Loading...
HomeMy WebLinkAbout8.01 051623 YANCICH LTRMay 16, 2023 Mayor and Town Council Town of Danville RE: Danville Town Council Meeting - May 16, 2023 - 5 p.m. Town Meeting Hall - 201 Front Street, Danville, CA Project Name: PUD23-0001 - 1065 and 1069 Westridge Avenue Rezoning Case File Nos.: PUD23-0001 Public Hearing 8.1 Dear Mayor and Town Council: In October 2001, my late husband, Milan Yancich, and I purchased 1063 Westridge Avenue, a four bedroom - two bath home, with a backyard respite. We raised our two daughters, now college -aged, in this home. Each is an alum of Montair Elementary, Charlotte Wood Middle School, and San Ramon Valley High School. Each had a Varsity letter in Women's sports. Each participated in both the Mustang Soccer League and Club Girls Lacrosse. My home on Westridge Avenue is loaded with memories; it is nestled on a dead end street and at the base of the ridge. Collectively, I and my next door neighbors and those directly across and kitty corner have over 100 years of being residents on Westridge; we have grown together and consider Westridge Avenue a coveted community of its own. My home is immediately north of the private narrow driveway / easement that services 1065 [Snider] and 1069 [Legg] Westridge. [A Google Maps photograph of this private narrow driveway / easement is attached]. In the 22 years since living at 1063 Westridge, I do not recall any effort by the Carters (1069 owners prior to the Leggs) nor the Adams and Freemans (1065 owners prior to the Sniders) to rezone these two properties to P-1 Planned Unit Development. Thus, the application by The Leggs and The Sniders to rezone their parcel and the Mr. Legg's "intention to subdivide their property using Senate Bill 9" has brought upon much Page 1 distress and dismay upon me and my fellow Westridge Avenue neighbors at the thought not only of the inappropriate and overburdening of this narrow private driveway if the proposed street access to the newly -created lots is proposed to be over it, but the overall impact on the Westridge neighborhood and environment, with attendant noise, pollution, traffic, disruption, and increased risk of instability in the ground, flooding and even fire. I emphatically express my opposition and objections to this application, and any plan to subdivide the property for development, as follows: Objections to Rezoning and Subdividing the Property for Development A. Private Driveway will be excessively and unreasonably burdened and use will be a Nuisance to my property 1. Easement is narrow private driveway lane - Rezoning to P-1 will be a Nuisance • This is not a conventional public street or public access. It is a narrow private driveway lane that perhaps is adequate for the two large single family residences it serves. Increased traffic over this driveway will be a nuisance to the properties it runs through and over, will overburden the road and surcharge the easement, and will create increased damage, wear, and tear to the driveway. And that is just when the driveway is serving residential purposes; of course, during construction and development the driveway will be substantially abused, damaged, and overworn. 2. Violation of Civil Code Section 807 • Civil Code 807 provides: "In case of partition of the dominant tenement the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement." The neighbors — the dominant tenements of the existing easement — propose to partition their properties in such a way that it would increase the burden on the servient tenements (1063 Westridge = Yancich and 1071 Westridge = Fischer). By approving the rezoning without a legal, acceptable access plan, the Town is condoning the neighbors' violation of Civil Code 807. Page 2 3. Unreasonable and excessively increased burden on the private driveway • From the Miller Starr practice guide: When a dominant tenement is subdivided, the respective owners of the subdivided portions may use the easements appurtenant to the dominant tenement to the extent such additional use does not cause an excessive increase in the burden on the servient tenement. Regardless of the method of creation, a subdivision of the dominant tenement and the use of the easement for the subdivided parcels may be permitted when the subdivision of the property is the natural evolution of the area and the property, the development of the dominant tenement was reasonably contemplated at the time the easement was created, and the increased use does not unreasonably burden the servient tenement. [Miller Starr, California Real Estate, 15:60]. 