time and time again. Specific finding have yet to be rendered. It is the least that can be done in the sense of fairness. Much attention has been directed to . the Conditions of Approval for MS 128-74, which created the parcel which is sought to be further subdivided by MS 102-87 . MS 128-74 was a minor subdivision granted to Smiley and Curtola pursuant to permit effective May 29 , 1975. One of the Conditions of Approval , No. 9, provided as follows: "9 . No more than 15 single-family residential dwelling units shall be permitted or built on the minor subdivision. " And further : i Mr . Robert Drake December 19, 1988 Page 3 10 . The above condition (Condition No. 9) shall be accomplished by means of Deed restrictions, in form satisfactory to Diablo Community Services District which will run with the land and which will run in favor of all land within the Diablo Community Services District as well as within the subdivision and bind Mr . Curtola ' s heirs, executors and assigns. " The limitations imposed on MS128-74 by Conditions Nos. 9 and 10 were inserted specifically and directly at the request of the Diablo Community Service District dty� to concerns related to increased traffic in the Diablo area.- The language in item 10 was made part of the Conditions of Approval because the Conditions of Approval, of and by themselves, could not run with the. land and the thought at the time was to provide for a means - in the form of deed restrictions - which could thereafter run with the land. The conditions were essentially conditions as to future actions -to be undertaken with respect to the property subject to MS128-74 . However , those conditions can in no way be considered to extend into infinity. However, times and conditions change, and some flexibility has to be maintained for the changing circumstances over the course of the years. For example, a general plan which contains guidelines for future development certainly cannot be construed as a permanent decree not subject to modification by future decision-makers. Strictly speaking, the dictate of Condition of Approval No. 10 was not followed. Rather than incorporate it in a Deed restriction, the restrictive language was incorporated into a Lease Agreement by and between Diablo Community Service District and Curtola and Smiley. Paragraph 8 of that Lease provides as follows: 8 . Limitations on use of contiguous property pursuant to California Civil Code §§1469, 1470: . . . 1� Letter from Richard Breitwieser dated September 26, 1988, page 1, paragraph 1 . Mr . Robert Drake December 19, 1988 Page 4 8. 1 Lessor hereby covenants and agrees to restrict the use of said contiguous property so that no more than fifteen ( 15) single- family residential dwelling units constructed on said contiguous property, will be allowed to use Alameda Diablo for purposes of ingress or egress. In the event more than fifteen ( 15) single-family residential dwelling units are constructed on said contiguous property, and it cannot be determined which fifteen ( 15) may use Alameda Diablo for purposes of ingress or egress. , then such use shall be given to the fifteen (15) units which first obtained the building permit . It is the intent of those dwelling units in excess of fifteen (15) shall be constructed in such a fashion to preclude the use of Alameda Diablo by the residents of such dwelling units for all purposes of ingress and egress to their dwelling units. Nothing in this paragraph shall limit the use of said property except as herein stated. Note the cited language, as underscored, anticipates that more than 15 residences may eventually be constructed. The Community Services District freely and voluntarily entered into this agreement with the owners of the subject property. While the Lease contained language concerning the binding effect of the terms contained in it, it also provided for such legalities as non-renewal and invalidity of certain provisions. In other words, it would be unreasonable to construe the Lease as a legal instrument which forever establishes certain rights and obligations without having any possibility of modification. Following just that theory, that the terms could be modified, the terms in fact were modified by a later lease recorded October 31, 1977. In that lease, the above quoted language of Section 8. 