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Home My WebLink About1996-12-09 City Council (12)City of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: Planning and Community Environment AGENDA DATE: December 9, 1996 CMR:492:96 SUBJECT:Appeal of Zoning Administrator Approval of Variance No. 96-V-14 at 548 Palo Alto Avenue, Palo Alto, California for a Front Yard Fence. REQUEST This report addresses an appeal of a Zoning Administrator decision, which approved a six- foot-high fence, with six-foot, six-inch-high columns, in the front yard between the front property line and the back edge of the sidewalk, in the public right-of-way adjacent to the street frontage, of an existing single-family residence, where a four-foot-high fence located on private property is ordinarily the location and maximum height allowed. RECOMMENDATIONS Staff and the Planning Commission recommend that the City Council deny the appeal and uphold the Zoning Administrator’s approval in accordance with the proposed Findings (see Attachment 1). BACKGROUND The site is a fiat, irregularly shaped through-lot, located on a comer bounded by three streets: Palo Alto Avenue, Ruthven Avenue, and Tasso Street, in the Downtown North neighborhood. It is occupied by one single-family residence and is surrounded by other single-family residences, across the street from San Francisquito Creek and Hopkins Park. Mr. and Mrs. Mills applied for a variance on June 4, 1996, to allow portions of an existing six-foot-high fence to remain as constructed in the City’s right-of-way in the front yard of their property. The fence was built approximately three years ago, after approval of variance application 93-V-2, but that portion which is located in the City right-of-way was not CMR:492:96 Page 1 of 6 constructed in compliance with the approved drawings for the variance, as explained on pages 2 and 3 of the attached Planning Commission staff report. Zoning Administrator Approval: On August 15, 1996, the Zoning Administrator approved the second variance for the subject fence, based on the three required variance findings and with a condition that the property owner obtain an encroachment permit from the Public Works Department, since all but a very small portion of the fence (about 1 foot) is located within the public right-of-way (see Attachment 1 of the attached Planning Commission staff report). Appeal of Zoning Administrator Decision: An appeal of the Zoning Administrator’s decision was received on August 26, 1996, from Mr. David Cheriton. The appeal is based on the following seven general points: 1) the fence blocks the appellant’s view of Palo Alto Avenue and San Francisquito Creek; 2) the fence was not constructed to plans originally approved by variance 93-V-2; 3) the City of Palo Alto failed to take legal action which would force the property owner to either remove or modify the fence to meet current zoning requirements; 4) the City failed to take into account the negative impact the fence would have on the appellant’s property, when both the first and second variances were approved; 5) there are other zoning and building code violations on the property; 6) the fence results in the property at 548 Palo Alto Avenue looking like a "compound"; and 7) the situation overall is that of a very wealthy individual ignoring City regulations to the detriment of the immediate neighbor at 131 Cowper Street. These issues are discussed in more detail in the attached Planning Commission report, dated November 13, 1996, and in the appellant’s letter of appeal attached to the Planning Commission report (see Attachment 2 - Planning Commission report and attachment 3 of the Planning Commission report). POLICY IMPLICATIONS There are two Comprehensive Plan policies that relate indirectly to this application. Policy 2 of the Housing Element and Program 2 of the Urban Design Element both encourage the preservation, restoration and maintenance of the residential character in older sections of Palo Alto. The fence is part of a larger, overall upgrade to the entire property, which visually enhanced the immediate neighborhood as well as the subject site. DISCUSSION There are three findings that need to be made to approve a variance (Palo Alto Municipal Code 18.90.050). In regard to the first finding, which requires that there be exceptional or extraordinary circumstances or conditions applicable to the property involved that do not apply generally to property, in the same district, the Zoning Administrator found that the application met the finding because it is an irregularly-shaped through-lot located on a coruer CMR:492:96 Page 2 of 6 where three streets meet. As a result, the lot is exposed to roadway on three sides and to San Francisquito Creek across the street. In addition, there is an irregularly-shaped public right- of-way space located immediately adjacent to the front property line of the subject site. This right-of-way exists because of the curve in the road, which, in turn, is a response to the road’s proximity to the creek. The ri~t-of-way is visually undiscernible from the private yard area and is not a situation typically found in the surrounding area, nor in the R-1 district, due to its unusual size and shape. The appellant did not specifically address finding number one in his appeal. In regard to the second finding, which states that the granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant and to prevent unreasonable property loss or unnecessary hardship, the Zoning Administrator found the application met the finding because the site is subject to excessive street fi’ontage and is across from San Francisquito Creek, so that all yard area is directly impacted by direct exposure to the public right-of-way. The fence, as built, will provide increased privacy and sense of security beyond that which would be provided by the standard four-foot-high fence and would result in usable yard area more in keeping with privileges enjoyed by other single- family sites in the area and zone district. Mr. Cheriton disagrees with the second finding, because he maintains that the fence does nothing to increase privacy or security on the subject site. He states that the primarily open nature of the gate does not dissuade anyone who may want to enter the yard uninvited. Staff finds that the fence has a ve~ substantial appearance; and although the open gate allows views into the property, as recommended by the Palo Alto Police Department for security reasons, the rest of the stucco structure is a definite physical barrier to the yard area. It should also be noted that the fence does not block the main entrance to the house on the subject site nor the view of any portion of the house on the Palo Alto Avenue frontage. Although the fence delineates private from public space, it does not present an unwelcoming appearance or create a "compound" atmosphere as suggested by the appellant. In regard to the third finding, which states that the application will not be detrimental or injurious to property or improvements in the vicinity, the Zoning Administrator found that the application met the finding, because the fence does not obscure views of the house and allows view into the yard area, and that it did not result in unsafe sight-lines for the neighbor immediately adjacent to the fence or to users of the sidewalk or adjacent street. This determination was made based on the design of the fence and gates and the width of the columns supporting the fence. The gates are primarily open in design and can be seen through by anyone using the driveway on the adjacent property. The column is approximately one-foot-wide and is too narrow to block the view of the sidewalk or roadway for any significant amount of time or distance. This determination was verified by the CMR:492:96 Page 3 of 6 Transportation Division through a site visit and analysis of the plans, which compared the curn, e of the road to the width of the column and the design of the fence and columns. Mr. Cheriton objected to the Zoning Administrator’s third finding, because he believes the fence detracts from the value of his property in that it reduces his view of Palo Alto Avenue and the park across the street. The Zoning Administrator visited the site and stood at the edge of Mr. Cheriton’s propert~£ to verify that views were not obstructed by the column, gate or fence. As stated above, the width of the column and the design of the gates allow for clear views of both Palo Alto Avenue and Hopkins Park. General Appeal Comments: The appellant has several concerns about the code enforcement process in the City of Palo Alto and the length of time it has taken to resolve this particular case. These concerns are addressed on pages 6 and 7 of the attached Planning Commission report. Staff acknowledges Mr. Cheriton’s frustration over the length of time which has lapsed since his initial complaint. Code enforcement in Palo Alto is conducted primarily as a passive, complaint- based program. Matters of public health and safety are prioritized above complaints that do not pose an immediate danger to life or property. Code enforcement staf£ as well as Planning staff, have met repeatedly with the interested parties in this case to bring the situation into compliance. After nearly three years of violation notices, the option the Mills pursued was application for a second variance. Enforcement actions in this case were based on the normal prioritization of the Palo Alto code enforcement program. Public Participation On August 1, 1996, The Zoning Administrator held a public hearing regarding the second variance application. One person, Mr. Cheriton, spoke in opposition to the variance application. The applicant’s representative, Ms. Leslie Mills, spoke in favor of the application and submitted a petition signed by 72 neighbors in support of the application. The comments focused on the issues summarized in this staff report and in the attached Planning Commission staff report (see Attachment 9 of the attached Planning Commission report for meeting minutes of the Zoning Administrator hearing and Attachment 10 of the attached Planning Commission report for the petition in support of the variance application.) On November 13, 1996, the Planning Commission held a public hearing on Mr. Cheriton’s appeal of the Zoning Administrator’s decision and recommended to the City. Council that the Zoning Administrator’s approval be upheld. One person, Mr. Cheriton, spoke in opposition to the application. The applicant’s representative, Ms. Leslie Mills, spoke in favor of the application; and one nei~p_Jabor, Mr. Michael Price, spoke in favor of the application, stating CMR:492:96 Page 4 of 6 that the fence added an attractive element to the subject site as well as the surrounding neighborhood (see Attachment 3 - Planning Commission minutes). ALTERNATIVES The City Council can take one of the following actions: Deny the appeal and uphold the Zoning Administrator’s approval of the variance, which would allow the fence to remain as constructed. Deny the appeal and modify the Zoning Administrator’s approval of the variance, which would allow the fence to remain with modifications to its height, design and/or location. Approve the appeal, which would result in the need for the fence to be modified to meet the previously approved variance or the zoning requirements, or to be removed entirely. In order to act on alternative 2, the City Council would need to recommend revised findings related to any Council changes in the proposed variance. In order to act on alternative 3, the City Council would need to recommend findings for denying the variance.. FISCAL IMPACT There is no fiscal impact to the City as a result of any of the above actions. ENVIRONMENTAL ASSESSMENT The project is categorically exempt from the California Environmental Quality Act (CEQA) in accordance with Section 15303(e). STEPS FOLLOWING APPROVAL The action of the City Council is final. ATTACHMENTS 1.Findings for Variance Approval 2.Planning Commission Report dated November 13, 1996, with all attachments 3.Excerpt Planning Commission Minutes of November 13, 1996 CC:Frank and Shirley Mills, 548 Palo Alto Avenue, Palo Alto, CA 94301 David Cheriton, 131 Cowper Street, Palo Alto, CA 94301 CMR:492:96 Page 5 of 6 PREPARED BY: Lisa Grote, Zoning Administrator DEPARTMENT HEAD REVIEW: KENNETH R. SCHREIBER Director of Planning and Community Environment CITY MANAGER APPROVAL: CMR:492:96 Page 6 of 6 Attachment 1 Findings for Variance Approval 548 Palo Alto Avenue (96-V-14) There are exceptional or extraordinary, circumstances or conditions applicable to the property involved that do not apply generally to property in the same district in that the parcel is an irregularly shaped through lot which is exposed to the street on three sides and San Francisquito Creek across Palo Alto Avenue. In addition, there is an unusually large and irregularly shaped parcel owned by the City of Palo Alto along a portion of the front property line which is visually undiscernible from the subject site’s yard area; The granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant, and to prevent unreasonable property loss or unnecessary hardship in that because the site has excessive street frontage, all yard area on the site is directly impacted by direct exposure to the public right-of-way. A six-foot-high fence in the location shown on plans received June 4, 1996 will provide better privacy for the subject site and the neighboring property and security, for the vard area than would a four-foot-high fence. In addition, the fence will not completely obscure the view of the yard area and will still allow visual access to the front facade of the house and for the neighboring property, which is in keeping with the intent of the fence height regulations; and o The granting of the application will not be detrimental or injurious to property or improvements in the vicinity in that the fence maintains views of the house and yard area and will not result in unsafe sight-lines for the neighbor immediately adjacent to the fence or to users of the sidewalk or street. It will not obscure the neighbor’s views of the creek and park due to its transparent construction. Attachment 2 PLANNING COMMISSION STAFF REPORT TO:PLANNING COMMISSION FROM:Lisa Grote, Zoning Administrator DEPARTMEN~r: Planning AGENDA DATE: November 13, 1996 SUBJECT:Appeal of Zoning Administrator approval of a Variance 96-V-14 at 548 Palo Alto Avenue. Palo Alto, California for a front yard fence. RECOMMENDATION Staff recommends that the Planning Commission recommend that the City Council deny the appeal and uphold the Zoning Administrator’s approval of a variance allowing a six-foot-high fence with 6-foot 6-inch high coloumns in the front yard between the front property line and the back edge of the sidewalk in the public right-of-way adjacent to the street frontage of an existing single-family residence, based on the findings and conditions presented in the Zoning Administrator’s August 15. 