The meeting was held at the hour of 6:00 p.m. in the Alameda County Building, 224 West Winton Avenue, Room 160, Hayward, CA

Transcription

1 MINUTES OF MEETING WEST COUNTY BOARD OF ZONING ADJUSTMENTS DECEMBER 10, 2003 (APPROVED JANUARY 14, 2004) The meeting was held at the hour of 6:00 p.m. in the Alameda County Building, 224 West Winton Avenue, Room 160, Hayward, CA REGULAR MEETING: 6:00 p.m. MEMBERS PRESENT: Members Frank Peixoto, Chair; Dennis Botelho Ron Palmeri; Jewell Spalding. OTHERS PRESENT: Eric Chambliss, County Counsel; Phil Sawrey-Kubicek, Senior Planner; Nilma Singh, Recording Secretary There were approximately 45 people in the audience. CALL TO ORDER: The meeting was called to order by the Chair at 6:05 p.m. ANNOUNCEMENTS BY THE CHAIR: None CONSENT CALENDAR: There were no items on the Consent Calendar. REGULAR CALENDAR: 1. TRIUMPH MINISTRIES, CONDITIONAL USE PERMIT, C-7682 Application to allow a church (Triumph Ministries) in a PD-ZU-1317 (Planned Development, 1317 th Zoning Unit) District, located at East 14 th Street, northeast side, approximately 150 feet east of 159 th Avenue, unincorporated San Leandro area of Alameda County, bearing Assessor s Parcel Number: Mr. Sawrey-Kubicek read the project description. Member Palmeri asked if this was a permitted use under the Ashland/Cherryland Specific Plan. Mr. Sawrey-Kubicek said that although it was not a permitted use, it does not deny it either. Member Botelho asked for the property owner and if Redevelopment had any specific plans in this area. Mr. Sawrey-Kubicek said he could not tell who the owner was from the application and there was nothing specific planned for this area. Public testimony was called for. William Yancy, representative, read his written testimony in support of his application. He apologized for not applying for a permit earlier adding that he was unaware that one was required. The church was previously located on 160 th Avenue and they have been at this address for five years. Mr. Yancy explained in detail the programs offered by the church indicating that spiritual guidance was the main service. He also discussed the three findings and noted the petition submitted with 175 signatures. All businesses/merchants and community support the church. In response to Member Botelho, he said the church leases the facility and the property manager, Frances Lim, was also available. Member Spalding asked if the church was the only occupant of the building. Mr. Yancy replied yes. Sister Nancy spoke in support. She described her work with the church which included classes on behavior modification. People were referred by the Probation, Sheriffs and Parole departments.

2 DECEMBER 10, 2003 WEST COUNTY BOARD OF ZONING ADJUSTMENTS PAGE 2 APPROVED MINUTES Frances Lim, Property Manager, pointed out that the Ashland/Cherryland Specific Plan does not prohibit a church use. Page 9 of the Plan states public service and this was a public service. She also asked why there was a TA zone. The church needs to be near a transit area to easy access availability as kids also come to the after-school programs. The church was a gain to the community and offered vital program that needed an approval. Rebekah Hopkins and Vernetta Nash, Second Street, both ex-residents of the Ashland District, spoke in support. Both Ms. Hopkins and Ms. Nash said they have been a member of this church since its relocation to this area. This church was a light in the community, caring and sympathetic, it was really involved in helping the community and the church even provides transportation for seniors. Jamie Howard, th Avenue, #7, said she was also a member. In support, she added that the church has affected her life strongly and has enriched many other lives; treats all members like family; provides many services and gives back to the community in many ways. Ms. Howard urged an approval as she saw no reason for a denial. Theresa Killian said she was one of the newest members of the church. She uses public transportation which was very convenient and pointed out that the church was at a very good location. Richard Hancocks, in opposition, agreed that the church has an outstanding record but opposed its location. The church should continue but not at this address. He supported Redevelopment s comments. Member Spalding asked if he support Redevelopments comments approval of this application.at this time. Mr. Hancocks replied that the Specific Plan prohibits designated uses. Member Spalding noted that churches always have to apply for a Conditional Use Permit, which could fall in any category, either a residential or commercial use. She also asked why an approval would be inconsistent with the final plan of Redevelopment and how it would be restrictive. Mr. Hancocks replied that it would not be restrictive by Redevelopment and further discussed the TA district designation. It was not based on the Zoning Ordinance but on the actual business on the parcel. The main concern was the parcel sizes in this area. Member Botelho asked if he considered medical buildings as an in-use in this area. Mr. Hancocks said yes. Public testimony was closed. Member Palmeri said he had worked four years on the Specific Plan. This was