March 22, 2005

 

SUBJECT:	2004-0477: Kathey Fyke (Appellant), Lidia Barouh (Applicant) Application on a 4.2-acre condominium complex located at 893 Rattan Terrace in an R-0/PD (Low Density Residential/Planned Development) Zoning District (APN:  213-56-022):
Motion	Appeal of a decision by the Planning Commission to approve a Use Permit to allow a seven-foot high side yard fence.

 

REPORT IN BRIEF     

 

Existing Site Conditions	Condominium
Surrounding Land Uses
North	Condominium
South	Sunken Gardens Golf Course
East	Single-Family Homes
West	Condominium
Issues	Appropriate fence height Privacy concerns
Environmental Status	A Class 11 Categorical Exemption relieves this project from California Environmental Quality Act provisions and City Guidelines.
Administrative Hearing Officer Recommendation	Approve the Use Permit with conditions
Planning Commission	Deny Appeal and approve the Use Permit with conditions
Staff Recommendation	Deny Appeal and approve the Use Permit with conditions

For Project Site Map, click here (.jpg) 

PROJECT DATA TABLE

 

 

 

 

 

 

 

 

 

 
ANALYSIS

 

Description of Proposed Project

 

This project is to permit an existing 7 ft. fence approximately 25 ft. in length located between two backyard areas in an approximately northwest by southeast direction. The fence was installed without required permits or a written agreement from the adjoining neighbor. The neighbor has appealed the approval by the Planning Commission made on November 8, 2004.

Background

 

This application is the result of a Neighborhood Preservation complaint from the resident to the left of the project site (appellant). The proposed fence is currently in existence, and photos are located in Attachment F. 

 

Since the time the original application was filed, the subject property has been sold to a new owner.  The original owner is continuing to serve as the project applicant. Staff has contacted the new property owner and homeowners’ association representative and advised them of their rights to withdraw this application. Neither the property owner nor the homeowners’ association representative has responded to staff’s correspondence.  According to the applicant, as a condition of sale, she is supposed to serve as the project applicant through the appeal process.

 

Administrative Hearing: On July 28, 2004 an Administrative Hearing was held on this application. The adjoining neighbor (appellant) attended the hearing and stated concerns with the process of adequate notification and neighbor involvement in the Use Permit application. She stated that she needed additional time to submit more information. The Hearing Officer took the matter under advisement to allow for the submittal of more information. The Hearing Officer did not receive any further information and approved the Use Permit.  The neighbor appealed this decision to the Planning Commission.

 

Planning Commission Hearing: On November 8, 2004, a Planning Commission hearing was held on this application.  There was a significant delay between the date of the appeal and the date of the hearing due to difficulty with finding an acceptable date for both the appellant and the applicant.  The appellant did not attend the hearing but was contacted by the Commissioners to understand her concerns.  After hearing a presentation by the applicant’s representative, the Planning Commission approved the Use Permit (Attachment I, Planning Commission Minutes).  The neighbor has appealed this decision to City Council.

 

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

 

File Number	Brief Description	Hearing/Decision	Date
3962	Develop 23 residential condominiums (The original conditions of approval did not specify allowable fence heights.)	City Council Approved	7/24/79

 

Environmental Review

 

A Class 11 Categorical Exemption relieves this project from California Environmental Quality Act provisions and City Guidelines.  Class 11 Categorical Exemptions include construction of accessory structures.

 

 

Use: According to the applicant, the proposed 7-foot tall fence is intended to provide additional privacy so that the adjoining neighbor cannot see into their yard and home.

 

Any side yard fence that is 6-7 ft. tall requires a written agreement from adjoining property owners or approval of a Use Permit. The fence is located on commonly owned property so the Homeowner’s Association has been consulted and they have given their consent (Attachment E).

 

Site Layout: The Hidden Valley Condominium development is located on a property that is approximately 15 ft. lower than the surrounding single-family homes and level with Sunken Gardens Golf Course.  The rear yards of the subject site have approximately 20-30 ft. of flat ground and then the yards slope up towards the boundary of the development.

 

An existing 6 ft. tall fence is located between the yard area of the subject property and the appellant’s property (left side of the subject property). Tall shrubs inside the subject property are located between the house and subject fence adjacent to the older fence. The proposed fence starts approximately where the shrubs end and is several inches away from the existing 6 ft. fence. (Attachment C showing the existing Fence 1 and proposed Fence 2). The fence length is approximately 25 ft. long.  

 

Fence Design:  The proposed fence is 7 ft. tall at one end as measured from the subject property side. The shortest side is 3.5 ft. and increases in height due to the slope of the ground. The base is board-on-board with one foot of lattice on top. The fence height varies dependent on the grade, but does not exceed 7 ft., stepping up proportionally with the grade slope at the rear of the yard. The existing fence dies into the backyard slope (see Attachment C, Side Elevation and Attachment F, Photos).  

