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Home My WebLink About080823-05.1 PLANNING COMMISSION STAFF REPORT 5.1 TO: Chair and Planning Commission August 8, 2023 SUBJECT: Resolution No. 2023-09, denying an appeal and upholding the Town’s administrative action conditionally approving Land Use Permit request LUP23-0019 to allow the construction of a 6’ high fence to be built bordering a private access easement where a 5’ setback is required for a fence that is taller than 3.5 feet. This fence would not utilize a 5’ setback but would be installed outside of the private access easement and would replace a pre-existing 6’ tall non-conforming fence on the property located at 540 El Pintado Road (APN 196-162-012). DESCRIPTION/BACKGROUND The subject property, 540 El Pintado Road, previously had a fence which historically existed on the property and exceeded 3.5 feet in height while located within the five foot secondary front yard setback. The fence was located just outside the private access easement which serves 546 El Pintado Road and also provides legal access to 540 El Pintado Road. The previous fence was removed due to age and condition with the intention of being replaced with a new fence having the same dimensions and in the same location. After discussions between the two property owners, a new fence was built with the same setback and with a reduced height of 3.5 feet to comply with Town development standards. This fence was built with the hope that the 3.5 foot height may be temporary, and a land use permit would be approved to support the reconstruction of a six foot tall fence within the five foot setback. Under Town Ordinance, a land use permit may be approved to allow the re- establishment, modification, or expansion of a non-conforming use, building, or structure. Antonio Alvarez, the owner of 540 El Pintado Road applied for a land use permit to allow for the construction of a fence which would replace the previous legal non-conforming fence which was removed due to poor condition. The proposed fence would be six feet in height and would be located in the same location as the old fence outside of the private access easement but would not meet the five foot secondary front yard setback which is required for fences exceeding 3.5 feet in height. The Town administratively issued an Appealable Action Letter approving Land Use Permit LUP23-0019 on June 7, 2023 (Attachment C). On June 16, 2023, the Town received an appeal of this approval from, Lisa and George D’Olivo, owners of 546 El Pintado Road (Attachment D). The appeal letter raises issues regarding the setbacks of the proposed fence and the Town’s authority to permit the land use permit. 540 El Pintado Road 2 August 8, 2023 EVALUATION/ DISCUSSION Conformance with General Plan and Zoning District The appeal process allows for both applicant and appellant to speak to the Planning Division’s administrative decision (i.e., the entirety of the action is open for review through the appeal hearing process). The Planning Commission must take into consideration the requisite findings that were made prior to granting the land use permit request (taken Municipal Code Section 32-3.5), which are as follows: a)The proposed land use shall not be detrimental to the health, safety and general welfare of the Town; b)The proposed land use shall not adversely affect the orderly development of property within the Town; c)The proposed land use shall not adversely affect the preservation of property values and the protection of the tax base within the Town; d)The proposed land use shall not adversely affect the policy and goals as set by the General Plan; e)The proposed land use shall not create a nuisance and/or enforcement problem within the neighborhood or community; f)The proposed land use shall not encourage marginal development within the neighborhood. The Town’s evaluation of the land use permit request, made in the context of the written appeal letter, did not result in a modification of staff’s initial decision to approve the land use permit request. The Town believes that the granting of a land use permit and the resulting fence will not be detrimental to the health, safety, and general welfare of the Town. The proposed fence would be constructed along the edge of a private access easement which primarily serves one property located to the rear of the property on which the easement is located. Permitting the fence to maintain a six foot height without a five foot setback will not impact the health or safety on this property as it has historically existed on-site. The Town believes that the granting of a land use permit will not adversely affect the orderly development of property within the Town. The proposed fence would be constructed with an identical height and location as the fence which historically existed on-site. The Town is not aware of any negative impacts related to the location of the fence in the past. The Town believes that the granting of a land use permit will not adversely affect the preservation of property values and the protection of the tax base within the Town. The proposed fence would be constructed with an identical height and location as the fence 540 El Pintado Road 3 August 8, 2023 which historically existed on-site. The Town believes that the granting of a land use permit will not adversely affect the policy and goals as set by the General Plan. The proposed fence would be constructed with an identical height and location as the fence which historically existed on-site. The Town believes that the granting of a land use permit will not create a nuisance and/or enforcement problem within the neighborhood or community. The proposed fence would be constructed with an identical height and location as the fence which historically existed on-site. Finally, the Town believes that the granting of a land use permit will not encourage marginal development within the neighborhood. Again, the fence would be constructed with an identical height and location as the fence which historically existed on-site. Response to the Appeal In the appeal letter, the appellant raises the issue that there is currently a conforming 3.5’ tall fence with a gate. The previous six foot tall fence was removed with the intention to build a replacement fence with the same height and location. During the construction, Antonio Alvarez was informed that the removal of the previous fence resulted in the loss of its grandfathered-in status and that a future fence built to the same standards would require the approval of a land use permit. Alvarez constructed the current conforming fence and submitted an application for a land use permit to the Planning Division to allow for the construction of a replacement non-conforming fence. The appellant raises the issue that the Town does not have the authority to approve the construction of a non-conforming fence. The letter claims that land use permits only apply to non-conforming uses altered or removed by natural catastrophes. Section 32-3.5 in the Town’s municipal code states that, “…A Land Use Permit may also be required in order to regulate certain operational characteristics of an allowed land use (…) or to allow the re-establishment, modification, or expansion of a non-conforming use.” Nonconforming uses are defined within Section 32-1.6 which states that “If any building or structure constituting a nonconforming use is destroyed or damaged (…) or if an existing use of land is temporarily terminated, the building or structure may not be repaired or rebuilt if damaged in excess of fifty percent of its reasonable market value at the time of destruction or damage, without approval of a Land Use Permit application.” It is the Town’s position that the removal of the old fence to allow construction of a replacement fence constitutes a temporary termination of the fence structure, and may be legally re-established with approval of a land use permit. The appellant also raises the issue that the current and proposed fence contains a gate which provides access to the rear of the Alvarez property. The letter refers to the access 540 El Pintado Road 4 August 8, 2023 easement as “the D’Olivo easement.” The Town does not generally monitor or enforce gates or doors located on fences. The access easement is described as a nonexclusive right of way in the legal description (Attachment G) which is utilized by the D’Olivos but also includes rights and ownership which is retained by the Alvarezs. It is the Town’s position that this private easement constitutes a private agreement which the Town has no authority to interpret or enforce. Disputes over the use of the easement are a private civil matter and must