a poor, low-income area, which was trying to entice new businesses. There was a very specific intent for this area and a church did not fit the stream work for this plan. Services that were provided by the outreach did fall under the definition of this specific plan but not the church itself. He was also not sure if a Conditional Use Permit was necessary. Member Spalding agreed that she not was sure either adding that the church had a lot of other activities that should have been included as part of this application. Schools and churches were not identified in any specific plan. All communities had churches and schools. Member Spalding pointed out that Public Works Land Development s recommendations were not included in the recommended conditions of approval. Mr. Sawrey-Kubicek said that it could be added as Condition 4(c). Member Botelho said he was disappointed that the church had not applied for a permit earlier and suggested not listing individual departments in Condition 4 but stating all County agencies. He made the motion to adopt the findings and approve the permit subject to the six recommended conditions with the above modification to Condition 4. Member Spalding felt that Member Botelho s suggestion would be too broad and seconded the motion with Condition 4 to include Public Works, Land Development. Motion carried 3/1. Member Palmeri abstained. 2. CINGULAR/PUBLIC STORAGE, CONDITIONAL USE PERMIT, C-8213 Application to allow placing three new panel antennae on top of an existing cell site flag monopole, in a PD (Planned Development) District, located at

3 WEST COUNTY BOARD OF ZONING ADJUSTMENTS DECEMBER 10, 2003 APPROVED MINUTES PAGE Hesperian Boulevard, west side, approximately 191 feet north of Paseo Grande, unincorporated San Lorenzo area of Alameda County, bearing Assessor s Parcel Number: Mr. Sawrey-Kubicek read the project description and noted receipt of a late response from San Lorenzo Village Home Association. Member Palmeri said he was confused since the policy prohibits clustering of such facilities and staff was recommending an approval. It was also difficult to see what the structure would look like from what was included in their package. Public testimony was called for. Misako Hill, Cingular representative, introduced Mr. Daughtery, corepresentative. She concurred with all the recommended conditions. In response to Member Palmeri who pointed out that another telecommunications applicant had submitted a computer drawn photograph, Ms. Hill replied that she had submitted a photo assimilation with the original application. Member Spalding discussed Conditions 12 and 14 and asked if one pole with three antennae was being proposed. Ms. Hill replied yes. Public testimony was closed. The Chair pointed out that the BZA had approved an AT&T facility located at the back of the property. He recommended a continuance to allow time for the Association to look at the photo assimilation. This was also a Redevelopment area. Member Palmeri added that the Association has a strong input for this area s aesthetics and he was surprised that a photograph had not been forwarded with the referral to the Association. Member Botelho agreed with a continuance but asked for the possibility of combining this with the facility in the rear. Public testimony was re-opened. Mr. Daughtery explained that the approved AT&T facility has not been constructed yet and there was no other facility in the vicinity. In response to Member Botelho, he stated that Planning staff had recommended a facility away from the residences and more towards the commercial area. The pole has been scaled back from 36 to 20 inches and all equipment would be located inside. A tree design could also be explored. Public testimony was closed. Member Palmeri made the motion to continue the application to February 11, 2004 during which time the Association could look at photographs and Applicant/staff to explore the tree design. Member Spalding seconded the motion, which carried 4/0. 3. JOHN WENTWORTH, CONDITIONAL USE PERMIT, C-8223 Application to allow continued operation of a residential care facility for developmentally disabled adults, in a R-S-SU (Suburban Residence, Secondary Unit) District, located at 177 Hampton Road, south side, approximately 175 feet east of Harvard Avenue, unincorporated Hayward area of Alameda County, bearing Assessor s Parcel Number: Staff read the project description. Public testimony was called for. John Wentworth, Applicant, said he was available to answer any questions. Member Palmeri asked if the sidewalk/gutter had been installed as required in the previous conditions of approval. Mr. Wentworth said no adding that at the last discussion, County wanted the have the entire block installed. He was in favor of these improvements but also agreed that the entire area, from Mission Boulevard to Meekland Avenue, needed sidewalks; and that all property owners be required to the same. It would make no sense to have the sidewalk only in front of his property. Member Spalding pointed out that he had a more intensive use than the others. Member Botelho asked if he was aware that his permit had expired in Mr. Wentworth thought he had always applied for a permit.

