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  Agenda Item   16.    
City Council Meeting
Meeting Date: 09/21/2021  
FROM: Bill Gallardo

Subject:
Appeal of the Planning Commission’s decision to approve Administrative Hillside Development Permit No. 2021-01 and Zoning Variance No. 2021-01 to construct an approximate 2,000 square-foot, 20-foot tall, accessory structure at 6200 Carbon Canyon Road, located in the HR (Hillside Residential) Zone. 
RECOMMENDATION
Staff recommends that the City Council take the following actions:
 
1. Find the project exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA guidelines Section 15303 (Class 3, New Construction or Conversion of Small Structures); and,

2. Deny the appeal and allow the following:
A. Approve Administrative Hillside Development Permit (AHDP) No. 2021-01 to allow a detached approximate 2,000 square-foot accessory structure, which exceeds the 600 square-foot maximum for an accessory structure in the HR (Hillside Residential) Zone, based on the findings and conclusions in the attached resolution 2021-058 (Attachment A) and subject to the recommended conditions of approval (Attachment C); and,  
B. Approve Zoning Variance (ZV) No. 2021-01 to allow the approximate 20-foot tall accessory structure to exceed the 12-foot maximum height for accessory structures in the HR (Hillside Residential) Zone, based on the findings and conclusions in the attached resolution 2021-059 (Attachment B) and subject to the recommended conditions of approval (Attachment C).
BACKGROUND/DISCUSSION

Project Description
The project site is located at 6200 Carbon Canyon Road within the HR Zone. The project site is approximately 32.5 acres and comprised of four contiguous parcels (Accessor Parcel Numbers (APNs): 312-011-20, 312-011-21, 312-011-22 and 312-011-24). The site is located in a hillside area and approximately one mile away from the nearest residential structure in Olinda Village to the southwest. Exhibit No. 1 is an aerial of the existing site.


 
Exhibit No. 1 – Aerial of Project Site

Access to the site is provided via a gated driveway at Carbon Canyon Road. The approximate 0.43 mile long driveway leads to an existing two-story single family residence that is near the top of the ridge on an existing graded pad. The existing single-family residence and proposed accessory structure site are not visible from the public right-of-way. The majority of the project site is hillside area which maintains the existing natural topography, with the exception of the driveway and graded pad.
 
The Applicant is proposing the construction of an approximate 2,000 square-foot, 20-foot tall accessory structure. The proposed structure would be detached and located approximately 125-feet from the primary dwelling. The proposed structure would allow for storage of personal recreational vehicles and maintenance equipment.
 
On May 10, 2021, Andrew and Jolene Grinstead, the Applicant’s, filed a request for an AHDP and ZV to allow:
  • Construction of a detached accessory structure that exceeds the 600 square-foot threshold for accessory structures in the HR Zone; and,
  • Exceed the 12-foot height limit for accessory structures in the HR Zone.
The above-mentioned entitlements are herein referred to as the “Project.”

Project Timeline
On July 26, 2021, after publishing of the Planning Commission agenda and one day prior to the scheduled public hearing date, the Planning Division received a letter of opposition from the Endangered Habitats League (Attachment D). The letter expressed opposition to draft Condition of Approval “f” that would require any vegetation clearance onto the adjacent site to the south owned by Orange County Transportation Authority (OCTA) as mitigation. The draft Condition of Approval “f” provided in the July 27th Planning Commission Agenda Packet read as follows:
 
“The structure shall provide a defensible space of 30’ and follow defensible space requirements of proper clearance and maintenance of 100’ due to structure located in the Very High Fire Hazard Severity Zone (VHFHSZ).”
 
Prior to the public hearing for this item, on July 27, 2021, Planning staff received two additional letters of opposition (Attachment D) on the project from OCTA and U.S. Fish and Wildlife Service on the Project. Those in opposition expressed that this condition would result in an encroachment into the adjacent property to the south owned by OCTA for conservation purposes.
 
Ahead of the public hearing, Planning Division and Fire Department staff coordinated with the Applicant and concerned groups to address concerns raised on Condition of Approval “f”. As a result, staff proposed a revision to draft Condition of Approval “f”  that provided alternative language to Condition of Approval “f”. Below is the draft Condition of Approval with the revised language underlined:
 
“The structure shall provide a defensible space of 30’ and follow defensible space requirements of proper clearance and maintenance of 100’ or other alternative means as approved by the Fire Department due to structure located in the Very High Fire Hazard Severity Zone (VHFHSZ).”
 
Dan Silver (representing Endangered Habitats League) and Charlie Larwood (representing OCTA) voiced their concern with the revised language for Condition of Approval “f”. Subsequently, the Planning Commission asked questions of staff pertaining to: defensible space requirements, structure/building materials, and maintenance of hillside shrubs and weeds.
 
Following the close of the public hearing, the Planning Commission discussed changing the language in condition “a” and supporting the revised language to condition “f.” After modifying these conditions, the Planning Commission approved the Project with a 3-0 vote (Chair Schlotterbeck and Commissioner Phu recused). The Planning Commission staff report, adopted Resolution, and meeting minutes are provided as Attachment E.
 