be resolved between the affected property owners. Due to the low volume of traffic occurring within the easement, the Town does not anticipate any hazards created as a result of the gate. As a result, the Town does not believe that a restriction on the gate is warranted as part of this land use permit. PUBLIC CONTACT Public notice of the August 8, 2023, hearing was mailed to property owners within 750 feet and posted online. A total of 82 notices were mailed to surrounding property owners. RECOMMENDATION Approve Resolution No. 2023-09, denying an appeal and upholding the Town’s administrative action conditionally approving Land Use Permit request LUP23-0019 to allow the construction of a 6’ high fence to be built bordering a private access easement where a 5’ setback is required for a fence that is taller than 3.5 feet. This fence would not utilize a 5’ setback but would be installed outside of the private access easement and would replace a pre-existing 6’ tall non-conforming fence on the property located at 540 El Pintado Road (APN 196-162-012). Prepared by: Riley Anderson-Barrett Associate Planner Attachments: A – Resolution No. 2023-09 B – Public Notification and Map & Notification List C – Town’s Appealable Action Letter Supporting the LUP Request D – Letter of Appeal E – Neighbor Letter of Support F – Survey - Corner Record G – Legal Description and Plat H – Grant Deed I – Previous Fence Photo J – Alvarez Letter to D’Olivo 540 El Pintado Road 5 August 8, 2023 K – Alvarez/Armstrong Letter to the Town L – Alvarez/D’Olivo Communication M – Alvarez Easement Laws RESOLUTION NO. 2023-09 RESOLUTION NO. 2023-09, DENYING AN APPEAL AND UPHOLDING THE TOWN’S ADMINISTRATIVE ACTION CONDITIONALLY APPROVING LAND USE PERMIT REQUEST LUP23-0019 TO ALLOW THE CONSTRUCTION OF A 6’ HIGH FENCE TO BE BUILT BORDERING A PRIVATE ACCESS EASEMENT WHERE A 5’ SETBACK IS REQUIRED FOR A FENCE THAT IS TALLER THAN 3.5 FEET. THIS FENCE WOULD NOT UTILIZE A 5’ SETBACK BUT WOULD BE INSTALLED OUTSIDE OF THE PRIVATE ACCESS EASEMENT AND WOULD REPLACE A PRE-EXISTING 6’ TALL NON-CONFORMING FENCE ON THE PROPERTY LOCATED AT 540 EL PINTADO ROAD (APN 196-162-012) WHEREAS, Antonio Alvarez (owner of 540 El Pintado Road/applicant) applied for Land Use Permit request LUP23-0019 to allow for the construction of a six foot tall fence located within the five foot setback required for a fence taller than 3.5 feet; and WHEREAS, the subject site is located at 540 El Pintado Road and is further identified as Assessor’s Parcel Number 196-162-012; and WHEREAS, the Town administratively approved Land Use Permit request LUP23-0019 on June 7, 2023, with an appeal period to end on June 19, 2023; and WHEREAS, an appeal filed by William Logan representing Lisa and George D’Olivo (owners of 546 El Pintado Road/appellants) in response to the Appealable Action Letter supporting Land Use Permit request LUP23-0019 was received on June 16, 2023; and WHEREAS, the project has been found to be Categorically Exempt from the requirements of the California Environmental Quality Act (CEQA), Section 15303, Class 3, New Construction or Conversion of Small Structures; and WHEREAS, the Planning Commission did review the project at a noticed public hearing on August 8, 2023; and WHEREAS, the public notice of this action was given in all respects as required by law; and WHEREAS, the Planning Commission did hear and consider all reports, recommendations, and testimony submitted in writing and presented at the hearing; now, therefore, be it RESOLVED that the Planning Commission denies the appeal and upholds the Town’s administrative action conditionally approving Land Use Permit request LUP23-0019 subject to the conditions contained herein, and make the following findings in support of ATTACHMENT A PAGE 2 OF RESOLUTION NO. 2023-09 this action: FINDINGS OF APPROVAL: 1. The proposed fence would replace a previous fence which historically existed on the property in the same location and with the same height prior to March of 2023; 2. The proposed location of the fence borders a private access easement which primarily serves only one property, 546 El Pintado Road, but retains legal access by 540 El Pintado, the property on which the fence is located; 3. The proposed land use will not be detrimental to the health, safety and general welfare of the Town; 4. The proposed land use will not adversely affect the orderly development of property within the Town; 5. The proposed land use will not adversely affect the preservation of property values and the protection of the tax base within the Town; 6. The proposed land use will not adversely affect the policy and goals as set by the General Plan; 7. The proposed land use will not create a nuisance and/or enforcement problem within the neighborhood or community; 8. The proposed land use will not encourage marginal development within the neighborhood. Unless otherwise specified, the following conditions shall be complied with prior to the Town Council approval of the initial final map for the project. Each item is subject to review and approval by the Planning Division unless otherwise specified. CONDITIONS OF APPROVAL: 1. This approval is for the construction of a 6’ fence located at the edge of a private access easement running through 540 El Pintado Road. Activities authorized through this land use approval shall be substantially consistent with the applicant’s project narrative received by the Planning Division on May 30, 2023. 2. Any expansion or modification of the use shall be subject to review and approval by the Planning Division under a separate Land Use Permit application. PAGE 3 OF RESOLUTION NO. 2023-09 3. Personnel from the Danville Planning and Building Division have the right, under the terms of this land use permit, to make on-site inspections to assure compliance with these conditions of approval. 4. At any time during the effectiveness of this approval, the approval shall be revocable for cause in accordance with sections 32-4.15 through 32-4.19 of the Danville Municipal Code, including failure to comply with these conditions of approval if the applicant has caused or permitted any public nuisance in connection with the use. 5. Prior to construction, evidence shall be provided to the Town verifying that the proposed fence will not be located within the access easement. APPROVED by the Danville Planning Commission at a regular meeting on August 8, 2023, by the following vote: AYES: NOES: ABSTAINED: ABSENT: _____________________________ CHAIR APPROVED AS TO FORM: _______________________________ ______________________________ CITY ATTORNEY CHIEF OF PLANNING NOTICE OF A PUBLIC HEARING Danville Planning Commission Meeting Tuesday, August 8, 2023, at 5:00 p.m. | Town Meeting Hall, 201 Front Street Project Name: LUP23-0019 – 540 El Pintado Road Case File Nos.: LUP23-0019 Location: 540 El Pintado Road | APN: 196-162-012 Description: Appeal of the Town’s administrative action conditionally approving Land Use Permit request LUP23-0019 to allow the construction of a 6’ high fence to be built bordering a private access easement where a 5’ setback is required for a fence that is taller than 3.5 feet. This fence would not utilize a 5’ setback but would be installed outside of the private access easement and would replace a previous 6’ tall non- conforming fence on the property located at 540 El Pintado Road (APN 196-162- 012). Property Owner and Applicant: Antonio and Alice Alvarez 540 El Pintado Road Danville, CA 94626 Staff Contact: Riley Anderson-Barrett, Associate Planner (925) 314-3314 Randersonbarrett@danville.ca.gov All interested persons are encouraged to attend and be heard at the scheduled public hearing at 5:00 p.m. on Tuesday, August 8, 2023, at the Town Meeting Hall at 201 Front Street, Danville, CA. NOTE: If you challenge the Town’s decision on this matter in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Town at, or prior, to the public hearing. In compliance with the Americans with Disabilities Act, the Town of Danville will provide special assistance for disabled citizens.  If you need special assistance to participate in this meeting, please contact the City Clerk (925) 314-3388.  Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. [28CFR 35.102-35.104 ADA Title II] ATTACHMENT B Vicinity Map and Hearing Notice Boundary 540 El Pintado Road PROJECT SITE 1234567 89 1011121314151617181920212223242526272829303132 3334 3536373839404142434445464748495051525354555657 5859 606162636465666768697071 A B C D E F Parcel Number Site Address Owner Name Mailing Address Mailing City & State Mailing Zip 196140036 660 LOGAN LN DHINDSA MANDEEP 660 LOGAN LN DANVILLE CA 94526 196140037 670 LOGAN LN WARN FRANK & KAY TRE 670 LOGAN LN DANVILLE CA 94526 196140038 671 LOGAN LN KHODAYARI PARI TRE 671 LOGAN LN DANVILLE CA 94526 196140051 574 EL PINTADO RD LEGG CHRISTINE MARIE TRE 574 EL PINTADO RD DANVILLE CA 94526 196140053 610 LOGAN LN SHAH NADEEM & RAZEENA 610 LOGAN LN DANVILLE CA 94526 196150003 560 EL PINTADO MCADAM LOWELL C TRE 930 TAHOE BLVD STE 802 #705 INCLINE VILLAGE NV 89451 196150005 548 EL PINTADO FALCK HENRY J TRE 548 EL PINTADO DANVILLE CA 94526 196150006 554 EL PINTADO MCADAM LOWELL C TRE 721 GOBBLER RIDGE LN HUDDLESTON VA 24104 196150007 556 EL PINTADO TENZER RAYMOND E & LOIS I TRE 18755 W BERNARDO DR APT 1005 SAN DIEGO CA 92127 196150009 564 EL PINTADO CICCHITTO NELSON A 564 EL PINTADO DANVILLE CA 94526 196150010 568 EL PINTADO CORRAL JOHN T & GENEVIEVE TRE 568 EL PINTADO DANVILLE CA 94526 196150011 566 EL PINTADO VASALLO NICHOLAS R & DENISE 566 EL PINTADO DANVILLE CA 94526 196150012 562 EL PINTADO THOMPSON TODD ANDREW TRE 562 EL PINTADO DANVILLE CA 94526 196150013 A 562 EL PINTADO KAUR AMANDEEP 562 EL PINTADO A DANVILLE CA 94526 196161001 522 EL PINTADO NATALI MICHAEL A TRE 522 EL PINTADO DANVILLE CA 94526 196161002 614 DOLPHIN DR VISHNU PRIYA RAJENDRAN 614 DOLPHIN DR DANVILLE CA 94526 196161003 626 DOLPHIN DR FENG ANTHONY & OU 626 DOLPHIN DR DANVILLE CA 94526 196161004 638 DOLPHIN DR MARUYAMA CLIFFORD & C TRE 638 DOLPHIN DR DANVILLE CA 94526 196161005 640 DOLPHIN DR STANDISH BENJAMIN R & JI L 640 DOLPHIN DR DANVILLE CA 94526 196161006 664 DOLPHIN DR GERLACH GLENN W JR 664 DOLPHIN DR DANVILLE CA 94526 196161007 676 DOLPHIN DR VOLSANSKY JAMES L TRE 676 DOLPHIN DR DANVILLE CA 94526 196162001 675 DOLPHIN DR HSIAO KENNETH C TRE 675 DOLPHIN DR DANVILLE CA 94526 196162002 212 HIDEAWAY CT HERTZ CRAIG 212 HIDEAWAY CT DANVILLE CA 94526 196162003 218 HIDEAWAY CT HAVLIK DAVID J & JUDITH TRE 218 HIDEAWAY CT DANVILLE CA 94526 196162004 217 HIDEAWAY CT TROTT MARK S & JENNIFER P 217 HIDEAWAY CT DANVILLE CA 94526 196162005 645 DOLPHIN DR GRIMM GORDON & GAY F TRE 645 DOLPHIN DR DANVILLE CA 94526 196162006 639 DOLPHIN DR SNIDER MICHAEL DENNIS TRE 639 DOLPHIN DR DANVILLE CA 94526 196162007 629 DOLPHIN DR WERLING MARK A 629 DOLPHIN DR DANVILLE CA 94526 196162008 619 DOLPHIN DR SOLOMON PETER 619 DOLPHIN DR DANVILLE CA 94526 196162009 536 EL PINTADO JACKSON LARRY S & KAREN ROBERT 536 EL PINTADO DANVILLE CA 94526 196162011 546 EL PINTADO DOLIVO GEORGE III 546 EL PINTADO DANVILLE CA 94526 196162012 540 EL PINTADO ALVAREZ ANTONIO & ALICE TRE 540 EL PINTADO DANVILLE CA 94526 196402001 688 DOLPHIN DR WATKINS DANIEL & BREANNA TRE 688 DOLPHIN DR DANVILLE CA 94526 196402002 485 FULTON CT DIETRICH JACOB A & NICOLE 485 FULTON CT DANVILLE CA 94526 196402003 477 FULTON CT MEYERS EDWARD J TRE 477 FULTON CT DANVILLE CA 94526 196411001 687 DOLPHIN DR GROTE STEVEN & KAREN J TRE 687 DOLPHIN DR DANVILLE CA 94526 196411002 515 FULTON WAY COOMBS DAVID F & LINN K TRE 515 FULTON WAY DANVILLE CA 94526 196411003 529 FULTON WAY LOFY JOHN LOUIS JR & BROOKE E 529 FULTON WAY DANVILLE CA 94526 196412004 514 FULTON WAY TEDLOCK MARTY & KATHLEEN TRE 514 FULTON WAY DANVILLE CA 94526 196421012 63 CUMBERLAND CT BARI ANTHONY ROBERT TRE 63 CUMBERLAND CT DANVILLE CA 94526 196421013 51 CUMBERLAND CT KINNAMAN JERRY JR TRE 51 CUMBERLAND CT DANVILLE CA 94526 196430001 504 NUGGET CT MCGRATH PATRICK H TRE 504 NUGGET CT DANVILLE CA 94526 196430002 510 NUGGET CT ORTH RITA MARIE TRE 510 NUGGET CT DANVILLE CA 94526 196430003 520 NUGGET CT COPELAN CLINTON W TRE 520 NUGGET CT DANVILLE CA 94526 196430004 530 NUGGET CT MORTON SELDON E & IRENE F 530 NUGGET CT DANVILLE CA 94526 196430005 529 NUGGET CT BOETES EVELYN 529 NUGGET CT DANVILLE CA 94526 196430006 519 NUGGET CT DUKE DAVID L & DOROTHEA TRE 519 NUGGET CT DANVILLE CA 94526 196430007 507 NUGGET CT HOU YENTAO 507 NUGGET CT DANVILLE CA 94526 196430008 503 NUGGET CT WONG STEVEN S L & TERESA W 503 NUGGET CT DANVILLE CA 94526 196430011 496 EL PINTADO HANSON JAMES V & MARIANNE TRE 496 EL PINTADO DANVILLE CA 94526 196430012 498 EL PINTADO SIDORE STEVEN V & BRIGITTE TRE 498 EL PINTADO DANVILLE CA 94526 196430014 494 EL PINTADO KAHLIL FADY A 494 EL PINTADO DANVILLE CA 94526 196430017 468 EL PINTADO GUBIN MAXIM & SVETLANA TRE 468 EL PINTADO DANVILLE CA 94526 196430018 472 EL PINTADO ANTOUN TARABAY H & BONNIE R 472 EL PINTADO DANVILLE CA 94526 196430019 464 EL PINTADO CAMBRA JEFFERY & JODY 464 EL PINTADO DANVILLE CA 94526 196430023 476 EL PINTADO RD MARSH MICHAEL & SARAH 476 EL PINTADO RD DANVILLE CA 94526 196430026 482 EL PINTADO RD FANUCCHI MARY TRE 482 EL PINTADO RD DANVILLE CA 94526 196430027 480 EL PINTADO RD MULFORD DAVID W TRE 480 EL PINTADO RD DANVILLE CA 94526 196430028 478 EL PINTADO RD MORGAN KIM I TRE 478 EL PINTADO RD DANVILLE CA 94526 196430029 484 EL PINTADO RD SHI ANGELYN XINQI 484 EL PINTADO RD DANVILLE CA 94526 200010011 543 EL PINTADO BENAROYA YANIV & YAEL TRE 543 EL PINTADO DANVILLE CA 94526 200010017 551 EL PINTADO KOCHER JEFFREY F & JUDITH TRE 551 EL PINTADO DANVILLE CA 94526 200010018 549 EL PINTADO SERDUKE FRANKLIN & LYNDA TRE 549 EL PINTADO DANVILLE CA 94526 200010020 545 EL PINTADO RASHOFF CESAR TRE 545 EL PINTADO DANVILLE CA 94526 200010021 547 EL PINTADO NEACH KEVIN & SHANNON 547 EL PINTADO DANVILLE CA 94526 200010024 TOYON TER GAGEN WILLIAM E JR & M TRE 22 TOYON TERR DANVILLE CA 94526 200010026 555 EL PINTADO RD GOLDBERG ANDREW & NICOLE D TRE 555 EL PINTADO RD DANVILLE CA 94526 200010027 B 553 EL PINTADO STAUBER TODD TRE 553 EL PINTADO B DANVILLE CA 94526 200010029 30 TOYON TER RESSA MARK & SHARON 30 TOYON TER DANVILLE CA 94526 200030004 422 EL RIO PERINO KEN & BETH 422 EL RIO DANVILLE CA 94526 72737475767778 7980 818283 A B C D E F 200030012 541 EL PINTADO ARMERDING JOHNATHAN C TRE 541 EL PINTADO DANVILLE CA 94526 200030015 404 EL RIO BARBER RONALD L & CHARESA TRE 250 DITTMER RD FAIRFIELD CA 94534 200030019 511 EL PINTADO DEMARINIS FRANCO J & ELIZABETH 511 EL PINTADO DANVILLE CA 94526 200030020 509 EL PINTADO MARGOLIS STEPHEN B TRE 509 EL PINTADO DANVILLE CA 94526 200030021 521 EL PINTADO SALTY DOG INVESTMENTS LLC 543 EL PINTADO RD DANVILLE CA 94526 200030023 428 EL RIO MALVRE OLAVI & MAILI TRE 428 EL RIO DANVILLE CA 94526 200030036 468 EL RIO BARABI NASSRIN TRE 468 EL RIO DANVILLE CA 94526 200030038 436 EL RIO GIOVACCHINI STEFANO TRE 436 EL RIO DANVILLE CA 94526 200040001 415 EL RIO WELLER KRISTINE L 415 EL RIO DANVILLE CA 94526 200040002 425 EL RIO ESMAIL KARIM S & FEMIDA H TRE 425 EL RIO DANVILLE CA 94526 200230007 557 EL PINTADO RD CUNNINGHAM JOSEPH & KELLEY TRE 557 EL PINTADO RD DANVILLE CA 94526 200230009 45 EL PINTADO PL LARSON ERIK & BARBARA TRE 45 EL PINTADO PL DANVILLE CA 94526 “Small Town Atmosphere Outstanding Quality of Life” 500 L A G O N D A W A Y , D A N V I L L E , C A L I F O R N I A 9 4 5 2 6 Administration Building Engineering & Planning Transportation Maintenance Police Parks and Recreation (925) 314-3388 (925) 314-3330 (925) 314-3310 (925) 314-3310 (925) 314-3450 (925) 314-3410 (925) 314-3400 APPEALABLE ACTION LETTER June 7, 2023 Planning Application: LUP23-0019 – 540 El Pintado Road Project Description: Land Use Permit request to allow for the construction of a 6’ high fence to be built bordering a private access easement where a 5’ setback is required for a fence that is taller than 3.5 feet. This fence would not utilize a 5’ setback but would be installed outside of the private access easement and would replace a previous 6’ tall non- conforming fence. Project Location/APN: 540 El Pintado Road /APN: 196-162-012 Applicant/Owner: Antonio and Alice Alvarez 540 El Pintado Road, Danville, CA 94526 Dear Applicant and Owner: The above referenced project was acted upon on June 7, 2023, as an Administrative Action and was approved subject to conditions. Findings of Approval and Conditions of Approval are attached. This action becomes final on June 20, 2023, unless appealed in accordance with Section 32-4.7 of the Municipal Code. If you choose to appeal this decision, an appeal letter must be received along with the requisite appeal fee prior to 5:00 p.m. on June 19, 2023, at the Town Offices, 500 La Gonda Way, Danville, CA 94526. Questions regarding this matter may be directed to Riley Anderson-Barrett, Associate Planner, at randersonbarrett@danvillle.ca.gov or (925) 314-3314 at your convenience. Sincerely, David T. Crompton Chief of Planning ATTACHMENT C LUP23-0019 – 540 El Pintado Road June 7, 2023 Page 2 FINDINGS OF APPROVAL 1.The proposed location runs along the edge of a private access easement which only serves one property, 546 El Pintado, directly to the rear of 540 El Pintado Road. The height of the proposed fence matches the previous fence which existed on this property prior to March of 2023. 