1 was modified. The modified language is as follows : "8.1 Lessor hereby covenants and agrees to restrict the use of said contiguous property so that no more than twenty ( 20) single- family residential dwelling units constructed on said contiguous property will be allowed to use Alameda Diablo for purposes of ingress Mr . Robert Drake December 19, 1988 Page 5 or egress. Of said 20 single-family units, 6 single-family units may be built on Parcel A as described in Book 40 of Maps at Page 49, 50 and 51 . Of the remaining 14 single-family residential dwelling units allowed on said contiguous property, if it cannot be determined which 14 use Alameda Diablo for purposes of ingress or egress, then such use shall be given to the 14 units which first obtain a building permit . It is the intent that those dwelling units in excess of 20 shall be constructed in such a fashion to preclude the use of Alameda Diablo by the residents of such dwelling units for all purposes of ingress and egress to their dwelling units. Nothing in this paragraph shall limit the use of said property except as herein stated. Again, note the underscored language. Members of the San Ramon Valley Regional Planning Commission Board of Appeals were concerned with undertaking actions inconsistent with earlier County action in the event they approved MS102-87 . At the public hearing on October 19, 1988, staff specifically advised the Planning Commissioners that prior Conditions of Approval were not binding on those Commissioners and that the application could properly be approved. The Commissioners then expressed concerns over the legal effect of approving the project in light of the 1975 and later 1977 restrictions. At the hearing, the Commissioners were in receipt of correspondence from Mr . Breitwieser as attorney for the Diablo Community Services District which indicated specifically, as a party to the Lease and a direct beneficiary of the restrictions contained in it that: "The Board of Directors has reviewed Marathon Partners proposed subdivision and their agreement to make a contribution to the Diablo Community Service District Road Maintenance Fund. Based on the review and the contribution, the Board of Directors does Mr. Robert Drake December 19 , 1988 Page 6 not object to the subdivision as prop5�ed by Mr . McCole and the Marathon Partners. - The Commission refuses to recognize that a party to an agreement can voluntarily and for good consideration change terms of that agreement. In this instance, the party who originally requested the restriction, the Diablo Community Services District, has modified that restriction, recorded that modification, and agreed to a project consistent with that modification. The lots which would be created by MS102-87 would cause the total to rise to 22 lots, with 21 utilizing Alamfpda Diablo. Again, the District has agreed to this proposal . Thus, the creation of the lots are neither inconsistent with the modification nor otherwise "illegal" having been proposed with the express written approval of the purported beneficiaries of the restrictions. Whether or not these restrictions are effective lies outside of the factors which should be considered in action upon this project application. California courts have long held that a change in entitlements, such as zoning restrictions, in an area does not impair the enforceability of existing deed restrictions. See Wilkman v. Banks, 124 Cal .App. 2d 451, Mullally v. Ojai Hotel Company, 266 Cal.App. 2d 9 , and Seaton v. Clifford, 24 Cal.App.3d 46 . Thus, whether or not the restrictions are enforceable is a civil matter for a court of law to decide. Moreover, serious questions exist as the enforceability of the restrictions. Where, as here, uncertainty is present , the law holds that restrictive covenants are to be construed strictly: where they are subject to more than one interpretation, that consistent with umcumbered use and alienation of property is to be preferred.- Any doubt as to whether an instrument creates a servitude or restriction will be resolved in favor of the free use of land.:/ The enforcement of covenants such as those under consideration generally lie with a party to the agreement and not what the law calls "an outsider" . Note that -?/ Letter from Breitwieser to Drake dated September 22, 1988, 3/ page 2. 4� A letter from the District is forthcoming. 5� Harrison v. Domergue (1969) 274 Cal .App. 2d 19. Coulter v. Sausalito Bay Water Company ( 1932) 122 Cal .App. 480 . I Mr. Robert Drake December 19, 1988 Page 7 even the language in the lease agreement binds the heirs, assigns and successors, not the community at large or the public in general. The enforcement clause, clause 12 of the 1975 lease and clause 13 of the 1977 lease provide for enforcement but not by the community at large. As such, the inference is that enforcement must be by a party, or successor to a party, in interest or in privity to the agreement. Thus, any "outsiders" such as the Save Mt . Diablo Organization, would have no standing in court to sue for violation of the restrictions. Finally, the law that establishes CC & Rs for subdivisions provides liberal grounds for amendment of those instruments by voter consent of the affected landowners.6 The persons most affected by the development have both in fact and in effect amended the original restriction and now authorize 22 single- family dwellings on