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HomeMy WebLinkAboutAppeal of Zone Variance 07-202 AGENDA MEMO DATE: July 22, 2008 TO: Mayor and Members of the City Council FROM: Office of the City Manager By: Gilbert Livas, Deputy City Manager/Community Development SUBJECT:AN APPEAL OF A DECISION BY THE PLANNING COMMISSION TO DENY ZONE VARIANCE 07-202 - A REQUEST TO WAIVE THE ENFORCEMENT OF A CONDITION OF APPROVAL OF ZONE VARIANCE 293, THAT REQUIRES THE PROVISION OF TWO COVERED PARKING SPACES PRIOR TO THE SALE, LEASE, OR RENTING OF THE PROPERTY AT 9447 PELLET STREET, ZONED R-1 6,000 (SINGLE-FAMILY RESIDENTIAL) RECOMMENDATION Staff recommends that the City Council adopt the following Resolution: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY DENYING THE APPEAL OF A DECISION BY THE PLANNING COMMISSION TO DENY ZONE VARIANCE 07-202 - A REQUEST TO WAIVE THE ENFORCEMENT OF A CONDITION OF APPROVAL OF ZONE VARIANCE 293, THAT REQUIRES THE PROVISION OF TWO COVERED PARKING SPACES PRIOR TO THE SALE, LEASE, OR RENTING OF THE PROPERTY AT 9447 PELLET STREET, ZONED R-1 6,000 (SINGLE-FAMILY RESIDENTIAL) REPORT SUMMARY During its regular meeting of June 18, 2008, the Planning Commission denied a request by Carol Nader to modify Condition No. 3 of Zone Variance Case No. 293. This condition, which has been in effect since Zone Variance No. 293 was approved in 1985, required Ms. Nader to provide two covered parking spaces within a two-car carport or garage, before her property at 9447 Pellet Street is sold, rented, or leased. On July 1, 2008, Ms. Nader filed a timely appeal (see attached letter) of the Planning Commission’s denial and is requesting that the City Council overturn the Planning Commission’s action. BACKGROUND In 1983, the City issued a building permit that allowed Ms. Nader (and her then husband) to construct a 600 square foot addition to their home. It was only 800 square feet in size and is a legal nonconforming use because it only has a one-car garage. Section 9154.10 of the Code allows nonconforming use of residentially-zoned property to be expanded without requiring compliance with the current development standards, but such expansion (of the main dwelling) cannot exceed 50% of the existing floor area. Otherwise, the structure must meet the current Code requirement. Section 9150 of the Downey Municipal Code requires two covered parking spaces for a single-family CITY OF DOWNEY, CALIFORNIA residence. The amount of floor area that Mr. and Mrs. Nader wanted to add represented more than 50% of the floor area of the 800 square foot house; consequently, the City- approved building plans for the room addition that met the requirements of Section 9154.10 by including a two-car carport. Prior to completing the room addition however, Ms. Nader requested a variance to secure relief from Section 9154.10 of the Code, which required the two-car carport. She argued that it was unrealistic to modify the existing one-car garage to provide access to the new carport that the approved plans depicted at the rear of the property. On December 21, 1983, the Planning Commission considered Ms. Nader’s request and approved Zone Variance No. 293, thereby allowing her to maintain the one-car garage, even though her room addition exceeded more than 50% of the existing floor area of the house. Condition No. 3 of Zone Variance No. 293 required Ms. Nader to record a covenant with the Los Angeles County Recorder, stating that the required two car carport or garage shall be provided in accordance with the standards of the City, prior to the sale, lease, or renting of the subject property. Nine months after the Planning Commission approved Zone Variance No. 293, Ms. Nader submitted another variance application, Zone Variance No. 350, requesting that the Commission remove Condition No. 3 in its entirety because the covered parking spaces would disrupt her rear yard and remove existing amenities. But on September 5, 1984, the Planning Commission denied Zone Variance No. 350. Ms. Nader appealed the Planning Commission’s decision to the City Council, which the Council subsequently denied on November 13, 1984. Therefore, on December 20, 1984, Ms. Nader recorded a covenant with the Los Angeles County Recorder stating that in consideration of the Planning Commission’s approval of Zone Variance No. 293, she promised to provide a two-car garage or carport before selling, leasing or renting the property. Zone Variance No. 293 has been in effect for more than 24 years, but it only affected Ms. Nader recently. In 2007, Ms. Nader attempted to sell her home, but the covenant and the condition prevented a sale from closing because she never built the two-car garage or the carport as required. Seeking relief from the covenant, Ms. Nader submitted a Planning Application for Zone Variance No. 07-202, which would waive enforcement of the covenant and permit the new owner to acquire the home and arrange to bring the property into compliance, after the sale is complete. After conducting a public hearing and considering the facts surrounding this case, the Planning Commission voted to deny Zone Variance No. 07-202. The Planning Commission reached their decision after considering that Ms. Nader had tried to