1996 approval (see Attachment 1 ). BACKGROUND/PROJECT INFORMATION The site is a flat. irregularly shaped through-lot which is located on a comer bounded by three streets: Palo Alto Avenue; Ruthven Avenue; and Tasso Street. in the Downtown North neighborhood. It is occupied by one single-family residence and is surrounded by other single-family residences, across the street from San Francisquito Creek and Hopkins Park. Project Description Mr. and Mrs. Mills applied for a variance on June 4, 1996 to allow portions of an existing six-foot high fence to remain as constructed in the city’s right-of-way in the front yard of their property (see Attachment 2 - Application materials). The fence was built approximately three years ago after approval of variance application 93-V-2. but that portion which is located in the CiB, right-of-way was not constructed in compliance with the approved drawings for the variance, as explained below under "Project History". A: [PCSR 1548Paave.tg 11-07-96 Page 1 Zoning Administrator Approval: On August 15. 1996. the Zoning Administrator approved the second of two variance applications for the subject fence, based on the three required variance findings and with a condition that the property owner obtain an encroachment permit from the Public Works Department since all. but a vet, small portion of the the fence (about one foot) is located within the public right-of-way (see Attachment 1 for findings and conditions). Appeal of Zoning Administrator Decision: An appeal of the Zoning Administrator’s decision was received on August 26. 1996 (see Attachment 3 - Letter from David Cheriton). His appeal is based on the following seven points: 1 ) The fence blocks his view of Palo Alto Avenue and San Francisquito creek, which detracts from the value of his property. and makes it difficult for him to use his driveway: 2) The fence was not constructed to plans originally approved by variance 93-\7-2: 3) The City of Palo Alto failed to take legal action which would force the property. owner to either remove or modify’ the fence to meet current zoning requirements: 4) The City failed to take into account the negative impact the fence would have on his property.’ when both the first and second variances were approved: 5) There are other zoning and building code violations on the property: 6) The fence results in the property at 548 Palo Alto looking like a "’compound": and 7) The situation overall is that of a very wealthy individual ignoring City regulations to the detriment of the immediate neighbor at 131 Cowper Street. project Histor, The properr3’ owner originally applied for a first variance to construct a six foot high fence along the front property. line at 548 Palo Alto Avenue in early ! 993. In April 1993. the variance was approved based on plans submitted by the applicant and the three required variance findings (see Attachment 4 - Original variance approval 93-V-2~. One person. Mr. Cheriton. opposed the variance request based on the belief that the fence would have a negative impact on his property, located at 131 Cowper Street. The first variance application was not appealed. The fence was then constructed, but not in the location shown on the approved variance plan. Instead of being located entirely along the front property line. a portion of it was located within the right- of-way immediately adjacent to the subject site. The neighbor at 131 Cowper Street complained that the fence was not constructed according to approved plans and asked that the City’ take code enforcement action to rectify the situation. The property owners responded that although the new fence was not built along the front property.’ line as intended, it was built in the same location as the original fence and therefore was built in substantial compliance with the intent of the approved variance 9.~-\, -_. The Public Works Department issued an Encroachment Permit for the fence in the public right-of-way and stated that because there are no utilities under the fence that there is no adverse impact to having the fence in the public right-of-way. This encroachment permit was later revoked when it was learned that the fence construction was in violation of the approved variance. A: ! PCSR ! 548Paave.lg 11-07-96 Page 2 tn response to the complaints received in 1993 from Mr. Cheriton. Cir, staffmet several times with the property owners and Mr. Cheriton in an attempt to develop a solution to the problem of non- compliance with approved variance plans. Man?’ possible solutions were discussed including a modified fence design and the possibility of applying for a second variance, which would ac -knowledge that the fence was constructed in the public right-of-way. These meetings did not produce a solution agreeable to all involved parties. After conclusion of the meetings, letters were written to the property owners on September 29. ! 993. October 22, 1993. December 9. 1994 and April 27, 1995 from the Palo Alto code enforcement officer stating that the Mills needed to either modifl, the fence to meet zoning requirements or remove it entirely (see Attachment 5 - Letters from Richard Cabrera). Rather than completing either of the complying options outlined in the September 29. 1993 and December 9, 1994 letters, the propert? owners decided to apply for a second variance, which would include the accurate depiction on the site plan of the new fence. This had always been one of the legal remedies available to the applicant, although staff had, for years, encouraged the applicant to address Mr. Cheriton’s objections, and modify the fence design. Prior to the issuance of the decision on the second variance. Mr. Cheriton. who later became the appellant, wrote to the Palo Alto City Attorney’s office to request that the City Attorney review the case and give him the Attorney’s opinion about what should be done. Mr. Cheriton further stated that the second variance should be denied and legal action taken as outlined in Mr. Cabrera’s December 9. 1994 letter (see Attachment 6, letter from D. Cheriton, received August 9. 1996), Ms. Debra Cauble, Senior Assistant City Attorney. responded to Mr. Cheriton’s letter on August 14, 1996 stating that the variance decision was due to be made in the next few days and that if he was unhappy with the decision he could appeal to the Planning Commission and City Council (see Attachment 7). Table I summarizes pertinent information regarding the site, and application. TABLE 1 Applicant: Appellant: Property Owners: Assessor’s Parcel Number: Comprehensive Plan Designation: Zoning District: Frank and Shirley Mills David Cheriton Frank and Shirley Mills 120-09-001 Single-Family Residential R-1 A: I PCSR !548Paave.lg 11-0%96 Page 3 Existing Land Use: Surrounding Land Uses: POLICY IMPLICATIONS One Single-Family Residence North: Single-Family Residential Northwest: San Francisquito Creek and Hopkins Park East: Single-Family Residential South: Single-Family Residential There are two Comprehensive Plan policies that relate indirectly to this application. Policy 2 of the Housing Element and Program 2 of the Urban Design Element both encourage the preservation. restoration and maintenance of the residential character in older sections of Palo Alto. The fence is part of a larger, overall upgrade to the entire property, which visually enhanced the immediate neighborhood as well as the subject site. DISCUSSION Issues and Analysis The prima-D’ issues raised at the August 1. 1996 Zoning Administrator hearing and in the letter of appeal from Mr. Cheriton are summarized in the "Appeal of Zoning Administrator Decision" section of this report and are addressed below within the context of the three findings that must be made to approve a variance (Section 18.90.050(a)(1)(2)(3) of the Palo Alto Municipal Code) and in general summary comments. Variance Finding Number l: There are exceptional or extraordinary circumstances or conditions applicable to the property involved that do not apply generally to property in the same district. The Zoning Administrator found that the application met the first finding in that the site is an irregularly-shaped through-lot located on a corner where three streets meet: Palo Alto Avenue, Ruthven Avenue and Tasso Street. As a result, the lot is exposed to roadway on three sides and to San Francisquito Creek across the street. In addition, there is an irregularly-shaped public right-of- way space located immediately adjacent to the front property line of the subject site. This right-of- way exists because of the curve in the road. which in turn, is a response to the road’s proximity to San Francisquito Creek. The right-of-way is visually undiscernible from the private yard area and is not a situation typically found in the surrounding area due to its unusual size and shape. Mr. Cheriton did not specifically address finding number one in his appeal. Variance Finding Number 2: The granting of the application is necessary for the preservation and A: ] PCSR [ 548Paave.lg 11-07-96 Page 4 enjoyment of a substantial property fight of the applicant, and to prevent unreasonable property loss or unnecessary hardship. The Zoning Administrator found that the application met the second finding because the site is subject to excessive street frontage and across from San Francisquito Creek so that all yard area is directly impacted by direct exposure to the public right-of-way. A six foot high fence in the location shown on the June 4. 1996 plans, would provide increased privacy and sense of securirv beyond that which would be provided by a four foot high fence and would result in usable yard area more in keeping with privileges enjoyed by other single-family sites in the area and zone district. The appellant disagrees with the second finding because he maintains that the fence does nothing to increase privacy or securiD’ on the subject site. He states that the primarily open nature of the gate does not dissuade anvone who may want to enter the yard uninvited. Staff finds that the fence has a very substantial appearance and although the open gate allows views into the property as recommended bv Palo Alto Police Department for security reasons, the rest of the stucco structure is a definite physical barrier to the yard area (see Attachment 6 - Photographs). It should also be noted that the fence does not block the main entrance to the house on the subject site nor the view of an?’ portion of the house on the Palo Alto Avenue frontage. Although the fence delineates private from public space, it does not present an unwelcoming appearance or create a "compound" atmosphere as suggested by the appellant. Variance Finding Number 3: The granting of the application will not be detrimental or injurious to property or improvements in the vicinity. The Zoning Administrator found that this finding could be met because the fence does not obscure views of the house and allows views into the yard area and that it did not result in unsafe sight-lines for the neighbor immediately adjacent to the fence or to users of the sidewalk or adjacent street. Prior to the Zoning Administrator public hearing, the application had been reviewed by the Transportation Division within the Planning Department and the Public Works Department. The Transportation Division stated that the fence would not obscure sight lines for anvone using the driveway at the house immediately adjacent to the subject site, addressed as 131 Cowper Street, nor would it obstruct vision for pedestrians, bicyclists or motorists traveling along Palo Alto Avenue. This determination was made based on the design of the fence and gates and the width of the columns supporting the fence. The gates are primarily open in design and can be seen through by anvone using the driveway on the adjacent property. The column is approximately one foot wide and is too narrow to block the view of the sidewalk or roadway for any significant amount of time or distance. This determination was verified by analysis of the plans, which compared the curve of the road to the width of the column and the design of the fence and columns. A: ! PCSR 1548Paave.lg 11-07-96 Page 5 The Public Works Department reviewed the plans and stated that they were prepared to issue another encroachment permit. Mr. Cheriton objected to the Zoning Administrator’s third finding because he believes the fence detracts from the value of his property in that it reduces his view of Palo .Alto Avenue and the park across the street. As stated above, the City’s Transportation Division commented that the fence would not present any decrease in the safet.v of the driveway at 531 Cowper Street. The attached pictures substantiate that statement. Further, Mr. Cheriton’s view of Palo Alto Avenue and the park do not appear to be obscured by the fence at 548 Palo Alto Avenue. The Zoning Administrator visited the site and stood at the edge of Mr. Cheriton’s property to veri~’ that views were not obstructed by the column, gate or fence. As stated above, the width of the column and the design of the gates allow for clear views of both Palo Alto Avenue and Hopkins Park. Mr. Cheriton further asserts that the fence posts are higher than six feet. A City of palo Alto Code Enforcement officer measured the columns and found that they are in fact six feet five inches high. When this item was in front of the Zoning Administrator for the second variance, the plans and the applicant stated that the top of the columns were at six feet. Staff recommends that the project description be modified to include columns that are six feet six inches high. and the variance approval be upheld with a modified project description. General Appeal Comments: One of Mr. Cheriton’s primary concerns is that he believes the City has been negligent in its enforcement practice because it refused to pursue the only solutions Mr. Cheriton saw as viable. which were to force the Mills to either bring the fence into compliance with the code or remove it entirety. Underlying Mr. Cheriton’s belief that the Citw has been negligent is his betief that a second variance application should not be a legal option for the Mills. Mr. Cheriton also asserts that Mr. Mills income is a factor in the Zoning Administrator’s approval. Staff acknowledges Mr. Cheriton’s frustration over the length of time which has lapsed since his initial complaint. Code enforcement in Palo Alto is conducted primarily as a passive, complaint- based program. Matters of public health and safe~" are priotized above complaints that do not pose an immediate danger to life or property. Code enforcement staff as well as two different Zoning Administrator’s have met repeatedl.v with the interested parties in this case to bring the situation into compliance. Several times during that three-year time frame, it appeared to code enforcement staff that the applicant would amend the fence construction. After nearly three years of violation notices, the option the Mills pursued was application for a second variance. Mr. Mills income had nothing to do with the decisions made on either variance application nor on the speed of enforcement. Rather the enforcement actions were based on the normal prioritization of the Palo Alto code enforcement program. Mr. Cheriton also mentions two other violations of the zoning ordinance and building code on the A: PCSR 1548Paave.lg 11-07-96 Page 6 site. He references a trellis that is located in the rear yard immediately adjacent to the property line that runs parallel to Ruthven Avenue. According to the applicant, this trellis has existed for some years and was subject to routine maintenance m,o or three vears ago in which less than 50°/8 of the structure was refurbished. This type of maintenance does not require a building permit. There is no evidence that the City is aware of. to disprove the property owner’s statement. Mr. Cheriton also alleges that Mr. Mills is growing plant material for his business in the planting strip along Tasso Street. The City has inspected the planting strip and found no evidence to suggest that Mr. Mills is incubating plant material for his store in this location. Public Participation At the Zoning Administrator hearing on August 1. 