the property. If indeed, those persons have no quarrel with the project, neither should the authorizing agencies. In summation, we would ask that the Staff consider that (1) acceptable modifications can be made to the building sites to provide for a suitable, well-planned project; ( 2) the Conditions of Approval are not of a permanent , inflexible nature and can be modified by later agency action; ( 3 ) the persons affected by the original Conditions of Approval have changed position and agree with the project; and ( 4 ) whether or not the restrictions are affected is a civil matter separate and` distinct from agency action in this matter . We would ask that this matter be set before the Board of Supervisors on appeal at the very earliest date possible. Please contact me if you desire more information or clarification of any of the items that have been raised in this correspondence. Very truly yours, Stephen W. Thomas SWT/dk 80-20133 6/ See Section 2792 . 24 of Regulations of Real Estate Commissioner ; Section 1356 of the California Civil Code . 1. BRAY736 Ferry Street,Martinez,California 94553-1697 (415)228.2550 BREITWIESER COSTANZA BRAY A Protess onal Corporation ATTORNEYS AT LAW A F BRAT R RICHARDJ BREIT`MESER1989 � f January 20 , ANGELOJ COSTAWA OLIVER'N BRAY JOHNS BALDWIN 1915.19661 Contra Costa County Board of Supervisors 651 Pine Street 4th Floor, North Wing Martinez, CA 94553 Re: Minor Subdivision Application No. 102-87 Board Agenda January 24 , 1989 Dear Members of the Board: On 'behalf of Diablo Community Services District please consider this formal notification that we support the appeal to you that is scheduled for Tuesday, January 24, 1989 , in which the applicant (Bob : Gindt) and owner (Thomas Nokes) request approval to subdivide 16. 3 'acres served by Diablo Lakes Lane into three parcels, each with at least five net acres. This would have the effect of increasing the total number of units (within original MS128-74) which would use Alameda Diablo to 21 separate units . One of the units in original MS128-74 is serviced solely by Mt. Diablo Scenic Blvd. The approval must be conditioned (as is recommended in your Staff' s proposed "Conditions of Approval for Minor Subdivision 10102-87 ' ) to cover both of the points raised in my two-page letter of August 4, 1988 to Robert Drake of your Community Development Department staff (a copy of that letter is enclosed for your reference) . Please call me if you have any questions. Very truly yours, CHARD J. REITWIESE For Diablo Community Services District RJB/jw enc . aMIMI A J CONDITIONS OF APPROVAL FOR MINOR SUBDIVISION 102-87 1. This application is approved for three parcels as generally shown on the revised tentative map dated received October 11, 1988. 2. If archaeologic materials are uncovered during grading, earthwork shall be stopped until a certified archaeologist has had an opportunity to evaluate the significance'of the find. 3. Dwelling units shall connect to East Bay Municipal Utility District ser- vices lines for domestic water supply, and to Central Sanitary District service lines for sewage disposal .. 4. Construction plans shall provide for a lighted street address that shall be easily visible from the access road. 6. The existing East Bay Regional Park District trail easement through Parcel B shall be re-routed subject to prior review and approval of the Zoning Administrator. The trail shall be shifted away from the building site (either north or south) . The proposed realignment shown on the October 11 plan is acceptable. Prior to recording the parcel map, the applicant shall submit evidence that the necessary title instruments have been exchanged and recorded with the Park District. 6. A copy of the SCC&R's for the project shall be submitted to the Community Development Department. The documents shall require the owner of Parcel C to maintain the approved visual mitigation in good condition at all times. 7. Prior to filing the parcel map, provide a letter from Diablo Community Services Distrjct indicating that the road restoration payment condition described in the August 4, 1988 letter from Richard Breitweiser, attorney for the Distriit, has been satisfied. 8. Prior to filing a parcel map, the applicants shall submit a revised tenta- tive map. The revised map shall specify the precise location and dimen- sions of the building and house site envelopes shown on the tentative map. The boundaries; shall comply with the A-2 zoning setback requirements. The area outside the building sites shall be placed in a scenic easement which shall prohibit) alteration of natural conditions except for construction of a driveway ands necessary water service and storage equipment. 9. Placement of residential structures shall be limited to the house site en- velopes. Accessory structures and improvements are limited to the building site envelope (stables, garages, tennis courts) . 