appeal this condition to the City Council back in the 1980’s unsuccessfully. The Commissioners reasoned that the City attempted to “help” Ms. Nader many years ago by allowing the room addition to exist without requiring a new two-car garage or carport, on the condition that the two-car garage or carport be built prior to the sale, rent, or lease of the property. This requirement was a part of the record as a “covenant and agreement,” which Ms. Nader signed. The covenant was filed with the Los Angeles County Recorder’s Office. They discussed the fact that Ms. Nader clearly knew what she had agreed to 24 years earlier and has had the benefit of the home during this time. The Commissioners also discussed the fact that approving this request would set a precedent which might affect the City negatively with similar cases in the future. FISCAL IMPACT None CONCLUSION Based on the information contained in this report, staff believes that there is no evidence that warrants overturning the Planning Commission’s denial. As such, staff recommends that the City Council deny the appeal and uphold the Planning Commission’s decision. ATTACHMENTS  Draft City Council Resolution  Letter of Appeal  Planning Commission Resolution No. 08-2543  Planning Commission Minute Excerpts, dated June 18, 2008  Planning Commission Staff Report, dated May 21, 2008  Original Plot Plan  Planning Division Staff Report – December 21, 1983  Planning Commission Resolution No. 718 (Approving Zone Variance No. 293)  Planning Commission Resolution No. 805 (Denying Zone Variance No. 350)  City Council Resolution No. 4488 (Denying Zone Variance No. 350)  Covenant and Agreement Regarding Maintenance of Building and Use H:\PLANNING\DAVIS\cases\zv\ZV 07-202\CC Staff Report 7-22-08.doc RESOLUTION NO. _______ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY DENYING THE APPEAL OF A DECISION BY THE PLANNING COMMISSION TO DENY ZONE VARIANCE 07-202 - A REQUEST TO WAIVE THE ENFORCEMENT OF A CONDITION OF APPROVAL OF ZONE VARIANCE 293, THAT REQUIRES THE PROVISION OF TWO COVERED PARKING SPACES PRIOR TO THE SALE, LEASE, OR RENTING OF THE PROPERTY AT 9447 PELLET STREET, ZONED R-1 6,000 (SINGLE-FAMILY RESIDENTIAL) THE CITY COUNCIL OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS: SECTION 1. The City Council of the City of Downey does hereby find, determine and declare that: A. An application was filed by Carol Nader (hereinafter "Applicant") requesting a variance to waive the enforcement of a condition of approval of Zone Variance 293 that requires her to provide two covered parking spaces prior to the sale, lease, or renting of her property at 9447 Pellet Street, City of Downey, California (hereinafter "subject site") zoned R-1 6,000 (Single-Family Residential); and, B. The Planning Commission opened a duly noticed public hearing on March 5, 2008, and, after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing, continued the public hearing to May 21, 2008, with direction for Ms. Nader to provide them with a proposed design (or site plan) of the required new structure, along with an architect’s or contractor’s estimates for said improvements; and, C. In a letter dated May 8, 2008, Michael Magnuson, Ms. Nader’s attorney, formally requested a 30-day extension of the public hearing because Ms. Nader was unable to obtain bids from contractors; and, D. On May 21, 2008, the Planning Commission granted Ms. Nader’s request and continued the public hearing on Zone Variance case No. 07-202; and E. The Planning Commission re-opened the continued public hearing on June 18, 2008, and, after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing, adopted Resolution No. 08- 2543, denying Zone Variance 07-202; and, F. On July 1, 2008, the applicant filed a timely appeal of the Planning Commission’s denial and is requesting that the City Council overturn the Planning Commission’s action; and, G. On July 10, 2008, notice of the pending City Council public hearing was mailed to all property owners within 500’ of the subject site. Additionally, the public notice was published in the Long Beach Press-Telegram; and, H. The City Council held a duly noticed public hearing on July 22, 2008 and after fully considering all oral and written testimony, facts, and opinions offered at the aforesaid public hearing denied the appeal, thereby upholding the Planning Commission’s action. SECTION 2. The City Council further finds, determines and declares the environmental impact of the proposed development has been reviewed and has been found to be in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities). SECTION 3. Having considered all of the oral and written evidence presented to it at said public hearings, the City Council further finds, determines and declares that: A. Special conditions and circumstances do not exist which are peculiar to the land, structure, or building involved, which are not generally applicable to other lands in the same vicinity and zone, because the subject site is a normal sized lot for properties in the R-1 6,000 zone (sixty feet (60’) wide and one-hundred ten feet (110’) deep), and the size of the house is similar to other homes in the vicinity, ample room exists on the site to provide a two-car garage. Also, the