DATE: January 22, 2025
TO: Honorable Mayor and City Councilmembers
FROM: Development Services Department
TITLE: ADOPTION OF A RESOLUTION UPHOLDING PLANNING COMMISSION RESOLUTION NO. 2024-P09 DENYING A REGULAR COASTAL PERMIT AND VARIANCE TO ALLOW AN EXISTING UNPERMITTED BALCONY ACCESSORY TO A SECOND STORY APARTMENT UNIT AT 1842 SOUTH PACIFIC STREET - GARST RESIDENCE - APPLICANT: SHANE GARST; APPELLANT: SHANE GARST
RECOMMENDATION
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Staff recommends that the City Council adopt a resolution upholding Planning Commission Resolution No. 2024-P09 denying Regular Coastal Permit (RC23-00013) and Variance (V24-00001) to allow an existing unpermitted balcony accessory to a second story apartment unit that exceeds the maximum allowable lot coverage in the R-1 District at 1842 South Pacific Street.
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BACKGROUND AND ANALYSIS
The project site is located at 1842 South Pacific Street and has a zoning designation of Single Family Residential (R-1 - Coastal Zone). The 6,000 square-foot parcel is developed with three legal, non-conforming multi-family apartment units, an accessory dwelling unit (ADU), and a detached garage. Units 1 and 2 are located in a single-story duplex structure and Unit 3 is located above the detached garage at the rear of the property adjacent to Pacific Terrace alley. A portion of the four-car garage was legally converted into an ADU in 2023. The multi-family dwelling units and detached garage on the project site were constructed in 1951 under the R-3 (Multiple Family) development standards of the 1950 Zoning Ordinance. Therefore, the existing multi-family development is considered a legal, non-conforming use in what is now a single-family residential zone.
Project Description
The applicant is requesting a Regular Coastal Permit and a Variance to allow an existing unpermitted balcony accessory to Unit 3. The balcony is constructed of wood and supported by five vertical posts. It measures approximately 326 square feet in area with a height of 13 feet to the top of the railing. Proposed lot coverage would be approximately 47 percent which would exceed the maximum allowable lot coverage of 40 percent (40%) in the R-1 District. In accordance with the City’s Local Coastal Program Handbook, a Regular Coastal Permit is required for improvements and additions to existing structures located within the appeal area of the Coastal Zone.
A detailed project description and full analysis is contained in the Planning Commission Staff Report dated April 22, 2024 and is included as Attachment 4 for reference.
Permitting and Code Enforcement History
On December 9, 2022, the property owner obtained a building permit (BLDG22-2538) to remodel and repair all three dwelling units with a scope of work limited to window replacement, shear walls, drywall repair, and various interior improvements. Between December 2022 and May 2023, the property owner (project applicant) was cited multiple times by the Code Enforcement Division for ongoing construction that exceeded the scope of work approved under BLDG22-2538.
On May 12, 2023, Code Enforcement issued and posted a third stop work notice at the property with instruction to immediately cease further construction until obtaining a valid building permit. Photographs taken by Code Enforcement on May 12, 2023 document the unpermitted work, including partial construction of a new balcony attached to Unit 3. Code Enforcement revisited the site on May 23, 2023 and observed clear evidence that work continued on the property, including ongoing construction of the balcony, despite the stop work notice posted on May 12, 2023. A detailed chronology of Code Enforcement actions is provided as Attachment 5.
In June 2023, the property owner applied for a revision to BLDG22-2538 to accurately reflect the scope of work being performed on the property. The submitted plans identified the Unit 3 balcony as “existing;” however, Development Services staff confirmed that the balcony was new, unpermitted construction as documented by Code Enforcement and shown on Google Map views from prior years.
The applicant was informed in writing that the construction of a new balcony would require approval of a Regular Coastal Permit because the property is located within the appeal jurisdiction of the Coastal Zone. In the interim, the applicant removed the new balcony from the scope of work and was issued a building permit on August 1, 2023 to complete the remaining remodel and repairs on the property. All permitted work has since been completed.
An application for a Regular Coastal Permit was submitted by the applicant on August 30, 2023. During preliminary review, the Planning Division determined that the existing structures on the property already exceeded the maximum lot coverage of 40 percent (40%) in the R-1 District by approximately seven-percent (7%). The applicant was informed that the addition of the balcony would be an intensification of a non-conforming condition with respect to lot coverage.
Staff advised the applicant of the option to pursue a variance with the understanding that staff may not be able to support the request based on the requisite findings necessary for approval. The applicant opted to apply for a variance to exceed the allowable lot coverage and keep the balcony as constructed. Staff subsequently recommended denial of the request to the Planning Commission as the requisite findings for a variance, described later in this report, cannot be met.