2. The construction of the proposed fence will not encourage marginal development within the neighborhood, as regulated through this approval. 3.The land use will not adversely affect the preservation of property values and the protection of the tax base within the Town. 4.The land use will not be detrimental to the health, safety, and general welfare of the Town. 5.The land use will not adversely affect the orderly development of property within the Town’s R-40 zoning district. 6.The land use will not adversely affect the policy and goals as set by the 2030 General Plan. 7.The land use will not create a nuisance and/or enforcement problem within the neighborhood or community, as regulated through this approval. CONDITIONS OF APPROVAL 1.This approval is for the construction of a 6’ fence located at the edge of a private access easement running through 540 El Pintado Road. Activities authorized through this land use approval shall be substantially consistent with the applicant’s project narrative received by the Planning Division on May 30, 2023. 2.Any expansion or modification of the use shall be subject to review and approval by the Planning Division under a separate Land Use Permit application. 3.Personnel from the Danville Planning and Building Division have the right, under the terms of this land use permit, to make on-site inspections to assure compliance with these conditions of approval. 4. At any time during the effectiveness of this approval, the approval shall be revocable for cause in accordance with sections 32-4.15 through 32-4.19 of the Danville Municipal Code, including failure to comply with these conditions of approval if the applicant has caused or permitted any public nuisance in connection with the use. LUP23-0019 – 540 El Pintado Road June 7, 2023 Page 3 5.Prior to construction, evidence shall be provided to the Town verifying that the proposed fence will not be located within the access easement. 350’ Notification Map LOGAN MAYER LLP 100 PINE STREET SUITE 1250 SAN FRANCISCO, CA 94111 Tel: 415/738.0758 Fax: 415/376.0956 _______ WILLIAM A. LOGAN, JR. wlogan@loganmayerllp.com Direct: (415) 738-0764 June 16, 2023 VIA HAND DELIVERY AND EMAIL City of Danville Attn: Joe Calabrigo, Town Manager Attn: David T. Crompton, Chief of Planning 500 La Gonda Way Danville, CA 94526 Re: Appeal of June 7, 2023, Administrative Decision on Planning Application LUP23-0019 540 El Pintado Road Project Description: Land Use Permit request to allow for the construction of a 6’ high fence to be built bordering a private access easement where a 5’ setback is required for a fence that is taller than 3.5 feet. This fence would not utilize a 5’ setback but would be installed outside of the private access easement and would replace a previous 6’ tall non-conforming fence. Project Location/APN: 540 El Pintado Road / APN: 196-162-012 Applicant/Owner: Antonio and Alice Alvarez 540 El Pintado Road Danville, CA 94526 Dear Messrs. Calabrigo and Crompton: We are legal counsel to Mr. and Mrs. George D’Olivo, owners of the residential property at 546 El Pintado, Danville (“D’Olivo Property”). The D’Olivo Property is located immediately behind the residence at 540 El Pintado Road, Danville (“Alvarez Property”). On behalf of Mr. ATTACHMENT D LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -2- and Mrs. D’Olivo, and pursuant to Danville Municipal Code section 32-4., we submit this appeal of the above-referenced June 7, 2023, Administrative Decision (hereinafter, the “Administrative Decision”) approving Planning Application No. LUP23-0019 for the construction of a new but admittedly non-conforming fence on the Alvarez Property. As further explained below, the Chief of Planning exceeded his authority under Danville Municipal Code section 32-1.6, subdivision (b), in approving the nonconforming fence. Moreover, to the extent that the Administrative Decision can reasonably be interpreted as permitting the construction of the proposed nonconforming fence as an extension of an existing but apparently conforming fence, the Administrative Decision authorizes a violation of Danville Municipal Code section 32-1.15, subdivision (a), and a related violation of Danville Municipal Code section 32-22.12, subdivision (b). These latter violations create a direct and immediate threat of property damage and serious personal injury to Mr. and Mrs. D’Olivo and others who must utilize the D’Olivo easement to access the D’Olivo Property. A. The Relative Locations of the Alvarez Property and the D’Olivo Property. The following depicts the relative locations of the Alvarez Property and the D’Olivo Property, as well as the easement over the Alvarez Property that is the sole means available to LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -3- Mr. and Mrs. D’Olivo, as well as their guests, delivery couriers and emergency personnel, to access their residence: LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -4- B. The Existing Fence on the Alvarez Property. As depicted in the photo below, the Alvarez Property at present has an apparently conforming 3.5-foot fence that roughly boarders along the boundary of the D’Olivo easement. LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -5- This apparently conforming fence bordering the D’Olivo easement was constructed in late March 2023, in place of an older, nonconforming fence.1 However, there is one notable and unique feature of the existing fence: it has a large two door gate about ten feet below the D’Olivo Property that is intended for vehicle ingress and egress directly from the D’Olivo easement to the backyard of the Alvarez Property. C. The Chief of Planning Exceeded His Authority in Approving the Construction of a Nonconforming Fence. As the Administrative Decision acknowledges, Danville Municipal Code section 32- 22.11 provides, without exception, that a fence bordering a private access easement cannot exceed 3.5 feet in height. Nonetheless, the Administrative Decision purports to permit the Alvarez Property owner to “replace a previous 6’ foot tall non-conforming fence.” Although the Administrative Decision does not cite any authority, it appears to rely upon Danville Municipal Code section 32-1.6, subdivision (b), which permits the rebuilding of a “building or structure constituting a nonconforming use”. However, section 32-1.6 applies only where such building or structure “constituting a nonconforming use is destroyed or damaged by fire, explosion, act of God or public enemy, or other accident or catastrophe ….” None of those limited circumstances apply here. Rather, the Alvarez Property owner demolished the prior nonconforming fence voluntarily when he replaced it with an apparently conforming fence. Moreover, the Alvarez Property owner reportedly did so because he wanted a new fence that included a vehicular access gate directly from the D’Olivo easement to his backyard. 1 The prior fence was nonconforming because it was six feet high and, as acknowledged in the Administrative Decision, it bordered “a private access easement where a 5-foot setback is required for a fence that is taller than 3.5 feet.” See Danville Municipal Code, § 32-22-11; see also March 27, 2023, Email from Ms. Anderson-Barrett enclosed herewith. LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -6- In addition to the foregoing, the authority granted under section 32-1.6 is limited to a “building” or a “structure”, neither of which includes a fence.2 Moreover, as noted above, the prior nonconforming fence has already been demolished and replaced with an apparently conforming fence that is 3.5 feet high. It would subvert the fundamental purpose and intent of the Danville Municipal Code to now permit the Alvarez Property owner to replace a conforming fence with a nonconforming fence. Indeed, our research reveals nothing in the Danville Municipal Code authorizing a departure from the clear mandate of section 22.11 requiring that any new fence bordering a private access easement either be limited to 3.5 feet in height, or that it meet the 5-foot set back requirement. D. The Chief of Planning’s Administrative Decision Also Permits a Violation of Danville Municipal Code section 32-1.15 and Creates an Unacceptable Safety Hazard to Mr. and Mrs. D’Olivo and Their Guests. As noted above, the existing 3.5-foot fence bordering the D’Olivo easement has a large two door gate about ten feet below the D’Olivo Property that is intended for vehicle ingress and egress directly from the D’Olivo easement to the backyard of the Alvarez Property. No such 2 According to Danville Municipal Code section 32-2.3, a building is defined as a structure “intended for the shelter, housing, or enclosure of persons, animals, or property”, and the definition of a structure