On July 28, 2021, staff received a letter from OCTA requesting clarification on Condition of Approval “f”. Staff provided a response to the OCTA letter clarifying the conditions of approval that were modified and approved by the Planning Commission. Both the July 28 letter and staff’s response are attached as Attachment F.    
 
On August 5, 2021, staff received a subsequent letter from OCTA in regards to Condition of Approval “f”. The letter informed that the Project Applicant does not have permission to enter OCTA’s property to perform any defensible space maintenance activities” (Attachment G).
 
On August 5, 2021, Claire Schlotterbeck (Appellant), filed an appeal (Attachment H) of the Planning Commission’s decision to approve the Project. The appeal was specific to Condition “f” and states “condition F, even though amended by the Planning Commission, contains the word ‘or.’ This allows, down the road, a new Fire Marshal the flexibility to change his/her mind. OCTA bought the neighboring property as mitigation in 2011 and will not ever give access to or permission for, vegetation clearance on the Preserve.”
 
On August 10, 2021, a letter was submitted by Dan Silver with Endangered Habitats League (Attachment I) acknowledging the appeal was submitted and providing input on the direction on the Project. 

RESPONSE TO APPEAL
The appeal states “Specifically, Condition F, even though amended by the Planning Commission, contains the word ’or’. This allows, down the road, a new Fire Marshal the flexibility to change his/her mind. OCTA bought the neighboring property as mitigation in 2011 and will not ever give access to, or permission for, vegetation clearance on the Preserve. Because of the sensitive species found there, these lands are meant to be protected, not cleared. Language needs to be adopted that provides permanent assurance that no matter who owns either property in the future and no matter who the Fire Marshal is, OCTA’s lands will not be required to absorb the new project’s vegetation clearance. Without this clarity, the project applicant could be forced into non-compliance with no remedy.”
 
In response to the appeal language to condition “f”, Planning staff, Fire Department, and the City Attorney’s Office have coordinated to draft a new condition. The draft condition of approval would not require any impact for vegetation clearance onto the adjacent property owned by OCTA. Below is draft Condition of Approval “f” as included in Attachment C:
 
f. Due to the subject property’s location within a Very High Fire Hazard Severity Zone (VHFHSZ), the new accessory structure shall be constructed and maintained in accordance with all of the following requirements to the satisfaction of the Fire Department:
 
i. A defensible space of 30-feet within the subject property shall be provided for the new accessory structure;
 
ii. The new accessory structure shall be constructed of non-combustible materials;
 
iii. Automatic fire sprinklers shall be installed and kept operational on the new accessory structure.

Staff has communicated the draft Condition of Approval to the Appellant, OCTA and Endangered Habitats League for feedback. All three groups are generally supportive of the revised language in Condition “f” (Attachment K).
 
PUBLIC NOTICE AND COMMENTS
This Project was noticed in accordance with the City’s public noticing requirements.  The public hearing notice for this Project was provided to property owners within 500 feet of the Project site and published in the local paper (Attachment L).  As of the publication of this report, staff has not received comment. 
 
ENVIRONMENTAL ASSESSMENT
This Project has been assessed in accordance with the CEQA guidelines, and the environmental regulations of the City. Upon review, the Project qualifies for the following exemptions:
 
  • Class 3 Categorical Exemption (New Construction or Conversion of Small Structures), in accordance with the requirements of Section 15303 of the state CEQA guidelines. This exemption is applicable to the construction of an accessory structure including garages or carports.  The Project would qualify for this exemption as it would result in the construction of a 2,000 square foot accessory structure to the primary dwelling. The proposed accessory structure is consistent with the interpretation of a small structure pursuant to CEQA.

CONCLUSION
As discussed in this report and attachments, the Project would conform with all the requirements of the General Plan with all applicable requirements of state law, and the provisions of the City of Brea codes. Moreover, the proposed recommendation would not have an adverse effect on the public, health, safety, or general welfare. Therefore, staff recommends denial of the appeal and approval of the Project.  
RESPECTFULLY SUBMITTED:
William Gallardo, City Manager
Prepared by: Tracy Steinkruger, Community Development Director
Concurrence: Jason Killebrew, City Planner
                      Jose Barriga, Associate Planner
 
Attachments
A. City Council Draft Resolution (Administrative Hillside Development Permit)
B. City Council Draft Resolution (Zoning Variance)
C. City Council Draft Conditions of Approval
D. Letters of Opposition (July 26 & 27, 2021)
E. Planning Commission Staff Report and Meeting Minutes (July 27, 2021)
F. OCTA Letter (July 28, 2021)
G. OCTA Letter (August 5, 2021)
H. Appeal Application
I. Endangered Habitats League (August 10, 2021)
J. Project Plans
K. Letters of Support from Appellant, OCTA and Endangered Habitats League
L. Public Hearing Notice

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