As I sat in to listen and observe the City Of Davis Planning Commission meeting, the thought repeatedly ran through my mind as to exactly what I was doing here. This was after all, a design review and approval for a minor modification to a private resident on J St in Old East Davis. What possible interest would people who are not neighbors have in the approval of an addition to a home?
As the evening went on, I think the same question must have occurred to each of the seven people who sit on the Planning Commission itself, but it would have taken the form of, how exactly did this project come forward to this point. However, bear with me here, because what you are about to see is shear incompetence on the part of city staff, yet again, in allowing a project to go forward without proper vetting by the City Attorney and despite serious concerns from neighbors.
The applicant in this case proposed constructing a 1,469 square-foot, two-story rear addition to an existing one-story residence in the Old East Davis Neighborhood. The proposed addition would be substantial and more than double the size of the residence. The addition would result in a floor area ratio of 43.4%.
One of the key factors here was a large 32” diameter Chinese hackberry that is located in the rear yard. The tree constrains development. To minimize potential impacts to the tree, the addition is pushed back 12 feet from the tree and results in a proposal to reduce the north side yard setback to 1’-8” for both stories. A new front porch would also replace the existing porch and new landscaping installed. A small second-story deck would be located on the south side elevation.
In other words, the applicant claimed that in order not to kill the tree, the addition had to be a certain distance away, this forced it to almost abut the south side of the property line. Only 20 inches would separate the northern edge of the home from a fence. Now think about 20 inches for a second and how narrow that is. City ordinance requires a five foot setback for the first floor and 10 feet for the second floor. The applicant in this case is asking for 20 inches on both floors and what is essentially for all intents and purposes a 20 foot high wall to be only 20 inches from the property line.
The staff report suggests as follows:
First:
The other complaint that was registered had to do with the size of the addition. For me, the tree issue was only part of the concern here, the other was, why they had to build such a large addition to begin with.
At this point, Mike Levy, one of the planning commissioners, asked City Planning Staffer Mike Webb point blank whether Mr. Kopper's interpretation was correct that this needed to be designated an historic landscape. Mr. Webb acknowledged that Mr. Kopper was correct. And when pressed, Mr. Webb acknowledged that unless it was deemed an historic landscape, they would have to rely on Variance procedures in order to grant such a setback.
Here is where this gets interesting. Mike Webb and Eric Lee, the planning staff, argued for approval of this project. They did so without getting a legal opinion from the City Attorney as to whether this could even be designated an historic landscape. This fact was brought up by Mr. Levy at this time and several other members of the commission wondered out loud how the planning staff would go forward with such a recommendation and more importantly how this process got this far.
Amazingly, for the next two hours, the meeting would continue with a variety of members of the public coming forward. One of the neighbors openly acknowledged that the reason for the addition was retribution for Mr. Skover building the "condos" that overlooked her property--from roughly 50 feet away.
In the end, staff worked very diligently in order to rescue this project giving the planning commissioners a number of different avenues short of outright denial. Even without the issue of the historic status of the tree which was by this point in severe doubt, the planning commission in general felt that this project was too large and the lack of setback very intrusive.
You see a very rare thing occur, by a unanimous 7-0, the Planning Commission voted down the proposal but instructed the city attorney to weigh in on this issue about the determination of the historic status, as much for future interest as for determining this project.
The question on many people's mind after the decision was finally reached late into the evening, is why the city's planning staff not only pushed for approval of this project but when it became clear that the Commission was opposed to it, continued to try to wear down the Commission into making a weaker ruling, a tactic that was actually partially successful and would have been more successful were it not for the resolve of several of the commissioners including Mr. Levy who caught on immediately that there was a legal problem and that Mr. Kopper's opinion had serous merit.
For the staff to knowingly recommend approval of this project, knowing the ordinance rules as Mr. Webb appeared to acknowledge, without seeking the opinion of the City Attorney is blatant incompetence. At the very least he wasted the time of the commissioners by failing to even check to see if this could be done in the first place and in fact if he had his druthers, the planning commission would have sent it back to the City Attorney and then possibly revisit this issue in the near future. Staff should never have come up with such a recommendation without checking on its legality and whether this tree fit the definition of an historic landscape.
In fact the suggestion at one point was that the owner could simply cut down the tree. The applicant claimed that city planner Eric Lee had told her that if she did, she could face a $40,000 fine--a preposterous claim that in fact, Mr. Lee though he hedged, never disputed.
