RTC 03-088 Attachment 5

2002-0829 - Application for related proposals on a 6,500 square foot site located at 115 North Murphy Avenue in an R-2 (Low-Medium Density Residential) Zoning District. (APN: 204-49-039) EW

• Variance from SMC (Sunnyvale Municipal Code) section 19.68.040 to allow an 810 square foot accessory living unit where 700 square feet is allowed;
• Variance from SMC section 19.48.030 to allow a 7-foot second story rear yard setback where a minimum of 20 feet is required;

• Design Review for a second story accessory living unit addition to an existing two car garage that total 3,037 square feet resulting in a 46% FAR (Floor Area Ratio) where 2,947 square feet is allowed without Planning Commission Review.

Erin Walters, Project Planner, presented the staff report. She provided a summary of the proposed application. Staff noted that on March 1, 2000, a Use Permit was approved allowing a 690 square foot accessory living unit on an existing one story detached garage. On October 21, 2002, staff determined that the living unit was constructed resulting in a 810 square feet accessory living unit and was ordered to stop construction. Staff highlighted the Use, site layout, architecture, landscaping, parking and circulation. Staff was unable to make the required findings and recommended denial of both Variances and Design Review.

Comm. Moylan confirmed with staff that if the Variances were denied, the Design Review consideration would not be necessary. Staff said yes.

Comm. Swegles asked staff for a copy of the letter from a neighbor expressing concerns as noted in the staff report. Staff noted that they could provide a copy to the Commission.

Robert Torres, applicant, stated the he grew up in Sunnyvale and is currently unemployed. He presented photographs of the surrounding neighborhood and views from his property. He added that financially he could not move out of Sunnyvale. He stated that he invested most of his money in the project making if affordable to live in Sunnyvale. He further stated that the project is 95% built and urged the Commission to approve the Variances and approve the Design Review.

Comm. Moylan asked Mr. Torres whether he understood the three findings required to approve the variance and whether he could state why and how the project could make the required findings and meet city code. He further asked why the project was built not in accordance with the approved plans. Mr. Torres responded that living next to Caltrain with the possibility of derailment, a 200-year old tree that could potentially fall down and crash his house should be considered hardships. Comm. Moylan asked Mr. Torres how would approval of the project alleviate the hardships he stated. Mr. Torres responded that the hardships would not be alleviated. He stated that he read his plans incorrectly and the project is almost finished and urged the Commission to approve the Variances and Design Review since he has invested most of his money on this project. He stated that he was approved to continue construction with concrete, frame and others were approved, until this point.

Chair Simons asked staff how many inspections have occurred since the issuance of the building permit. Mr. Torres commented that foundation, frame, fire has been approved and the only one missing is the final inspection. He added that the accessory living unit is only one bedroom and one bath. Fred Bell, Principal Planner, responded that he is unaware as to how many inspections have occurred until it was determined that the construction was built not in accordance with the approved plans.

Jim Mentink, long time resident and owner of a duplex next door, stated that he was at the Administrative Hearing in March 1, 2000 and that he had no concerns with the project. However, he noticed that during construction, the stairway came down right to the fence line, which would have privacy impacts and property value. He stated that he spoke with a planner and expressed his concerns and construction should have been stopped. He commented that the applicant acted that since he has obtained a permit, he could build the accessory living unit anyway he wants. Mr. Mentink urged the Commission to deny the application.

Dolores Medeiros, resident of the front unit, stated the during the construction period, there were concerns expressed then. She stated some tenants have moved as a result of privacy impacts and that new tenants expressed the same concerns. She further stated that the project impacted their privacy in the back unit. Furthermore, she stated that she was speaking on behalf of the rear neighbors who expressed concerns with congestion of cars with the animal hospital and car shop, there would be excessive cars in the neighborhood.

Dan Gutierrez, resident, stated that the diagram presented was incorrect since the stairway is in the wrong location. He felt that firemen would not be able to come in the rear as it is tight.

Comm. Simons asked staff if Public Safety expressed similar concerns on circulation. Staff said no.

Comm. Swegles asked staff whether the stairway is part of the original plan. Staff responded that the original design, the stairway is located in the left side of the building. She added that staff worked with the applicant to adjust its location.

Vice Chair Babcock commented that the top of the stairs appear to be large. Staff responded that it is a typical landing space.

Mr. Gutierrez, resident, added the structure is not above the garage but rather built beyond the property.

Dolores Medeiros, resident, asked if the first level is a two-car garage or whether the other side is being used as an accessory living unit. Staff responded that per the submitted plan, it is a two-car garage and not being used or proposed as an accessory living unit.

Mr. Torres, applicant, stated that for the upstairs window, he is willing to make sill windows to mitigate the privacy impact to the neighbors. He added that he installed enough sprinklers to ensure sufficient water in case of fire. He was puzzled on how the property value of the neighbors is affected by his construction. He stated that he obtained information and that his project if anything would enhance the neighborhood, thereby increasing the property value of his neighborhood.

Comm. Moylan asked staff if there was a design review with the originally approved Use Permit. Staff responded that in 2000, a design review was conducted concurrent with the Use Permit.

Vice Chair Babcock commented that it is sad and difficult case. She stated that the code requirement is clear and could not see how an accessory living unit can be built too large from the approved plans. She concluded that approving this project would create a precedence of not following the approved plans and permits.

Comm. Swegles had no further comments.

Comm. Moylan concurred with Comm. Babcock and added that he was unable to make the required findings. He stated that his decision is based on land use arguments and that there is nothing unusual that would create hardships, approval of the variance would be detrimental to the immediate vicinity and if the variance is approved, it would give a special privilege to the applicant. Further, he stated that approving the Variances and the design with the accessory living unit build not in accordance with the approved use permit would be a precedence.

Comm. Chu concurred with his fellow commissioners. He stated that it was hard to imagine a mistake in the interpretation of the plans with the cantilever of 8’ overhang which is beyond the margin of error. He supported the motion.

Chair Simons commented that this project was the first he had encountered for a project not built in accordance with the approved plans. He could not fathom how a project could be approved in the way it was built. He urged the applicant to work with staff.

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