4 DECEMBER 10, 2003 WEST COUNTY BOARD OF ZONING ADJUSTMENTS PAGE 4 APPROVED MINUTES Public testimony was closed. Member Palmeri said he was familiar with the area. There has been an issue about lack of access to schools due to no sidewalks, busy street where pedestrians were forced to walk on the street. The Applicant was required to install sidewalks but has not to-date and he pointed out that Mr. Wentworth has a profit business. Since there has been a lapse since the last approved permit, this would not be considered as a continued operation but a new operation. If the Board was considering an approval, he wanted to sidewalks installed before an approval was granted. Member Palmeri asked County Counsel if this would be considered a new application. Mr. Chambliss replied that this facility has been in existence for eleven years, since 1982 and it would be legal to consider in its current status. Member Spalding discussed the last bullet on Page 3 and asked who had deferred the installation of the improvements. She felt that additional information was needed. She made the motion to continue the application to January 29, Motion died due to lack of a second. Member Botelho said he did not see a reason for a continuance and, as such, made a motion to conditionally approve the application subject to the ten recommended conditions and an additional condition to reflect that curb/gutter and sidewalk be installed in 90 days or the permit would be revoked. Member Palmeri agreed that these were needed for residents and safety and seconded the motion. Motion carried 3/1 with Member Spalding voting no. 4. YONG AKAOSUGI, CONDITIONAL USE PERMIT, C-8229 Application to allow operation of a 20 client residential care facility with the retention of a six foot high fence, in a R-S-D-25 (Suburban Residence, 2,500 Minimum Building Site Area/dwelling unit) District, located at Maubert Avenue, northeast side, approximately 256 feet southeast of 159 th Avenue, unincorporated San Leandro area of Alameda County, bearing Assessor s Parcel Number: Mr. Sawrey-Kubicek read the project description. The Chair noted a typo in Condition 8 which should read shall not exceed 20. Public testimony was called for. Ms. Akaosugi confirmed that she has applied for a license for twenty. She had a prior license for the Alameda facility and was in the process of transferring the license. Member Botelho then asked if she was currently operating without a license. Mr. Sawrey-Kubicek explained that this type of facility does not require a state license. Donald Ryan, property owner at Maubert Avenue, said parking was a problem. There were seven cars on the property. The facility has double gates and one usually was open. Diane Riley, property owner at Maubert Avenue for twelve years, said she did a research and found the following: the Applicant did not have a license; the prior facility was also operated without a State or City License; an iron fence was installed without a permit which was out of character with the neighborhood; Applicant had informed her that Missing Person Reports had been filed but a check revealed that no such reports were ever filed with the Alameda Police Department; residents hide behind cars to smoke; patient load has tripled; patients go AWOL and she had parking concerns. Previously the subject and the adjacent property had the same owner but now since one was owned by the Applicant, Ms. Riley said she was extremely worried. The Applicants actions were not neighborly and another facility was not needed in this neighborhood. Angela Santiago, on behalf of the Faith Independent Care Center, explained the process of patient intake and the work of the facility. Patients were accepted from John George, acute facilities and the Criminal Justice and prepared for the community. Ms. Akaosugi was a good operator who provided a service to

5 WEST COUNTY BOARD OF ZONING ADJUSTMENTS DECEMBER 10, 2003 APPROVED MINUTES PAGE 5 the clients and the patients love this facility. At the opening of this facility, Ms. Santiago said she had sent six patients, five of whom were still at the facility. She urged an approval. In response to Member Spalding, Ms. Santiago explained that she worked for Telecare and the Applicant was a resource who had an independent care facility. Patricia Clewis, on behalf of Faith Independent Care Center, spoke in support. Her son had been referred from Telecare and was a resident at this facility. She visited the facility weekly and did not see patients outside. Rebecca Cordero said she has been the adjacent property owner since 1967 and has seen a lot of changes in the neighborhood. Next door was a rehabilitation center which she had no concerns. The iron fence was installed to protect the cars. Another concern was patients loitering with dogs barking and she urged a denial. Ms. Cordero pointed out that the map attached to the staff report was not for this property but the one across the street. She also thought that the fence issue would be discussed