Previous Actions on the Site: The following table summarizes previous planning applications related to the subject site.

At an Administrative Hearing held on March 1, 2000, Use Permit #2000-0033 was approved to allow the construction of an accessory living unit above an existing detached one-story garage at 115 North Mary Avenue with conditions of approval. The applicant applied and received a building permit for the project. The applicant proceeded to build an 810 square foot accessory living unit where a 690 square foot accessory living unit was approved. The additional square footage resulted in a second story rear yard setback of 7 feet where 12 feet was originally approved. The assigned building inspector issued a stop work order on the construction of the project. Sunnyvale Municipal Code (SMC) allows accessory living units to be a maximum of 700 square feet.

This is an application for a Variance to allow an 810 square foot accessory living unit where the maximum of 700 square feet is allowed per the SMC Section19.68.040 and for a Variance to allow a 7 foot second story rear yard setback where 20 feet is required per SMC Section 19.48.050. Both Variances are reviewable at an Administrative Hearing level but because the project proposes a Floor Area Ratio greater than 45% this triggers the Planning Commission to review the design review per Sunnyvale Municipal Code section 19.80.040. The project proposes a total Floor Area Ratio of 46% where 45% may be allowed at staff level review.

On February 10, 2003, Planning Commission considered this item, and denied both variances and the design review. (See Attachment 5, Planning Commission Hearing Minutes)

The applicant appealed the action of the Planning Commission on February 10, 2003. The applicant has indicated to staff that he finds that the design of the accessory living unit meets the intent of single family design guidelines. Additionally he indicated that he finds that the placement of the accessory living unit will not be materially detrimental to the surrounding neighborhood and that the living unit provides an additional housing opportunity in the R-2 zoning district (See Attachment 6, Appeal Letter from Applicant).

Staff reviewed the potential environmental impacts for this project and determined that the project is categorically exempt from the California Environmental Quality Act. The application for the Use Permit falls within a Class #3 Categorical Exemption, which includes the construction of a secondary dwelling unit in a residential zone.

Use: On March 1, 2000, Use Permit #2000-0033 was approved with conditions at an Administrative Hearing allowing a 690 square foot accessory living unit to be constructed above an existing one-story detached garage at the subject property. The applicant obtained a building permit and began construction of the project.

On October 21, 2002 the city building inspector determined that the accessory living unit had not been constructed per the approved plans. The accessory living unit was built 120 square feet over the originally approved square footage resulting in a 810 square foot accessory living unit. The additional 120 square feet was constructed to the rear of the second story and resulted in a rear yard setback of 7 feet where 15 feet was originally approved. A stop work order was issued halting construction of the project until planning permits were obtained.

Sunnyvale Municipal Code (SMC) section 19.68.040 requires that accessory living units not exceed the maximum size of 700 square feet. This application is for a variance to allow an accessory living unit to be a total of 810 square feet, 110 square feet larger than the SMC allowable size. The floor plan of the accessory living unit consists of one kitchen, one living room, one bathroom, one bedroom, and a closet. The additional 120 square feet added to the originally approved 690 square foot accessory living unit results in an increase to the size of the bedroom and closet space. (See Attachment 3, Site and Architectural Plans)

The original approved accessory living unit floor plan created a 3-foot second story cantilever over the first story garage. When the accessory living unit was constructed, not per approved plans, it resulted in a 7 foot second story cantilever, which now extends into the approved 15-foot rear yard setback. (See Attachment 3, Site and Architectural Plans)

At the time the original Use Permit was approved in March of 2000, the SMC allowed second story construction to encroach up to 10 feet into the required 20-foot rear yard setback and to cover up 25% of the required rear yard area. The approved Use Permit allowed the rear yard second story addition to be 15 feet from the rear property line. As of January 1, 2001 the SMC was modified to only allow single story buildings located in the R-2 Zoning District to extend ten feet into the required rear yard. Second story additions must maintain a 20-foot rear yard setback. Therefore, this application requests variance from the SMC to allow a 7 foot second story rear yard setback where 20 feet is required.

Site Layout: The property is 6,550 square feet in size. The main house is located on the east side of the property, at the front of the lot adjacent to North Murphy Avenue. The detached garage and second story accessory living unit building is located on the western portion of the site, at the rear of the lot behind the main house. It is approximately 8 feet from the north side, 12 feet from the south side and 15 feet from the rear property line at the first story. A long driveway is adjacent to the west property line and leads to the garage from the street. (See Attachment 3, Site and Architectural Plans)

The applicant will maintain approximately 2,000 square feet of dedicated open space in the rear and side yards adjacent to the structure, and in the yard area between the unit and the main house. At least 1,000 square feet of open space is required for each R-2 lot with an accessory unit.

