PLANNING COMMISSION MINUTES OF 02/23/04

2003-0837 – Brian Smithson [Appellant] - Appeal of a decision by the Director of Community Development approving a Miscellaneous Plan Permit to allow a 7’2” high accessory utility building in the rear yard.  The property is located at 1104 Burntwood Court in an R-0 (Low Density Residential) Zoning District.  (APN: 104-25-074) RK

Ryan Kuchenig, Project Planner, presented the report.  He summarized the application highlighting the site and the surrounding neighborhood.  He reported that a Miscellaneous Plan Permit (MPP) was approved for a 7 foot 2 inch high accessory utility building located two feet from the rear property line in February 2002.  The Neighborhood Preservation Division was notified that the structure may not have been built according to the approved plans. The appellant filed an application to allow a taller structure but was approved consistent with the original permit of 7 feet and 2 inches high, a staff decision that is being appealed.  He explained that the action is consistent with planning policy.  Staff was unable to make the required Findings and recommended denying the appeal and upholding the decision of the Director of Community Development.

Comm. Simons commented that during his site visit, there appears to be some code violation regarding illegal structure, fence and setback.  He asked whether the issue is unique or unusual or would there be more to come before the Planning Commission because of the enormous code violations in the neighborhood. Staff responded that the applicant is appealing the decision due to their desire to keep the height of the accessory structure.  Further staff noted that it would be difficult to ascertain how many of a similar nature would come before the Planning Commission since there is nothing pending at the moment.

Vice Chair Moylan asked staff how many code violations would likely come before the Commission given that some citizens may bring these non-compliance issues to staff.  Staff responded that staff works with non-compliant residents and advises them what permits are necessary to be in compliance.

Comm. Klein asked whether Condition of Approval #3 is to every shed and other utility building.  Staff responded that this condition is applied to sheds that are located on a public utility easement.

Further, Comm. Klein asked if Condition of Approval #3 is a new condition since the initial approval of the shed.  Staff responded yes subsequent to the original approval.

Comm. Hungerford clarified with staff that the original permit was for a 7 foot and 2 inches high. Staff said yes.

Chair Babcock opened the public hearing.

Bonnie Smithson, appellant, stated that the shed was designed that is in keeping with the character of the neighborhood.  However, the shed was built taller than the approved height in error. She stated that she applied for a Variance before a complaint was received.  She also noted that she had no idea about the nature of the complaint until she received the staff report.  She noted that the complainant has illegal non-conforming structures in his property.

Brian Smithson, appellant, stated that the structure meets the goal of General Plan 2.5C1 for its unique architecture matching the style of the neighborhood. He noted that the structure does not create a walled-in effect; therefore, does not impair the use of the next door’s property. He stated that by reducing the height of the structure, it would create a less attractive architecture and is not an appropriate solution.  He further stated that he was able to make the required Findings. He urged the Commission to grant the appeal and approve the Miscellaneous Plan Permit as presented.

Ms. Smithson stated that both of them are currently unemployed and should the Commission agree with staff recommendation requested the commission to grant them a year to bring the structure in compliance.

Vice Chair Moylan asked whether it is possible to modify the shed keeping the roof of the shed to maintain its unique architecture. The appellants responded that several options were considered but those options would create more of a hazard.  They apologized for the error and stated that they stopped construction when they realized that the shed was built higher than what was approved.  However, because of weather conditions and to save the material already purchased, they needed to complete the project higher than what was approved.

Steve Nguyen, resident, stated that while the structure is being built, he inquired as to the approved height of the structure.  He was told that the permit was approved for 7’2” high.  However, he noticed that the structure was built not in accordance with the approved plans.  He also addressed the illegal non-conforming structures on his property that he has been working with City staff to bring in to compliance.  His concern is the feeling of being walled-in with the presence of the tall structure and particularly is the principle to comply with the approved plans.  He stated that the appellant has stated that he “would comply with the requirements up to a certain extent.”  He felt that the action of the appellant is a direct defiance of the code.

Comm. Moylan confirmed with the speaker that the shed on his property has been removed.  Mr. Nguyen responded that it will be gone in six months and that he is working with city staff to bring his shed into compliance.

Vice Chair Moylan asked whether his feeling of being walled-in originated from the time the house was remodeled.  Mr. Nguyen responded that he is not fond of it and but no objection to the design of the house since it was approved by the City.