today. Susan Gonzales said her main concern was approving things that were already constructed such as in this case. She had been under the impression that this facility had been part of St. Lukes. Another concern was the location of the apartment at the end of the street with a lot of children. None of the neighbors had been notified initially. The Applicant first moved in and then applied for a permit. Dave Harding, property owner at Maubert Avenue, said his written comments were in the record. Dr. Leonard Cannone, Maubert Avenue, said that the facility was operating without a license, the fence has been installed without a permit and he was not sure on the type of patients living in the home. His other concerns were the unawareness of patient history and the types of medications. There was a need to know what types of patients were coming into the community beforehand. Richard Hancocks suggested the following change to the conditions of approval if the Board was going to approve the application. Condition 18 to include that this permit runs with the owner of the business and the manager of the facility and if a change occurs or sold for profit, the matter should come before the BZA or the application would be revoked. Public testimony was closed. Member Spalding felt that there was sufficient information to deny the application since an approval would adversely affect the community. She agreed with Dr. Cannone and asked if there was a history of any problems. Member Palmeri noted the lack of discussion on the fence in the staff report and asked staff why there was no mention of the retention of a six foot fence in the conditions of approval. There were no special circumstances applicable to the property to warrant a six foot fence and the fence was for the protection of the cars and not around the property. The applicant has demonstrated non-compliance to the conditions even before an approval, there was no description on the types of patients and the residents appear to be without much supervision. He made the motion to deny the applications since he could not make the findings. Member Spalding seconded the motion adding that there was no variance for a fence. Motion carried 4/0. 5. DAN MARCHAND, VARIANCE, V Application to allow a fence eight feet high where six feet is the maximum allowed, in a R-1-L-B-E-CSU-RV (Single Family Residence, Limited Agriculture, 5 acre Minimum Building Site Area, 100 feet Median Lot Width, 30 feet Front Yard, Conditional Secondary Unit, Recreational Vehicle) District, located at 8600 Oak Tree Lane, southwest side, approximately 340 feet southeast of the intersection with Norris Canyon

6 DECEMBER 10, 2003 WEST COUNTY BOARD OF ZONING ADJUSTMENTS PAGE 6 APPROVED MINUTES Road, unincorporated Castro Valley area of Alameda County, bearing Assessor s Parcel Number: (Continued from July 23, August 27, September 24, November 5, 2003). Staff read the project description and provided copies of the map to the Board. Public testimony was called for. Dick Flynn, Attorney representing the Applicant, said all questions have been answered and substantial documents have been included the Board package that shows the need for a eight foot fence. He also submitted twenty-two photographs including those of similar existing fences. These were not being filed as complaints. He made a correction to the November 19 th Addendum that no agreement had been reached with the Applicant but maybe only with the neighbors. This was the only height fence that would work. The recommendation for a seven-foot high fence was an arbitrary compromise. In reference to Page 3, #4 under the November 5 Addendum, Member Botelho asked why a four foot fence could not be installed around the property. Mr. Flynn replied that the character of the landscaping in this area and the habits of deer cannot be combined and as such a four-foot fence could not be sufficient in this area. Susan Pisani, in opposition, read her written testimony. She also disagreed that a compromise had been reached by the neighbors for a seven foot fence but only a discussion had taken place. They had not been contacted either by the Applicant or by Mr. Flynn for any meeting. Richard Hancocks spoke against an approval. He was surprised that deer was considered special privileges. In reference to Mr. Flynn s statement that other similar fences existed, it was not indicated if these were legal or illegal. If illegal, then they should not be justified as grounds for approval. He felt that if rural areas have problems with the wildlife, then the Zoning Ordinance needed to be revised. Public testimony was closed. Member Spalding said she understood the situation since she had the same problem and asked if this was a substantial garden. Staff replied yes. Member Palmeri felt that property owners chose to live in rural settings and not forced. He had a problem with the notion to justify an eight foot fence on one side when there was a four foot fence on the other. It was not a good rationale