applicant was fully aware of the Downey Municipal Code requirements regarding their room addition in 1983 and the requirements for covered off-street parking. B. The literal interpretation of the provisions of the Zoning Code would not deprive the applicant of rights under the terms of the Code commonly enjoyed by other properties in the same vicinity and zone in which the property is located because the City has imposed the same condition for similar requests in similar circumstances. C. Special conditions and circumstances would result from actions of the applicant because similar requests have either established the required covered parking or executed the required covenant. The applicant has enjoyed the benefits of a larger home and a larger rear yard for 24 years by not providing the covered required off- street parking and she would evade the requirements of the Conditions of Approval if she sells the property before constructing the garage. D. That granting the variance requested will confer on the applicant a special privilege that is denied by the Zoning Code to other lands, structures, or buildings in the same vicinity and zone in which the property is locatedbecause the Code required the applicant to bring the property into compliance with the City’s development standards when she expanded the house on her nonconforming property. Zone Variance No. 293 required the applicant to provide two-covered off-street parking spaces before the property is sold, leased or rented, which has not occurred. The proposed minor zone variance would allow her to avoid meeting this requirement after enjoying the privileges of a larger home than she was entitled to. E. The granting of such variances will be in harmony and not adversely affect the General Plan. The General Plan designation for the site is low density residential. The current use as well as the purposed use will remain low density residential and will be consistent with the City’s General Plan. SECTION 4. Based upon the findings set forth in Sections 1 through 3 of this Resolution, the City Council of the City of Downey hereby denies the appeal, thereby upholding the Planning Commission’s denial, of Zone Variance No. 07-202. SECTION 5 . The City Clerk shall certify to the adoption of this Resolution. nd APPROVED AND ADOPTED this 22 day of July, 2008. DAVID GAFIN, Mayor ATTEST: KATHLEEN L. MIDSTOKKE, City Clerk I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of nd the City of Downey at a regular meeting held on the 22 day of July, 2008, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: KATHLEEN L. MIDSTOKKE, City Clerk H:\PLANNING\DAVIS\cases\ZV\07-202 9447 Pellet\CC Reso denial.doc RESOLUTION NO. 08-2543 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY DENYING ZONE VARIANCE NO. 07-202 – A REQUEST TO WAIVE THE ENFORCEMENT OF A CONDITION OF APPROVAL OF ZONE VARIANCE 293 THAT REQUIRES THE PROVISION OF TWO COVERED PARKING SPACES PRIOR TO THE SALE, LEASE, OR RENTING OF THE PROPERTY AT 9447 PELLET STREET, ZONED R-1 6,000 (SINGLE-FAMILY RESIDENTIAL). THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission of the City of Downey does hereby find, determine and declare that: 1. An application was filed by Carol Nader (hereinafter "Applicant") requesting a variance to waive the enforcement of a condition of approval of Zone Variance 293 that requires her to provide two covered parking spaces prior to the sale, lease, or renting of her property at 9447 Pellet Street, City of Downey, California (hereinafter "subject site") zoned R-1 6,000 (Single-Family Residential). 2. The Planning Commission opened a duly noticed public hearing on March 5, 2008, and, after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing, continued the public hearing to May 21, 2008, with direction for Ms. Nader to provide them with a proposed design (or site plan) of the required new structure, along with an architect’s or contractor’s estimates for said improvements. 3. In a letter dated May 8, 2008, Michael Magnuson, Ms. Nader’s attorney, formally requested a 30-day extension of the public hearing because Ms. Nader was unable to obtain bids from contractors. 4. On May 21, 2008, the Planning Commission granted Ms. Nader’s request and continued the public hearing on Zone Variance case No. 07-202. 5. The Planning Commission re-opened the continued public hearing on June 18, 2008, and, after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing, adopted Resolution No. 08- 2543, denying Zone Variance 07-202. SECTION 2. Having considered all of the oral and written evidence presented to it at said public hearing, the Planning Commission further finds, determines and declares that: Special conditions and circumstances do not exist which are peculiar to 1. the land, structure, or building involved, which are not generally applicable to other lands in the same vicinity and zone , because the subject site is a normal sized lot for properties in the R-1 6,000 zone (sixty feet (60’) wide and one-hundred ten feet (110’) deep), and the size of the house is similar to other homes in the vicinity, ample room exists on the site to provide a two-car garage. Also, the applicant was fully aware of the Downey Municipal Code requirements