HomeMy WebLinkAbout01/06/1998, 2 - APPEAL OF THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF PROJECT APPLICATION NO. ARC MI 122-97 - A REQUEST TO BUILD A NEW GAZEBO AND ADD SITE LIGHTING TO AN EXISTING AUTOMOBILE SALES LOT LOCATED ON THE EAST SIDE OF HIGUERA STREET, NORTHCOunci L M.av
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C I T Y OF S A N L U I S O B I S P O
FROM: Arnold B. Jonas, Community Development Director 0
Prepared By: Pam Ricci, Associate Planner,
SUBJECT:
Appeal of the Community Development Director's approval of Project Application No. ARC
MI 122 -97 - a request to build a new gazebo and add site lighting to an existing automobile
sales lot located on the east side of Higuera Street, north of Elks Lane (1 Higuera Street).
CAO RECOMMENDATION
Adopt Draft Resolution A, denying the appeal and requiring dedication of right -of -way and
design of frontage improvements with the project, and direct that the costs of improvements
be included in the Draft 1998 -99 Capital Improvement Plan (CIP).
DISCUSSION
Situation/Previous Review
On September 30, 1997, the Community Development Director approved a minor or
incidental architectural review application to build a gazebo and add site lighting to the
subject site. The approval was based on a finding that the proposed improvements enhanced
the current use of the site for automobile sales. Two conditions were added to the approval.
The first regulated illumination levels of proposed lighting, and the second required
dedication of right -of -way and installation of frontage improvements.
On October 6, 1997, the applicant filed an appeal of the Director's decision. The appeal is
based on the applicant's objection to the second condition requiring the dedication of right -
of -way and installation of frontage improvements. The applicant's appeal letter agrees that
the improvements would be a nice addition to the site, but notes that the improvements are
not practical or cost effective at this time. This matter has been scheduled before the City
Council, rather than the Architectural Review Commission (ARC) as appeals of minor or
incidental architectural review applications typically would be. The reason for the departure
from the standard review process in this case is that the ARC has no authority to waive or
grant relief to the requirement for frontage improvements which is the basis of the applicant's
appeal.
On November 18, 1997, at the conclusion of a public hearing, the City Council continued
action to a date specific -- January 6, 1998. The Council requested that staff generate cost
figures for the land dedication and improvements. There was discussion at that time about
the possibility of a cost sharing arrangement between the City and the property owner for the
Council Agenda Rep McCarthy Wholesale Appeal (AR 11122-97)
Page 2
improvements.
The Requirements for Dedication & Installation of Frontage Improvements
The ability to require dedication and the installation of the frontage improvements comes
from City Municipal Code Chapter 4.32. Section 4.32.020 A. states that "before erecting,
enlarging or remodeling any structure on a lot which abuts a street designed for widening,
the property owner must agree to dedicate to the City any portion of that lot lying within the
proposed right -of -way. " There is a need for dedication along this property to be consistent
with the adopted plan line for this portion of Higuera Street.
Section 4.32.020 E. adds that "prior to occupancy or use, the property owner shall install
curb, gutter and sidewalk at the new street frontage for the full width of the lot to meet
current City standards for such construction. " The issue of frontage improvements is not a
new one with the establishment of uses at this property. In 1990, the applicant applied for a
temporary administrative use permit to allow the storage and display of vehicles at the site
and included parking exceptions for a car sales lot and temporary trailer for an office. The
reason for the request for a temporary use permit was primarily because of the objection for
the known requirement of installing frontage improvements with a permanent use. The use
permit was approved in June 18, 1990, then revoked on October 12, 1990, for non-
compliance with use permit conditions. The applicant appealed revocation of the use permit
to the Planning Commission who extended the use permit approval to December 31, 1991
(one year after the original approval expired). In 1995, a construction permit was obtained to
. improve the parking area for vehicle storage on a permanent basis.
Between 1991 and the present time, the City's Neighborhood Services Manager has been
involved with various enforcement issues including prohibited signs and continued use of a
trailer for office purposes without the required building permit. The trailer has been removed .
and no violations against the property currently exist.
As discussed above, pursuant to Municipal Code Chapter 4.32, it is a requirement to dedicate
right -of -way and install frontage improvements with the applicant's current project. The
applicant's appeal argues that the minor nature of this particular project (gazebo and site
lighting) does not warrant this type of costly improvement. Since 1990, the requirement for
these improvements has been a source of debate between the applicant, property owner and
the City with various permit requests made to make changes or improvements to the subject
site.