1996. one person spoke in opposition to the variance application. The applicant’s representative spoke in favor of the application and submitted a petition signed by 72 neighbors in support of the application. The comments focused on the issues summarized in this report I see Attachment 9 - Zoning Administrator August 1. 1996 meeting minutes and Attachmem l0 - Petition in support of Variance 96-V-I 4). ALTERNATIVES The Planning Commission can recommend one of the following alternatives to the City Council: Deny the appeal and uphold the Zoning Administrator’s approval of the variance, which would allow the fence to remain as constructed. Deny the appeal and modify the Zoning Administrator’s approval of the variance, which would allow the fence to remain with modifications to its height, design and/or location. Approve the appeal, which would result in the fence being modified to meet the previously approved variance or the zoning requirements, or in it being removed entirely. FISCAL IMPACT There is no fiscal impact to the City as a result of any of the above actions. ENVIRONMENTAL ASSESSMENT This project is a categor? 3(e) exemption from the Califomia Environmental Quality Act (CEQA). STEPS FOLLOWING APPROVAL: Proceed to the City Council on December 9, 1996 for final action on the appeal. A: ! PCSR 1548Paave.lg 11-07-96 Page 7 ATTACHMENTS/EXHIBITS: 3. 4. 5. 6. 7. 8. 9. 11. Zoning Administrator’s August 15, 1996 approval of Variance 96-V- 14 Application materials Letter of appeal from David Cheriton. received August 26. 1996 Original Variance approval - 93-V-2 Code Enforcement letters Letter from David Cheriton to City Attorney, received August 7, 1996 Letter from Senior Assistant City Attorney dated August 14. ! 996 Photographs Minutes of the August 15, 1996 Zoning Administrator hearing Petition in support of 96-V-14 request Location Map Plans [Commission members only] COURTESY COPIES: Frank and Shirley Mills. 548 Palo Alto Avenue. Palo Alto. CA 94301 David Cheriton. 131 Cowper Street, Palo Alto, CA 94301 Prepared by:Lisa Grote. Zoning Administrator Project Planner: Lisa Grote. Zoning Administrator Divisiort,qDepartment Head Approval: ~" "9 //~’*’~": ~’/~ Nancy Maddox Lytle, Chief Planning Official A: ! PCSR 1548Paave.lg 11-07-96 Page 8 Application No. 96-V-14:548 Palo Alto Avenue Pianrung Dix~ion Variance 96-V-14 is approved for the location of a six foot high stucco fence with 6-foot 6-inch high columns within the front yard and public right-of-way between the front property line and the back edge of the sidewalk adjacent to the street frontage of an existing single-family residence, as per attached plans, at 548 Palo Alto Avenue, R-1 Zone District. Palo Alto. California. Project approval is based on the following findings and is subject to the conditions below. FINDINGS There are exceptional or extraordinary circumstances or conditions applicable to the property involved that do not apply generally to property in the same district in that the parcel is an irregularly shaped through lot which is exposed to the street on three sides and San Francisquito Creek across Palo Alto Avenue. In addition, there is an unusually large and irregularly shaped parcel owned by the City. of Palo Alto along a portion of the front property line which is visually undiscernible from the subject site’s yard area; The granting of the application is necessary, for the preservation and enjoyment of a substantial propertT right of the applicant, and to prevent unreasonable property loss or unnecessaD, hardship in that because the site has excessive street frontage, all yard area on the site is directly impacted by automobile noise and direct exposure to the public right-of-way. A six foot high fence in the location shown on plans received June 4, 1996 will provide better privacy for the subject site and the neighboring property and security for the yard area than would a four foot high fence. In addition, the fence will not completely obscure the view of the yard area and will still allow visual access to the front facade of the house and for the neighboring propel-ty, which is in keeping with the intent of the fence height regulations; and The granting of the application will not be detrimental or injurious to property or improvements in the viciniu in that the fence maintains views 96-V-14.1g August 15, 1996 Page 1 ZF,K) Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 415.3-99.244t 415.3Lx). 2240 Fax of the house and yard area and will not result in unsafe sight-lines for the neighbor immediately adjacent to the fence or to users of the sidewalk or street. It will not obscure the neighbor’s views of the creek and park due to its transparent construction. CONDITIONS The fence shall be maintained in substantial compliance with plans received on June 4. !996. on file in the City of Palo Alto Planning Division office. An encroachment permit shall be obtained from the City of Palo Alto Public Works Division. A condition of the encroachment permit shall be that should the Department of Public Wor’ks need to access the area under the fence, the property owner shall be responsible for the cost of replacing the fence after the Department of Public Works has completed its work. LISA GROTE Zoning Administrator August 15, 1996 NOTE This decision does not constitute final action on the variance for which application was made. This decision may be appealed by filing a written letter of appeal, appeal form and appeal fee with the Planmng Department and City Clerk on or before August 26. 1996. If this decision is appealed, it will be heard by the Planning Commission and City Council. If this decision is not appealed by any person ftrm, or corporation affected by the decision on or by the above mentioned date, the applicant will receive a copy of the final decision letter in the mail. The applicant should present a copy of the final decision letter to the Building Division when applying for an3’ required building permits for the project . co:Frank and Shirley Mills, 548 Palo Alto Avenue, Palo Alto, CA 94301 David Cheriton, 131 Cowper Street, Palo Alto, CA 94301 96-V-14.1g August 15, 1996 Page 2 RECEIVED JUN 0 4 1996 Variance Application- 54~ Pah) Alto Avenue DEPAErM-:~T OF PLANNING AblE) GOMMUN]T~’ P,~¢ELOgMEN" "li’hi~ application is in coRiunction v.’ifi~ a previous v~iance appiied for and nppro’,.ed ApriJ ]5. 1993. Vm-imac’e 93-V-2 was approved to con~uu,:t a 6-f0ot hi,O~ stucco Dnce within, ....... 16 52et ~,~’th- front and street side F, rope~,’ lines. The drawingsu,,m~ttea~ " ’ x~"’:~,:~ £ron~ of the propels’ would be replaced by a 6 fi3ot stucco feuce. The old fot~ fbot Duce ’ " ’f)n,:e " ’ ’xv~ located a!oug the sidewMk where the" nzw s~x-Ioo, i~ located toaav, nc,,.vever,- tho drawina._ inadve[lentlv showed rue tk, nce to be loc’~ed alone_ ,l.: ~onl property line require lhe obtainiu.g ofm~ encroactuuent penni!. (~17 area in q~iesfion i~ Considered excess procol left over Dora the dedication of’Palo Al!o ~x~ew~e? Th~relbre. ~, ] .........t in errot ......." a new v;ui~mce would be needed [br fi~ portion of the .~nce which e;dends into lh.~ exces:s parcel. It is in response to "~’ ’ " ~-= wa.s cited iu the ~ ........... approved va:uance api)lication~ ~h::- ,.,,,--c~ptl,nn,fl, or ex’lrao:dinm3 circumstm~ces or conditions applicable h.~ the Nbceme.ntioned properly do not apply generally to prop~’rt?’ in the ,~.ame (::_~~c, i,’-: thrd shaped th.:ou~ Io~ which is exposed to the street on ~ ....tlu ....sides limiting the privacy oftb.e I)roper~.’. Also. ihis property abuts a small . -’~-’unu..,~ u pro-col leftover 5J-ore the dedication of PMo a ~u, .4venue v.’l:ose u~a,.:~- i,.: ti:e past has been divided between fl.~e ~uh;,~’t o,-o,,:,r-r., and fl~e neighboring prope[1"_,. Fi,Mi....oi r,,,,e l:revi.q:),.;!~ .......... ....."" ": ....- -.. ,1;..1,, o,. ~ ~. varla,qce. ,r, re~:tr(l~ it> the the :’a~ivmce to prese~we and eqioy n sub~:t:-’..a~tinl p;-ope~!.v ri~t, were that the new hi,~: Dnc," pr.o’,id~d belIo[ p:ivacy, sec:uilv and noise attenuation ~:ion:. nutomobit _" -., ,,-.-,, l .....~,..,-.to,_,~-,,).=..,, t:e.~[c’,e cm:~:l.~u::lett in J}on~ \’tud ",’ "-" .... sc)~-e~e.’.t t];c- c~,n])os~ ~ea arm dog pen ~rOII1 .ct- .~o.u-s~.::" vie’o,. Also no~’d in the :fi;;dina:~ of lh~. previously approv~:d varin,,;ce was ti!! "ti~ fi-on~ yard fence do;:s not ob,~:c-’,ue tt~e view of the front vard landscapin.g nor the’ fiont fhc~de oi’" ",he house., in keepin~ v,’i!h the ~I~ t:er,.o., hei.@~t reguh~ion<_"’. The only dig&euce i~ thi...~ v;,:i-m~ce applicatio:: mM previou.~iy approved varia’ace i.~, that fi;e K~nce extends .sli¢~tly into a:: um~sed a~!iacent to L.he sidew’,alk. i,.ntvoven:er, ts in the vicinity in !ha; (he front y,:ud fence repiaced ~n existing wooden ’& - t,’un_ views of the house mia .from ;’:,~d l,’w.ciscape. The Dnce !ine alim~s with flie neighboring fer..ce line (the re,’u vmd Duce o: d,: propem, localed al 131-_’3-. Cov;p3r Sti’eet) whici~ also pcowud~s into ll~e public ri~t-oI:way. The s.ectioi: of f-?nce e..,.tendmg two 1 &inch squ:.~-e stL’cco suppot’ting columns. "I]~:’-gate is: tr~sp.vaeut ;rod fl~e:e;::~re does not block visibiliey of Palo Alto Avem:e from the neighboring t.’.:-ope~3,. Furthermore, the aei~,borin£~ . .... properly is a re,u" yard. nol a driveway o.: ,,m,, "’,(:_."~" area. See attached photos. Also attached is a petition-_ ’ ’ --v- ’ _.. ..:u~’.n~e bv ::~ -~.rm nei~zhbors approvin£,, rite fen---~ and historical r’n!e CITY OF PALO ALTO Office of the City Clerk APPEAL FROM THE DECISION OF ZONING ADMINISTRATOR To be filed in duplicate within ten days from date of decision of Zoning Administrator LOCATION OF PROPERTY: ~,sses’~sor’s Parcel No.//~-~2 ~("J~’- ~,)~_~/’Zone Dis{rict ~ -- ~ Street Address ~ ~g.Ve ,"- ":, ,,."-:-..;t Name of Prope~y Owner (if other than appellant)~ ~4 b ~¢~ ~/~ ~":~ ::’:" ¯Street City Zip The decision of the Zoning Administrator dated whereby the application of for (original aP! ;ant)/ ~/’~/_/f,/(/’//~ d" ~was ~---¢’ ,,~...¢/~ K-D/Jd~C2f,, is hereby appealed for the (variance/use permit),~p/~roved/denied) reasons stated in the attached letter (in duplicate). ~~,Z~/(/~,~. ~" Date ..~/~-~, ,~/~(/~ Signature of Appellant PLANNING COMMISSION RECOMMENDATION TO THE CITY COUNCIL: Date Approved Denied Remarks and/or Conditions: CITY COUNCIL DECISION:I Date Remarks and/or Conditions: Approved Depa~m, eni of -"-’,’"2n.:--., ~., Comrnuni~.v E.-,, "-:- .’ "~- ’., Denied .... ~-.~:-;: SLJBMI’iq’AL REQUIREMENTS SATISFIED: 1.Plans 2.Labels 3.Appeal Application Forms 4:-Letter 5.Fee --By: By: 12/89 Planning Department City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 Dear Sir or Madam: David R.Cheriton 131 Cowper St. Palo Alto, CA 94301 Ph 415-325-3953B August 25, 1996 I am writing to appeal the approval of variance (96-V-14). This variance was requested by the Mills to allow the fence that the), constructed along Palo Alto avenue to remain even though it violates the city ordinances governing fences and it also is not in compliance with variance (93-V-2) that w~s issued to the Mills for the original construction of the fence. I objected to the original variance (93-V-2) on three key grounds and the actual fence constructed makes the basis for these objections even stronger. This fence is seriously injurious to my property because it blocks the view from my property to Palo Alto Avenue and the San Francisquito Creek and park just across the street. This blockage makes it more difficult for me to safely use the driveway located on Palo Alto Avenue into my property. It also detracts from the value of my propertT because the view from my yard is now in part the inside the "compound" that the Mills have constructed, rather than Palo Alto Avenue and the park. I was planning to renovate my house and install a deck that took advantage of this view but this fence has seriously detracted from the view and the whole value of my plans for my property. The Mills fence, at over 6 feet in height, is also incompatible with the 4 foot fence that I and the other neighbors have in the area. In particular, the 4 foot wood fence of mine, which has been in place for over 20 years, terminates at a 6 and a half foot stucco column representing the beginning of the Mills fence. The plans supplied in the original variance (93-V-2) described a 6 foot fence along the Mills property line, justified based on privacy and security. The Mills claim the fence is needed because of problems ~ith theft from transients in the creek, etc. What the Mills built was a fence located on city property, located at points more than 8 feet away from where the plans called for. Moreover, they, installed a large picket gate in the fence which makes mockery of their claimed need for security and privacy. You can see through the gate to their yard so there is no p~vacy and the gate is onl~. 