regarding their room addition in 1983 and the requirements for covered off-street parking. The literal interpretation of the provisions of the Zoning Code would not 2. deprive the applicant of rights under the terms of the Code commonly enjoyed by other properties in the same vicinity and zone in which the property is located because the City has imposed the same condition for similar requests in similar circumstances. Special conditions and circumstances would result from actions of the 3. applicant because similar requests have either established the required covered parking or executed the required covenant. The applicant has enjoyed the benefits of a larger home and a larger rear yard for 24 years by not providing the covered required off-street parking and she would evade the requirements of the Conditions of Approval if she sells the property before constructing the garage. That granting the variance requested will confer on the applicant a special 4. privilege that is denied by the Zoning Code to other lands, structures, or buildings in the same vicinity and zone in which the property is located because the Code required the applicant to bring the property into compliance with the City’s development standards when she expanded the house on her nonconforming property. Zone Variance No. 293 required the applicant to provide two-covered off-street parking spaces before the property is sold, leased or rented, which has not occurred. The proposed minor zone variance would allow her to avoid meeting this requirement after enjoying the privileges of a larger home than she was entitled to. The granting of such variances will be in harmony and not adversely affect 5. the General Plan. The General Plan designation for the site is low density residential. The current use as well as the purposed use will remain low density residential and will be consistent with the City’s General Plan. SECTION 3. Based upon the findings set forth in Sections 1 and 2 of this Resolution, the Planning Commission of the City of Downey hereby denies Zone Variance 07-202. SECTION 4. The Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 18th day of June, 2008. Michael Murray, Chairman City Planning Commission I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning Commission of the City of Downey at a regular meeting thereof held on the 18th day of June, 2008 by the following vote, to wit: AYES: COMMISSIONERS: Brossmer, McCaughan, Allen, Lambros, Murray NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None Theresa Still, Secretary City Planning Commission H:\PLANNING\DAVIS\cases\MZV\07-202 9447 Pellet\Resolution ZV 07-202.doc PLANNING COMMISSION MINUTE EXCERPTS, DATED JUNE 18, 2008 ZONE VARIANCE No. 07-202 (HN Map 3406) 3. Location: 9447 Pellet Street Owner/Applicant: Carol Nader Representative: Michael Magnuson, Attorney (Law Offices of Michael Magnuson) Staff: William Davis CEQA: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA), per CEQA Guidelines Section 15301 (Class 15, Existing Facilities). Request: A request to waive the enforcement of a condition of approval of Zone Variance No. 293, that requires the provision of two covered parking spaces prior to the sale, lease, or renting of the property, zoned R1-6,000 (Single Family Residential). Chairman Murray opened the continued public hearing for Zone Variance No. 07-202. Ms. Still affirmed proof of publication. Business Development Manager Davis presented staff’s report and the accompanying PowerPoint exhibits. Michael Magnuson, attorney for Ms. Nader, 13215 Penn Street, Whittier, provided another perspective to Ms. Nader’s situation. He told the Commission that Ms. Nader’s circumstances are unique and he urged the Commission to allow her to postpone or eliminate the requirement of providing the two-car garage. Mr. Magnuson pointed out how the Code Section that would have permitted a carport had changed and he described the number of changes to the property and the associated costs necessary to satisfy the condition. He also stated his client’s financial constraints in contrast to her limited income. Mr. Davis stated staff’s recommendation was for denial. He said the Resolution would be number 2543. There being no questions regarding staff’s recommendation, the public hearing was closed. The Commissioners discussed various scenarios in an attempt to resolve Ms. Nader’s situation. The Commission stated their understanding and empathy for her position, but pointed that the record shows that Ms. Nader had tried to appeal this condition to the City Council back in the 1980’s, to no avail. The City, in its attempt to “help” her at the time of her original improvements, had allowed the room addition to exist without requiring a new two-car garage or carport, on the condition that the two-car garage or carport be built prior to the sale, rent, or lease of the property. This requirement was a part of the record as a “covenant and agreement,” which Ms. Nader signed. The covenant was filed with the Los Angeles County Recorder’s Office. They discussed the fact that Ms. Nader clearly knew what she had agreed to 24 years earlier and has had the benefit of the home during this time. The Commissioners also discussed the fact that