There are practical reasons for requiring the improvements. Since there are sidewalks on
either side of this property, the installation of improvements here provides an important
linkage for pedestrian circulation in the area. As the attached "Sidewalk Deficiency Map"
shows, there are also sections of South Higuera Street, on both sides of the street to the south
of the site, which lack sidewalk: One section of note that lacks sidewalk in the vicinity of the
site is the relatively long I.O.O.F. Cemetery frontage southerly of Elks Lane. (The
requirement for sidewalks on the cemetery frontage was waived by a prior Council due to
cost and topography considerations, and the potential impact on several mature trees along
—li
Council Agenda Repc McCarthy Wholesale Appeal (ARk .1122-97)
Page 3
the frontage.) In addition to the convenience component of having frontage improvements,
there are also obvious safety benefits.
The Nexus Requirement
Even though the Municipal Code requires the dedication of right -of -way and installation of
frontage improvements with this project, the City's actual ability to require the dedication and
improvements is limited by recent court decisions which have required a "nexus" for such
exactions. In essence, the City has the burden of proof to show that there is a "reasonable
relationship" between the required dedication and improvements and the impact of the
proposed development. Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
Further, the City has the burden of proof to show that there is a "rough proportionality"
between the extent of dedication and improvements required and the impact of the project.
Dolan v. City of Tigard, 114 S.Ct. 2309 (1994).
The property owner raised the nexus issue at the November 18, 1997 appeal hearing. Given
the minor nature of this permit request (to build a new gazebo and add site lighting), it is
unlikely the City could sustain its burden of proof that dedication and improvement of the
entire frontage is justified under a "rough proportionality" test. Further, the City is limited to
consideration of the request before it at this time, and cannot go back and use previously
issued permits as justification for the dedication and improvements.
As a result, and pursuant to Council direction, an agreement has been reached between staff
and the property owner for a proposed sharing of costs regarding the installation of the
improvements. The property owner will dedicate all necessary right -of -way along the
Higuera Street frontage at no cost to the City, and hire a registered civil engineer at his cost
to prepare plans and specifications for a City public works project to install all necessary
frontage improvements including curb, gutter, sidewalk, retaining wall and street paveout.
The cost for construction of these improvements will be borne by the City.
FISCAL IMPACT
When the design is completed and approved by the City, the project will be placed in the
1998 -99 Capital Improvement Plan (CIP) budget and submitted along with all other CIP
proposals for review and approval by the Council. If the Council approves the CIP budget
with this project included, the City could construct the improvements'during the summer of
1998.
ALTERNATIVES
Adopt Draft Resolution B, approving the appeal of the Director's action, and
eliminating the requirement for the dedication of right -of -way and installation of
frontage improvements with this project, based on findings.
2. Continue with direction to the staff, applicant, and/or appellant.
23
Council Agenda Rep, McCarthy Wholesale Appeal (AR 11 122-97)
Page 4
Attached:
1. - Draft Resolutions
2. - Vicinity Map
3. - Appeal to City Council received 10 -6 -97
4. - ARC MI 122 -97 approval letter dated 9 -30 -97
5. - Sidewalk Deficiency Map
Enclosed: Project plans
arc \122 -97mi (council appeal)
Draft Resolution "A"
RESOLUTION NO. (1997 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
DENYING AN APPEAL OF THE COMMUNITY DEVELOPMENT DIRECTOR'S
ACTION, THEREBY DENYING THE REQUEST TO ELIMINATE THE CONDITION
REQUIRING DEDICATION OF RIGHT -OF -WAY AND INSTALLATION OF
FRONTAGE IMPROVEMENTS AT 1 HIGUERA STREET (ARC MI 122 -97)
WHEREAS, the City Council conducted public hearings on November 18, 1997, and
January 6, 1998, and has considered testimony of interested parties including the appellant, the
records of the Community Development Director's action, and the evaluation and
recommendation of staff; and
WHEREAS, the City Council has determined that the project is categorically exempt
under Section 15301. (a) of the CEQA Guidelines.
BE IT RESOLVED, by the City Council of the City of San Luis Obispo as follows:
SECTION 1. Finding . That this Council, after consideration of the proposed project
(ARC MI 122 -97) including the contested condition, the appellant's statement, staff
recommendations and reports thereof, makes the following findings:
1. The requirements for right -of -way dedication and the installation of frontage improvements
are consistent with City Council Resolution No. 4130 (1980 Series) and constitute an
appropriate condition to the proposed project approval.
2. The installed sidewalk along the frontage of this project will provide an important linkage
to area -wide pedestrian circulation.
