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CITY COUNCIL AGENDA ITEM NO. 38A

Meeting Date: November 13, 2007

Subject/Title: Public hearing for an appeal filed by Pulte Home Corporation of the Planning Commission’s denial decision on a variance from the Brentwood Municipal Code to establish reduced setbacks and increased square footage for an existing cabana located at 2876 Falcon Court (APN 018-380-003).

Prepared by: Debbie Hill, Associate Planner

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
Staff recommends that the City Council adopt the attached resolution reversing the Planning Commission’s denial decision and approving the requested variance (V 07-02) to establish reduced setbacks and increased square footage for an existing cabana located at 2876 Falcon Court.

PREVIOUS ACTIONS
• Planning Commission approval of TSM 8226 on November 16, 1999
• City Council approval of PD-29 on December 14, 1999
• Planning Commission approval of DR 00-23 on September 5, 2000
• Staff approval of TUP 01-03 on May 10, 2001
• Planning Commission denial of V 07-02 on September 18, 2007
• City Council set appeal date on October 9, 2007

BACKGROUND
At the Planning Commission meeting of September 18, 2007, a public hearing was held regarding the appellant’s (Pulte Home Corporation) application for a variance from the required setbacks and maximum square footage identified in the Municipal Code for a pool cabana which was constructed on the property by Pulte at the time of the original construction of the model homes for the Brentwood Park subdivision. At this public hearing, public comment was heard and discussion ensued by the Commissioners regarding concerns on the appropriateness of granting a variance for the cabana. Topics of discussion were the proximity of the cabana to the existing residence on the adjacent lot and the advisability of granting a variance due to inaccuracies in construction.

During the Planning Commission public hearing, the property owner (Randy Mass) and the applicant (Pulte) indicated that they were required to process the variance applications as part of an arbitration agreement. Mr. Mass stated at the public hearing that although he was required to cooperate with the application process and had signed the applications, he was not in favor of the granting of the variance request and would prefer that Pulte bring the structure into compliance versus obtaining a variance. In order for Pulte to rectify the situation, the cabana would need to be demolished and/or modified and rebuilt to City standards, which would cause disruption to not only the property owner, but also to neighboring property owners as well.
The public hearing was closed and after Commission discussion, a motion was made to deny the requested variance, which passed unanimously.

Pulte Home Corporation has filed an appeal of this denial. As required by Section 17.880.003.C, Pulte has completed the required application, submitted the required appeal fee, and provided a statement setting forth the specific grounds for the appeal.

As a separate matter on this meeting’s agenda, the Council is being asked to act on a related variance application for reduced setbacks for a pool and spa also constructed on this lot.

PROJECT DESCRIPTION
The applicant is appealing the Planning Commission’s denial decision on a variance from the required setbacks and maximum square footage identified in the Municipal Code for a pool cabana which was constructed on the property by Pulte at the time of the original construction of the model homes. The specific request is to allow the maximum square footage for the cabana to exceed that identified in Section 17.479.004.K of the Municipal Code by 7 square feet (from 441 square feet to 448 square feet), to allow the distance from the house to the cabana to be less than that required by Section 17.660.006.B from 8’ to 6’9”, and to allow the distance from the cabana to the adjacent residence on the lot to the north to be reduced from 15’ to 11’3”, also as required by Section 17.660.006.B. In addition to the single-story cabana and a pool, the project site is currently developed with a 3,956 square-foot two-story home, all located on a 7,700 square foot lot at 2876 Falcon Court.

ANALYSIS
On March 15, 2001, the plot plan for the house and cabana was approved by City staff showing the cabana located 5’ from both the side and rear property lines. As mentioned above, the design review approval for this subdivision included accessory buildings located on select lots throughout the subdivision. As part of the preparation for the design review, the adopted zoning for PD-29 included Section 17.479.004.K which specifies a 5’ setback from the property lines for these accessory buildings. This section does not include any required setbacks to the main home on the lot or to the home on an adjacent lot; however, Section 17.479.007.D permits accessory buildings in accordance with Chapter 17.660 of the Municipal Code (Accessory Buildings). That chapter in fact requires an 8’ minimum setback from an accessory building to the home and a 15’ minimum setback to the home on an adjacent lot (Section 17.660.006.B). The approved plot plan did not specifically identify the square footage of the cabana, but merely showed the setbacks from the side and rear property lines and the outline of the building. Based on this building permit approval, the cabana was constructed along with the home.

Planning Commission Hearing
At the Planning Commission public hearing, Mr. Mass presented a petition which had been signed by 23 residents within the neighborhood. The wording of the petition was rather vague as it pertains to this variance request and stated simply, “We the undersigned would like to go on record stating our opposition of this Variance 07-02 & 07-03. We feel the builder should be held accountable for any defect they made during construction.” The property owner to the north who is closest to the cabana did not sign the petition. Mr. Mass also submitted a letter from the property owners directly south, Mr. and Mrs. Boatwright, stating their opposition to the variance, their adherence to the building codes and ordinance when they built their pool, and that the builder should be held accountable for any defect. Of those who signed Mr. Mass’ petition, only the Boatwrights and the property owner to his rear could be affected by the cabana. The rest of the petitioners would be too far away to be impacted, as shown on the attached exhibit.

