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HomeMy WebLinkAboutTC Res 2000-10-04 (2) """' RESOLUTION NO. 3449 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TffiURON DENYING AN APPEAL OF A DESIGN REVIEW BOARD DECISION ON A SITE PLAN AND ARCHITECTURAL REVIEW APPLICATION FOR AS-BUILT FENCING LOCATED ON AND NEAR THE PROPERTY LOCATED AT 223 DIVISO STREET ASSESSOR PARCEL NO. 59-131-07 WHEREAS, Malcolm Misuraca and Victoria Brieant ("Appellants") are the owners of property located at 223 Diviso Street and have applied for Site Plan and Architectural Review of an as-built fence (File #700008); and WHEREAS, on June 1, 2000 the Design Review Board of the Town of Tiburon reviewed the Site Plan and Architectural Review application and voted to deny the requested approval and WHEREAS, pursuant to notice as required by law, on September 20, 2000 the Town Council of the Town of Tiburon held a public hearing to consider an appeal of the decision filed by the applicants/property owners and r--- WHEREAS, at said duly noticed public hearings, the Town Council received public testimony, considered appellants' application, and other documents, including, without limitation, the appeal, correspondence from counsel for appellants, all materials in File #700008 and materials prepared by Town Staff; and WHEREAS, the Town Council of the Town ofTiburon, as more particularly set forth below, determined that the as-built fence design, would be inconsistent with relevant portions of the Zoning Ordinance of the Town of Tiburon; and WHEREAS, the Town Council of the Town of Tiburon determined that it would not be appropriate to approve fencing on property owned by a party other than the applicant without the interested party's consent; and WHEREAS, the Town Council voted 5 to 0 to deny the appeal, THEREFORE BE IT HEREBY RESOLVED AS FOLLOWS: Section 1 Findings: 1. The fence area reviewed ("Subject As-Built Fencing") constitutes the area of as-built fencing not shown on a survey of a fence which existed in the area in 1976 per a survey prepared by Hool and Lockett, licensed land surveyors. ("1976 Survey"). The Subject As Built Fencing is shown on Diagram 1, which is attached hereto and incorporated herein by reference, -. 1 r--. r--. -- 2. The Subject As Built Fencing is considered a new fence because (a) the previously existing fence in the area did not extend into the property occupied by the Subject As built Fencing; and (b) the previously existing fence was removed at least 2 years ago. 3, The design of the Subject As Built Fencing is inappropriate because it blocks public views of the Bay, Any fence at this location would have to be lower in height to preserve such views, 4. The Subject As Built Fencing is built primarily on property in which the Appellants have no record interest. 5. All building and encroachment permits obtained by Appellants in order to replace an "existing" fence are deemed null and void. These permits are deemed null and void due to the following reasons: a, Any permit applicant must have appropriate legal title to the property that is the subject of the permit application. b, The Appellants submitted false information in order to obtain said permits. c. The Appellants violated terms of the conditions of approval for the issued building and encroachment permits by building a fence longer than a previously existing fence as evidenced by a survey, dated August 1, 2000, performed by LA Stevens & Associates, Inc. 6. The Subject As Built Fencing must be removed within 90 days of the date of the approval of this resolution unless the Appellants have established ownership and obtained permits as described in Finding 8, 7. The Appellants have received considerable latitude in the granting of extensions to the code enforcement process for unauthorized work associated with the subj ect as-built fencing and in the granting of several extensions to the appeal period, No extensions to the deadline for removal of the fence will be granted. Code enforcement action for removal of the fence will begin on the 91 st day after the date of the approval of this resolution if the Appellants fail to obtain the aforementioned quiet title judgement granting the roadway area on which the fence is located to the Appellants. 8. If Appellants are able to establish appropriate title to the location of the Subject As Built Fencing, they may submit a revised Site Plan and Architectural Review application that preserves public views of the Bay, To the extent that said area is owned by the Town or subject to a Town- held easement, they must also apply for and obtain an encroachment permit. If Appellants have not obtained all necessary approvals and permits for the Subject As Built Fencing within 90 days ofthe date of this 2 /""'. resolution, the entire Subject As Built Fencing must be removed by such date. If Appellants obtain said approvals by said date, all work necessary to bring the Subject As Built Fencing into conformance with the terms of said approvals must be completed within 30 days of the date that the last approval is issued. 9, The current Site Plan and Architectural Review application does not cover the fence area shown on the 1976 Survey. If the Appellants wish to legalize this portion of the fence, the Appellants must submit an application for legalization of this portion of the fence in conjunction with the property owner of the land on which the fence is erected. The Town Council, by its lack of inclusion of this portion of the fence in its current review, does not place limitations on the Town with regard to future code enforcement action on this portion of the fence, 10, The Town of Tiburon holds an easement over the Diviso Street roadway and may chose to refuse to grant encroachment permits for the subject as- built fencing regardless of whether the Appellants are able to obtain ownership of the subject property through a quiet title action. - Section 2. Denial of Appeal NOW, THEREFORE BE IT RESOLVED that the Town Council of the Town of Tiburon does hereby deny the appeal ofthe Design Review Board denial of the proposed Site Plan and Architectural Review application for the reasons set forth above. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town ofTiburon on October 4,2000, by the following vote: AYES: NOES: ABSENT: COUNCILMEMBERS: Bach, Hennessy, Matthews, Thompson COUNCILMEMBERS: None COUNCILMEMBERS: Gram ~S:~R AT~ DIANE CRANE IACOPI, TO CLERK - - 3