4 feet high and easily climbed, and so is no better than a 4 foot fence for purposes of security. The fence, as construct.ed, is 1oc...a~d on highem -:z .... ground than the original plans called for, making it of closer to 8 feet relative to my property. I v~-ote a letter to the city dated March 30, 1993 objecting to. original variance application and the cit%~ still approved this variance. I then wrote to the city on July 6, 1993 pointing out that ~the fence had been constructed in a different location and height than that specified in the plans approved with the variance. I never managed to get any explanation of how the final building inspection was handled for this construction given that the fence obviously did not comply with the plans. Richard Cabrera w~-ote a letter dated August 9, 1993 noting that the fence was of greater height and different location than specified in the plans and requesting them to "i. remove existing the fence. 2 Place the fence in the area approved by the variance. 3. Make certain that no portion is higher than 6 feet." Nothing happened. After numerous meetings with the city, including Nancy L~de, Joe Colonna and Richard Cabrera, I received a copy of a letter written by Richard Cabrera to the Mills ordering them to lower the fence or move it to the location specified for the original variance within 21 days, this letter dated December 9, 1994. The letter states: "Failure to comply, with the deadline will obligate the City of Palo Alto to initiate legal action". After the deadline, I waited for the city to take legal action was it was now "obligated" to do. After waiting for over a year for action, I contacted the city in March 1996 to inquire about the status of the legal action the city was supposed to take against the Mills to bring them into compliance. I was unable to get a response. The city subsequently apparently accepted a variance application from the Mills (96-V-14) to allow the fence in question to remain as is. I wrote a letter dated July 29, 1996 to Joe Colonna objecting to this new variance. I also appeared at the variance hearing on August 1, 1996. The city once again ignored my objections and approved this variance (96-V-14), 1.5 years-after the city had obligated itself to take legal action to force the Mills to move or shorten the fence. I include by reference all the letters I have written to the cit).’ on this matter, knowing they are included in your files. I will provide an)’ copies of this correspondence that you require, on demand. In the course of these events, the city has failed to take into account the effects on my property. I have a single approximately 25 foot frontage onto Palo Alto Avenue and own a single 50 by 100 foot lot. The Mills own approximately half of this city block and. have a .. completely unobstructed view of Pal Alto Avenue from their property. Moreover, they have 3 separate driveways on their . . proper~,. I have a single driveway and their fence is obstrUctirlgr .~."~!..0 - use of this single driveway. In spite of owning a huge lot, they have" " located this fence on city property to effectively extend their own lot and interfere With the use of my property. In each of the variance approvals, the cib has cited ex~traordinary conditions on the Mills property to j ustif?.’ the variances with particular reference to privacy and securib’, and both times claimed no detriment to property in the vicinity. The)" have chosen to ignore the fact that the fence achieves nothing in the way of privacy or security. They have provided no basis for concluding no injury to my property. They have also chosen to ignore the fact the Mills have many other options than I do for achieving our ends. Finally, they have chosen to ignore the on- going violations of cib~ ordinances practiced by the Mills. In particular, the Mills clearly built the fence in question in violation of the ordinances and any variances as the time. They also subsequent_ly built a s~ucmre along Ruthven that is in violation of city ordinances, being at least 8 feet tall and right along the property line. I also.understand that they ran into problems with permits on the work they performed a few years ago on their rental property at 135/7 Cowper St. I believe their use of the city parking strip along Tasso for raising plants for their business is also in violation of city ordinances. The planning department seems willing to believe that the fence in question was accidentally constructed in a different location and height than allowed by the original variance. However, I pointed out in my original objection of March 1993 that the plans were inconsistent with existing fencing and made no sense (and this point was also ignored). It is clear that they never intended to build a fence according to the original plans or to have a fence that achieved the objectives that they gave in the original variance appliCation as justification for the variance, namely privacy and securit),. Besides the effect on my propert%% this fence is in direct violation of the objectives as I understand them of the city ordinances. It is well-known that. without rules to the contrary, man), property owners of means will b~d "compounds" by surrounding their propert%~ with high fences. This detracts from the neighborhood visually as well as reducing the security of streets. That is,, the criminal element can hide beside and around this high fencds, rather than being observable from the houses, when 4 foot ferices are used., (I note that I have been a block captain in the area for several -years.) The Mills have built such a compound by their exces$ivel~.~.;.,..:.. high fence along part of Palo Alto Avenue, Ruthven and Tasso, not.-. 5- on]), creating all these problems but also "capturing" ~ portion of..Cib,? : property. The animosity this has already created between neighbors in my area is further indication of this being a bad direction. Overall, this is a case of a rich man with a history of doing what he pleases and ignoring city regulations who has built what he wanted. I have tried to use the established process to protect the use of my own property against this person, and the city has to date compromised itseK and the regulations and reversed itseK to accommodate Mills and ignore my situation. I find it unbelievable that the cib~ has allowed this wealthy individual to build on cib, propert%, to obstruct and detract from my properU, and then retroactively issued approvals for this scandalous behavior. I have had neighbors suggest to me that the Mills have connections and inappropriate influences at cit%, hall that have allowed him to get away with this behavior. I hope that is not the case but will be something I will try to investigate if legal action is required. I understand that this is my last course of action with the cit%, before taking legal action. I believe the letter from the cib’ of December 9, 1994 and the facts and associated history of the case give me adequate basis to sue the cit%, as well as the Mills for damages, because their fence is not in accordance with the fence ordinance or the original variance and seriously detracts from the value of my property and my enjoyment of same. I further believe that because this situation has dragged on for several years and the behavior by the Mills and the cit-y are indefensible, that the damages might be considerable. I prefer that the city overturn the latest variance (96-V-14) approval and proceed with enforcing the action called for in the enclosed letter of December 9, 1994. I have tried to be a good citizen of Palo Alto and wish to continue to be. However, I cannot accept having the.~ .~.ue of my single greatest asset and my children’s home being compromised, all at the whim of a millionaire who views himself as above the law....-. .’ I Io "forw , d your response. David Cheriton Cityof Palo Alto Application No. 93-V-2" 548 PAL0 ALTO AVENUE Variance 93-V-2 is hereby issued for the location and construction of a o6- foot-high stucco fence within 16 feet of the front and street, si~e property lines, where 4 feet is the maximum height allowed, as per attached plans., at 54~,8 P..alo .~,~l~.~v~e~, Zone District R-] PalooAlto Conditions Prior to finalization of the building permit, landscaping shall be installed, including irrigation on the street side of the fence., A simple plan for such required landscaping shall be submitted and approved by the Zoning Administrator prior to issuance of a fence permit. NANCY/MADDOX "LYTLE Chief Planning Official April 15, 1993 NOTE This Variance is granted in accordance with and subject to the provisions of Chapter 18.90 of the City of Palo Alto Municipal Code. Any Variance is transferable unless otherwise provided at the time of granting. In any case in which the conditions to the granting of a Variance have not been or are not complied with, the Zoning Administrator shall give notice to the permittee of intention to revoke such Variance at least ten (10) ~ays prior to a hearing thereon. Following such hearing and if good cause exists therefore, the Zoning Administrator may revoke the Variance. A Variance which has not been used within one (1) year after the date of granting becomes void, although the Zoning Administrator may, without a hearing, exiend the time for an additional year if an application to this effect is filed with him before the expiration of the first year. Joseph M. Colonna, Planner Frank and Shirley Mills, 548 Palo Alto Avenue, Palo Alto, CA 94301 Davie and Iris Cheriton, 13] Cowper Street, Palo Alto, CA 94301 V932.jc 2~0Ham~tmAvmua P.O. Bcrx lOP_50 Palo Alm, CA94303 4.l.5. J~9. 2441 41~.329.22 ~0Fax Page Conditions permit. NANCY~~ OX LYTLE Chief Planning Official Prior to finalization of the building permit, landscaping shall be installed, including irrigation on the street side of the fence. A simple plan for such required landscaping shall be submitted and approved by the Zoning Administrator prior to issuance of a fence! April 15, 1993 This form does not constitute the variance for which application was made If the application is approved and if no appeal from this decision is filed by any person firm, or corporation affected by the decision on or by April 25, 1993, you will receive a copy of your permit in the mail. If this application is not decided to your satisfaction, the d~cisiDn may be appealed to the Planning Commission by filing an appeal application with the Planning Department and City Clerk on or before the above mentioned date. Joseph M. Colonna, Planner Frank and Shirley Mills, 548 Palo Alto Avenue, Palo Alto, CA g430] David and Iris Cheriton, 131 Cowper Street, Palo Alto, CA 94301 V932.jc Cityof 1- o Alto Application No. 93-V-2: 548 PALO ALTO AVENUE Variance 93-V-2 is approved for the location and construction of a 6-foot- high stucco fence within 16 feet of the front and street side prope~y lines, where 4 feet is the maximum height allowed, as per attached plans, at 548 Palo Alto Avenue, Zone District R-I, Palo Alto, Califo#ffia. FINDINGS I.There are exceptional or extraordinary circumstances or conditions applicable to the property involved that do not apply generally to property in the same district in that the site is an irregularly shaped through lot which is exposed %o the street on three sides; The granting of the application is necessary for the preservation and enjoyment of a substantial property right of the applicant, and to prevent unreasonable property loss or unnecessary hardship in that because the site has excessive street fronzage, the applicant’s rear yard is directly impacted by automobile noise and direct exposure to the public right-of-way. A 6-foot-high fence will provide better privacy, security and noise attenuation for the rear yard, than would a 4-foot-high fence which is the maximum allowed by code. The 6-foot-high fence proposed for the front yard replaces an existing wood fence and will screen the applicant’s compost area and dog pen from off-site view. Additionally, the proposed front yard fence will not obscure the view of the front yard landscaping nor the front facade of the house, in keeping with the intent of the fence height regulations; and The granting of the application will not be detrimental or injurious zo property or improvements in the vicinity in that the front yard fence replaces an existing wooden fence which maintains views of the house and front yard landscape and the rear yard fence was designed to provide appropriate sight angles for motorists using the applicant’s driveway and the Tasso-Ruthven intersection. V932 .jc 2-50 i-la.mil~n Avenue P.O. Box 10o.50 Pale AdD, CA94303 4L5.3~.2441 4/ 5/93 Page I September 29, 1993 Frank and Shirley Mills 548 Palo Alto Avenue Palo Alto, CA 94301 Dear Mr. and Mrs. Mills: Subject: Parcel #120-09-001 This is to acknowledge the receipt of your letter of September 24, 1993. It is understood that you are requesting an extension until October 15, 1993 to determine what action you will be t~king regarding a fence which has not been built in compliance with the variance granted on April 15, 1993 (93- V-2) . Your concerns regarding the fence are understood. You have also discussed this matter with Nancy Lytle, Chief Planning Official, and Joe Colonna, Planner. They have researched this matter very carefully and have congirmed that the fence in the existing location does not meet the conditions of the variance, since it is in a !ocation other than that indicated on the approved plans. As discu=~od with you on the phone on Monday, September 27, 1993, you certainly have until October 15, 1993 to decide what action you wil! take. As discussed, you have three options: To lower the fence in the existing location to four feet and obtain an encroachment permit from Public Works Engineering. Pu~b!ic Works Engineering has no authority to grant an encroachment permit for a six foot high fence since a fence of this height is ~ot- allowed wighout a. variance.. As indicated, the"six foot high fence in-the existing location does not meet the conditions of the variance granted on April 15, 1993. Remove the existing fence and place a new one in accordance with approved variance which would be six foot high at the property lin~. _ Submit a new application for a variance. 