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HomeMy WebLinkAboutMINUTES - 07131993 - 1.144 NORRIS R19 NORRIS RICHARD E.NORRIS HILLTOP OFFICE PARK TELEPHONE SJEFFRC.STRAUMIC AUS S DOUGLAS 3260 BLUME DRIVE, SUITE 200 (510)222-2100 DOUGLAS CY EPSTEIN COLIN J.COFFEY RICHMOND, CALIFORNIA 94806-1961 JOSHUA G.GENSER FACSIMILE EDWARD L.SHAFFER (510) 222-5992 DAVID S.SMITH SHARON M.IVERSEN - MATTHEWJ. JUSTIN RECEIVE® JUSTININD D.SCH HWA WARTZ NOLL M.CHAIN-CAUGHMAN June 21, 1993 JUN 2 2 1993 VIA FACSIMILE y �. Contra Costa County Board of Supervisors CLERK BOARD OF SUPERVISORS County Administration Building CONTRA COSTA CO. V/GL 651 Pine Street Martinez, California 94553 Re: Minor Subdivision MS 32-91 (Lindorf) Request for Reconsideration of Board Action on 6/15/93 Honorable Members of the Board: REQUEST FOR RECONSIDERATION On June 15, 1993 the Board acted on an appeal of the Zoning Administrator's design approval for MS 32-91. The Board adopted two new conditions. Unfortunately, the adopted wording creates serious legal and procedural difficulties. The conditions require cooperation by the appellants, and create opportunities to substantially delay recording the parcel map and building the Parcel B house. We ask the Board to schedule a public hearing to reconsider its action and revise the wording of both conditions. We do not believe the Board planned to subject this subdivision to additional delays and hearings. The Board certainly did not intend to set the stage for yet more appeals! The Board imposed a new condition on recording the parcel map. The tentative parcel map was approved by the Board last October. State law does not allow new conditions to be placed on final map approval after the fact. (See Government Code §§ 66450, 66473, 66474. 1; see Youngblood v. Board of Supervisors (1978) 22 Cal. 3d 644, 150 Cal. Rptr. 242 . ) The second condition forces the Lindorfs to obtain a variance before issuance of the building permit for Parcel B. The variance process is likely to be lengthy, especially if appeals are pursued. State law does not allow new conditions on issuance of building permits, if those conditions could have been imposed at the time of map approval (Government Code § 65961) . \DOC\L0005\44001\79723 cc,. rc1 1srs &IDi> Contra Costa County Board of Supervisors June 21, 1993 Page 2 The Lindorfs anticipate that neighbors will not cooperate to expedite this process, but instead will take advantage of every opportunity for delay. The Lindorfs fully intend to install landscaping and build a fence, but their project should not be held hostage by delays created by the Board's new conditions. BACKGROUND The Board approved subdivision MS 32-91 on October 13, 1992. Condition 7A required submission of a landscaping plan prior to map filing. The Zoning Administrator approved the plan submitted by the Lindorfs, satisfying this condition. No appeal was filed challenging approval of the landscaping plan. Condition 5 authorized the Zoning Administrator to review house designs, and to reduce heights if necessary to avoid significant visual impacts. Designs were submitted, which the Zoning Administrator approved with modifications on March 30, 1993 . This design approval was appealed as to the height of the house on Parcel B. County Staff recommended that the Board either deny the appeal outright, or add a requirement to plant trees along appellants' property line. The Board held a hearing on June 8, 1993, and continued the appeal to June 15. Supervisor Bishop proposed two conditions meant to give appellants some control over visual mitigations: (1) Allow appellants to select the placement of tall- growing landscaping along the property line to provide screening, or alternatively prohibit landscaping higher than the fence that might obstruct sunlight and views. (2) Give appellants authority to decide whether the fence should be placed exactly on the lot line or set back. Community Development Staff prepared wording for two new conditions, which the Board adopted. The applicant did not have an opportunity to examine the exact wording of these conditions or to comment on them. Condition 1 Regarding Tall Landscaping. On June 15, the Board adopted the following new condition regarding landscaping: \DOC\L0054001\79723 Contra Costa County Board of Supervisors June 21, 1993 Page 3 Prior to recordation of the map, the applicant shall submit verification from Mr. Stewart and Mr. Russell that the landscaping provide[d] along the southern property line is acceptable, as indicated on the revised landscaping plan dated received by the Community Development Department June 10, 1993, which incorporates a visual buffer along both the eastern and southern property lines. If the landscape plan is unacceptable, Mr. Stewart and Mr. Russell shall provide a plan which is acceptable