specifically excludes a fence of six (6) feet or less. LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -7- gate existed on old nonconforming fence that the Alvarez Property owner voluntarily demolished earlier this year: LOGAN MAYER LLP Joe Calabrigo, Town Manager David T. Crompton, Chief of Planning June 16, 2023 Page -8- If the Administrative Decision can be interpreted to permit the Alvarez Property owner to build a new 6-foot fence that also includes a vehicle ingress and egress access gate directly from the D’Olivo easement to the backyard of the Alvarez Property, the Administrative Decision will have authorized a direct violation of Danville Municipal Code section 32-1.15, subdivision (a). This is because the addition of a gate for vehicular ingress and egress will create an intersection at the D’Olivo easement, and the proposed six-foot fence would therefore be a serious obvious obstruction of visibility for both the vehicles traveling up and down the D’Olivo easement, as well as vehicles exiting the Alvarez Property. The immediate hazard to persons and property is self-evident and for this additional reason the Administrative Decision should be reversed and the Land Use Permit Application denied. Respectfully Submitted, William A. Logan, Jr. cc: Riley Anderson-Barrett, Associate Planner (via email) 1 Subject:FW: [CAUTION EXTERNAL] 546 EL PINTADO - Fences Attachments:Assessor's Map.pdf; Fence Standards Handout.pdf ‐‐‐‐‐Forwarded Message‐‐‐‐‐ From: Riley Anderson‐Barrett <randersonbarrett@danville.ca.gov> Sent: Mar 27, 2023 2:35 PM To: llggco@earthlink.net <llggco@earthlink.net> Subject: 546 EL PINTADO ‐ Fences Hi Lisa, I have attached an assessor’s map with the sides and fronts labeled. Secondary fronts are measured from the edge of the access easement running the entire length of the easement. The fence as it stands is legal non‐conforming and is grandfathered in. If it were to be rebuilt, it would lose its grandfathered in status and would need to comply with our current fence standards. Other than fence standards, this is a civil matter and there isn’t a lot the Town can do to enforce how the easement is used. You may want to check your title report to see if it says anything about restricted access or points of access regarding the easement. You have rights to use your access easement but I do not believe we have anything preventing him from using the access easement unless it is stated on the title report. If your concern about safety remains and he chooses to access his yard from this easement, perhaps you can install mirrors along the fence so that there is better visibility. I do not believe any of our inspectors came out to the property. For review of fences, it would usually be a staff member from the Planning Division, and we have not been out to the site. Someone from Building or Code Enforcement would come out if this were a building permit or code enforcement issue but there is not currently a permit or code case opened on this property. I would need him to confirm the name of the staff member who came out to the property. Regardless, the fence as it stands is allowed but would not be allowed if it were rebuilt as it does not meet current standards. Here is our fence ordinance: https://codelibrary.amlegal.com/codes/danvilleca/latest/danville_ca/0‐0‐0‐16443 Best, Riley Anderson‐Barrett Associate Planner Town of Danville | 500 La Gonda Way | Danville, CA 94526 (925) 314‐3314 randersonbarrett@danville.ca.gov | www.danville.ca.gov #LiveLocallyDanville 2 FENCE STANDARDS PLANNING Updated: January 11, 2022 SETBACKS Setbacks will be measured to the location of fence placement from the edge of the adjacent right-of-way or vehicular access easement. Landscaping shall be installed and maintained along the exterior face of secondary front yard fences that have a setback that is less than is required for the primary residence. For Fences: Location Setback Primary Front Yard Equal to the setback for the primary structure (listed on chart below) Secondary Front Yard (Corner lots) Minimum 5 feet Rear or Side Yard none For the Primary Residence: Primary front yard setbacks for fences are equal to the setbacks for the primary structure on the property. Zoning District R-6 R-7 R-10 R-12 R-15 R-20 R-40 R-65 R-100 Primary Front Yard Setback 20 feet 20 feet 20 feet 20 feet 20 feet 25 feet 25 feet 25 feet 30 feet HEIGHT Location Within Setback Outside of Setback Primary Front Yard 3.5 feet 6 feet Secondary Front Yard 3.5 feet 6 feet Rear or Side Yard 6 feet, 7 feet with top 1 ft of open lattice N/A Within Sight Distance Triangle 2.5 feet above the curb grade, or 3 ft above the pavement surface at the outside edge of pavement adjoining the premises * N/A *An exception for vegetation in the site distance triangle is allowed for trees with limbs and canopies which maintain a 7 foot vertical clearance from the sidewalk or roadway. For shared property line fences which are placed on top, or within 2 feet of the top of, a retaining wall, the height of the fence shall be determined by averaging the height of the 2 sides of the fence, inclusive of the retaining wall. On the side in which the retaining wall is visible, the retaining wall shall not exceed 3 feet and the fence shall not exceed 4'6", for a total combined fence and retaining wall height that shall not exceed 7'6". RETAINING WALLS The height limit for retaining walls is 6 feet. For sloped areas where multiple retaining walls are proposed, the retaining walls shall maintain a minimum separation width equal to the height of tallest adjacent retaining wall. The ground area between the retaining walls may have a maximum slope of 3:1. Installation and maintenance of landscaping in the ground area between retaining walls is required for retaining walls of any height in which building permits are required. Retaining walls required for structural or geotechnical reasons, or for public capital improvements, are exempt from the 6 foot height restriction, subject to determination by the Town. SIGHT DISTANCE TRIANGLE The Sight Distance Triangle only applies to corner lots. The boundaries of a sight distance triangle are formed by drawing lines from the point of intersection of a lot’s street corner property lines to points twenty- five feet along the two property lines and then connecting the two points with a straight line. If there is public right-of-way is in front of a sight distance triangle, the property owners are responsible for keeping the sight distance triangle clear from obstruction. MATERIALS Installation of the following types of fences are prohibited unless specifically approved by the Planning Division for animal control, special security needs, or as required by city, state, or federal law or regulation: barbed wire, razor, concertina wire, electrified fence, chain link fencing when visible from public areas and/or public rights-of-way, temporary fencing such as plastic or wire mesh fencing, and barricades and/or panel-system fences, except to control access to construction sites, for use associated with Town-sponsored events, and/or in conjunction with operation of temporary Town-approved uses. ATTACHMENT E AoeOCy|OdeX e qt— DocumentNumber City of DANVI LLF County of LUN|" UU0|California Brief Legal Description CORNER TYPE COORDINATES (Optional) N, E. Government corner [I Control Elevation Meander pmpody Units Metric U.S.Survey Foot Rancho K—1 Other Horizontal Datum Zone Epoch Date Date of Survey {)|| Vertical Datum Complies with Public Resources Code @§88O1'881Q Complies with Public Resources Code §§8890-8902 8773 Other: rz-71 Established Rebuilt Corner/ Left as found 2s] 1:1 Li Pre -Construction Monument: Found and tagged Ej Reestablished Referenced Post -Construction Narrative of corner identified and monument as found, set, reset, replaced, or removed: Z see sheet #2for daoohpUon(y): This Corner Record was prepared bymeorunder mydirection inconformance with the Professional Signed 5-. 9n23 This Corner Record was received 2\L and examined and filed Signed .