and could not be considered special circumstances. He could not make the findings. Member Botelho agreed adding that deer would go to the four-foot side of the fence and jump and Member Spalding agreed to this but felt that the substantial garden was a special circumstance. Member Palmeri made the motion to deny the application and Member Botelho seconded the motion. Motion passed 3/1 with Member Spalding voting no. 6. TIM GREEN, VARIANCE, V Application to allow construction of a single family residence with a side yard of three feet where five feet is required, in a R-S-D-20 (Suburban Residence, 2,000 square foot Minimum Building Site Area/Dwelling Unit) District, located at 189 Laurel Street, south side, approximately 450 feet east of Meekland Avenue, unincorporated Cherryland area of Alameda County, bearing Assessor s Parcel Number: (Continued from November 19, 2003). Mr. Sawrey-Kubicek read the project description and noted Cherryland Community Association s denial recommendation. Member Botelho asked for the size of the driveway. He felt that none of the information he was looking for was not included in the staff report. Member Spalding noted that there was no house and Member Botelho added that only a building pad existed. Staff said that the map submitted did not provide any dimensions. Member Palmeri asked County Counsel that if a nonconforming building now demolished to its pad, would still be considered under its non-conforming

7 WEST COUNTY BOARD OF ZONING ADJUSTMENTS DECEMBER 10, 2003 APPROVED MINUTES PAGE 7 status. He thought it should no longer be such. If the building was to be re-constructed, then it would be within the requirements. County Counsel agreed. Mr. Sawrey-Kubicek said there was an existing variance that allows reduced setback of five-six foot where ten feet is required for the driveway from the house. Public testimony was called for. Tim Green, Applicant, disagreed that there was a variance for the driveway. He would like to get the original house back since the ends were still in place with the middle of the house missing. Member Botelho asked if he had considered moving the pad so the building would be in compliance and asked what percentage of the building was in place. Mr. Green replied that 30% was existing and the ends were built with permits. The Chair felt that a clarification was needed. Richard Hancocks noted Section , which indicates that any consideration on a parcel of this size would require a Site Development Review. He asked what percentage of the building has been demolished and if more than 85%, then it has lost its grandfathered status. This was a small lot, similar to others while some others were bigger. This was a chosen design. Public testimony was closed. Member Spalding noted that this was a very narrow lot and many others were much bigger lots which could be considered as special circumstances. Member Botelho asked County Counsel that if the prior building had a nonconforming status and was expanded with permits, would lose its nonconforming status. Mr. Chambliss said he was not sure of the circumstances of this application. Member Palmeri made the motion for a continuance to February 11 for additional information to address if the ends were constructed legally, if the nonconforming part of the structure once removed would lose its status and the width of the lot. Member Botelho seconded the motion. Motion carried 4/0. 7. BLANCA RODRIGUEZ, VARIANCE, V Application to allow construction of a second dwelling providing five feet between the driveway and the main building where ten feet is required, a 17 foot rear yard where six feet is required and three foot between buildings where 20 feet is required, in a R-3 (Four Family Residence) District, located at th Avenue, south side, approximately 261 feet west of Los Banos Street, unincorporated San Leandro area of Alameda County, bearing Assessor s Parcel Number: Staff read the project description. Member Botelho made a correction to the staff report. Page 1, under Pertinent Facts, Adjacent Areas, reads A large apartment complex is located in front of the subject property which was not true. Public testimony was called for. Regugio Quinones, representative, said the Applicant was willing to do all to be in compliance. Member Palmeri asked if the subject property was the same as others in the area with no slopes or beds. Mr. Quinones replied that it was similar with no slopes. Richard Hancocks spoke against an approval. No special circumstances were noted under the Physical Features on Page 1 of the staff report. In reference to Finding #2, he felt that the surrounding illegal conditions should not be grounds for an approval as it would be granting of special privileges. Public testimony was closed. Member Palmeri agreed with Mr. Hancocks and added that he could not make the findings in the affirmative. Parcel Map shows nothing different from other parcels but was identical. Member Spalding agreed with Mr.Hancocks and added that she could not make the first Finding. She made the motion to deny the variance. Staff pointed out that all these parcels were the same,