10. At least four weeks prior to obtaining building permits, a site plan for each parcel shall first be submitted for the review and approval of the Zoning Administrator. The plans shall include building elevations for all proposed structures, existing terrain and proposed grading. The following requirements shall apply: 2 A. Grading shall be minimized. If unavoidable, retaining walls up to three feet in height should be used as much as possible. B. Removal of any tree shall be subject to prior review and approval of the Zoning Administrator. Tree removal or alteration shall be re- stricted to the purpose of allowing for driveway, fire buffer and view corridors.1 Trees proposed to be removed and saved (including identi- fication of trunk sizes) shall be shown on the site plans. A tree protection program prepared by a landscape architect shall be submit- ted to serve the construction and post-construction phases of the project. C. Structures shall be designed in a footprint that preserves mature oak trees. Buildings (including roof shapes) shall be designed and built to be visually compatible with the hillside area. A combination of staggered lexterior wall lines and stepped-on-grade structure design may be appropriate. D. Residential structures shall be limited to a maximum height of 18 feet above natural grade. Any deck should blend into the design of the structure! All support structures shall be screened and landscaped. Proposed exterior colors shall be earthtone or other natural local colors. E. A landscape/irrigation plan for each parcel shall be submitted showing any proposed planting. The plans shall generally utilize California native species and conform to the County policy. on water conservation requirements, and shall be installed prior to occupancy. F. Wood and open-wire fencing along the perimeter of each parcel shall be permitted while chain link or other metal fencing shall be discour- aged. G. Intensive exterior lighting (e.g. , to light tennis courts) is prohib- ited. H. Architectural design shall be reviewed by Zoning Administrator to assure that the maximum visual mitigation is provided. 11. Comply with drainage, road improvement, 'traffic and utility requirements as follows: A. In accordance with Section 92-2.006 of the County Ordinance Code, this subdivision shall conform to the provisions of the County Subdivision Ordinance (Title 9). Any exceptions therefrom must be specifically listed. i,n this conditional approval statement. Conformance with the Ordinance includes the following requirements: 1. Undergrounding of all utility distribution facilities. rM 910.F[) p 11 �i;�DJ�i �I 3 2. Conveying all storm waters entering or originating within the subject property to a natural watercourse having definable bed and banks or to an existing adequate storm drainage facility. As these parcels are large and agricultural in nature, additional run-off resulting from this subdivision will be negligible; therefore, an exception to this requirement is permitted. 3. Submitting a Parcel Map prepared by a registered civil engineer or licensed land surveyor. B. Furnish proof to the Public Works Department, Engineering Services Division, that legal access to the property is 'available from Diablo Road. C. Mitigate the impact of the additional storm water run-off from this development on San Ramon Creek by: 1. Removing 1 cubic yard of channel excavation material from the inadequate portion of San Ramon Creek near Chaney Road for each 50 square feet of new impervious surface area created by the de- velopment. All excavated material shall be disposed of off-site by the developer at his cost. The site selection, land rights, and construction staking will be by the Flood Control District; OR, 2. Upon written request by the applicant, provide for a cash payment in lieu of actual excavation and removal of material from the inadequate portion of San Ramon Creek near Chaney Road. The cash payment will be calculated at the rate of $0.10 per square foot of new impervious surface area created by the development. The added impervious surface area created by the development will be based on the Flood Control District's standard impervious surface area ordinance. The Flood Control District will use these funds to fork on San Ramon Creek annually. D. Comply with the requirements of the Bridge/Thoroughfare Fee Ordinance for thel Countywide Area of Benefit as adopted by the Board of Supervisors. THE FOLLOWING COMMENTS ARE FOR INFORMATION PURPOSES. A. This project shall comply with the requirements of the San Ramon Valley Fire Protection District. B. This project shall comply with the requirements of the East Bay Municipal Utility District. C. This project shall comply with the requirements of the Central Sanitary District. RHD/GA/df ms17:1O2-87c.rd r nrn) � L fD� i