Planning Commission Action and Appeal
The Planning Commission considered the proposed project at its regular meeting on April 22, 2024. Public testimony was provided by two neighbors on adjacent sides of the project site. Concern was voiced regarding impacts of the balcony on backyard privacy and construction of the balcony without a building permit. After due consideration, the Planning Commission, by motion, voted 6-0 (one commissioner absent) denying Regular Coastal Permit (RC23-00013 and Variance (V24-00001) through adoption of Resolution No. 2024-P09.
On May 10, 2024, the Planning Commission’s action was appealed by the project applicant, Shane Garst. In this staff report, Mr. Garst is referred to as the “Appellant” for issues regarding the appeal. The letter of appeal is included as Attachment 3 and the Planning Commission Resolution denying the project is included under Attachment 2.
Subsequent to filing an appeal application, the Appellant submitted additional documents claiming that the April 22, 2024 Planning Commission staff report contained inaccuracies. The City Council may only consider the grounds for appeal raised in the appeal application. Staff addresses each of these grounds later in this report. However, staff has provided the following clarifications to the April 22, 2024 staff report (Attachment 4) in response to the Appellant’s comments:
• Code Enforcement actions (Page 2): The Appellant disputes the date that Code Enforcement issued a stop work order. Staff finds the reporting dates to be accurate as documented in the Code Enforcement record provided as Attachment 5 of this staff report. The Appellant was cited for performing work outside the scope of work approved under BLDG22-2538.
• Lot Coverage Table 2 (Page 6): Mr. Garst claims that Table 2 inaccurately represents existing lot coverage of adjacent properties. Mr. Garst submitted a lot coverage exhibit produced from an “orthophoto” with lot coverage calculations of four adjacent parcels. Since the exhibit was not stamped by a licensed professional attesting to the accuracy of the data, staff cannot confirm accuracy of the calculations. Table 2 of the Planning Commission staff report was based on record data produced from building permit and coastal permit records.
Ø 1902 S. Pacific Street: Appellant’s exhibit shows lot coverage at 59.7 percent; however, building permit BLDG22-1427 identifies lot coverage as 50 percent for the construction of a second story SB 9 dwelling unit above an existing single-family dwelling.
Ø 1908 S. Pacific Street: Appellant’s exhibit shows lot coverage at 44.1 percent; however, the approved site plan for Regular Coastal Permit RC-10-05 and BLDG06-0816 identifies a lot coverage of 40 percent.
Ø 1910/1912 S. Pacific Street: Appellant’s exhibit shows lot coverage at 52.9 percent; however, Regular Coastal Permit RC12-00012 was approved by the Planning Commission on October 12, 2012 with a lot coverage of 46 percent (lot previously built at 51 percent).
Ø 1920 S. Pacific Street: Appellant’s exhibit shows 59 percent; however, Regular Coastal Permit RC12-00006 was approved by the Planning Commission on July 9, 2012 with a lot coverage of 39.8 percent (lot previously built at 49.9 percent).
• The existing lot coverage data provided above is based on the City’s record data. It is impractical for staff to physically verify “as-built” conditions for all properties as it would involve extensive on-site measurements and field research. The April 22, 2024 Planning Commission staff report acknowledged that there are existing properties exceeding lot coverage. However, to-date there are no records of the City approving any Regular Coastal Permits in conflict with zoning requirements or intensifying a non-conforming condition. All development requests are evaluated in accordance with the LCP, Zoning Ordinance, and state law.
Zoning History
Prior to 1958, the project site and all parcels (1800-2000 block) on the east side of South Pacific Street between Cassidy Street and Eaton Street were zoned R-3 (Zone R-3 Multiple Family) and subject to the City’s 1950 Zoning Ordinance (Ord. 655). The R-3 district allowed multifamily dwelling units on lots with a minimum size of 5,000 square feet. Records show the block developed with a variety of single and multifamily dwellings dating back to the 1930s.
The 1958 Zoning Ordinance was adopted by the City Council on January 8, 1958 (Ordinance 58-1) and repealed the 1950 Zoning Ordinance. It established zoning districts to regulate the use of land, building height, lot area, and yard spaces. The Zoning Ordinance predated the California Coastal Act which was enacted in 1976.
The Zoning Map adopted with Ordinance 58-1 rezoned the project site, and all properties on the east side of South Pacific Street between Cassidy Street to Eaton Street, from R-3 to R-1 (One-family Residential Zone) as shown on Figure 2.
Figure 2- Coastal Zoning Map 1958
The change from multi-family to single-family zoning rendered the project site, and similar properties in the area, as legal non-conforming with respect to unit count, lot coverage, and potentially other development standards. As provided in Zoning Ordinance Article 35 (Nonconforming Uses and Structures), Section 3503, any building, structure or lot which, by reason of height, area, or yard requirements that is conforming prior to the effective date of the Zoning Ordinance or any amendment thereto, shall be deemed to be conforming, provided that any additions, alterations or changes shall conform to all provisions of the Zoning Ordinance.