*ap++=.mo. '743% Title County Surveyor's Comment Bpsmoeoe Page /me ATTACHMENT F Number A lib CQl LiDocumentInc .Index FD. 1" I.P. (21-LSM-38) PARCEL "A" (36—LSM-4) OPEN & BENT (180-CR-2) N75020'44"W 0.35' (S89°41'53"E)R1 RCE'278 MBAR Ift N88036'09"W 148.11' 180-CR-2) 20' WIDE ROADWAY & U11LI11ES EASEMENT N88036'09"W (21-LSM-38)(4496 O.R. 284) 10.20° - N89°41'53"W)R1 N89°42'39"W)R2 Ce FwE PARCEL 1 0 o N PARCEL 2 1 Lnz 21-LSM 38 BEARINGS ROTATED CW 1'05'44" TO MATCH COMMON UNE WITH SURD. 3277 S89°41'53"E)R1 N88036'09"W 172.56' 26.05' N88036'09"W N88036'09"W 1 96.61' 102.00' n LOT 16 °1-1 SUBD. 3277 M En 118—M-15) N LOT 15Ln SUBD. 3277Z N - LEGEND (118—M-15) N Q FOUND STREET MONUMENT (118-M-15) z FOUND SURVEY POINT (AS NOTED) 0 SET 112" REBAR & CAP - LS 9583 R1 RECORD INFORMATION per 21-LSM-38 R2 RECORD INFORMATION per 36-LSM-4 SCALE: 1" = 40' N88033'24"W N88033'24"W 72.63' 102.00' IN 199 06' _ N88033'24"W 371.70' MON-MON M IMN DOLPHIN z (56' WIDE) JOB 223 12 APN: 19G- I G2-01 2 BPELSG-2016 page 2 of 2 ATTACHMENT G ATTACHMENT H ATTACHMENT I June 8, 2017 George and Lisa Dolivo 546 El Pintado Rd Danville CA, 94526 RE: Easement on 540 El Pintado Rd, Danville CA 94526 George and Lisa Dolivo, Let me begin by saying that Alice and I regret where our relationship as neighbors currently stands. In today's age you hope for one of two things with your neighbors--you hope either to have a good relationship where you can count on each other to help each other out in time of need or at the minimum not to be in conflict with them. I regret that there is conflict over the easement between us. With that said, let me be honest with you and tell you why we did not say anything about the plum trees, lights, and irrigation system you planted/installed on the north side of the easement next to the native oak trees about two years ago. It is the same reason why we didn't say anything about you putting your garbage cans on the south side of the easement next to the pine trees before we had them cut down. As I, Antonio, mentioned to George, this is our first time buying a home, and we like most first time home buyers didn't really know a whole lot about easements. Until about two years ago, neither my wife nor myself knew what you were entitled to do on the easement (it was then that I began to understand why some states require a buyer to hire an attorney when buying real estate property). The description of the easement and its intended use is clearly written on our deed and title policy, but neither my wife nor I are lawyers, and it took us a while to understand what it meant. We didn't approach you about the trash cans because frankly when the pine trees were there they did not bother us, as we could not see them and they were not in plain view of the public. Then when you planted the trees, installed the lights and irrigation system, we didn't feel like they were interfering with our access or damaging our land. We also didn't know that you could not do that without our permission. The lights we thought made sense to light the driveway on the easement and also for security purposes since you use to park your trucks and equipment on the easement. Now that we know better, parking cars on ATTACHMENT J the easement is really an encumbrance on the easement and really a safety issue, mostly for you in case of fire affecting your property. We’re very glad that you're no longer doing this and is one fewer issue to resolve. But to go back to the trash cans. Should we have giving you a courtesy notice about cutting down the pines since you had your trash cans near them? Probably as your neighbor we should have let you know, so that you could have found another place for them. However, because the pine trees were outside of the easement we didn't feel the need to let you know. I also didn't have your telephone numbers until recently and unless I see you going in or out, it is extremely difficult to get a hold of you. We regards to the trees, lights, and irrigation system, if we had understood the legal description of the easement and the implications of not saying anything, we probably would have asked you not to plant the trees or installed anything. But now that we are aware, we're letting you know that we're not okay with you not asking for our permission. It probably would be best to transplant the trees in your property and take down the light and irrigation system since we don't want the oak trees' root system to be damaged. We were trying to be respectful neighbors by respecting your need to use the easement to get between your property and the road. However, we began to get concern about you being under the misunderstanding that the easement was your property when Lisa stopped to talk to our gardener at the time, (maybe a year and a half ago) and told him to clean the trimmings on the easement side really well because "that side was on our property"—that is what he said to me. By then I was already aware of the legal description on our deed of the easement and so I told Jose (our gardener at the time) that piece of property was an easement and that it belong to us and not to be concerned. Then, I really became concerned when I hired a surveyor to mark the south side of the easement so I could carry out the project to renovate the piece of land that borders the south side of the easement. Once again, I was told by one of the surveyors that he was told by Lisa to "get the hell out of her property or she would call the police". They only told me about it just before completing the job. What I couldn't understand is why neither of you were coming to discuss this misunderstanding with us. It is the same thing that baffles me about you not asking permission to plant trees, install lights, and put an irrigation system. It wasn't until about two months ago when I was waiting for a contractor to give an estimate on the front yard project with my two year-old in my arms, and Lisa stopped by to ask me what I was doing along the easement line and she proceeded to ask me if it would be okay to run a 3 ft fence from the fence that encloses the backyard to El Pintado Rd, that I understood that she was really under the impression that the easement was your property. So I said to her " you do know that the easement is part of our property, right?" She then said something along the lines of, "we're going to have an issue, aren't we?" She also asked me if I knew the definition of a single use easement, which I knew it doesn't match the description of the easement on our title, which clearly states that the easement is a nonexclusive easement. She also mentioned that ownership was based on historical use, which to me it sounded like you were trying to take over the property. Of course, it didn't help that Lisa brought up the fact that her father is a lawyer, and my two year-old got freaked out by our argument and started crying. Luckily my wife had just gotten back and was able to take her from me. To me Lisa telling me she had a father who was a lawyer sounded like someone trying to intimidate me and threatening to sue me. Lisa then said that the backyard fence between the two properties needed to be replaced and almost demanding that we pay for half of it. After seeing my daughter cry and feeling like Lisa had just threatened to sue me over access to my own land, land that we pay taxes on, I was not exactly in the right frame of mind to negotiate splitting the cost of the backyard fence. So I told her just to build another fence on your side and leave the old one where it is. She basically started to tell me that she was going to have her crew tear the backyard fence down and the fence along the easement that encloses our backyard down. I basically implied to her that if she did that and something happened to our kids because of work we didn't agree to have done on our property then she would really be in trouble with the law. She said that she could have it all done in a single day. So you can see why I felt things didn't go so well and I had to contact the Center for Human Development and ask for a conflict resolution mediation session. I'm still hopeful that you'll both agree to meet Alice and me to mediate some of the unresolved issues over the use of the easement. I'm still hopeful that we can live next to each other and have access to the easement in a harmonious fashion. As you, George, said to me the other day, "life is too short" to live under the constant emotional stress of not trusting your neighbor. My wife and I want to be good neighbors to you and we can probably work out something so we both have access to the easement without getting in each other's way. Because I'm fully committed to working with you as your neighbor I'm perfectly willing to split the cost of building a new fence that is between our backyard and your yard. To Lisa's credit, she did ask to have us split the cost in the summer of 2013, shortly after we moved in. However, at the time we had lots of expenses and the fence was not at the top of our list as a priority. I'm now in full agreement that it is falling apart and should be replaced. As I have discussed we George, we can get an estimate from A & J fencing since you have worked with them in the past and you know their product well and their reputation. The fence that encloses our backyard along the south side of the easement is ours, and therefore, our