250 HamiltmAvenu~ P.O.Box ltP~ Palo Alto, CA94303 415.329.2496 4~.329.2240Fax Loo)[ing forward to working with you on October 15, 1993 in resolving this matter with one of the above mentioned options. Thank you for your cooperation. Please call me at 329-2276 if you have any questions. Sincerely, RICHARD M. CABRERA Code Enforcement Officer RMC: jb cc:~ancy Lytle, Chief Planning Official Joe Colonna, Planner Public Works/Engineering City a]o A to Community Y.nvironment October 22, 1993 Frank Mills 548 Palo Alto Avenue Palo Alto, CA 94301 Dear Mr. Mills: ~-" Subject: Parcel #120-09-001 -~’ This is to confirm the receipt of your letter of October 15, 1993 in which you request a variance for an existing fence at the present location. ~s discussed with you and your wife at various times since the initia! letter was sent on August 9, 1993, the existing fence is not in accordance with the variance which was’on April 15~, 1993 (93-V-2): "Variance 93-V-2 is hereby issued for the location and construction of a 6-foot high stucco fence within 16 feet of the front and street side property line where 4 feet is the maximum height allowed as per attached plan plan at 548 Palo Alto Avenue, Zone District R-l, Palo Alto, California." During a meeting with Nancy Lytle and your wife in September, it was confirmed that the fence at the existing location is beyond the property line and not in accordance with the approved plans for the variance. On September 24, 1993 you submitted a written request for an extension until October 15, 1993 to determine what action you would be taking regarding the fence. On September 29, 1993 I wrote you a letter granting the extension and outlining three options. During a telephone conversation on October 18, 1993 I explained that your request for a .variance modification to permit you to keep the existing fence at the present location could not be granted. The existing fence is not in ~he location approved in the variance of April 15, 1993. Please refer to the above wording of the variance. 250 HamiltsnAvenue P.O.Box 10250 Palo Alto, CA94303 415.329.2496 4!5.329.2240Fax You said that you understood this and agreed to apply for a new variance for the fence at its existing location in 21 days from October 18, 1993. Enclosed is information for applying for a variance and a copy of the variance issued on April 15, 1993, the approved plan for the variance and a map showing the property line. Please call Joe Colonna at 329-2541 if you have questions on the variance submittal. Thank you for your cooperation. Please call me at 329-2276 if you have any general questions. Sincerely, Code Enforcement Officer RMC: jb cc:Joe Colonna, Planner Nancy Lytle, Chief Planning Official Decentber 9, 1994 Certified Letter Z 775 639 313 Division Frank and Shirley Mills 548 Palo Alto Avenue Palo Alto, CA 94301 Dear Mr. and Mrs. Mills: Subject: 92-V-2, Parcel #120-09-001 In late November, 1994, this division received a new formal complaint regarding the fence that has been constructed at 548 Palo Alto Avenue in violation of the variance granted on April 15} 1993. The initia! letter to you regarding this matter was sent on August 9, 1993. Since that time, a lot of activity has transpired. For example, on September i, 1993, you submitted an application for a fence permit for a 6-foot high stucco fence with two 5-foot high gates. The permit was issued as per variance 93-V-2. Since the fence has not been constructed in accordance with the variance condition, the fence permit was never, and is not, valid at the present time. In October 15, 1993, you wrote a letter to me requesting a variance to permit you to keep the existing fence at the present location. On October 22, 1993, I sent you a reply acknowledging the request for a variance, explaining the action that had been taken since my initial letter in August, and outlining the procedures for applying for a variance. A formal application for a variance was never submitted. On January 25, 1994, a meeting was held with Nancy Lytle, Richard Catrell (a realtor who is representing you), yourself and me. The possibility of submitting a fence modification plan was discussed at the meeting. It was suggested that 2,50 Hamiltcrn Avenue P.O.Box 10250 Palo Alto, CA 94303 415.3~. 2496 415.329.2240 Fax Frank and Shirley Mills -2-December 9, 1994 plans be drawn up, and that/these be submitted to the neighbor who is concerned about th4 fence not being in conformity with the variance. If the neighboring parties were satisfied, the City would not strictly!the regulations regarding ~he variance condition. On March i0, 1994, a plan for the fence modification was received. A copy of this was submitted to the neighbors for review. On April 24, 1994, a letter was received from the neighbors indicating that they did not find the revised plan acceptable, and requested that the fence be placed in conformity with the variance, or at least, lower to the allowable height of 4-feet. On July 26, 1994, a meeting was held with Nancy Lytle, the neighbor (complaining party) and myself. The existing condition was .discussed, and your submitta! for a fence modification was presented and reviewed at the meeting. The neighbor said that he still felt that the fence should be placed in accordance with the variance which was approved in April, 1993. However, he said that he would reconsider the matter. He also said that he understood that there would be no further enforcement action unless a formal written complaint was submitted. On November 30, 1994, I did receive a formal written complaint regarding the fence which is not in compliance with the variance granted on April 15, 1993. The City of Palo Alto has tried to work with the neighboring parties regarding this matter, and has attempted to reach some type of informal solution. Unfortunately, this has not been possible. "The bottom line" is that the fence is in violation of the variance. You are hereby required to take one of the two following actions within 21 days: Lower the fence to a maximum of 4-feet high which would comply with the fence ordinance (Chapter 16.24 of the Palo Alto Municipa! Code (PAMC), or 2.Place the fence in the location approved in the variance. Copies of the variance, the plan-for the variance, and ~he fence ordinance are included in this letter. Failure to comply with the deadline will obligate the City of Palo Alto to initiate legal action. Frank and Shirley Mills -3-December 9, 1994 Please call me at 329-2276 if you have any questions. RICHARD M. CABRERA Code Enforcement Officer RMC: jb Mike Baird, Supervisor, Building Inspection Nancy Lytle, Chief Planning Official Lisa Grote, Zoning Administrator Joe Colonna, Planner Debbie Cauble, Assistant City Attorney Ci Palo Alto DeTmr~rnent ~Plannin~ andCoramunity Environment April 27, 1995 Certified Letter ~Z 780 030 713 Frank and Shirley Mills 548 Palo Alto Avenue Palo Alto, CA 94301 Dear Mr. and Mrs. Mills: Subject: Variance 92-V-2, Parcel #120-09-001 This division continues to receive complaints regarding a fence which was not placed in compliance with a variance which was issued on April 15, 1993. In-addition, there is a new complaint that a large trellis type structure has been placed om th~ Ruthvon mid~ of th~ proporty without o p~rmit. Section 301(a) of the Uniform Building Code states that "No person, firm or corporation shall erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure in the City, or cause the same to be done, without first obtaining a separate building permit for ~cn ~ucl~ Dull~ing or structure £orm the Building Official." In addition, Chapter 18.12 of the Palo Alto Municipal Code (PAMC) regulates height an~ setback requirements. On December 9, 1994, a certified!wa~sent to you and you were given 21 days to comply. In early January, you contacted me to indicate that you were still trying to work out the ~ituation with your neighbor.In consideration of this, no further~action was taken.~. At this point, it is obviously that no resolution will be reached and the strictest compliance must be enacted. You are hereby required to take one of the two following steps within fifteen days. 250 Hamilton Avenu~ P.O.Box10250 Palo AI~o, CA 94203 415.329.2496 415.329.2240 Fax Mr. and Mrs. Mills -2-April 27, 1995 Lower the fence to a maximum of four feet high, which would comply with the fence ordinance (Chapter 16.24 PAMC), or 2. Place the fence in the location approved in th4 variance. In addition, the trellis erected without a p~rmit must be removed or an application should be submitted for the structure. The structure would have to meet height and setback requirements. Failure to comply with obligate the City of Palo Alto to initiate legal action. Please call me at 329-2276 if you have any questions. RICHARD M. CABRERA Code Enforcement Officer RMC: jb co:Mike Baird, Supervisor, Building Inspection Lisa Grote, Zoning Administrator Joe Colonna, Planner Debbie Cauble, Assistant City Attorney City Attorney City’ of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 Dear ~ or Madam: RECEIVED CITY AT[ORNEY’S OFFICE ,,UG 7 1996 David R.Cheriton 131 Covfper St. Palo Alto, CA 94301 Ph 415-325-39531] August 4, 1996 I am ~-iting regarding a dispute over a variance (93-V-2 issued to the Mills of $48 Palo Alto Avenue along Palo Alto Avenue. I contacted the ciD’ in March 1996 to enquire about the status of the legal action the city was supposed to take against the i~fills to bring them into compliance. I was unable to get a response. The city’ subsequently apparently accepted a variance application from the Mills (96-V-14) to allow the fence in question to remain as is. I enclose a copy of a letter dated December 9, 1994 which specifically states that the cit%, is obligated to initiate legal action if they fail to comply with the deadline within 21 days of the letter, which the), did not. ] believe this letter and the associated history of the case give me adequate basis to sue the ciD, as well as the Mills for damages, because their fence is not in accordance with the fence ordinance or the original variance and seriously detracts from the value of my property’ and my enjoyment of same. I further believe that because this situation has dragged on for several years and the behavior by the Mills and the city are indefensible, that the damages might be considerable. I would appreciate you reviewin.g the case and giving me your reaction. At this time, Lisa Gro~(l believe the name is) of the Planning Division appears to be inclined to approve this second variance, forcing me to take legal action. I suspect the ciD’ will have a lawsuit from the Mills to deal with as well if I succeed with mine. I prefer that the cit%, deny the latest valance application and proceed with enforcing the action called for in the e~dosed le~er of December 9, 1994. forward t , your response. David Gf’, of PaJo Alto August 14, !996 David R. Cheriton 131 Cowper Street Paio Alto, CA 94301 RE 548 Palo Alto Avenue Dear Mr. Cheriton: We received your letter dated August 4 regarding the property described above. I have confirmed that the subject property is the subject of a pending application for a variance. It is my understanding that the time within which the Zoning Administrator must act upon the application wil! expire in the next few days; accordingly, by the time you receive this letter, the decision should be available for your review. You may wish to check with the City Planning Department at 329-2441 to ascertain the status. If you are dissatisfied with the decision of the Zoning Administrator on the variance, you have the right to appeal the decision by filing an appeal with the City Clerk within ten days after mailing of notice of the decision of the Zoning Administrator. Palo Alto Municipal Code section 18.92.020. Any appeal will be heard by the Planning Commission and by the City Council, which is the final decision-maker. The City’s Code Enforcement staff will, I’m sure, be monitoring the outcome of the variance application process. The property owner will be required to comply with the terms of any variance granted, or, if the variance is denied, to bring the fence into compliance with the code. V B~~L~ ~uBtru!y Senior Asst. City Attorney DLC:!ac CC:Lisa Grote, Zoning Administrator/ Michael Baird, Building Inspection Supervisor Ariel Pierre Calonne, City Attorney P.O. Box 109./-,0 Palo Alto, CA 94303 415.329.2171 415.329.2646 Fax 960814 lac 0080357 !/ ZONING ADMINISTRATOR HEARING June 20, 1996 Excerpt 548 Palo Alto Avenue 96-UP-1 96-EIA-1 Ms. Or0.te: This is an application for a variance to construct a six-foot-high fence locatei-I within the Palo Alto Avenue public right-of-way where four feet is otherwise the maximum.height..,,~. allowed within 16 feet of the street side property line. Is the applicant present to speak, to thfs? Leslie Mills: I am speaking for my parents at 548 Palo Alto Avenue. This variance is the result of a discrepancy from a previous variance which was approved in April of 1993. The previous variance requested a six-foot stucco fence to be constructed to replace the existing four-foot fence at the from of the property to the side. so that it does not obstruct the view of the front of the house. The front side is a different shaped lot to allow that front area to be fenced in without obstructing the view of the front of the house. The problem is, however, that the drawing showed it along the property line. It is not where the existing fence was. The existing fence is constructed along the front near the sidewalk. There is a little piece of property that you can see, a parcel that was left over when the development was done that is shared by the adjacent property. The fence has always been there, and the adjacent property has their fence along that parcel also and sectioned off. It has always been a part of the property, really, and the same as the other side there which has always been a part of their property, so you can see the confusion. ~rhen the fence was built, it was built where the existing fence had always been. The propert), line actually goes a little farther back where you see it. Ms. Grote: So you had it drawn with the understanding that where the existing fence was, that is the existing property line, when, in fact, the property line is farther back. Ms. Mills: Right. so on the previous drawing, it is to replace where the existing fence is, but then the existing fence was actually shown on the property line and excluded that little parcel area. In actualit.v, what extends around that little parcel area is two six-foot gates that are transparent. Ms. Grote: I have been to the site and I have seen the pictures of it. Ms. Mills: Plus the two stucco posts. That is all that is extending out into that area. The fence is a vintage fence from the 1890s. That pretty well summarizes my proposal-. A lot of this is the same as far as the variance is concerned. The three issues are all similar to the previously approved variance, so I don’t need to get into all of that. Ms..Grote: We do have your letter in the file, if we need to talk about it. Ms. Mills: 1 might add that there is a petition signed by man), neighbors who said that they love KIT~PCMIN.3:A:~348PA.ZA 8-1-96 Page 1 the look of the fence and gates. Ms. Grote: Is there anyone here to comment on this application? David R. Cheriton, 131 Co.wper Street, Palo Alto: The Mills like to present this as an accident, but I think this has been a gross misrepresentation from the beginning. My property is partially enclosed by this fence, and it obstructs the view I have of Palo Alto Avenue, in fact, it obstructs the view of the sidewalk along there. The only driveway into my property,.and I have four young childr,en, and there are other children in the area, so it is a real safety hazard. I thifi~k it is relevant to consider some of the history here, as well. But we are not talking about an application for what is going to be built. We are talking about trying to ac~orn~oda/e\v’hat has alread.v been built. I would like to review a little bit of this history. .