For those wondering in the end, why this issue comes before us, it is because this is yet another example of the sheer incompetence of city staff. I have never seen a proposal that staff itself recommends be voted down unanimously but that is what happened here. You have staff failing to check to see if their recommendation was legal. You have staff pushing and carrying the water for a proposal despite strong and legitimate objections from neighbors. It was not even known whether the Planning Commission had the ability to weigh in on the judgment of the historic nature of the tree and the landscape.
In the end, the question from all involved is how this got to this point. It was a question openly asked by those on the Planning Commission. It was a question wondered through out the proceedings. While for most this is a small issue, this was extremely costly to the owner of the adjacent property who had representatives there to protect his investment in his project. And you have once again, city staff, failing to do their job in a thorough and proper manner, which ended up wasting the time of the Planning Commission and those who came before the commission. Something needs to be done about this issue in the future or the city will end up setting itself up for a very serious and expensive law suit.
---Doug Paul Davis reporting
As the evening went on, I think the same question must have occurred to each of the seven people who sit on the Planning Commission itself, but it would have taken the form of, how exactly did this project come forward to this point. However, bear with me here, because what you are about to see is shear incompetence on the part of city staff, yet again, in allowing a project to go forward without proper vetting by the City Attorney and despite serious concerns from neighbors.
The applicant in this case proposed constructing a 1,469 square-foot, two-story rear addition to an existing one-story residence in the Old East Davis Neighborhood. The proposed addition would be substantial and more than double the size of the residence. The addition would result in a floor area ratio of 43.4%.
One of the key factors here was a large 32” diameter Chinese hackberry that is located in the rear yard. The tree constrains development. To minimize potential impacts to the tree, the addition is pushed back 12 feet from the tree and results in a proposal to reduce the north side yard setback to 1’-8” for both stories. A new front porch would also replace the existing porch and new landscaping installed. A small second-story deck would be located on the south side elevation.
In other words, the applicant claimed that in order not to kill the tree, the addition had to be a certain distance away, this forced it to almost abut the south side of the property line. Only 20 inches would separate the northern edge of the home from a fence. Now think about 20 inches for a second and how narrow that is. City ordinance requires a five foot setback for the first floor and 10 feet for the second floor. The applicant in this case is asking for 20 inches on both floors and what is essentially for all intents and purposes a 20 foot high wall to be only 20 inches from the property line.
The staff report suggests as follows:
"Staff recognizes that the addition is sizeable and that the 1’-8” side setback is a substantial reduction in the setback requirements. Although it reduces the sense of openness on the north side, it preserves other useable areas in the yard and does not significantly impact the adjacent parking area. The Zoning Code gives the Planning Commission the discretion to reduce the side setback in the R-2 CD district in order to protect significant landscaping. The Planning Commission has discretionary approval over the project and may deny the project or request changes that it deems appropriate."The staff report acknowledged that concerns were raised, and I focus on two of these concerns.
First:
"Concerns were raised that the reduced side setback would have visual impacts; that it would not be consistent with side yard setback generally found in the neighborhood; and that it could set a precedent for future projects. Additionally, concerns for maintenance, drainage, and fire issues in the side yard were mentioned. It was noted that other buildings in neighborhood had zero setbacks though they were generally accessory structures and/or single-story. The question was asked whether the addition could be placed further to the rear instead of the side."This is a key point because the answer we are given is that the reason that it cannot be moved closer to the rear of the lot rather than the side is the tree and concerns that it will encroach on the tree.
"The R-2 CD zoning provides flexibility allowing the Planning Commission to reduce the side setback to protect historic landscaping."The staff is claiming that the tree, a mature Chinese hackberry, represents historic landscaping and that building near the back could endanger the tree. The owner had an arborist testify to this effect, although it was unclear from that testimony how close they could actually get to the tree, the arborist appeared to suggest that it would be considerably closer than the current design.
The other complaint that was registered had to do with the size of the addition. For me, the tree issue was only part of the concern here, the other was, why they had to build such a large addition to begin with.
"There was concern that the addition was too large and that the mass and scale of the new structure would be out of proportion for the lot and the neighborhood and would have insufficient open space. Particularly, there was concern that it would overwhelm the nearby historic Tufts House.In the end, despite strong objections from neighbors, the staff recommended approval for this project:
The proposed addition is substantial and results in a FAR of 43.4% that exceeds the allowable FAR of 40% by approximately 200 square feet. The zoning allows an increase in the FAR with Design Review."
"Staff believes the project is consistent with the DDTRN Design Guidelines and that the proposed design is compatible with the neighborhood and surrounding structures and would not adversely impact the integrity of the adjacent historic resource. Staff therefore recommends that the Planning Commission approve the project based on the findings and conditions of approval."Immediately to the north is a newly built complex of two town homes and two single family detached homes that are at this point unsold. The real estate company, Coldwell Banker and Doug Arnold, claim that this project would devalue adjacent property.