SECTION 2. Denial. The appeal is hereby denied, and the request to eliminate the
condition of architectural review requiring the dedication of right -of -way and installation of
frontage improvements is denied, with the following condition:
1. The property owner will dedicate all necessary right -of -way along the Higuera Street
frontage at no cost to the City, and hire a registered civil engineer at his cost to prepare plans
Resolution No. (1998 Series)
Page 2
and specifications for a City public works project to install all necessary frontage
improvements including curb, gutter, sidewalk, retaining wall and street paveout. When the
design is completed and approved by the City, the project will be placed in the 1998 -99
Capital Improvement Plan (CIP) budget and submitted along with all other CIP proposals for
review and approval by the Council. The City will install the improvements per approved
plans upon Council approval of the project as part of a future CIP project schedule.
On motion of
AYES:
NOES:
ABSENT:
seconded by
and on the following roll call vote:
the foregoing resolution was passed and adopted this 6' day of January, 1998.
Mayor Allen Settle
ATTEST:
City Clerk Bonnie Gawf
APPROVED:
res\arc mi I22.97 (McCarthy - deny)
'�2 -G
Draft Resolution "B"
RESOLUTION NO. (1997 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
UPHOLDING AN APPEAL OF THE COMMUNITY DEVELOPMENT
DIRECTOR'S ACTION, THEREBY APPROVING THE REQUEST TO ELIMINATE
THE CONDITION REQUIRING DEDICATION OF RIGHT -OF -WAY AND
INSTALLATION OF FRONTAGE IMPROVEMENTS AT 1 HIGUERA STREET
(ARC MI 122 -97)
WHEREAS, the City Council conducted a public hearing on November 18, 1997, and
January 6, 1998, and has considered testimony of interested parties including the appellant, the
records of the Community Development Director's action, and the evaluation and
recommendation of staff; and
WHEREAS, the City Council has determined that the project is categorically exempt
under Section 15301. (a) of the CEQA Guidelines.
BE IT RESOLVED, by the City Council of the City of San Luis Obispo as follows:
SECTION 1. Finding. That this Council, after consideration of the proposed project
(ARC MI 122 -97) including the contested condition, the appellant's statement, staff
recommendations and reports thereof, makes the following finding:
1. The minor nature of the proposed request, consisting of a gazebo and site lighting, does not
warrant requirements for right -of -way dedication and the installation of frontage
improvements as typically required by City Council Resolution No. 4130 (1980 Series).
SECTION 2. Approval. The request to eliminate the condition requiring the
dedication of right -of -way and installation of frontage improvements is hereby approved.
On motion of
seconded by
, and on the following roll call vote:
a�'7
City Council Resolution No. (1998 Series)
Page 2
AYES:
NOES:
ABSENT:
the foregoing resolution was passed and adopted this 6' day of January, 1998.
Mayor Allen Settle
ATTEST:
City Clerk Bonnie Gawf
APPROVED:
reslarc mi 122 -97 (McCarthy - uphold)
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VICINITY MAP 1 HIGUERA NORTH
.. ARCMI 122 -97
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- ales - Mike McCarthy
October 1, 1997
Arnold B. Jonas
Community Development Director
990 Palm Street
San Luis Obispo, CA 93401
Subject: ARC MI 122 -97; 1 Higuera (new gazebo & site lighting)
RECEIVED
OCT 06 1997
C11Y Of SAN LUIS
COMMUNITY DEVELOPMENT
Please accept this letter as notification of request for appeal concerning conditions of approval at the
subject site.
Specifically, I would like to appeal the condition of frontage improvements along Higuera Street. While
these improvements would be welcome It's just not practical or cost effective to make these changes at
this time.
Please be advised that I will begin construction of a portable gazebo that will be licensed with the DMV
and will be temporarily parked at the subject site. This is being done at the suggestion of the planner and
hopefully will only be on wheels until we can resolve the street improvement issue.
If this doesn't meet with your approval please notify me in writing as soon a possible before I have even
more expenses that can't be used at this site.