- ... ~..: .. In 1993, we received a request for a variance. There were plansfor thi~. The plans called for building this six-foot fence, basically turning Mr. Mills’ property, which is about three or four regular sized properties, since he is a multi-millionaire who o~’ns properties throughout Palo Alto, into effectively a compound. There are four-foot fences in that area. There are no other six-foot fences along Palo Alto Avenue that I am aware of. When this variance was presented, the drawings clearly showed that the fence would be on the property line. The letter I ~n’ote on March 30, !993 raised the question of why the fence was located in a position that was different from the existing fencing. There was no explanation to me or in the variance of how the fencing was going to be changed. Ifvou look at where it would have been placed, it made no sense. We said it made no sense in the letter we wrote objecting to this. We objected only to the portion that was affecting us. \\:e did not object to the building of this compound-like six-foot fence all the way around the rest of his property, which includes this area on Ruthven. The justification for this variance was based on privacy and security. He claimed that for some reason, he was under attack by rancloms coming along Palo Alto Avenue and that it was unjustified for people to look into his property. Again, we only objected to one portion of this. What was actually built represented a gross misrepresentation here. What was built? Well, it was on cit.v property. We have a man here who is a multi-millionaire. He owns more property than most anybody else, and he wants to put his fence on city property, not on his own property. That is the first thing. Now we are not talking about a few feet off. This fence is up to eight feet away from what was on the original plan. One of the effects of this is that because the property slopes up from my’ area. my lot. up to the city property, what is built is a six-foot fence but turns into effectively more like an eight-foot fence from where my property is located. So this is why, if I back out of my driveway, I have this enormous fence to tO’ and look past to avoid hitting pedestrians as I back out. Mr. Mills has three driveways to choose from; I have one. I have one lot to live on, and hehas scads of them. 1 don~t "know how man)’ he has in Palo Alto. That is the second thing. Moreover, if you look at these pillars and measure them, they’ are more than six feet. They are definitely more than six feet. The final thing is, remember this justification on privacy and KIT~PCMIN 3 A ’,548PA ZA 8-1-96 Page 2 securit.v. As we just heard, the primary portion of this is this large, transparent wooden gate which provides no privacy whatsoever, and provides no security. It is a picket fence that you could easily climb up and walk over. I know that many people would look at this and say, this is very nice and wonderful. In the same sense, you can go to an art gallery and say, this is a very nice painting, but consider what it is to be like the wall sitting behind the painting. I am sitting behind this painting, this work of art. which blocks my view of Palo Alto Avenue. which blocks my visibility when I am trying to get out of my driveway. I am just an ordinar3.’ working guy who has had to take time off to be here. I have spent countIess hours and have met with Nancy Lytle. with Richard Cabrera, and have discussed these issues numerous times. This has cost me days and days of my time to deal with this. We wrote ~ Ietter in July of 1993 olajecting to where this fence was placed. We got. Mr..~C~to ask them to either lower the fence to four feet in its existing location or move it backto be in complian~. with the variance. After a lot of discussion, etc.. I received a certified letter in November of 1994, ordering Mr. Mills to move that fence to be in compliance with the original plan or e.lse, lower it to four feet. or the city would initiate legal action. I was waiting for that legal action to take place, and I was just about to contact the city, saying I was going to initiate mv own legal action against Mr. Mills. and possibly the city, when I received notification of this variance. Again, I think what has been presented is a mistake. Mr. Mills again is the millionaire here with a long record of violating building codes and paying no attention. Let me cite three examples. I moved into this house 15 ?ears ago. At the back of the house, this place where the original fencing was~ there was a wooden fence that had clearly been cut off. At that time, Mr. Mills related how he had built a six-foot fence there, and a building inspector, who was one of those "’toothless bureaucrats from City Hall.’" as he described them, came along and forced him to cut it back to f6ur feet. So there is one example where he violated the building code. Awhile back, he bought the property beside me. so he now owns half the city block, plus other numerous properties, and he was repairing and fixing up 137 Cowper Street, which is a rental place at the back of the property, which would be totally illegal, except that it is grandfathered. I am told again bv him and from wha~ l observe that the construction on that propert.v was stopped because he did not have the proper building permits. He accused me of reporting him, of course, on that. I actually did not report him. but agaim there is another instance where he has not filed proper building permits, and he has not gotten proper approval for the work he has done. As part of the discussions I had two years ago with Richard Cabrera, he said, oh by the way, I was going to do something about this large structure. Mr. Milis then constructed beside this compound-like fence some structure which I estimate is about eight or nine feet tall which is right beside his six-and-a-half or seven-foot fence that runs right along Ruthven. According to Mr. Cabrera at the time. there was no permit for this, plus you could not build that high a structure there right against the property line. Mr. Cabrera again assured me that something would be done about this. even though I did not complain about it. He was the one that brought this up. so what we have here is a repeated pattern of do what you want, and then if somebody complains about the five feet. then we will pretend that it is whatever. Mr. Mills has also threatened me with various actions, as well. but I refuse to lie down in this KITIPCMIN 3 A:\548PA.ZA 8-1-96 Page 3 situation. I feel that what ~ve have here is a multi-millionaire who has decided to put up his art work on city property, ignoring the concerns of the neighborhood that is affected. I think man?, people signed a petition that says, that is pretty, but see if the?’ xvould sign this if they were living on the one piece of property the?’ own which is affecting the safety and the reasonable use of their propert2,.’. So not only should this variance be turned down, but I would like to see the ci’~v review the basis for the original variance altogether and actually what he built, because I think the ,:,’hole thing is not in compliance with the original variance, and never was int~ended to be. Ms. Grote: What do you specifically th-ink are the negative impacts l~f the fence? From the pictures, it does not look like there are visual negative impacts to you. Our transportatiSn engineer went out to see ift~ere xvere safety impacts, and determined that there were not::tf:ybu were to use that driveway, you would still be able to see around this. Mr. Cheriton: How did he determine this? Ms. Grote: He does it by using templates and models of cars and figuring out turning radiiand sight distances and sight angles from the plans. He detern~ined that it ~vould, in fact, not be a safety hazard to anyone using the driveway on ?’our property. Is there something else.that you think might be a negative impact? Mr. Cheriton: I don’t "know how you drive past an eight-foot pillar and still see beyond it. Both of mv vehicles are vans, so I am actually higher up than the normal passenger vehicle, but I would have to consider passenger vehicle uses, as well. You are going uphill onto Palo Alto Avenue, so I don’t think that is credible at all. I feel this is a significant problem. The other aspect is that.previous to this, there was a four-foot fence there, and I could see the whole range of Palo AltoAvenue, I personall.v believe that having visibility out onto that avenue is one of the greatest benefits in terms of security. I can see who is going past there; I can see people loitering. I also used to be able to see my kids when they were playing at the back or going along Palo Alto Avenue. Now l am behind this fence, in effect, which is Mr. Mills’ compound. Michael Price. 135 Cowper Street, Palo Alto: I live next door to David Cheriton. I am here because I really love this fence. I don’t even think of it as a fence. I think of it more as a column that holds a gate. The gate is really beautifu!, as you can see. It is an antique thing and has a lot of historical look to it. It really adds beaut?’ to a sidewalk where I walk every day with my dog. I reall.v appreciate that, and I feel that if that column were lowered to four feet, it would not successfull.v hold up the gate. It would look horrible. If the city said okay, Frank, vou’ve gotta lower your fence to four feet, so he does that, then here is this unworkable looking solution just because of a neighbor that is upset about it. I am an artist and I have an art degree, and I have this sense of design where I think what is going on there is beautiful. I have been-on David’s property because our kids play together, and ] have marked out his property. Palo Alto Avenue clearly’turns right there so that you have a real clear view backing out. He chooses not to park his cars in his driveway because the kids cannot ride their bikes there, so it is not like he is actively using that driveway. So it is more like a path for bikes and his kids to go into. We have asked him to move his ",’an back in there, and he does not want to have it back there because then Kt~PCMIN 3 A \548PA.ZA 8-1-96 Page 4 his kids can’t get out. Mr. Cheriton: I don’t want to move it back there because then it is dangerous to operate it from there. I think it is totall.v unreasonable to decide that my driveway cannot be used because you want a piece of art work on city property. Mr. Price: I do not see how lowering the fence two feet is going to change that. It is stil! going to be the same, plus there is a junk pile next to this that is just as high. That is more of an obstruction. So it is like you are not contributing to the situation b.v having this huge trash igile there that has been there for a number of ?’ears. So that is going on. .. What I think is a good solution is if vou look at ~vhat is going on there, these guys have plants. growing there and it is a compost area behind the gate. The gate is this natural thing that can open, and there is this functionally nice thing going on there. I don’t think of this place as a compound. I think of it more as an estate that is handsome. It does not seem ominous or unfriendly. It is a sweet, nice looking place that adds to the neighborhood. If you look at it and say, this is a nice solution for coming to the corner of David’s property, and I think there is this misunderstanding of surveying, from what I understand of city property, and I think it is unfair to punish Frank Mills for having the wrong drawing in his plans when this truly was an existing place where the original fence was. It is not like he is suddenly coming into an area that did not have something there before. It would be unreasonable for him to have to change just because of one upset neighbor when all of the rest of us think it is a great addition to the neighborhood. Ms. Mills: I would like to respond to some of the comments that were made. I find them to be highly exaggerated and Mr. Cheriton to be quite a stoo’ teller. There are some things out of context that have nothing to do with this. He presumes that he "knows about mv father’s financial situation. It has no bearing on this whole case. The only question is. what is wrong with the fence that bothers you. You say you cannot see out. It is a transparent gate. You can see out the transparent gate. The only thing blocking it is a stucco thing that is six feet high. It has been measured. It is six feet high. Behind this is a tree that you can see. You cannot even see his house, and he cannot see out anyway in front of the stucco area. This is the only bearing on what is wrong with the fence, not all the other things. I can say that I did get the permits on the building where he lives that you are tal "king about, and it is all permitted, so where you get your exaggerated stories from I am not sure. I did get the permits. I went down to the city and got the permits and construction had not started yet. Then it began. So some of these comments are offensive and have nothing to do with what is going on here. I think you should restrict your comments to what is wrong with the fence. Mr. Cheriton: Well. I feel they are relevant. The point of those examples was that your claim is that this was accidental. I claim that it was done on purpose. (,An argument ensues between the two parties) Ms. Grote: I think we should not argue about this. We should remain calm and we need to focus K1T:PCMIN .3iA:’,548PA.ZA 8-1-96 Page 5 on the fence itself and where it i~ located, why it might have been built in that location, and if it is an error. I do not want to speculate on anyone’s honestv. Mr. Cheriton: \Vhat I would like to return to here is that there is a standard building regulation which is a four-foot fence. I think one of the reasons for that is to prevent people from building these compound-like things and turning this into an enclosed city’. I feel that what we were asked in the original variance was to agree to something which was in violation ofthat~spirit. I felt that we took a most accommodating position on this, objecting only’ to the portion we felt was seriously~jurious to our property’. What was built was even more injurious. Also the ba.