4. Material increase in the use of the eastment is a prohibited surcharge on my property since in the 22 years prior it only serviced only these two homes • A material increase in the use of the easement as a result of the subdivision of the dominant tenement is a prohibited surcharge on the servient tenement. See Gaither v. Gaither (1958) 165 Cal.App.2d 782, is a good example of this point, and is still good law. In Gaither, the court of appeal held that the fact that a driveway easement was used for ingress and egress for residential and farming purposes did not necessarily, as a matter of law, show such use was broad enough to give the right to drive trailers over the driveway, nor to permit driveway to be burdened with increased uses which would result from operation of trailer park. • As Miller Starr explains: "When the instrument of conveyance grants an easement in general terms, without specifying or limiting the extent of its use, the permissible use is determined in the first instance by the intention of the parties and the purpose of the grant. Once the easement has been used for a reasonable time, the extent of its use is established by the past use. Thereafter, its owner cannot make changes in its use that would substantially modify or increase the burden of the servient tenement." [citations omitted] [Miller Starr, California Real Estate, 15:56]. Page 3 • Another point, see headnote from Rye v. Tahoe Truckee Sierra Disposal Co. Inc. (2013) 222 Cal.App.4th 84 — where the dominant owner wanted to expand parking and storage rights beyond the historic easement use: "The rule that intent determines the extent of a servitude necessarily applies to express easements when the extent of the easement is in question; in that case the extent of the servitude includes such uses as the parties might reasonably have expected from the future uses of the dominant tenement, which is to be ascertained from the circumstances existing at the time of the conveyance. Cal. Civ. Code § 806." 5. Civil Code 806 - 22 years of use of the private driveway for only two homes • Civil Code 806 provides: "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." Which means, how the easement was used when acquired matters for purposes of the acceptable burden to be imposed on my and the Fischer property by the neighbors' use of their easement. Thus, if the owners apply to subdivide their parcels (per the applicants' stated intention), they would necessarily not have the necessary right of access to any newly -created parcels. B. Approval of Rezoning Is Inconsistent with Surrounding Neighborhood, Requires CEQA/Environmental Review and Violates the General Plan Rural Residential Designation 6. Rezoning Not Consistent with surrounding neighborhood • It is a misnomer to state the rezoning is to be "consistent with the surrounding neighborhood". 1) If allowed, this is actually increasing the density. 2) If allowed, this is inconsistent with the adjacent open -space to which these parcels are uniquely adjacent. Page 4 7. CEQA / Environmental Review required for adoption of PUD and change of zone. • In the Administrative Staff Report - 8.1 addressed to Mayor and Town Council, "Environmental Review" on page 2, it is stated that "the project has found to be Categorically Exempt from the requirements of the California Environmental Quality Act (CEQA), Section 15305, Class 5, Minor alterations in land use limitations. 1. Section 15305 provides: "Class 5 consists of minor alterations in land use limitations in areas with an average slope of less than 20%, which do not result in any changes in land use or density, including but not limited to: 1. (a) Minor lot line adjustments, side yard, and set back variances not resulting in the creation of any new parcel; 2. (b) Issuance of minor encroachment permits; 3. (c) Reversion to acreage in accordance with the Subdivision Map Act." • This exemption of CEQA does not apply because 1) it is not a minor lot -line adjustment, it is a rezoning and adoption of a planned unit development; 2) it does result in "changes in land use AND density" (net reduction in lot -size); 3) the Resolution expressly states it is intended to result in a subdivision of two separate parcels, including one "new parcel." 8. Violation of General Plan Residential Rural Designation by Permitting lot size Tess than 5 acres - Improper sequencing • A Violation of General Plan Residential Rural Designation by permitting a lot size less than 5 acres cannot be cured preemptively by an anticipated SB 9 application. The sequencing is improper, to wit: To qualify for SB 9 Lot split, the Applicant needs "Single Family Residential" - Page 5 And the Applicant needs "Single Family Residential" zoning designation to qualify for SB 9 Lot split; In other words, a future speculative SB 9 approval permitting a lot split is not a valid basis for a present finding of consistency with a General Plan provision requiring minimum 5 acre lot size and begs the question whether the applicant's intent to subdivide "using Senate Bill 9" has been shown to further purposes of SB 9. The Town Council's commitment to keep everything great about Danville, its strive to preserve the core areas of our successful heritage to keep Danville special, and to keep the unparalleled character of Westridge Avenue that its long time residents have come to love and keep them here, compels you to say "NO" to this Application to Rezone. Thank you for your attention and consideration. Best, Mari S. Yancich 1063 Westridge Avenue 925-360-6034 Attachment: Google Map Page 6 Go gle Maps 1063 Westridge Ave F •.'ar�' - • Danville, California Google Street View Mar 2019 See more dates Image capture: Mar 2019 © 2023 Google