responsibility to replace. It will be replaced soon, as I have mentioned to George, I will ask the contractor to make the new fence so that at no point it encumbers on the 20 ft of easement stated on our deed meant to provide you with access from your property to and from El Pintado Rd. It is also only fair that if we start using the paved driveway that is currently on the easement that we would share the cost with you, proportional to our use of the easement. We can certainly have a discussion when the right time comes to do this. Lastly, I would like to encourage you to agree to participate in a mediation session, with us, as you may be able to more freely express what it is that you want from us and we can do the same through a neutral party. Also, feel free to write us a letter if you feel this better helps you address your concerns and to tell us what is it that you want from the easement. It may be that we may come to a mutual agreement easier than we think. Sincerely, Antonio & Alice Alvarez 1 HARPER & ARMSTRONG, LLP 1634 Telegraph Avenue, #3 • Oakland, CA 94612 Ph: (510) 420-8455 • Fax: (510) 858-5953 • shona.armstrong@harperarmstrong.com BY E-MAIL May 30, 2023 Rob Ewing City Attorney 500 La Gonda Way Danville, CA 94526 925-314-3388 rewing@danville.ca.gov David Crompton Chief Planner 500 La Gonda Way Danville, CA 94526 925-314-3349 dcrompton@danville.ca.gov Re: 546 El Pintado Road (D’Olivos) and 540 El Pintado Road (Alvarez) (1) Rear Yard Fence vs. Secondary Frontage Fence Height rules (2) Speed Bump inspection and determination Dear Mr. Ewing and Mr. Crompton: This letter follows up on email and phone conversations with City planning department staff regarding fence installation at 540 El Pintado on approximately March 27-30, 2023. We received confusing and contradictory messages about what rules would apply in our situation, which caused my clients, Alice and Antonio Alvarez, to have to change their plans mid-project in an abundance of caution and expend several thousand dollars on a fence that is only 3.5 feet high. The Danville Municipal Code is ambiguous when applied to my clients’ circumstances, and the guidance we received was contradictory. The Alvarezes goal now is to either clarify that they are allowed to increase the height of their fence to six feet or to apply for the necessary permission to increase the height of their fence to 6 feet. ATTACHMENT K 2 1.History and Status The Alvarezes own and occupy 540 El Pintado Road in Danville (Parcel 1 below). 546 El Pintado Road is a property uphill from the Alvarezes (Parcel 2 below). As shown below, a 20-foot-wide driveway easement runs over the north end of my clients’ property: Since the Alvarezes have become aware of these properties, a 6-foot fence has enclosed the rear side yard at 540 El Pintado along the boundary that runs along the edge of the easement. Along the front side yard, by contrast, from the Alvarezes’ house to the road at El Pintado, there has been no fence. Based on a recent survey, the Alvarezes proposed to replace their rear yard fence with a new 6-foot-high fence that would correct the position in a few places where their fence extended a little bit into the easement. The corrections would make sure the entire 20-foot easement was clear of obstacles. The fence would continue to protect the Alvarezes rear yard swimming pool and contain their dogs. Based on the City’s ordinances allowing construction of six-foot fences to enclose “Rear Yards” without any need for a permit, the existence of a long-standing six-foot fence enclosing their Rear Yard, and the advice of planning staff, the Alvarezes concluded no permit would be necessary, and they hired a fence builder. On the day construction began, the neighbors at 540 El Pintado objected that the fence along the easement would need to be restricted to 3.5 feet or set back by five feet based on 3 Danville Municipal Code section 32-22.11. Their presumption appears to be that the fence at issue is a “Secondary Front Yard Fence. We have two questions and a contingent request: 1.Is the fence at issue a Rear Yard fence on a corner lot or a Secondary Front Yard Fence? (And how does the City decide which definition to apply?) 2.Is it possible to repair/replace a nonconforming fence without requesting special permission? If the answer to (1) is “the fence is necessarily a Secondary Front Yard Fence,” and the answer to (2) is “no,” then we would like to request permission to replace the pre-existing 6-foot- high rear fence at 540 El Pintado Road with a re-built 6-foot fence. 2.Should the Alvarezes’ Rear Yard fence on a corner lot be subject to Secondary Front Yard fence restrictions? A. City Ordinance Definitions are ambiguous. The overlap between the definition of “Rear Yard” and the definition of “Secondary Front Yard” has created ambiguity. The boundary the Alvarezes seek to fence meets the technical definition of “Rear Yard”. The Planning staff is nevertheless asserting that the entirety of the Alvarez yard is “Secondary Front Yard.” Pursuant to Danville Municipal Code section 32-2.3, the Alvarezes’ fence runs along a boundary that is arguably both a secondary frontage AND a Rear yard: Frontage, secondary or secondary frontage or front shall generally mean the side of a lot which abuts two (2) or more roads, streets, highways, right-of- ways, or vehicular access easements which is not determined to be the primary frontage as defined herein. Yard; rear or Rear yard shall mean an open area extending across the rear of a lot, measured from the rear line toward the front to the nearest line of any building on the lot. Yard; side or Side yard shall mean an open area between each line of a lot and the nearest line of any building on the lot and extending from the front line to the rear line of the lot. è The Alvarezes’ fence runs along the northern boundary of their property from their house up to the rear boundary of their lot – i.e. along the boundary of their “Rear Yard.” If the boundary at issue is defined as “Rear yard,” the 6 foot fence can be replaced without issue. If the entire boundary is defined as “Secondary Frontage,” then it could be considered nonconforming. B. An existing nonconforming use/structure may be replaced or repaired within six months. 4 Even if the Alvarezes’ 6-foot fence was considered nonconforming, they should have been allowed to replace it with a new fence. The Danville Municipal Code section 32-1.6 provides that: “Any existing, nonconforming use of land which is interrupted by any cause may lawfully be resumed within six months of the interruption.” Section 32-22.1 (in the chapter regulating single family residential districts) defines “Nonconforming structure” but then defines “Nonconforming use” as “a use of land and/or a structure (either conforming or nonconforming) that was legally established and maintained that does not conform to this chapter for the district in which it is situated.” The Municipal Code does not appear to contain any other reference to “nonconforming structure” and, instead, appears to regulate “nonconforming structures” as “nonconforming uses.” The City may thus permit the replacement of the existing fence without requiring any Land Use Permit. Please confirm in writing that the Alvarezes may reconstruct their 6-foot fence pursuant to Danville Municipal Code section 32-1.6 or explain why a permit is required under the current circumstances. C. Restricting the height of the Alvarezes’ Rear Yard fence by defining it as a Secondary Front Yard Fence does not serve the purpose of the Secondary Front Yard Fence height limitation. The purpose of limiting Secondary Front Yard fences appears to be maintaining visibility for vehicles approaching corners. Imposing Secondary Front Yard fence limitations on the fence along the northern boundary of the Alvarezes’ Rear Yard does not serve this purpose. All cars approaching the Easement will have clear lines of visibility, and all cars exiting the Easement will have open views of El Pintado Road, because the Alvarezes’ front yard is completely unobstructed. The law restricting Secondary Front Yard Fences reads as follows: 32-22.11 Fencing and Retaining Walls. Fences and retaining walls do not qualify as accessory structures and are subject to their own setback and design criteria as follows: a. Front Yard Fences. The height limit for fences or hedges located within the primary front yard setback area is three and one-half (3-1/2) feet, as measured at the existing grade of the location of fence placement. For corner lots, the height limit for fences within the site distance triangle shall be further limited as specified under Section 32-22.12.a. of this chapter. b. Secondary Front Yard Fence. The height limit for secondary front yard fences is six (6) feet. Additionally, secondary front yard fences shall maintain a minimum setback of five (5) feet from the adjacent right-of-way or vehicular access easement, and landscaping shall be installed and maintained along the exterior face of the fence. The maximum height of a fence within five (5) feet of the edge of an adjacent right-of-way or vehicular access is three and one-half (3-1/2) feet. All fences must comply with the Visibility at Intersections for Corner Lots - site distance triangle requirements as defined in Section 32-22.12.a. of this chapter. 