}ii for the city’, in approving this, was based on the expectation that it was necessaw for security’ and privacy. This is just a total misrepresentation relative to what was actually’ built.. So I feel there is a basis for objecting to this. I have a letter from the city commi.tting to either f .ordn.g.t.he. ,Mills to either move the fence or cutting it back. " " ..... " .... --:: Ms. Grote: Or rectify’ the situation in some other manner. I need to add that one of their legal remedies is to apply’ for another variance, which is xvhat they, have done, asking to have thi~ viewed in a new light. Now they" are saying that it is in the public right-of-xvay, there are unusual circumstances that led to its location in the public right-of-way, since most lots do not have a triangular portion of public easement or right-of-way in front of their house in this configuration. So they are asking for this to be reviewed in a new light, given all of the conditions. Ms. Mills: I would like to bring up one more thing about where it would have been. I think you xvould find that if we had extended it to the location from the corner of the property’ to here, it would be a six-foot stucco fence. That would have more than impeded your view. Right now, you are looking through 12 feet of transparent gate. If we had extended back that six-foot stucco area, it would a xvorse case scenario for you. You also have a fence in the public right-of-way along the front of your property. Mr. Cheriton: I am wel! aware of that, but it is a four-foot fence. I feel we have basically’ been scammed here in the way this has been approached. Ms. Grote: I will duly note your comments. To xvrap this up, I will enter into the record that I did receive a petition with most of the neighbors’ signatures on it. It is in support of the fence. I do have Mr. Cheriton’s letter and documentation in opposition to the fence. With that, I will close the public hearing and issue a written determination in ten working day’s. K IT~PCM IN.3iA",548 PA.ZA 8-1-96 Page 6 ~ REQUEST THAT YOU PERMIT THE FENCE AKD GATE TO REMAIN AT THE PRESENT LOCATION ALONG PALO ALTO AVENUE ADJACENT TO THE HOME COMMONLY KNOWN AS 548 PALO ALTO AVEN]3E, PALO ALTO. NAME ADDRESS DATE AT THE PRESENT LOCATION ALONG PALO ALTO AVENUE ADJACENT TO THE HOME COMMON~LY KNOWN AS 548 PALO ALTO AVENUE, PALO ALTO. NAME ADDRESS DATE 1 / AT THE PRESENT LOCATION ALONG PALO ALTO AVENUE ADJACENT TO T~E HOME COM]~ON’LY K’N[ S 548 PALO ALTO AVEN~3E, PA~LO ALTO. NAME ADDRESS DAT~E TO:CITY OF PALO ALTO: WE REOUEST THAT YOU PERMIT THE FENCE AND GATE TO REMAIN AT THE PRESENT LOCATION ALONG PAL0 ALTO AVENUE ADJACENT TO THE HOME COMMONLY KNOWN AS 548 PALO ALTO AVENUE, PALO ALTO. NA~E ADDRESS / 7 TO:CITY OF PALO WE REQUEST THAT YOU PERMIT THE FENCE AND GA~E TO REMAIN AT THE PRESENT LOCATION ALONG PA-LO ALTO AVEhPUE ADJACENT TO THE ROME COMMONLY KNOWN AS 548 PAL0 ALTO AVENII£, PALO ALTO. t NAM___._~E ADDRESS DATE TO:CITY OF P~O : WE REQUEST THAT YOO PERMIT THE FENCE AND GATE TO REMAIN AT THE PRESENT LOCATION ALONG PALO ALTO AVENUE ADJACENT TO THE HOME COMMONLY KNOWN AS 548 PALO ALTO AVENUE, PALO ALTO. NAME ADDRESS DATE WE REQUEST T~AT YOU PERMIT THE FENCE AND GATE TO REMAIN AT THE P~ESENT LOCATION A_LONG PA.LO ALTO AVENUE ADJACENT TO THE HOME COMMONLY KNOWN AS 548 PALO ALTO AVENUE, PALO ALTO. NAME ADDRESS DATE TO:CITY OF PA.LO ~: W’£ REQUEST THAT YOU PERMIT THE FENCE AND GATE TO REMAIN AT T~E PRESENT LOCATION ALONG PALO ALTO AVENUE ADJACENT TO THE HOME COMMONLY KNOWN AS 548 PALO ALTO AVENUE, PALO ALTO. NAME ADDRESS DATE TO:CITY OF PALO ALTO: WE REQUEST THAT YOU PERMIT THE FENCE AND GATE TO REMAIN AT THE PRESENT LOCATION ALONG PALO ALTO AVENUE ADJACENT TO THE HOME COMMONLY KNOWN AS 548 PALO ALTO AVENUE, PALO ALTO. NAME ADDRESS D AT____~E ~_..:. ~ -,,._... ~~ . /,~..’,=,,/._ i / ,’ / ,,,&;~.~.._,..:. / -,.,j;,. Menlo Park ST Froject: 54B Falo Alto Avenue Appeal of Zoning Administrator approval of Variance for f~ont yard fence 2649 2968 RM-3 JOHNSON PARK PF 1802 Graphic Attachment to Stew Report Date: November !3,1996 File #: 96-V-14 Scale: 1 inch = 400 FT North Attachment 3 Excerpt Minutes of the Palo Alto Planning Commission November 13, 1996 Item 3:548 PALO ALTO AVENUE: Appeal of the zoning administrator’s approval of a variance for the location of a six-foot-high fence with six- foot six-inch columns within the front yard and in the public right-of-way between the front property line and the back edge of the sidewalk adjacent to the street frontage of an existing single-family residence in an R-1 zone district. Environment Assessment: Project categorically exempt from the provisions of the California Environment Quality Act (CEQA). File No. 96-V-14. Ms. Grote: I will keep the staff report very brief. We are recommending that the zoning administrator’s decision be upheld. Carl Stoffel from our transportation division is here if you should have questions regarding site distance and backing out of the adjacent driveway. I would also like to draw your attention to the additional information that the applicants, Mr. and Mrs. Mills, submitted which is at your places. Chairperson Cassel: Are there questions of staff at this time? Commissioner Beecham: How frequent is it that fences are built beyond the residence property line? Ms. Grote: It is an unusual circumstance. After the fence was constructed, it was revealed that it was in the public right-of-way. That is why they came back for a second variance. The original variance had assumed it would be built along the property line, not in the public right-of-way. Commissioner Beecham: And you say this is unusual? Ms. Grote: Yes, to have it built in the public right-of-way. But there are many examples of existing fences that were built many, many years ago that are in the public right-of-way. Ms. Cauble: IfI could add to that, it is unusual for a fence to be built on the public right-of-way, but it is also unusual to have a condition where you have a public right-of-way of the kind that we have here. It essentially curves in and almost functions as a part of the private yards of these property owners. It is an unusual situation all around. Commissioner Schmidt: In the original variance request where some of this confusion came up, are site plans typically submitted for a variance to indicate where this fence was to go? Planning Commission Page 1 11/13/96 Ms. Lvtle: Yes, the original site plan for the first variance that was granted indicated that the fence was going to be constructed within the propert5~, not in the public right-of-way. Chairperson Cassel: Seeing no further questions, I will open the public hearing. I have two cards from people who wish to speak to this item, but neither of them is the appellant Commissioner Qiakian: I know the appellant, and I do not see him in the chambers tonight. What does that mean? We have someone appealing something, but they are not here. Ms. Cauble: No one is obliged to come to the hearing. The appellant has presented extensive written support of his position. To ensure there is no confusion, Nancy is suggesting that perhaps she could hurry out and call the appellant to see if perhaps he is waiting to come down. He is not obliged to be here. You are obliged to consider al! of the evidence. He certainly has presented information in support of his position, which is in the record before you. Chairperson Cassel: The first person to speak is Leslie Mills. Leslie Mills. ! 80 Santa Margarita. Palo Alto: I am speaking on behalf of my parents, Frank and Shirley Mills, who are present tonight. This has been nerve-racking for them and for me. In 1993, my parents applied for a variance to build a six-foot fence, replacing an old wood fence around their back and front side yards. I did the drawings for this from the city lot maps, stating that I was to replace the existing fence. The variance was approved, and the fence was built, at which point, it was brought to our attention that I had shown the drawing on the fence actually along the propert)~ line and not where the existing fence had been for the past 30 years. I neglected to account for the fact, as stated earlier, that there is a small piece of property, there that is a city easement between the property line and the sidewalk. That was left over from the dedication of Palo Alto Avenue a long time ago. The neighbor adjacent to the fence at 131 Cowper Street, Mr. Cheriton, objected to the fence. As a result, my parents applied for a second variance to show the fence in its exact location. This variance was also granted, which is the variance we are discussing tonight. Mr. Cheriton has appealed the variance based on the fence being a visual impairment. The cit3.~ engineer has determined that this is just not so. There is a six-foot column and two transparent gates directly adjacent to Mr. Cheriton’s property, and neither is an obstruction of his view. The fence is a beautiful fence, an attribute to the neighborhood. Al! of the other neighbors have commented on how beautiful the fence is. There is really no basis for the appeal, and we feel that the appeal is due to other unrelated issues. My parents and I are present to answer any questions. Michael Price. 135 Cowper Street. Palo Alto: I live adjacent to David Cheriton. What I want to say is that they have been through this before, and we discovered it is not really a fence that blocks any view. It is a column, and it is a transparent gate. The gate is a handcrafted, 100-year- old redwood gate that is beautiful. It adds a lot of vitality to the neighborhood; it is sweet and inspiring and playful, and it is a reflection of the heritage of University Park. What we have next door is a neighbor who has painted an ugly picture of the Mills, who are very sweet people. We are talking about people who keep their house in a meticulous manner. It is beautiful; it is inspiring. They have restored farm equipment on their land, and this fence is another example of Planning Commission Page 2 11/13/96 their overwhelmingly beautif),ing the neighborhood. David Cheriton, on the other hand, has a very, neglected looking property. He is complaining about this fence as though it lowers the value of his property, when in fact, he personally is lowering the value of his property with (1) he has a shed there that is a rat-infested menace to our neighborhood. The neighbor behind me had an exterminator come out and determine that there is a huge nest of rats on his property., next to the fence post that he is complaining about. I don’t think it is fair that he has this horrible eyesore of a backyard, and he is complaining about this little narrow column. It is a challenge to his credibility because of that. I think he also has an emotional vendetta against the Mills that goes way beyond his gatepost. I think he is using this as an example of wanting to leverage the Mills into a position of compromise. This is a preexisting rage that he has with them, and it has turned into a feud. The other thing is that if you read his words from his previous talks or letters, you will notice that there is a lot of anger and rage. He is mentioning their money and their financing, and that is not appropriate that he should be talking about them being multi-millionaires. Just last summer he was on the front page of the San Jose Mercury, because he, himself., was a new millionaire, so he cannot use that anymore as a reason why they should not have this thing stay up anymore. The other thing I want to mention is that between him and the fence is a pretty big persimmon tree which pretty adequately blocks the fence post. So he cannot really even see that much. So we are talking about one man who does not want this thing to stay up. We have a petition of 76 signatures of neighbors who overwhelmingly love this thing, so I ask you, the Planning Commission, who are here as a forum to protect the integrity of the neighborhood, not to satisfy the revenge of one angry man who is out to punish my sweet neighbors. Chairperson Cassel: Ms. L.vtle has determined that the appellant is on his way. (It was moved and seconded to proceed with announcements, giving the appellant until 10 o’clock to arrive.) COMMISSION ANNOUNCEMENTS Chairperson Cassel: Nancy, would you please tell the Planning Commission what is happening with the Comprehensive Plan. Ms. L_~le: The good news is that we have won the award on the maps. The bad news is that we are approximately one month behind schedule from when we last reported to you on the potential timeline. The new release date for both the Draft Environmental Impact Report and the Draft Comprehensive Plan is now December 18th. The public review period would go through until February "~o, 1997. Chairperson Cassel: So it would come to us on December 18th? Ms. Lytle: Correct. Planning Commission 11/13/96 It would be delivered as a holiday present. We are anticipating some public Page 3 study sessions in January that we would like to begin calendaring with the commission. Our appellant has now arrived. Commissioner Eakins: How long is that public review period? Ms. Lvtle: On the Environmental Impact Report, it is a 45-day period. Commissioner Eakins: I feel that that is too short, since too much of it is in the holiday period. Chairperson Cassel: We will continue that discussion at the end of our meeting tonight. We can now return to Item #3,548 Palo Alto Avenue. Since the appellant has arrived, would you care to address us? You have up to 15 minutes. David Cheriton. 