8 DECEMBER 10, 2003 WEST COUNTY BOARD OF ZONING ADJUSTMENTS PAGE 8 APPROVED MINUTES built before the Zoning Ordinance. The Chair indicated that he could not make the first Finding either. Member Palmeri seconded the motion, which carried 4/0. 8. DANIEL LETTS, VARIANCE, V Application to allow construction of a three unit apartment building providing a five foot side yard where ten feet is required; five feet between building and driveway where ten feet is required; and 160 square feet of usable open space where 1,800 square feet is required, in a R- S-D-20 (Suburban Residence, 2,000 square feet Minimum Building Site Area/Dwelling Unit) District, located at Maubert Avenue, southwest side, approximately 100 feet northwest of 159 th Avenue, unincorporated San Leandro area of Alameda County, bearing Assessor s Parcel Number: (Continued from November 19, 2003). The Chair announced that this item was recommended for a continuance to January 14, STEVE SOUZA and VICKI CRANE, VARIANCE, V Application to allow an existing fence in the front yard of a residence that varies in height from four feet seven inches to five feet six inches as the fence steps up a sloping street and front yard where four feet is the maximum allowed, in a R-1-RV (Single Family Residence, Recreational Vehicle) District, located at Gramercy Drive, south side, approximately 296 feet southeast of Selborne Drive, unincorporated San Leandro area of Alameda County, bearing Assessor s Parcel Number: 080A (Continued from November 19, Staff read the project description. Member Palmeri discussed the topography and asked staff what special circumstances existed. Public testimony was called for. Vicki Crane, Applicant, concurred with all the recommended conditions. Richard Hancocks spoke in opposition. He asked the Board for consistency. He felt that the property owner could build a fence within the requirements and asked if anyone in a R-1 District could built a fence higher than four feet. It was not allowed and hence would be granting of special privilege. Mr. Hancocks said that he was offended by the second Finding. Public testimony was closed. Member Spalding pointed out that the steep topography justified the fence height hence it would not be grant of special privileges. She made the motion to adopt the findings and approve the application subject to the two recommended conditions. Due to the lack of a second, the motion died. Member Botelho said he had made a site visit. Although he agreed there was a slope, he did not agree that it warranted a six foot high fence. The Applicants would like a six foot fence only to keep dogs in the front yard. He felt that pets should be in the back yard. Since he could not make the first finding in the affirmative, he made the motion to deny the application. Member Palmeri seconded the motion adding that he could see some argument as there was a slope. Motion did not carry due to a tie vote with the Chair and Member Spalding voting no. The matter was then referred to the Planning Commission. 10. COMSTANTIN and MARINA LELEU, VARIANCE, V Application to allow construction of an attached addition providing a 15 foot front yard (as measured to bay window) where 20 feet is required, in a R-1-SU-RV (Single Family Residence, Secondary Unit, Recreational Vehicle) District, located at 2079 Sydney Way, south side, approximately 217 feet west of Carlton Avenue,

9 WEST COUNTY BOARD OF ZONING ADJUSTMENTS DECEMBER 10, 2003 APPROVED MINUTES PAGE 9 unincorporated Castro Valley area of Alameda County, bearing Assessor s Parcel Number: 084B (Continued from December 3, 2003). Mr. Sawrey-Kubicek read the project description adding that this matter was continued from last hearing on a 2/1 vote and explained that the garage was location on the east side where the lot was narrower. Member Palmeri asked that if the lot was rectangular at the longest corner, would a variance be required. Staff answered no. Public testimony was called for. Comstantin Leleu, Applicant, stated that this property had been a rental and had not been up-graded or kept up. He would like to change the look of his house by adding a bay window which would not touch the ground but four feet up and in the existing porch. Most of the neighbors supported his proposal. Richard Hancocks said his previous comments stand. Public testimony was closed. Member Botelho, in reference to the Findings, said he was confused and asked what the special circumstances were. Member Spalding pointed out that other neighbors had built earlier in time and further back into the lot. The encroachment would only be a minimal 4%. While stating that special circumstance has to be related with the property and not the building, Member Botelho stated that the staff report also does not indicate any special circumstances related to this property, whether 4% or more. Member Spalding made the motion to adopt the findings and approve the application subject to the three recommended conditions. The Chair seconded the motion. Motion did not carry due to a tie vote with Members Botelho and Palmeri voting no. The matter was then referred to the Planning Commission. 