"As currently proposed, the set back for the addition at 425 J Street is only 18 inches for both the first and second story. This will create a 20-foot vertical wall that will radically change the appearance and character of the backyard area and will devalue the four properties affected.Bill Kopper, represented the owner of the adjacent property, Mr. Frank Skover before the Planning Commission. He presented key testimony arguing that the city had three criteria with which to grant an exception to the zoning ordinance that requires a five foot setback. The only one of these three criteria that was applicable without either a zoning change or a general Variance, was if the tree was part of an historic landscape. Mr. Kopper then went on to argue that this did not fall within the normal definition for historic landscape of which there are very few such designations in the city. Mr. Kopper successfully argued that a mature tree is not necessarily historic, nor could a tree in and of itself, be part of an historic landscape without some accompanying structure.
In particular, 437 J Street will immediately lose both light and openness due to the blockage of the sky and sun. The massive and imposing new addition closing off the sky and sun will dramatically alter both the appearance and usage of the side yard and patio and will seriously devalue this property."
At this point, Mike Levy, one of the planning commissioners, asked City Planning Staffer Mike Webb point blank whether Mr. Kopper's interpretation was correct that this needed to be designated an historic landscape. Mr. Webb acknowledged that Mr. Kopper was correct. And when pressed, Mr. Webb acknowledged that unless it was deemed an historic landscape, they would have to rely on Variance procedures in order to grant such a setback.
Here is where this gets interesting. Mike Webb and Eric Lee, the planning staff, argued for approval of this project. They did so without getting a legal opinion from the City Attorney as to whether this could even be designated an historic landscape. This fact was brought up by Mr. Levy at this time and several other members of the commission wondered out loud how the planning staff would go forward with such a recommendation and more importantly how this process got this far.
Amazingly, for the next two hours, the meeting would continue with a variety of members of the public coming forward. One of the neighbors openly acknowledged that the reason for the addition was retribution for Mr. Skover building the "condos" that overlooked her property--from roughly 50 feet away.
In the end, staff worked very diligently in order to rescue this project giving the planning commissioners a number of different avenues short of outright denial. Even without the issue of the historic status of the tree which was by this point in severe doubt, the planning commission in general felt that this project was too large and the lack of setback very intrusive.
You see a very rare thing occur, by a unanimous 7-0, the Planning Commission voted down the proposal but instructed the city attorney to weigh in on this issue about the determination of the historic status, as much for future interest as for determining this project.
The question on many people's mind after the decision was finally reached late into the evening, is why the city's planning staff not only pushed for approval of this project but when it became clear that the Commission was opposed to it, continued to try to wear down the Commission into making a weaker ruling, a tactic that was actually partially successful and would have been more successful were it not for the resolve of several of the commissioners including Mr. Levy who caught on immediately that there was a legal problem and that Mr. Kopper's opinion had serous merit.
For the staff to knowingly recommend approval of this project, knowing the ordinance rules as Mr. Webb appeared to acknowledge, without seeking the opinion of the City Attorney is blatant incompetence. At the very least he wasted the time of the commissioners by failing to even check to see if this could be done in the first place and in fact if he had his druthers, the planning commission would have sent it back to the City Attorney and then possibly revisit this issue in the near future. Staff should never have come up with such a recommendation without checking on its legality and whether this tree fit the definition of an historic landscape.
In fact the suggestion at one point was that the owner could simply cut down the tree. The applicant claimed that city planner Eric Lee had told her that if she did, she could face a $40,000 fine--a preposterous claim that in fact, Mr. Lee though he hedged, never disputed.
For those wondering in the end, why this issue comes before us, it is because this is yet another example of the sheer incompetence of city staff. I have never seen a proposal that staff itself recommends be voted down unanimously but that is what happened here. You have staff failing to check to see if their recommendation was legal. You have staff pushing and carrying the water for a proposal despite strong and legitimate objections from neighbors. It was not even known whether the Planning Commission had the ability to weigh in on the judgment of the historic nature of the tree and the landscape.
In the end, the question from all involved is how this got to this point. It was a question openly asked by those on the Planning Commission. It was a question wondered through out the proceedings. While for most this is a small issue, this was extremely costly to the owner of the adjacent property who had representatives there to protect his investment in his project. And you have once again, city staff, failing to do their job in a thorough and proper manner, which ended up wasting the time of the Planning Commission and those who came before the commission. Something needs to be done about this issue in the future or the city will end up setting itself up for a very serious and expensive law suit.
---Doug Paul Davis reporting