The R-2 Zoning District requires a minimum lot area of 8,000 square feet where the subject property in nonconforming in lot size at 6,550 square feet. The nonconforming lot size is in keeping with the surrounding R-2 property lot sizes.

The following Guidelines were considered in analysis of the project site design.

The second story addition is built directly on top of the one story garage and the second story rear elevation cantilevers 8 feet over the existing one story garage. The second story addition creates bulk and mass over the first story garage and is not in scale with the front single story main house. The two-story addition is prominently visible from the residential streets (both Murphy Avenue and Hendy Avenue) and appears somewhat out of scale with the existing house and surrounding neighborhood character.

Two large windows are located on the second story cantilevered rear elevation which faces the rear neighborhoods back yard. The window layout does not protect the privacy of the rear neighbor and the 7-foot encroachment into the required 20-foot rear yard setback further exacerbates the privacy intrusion of the neighbors rear yard. If the findings are made to approve the Variance and Design Review, staff recommends Condition of Approval #6 requiring that the windows on the rear elevation be modified to have sill heights above eye level.

The two-story garage and accessory living unit will have a stucco exterior finish and painted to match the main front house. The roof material on the rear addition will be a 40-year composition roof shingle to match the main house.

The original approved Use Permit called for the exterior stairway to be located on the south side of the structure, although during construction it was determined that the stairway needed to be relocated to the north side of the structure in order to meet side setback requirements. Minor architectural modifications to the original Use Permit could be approved at a staff level.

The following Guidelines were considered in the analysis of the project architecture.

Parking/Circulation: The original approved use permit for the accessory living unit included the construction of a single-car carport addition to be located south of the first floor of the existing garage. The carport was not necessary to meet parking requirements for the proposed accessory living unit. The current application has eliminated the addition of the carport. The existing site has sufficient parking; there is a two-car garage and three uncovered spaces. The proposed addition would not affect available parking.

With the exception of exceeding the allowable accessory living unit size and encroaching into the required second story rear yard setback, the proposed addition meets all residential development standards. Sunnyvale Municipal Code 19.80.040 requires applications for design review that exceed a 45% FAR threshold in R-0, R-1, and R-2 to be considered by the Planning Commission. There is no maximum floor area in these zones, therefore, such proposals are not deviating from Code requirements.

The proposed project will add bulk and mass to an existing residential structure. The design, size and bulk of the second story accessory living unit is not compatible with the surrounding homes or neighborhood character. A smaller second story accessory living unit was originally approved by staff; however, with the proposed increased second story size and the reduced second story rear yard set back, staff has concerns with the impacts on the surrounding properties. The encroachment of the addition into the rear yard and large second story windows facing the rear, is a particular concern to adjacent neighbors to the rear of the property.

Staff recommends that the applicant build the second story accessory living unit to the originally approved size of 690 square feet and to the previously approved 15 foot second story rear yard setback. Although there are few two-story detached accessory living units in the neighborhood, the original approved design would reduce the bulk of the second story and would appear more in character with the community character. The appeal letter from the applicant does not provide any additional information to consider for the review of the variance.

Staff is recommending denial for this project because the Findings (Attachment 1) were not made. However, if the Planning Commission is able to make the required findings, staff is recommending the Conditions of Approval (Attachment 2).

• Findings and General Plan Goals are located in Attachment 1.
• Conditions of Approval are located in Attachment 2.

No fiscal impacts other than normal fees and taxes are expected.

Planning Division staff has received five different phone calls from surrounding neighbors expressing concerns regarding the impact the second story addition has on the character of the neighborhood. The neighbors have expressed concerns about rear yard privacy with regard to the reduced second story rear yard setback and window placement. Building Safety Division staff has received complaints from neighbors regarding the bulk and scale of this project.

This item was originally advertised for the December 11, 2002 Administrative Hearing and was continued by staff to the January 15, 2003 Administrative Hearing date due to the need for additional field data collection and re-noticing for the second Variance. One neighbor attended the Administrative Hearing on December 11, 2002. A notice was sent to the neighbor to notify them of the January 15, 2003 hearing date.

At the January 15, 2003 Administrative Hearing staff identified that the project had a total Floor Area Ratio of 46% which requires review by the Planning Commission. The project was re-noticed for the February 10, 2003 Planning Commission Hearing. A total of six residents interested in the project attended the January 15, 2003 hearing. All residents in attendance were sent a notice of the February 10, 2003 Planning Commission Hearing.

