HomeMy WebLinkAboutAV 88-07; Steven Weiss Fence; Administrative Variance (AV) (3)JEROME R. SMITH
ATTORNEY AT LAW
LA COSTA PLAZA
7690 EL CAMINO REAL, SUITE 206
CARLSBAD, CALIFORNIA 92008
HAND DELIVERED (619) 942-8900
TELECOPIER: 1619) 436-5413
November 8, 1988
Mr. Gary E. Wayne
Planning Department
City of Carlsbad
2075 Las Palmas Drive
Carlsbad, CA 92009
RE: Mr. and Mrs. Steven Weiss Fence at 3554 Sitio Baya/Administrative Variance
NO. 88-7
Dear Mr, Wayne:
This letter is written as a follow-up to the meeting on Monday, November 7, 1988, with yourself, Mr. Bob Wojcik and myself concerning the above-referenced administrative variance
request. As you are aware, this law office represents Mr. and
Mrs. Steven Weiss, the applicants for the above-referenced
administrative variance,
In essence, this letter will confirm the points which I raised during that meeting and which I believe require and
justify the Planning Commission to reconsider the denial of my clients' request for an administrative variance.
As I understand it, on June 17 , 1988 , the City notified my clients that they had a fence on their property which was in excess of six feet in height and thus was in violation of Section
21.46-130 of the Carlsbad Municipal Code. This letter was prompted by a complaint from my clients' neighbor, Mr. and Mrs.
Mark Sternfels, who live at 3556 Sitio Baya. Thereafter, my
clients requested an administrative variance for the portion of
the fence in excess of seven feet (only one portion is seven feet
high) and after review of this request, the Planning Director denied said request, Thereafter, we have appealed this denial to the Planning Commission, a hearing on which is now scheduled on November 16, 1988. We believe the following reasons support reversal of the denial of the variance.
1. It is my clients' contention that the City approved the size, location and height of this fence when it approved the
Mr. Gary E. Wayne
November 8, 1988
Paae Two
plastering for the pool (the "pre-plasteringVg approval) on April
14, 1988 and it "signed off" on the final inspection of the pool
on June 14, 1988. At our meeting, I provided you with a copy of the inspection record, and another copy thereof is attached to this letter. It is my understanding that the two approvals in April and June could not have occurred unless there had been a fence with the proper height and location. At the time of each
of these approvals, the fence had been constructed at its present
height. According, my clients' position is that the City has
already approved the height of the fence, including any portion
thereof which exceeds the six foot maximum limit. Assuming
arguendo that the City did not intend to approve the portion of
the fence in excess of seven feet in height, my clients
reasonably believed that the City would so approve the entire
fence by virtue of the two inspection approvals.
2. It is my further understanding that my clients were
provided with a document from the City of Carlsbad with respect to the requirements for pool construction. This document is entitled ''Swimming pool and spa plan check", and a copy is
attached hereto. This document states, in Paragraph lB, that the
fence must be at least 60 inches high. There is no mention of a
maximum height to the fence. The fact that my clients were
provided with this information, combined with the approvals
mentioned in Paragraph 1, lend further support to the argument
that the City has approved the fence, including the portion which
is in excess in six feet in height, or, at least, that my clients
had a reasonable belief that such approvals had been obtained
from the City.
3. The third set of reasons which constitute special
circumstances justifying the seven foot portion of the fence
concerns the particular placing of this fence on my clients'
property, and as it relates to the immediately adjacent property located at 3556 Sitio Baya, which is owned by Mr. and Mrs. Sternfels. The fence is constructed on the property line. On my
clients' side of the property, because of the grade, the fence is
five and one-half feet off the ground. From the Sternfels' side
of the fence, the fence is seven feet from the ground. This is because the ground on the Sternfels' property is lower than on my clients' property. If the fence is ordered lowered by one foot (down to six feet), then the fence will only be four and one-half feet in height from the ground to the top of the fence on my clients' property. This would mean the fence would violate the minimum five foot height requirement on my clients' side of the
property. If, on the other hand, the analysis is only made from
the perspective of the Sternfels' property, then the following
"
Mr. Gary E. Wayne
November 8, 1988
Paae Three
additional problem would occur if the present fence were lowered by one foot. The Sternfels have now built their own pool on their own property. They did not build a fence: they are utilizing the Weiss' fence. If the Weiss' fence is lowered by one foot, it means that the fence would be six foot high on the Sternfels' side of the property but only four and one-half foot
high on my clients' side of the property. Since the proper perspective for considering the Sternfels' pool is the height from the other neighbor's side of the fence, then my clients do
not have a fence which is at least five foot high in relation to
their neighbor's pool. This causes a potential safety problem to
my clients and their children. The fact that my clients' grade is higher than the Sternfels is irrelevant since the Sternfels' pool was added after the Weiss' fence and my clients' deck was constructed.
4. In essence, the original fence was constructed pursuant to an agreement between my client and the Sternfels on the joint
property line. Mr. Sternfels agreed to the size, height and
location of the fence. While there was no written agreement, the evidence thereof is based on the fact that the fence could not
have been built without my clients having access to the
Sternfels' property. Thereafter, for some reason, the two neighbors have had a dispute and Mr. Sternfels commenced this proceeding by filing a complaint with the City of Carlsbad respecting the height of the fence. From my clients' perspective, this is a breach of an agreement between the Sternfels and my clients. If it is not resolved amicably, there
will be litigation filed against the Sternfels by my clients.
That litigation will allege that my clients and the Sternfels
agreed to the construction of this fence at the height so
indicated, and that the Sternfels have now breached this
agreement by filing the complaint with the City of Carlsbad. As
part of that litigation, if necessary, we will be forced to seek
injunctive relief against any order of the City of Carlsbad requiring removal or lowering of the fence. Our theory would be that your review process was initiated by an invalid complaint: that is, a complaint which should not have been filed and which complaint constitutes a breach of the agreement between my clients and the Sternfels.
Rather than embroiling the City in such litigation, an alternative might be for the City to defer any enforcement of any order concerning the height of the fence until all matters are resolved in Court between my clients and the Sternfels.
5. Finally, it would appear that The Planning Commission has the authority to allow the Weiss' fence in excess of six feet
Mr. Gary E. Wayne November 8, 1988
Pase Four
based on a separate standard set forth in the Carlsbad Municipal
Code and without reference to whether or not the proper grounds
exist for the granting of an administrative variance. Section
21.46.130 states that The Planning Commission shall allow any fence which exceeds six feet "for special uses or under special circumstances1'. In this regard, my clients believe that the facts set forth above constitute such special circumstances. Therefore, even if The Planning Commission were to find that the
requirements necessary for the granting of an administrative
variance had not been met, we would contend that The Planning
Commission has the authority to find "special circumstances"
(arguably a lower standard than the glexceptional circumstances"
standard for administrative variances) and allow the fence in
excess of six feet, without reversing the Planning Director's
denial of the administrative variance.
For all of the above reasons, my clients believe that they
possess appropriate grounds for approval of the portion of the
fence in excess of six feet in height. Thus, the Weiss' fence should be allowed, either by granting the administrative variance, or by finding "special circumstances" under Section 21.46.130.
Thank you for your consideration.
Very truly yours,
JRS/ldd Enclosures cc: Mr. Steven Weiss - without enclosures