approving this request would set a precedent which might affect the City negatively with similar cases in the future. In response to a question posed by the Commission, Mr. Davis explained that it is very common for staff to enforce the requirement for a two-car garage when the home size increases by 50% or more. He also felt that it would be impossible to enumerate the number of persons who have had to comply with this requirement. Motion by Commissioner Brossmer, Second by Commissioner Lambros and passed by a vote of 5-0 to adopt Resolution No. 2543, denying Zone Variance No. 07-202. Chairman Murray stated the action of the Planning Commission will be final unless the matter is appealed to the City Council, with the appropriate fee and within the specified time as set forth in the City’s Ordinance. STAFF REPORT DATE: JUNE 18,2008 TO: PLANNING COMMISSION FROM: GILBERT LIVAS, DEPUTY CITY MANAGER/COMMUNITY DEVELOPMENT WILLIAM E. DAVIS, BUSINESS DEVELOPMENT MANAGER SUBJECT:ZONE VARIANCE 07-202 - A REQUEST TO WAIVE THE ENFORCEMENT OF A CONDITION OF APPROVAL OF ZONE VARIANCE 293, THAT REQUIRES THE PROVISION OF TWO COVERED PARKING SPACES PRIOR TO THE SALE, LEASE, OR RENTING OF THE PROPERTY AT 9447 PELLET STREET, ZONED R-1 6,000 (SINGLE-FAMILY RESIDENTIAL) RECOMMENDATION Staff recommends that the Planning Commission adopt the following titled resolution: A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY DENYING ZONE VARIANCE NO. 07-202 – A REQUEST TO WAIVE THE ENFORCEMENT OF A CONDITION OF APPROVAL OF ZONE VARIANCE 293, THAT REQUIRES THE PROVISION OF TWO COVERED PARKING SPACES PRIOR TO THE SALE, LEASE, OR RENTING OF THE PROPERTY AT 9447 PELLET STREET, ZONED R-1 6,000 (SINGLE-FAMILY RESIDENTIAL BACKGROUND March 5, 2008, the Planning Commission held a public hearing to consider Zone Variance Case No. 07-202, regarding a request by Carol Nader to modify Condition No. 3 of Zone Variance Case No. 293. This condition, which has been in effect since Zone Variance No. 293 was approved in 1985, required Ms. Nader to provide two covered parking spaces within a two-car carport or garage, before her property at 9447 Pellet Street is sold, rented, or leased. Ms. Nader would like to sell her home and sought relief from this condition. After receiving a staff report and public testimonies, the Planning Commission continued the public hearing on Zone Variance Case No. 07-202 to May 21, 2008, with direction for Ms. Nader to provide them with a proposed design (or site plan) of the required new structure, along with an architect’s or contractor’s estimates for said improvements. Ms. Nader experienced difficulty obtaining bids from contractors and requested a 30-day extension for the public hearing, which the Planning Commission granted. However, on June 6, 2008, Ms. Nader submitted this information for the Board to consider. CEQA Note: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA), per CEQA Guidelines Section 15301, Class 15 (Existing Facilities). SITE LOCATION 9447 Pellet BACKGROUND The subject property is on the north side of Pellet Street, between Hasty Avenue and Casanes Avenue. It is zoned R-1 6,000 (Single-Family Residential) and covers 6,442 square feet of land. Currently, a 1,446 square foot house exists on the site with an attached one-car garage. In 1983, the City of Downey issued a building permit which allowed Carol Nader to construct a 600 square foot addition to her home. It was only 800 square feet in size then and only had the one-car garage. Section 9150 of the Downey Municipal Code requires two covered parking spaces for a single-family residence; however, Ms. Nader’s home is a legal nonconforming use because it has one covered parking space only. Section 9154.10 of the Code allows nonconforming use of residentially-zoned property to be expanded provided such expansion of the main dwelling shall not exceed 50% of the existing floor area. Ms. Nader wanted to add 600 square feet of floor area to her home, which is more than 50% of 800 square feet. Therefore, the approved building plans for Ms. Nader’s room addition met the requirements of Section 9154 of the Code, because the plan included a two-car carport. Prior to completing the room addition, Ms. Nader requested a variance to secure relief from the condition that required the two-car carport. She argued that it was unrealistic to modify the garage to provide access to the new carport at the rear of the property. On December 21, 1983, the Planning Commission considered Ms. Nader’s request and approved Zone Variance No. 293, thereby allowing Ms. Nader to maintain the legal nonconforming status of her property, due to inadequate off-street parking, even though her room addition exceeded more than 50% of the existing floor area of the house. The Planning Commission approved Zone Variance No. 293 with the following conditions: PLANNING 1. This approval is for a 600 square foot room addition to an existing single family dwelling which exceeds 50% of the floor area with an attached one car garage as shown on the approved plot plan and elevation dated September 19, 1983. Deviations or exceptions from said plot plan and elevation shall not be permitted without the approval of the City Planning Commission. 