Staff received two letters regarding this project, one on February 9, 2003 and one on February 11, 2003, from the property owner of two adjacent properties. The property owner expresses concerns regarding the project with regard to impact on his families’ properties and provides images. (See Attachment 7 & 8, Letters from Adjacent Neighbor)

On February 10, 2003, Planning Commission considered this item, and denied both variances and the design review. (See Attachment 5, Planning Commission Hearing Minutes)

The applicant appealed the action of the Planning Commission on February 10, 2003. (See Attachment 6, Appeal Letter from Applicant)

1. Because of exceptional or extraordinary circumstances or conditions applicable to the property, or use, including size, shape, topography, location or surroundings, the strict application of the ordinance is found to deprive the property owner or privileges enjoyed by other properties in the vicinity and within the same zoning district.

Staff has not determined that either an exceptional nor extraordinary circumstances applicable to this property. Staff cannot find that the property owner would be deprived of privileges that are enjoyed by other properties within the vicinity.

2. The granting of the Variance will not be materially detrimental to the public welfare or injurious to the property, improvements or uses within the immediate vicinity and within the same zoning district.

The City of Sunnyvale exercises discretionary review for development of single family homes with an intensity exceeding 45% FAR. If the Variance is granted, the proposed addition could be materially detrimental to the public welfare or injurious to the property or its surroundings as the project’s scale and bulk and reduced rear yard setbacks could degrade the neighborhood’s character and privacy to adjacent neighbors.

3. Upon granting of the Variance, the intent and purpose of the ordinance will still be served and the recipient of the Variance will not be granted special privileges not enjoyed by other surrounding property owners within the same zoning district.

The intent of the ordinance is to regulate the intensity of development by reducing the mass of buildings, and uniformity of development. If the Variance for the size of the accessory living unit were granted, the result would be that this property would be the only property in the neighborhood to have a permitted accessory living unit greater than 700 square feet. If the Variance for the reduced required second story rear yard setback was granted then the applicant would be allowed to build their second story addition 7 feet from the rear property line therefore receiving special privilege not enjoyed by other property owners within R-2 zoning districts. Staff can not find that the property owner would not be granted special privileges not enjoyed by surrounding property owners as a result of this request.

1. The proposed project design and architecture does not conform with the requirements of the "Single Family Design Guidelines", specifically section 3.4 Second Floors "Design second floors to complement the first floor forms and minimize their visual form. New homes should be designed to minimize the visual bulk of the structure".

The second story addition is built directly on top of the one story garage and the second story rear elevation cantilevers 8 feet over the existing one story garage. The second story addition creates bulk and mass over the first story garage and is not in scale with the front single story main house. The two-story addition is prominently visible from the residential streets (both Murphy Avenue and Hendy Avenue) and appears out of scale with the existing house and surrounding neighborhood character.

Return to Attachments

In addition to complying with all applicable City, County, State and Federal Statutes, Codes, Ordinances and Resolutions, the Permittee expressly accepts and agrees to comply with the following Conditions of Approval.

1. This approval is for a Variance to allow a 810 square foot accessory living unit where an accessory living unit with a maximum size of 700 square feet is permitted per SMC Section 19.68.040, and for a Variance to allow a 7 foot second story rear yard setback where 20 feet is required per SMC Section 19.48.050 and for Design Review of an addition to an existing one-story detached garage which results in a total Floor Area Ratio of 46%.
2. The two-year expiration date of the Variance shall be measured from the date of the approval by the final review authority at a public hearing if the approval is not exercised.
3. The one-year expiration date of the Design Review shall be measured from the date of the approval by the final review authority at a public hearing if the approval is not exercised.
4. The Variance and approved Design Review shall be valid only in conjunction with detailed plans as submitted or as may be modified by the reviewing authority of the City during a public hearing. Minor changes of the approved plans may be approved administratively by the Director of Community Development.
5. The owner of the property shall record a deed restriction on the title of the affected property prior to issuance of the building permit that states the owner of the property will live on site for the next 20 years.
6. Architectural elevations shall be modified so that the windows on the rear elevation will have sill heights above eye level per review and approval by the Director of Community Development prior to issuance of a building permit.
7. Roof materials shall be 40-year composition shingle roof and the color of the roof shall match the existing main house. This shall be noted on plans submitted for the building permit.
8. The exterior stucco shall be painted to match the exterior color of the main house. This shall be noted on plans submitted for the building permit.
9. The applicant shall obtain a building permit.
10. The applicant shall reproduce the Conditions of Approval on the Title Page of the plans submitted for a building permit for this project.