5 c. Interior Side and Rear Yard Fence. The height limit for side and rear yard shared property line fences which do not abut a public right-of-way or vehicular access easement is six (6) feet, but may be increased to seven (7) feet if the top one (1) foot is constructed with an open lattice. For shared property line fences which are placed on top, or within two (2) feet of the top of, a retaining wall, the height of the fence shall be determined by averaging the height of the two (2) sides of the fence, inclusive of the retaining wall. On the side in which the retaining wall is visible, the retaining wall shall not exceed three (3) feet and the fence shall not exceed four feet six inches (4'6"), for a total combined fence and retaining wall height that shall not exceed seven feet six inches (7'6"). When the neighbor alerted my clients to the purported height restriction on the replacement fence, we looked up the definitions of Rear Yard and Secondary Front yard and found that the Alvarezes’ fence potentially satisfies both fence-type definitions. In light of the ambiguity, we sought guidance from the Planning Department staff. D. Misleading/confusing information from Planning Department has damaged my client. To reassure ourselves that our interpretation was correct, I, on behalf of the Alvarezes, called Planning the day before his fence construction was planned. Fred Korbmacher took a look at the map, and I explained the Alvarezes’ plan to replace the existing fence with slight corrections so that it conformed to the boundary more accurately. He assured me there was no permit necessary and fence replacement was permissible. On this basis, my client proceeded with removing the existing fence. Once replacement of the fence had commenced, the neighbors complained, and I exchanged a series of emails with Riley Anderson-Barrett and Fred Korbmacher from Planning. In those emails, after construction had begun, Riley Anderson-Barrett, with Fred Korbmacher’s apparent consent, took the position that replacement of the fence is not actually permissible at all. Ms. Anderson-Barrett’s advice was that replacement of the fence constituted discontinuation of a nonconforming structure, and so the new structure would have to be 3.5 feet or have a 5-foot setback. She averred that there was no route to obtaining permission to replace the fence, because it was a nonconforming “structure” rather than a nonconforming “use.” Without conceding that the fence at issue is nonconforming, I pointed out that Ms. Anderson- Barrett’s advice was incorrect. If the fence is considered nonconforming, whether it is a nonconforming use or a nonconforming structure, section 32-1.6 and 32-22.4, clearly allows application for a use permit in a residential area. Ms. Anderson-Barrett’s focus on stymieing a very noncontroversial fence replacement flies in the face of reason. What purpose is served by the setback/height restriction she proposes to apply? Without serving any public purpose, the planning department confusion has resulted in my client expending thousands of dollars for a fence that does not protect his back yard swimming pool and thousands of dollars on legal fees in an effort just to replace an existing rear yard fence that harms nobody and complies with the law for rear yard fences. 6 3.The City Should Permit a 6-foot fence enclosing the Alvarezes’ back yard. First, the construction of a 6-foot fence to enclose a Rear Yard is a permitted use. But if the City insists on considering the 6-foot fence to be nonconforming, then Section 32-1.6 allows the Alvarezes to replace their fence without a permit. Furthermore, if the City denies that replacement is allowed under section 32-1.6, then Section 32-22.4(s) of the Danville Municipal Code permits “the modification or expansion of a non-conforming use or structure” pursuant to a Land Use Permit, and section 32-3.5 allows approval of a Land Use Permit for any use of land comparable to a conditional use. Section 32-3.5 permits the issuance of a Land Use Permit if the City can make the following findings of fact: a.The proposed land use shall not be detrimental to the health, safety and general welfare of the Town; b.The proposed land use shall not adversely affect the orderly development of property within the Town; c.The proposed land use shall not adversely affect the preservation of property values and the protection of the tax base within the Town; d.The proposed land use shall not adversely affect the policy and goals as set by the General Plan; e.The proposed land use shall not create a nuisance and/or enforcement problem within the neighborhood or community; f.The proposed land use shall not encourage marginal development within the neighborhood. For the reasons outlined above in this letter, the construction of a 6-foot fence around the Alvarezes’ Rear yard is not detrimental to the health, safety, and general welfare of the town. In fact, it advances the health, safety, and general welfare by restoring the status quo between neighbors and providing adequate protection for the Alvarezes’ Rear yard swimming pool. Restoring the fence to six feet in height will restore a pre-existing condition. As such, it will have no effect on orderly development or property values, will not adversely affect any policy or goal of the City’s General Plan, will not create any nuisance, and will not encourage any marginal development. The City should either permit the restoration and replacement of the 6-foot fence as a permissible Rear yard fence or replacement of an existing non-conforming use or grant a Land Use Permit to rebuild the fence to six feet in height. 4.Request for Speed Bump Inspection. My clients have longstanding concerns about the excessive speed at which Ms. D’Olivos drives on the easement that passes through my clients’ yard. She has not responded favorably to my clients’ written requests to modify her speed. As such, on February 9, 2023, in the face of the D’Olivos continuing refusal to slow down, the Alvarezes installed speed bumps. The specifications of the speed bumps the Alvarezes have installed state that the bumps should reduce the speed of cars passing over them to between 5 and 10 mph. The speed limit in areas 7 with high risk of pedestrian presence (such as SFO terminals) and within residential parking often impose limits of 10 mph. On a short driveway a couple of feet from a house with children, a limitation of 5 or 10 mph is not at all unreasonable. As you can see from the videos and photos at the links below, Ms. Dolivos drives with reckless disregard for the safety of children who may wander out past the Alvarezes’ fence and aggressively ignores not just both of the Alvarezes’ requests, but also the actual speed bumps. The Alvarezes have many videos such as the photos and videos below depicting Ms. Dolivos driving at dangerous speed on the driveway without regard for the safety of children. Ring #AlwaysHome ring.com https://ring.com/share/40ce7ec2-aa5d-4d6e-80cd-2cd10c4f86f4 Ring #AlwaysHome ring.com 8 It is important to us to determine the City’s position on the speed bumps. We have contacted the fire department several times by phone, by email, and by online portal requesting an inspection and decision on whether these traffic calming devices interfere with the fire department’s access. My client takes the position that the bumps’ size and span are so minimal as to have no effect on a fire truck or engine, but we will comply with whatever the fire department advises. Thus far, we have had no success in eliciting an inspection by the fire department. We request your help in obtaining an on-site inspection to determine the propriety of the speed bumps. Or perhaps the Planning Department could issue a determination on this issue. Thank you for your time and attention. Please feel free to contact me at shona.armstrong@harpermstrong.com or 510-508-5017 with any questions or concerns. We look forward to hearing from you soon. Regards, Shona Armstrong, Esq. cc: Antonio and Alice Alvarez ATTACHMENT L ATTACHMENT M