2. All conditions of Zone Variance #293 shall be completed before this Zone Variance becomes valid. 3. A covenant shall be executed by the property owner and recorded with the Los Angeles County Recorder with a copy filed in the Planning Division stating that prior to the sale, lease, or renting of the subject property, the required two car carport or garage shall be provided in accordance tot eh standards of the City. ENGINEERING One temporary street light shall be installed on a wood pole along Pellet Street nearest the west property line to the City Engineering standards.” Nine months after the Planning Commission approved Zone Variance No. 293, Ms. Nader submitted another variance application, Zone Variance No. 350 requesting that the Commission remove Condition No. 3 in its entirety. She contended that the condition requiring the covenant for covered off-street parking would be disruptive to the rear yard and would remove existing amenities that she enjoys. Her contractor abandoned the project and many of her neighbors complained about the proposed location of the carport. For these reasons, she requested the variance to secure relief from the construction of the two-car carport. On September 5, 1984, the Planning Commission denied Zone Variance No. 350. Ms. Nader appealed the Planning Commission’s decision to the City Council, which the Council subsequently denied on November 13, 1984. On December 20, 1984, Ms. Nader recorded a covenant with the Los Angeles County Recorder stating that in consideration of the Planning Commission’s approval of Zone Variance No. 293, she promised to provide a two-car garage or carport before selling, leasing or renting the property. Recently, Ms. Nader has attempted to sell her home, but the covenant and the condition have prevented a sale from closing because she never built the two-car garage or the carport as required. In a letter dated September 19, 2007, Ms. Nader’s attorney Michael Magnuson, explained her situation and suggested a solution: for the City to waive enforcement of the covenant, and permit the new owner to acquire the home and arrange to bring the property into compliance after the sale is complete. DISCUSSION Section 9164.26 allows the City Planner to consider and render decisions on slight modifications to the variance provisions of the Code, including the modification of certain parking design standards. However, the Planning Commission must consider the request to waive enforcement of the covenant because the Commission established the condition that required the covenant and because the Commission must approve any deviations or exceptions from the approved plot plan. Condition No. 3 of Zone Variance No. 293 requires Ms. Nader to provide two covered parking spaces before the house is sold, rented, or leased. No other time constraints were imposed to bring this property into compliance. The history of this case suggests that by approving Zone Variance No. 293 more than 24 years ago, the Commission allowed Ms. Nader to enjoy the increased living area that a larger home provides and enjoy a rear yard with more open area. However, in 1984 and in 1985, Ms. Nader petitioned the Planning Commission and the City Council to eliminate this condition. She based her reasons for making these requests over the years upon financial concerns, her opinion that building a carport was impractical, her desire to preserve the rear yard, and her desire to sell the home. Section 9154 (Nonconforming Uses, Lots and Structures) acknowledges that lawful structures and uses exist that were established before the Zoning Code came into effect, but would be prohibited, regulated, or restricted under the current standards. This Section explains further that it is the intent of the Code to permit these nonconformities to continue but not to encourage their survival. In making their decisions on Ms. Nader’s zone variance requests and her appeal, the Planning Commission and the City Council upheld the intent and purpose of the Code. Ms. Nader’s home is nonconforming due to inadequate street parking and the Commission provided a means for her to bring this condition into compliance with the Code ultimately. Mr. Magnuson mentioned that a prospective buyer of the property agreed to accept responsibility for construction of the required garage. He suggested that the City temporarily waive enforcement of the restrictive covenant to permit the new owner to acquire the home and make her own arrangements for bringing the property into compliance with the City’s zoning requirements. In staff’s view, this solution represents another attempt to avoid building the garage. The monetary cost of complying with Condition 3 is significantly more today than it would have been in 1983. Ms. Nader’s original building plans called for a carport at the rear of the property that would be accessible through the garage. In 1983, the Code allowed carports as structures for covered parking; however; the Code no longer permits them (unless a garage provides the required number of off-street parking spaces). Ms. Nader is required to construct a two-car garage at the rear of the lot, because that is the only place to locate it. She would need to demolish the existing