Finally, Vice Chair Moylan commented that if the shed is brought down to 7’2” high, it would still be sticking up above the fence and asked Mr. Nguyen if he would rather see a flat roof or the architecturally designed roof.  Mr. Nguyen did not make a choice but rather stated that he prefers observance of the principle and that standards should be applied to all. 

Linette Nguyen, resident, admired the courage of the appellant in building their house, although she does not think it fits in the neighborhood; it is a unique style.  However, she stated that the shed is the issue creating an uncomfortable feeling.

She was concerned with the fact that the shed was approved at a certain height, yet the shed was not built in accordance with the approved plans.  She appreciated staff’s efforts in bringing Lakewood neighborhood into compliance. 

Vice Chair Moylan asked Ms. Nguyen for her preference, given the limited option to bring down the height of the shed, a flat roof or the slopping roof. Ms. Nguyen preferred to have the lower height with the flat roof.

Thom Mayer, resident, asked how high can the fence be to block the view of the shed?  He commented that there a number of structures in the neighborhood that are in non-compliance.

Vice Chair Moylan asked Mr. Mayer if he is in favor or against the appeal.  Mr. Mayer was neither in support or against the shed, he likes how the shed looks on the side, but is concerned in general with non-conforming sheds.

Brian Smithson, appellant, stated that the fence in the back is about six feet with the lattice included.  He was surprised about the sentiments on how his house was built. His goal was to be more in-style with the neighborhood. He stated that he went through the process and worked with staff to be in compliance.  He further stated that there is no code violation but rather guidelines.

Comm. Klein asked staff what would be the appropriate off-set from the fence taking into consideration the height of the shed and whether it is possible to move the shed farther from the fence to reduce visibility.  Ms. Ryan clarified that there is no Variance before the Commission.  She stated that the height of the shed is a matter of discretion and up to 15 feet is permitted. She added that staff uses a rule of thumb for any shed over six and half feet high, that for every additional foot in height, it should be set back an additional three feet from the rear property line.  This is the rule of thumb used in evaluating the accessory structure. She stated that the Commission has the discretion up to 15 feet in height and noted the staff decision for additional setbacks along with the structure height.

Comm. Klein asked Mr. Smithson what is the distance between the house and the shed.  Mr. Smithson responded 5-6 feet.  He suggested planting trees to screen the shed could be an option.

Chair Babcock then asked whether there is room for landscaping.  Mr. Smithson responded none on his property but there could be on the Nguyen’s property.

Chair Babcock closed the public hearing.

Comm. Simons asked staff for procedure allowing the 15 foot high shed that could be subject to public hearing and examples where one was permitted.  Ms. Ryan responded that a Miscellaneous Plan Permit does not go to public hearing but is a staff level decision which is appealable to the Planning Commission.  Ms. Ryan responded that she could not recall any specific requests for a 15-foot high accessory structure but more likely a request would be on a property adjacent to a non-residential use, so the impact to the rear property line is not under consideration.

Comm. Simons commented that the city guidelines to accessory utility buildings appear to allow only flat roof buildings.  Ms. Ryan stated that there are considerable numbers of off-the-shelf sheds where a peak of the roof is six foot six inches. She noted the standard was selected with these sheds in mind.

Comm. Hungerford commented that he could not get over the hurdle about the mistake of creating a taller shed different from the approved plan.  During his site visit, he felt that the structure is too high for the location and from the street, it overwhelms the whole area. He is concerned with the legality of the permitted height and its visual impact.  He was convinced that the original permit should stand.  Although the appellant presented a strong argument, he could not support the existing structure.

Vice Chair Moylan offered a friendly amendment to give the appellant one year to comply.  The amendment was accepted by the maker and the second.

Vice Chair Moylan did not support the motion.  He stated that the application was very educational and that the action of the appellant was not a code requirement violation but rather guidelines where there is room for flexibility. He was able to make the required Findings. 

Comm. Simons was also surprised to learn that the application was a violation of the rule of thumb and not a code requirement. However, he was concerned that the shed was built not in accordance with the approved plans be it a code requirement or a guideline. He preferred to grant four to six months to bring the shed in compliance.

FINAL MOTION:

Ms. Ryan stated that the decision is final.