Lot Coverage Requirements
The project site is zoned R-1 and subject to development regulations provided in Article 10C (Residential ‘Coastal Zone’) of the Zoning Ordinance. Maximum lot coverage in the R-1 District is 40 percent. If the property had retained an R-3 zoning designation, lot coverage would have been established at 60 percent. Lot Coverage is defined as the percentage of a site covered by solid or open frame roofs, soffits, or overhangs and by decks more than 30 inches in height. As previously described, the proposed deck addition would bring the site’s lot coverage to 47 percent.
Appeal
Pursuant to Section 4605(C) of the Zoning Ordinance, the City Council may consider only the issues that were raised in the appeal filed with the City. The following is a summary of the Appellant’s reasons, as understood by staff, for filing an appeal of the Planning Commission’s decision to deny the project. Each identified reason for filing the appeal is followed by a response from staff. The Appellant’s letter of appeal, which includes the full text of each appeal point, has been included as Attachment 3 for the City Council’s reference.
ISSUE 1: The Appellant contests the City staff’s calculation of lot coverage.
City Response:
The Appellant contends that City staff did not accurately calculate the lot coverage of other properties in the area, when compared to the project site. As previously noted, staff evaluated existing lot coverage in the vicinity based on available City building permit and coastal permit entitlement records.
The Planning Commission staff report acknowledges that certain properties in the area exceed 40 percent lot coverage. However, it is also noted that many of these properties were developed under the prior R-3 zoning, which allowed 60 percent lot coverage. Existing properties with legal, nonconforming lot coverage are not considered to have been granted a special privilege under current zoning based on the fact that the entire block was uniformly rezoned to R-1 in 1958.
As provided in Article 35 of the Zoning Ordinance, a property developed under previous versions of the Zoning Ordinance is considered conforming with zoning, except that any new construction is subject to current development standards of the underlying zoning district. Lot coverage was evaluated based on information provided on the applicant’s site plan submitted with the coastal permit. As noted on the site plan, lot coverage exceeds 40 percent.
ISSUE 2: Appellant alleges the denial of the variance results in a violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution and Article I Section of the California Constitution. Appellant claims the Planning Commission decision results in disparate treatment compared to other property owners.
City Response:
The project was reviewed and processed in accordance with procedures set forth in the City’s Local Coastal Program, Zoning Ordinance, and the City’s Development Processing Guide. Staff found no evidence validating the Appellant’s assertion that the project applicant was treated unequally compared to other property owners in similar situations. No city records indicate that similar variances were granted for a deck to exceed lot coverage in the vicinity and in the same zoning district as the project site.
All variance requests are evaluated objectively by staff in accordance with the requisite findings. In 2019, staff recommended denial of a requested variance (V21-00001) to allow an encroachment of a rear deck into a setback and exceed the allowed maximum lot coverage for an existing single-family residence at 25 St. Malo Beach. The applicant was unable to provide sufficient justification for the variance and withdrew the application prior to the scheduled Planning Commission hearing on July 12, 2021.
A review of City entitlement records also demonstrates that the Planning Commission has denied variance requests in the past based on the inability to make the requisite findings for approval as outlined in Article 41 of the Zoning Ordinance.
ISSUE 3: Appellant claims City staff made inaccurate assumptions about lot coverage requirements prior to 1958.
City Response:
Staff reviewed the archived 1950 Zoning Ordinance and found no provisions pertaining to lot coverage requirements in residential districts. In 1958, lot coverage was clearly established at 60 percent for the R-3 District and 40 percent for the R-1 District. As noted in the Planning Commission staff report, the project site was previously zoned R-3 (Multiple Family) and changed to R-1 (One-family Residential Zone) in 1958. Regardless of lot coverage requirements prior to 1958, there is no evidence that the property was subject to a more restrictive lot coverage requirement than other properties in the vicinity.
Issue 4: Appellant claims he was provided “misguidance” from the Development Services Department.
City Response:
The Appellant claims that the Planning Division erroneously informed the applicant in July 2023 that only an “administrative coastal permit” would be required for the project, but was later informed a Regular Coastal Permit would be necessary. The Appellant asserts that this misguidance significantly hindered the applicant’s efforts to obtain the required permits promptly.
On May 12, 2023, the Code Enforcement Division issued a stop work notice at the project site for ongoing construction without the issuance of a valid building permit. The property owner applied for a revision to building permit BLDG22-2538 on June 5, 2023 to accurately reflect the scope of work being performed as part of the remodel/repair of the existing multi-family units on the property. Development Services Department staff determined that the Unit 3 balcony, which was labeled as “existing,” was in fact new, unpermitted construction that occurred in early 2023 as documented by the Code Enforcement Division.