to them. The plan shall be reviewed by the applicant for reasonableness and subject to final review and approval by the Zoning Administrator. The wording of this condition does not allow the final parcel map to be recorded until all the following steps occur: (1) The applicant obtains verification from appellants that they accept the landscaping as reflected on the plan dated June 10, 1993 . No deadline is given for appellants to respond to the applicant's request for approval. This creates an unreasonable opportunity for delay. (2) If the proposed landscaping is not acceptable, appellants are authorized to submit an alternative plan. Again, no time limit is specified within which appellants must satisfy this requirement. In addition, we understand that Mr. Stewart and Mr. Russell disagree as to whether they prefer more or less landscaping! (3) If appellants submit an alternative plan, it must be approved by the Zoning Administrator. While the condition allows the applicant to review this alternative plan for reasonableness, the Board has not given the applicant any ability to reject proposals that may be unreasonably expensive or interfere with use of their property. The applicants' only recourse would be to appeal appellants' plan back to the Board. Alternatively, the decision of the Zoning Administrator might be appealed by the original appellant or some other party claiming an interest. In either case, the scene is set for substantial delay and cost before the final map may even be recorded. The tentative map was approved last October. .. The Board cannot impose a new condition on recording the final map. This is contrary to established law. \DOC\L0054001\79723 Contra Costa County Board of Supervisors June 21, 1993 Page 4 The Lindorfs do intend to cooperate with the reasonable preferences of Mr. Stewart and Mr. Russell. However, if the Board still feels it necessary to protect appellants, then it is more appropriate to defer resolution of landscaping until after map recording and house construction. The appropriate deadline is final signoff of the building permit by County Staff, before the Lot B house is occupied. The Board should set time limits in which appellants must act. Finally, please consider whether you truly wish to create new opportunities for decisions to be appealed back to the Board. We suggest that the Board limit appellants to either (1) accept the original landscaping plan plus the tall trees suggested by Staff, (2) prohibit any landscaping rising above the fence, or (3) propose an alternative plan that is not more expensive and does not interfere with use of Lot B compared with the plan already approved. We propose the following revised wording for Condition 1, which achieves the Board's goals while avoiding the potential for substantial delay: (a) The applicant shall install landscaping along the eastern and southern property line as shown on the landscaping plan dated received by the Community Development Department June 10, 1993, plus installation of additional trees along the southwestern property line a minimum- of 15 gallons in size and planted 25- feet on center, unless otherwise revised. (b) The applicant shall submit the landscaping plan to Mr. Stewart and Mr. Russell. They may either (1) approve the landscaping plan, (2) decide they do not want any landscaping above the 6-foot fence along the common boundary, or (3) provide an alternative landscaping plan for the area within 10 feet of their property line. (c) The approved landscaping plan shall be deemed accepted unless within 15 days after receiving the plan from the applicant, Mr. Stewart and Mr. Russell deliver in writing to the applicant and the zoning Administrator either a decision to prohibit tall-growing landscaping or an alternative plan. Only one decision or plan may be .submitted, and a difference of opinion between Mr. Stewart and Mr. Russell shall also be deemed acceptance of the approved plan. \DOC\L0054001\79723 Contra Costa County Board of Supervisors June 21, 1993 Page 5 (d) Mr. Stewart and Mr. Russell may propose alternative landscaping so long as their plan is not more expensive (either in terms of plants, irrigation systems, or future maintenance) , and so long as their plan does not interfere with use or enjoyment of the remainder of Parcel B. There is no need for the Zoning Administrator to take any further action regarding this matter, unless disagreement arises regarding whether an alternative plan complies with the restrictions described in this condition. (e) Prior to final signoff of the building permit by County Staff after construction of the Parcel B house, landscaping shall be installed along the boundary line between Parcel B and the property of Mr. Stewart and Mr. Russell, either under the original approved landscaping plan (subject to