11. RICK E. TUURI, VARIANCE, V Application to retain a fence six feet high where four feet is the maximum height allowed, in a R-1-SU-RV (Single Family Residence, Secondary Unit, Recreational Vehicle) District, located at Ogilvie Drive, east side, approximately 164 feet south of Lawrence Drive, unincorporated Castro Valley area of Alameda County, bearing Assessor s Parcel Number: 084D Mr. Sawrey-Kubicek read the project description adding that the applicant has requested a continuance to January 28, Public testimony was called for. James Burke submitted photographs and a letter from the opposite property owner in opposition. His property, Ogilvie Drive, was on the north side. Backing out of their driveways, one could not see pedestrians or cars coming. He had tried to work with the Applicant before and during the construction. This was a rear fence built on top of a retaining wall. Richard Hancocks, in opposition, said this was similar to the previous application. The slope issue and lack of privacy was common to all properties in this area which should not considered as special circumstance. Public testimony was closed. In response to Member Botelho, staff said he was not sure why the Applicant has requested a continuance. Member Botelho made the motion to continue the matter to January 28, Member Spalding seconded the motion, which carried 4/ TOM LEONG, VARIANCE, V Application to allow construction of a single family residence with a 30 feet front yard setback where 40 feet is

10 DECEMBER 10, 2003 WEST COUNTY BOARD OF ZONING ADJUSTMENTS PAGE 10 APPROVED MINUTES required, in a PD allowing R-1-L-B-E (Planned Development allowing Single Family Residence with Limited Agricultural Uses, 40,000 square foot Minimum Building Site Area) District, located at 5233 Jensen Road, south side, approximately 1059 feet east of Castro Valley Boulevard, unincorporated Castro Valley area of Alameda County, bearing Assessor s Parcel Number: Mr. Sawrey-Kubicek read the project description. Member Botelho asked if this would be a new construction on a vacant lot. Staff answered yes. Member Botelho pointed out the first Finding which reads, Orientation of the existing residence. Mr. Sawrey-Kubicek explained that the special circumstance would be the depth of the lot and slope. Public testimony was called for. Li-Sheng Fu, Architect, confirmed that it was a vacant lot and he was willing to grant five foot for the right-of-way. Member Palmeri asked if he has considered alternative design or moving the house further back to eliminate the front setback variance. Mr. Fu explained that moving back further down the slop would increase the building height and, as such, the proposal was for a wider house. The left side had a better view of the valley. In response to Member Spalding, he said the rear had a 45% slope. Richard Hancocks, in opposition, said there were inconsistencies in the first Finding, had concerns with the second Finding and the Applicant could not encroach into the Future Width Line. Mr. Sawrey- Kubicek explained that it should read Special Building Line instead. The Chair pointed out Public Works response. Public testimony was closed. Member Spalding said she had problem with dedication of private properties to obtain variances. Member Palmeri asked that if there was no Special Building Line, no variance would be required. Staff answered yes. Member Palmeri made the motion to adopt the findings as there were special circumstances applicable to the property, it was unique from other properties due to the existing slope, and approve the application subject to the three recommended conditions, deleting the requirement of the 5 foot right-of-way dedication. Member Spalding seconded the motion, which carried 4/ THOMAS and DARLENE SOLDONIA TRUST, VARIANCE, V Application to allow a fence height at side yard property lines and at the rear yard property line that a maximum of seven feet five inches in height where six feet is the maximum allowed, in a R-1-SU-RV (Single Family Residence, Secondary Unit, Recreational Vehicle) District, located at Lenross Court, south side, approximately 217 feet west of Seven Hills Road, unincorporated Castro Valley area of Alameda County, bearing Assessor s Parcel Number: 084D (Continued from November 19, 2003). Mr. Sawrey-Kubicek read the project description. Public testimony was called for. Thomas Soldonia, Applicant, said after the last hearing, he removed the lattice. Dave Goggin, representing his mother, property owner at Lenross Court, said he was troubled by the Applicant s action. The Applicants waited for his mother to be out of town and had people trespass onto her property to remove the old fence and install a new one. His mother supports solar energy and this fence does not. He requested that all lattice be removed and any future work on fence be in support of