one-car garage to provide vehicular access to the new one. Admittedly, this sounds like an expensive task, but it said costs could have been lessened if Ms. Nader complied years ago, or if she built a smaller room addition and avoided the variance altogether. The reality of this situation may scare potential buyers or prove to be unrealistic after someone buys the home. ANALYSIS The Planning Commission continued the March 5, 2008 public hearing on Zone Variance Case No. 07-202 to allow Ms. Nader to provide them with a proposed design (or site plan) of the required two-car garage, along with an architect’s or contractor’s estimates for said improvements. In support of her case, Ms. Nader provided an analysis from an air conditioning contractor regarding the removal of the air conditioning system from her garage, cost estimates from two contractors to demolish the existing garage and build a new garage, an estimate to remove trees and shrubs, an equity loan application, photographs of Ms. Nader’s side yards and rear yard, and photographs of a home nearby that was allowed to expand while maintaining a one-car garage. The contractors’ bids to demolish the garage and construct a new garage were $109,250 and $95,900. Their bids included concrete work, removing trees, relocating the air conditioner and other related tasks. The air conditioning contractor states that a different type of air conditioning and heating system will be required to replace the unit in the garage. The tree service estimates that it will cost $1,450 to remove two (2) trees on each side of the driveway and to remove trees and bushes along the wall of the back yard path. Ms. Nader’s equity loan is for $100,000. After reviewing this information, staff has the following comments: 1. In the opinion of a City of Downey building inspector, the proposed cost estimates to demolish the existing garage, to construct a new two-car garage, and other related tasks (approximately $100,000) are reasonable bids; however, according to the original plan, existing garage was to be converted into a porte-cochere, not demolished. The plan calls for removing the garage door and creating an opening in the rear wall of the garage. The roof and side walls would remain intact thereby allowing vehicles to pass through the remaining structure to reach the new garage behind it. Using the higher bid as a guide, the difference in cost between the bid amount and the original plan could be as much as $39,350, because the following items would not be necessary: Demo Garage $4,500 Build new roof line $20,000 New driveway from front of garage to new garage* $5,000 *Staff estimates that cost of new driveway from rear of existing garage to front of new garage would be much less –about $1,500 Relocate central air unit $7,000 Remove electrical outlets in the garage $2,500 Relocate water heater $850 New gate $3,000 $39,350 2. Douglas Farnik of Dockstaders (Air Conditioning contractor) confirmed that the heating and air conditioning unit would need to come out if the garage is demolished; however, his estimate does not consider costs if the garage remains mostly intact. He also mentioned that the furnace was permitted; however, that permit was never finaled. It expired February 22, 2006. 3. The tree service estimate includes two trees on each side of the driveway. The trees would probably remain if the garage remains; consequently, the estimate would be less. 4. Ms. Nader’s neighborhood consists of several homes with one-car garages, including the property at 10944 Casanes Avenue that she photographed and presented as an example of a home in the vicinity that the City allowed to expand recently, while maintaining its one- car garage. A note attached to the photograph describes this property as an “active listing” meaning that it is currently for sale. Another note states that the original dwelling was only 1,204 square feet in size and points to its current size as 2,134 square feet. The information suggests that the City allowed this homeowner to enlarge the house without requiring them to construct a two-car garage and is allowing them to sell the home in this condition. As noted previously in this staff report, Section 9154.10 of the Code allows nonconforming use of residentially-zoned property to be expanded provided such expansion of the main dwelling shall not exceed 50% of the existing floor area. Ms. Nader wanted to add 600 square feet of floor area to her home, which is more than 50% of 800 square feet. Therefore, the approved building plans for Ms. Nader’s room addition met the requirements of Section 9154 of the Code, by including a two-car carport in the project. Staff reviewed the building permits and approved building plans for the addition to the home at 10944 Casanes. Those plans show that the dwelling was 1,399 square feet in size. According to Section 9154.10 of the Code, an addition could be made to the home without requiring the homeowner to provide a two-car garage, as long as the addition is less than ½ of 1,399 square feet, or less than 699.5 square feet. The approved plan shows that the addition is 689.5 square feet in size. The plan also shows that the addition does not occupy the only space on the property where a two-car garage could be located, by showing where a two-car garage could be built in the future. 