their prohibition of tall-growing landscaping) , or under their alternative plan, as the case may be. (f) In the event appeals are pursued by Mr. Stewart and Mr. Russell to obtain approvals necessary to build the boundary fence on top of the retaining wall, as described in Condition 2 (c) , the permit shall receive its final signoff to allow occupancy of the house, and landscaping may be installed after fence location is resolved. Condition Two Regarding Pence. The Board adopted the following condition regarding placement of a fence along the common property line: Prior to issuance of a building permit for Parcel B, the applicant shall construct a 6-foot fence on top of the existing retaining wall or the fence shall be placed on the applicant's property north of the earthen swale, subject to the applicant receiving all necessary County approvals. The location of the fence shall be at the discretion of Mr. Stewart and Mr. Russell. The applicant will be responsible for maintaining the earthen drainage ditch. Construction of the house on Parcel B should not be delayed because of this condition. Placing the fence on top of the retaining wall will require a variance, which can be time consuming and problemmatic. This condition may force the Lindorfs to undergo substantial cost, delay and even more public hearings and appeals. \DOC\L0054001\79723 Contra Costa County Board of Supervisors June 21, 1993 Page 6 Under this condition, if appellants want the fence to be on top of the retaining wall Mr. and Mrs. Lindorf must apply for a variance -- presumably at their cost. The County will mail notices to all property owners within 300 feet of Parcel B. Even if Mr. Stewart and Mr. Russell support the variance, other neighbors may protest. If the Zoning Administrator approves the variance, someone may appeal to the Planning Commission and then to the Board -- all for the purpose of further delaying construction of the Parcel B home. If the Zoning Administrator denies the variance, Mr. Stewart and Mr. Russell might insist on appealing, also delaying construction. We propose the following revised wording for this condition, to satisfy the Board's concern while preventing abuse and delay: (a) Prior to final building permit signoff by County Staff allowing occupancy of the home on Parcel B. the applicant shall construct a 6-foot fence along the southwestern property line. If Mr. Stewart and Mr. Russell desire the fence along their portion of boundary placed directly on top of the retaining wall, the applicant shall apply for the necessary variance and other County approvals. Otherwise, the fence shall be set back from the property line north of the existing earthen drainage ditch. (b) In the event the variance or another necessary approval is approved but then appealed, the applicants shall not be required to pursue approval but may withdraw the application and construct the fence set back from the property line. In the event that the variance or other application is denied at any level, the applicant shall not be required to pursue an appeal but instead may construct the fence set back from the property line. (c) If the applicant decides not to pursue approval in the face of an appeal or denial, Mr. Stewart and Mr. Russell can elect to pursue approval independently at their cost. The applicant shall not construct a set-back fence in the interim. In such a case the applicant shall receive the final permit signoffs necessary to allow occupancy of the Parcel B home. (d) Regardless of the fence location, .the applicant will be responsible for maintaining the earthen drainage ditch. \DOC\L0054001\79723 Contra Costa County Board of Supervisors June 21, 1993 Page 7 This subdivision application was submitted in August 1991. Please avoid additional delays and opportunities for conflict. The Lindorfs want to cooperate with Mr. Stewart and Mr. Russell to create the best residential environment for both homes. These conditions are not necessary to obtain that cooperation. We suggest that the Board simply require a solid fence and landscaping along this boundary and rescind the new conditions adopted on June 15, or modify the conditions with the details suggested in this letter. Very truly yours, NORRIS & NORRIS, P.C. BY EDWARD L. SHAFFER ELS:kjw cc: Bruce & Angie Lindorf County Counsel Community Development Department \DOC\L0054001\79723 05-21-1993 17:22 15102221714 NORRIS & NORRIS P.01/08 NORRIS W NORRIS OICMA140 C.NORRIS HILLTOP OFFICE PARK p TELCPHONC aO'VGIJEFFREY MICKLASTRAUS ,!2010 SLUMC DIiIVX, SUITL 2 RECEIVED ED 16101 i!i-i100 DOUOLAf3 C.OTRAU4 CALIFORNIAN67CIN C RICK19OND, C9401041-JD OLIN J.COFFEY FACOIwIL[ JO&HuA 0.OSNsm EDWARD L,SHAFFER DAVID O.OMITH �J1UIIV 2 ^ 1993 16101 1p!•6Poi SHARON M.IVERBEN wATTMCW J.WE98 JUITIN D. 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