 

Expected Impact on the Surroundings

 

Neighbor Concerns: Staff has had several discussions with the neighbor regarding her concerns with the fence, which include the visual impacts and shading of her garden. The proposed fence is higher than the current fence and can be seen from the appellant’s property. The fence also has a slightly different design (one foot of lattice on top) as opposed to the existing board-on-board.  The neighbor has an elevated garden along the property boundary (see Attachment F page 1 of 2, Photos), and she is concerned the proposed fence creates additional shadow on the garden. The appellant has stated that she wants the fence to be removed.

 

Staff Discussion:  A dispute over a 7 ft. tall side yard fence is unusual. Staff has received only three other Use Permit applications where an adjoining property owner would not sign the fence agreement out of almost 500 Miscellaneous Plan Permit and Use Permit fence applications received since 1995. Two of these Use Permit applications were withdrawn and one was approved at a City Council hearing after two appeals from the neighbor.

 

There are two competing values in this project: the desire for privacy vs. possible visual and shadow impacts on adjoining property.  Yard privacy is desired by most homeowners, and combinations of screening landscaping and higher fences are used to achieve that goal. Neighbors who disagree with a higher fence typically have concerns regarding aesthetics and shade.

 

Staff has evaluated the visual and shadow impacts of the fence.  The fence is a standard residential design with lattice on top, as well as several inches set back from the yard boundary. Shadowing on the neighbor’s (appellant’s) yard is caused by the mature landscaping on the site.  The appellant has expressed concerns that the additional shading from the fence is an impact on her garden. Due to the height and orientation of the fence, staff believes the additional one foot of lattice will have minimal shadow effect on the existing garden. As this fence is a typical height, style and location for rear yards, staff is able to make the Findings and recommends approval of the Use Permit.

 

Comment on the Appeal

The appeal letter states concerns with the information contained in the staff report (Attachment H, Appeal Letter). The appellant has repeatedly expressed concerns that the fence is taller than 7 ft. Information provided by the applicant, as well as a measuring done by City staff have confirmed the height of the fence at 7 ft. from the subject property. Additional concerns regarding the CC&R’s were mentioned (Attachment G, Minutes from the Administrative Hearing). CC&Rs are private agreements that are not enforced by the City. The appellant has further indicated that she has discussed the fence with the new property owner. Staff is not aware of the current owner’s opinion of the fence.

 

Nearly four months have passed since the appeal was filed. Staff has been working with the appellant to provide her information that she has requested (Attachment J, Correspondence between City Staff and the Appellant), and the appellant and applicant have had limited availability to attend a public hearing.  

 

Staff was able to make the required Findings based on the justifications for the Use Permit.

·         Findings and General Plan Goals are located in Attachment A.

·         Conditions of Approval are located in Attachment B.

 

 

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

 

 

 

Both Planning and Neighborhood Preservation staff has had several conversations with the next door neighbor regarding this application.  Staff has spoken with the appellant since the appeal was filed. 

 

Notice of Public Hearing	Staff Report	Agenda
·         Published in the Sun newspaper ·         Posted on the site ·         4 notices were  mailed to the adjacent property owners of the project site	·         Posted on the City of Sunnyvale's Website ·         Provided at the Reference Section of the City of Sunnyvale's Public Library	·         Posted on the City's official notice bulletin board ·         City of Sunnyvale's Website ·         Recorded for SunDial

 

 

 

1.             Deny the appeal and uphold the decision of the Planning Commission to approve the Use Permit with conditions.

2.             Deny the appeal and uphold the decision of the Planning Commission to approve the Use Permit with modified conditions.

3.             Grant the appeal and deny the Use Permit.

 

 

Alternative 1.

 

 

Reviewed by:

                                               

Trudi Ryan, Planning Officer

Prepared by: Diana O’Dell, Senior Planner

  

Reviewed by:

Robert Paternoster, Director, Community Development Department

 
Approved by:

Amy Chan

City Manager

 

Attachments:

 

A.                 Recommended Findings B.                  Recommended Conditions of Approval C.                 Site and Architectural Plans (.pdf) D.                 Justifications from the Applicant (.pdf) E.                  Letter from the Homeowner’s Association (.pdf) F.                  Photos (.pdf) G.                 Minutes from the Administrative Hearing of July 28, 2004 (.pdf) H.                 Letter of Appeal (.pdf) I.                   Minutes from the Planning Commission Hearing of November 8, 2004 (.pdf) J.                   Correspondence Between City Staff and the Appellant (.pdf)

 

1.       The proposed use attains the objectives and purposes of the General Plan of the City of Sunnyvale as the height, and design of the fence are typical of residential fencing designed to provide additional privacy for yard areas and meets the City-Wide Design Guideline policies.

         

          City-Wide Design Guidelines E5. – Privacy fences over 6 ft. high in residential areas shall consist of lattice work for that portion of fence being over 6 ft. high.

 

          The proposed fence meets this guideline with one foot of lattice on top of a 6 ft. board-on-board fence.

         

2.                  The proposed use is desirable, and will not be materially detrimental to the public welfare or injurious to the property, improvements or uses within the immediate vicinity and within the Zoning District because the one-foot setback of the fence combined with the lattice design on top minimizes shadow impacts on the adjoining garden and the design of the fence is of adequate quality that it will not create a negative visual impact.

 

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