Sincerely,
41 CZ 4�
Mike McCarthy /
MM/bb
cc: Mike Spangler
43 South Higuera Street 0 San Luis Obispo, CA 93401 0 (805) 541 -6178 0 FAX (805) 541 -3364
U
CItY ® 511 d �S oBispo
990 Palm Street, San Luis Obispo, CA 934011 -3249
30 Ccorrcc}Md -Dr +he-- da�n tea+ 4ha .r wc-
September, 1997
aclu a4ly
Mike McCarthy
1 Higuera Street
San Luis Obispo, CA 93401
SUBJECT: ARC MI 122 -97; 1 Higuera Street (new gazebo & site lighting)
Dear Mr. McCarthy:
I have reviewed your plans to add a new gazebo and pole lights at the subject site. I approved the
project, and determined that it is minor or incidental, finding that the proposal will enhance the
use of the site for retail auto sales, subject to the following conditions:
1. Maximum illumination levels at the ground below the lighting fixtures located along the
Higuera Street frontage shall not exceed 250 luxes (25 foot - candles).
2. The applicant shall dedicate right -of -way and install frontage improvements along Higuera
Street to the satisfaction of the Public Works Director.
My action is final unless appealed within 10 calendar days of the date of this letter. Anyone may
appeal the action by submitting a letter to the Community Development Department within the
time specified. Appeals will be scheduled for the first available Architectural Review
Commission meeting date. If an appeal is filed, you will be notified by mail of the date and time
of the hearing.
While the City's water allocation regulations are in effect, the Community Development
Director's approval expires after three years if construction has not started. On request prior to
the expiration of the original approval, the Community Development Director may grant a single
one -year extension.
If you have any questions, please call Pam Ricci at 781 -7168.
Arnold B. Jonas,
Community Dev
cc: Chief Building Official, Architectural Review Commission Chairman, Mike Spangler
arc \122 -97 mi (1 higuera)
OThe City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. _// �� Telecommunications Device for the Deaf (805) 781.7410.
4.31.040- 4.32.020
4.31.040 Rates for downtown parking
structures.
A. Effective June 1, 1992, all city parking
structures in the downtown shall offer the
first ninety minutes free parking.
B. The new hourly rate for said parking
structures shall be fifty cents per hour with a
maximum of three dollars per day. (Reso. 8003
§§ 1, 2, 1992: Reso. 6963 §§ A, B, 1991)
Chapter 4.32
PURCHASE, DEDICATION AND
IMPROVEMENT OF STREET
RIGHT -OF -WAY
Sections:
4.32.010 Requirements where the city
budgets funds for
construction of a street
widening and purchase of
property lying within the
proposed right -of -way.
4.32.020 Requirements where a
property owner applies to
improve property or applies
for a use permit.
4.32.030 Requirements where a
property owner voluntarily
dedicates property lying
within the proposed
right -of -way and does not
contemplate development
within two years of the date
of dedication.
4.32.010 Requirements where the city
budgets funds for
construction of a street
widening and purchase of
property lying within the
proposed right -of -way.
A. The city must pay to the owner fair
market value for the portion of the lot and
(San Luis Obispo 7 -92)
improvements lying within the proposed
right -of -way.
B. If purchase of property creates noncon-
forming conditions, the city shall advise the
current property owner of this nonconformity
by certified mail no later than the commence-
ment of negotiations to purchase the prop-
erty.
C. If no sound curb, gutter and sidewalk
lie at the existing street frontage, the prop-
erty owner shall install these improvements
at the new street frontage for the full width
of the lot to meet current city standards for
such construction. If the property owner does
not wish to install required improvements,
the estimated cost of these improvements
must be deducted from the final negotiated
price of the property. The city will then as-
sume responsibility for installing these im-
provements at its convenience. The city en-
gineer shall determine the estimated cost of
improvements plus the soundness and extent
of existing improvements.
D. If sound curb, gutter and sidewalk lie
at the existing street frontage, the city shall
replace these improvements at the new street
frontage.
E. The city shall pave out the street to meet
the installed curb and gutter. The city engi-
neer shall specify the paving material. (Reso.
4130 § 1, 1980)
4.32.020 Requirements where a
property owner applies to
improve property or applies
for a use permit.
A- Before erecting, enlarging or remodeling
any structure on a lot which abuts a street
designated for widening, the property owner
must agree to dedicate to the city any portion
of that lot lying within the proposed right -of-
way.
B. Before commencing a use which requires
a use permit and which requires seven or more
84 -22
2 �/ Zi
parking spaces on a lot which abuts a street
designated for widening, the property owner
must agree to dedicate to the city any portion
of that lot which lies within the proposed
right -of -way.
C. The property owner shall dedicate the
required property by delivering to the city
recordable documents to convey clear title to
the city. The city shall prepare the documents
required for dedication.
D. The city shall not issue a building
permit or use permit for property requiring
dedication until the property owner has
agreed in writing to dedicate the required
property to the city.
1. The city engineer shall prepare any ded-
ication agreement.