Staff’s recommendation to the Planning Commission was to approve the variance based on the findings mentioned previously. Denying this variance request would require the demolition of all or part of the cabana and possible reconstruction which would be disrupting to the neighborhood. Probably most importantly, however, the cabana was built at its present size and location with an approved City building permit.

The Planning Commission discussion centered on their reluctance to simply approve something that was built because it now existed, when it either was not constructed correctly or did not adhere to City codes. The Commission felt the structure should have been built correctly and to code and were concerned about the visual impact of the cabana to the adjacent neighbors.

Appeal Statement
In the appeal statement prepared by Mr. Moore on behalf of Pulte Home Corporation, he states the basis of the appeal as three main factors summarized below:

1. The Planning Commission did not consider whether or not they could make the required findings in that there had not been any complaints regarding the cabana from the adjacent property owner closest to the building, nor had that property owner signed Mr. Mass’ petition, but that the Commission based their decision on a perceived impact to that adjacent property owner which was not included in the record.

2. The Planning Commission based their decision on other construction errors and other defects which did not pertain to the variance request, and whether Pulte should be held accountable for such errors or defect. Such errors or defects had no bearing on what were misplacement errors in the location of the cabana on the lot in a location approved by the Building Department.

3. The Planning Commission abused its discretion by considering testimony and evidence presented outside of the public hearing in that evidence obtained from an inspection by a single Commissioner was not presented during the public hearing, and that Pulte had no notice of the inspection or discussion, and was not permitted to attend the inspection or discussion.

Required Findings
Section 17.860.005 of the Municipal Code lists the four findings required to be made in order to approve a variance, as follows:

1. That strict compliance with the specified regulation would result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning regulations, due to unique physical or topographic circumstances or conditions of design; or alternatively that strict compliance would preclude an effective design solution improving livability, operational efficiency or appearance.

Staff believes that the unique circumstances by which the cabana was originally approved now preclude an effective design solution, in that in order to adhere to the requirements of Section 17.660.006.B of the Municipal Code, the cabana would need to be demolished and reconstructed the required distance from the main house, as well as the house on the adjacent lot to the north, causing a significant reduction in size, which would severely diminish its usability and would be inconsistent with the approved design review.

2. That strict compliance with the regulation would deprive the applicant of privileges enjoyed by owners of similarly zoned property; or alternatively that strict compliance would preclude an effective design solution fulfilling the basic intent of the applicable regulations.

Staff believes that the basic intent of the zoning regulation has been adhered to in that the design review for the subdivision included similar accessory buildings with up to 441 square feet and the PD-29 text addressed these specifically in relation to the design review for the subdivision by requiring they maintain a 5’ setback from the property lines, which has been adhered to per Section 17.479 of the Municipal Code, and that the additional 7 square feet for the cabana is not a significant amount, an increase of less than 1.6%, and fulfills the basic intent of the regulations.

3. That if granted, the variance will not adversely affect the character, livability or appropriate development of abutting properties or the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy.

Staff believes that approval of the requested variance would not adversely affect adjacent properties or the surrounding neighborhood, in that the subject cabana has been in existence for over four years with no adverse effect and no comments have been received regarding the structure from adjacent neighbors prior to submittal of the variance application, and that other residents within the subdivision have similar buildings in like locations on their properties.

4. That the variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations.

Staff does not believe that approval of the requested variance would constitute a grant of special privilege inconsistent with the purposes of the zoning regulations given that the cabana was constructed consistent with the approved design review, and that other accessory buildings of the same nature are in existence within this subdivision as a direct result of the approved design review.

As indicated above, staff believes that each of the required findings can be made in order to approve the requested variance. In general, variances should only be approved for unique situations, or in cases where special circumstances apply to properties. As a result, variances should also be well-scrutinized to ensure that their integrity is maintained for future requests.

This situation is particularly unique in that the cabana location was approved by the City as part of the model home complex for the subdivision and has an approved plot plan further clarifying its location. It is the opinion of staff that the PD-29 text was written to include certain specific accessory buildings, such as this one, as part of the original design review and intended them to adhere to the 5’ minimum setback to the property lines specified in the PD-29 text, with no specified requirement to the main home or homes on adjacent lots. The reference to accessory buildings within Section 17.479.007.D was intended for other accessory buildings (i.e., sheds, greenhouses, etc.) that may be constructed on the lot at some point in the future. It is also the opinion of staff that the slight increase in square footage is minimal and does not circumvent the intent of the zoning regulations.

Staff would like to point out to the Council that the property owner, Randy Mass, signed the application for this variance, and should the Council grant approval of the variance, the cabana would then be considered a legal structure.

Therefore, in conclusion, staff believes that the request is appropriate and recommends that the City Council reverse the Planning Commission’s denial decision and approve the variance to reduce the required setbacks and allow the increased square footage for the cabana.