11 WEST COUNTY BOARD OF ZONING ADJUSTMENTS DECEMBER 10, 2003 APPROVED MINUTES PAGE 11 solar energy and any conversation with his mother be in his present. Member Spalding asked if he opposed a four inch variance. Mr. Goggin replied yes. He would like the fence to be the legal height and pointed out that although the lattice was removed, the posts were still in place. Lois Goggin said the Applicant has replaced the old fence with an eight feet illegal fence and felt that this high fence did not belong here. The south side was the best side of her house with sunlight. The fence blocks the light and view. Rain water also collects on the south side and while the wind also blows from the south, blocking the wind would cause a mold problem. She felt the fence was degrading and in response to Member Spalding, said her backyard was facing Cameo Court and her rear fence was installed by Public Works. Member Spalding asked if she opposed a 4 inch variance. Mr. Goggin replied that although it may sound small, she wanted the code to be followed. Don Nethercott, property owner at Lenross Court, said he has not filed for a variance but thought his property would be affected. In response to Member Spalding, he confirmed that he was the other adjacent neighbor. April Nethercott said that she was sorry for building a higher fence than allowed but they had not been aware that it was illegal. Their fence added value to their property. Richard Hancocks said his comments were only observation and asked why build a fence four inches over the required height. Public testimony was closed. Member Palmeri made the motion to adopt staff s findings and deny the application as there were no special circumstances. The Chair seconded the motion. Motion did not carry due to a tie vote with Members Spalding and Botelho voting no. The matter was then referred to the Planning Commission. 14. MIKE DECKER/RUTH E. TESHERA, VARIANCE, V Application to expand a non-conforming use (two dwellings on one parcel) by the remodeling and repair of both dwellings, in a R-1 (Single Family Residence) District, located at 2684 D Street, north side, approximately 100 feet east of Mayville Drive, unincorporated Hayward area of Alameda County, bearing Assessor s Parcel Number: Staff read the project description. Member Spalding pointed out that although the staff report states Fairview District, the agenda did not do so. Mr. Sawrey-Kubicek said it was an over-sight. Member Spalding asked if this was conforming. Staff explained that the dwellings were built before the Zoning Ordinance. Mr. Decker explained that he was only remodeling. A discussion followed regarding paragraph one, Page 3 and the value of improvements/restoration. Richard Hancocks said he was confused. History says R-1 in 1978 which allowed only one dwelling followed by Rezoning which still allowed only one dwelling. One was an illegal structure. The first Finding states two homes existed since He thought there was a Prohibition for non-conforming uses. Mr. Hancocks asked if a variance could be approved to a Prohibition and thought it could not be granted. Member Spalding agreed with Mr. Hancocks. Public testimony was called for. The Applicants were available to answer any questions. Copies of the Building Permit was submitted to the Planning Department and it was a legal nonconforming building. Staff confirmed that a copy was in the file. The original house was built in 1929 and the second dwelling was moved onto the property in Public testimony was closed. Member Palmeri felt that clarification was needed in reference to Mr.

12 DECEMBER 10, 2003 WEST COUNTY BOARD OF ZONING ADJUSTMENTS PAGE 12 APPROVED MINUTES Hancocks testimony as to the percentage of prohibition limit; and the staff report to be up-dated as to whether the second building was legal non-conforming unit. He made the motion for a continuance. County Counsel asked what the rules were in Member Spalding seconded the motion, which carried 4/0. The matter was continued to January 14, STAFF COMMENTS & CORRESPONDENCE: None CHAIR S REPORT: None OPEN FORUM: Open forum is provided for any members of the public wishing to speak on an item not listed on the agenda. Each speaker is limited to three (3) minutes. Mr. Hancocks pointed out that staff has the wrong notion that sloping ground and fence constitutes a special circumstance. BOARD S ANNOUNCEMENTS, COMMENTS AND REPORTS: Member Botelho pointed out that for the last few months, the staff reports have been getting flaky. A lot of information was not being researched and included in the staff reports. In reference to the new committee for reviewing the Ordinance, no members of the BZA has been recognized as a Stakeholder. Member Palmeri asked if this could be passed on to the Planning Director. ADJOURNMENT: There being no further business, the hearing adjourned at 10:20 p.m. CHRIS BAZAR - SECRETARY WEST COUNTY BOARD OF ZONING ADJUSTMENTS