On July 3, 2023, the applicant was issued formal plan check comments from the Building Division indicating that the project would require a Regular Coastal Permit for the construction of a new balcony in the appeal area of the Coastal Zone. The applicant formally submitted an application for a Regular Coastal Permit on August 30, 2023, including the payment of the required $4,000 deposit fee. Staff finds that plan check records for BLDG22-2538 clearly indicate the applicant was notified of the Regular Coastal Permit requirement on July 3, 2023 during second plan check. The misrepresentation of the balcony as “existing” rather than new construction ultimately affected staff’s ability to review the proposal for compliance with city codes.
Issue 5: Appellant claims the variance should be granted due to the site’s physical and geographic conditions, site specific hardships and community benefits.
City Response:
The project site is consistent with the R-1 District’s minimum lot size of 6,000 square feet and is of similar size to other R-1 properties in the area. The prior R-3 zoning (1950) had a minimum lot size of 5,000 sq. ft. Since the project site is rectangular in shape and void of unique physical and geographic conditions, it cannot be viewed as a constraint for development. Many properties in the area were constructed in the same time period and are now subject to the same R-1 standards as the project site.
As provided in Article 35 of the Zoning Ordinance, structures that were legally constructed prior to the current Zoning Ordinance, or as amended, are considered conforming, except that any new addition must conform with all provisions of the Zoning Ordinance.
The Appellant states that the specific site characteristics, including its size, shape, and existing structures, necessitate a variance to provide a valuable outdoor space without compromising the integrity of the property or its surroundings. In addition, the Appellant claims the three-unit configuration contributes to alleviating the housing shortage faced by the City. Staff notes that the existing property already has common outdoor open space located between the units and a balcony is not necessary to provide needed outdoor space. No properties in the vicinity with a unit located above a detached garage have a similar balcony. Two of the three units on the property (1842 and 1844 South Pacific Street) have active short-term rental (STR) permits. If the subject units were operated as STRs, they would not contribute to long term housing opportunities in the City. In addition, an STR permit application was denied by staff for the subject unit due to the pending code enforcement case related to the unpermitted balcony.
The Appellant also claims that the granting of a variance would provide a community benefit aligning with the broader objectives of promoting sustainable and aesthetically pleasing development within the community. Staff finds community benefit is not relevant to the requisite findings of approval for a variance nor does the unpermitted balcony represent a community benefit.
Issue 6: Appellant claims the failure to obtain a building permit prior to the variance application is not relevant.
City Response:
The ability to obtain a building permit was not the basis for the Planning Commission’s denial of the variance. As acknowledged in the Planning Commission staff report, a building permit cannot be issued unless a Regular Coastal Permit is approved by the Planning Commission. The requested variance was found inconsistent with the other required findings necessary for approval. Therefore, the Planning Commission was unable to approve the coastal permit. Resolutions for denial do not include conditions of approval. If the Planning Commission had opted to approve both the coastal permit and variance, the resolution would have included a condition of approval requiring the applicant to obtain a building permit for the balcony.
Issue 7: Appellant argues that granting the variance would not violate the Local Coastal Program.
City Response:
The Appellant asserts that the proposed deck is consistent with the Local Coastal Program. Issuance of a coastal development permit is subject to compliance with all zoning requirements of the R-1 District. Since the requested variance did not meet the requisite findings for approval, the project is found inconsistent with the LCP.
Summary
Pursuant to Section 4605(C) of the Zoning Ordinance, the City Council may consider only the issues that were raised in the appeal filed with the City. The extensive analysis provided above clearly demonstrates that the Appellant has not provided any basis to warrant overturning the Planning Commission’s denial of the project.
ENVIRONMENTAL DETERMINATION:
Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, project denials are not subject to CEQA.
FISCAL IMPACT
No fiscal impact.
COMMISSION OR COMMITTEE REPORT
The Planning Commission considered the project at its regular meeting on April 22, 2024. After due consideration, the Planning Commission, by motion, voted 6-0 (one commissioner absent) denying Regular Coastal Permit (RC23-00013 and Variance (V24-00001) through adoption of Resolution No. 2024-P09.
CITY ATTORNEY’S ANALYSIS
The City Council is authorized to hold a public hearing in this matter. Consideration of the matter should be based on the testimony and evidence presented at the hearing. After conducting the public hearing, the Council shall affirm, modify or deny the project. The supporting documents have been reviewed and approved as to form by the City Attorney.
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Prepared by: Rob Dmohowski, Principal Planner
Reviewed by: Darlene Nicandro, Development Services Director
Submitted by: Jonathan Borrego, City Manager
ATTACHMENTS:
1. Staff Report
2. City Council Resolution
3. Planning Commission Resolution Appeal Packet
4. Planning Commission Staff Report Packet
5. Case Summary 1842-1846 S Pacific St
6. South Pacific Lot Coverage