5. The photographs of Ms. Nader’s property show that ample room exists for the two-car garage. The photograph also shows that an air conditioning condenser exists on the side of house. The unit is in the path of the proposed new driveway and will probably need to be relocated. Staff is uncertain whether the proposed bids included this unit or considered the unit within the garage only. 6. Ms. Nader does not require a $100,000 equity loan for the project, because projected tasks estimated to cost nearly $40,000 are not necessary. FINDINGS Section 9164.18 of the Downey Municipal Code (Conditions Necessary to Granting Variances) states that before a variance may be granted, the Commission, or the Council on appeal, shall make a finding from the evidence submitted that all five (5) of the following conditions exist in reference to the property being considered: 1. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not generally applicable to other lands, structures or buildings in the same vicinity and zone; 2. That the literal interpretation of the provisions of this chapter would deprive the applicant of rights under the terms of this chapter commonly enjoyed by other properties in the same vicinity and zone in which the property is located; 3. That the special conditions and circumstances do not result from the actions of the applicant; 4. That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings in the same vicinity and zone in which the property is located; and 5. The granting of such variance will be in harmony and not adversely affect the Comprehensive General Plan. After reviewing Section 9164.18 of the Downey Municipal Code with regards to the requested variance application, staff finds as follows: Special conditions and circumstances do not exist which are peculiar to the land, 6. structure, or building involved, which are not generally applicable to other lands in the same vicinity and zone , because the applicant was fully aware of the Downey Municipal Code requirements regarding their room addition in 1983 and the requirements for covered off-street parking. The literal interpretation of the provisions of the Zoning Code would not deprive 7. the applicant of rights under the terms of the Code commonly enjoyed by other properties in the same vicinity and zone in which the property is located because the City has imposed the same condition for similar requests in similar circumstances. Special conditions and circumstances would result from actions of the applicant 8. because similar requests have either established the required covered parking or executed the required covenant. The applicant has enjoyed the benefits of a larger home and a larger rear yard for 24 years by not providing the covered required off-street parking and she would evade the requirements of the Conditions of Approval if she sells the property before constructing the garage. That granting the variance requested will confer on the applicant a special 9. privilege that is denied by the Zoning Code to other lands, structures, or buildings in the same vicinity and zone in which the property is located because the Code required the applicant to bring the property into compliance with the City’s development standards when she expanded the house on her nonconforming property. Zone Variance No. 293 required the applicant to provide two-covered off-street parking spaces before the property is sold, leased or rented, which has not occurred. The proposed zone variance would allow her to avoid meeting this requirement after enjoying the privileges of a larger home than she was entitled to. The granting of such variances will be in harmony and not adversely affect the 10. General Plan. Granting approval of the applicant’s request will not adversely affect the Comprehensive General Plan. The General Plan designation for the site is low density residential. The current use as well as the purposed use will remain low density residential and will be consistent with the City’s General Plan. CONCLUSION Staff finds that the circumstances involving Ms. Nader’s request should not persuade the Commission to waive the enforcement of Condition 3 of Zone Variance 293. Staff recommends that the Planning Commission adopt a resolution denying Zone Variance No. 07-202, because Ms. Nader has resisted constructing the garage since 1984 (as Zone Variance 350 suggests) and is avoiding the requirement again. However, if the Commission decides to grant her request, staff recommends that the Commission consider one of the following options: 1. Temporarily waive enforcement of the restrictive covenant to permit the new owner to acquire the home and make their own arrangements for bringing the property into compliance with the City’s zoning requirements. 2. Modify Condition No. 3 of Zone Variance 293 by designating a specific time for the owner to provide two covered parking spaces. 3. Eliminate the requirement for two covered off-street parking spaces. STREET SUBJECT PROPERTY 9447 PELLET ZONING MAP SUBJECT PROPERTY AERIAL PHOTOGRAPH SITE PHOTOGRAPH H:\PLANNING\DAVIS\cases\MZV\07-202 9447 Pellet\Staff Report.6-18-08.doc