2. The city attorney shall approve the form
of any dedication agreement.
-K E. Prior to occupancy or use, the property
owner shall install curb, gutter and sidewalk
at the new street frontage for the full width
of the lot to meet current city standards for
such construction.
F. Prior to occupancy or use, the property
owner shall pave out the street to meet the
installed curb, gutter and sidewalk. The city
engineer shall specify the paving material.
1. On streets not constructed to full city
standards, the property owner shall pave one -
half the street plus a twelve -foot lane. Prop-
erty owners developing one single - family
home need not pave the additional twelve -
foot lane.
G. Prior to occupancy or use, the property
owner shall plant street trees to meet current
city standards.
H. If the property owner does not wish to
install required improvements, prior to occu-
pancy or use, he must pay to the city the es-
timated cost of these improvements. The city
shall then assume responsibility for installa-
tion of these improvements at its convenience.
1. The city engineer shall determine the
estimated cost of improvements.
4.32.020- 4.32.020
2. Upon installation of improvements, the
city shall deduct actual costs from the prop-
erty owners payment and refund any re-
mainder.
3. Under special circumstances, the prop-
erty owner may post a cash bond in lieu of
payment.
I. If funds are available, the city may con-
tribute up to five thousand dollars for a street
pave out to property which meets all these
conditions:
1. Is zoned for residential use;
2. Contains no more than one dwelling
unit;
3. Cannot be further subdivided under ex-
isting zoning;
4. Has curb, gutter and sidewalk installed
by the property owner;
5. Has no existing requirement for paving
and improvement.
a. The city reserves the right to review and
reject any private contract proposal for pave
out for which the city will pay in whole or in
part.
b. The city reserves the right to perform
with city forces any pave out for which the
city will pay in whole or in part.
c. The city shall not contribute funds or
labor for a pave out until the property owner
agrees in writing to reimburse the city for its
contribution in the event the property owner
or subsequent purchaser further develops to
higher use or subdivides the property within
two years following installation of all street
improvements.
i. The city engineer shall prepare any pave
out reimbursement agreement.
ii. The city attorney shall approve the from
of any pave out reimbursement agreement.
iii. The city council shall approve any pave
out reimbursement agreement.
iv. Upon completion of a city - financed pave
out, the city engineer shall note on the orig-
inal pave out reimbursement agreement the
84 -23
(San Luis Obispo 7.92)
2-43
4.32.030- 4.36.010
full value for the city's contribution of funds
or labor.
J. The city shall not require dedication of
the portion of a lot currently occupied by a
building which existed on January 1, 1965,
or on the adoption date of official setback line
maps.
K If anticipated construction will not lie
within proposed right -of -way, the following
construction will not require dedication:
1. Additions and accessory buildings inci-
dental to a building legally existing on the
lot. Total cumulative floor area of such addi-
tions and accessory buildings shall not ex-
ceed two hundred square feet.
2. Additions, alterations and repairs within
any twenty -four month period when the total
value of this construction does not exceed fifty
percent of the value of the existing building
or structure at the beginning of this twenty -
four month period. The city chief building in-
spector shall determine the applicability of
this provision. If the city purchases right -
of -way after initial construction and the prop-
erty owner subsequently makes improve-
ments within the original twenty -four month
term which would have necessitated dedica-
tion, the property owner must reimburse to
the city the purchase price of the property.
(Reso. 4130 § 2, 1980)
4.32.030 Requirements where a
property owner voluntarily
dedicates property lying
within the proposed
right -of -way and does not
contemplate development
within two years of the date of
dedication.
A. The property owner shall install curb,
gutter and sidewalk at the new street frontage
for the full width of the lot.
(San Luis Obispo 7 -92)
B. The city shall pave out the street to meet
the installed curb and gutter. The city engi-
neer shall specify the paving material.
C. If the property owner develops his prop-
erty or obtains a use permit within two years
of the date of dedication, and either of these
actions would have subjected him to the pro-
visions of section 4.32.020 of this chapter, he
must reimburse to the city the cost of any
curb, gutter, sidewalk and pave out improve-
ments installed after the date of dedication.
(Reso. 4130 § 3, 1980)_ .
Chapter 4.36
PLANNING SERVICES FEE
SCHEDULE
'Section 7 of Reso. 7030 repealed Reso. 5908, from which ch.
4.36 was formerly derived. The editor has included § 1, ex-
hibit B of Reso. 7030 as a new ch. 4.36, § 4.36.010.
Sections:
4.36.010 Established.
4.36.010 Established.
84 -24
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