ENVIRONMENTAL DETERMINATION
This type of project qualifies as a categorical exemption under Section 15305 (Minor Alterations in Land Use Limitations) of the California Environmental Quality Act (CEQA). No further environmental review is necessary.

FISCAL IMPACT
The applicant paid the required $122 appeal fee.

Attachments:
1. Resolution overruling the Planning Commission’s denial decision and approving V 07-02
2. Vicinity Map
3. Aerial of the Site
4. Approved Plot Plan for 2876 Falcon Court
5. PD-29 Text – Chapter 17.479 of the BMC
6. Accessory Building Text – Chapter 17.660 of the BMC
7. Appeal application received from Pulte Home Corporation dated “Received September 27, 2007”
8. Letter from J. Kevin Moore dated September 27, 2007
9. Planning Commission staff report dated September 18, 2007
10. Excerpt of the Planning Commission minutes from the September 18, 2007, meeting
11. Map showing locations of the residences of those who signed Mr. Mass’ petition



CITY COUNCIL RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD REVERSING THE PLANNING COMMISSION DENIAL DECISION AND APPROVING A VARIANCE (V 07-02) TO ALLOW REDUCED SETBACKS AND AN INCREASE IN OVERALL SIZE FOR AN EXISTING CABANA LOCATED AT 2876 FALCON COURT (APN 018-380-003).

WHEREAS, Pulte Home Corp. has submitted a variance request, signed by Randy Mass, to allow reduced setbacks of 11’3” from the cabana to the house on the adjacent lot and 6’9” from the cabana to the main house on the lot, and allow a 7 square foot increase in overall size from 441 square feet to 448 square feet for an existing cabana located at 2876 Falcon Court; and

WHEREAS, the City of Brentwood previously approved TSM 8226 on November 16, 1999, PD-29 on December 14, 1999, and DR 00-23 on September 5, 2000; and

WHEREAS, the City of Brentwood approved the plot plan for 2876 Falcon Court on March 15, 2001 and TUP 01-03 on May 10, 2001, and;

WHEREAS, a Notice of Exemption under Section 15305 (Minor Alterations in Land Use Limitations) of the CEQA Guidelines has been prepared for this variance; therefore, no additional environmental review documentation is necessary; and

WHEREAS, the Planning Commission held a public hearing related to the proposed request on September 18, 2007, and considered the staff report and testimony received by the applicant and other interested parties and voted 5-0 to deny the variance request; and

WHEREAS, the City received an appeal application filed by Pulte Home Corporation of the Planning Commission’s denial decision; and

WHEREAS, the City Council set the public hearing date for the appeal for November 13, 2007, at their October 9, 2007, meeting; and

WHEREAS, a duly noticed public hearing was advertised in the Brentwood Press on November 2, 2007, and mailed to property owners within 300 feet of the site as required by City ordinance and Government Code Section 65090; and

WHEREAS, the City Council held a public hearing related to the appeal on November 13, 2007, and has considered the staff report and testimony received by the applicant and other interested parties.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brentwood:

A. Hereby finds and determines that:

1. Strict compliance with Sections 17.660.006B and 17.479.004K of the Municipal Code would preclude an effective design solution in that in order to adhere to the requirements of Section 17.660.006B and Section 17.479.004K of the Municipal Code, the cabana would need to be demolished and reconstructed the required distance from the main house, as well as the house on the adjacent lot to the north, causing a significant reduction in size which would severely diminish its usability and would be inconsistent with the approved design review; and

2. Strict compliance with Sections 17.660.006B and 17.479.004K of the Municipal Code the regulation would preclude an effective design solution fulfilling the basic intent of the applicable regulations in that the approved design review for the subdivision included accessory buildings, and the PD-29 text specifically addressed these setbacks in relation to the design review for the subdivision by requiring they maintain a 5 foot setback from the property lines, which has been adhered to per Section 17.479 of the Municipal Code, and that the additional 7 square feet for the cabana is not a significant amount, an increase of less than 1.6%, and fulfills the basic intent of the regulations; and

3. The variance will not adversely affect the character, livability or appropriate development of abutting properties or the surrounding area, and will not be detrimental to the public welfare or contrary to adopted plans or development policy in that the cabana has been in existence for over four years with no adverse effects and no comments have been received regarding the structure from adjacent neighbors prior to the variance application, and that other residents within the subdivision have similar buildings in like locations on their properties; and

4. The variance will not constitute a grant of special privilege inconsistent with limitations imposed on similarly zoned properties or inconsistent with the purposes of the zoning regulations, given that the unique zoning of PD-29 allows for accessory buildings of this nature and that accessory buildings similar in size and location are in existence within this subdivision as a direct result of the approved design review.

B. Hereby reverses the Planning Commission denial and approves Variance No. 07-02 to allow reduced setbacks and an increase in overall size for an existing cabana located at 2876 Falcon Court (APN 018-380-003).

PASSED by the City Council of the City of Brentwood on November 13, 2007, by the following vote:


 
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