TO: Design Review Board

FROM: Brian Lynch, Associate Planner

SUBJECT: 5025 Paradise Drive; file #702066

MEETING DATE: August 1, 2002 REVIEWED BY: DMW

APPLICANT/OWNER: Bruce Zelony

APPELLANT: Christopher Janda

ENVIRONMENTAL DETERMINATION

This proposal is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) as specified in Section 15303(e).

HISTORY

On May 1, 2002, the applicant submitted a Staff Level Design Review application for a fence to be constructed on the property at 5025 Paradise Drive. The application was reviewed for completeness and the courtesy notices were sent to the adjacent neighbors. A letter dated May 17, 2002 was submitted by Christopher Janda, owner of the adjacent property at 5035 Paradise Drive, regarding his concerns of the proposed fence. The appellant’s concerns included the fact that the proposed fence would effectively eliminate an existing paved area on the applicant’s property that was historically used as a parking area for the appellant’s vehicles. This would mean the appellant would have to back his vehicles down the steep driveway to Paradise Drive.

In the above referenced letter, the appellant requested additional review time to determine if prescriptive rights have been acquired on the applicant’s property, in addition to reviewing the accuracy of the applicant’s survey, and seeing if a neighborly solution could be reached before Staff’s decision. After two additional days of review, Staff did not observe any progress in respect to the appellant’s requests, thus the project was approved on May 22, 2002.

REVIEW BY STAFF

Staff reviewed the design and placement of the proposed fence. The fence would be comprised of solid redwood, and would be six feet in height. This is standard fence design that is ubiquitous throughout the Town, and would match the design and placement of existing fences on the subject property. The placement of the fence would be completely on the applicant’s property, and would not inhibit important bay views from the appellant’s property.

The concerns voiced by the applicant are issues that cannot be addressed through the Design Review process. Section 4.02.07 of the Zoning Ordinance outlines the Guiding Principles for Design Review which the acting body must consider when making a decision. The issue of prescriptive rights as discussed by the appellant is a civil matter over which the Town has no jurisdiction. Because there were no concerns related to the Guiding Principles, Staff found the project to be consistent with the Zoning Ordinance, and within the purview of "Staff-level" action.

GROUNDS FOR APPEAL

The Appellant has cited two grounds upon which the appeal is based (Exhibit #1):

Ground #1: The proposed fence would be detrimental to public health, safety and welfare because it would effectively eliminate the turnaround space at the top of the appellant’s driveway. The lack of turnaround would create a dangerous and unsafe condition because any vehicle leaving the appellant’s property would have to back down the steep, curved driveway and then onto Paradise Drive.

Staff Response: The appellant does not appear to have rights to use the applicant’s property to maneuver vehicles. The title report for the applicant’s property does not describe any easements for the existing turnaround that are to be maintained by the applicant. The hardship described by the appellant is a self-created one, and should be resolved on the appellant’s own property. The appellant’s property is relatively large, and there are other options to solving the parking/turnaround problem.

Ground #2: The proposed gate in the fence near the existing turnaround area would only be accessible from the appellant’s property. This would constitute an invasion of privacy and property rights.

Staff Response: In review of the application Staff concluded that the proposed fence and gate would be a more significant barrier between the two properties than the existing site conditions, thus the project would not be a detriment to the appellant’s privacy and property rights. The applicant has indicated that the purpose of the gate near the existing turnaround area would be to allow the appellant future access to the turnaround area if needed. The applicant has also stated that this is not a necessary part of the application.

Staff approved the project as proposed because whether the gate was installed or not, the appearance of the project would not change. This is because the gate would be integrated into the design of the fence. If the Design Review Board finds this gate an invasion of privacy and property rights, than it is recommended that the Board add a condition of approval to exclude this gate from the project.

PUBLIC COMMENT

To date, no comments from the public have been submitted.

RECOMMENDATION

It is recommended that the Board receive public testimony, and review this project with respect to Guiding Principles for Site Plan and Architectural Review. If the Board finds that the design of the project is consistent with the Guiding Principles, then it is recommended that the Board direct Staff to prepare a resolution denying the appeal.

1.    Notice of Appeal and supplemental materials.

2.    Application and supplemental materials dated May 1, 2002.

3.    Courtesy and approval notice dated May 9, 2002, and May 22, 2002.

4.    Letter from appellant’s attorney dated May 17, 2002.

5.    Plans prepared for the project.