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Home My WebLink AboutAV 13-07; Tong Property; Administrative Variance (AV)J [ ' (~CARLSBAD Community & Economic Development www.carlsbadca.gov November 14, 2013 Robert Ladwig Ladwig Design Group, Inc. 2234 Faraday Avenue Carlsbad, CA 92008 SUBJECT: AV 13-07 -TONG PROPERTY The City Planner has completed a review of your application for an Administrative Variance, AV 13-07- TONG PROPERTY, to allow an increase in the allowable fence height from 42 inches to 6 feet within the front yard setback on property located at 2339 Pio Pico Drive. After careful consideration of the circumstances surrounding this request, the City Planner has determined that the four findings required for granting an Administrative Variance cannot be made and therefore, DENIES this request based on the following findings and conditions. Findings: 1. That although there are special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance would not deprive the property owner of privileges enjoyed by other property owners in the vicinity and under identical zoning classification in that the subject property (Tong). was developed as a panhandle lot with access from Pio Pico Drive via an access easement which runs parallel to the south property line. Carlsbad Municipal Code (CMC) Section 21.10.100.C states that in approving a panhandle lot, a determination shall be made as to which property lines of the buildable lot are the front, sides and rear for purposes of providing required yards. In this instance, the south property line of the Tong property was designated as the front property line as shown on the Adjustment Plat (ADJ 538). The building site plan also reflects the req'uired 20 foot front setback from the south property line to the residence. The adjacent neighbor to the south (Battista) has a similar panhandle lot situation with access from the same easement. Currently, 5-6 foot high fences are located on the east and south sides of the Battista property and a 6' high fence could also be constructed along the west side property line. Given the pattern of development on and around the property, a determination has been made that north property line of the Battista property (parallel to the front setback of the Tong property) constitutes the front of the lot. This determination is further substantiated by evidence that was presented at the administrative hearing, held on November 30, 2013, documenting that a 42-inch high picket fence had been located along the north property line of the Battista property. The previous 42-inch high fence would have been consistent with the height limitations for fences within a front yard setback. / AV 13-07-TONG PROPERTY November 14, 2013 Page 2 Therefore, because these two properties have a similar situation with regard to access and the location of the front setback, and in that the Battista property does not have a 6 foot high fence within the front setback, denying the variance request would not deprive the Tong property of a privilege enjoyed by another property in the same zone and vicinity with a similar circumstance. 2. That the variance would constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which the subject property is located in that the Tong and Battista properties have a similar situation with a front yard setback facing each other and allowing a 6 foot tall fence along the common property line would be a special privilege for the Tong property that would result in a negative impact to the Battista property by creating the potential for the Battista property to be surrounded by 5-6 foot tall fences on all sides of the property. Granting the variance request would constitute a grant of special privilege and would deny the Battista property the ability to enjoy a front yard area that is similar to other properties in the same zone and vicinity. 3. That the variance would authorize a use or activity which is not otherwise expressly authorized by the zone regulation governing the subject property in that the Coastal Resource Protection Overlay Zone (CMC Chapter 21.203) restricts development within areas of steep slopes and/or areas that are susceptible to accelerated erosion. The proposed fence would be located along the south property line which borders the open space easement area on the Tong property. A fence, regardless of height, is not permitted within the open space easement area due to the geologic instability of the slope. 4. That the variance is not consistent with the general purpose and intent of the general plan in that the proposed 6 foot high fence would be located along the southern boundary of an open space easement area that has a General Plan Land Use designation of Open Space '(OS) due to the existing steep, unstable slopes. Any encroachment or development, including fencing, is prohibited within the open space area. Granting the variance request would be inconsistent with the Open Space land use designation and the restrictions of the open space easement. 5. In addition, in the coastal zone, that the variance would not be consistent with and would not implement the requirements of the certified local coastal program in that the variance would adversely affect the protection of coastal resources as specified in the zones included in this title in that the Coastal Resource Protection Overlay Zone (CMC Chapter 21.203) restricts development within areas of steep slopes and areas that are susceptible to accelerated erosion and the Coastal Development Permit (COP 99-18) issued for the construction of the residence on the Tong property included a condition to deed restrict the open space easement area to prohibit any encroachment or development, including but not limited to fences, walls, decks, storage buildings, pools, spas, stairways and landscaping. This condition was included to eliminate the potential for geologic instability due to development activities and granting the variance request or allowing fencing of any type within this area would be inconsistent with the Coastal Resource Protection Overlay Zone and the restrictions of the open space easement. ,,, / AV 13-07-TONG PROPERTY November 14, 2013 Page 3 Conditions: 1. No fencing of any kind shall be installed within the open space easement or along the north, south or west property lines surrounding the open space easement area unless required by the Fire Marshall and subsequently authorized by the City Planner. If fencing is required, a geotechnical report shall be submitted to the City Planner which demonstrates that the proposed fencing installation would be stable and would not pose a threat to the general health, safety and welfare of the public. 2. Any fencing along the south property line which is in or adjacent to the open space easement area shall be removed. 3. The existing fencing along the south property line (east of the open space easement) shall not exceed 42 inches in height within the 20 foot front setback area. Any fencing that exceeds 42 inches in height shall either be lowered or removed within 30 days of the date of this letter. This decision may be appealed by you or any member of the public to the Planning Commission within ten days of receipt of this letter. Appeals must be submitted in writing to the Planning Division located at 1635 Faraday Avenue in Carlsbad, along with a payment of $651.00. The filing of such appeal within such time limit shall stay the effective date of the order of the City Planner until such time as a final decision on the appeal is reached, If you have any questions regarding this matter, please feel free to contact Barbara Kennedy at {760) 602-4626. Sincerely, ~~ DON NEU, AICP City Planner DN:BK:bd c: Christopher Tong, 2339 Pio Pico Drive, Carlsbad, CA 92008 Lynda Battista, 2347 Pio Pico Drive, Carlsbad, CA 92008 Dave de Cordova, Principal Planner Glen Van Peski, Project Engineer Data Entry/DMS File Copy