131 Cowper Street, Palo Alto: I feel like I am the only person that is really affected by this, because this fence partially encloses my property. In fact, I have had a real estate agent out looking at the place, several actually, who immediately ask, is that part of your property, or is that your fence, or what is going on here? I was caught a little off guard this evening, but let me make a few comments. This whole thing started in my mind many years even before I bought the property. Frank Mills once told me that there was an old fence there that was obviously sawed off. He told me he built a six-foot fence along there, and the city came along and forced him to cut it back to four feet. It was evident by what happened that the fence had been cut back to four feet. Back in 1993, he applied for this variance to put in a six-foot fence. Now there are no six-foot fences along that area, and so on. I objected to it in the area that enclosed my property, but I had no objection to the other parts along Ruthven and so on where he decided to build this six-foot fence. I was not able to attend the variance meeting then, and of course, they approved that variance. Then he proceeded to build a fence, but instead of building a six-foot fence, he built a fence higher than that. He built a fence that was at a different location than what was listed on the plan then, and I have spent the last three years trying to rectify this. I don’t really care about sticking to plans specifically. I am not out for vengeance. It is just that this is a ridiculous situation where somebodv has asked for a variance which I think is unwarranted and extraordinary. It is based on a bunch of what I feel are bogus claims, like a need for security,. If you go out there and look at the property, there is nothing secure about that fence. It is only a six-foot fence in its decorative portions, and it does not provide any privacy. All of the things that the city decided in approving the original variance have no basis in fact with what is actually installed there. So when I discovered that he had built a higher fence and in a different location than in the plan that was even more detrimental to my property., I notified the city, and Rich Cabrera came out several times. He looked at this and he verified that the fence had been built incorrectly, according to the plan. It was higher than the plan. and so on. I spent some time with the city talking about various options, and none of the options that the Mills were going to agree to included even bringing the thing according to the plan that had been originally approved. I have spent a lot of time on this particular issue. We are talking about somebody who has gone and built a fence on city property. This is one of the larger landowners in this area, and he can’t Planning Commission Page 11/13/96 even bother to build the fence on his own property,. One of the ways this affects me, when he moves it back onto city property, is of course that it is effectively enclosing more of my property, as well as the land going up at that angle from my property up, so I have the effect of somebody building something that is closer to an eight-foot fence behind my property. Not only is it just behind in the sense of blocking the view, but the only driveway into my property runs out to Palo Alto Avenue, and I am supposed to get past this large pillar. I cannot see past this, and I am a little amazed. I must admit, I am finding it hard to describe this because to me, it is so amazing to see what has happened here. Apparently, recounting the history again, the city generated a letter that I believe Mr. Cabrera wrote that told him to move the fence, or lower the fence to four feet, or else the city would initiate legal action. That was I believe in 1995, although I do not have my notes in front of me. When I inquired in February or March of 1996 as to what was happening with the legal action, suddenly the planning department decided to give him the option of applying for another variance which would retroactively allow this fence, which was totally out of compliance with the normal fence regulations, and not even on his property, to stay there. They rubber stamped that whole thing in August. I am pretty amazed by that. The traffic engineer apparently decided that I do not have a problem backing out of my own driveway. I drive a van, and I am probably about two feet higher in the air than most people driving normal vehicles, and I can’t see beyond this. I can’t see the sidewalk on that side, and I think it is a very unsafe situation. I did glance through this report by Lisa Grote, and it seems like a complete whitewash. I pointed out that Mr. Mills has a long history of violating and ignoring these regulations. You can go out there now and see along Ruthven that not only did he build a six-foot fence but he has built another structure right next to that which Mr. Cabrera told me, when I was investigating this, which was built right after the fence was put in, this thing I would estimate to be at least eight feet tall. It is some kind of a planting structure, but Lisa Grote seems to claim that that has been there for years. Well, I can assure you that it was built after the fence, and again, Mr. Cabrera assured me that he was going to do something about this, even though I didn’t complain about it. It isn’t my problem. I would simply point this out as being a long standing pattern of simply building things and seeing what you can get away with. Frankly, at this point, I am a little disappointed that the Planning Commission is not providing more protection. I have this one property, one driveway, and it is a normal, simple house that I am trying to fix up, and here we have this guy who owns lots of property and has to build this excessively high fence right at the back, which blocks my only view of Palo Alto Avenue, whereas he has a very. wide, unblocked view but has to block the visibility of the sidewalk from my only driveway. This man has three driveways on that one property, ignoring the other properties that he already owns. So I frankly am pretty disappointed that this has gone on as long as it has. I really think that this variance should never have been granted, in fact, I don’t think the first variance should ever have been granted. If you drive along Palo Alto Avenue, you don’t find a lot of people with six-foot fences, in fact, I didn’t find any when I drove along there. They are all four-foot fences, and I think that the city already has a very clear policy that our approach to getting security is not to allow people to build these compounds with six-foot or eight-foot fences and hide behind them. Our policy is to have four-foot fences along property, lines and to be responsible neighbors so we can what is happening on the sidewalk and so we can see what is happening in each other’s yards. That is how we achieve security, not by these security compounds. I think that Frank Mills is basically Planning Commission Page 5 11/13/96 walking all over that policy, and I would like to see the city stand up for that. I would also like to see the city stand up and protect my rights as a property, owner. I again just have this one property., one driveway, and all I am asking is for something very. basic, which is to have that fence be something sensible. It either should be lowered to four feet where it is, or it should at least be brought into compliance with the original variance, which was for a six-foot fence along his property line. Again, I find I cannot even express what I think is so ridiculous about this situation of having somebody with so much property building something that is totally beyond the variance. Let me mention that in this report, in the second variance hearing, I mentioned that the fence was more than six feet, and Lisa Grote immediately corrected me saying, oh no no, it is only six feet. Well, you can read that somebody admits it is more than six feet in places. So I think this has gone on long enough, and I would ask you to overturn that second variance and get Mr. Mills to finally comply with either the plan he submitted or a revised one which puts it back at four feet. Thanks vei3~ much. Chairperson Cassel: I will close the public hearing and bring this item back to the Planning Commission. Are there any questions of staff by the Planning Commission? Seeing none, we can begin discussion. Who would like to start? MOTION: Commissioner Schink: I did not hear any compelling testimony that would suggest to me that the zoning administrator made any mistakes, so I would like to move the staff recommendation. Chairperson Cassel: Before getting a second on this motion, since this is a quasi-judicial issue, if any of us had any conversations with people or went out to see the site, we should so indicate. Commissioner Schink: I visited the site. Commissioner Eakins: I also visited the site. Commissioner Schmidt: I visited the site, too. Commissioner Ojakian: I visited the site. Commissioner Byrd: As did I. I didn’t know we have to disclose site visits. I thought it was just contact with individuals. Chairperson Cassel: I visited the site also. Commissioner Beecham: Is it necessary to say that on these? That we had visited the site? I thought that was public information, in a sense. Ms. Cauble: Yes, it is public information. It is a good practice, if your site visit was particularly significant in your decision making, that you mention that. But your policy requires you to disclose contacts with individuals or with other information you receive. Planning Commission Page 6 11/13/96 Commissioner Beecham: To demonstrate our thoroughness, we have all visited the site. Chairperson Cassel: In my case, it made a big difference in the way I understood this issue. SECOND: By Commissioner Schmidt. Commissioner Schmidt: I would agree with Commissioner Schink’s comments. I think it is unfortunate that this has gone on for such a long time, and it is unfortunate that there were misunderstandings or that the fence was originally proposed to be on the property line but was built off the property line. This is a situation, as the attorney described, that is an unusual circumstance. I think the fence looks appropriate where it is, so I would support the zoning administrator’s recommendations. Commissioner Beecham: I have a short comment for the appellant. There are some cases where one finds out that things were not built as either planned or approved. In those cases, we either can require them to be rebuilt, as you request, or we can decide that what has been done, for whatever reasons, may be appropriate. In this case, if the fence were built back on the property line, you would have some dead property that is not taken care of in that location. In other cases, we have felt that it is better to have the fence go to the sidewalk and not have that dead property. To me, in this case it is very appropriate to do that. Chairperson Cassel: We must make some findings for this, so I wish to comment to the findings that this piece of property is indeed a very unusually shaped property. It is on a block which is not a square block. I cannot even figure out how many sides it has. It took me several times going around the block to figure out where the piece of property started and ended. So in these situations, we often make exceptions as to where there can be a six-foot high fence and where there cannot be one, in order that there be some definition of the yard. I have no problems at all with the fact that this is an unusual and exceptional piece of properD’. And I can make the other two findings Nos. 2 and 3. I felt there was no detrimental or injurious actions to the property next door from the Mills’ property by the placement of this fence. I found that the appellant could see out of his driveway when he needed to do so. This is a very unusual piece of properb,, and both the Mills and the appellant have a portion of this unusual piece of property. Both of their fences sit on city land. One is simply being replaced and the other is not being replaced. They abut each other in a logical fashion and would not have abutted each other in a logical fashion if the fence had gone along the property line instead of continuing into the city right-of- way, as both fences do. Commissioner Schink: I want to make one brief comment about the fences being off the property lines. In my 20 years of experience in building around town, let me assure you that it is a very common experience. In fact, now the Palo Alto Building Department requires that property corners be surveyed since it was such a prevalent problem. So often, people assume that the fence is indicated where the property lines were, but in fact, it is quite frequent that they are outside the property lines. So I do not see this as being abnormal. Commissioner Ojakian: Planning Commission 11/13/96 I will not add to any of the comments that other commissioners have Page 7 made, as they have spoken to the issue sufficiently, but since I know David, I thought I would just comment briefly. It is an interesting situation for me, and I would hope that these two parties can get together at some stage in the future and whatever differences they might have, maybe they can speak them through. My own personal situation is an interesting one. When I had to build my backyard fence, I did it after collaborating with my neighbor, and we built it together. We actually changed the slats in a way so that part of the fence is on our side of the property and part is on his, so on and so forth. It has always been a nice situation, so I am speaking less from the technical end here and from the motions that are in front of us and the findings and more from a personal end. I would hope you two people can get together and talk a little bit and work out your differences. Commissioner Eakins: When I looked at this property, I saw the adjacent gates as being continuous with each other. Moving one or the other would cause a visual disruption. Secondly, maybe that little street is not supposed to be at high speed, but I sure felt at risk walking on the sidewalk there, so I think both property owners benefit from having their gates and fences out at the sidewalk. MOTION PASSES: Chairperson Cassel: Is there any further discussion on this motion which moves the staff recommendation? All those in favor, say aye. All opposed? That passes unanimously on a vote of 7-0. Ms. Cauble: This item is projected to go to the City, Council for a final decision on December 9, 1996. Planning Commission Page 8 11/13/96