HomeMy WebLinkAboutTC Agd Pkt 2014-08-20 (3)Christopher A. Skelton
cskelton@rflawllp.com
Via E -Mail Only
(dcrane@toeonoffiburon.org)
Tiburon Town Council
c/o Diane Crane - Lacopi
Town Clerk
1505 Tiburon Boulevard
Tiburon, CA 94920
D
F LATE MAID # Pki, 3
Ragghianti IFreitas LLP
Attorneys at Law
11015th Avenue, Suite 100
San Rafael, CA 94901
telephone 415.453.9433
facsimile 415.453.8269
www.rflawllp.com
August 13, 2014
,,j AUG i 4 YUl4 U
PLAN�'•ING DIVISION
Re: Appeal of 1897 Mar West Encroachment Permit (EP #14 -74)
Dear Members of the Council:
Our office represents the owners of 1897 Mar West, Brian and JoAnn McCullough
( "McCulloughs "), in connection with the above - referenced appeal. This letter is
regarding the decision ( "Decision ") by interim Public Works Director, Al Petrie
( "Director "), on May 7, 2014, denying the encroachment permit. Specifically, we hereby
request that the Council receive this matter and render a decision consistent with the
General Plan and Municipal Code, and in a legally supportable fashion, as the May 7f
decision was not based on articulated findings, or evidence to support such findings, as
required by law.
Background
On February 6, 2014, the McCulloughs submitted an encroachment permit application
for certain improvements, including: driveway, parking space, retaining wall and other
related features. The Town denied this application on April 9, 2014. On May 1, 2014,
the McCulloughs submitted a revised application for similar improvements. This
application was denied on May 7, 2014 under a claim that the proposed improvements
are inconsistent with the Towns policy set forth in Resolution 16 -2010 ('Resolution ").
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August 13, 2014
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More specifically:
"It appears to staff that the encroachments would have the practical effect
of privatizing the affected area for the exclusive benefit of one or a limited
number of individual owners in lieu of the general public, and would
therefore be an 'impermissible purpose' according [to] Section D of the
Policy. Furthermore, the proposed work does not qualify for any of the
'allowable purposes' as set forth in Section C of the policy." (Emphasis
added.)
Both letters denying the encroachment permit applications contain the exact same
language and appear to be form letters. This correspondence fails to meaningfully
discuss or identify the merits of the proposed improvements or provide any specific
evidence supporting the findings that: (1) the encroachments would essentially
privatize an area for exclusive private benefit; and, (2) that the encroachments would
not satisfy any allowable purpose within the Town's policy. The absence of any
evidence renders the decision flawed. We suggest that the findings can be made to
support the encroachment permit as described under the Resolution, subdivision (C)
( "allowable purposes ").
Legal Analysis
California courts have been unequivocal that adjudicative decisions like this one are
required to be based on findings, and those findings are required to be based on
evidence in the record. (Topanga Assn. for a Scenic ConmTunihj v. County of Los Angeles
(1974) 11 Cal.3d 506.) A decision - making agency must "set forth findings to bridge the
analytic gap between the raw evidence and ultimate decision or order." (Id. at p. 515.)
This did not occur here.
Abuse of discretion by a decision - making agency is established if a decision is "not
supported by the findings, or the findings are not supported by the evidence." (§ 1094.5,
subd. (b).) Here, findings were hardly made, let alone supported. A finding that was
made "perfunctorily" and "without discussion or deliberation and thus does not show
the analytical route from evidence to finding" will be struck down. (Honey Springs
Home07vners Assn v. Board of Supervisors, 157 Cal. App. 3d 1122, 1151 (1984).) This
decision has no analytical route.
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August 13, 2014
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Discussion
The Resolution provides a policy allowing encroachment into the public right -of -way
where such features would:
(1) Allow access to private property for ingress/ egress;
(2) Allow applicants to replace landscaping;
(3) Allow applicants to accommodate required parking where the Town finds
that (a) the applicants cannot feasibly locate such parking on private property, or (b) the
public safety or welfare is better served by allowing such parking to encroach; and,
(4) Allow applicants temporary relief from unusually severe topographic or
other physical circumstances that create practical hardships to the creation of proper
access.
Each of these issues was identified in the encroachment permit application and
evidenced in the design submittal. According to the Resolution, any one of these
purposes is sufficient to grant an encroachment permit. All four elements are present
on the McCulloughs' property, which further exemplifies the argument for granting the
permit.
Access
Access to private property is created and improved by means of this application. The
encroachment plans improve access for the applicant by reducing the size and scope of
an existing encroaching staircase and relocating it adjacent to the existing garage.
Furthermore, the plans call for creation of independently identifiable access for the
western neighbor at 1895 Mar West. Presently, the residents of 1895 Mar West must
approach up the applicants' driveway and cut across the frontage of the 1897 Mar West
property in order to access their own front steps. This approach in the right -of -way is
without lighting and presents partially failing, uneven, and steeply sloped pavement.
The approach route has generated noise, access, and property related issues in the past
that both owners are interested in resolving under this encroachment permit. The
proposed improvements would greatly enhance these unsafe conditions of public
property.
Landscaping
Replacement and improvement of landscaping is necessary in this area and consistent
with the General Plaii s Safety Element 6, encouraging owners to repair or improve
unstable slopes, install drainage, and take other measures to reduce safety hazards. The
existing landscaping consists of non -native species that fail to adequately secure the
steeply sloped hillside resulting in debris sloughing onto the street. This has the
practical effect of obscuring the parking area along the street as well as contributing to
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August 13, 2014
Page 4 of 6
debris entering the storm water system. The proposal would introduce climate and
condition appropriate plantings. The improved landscaping will serve a dual purpose
of erosion control and aesthetic beautification.
Parking
Section 16- 32.030 of the Town's Zoning Code ( "Code') establishes that 2 parking spaces
are required for the applicants' property. The present circumstances reveal tandem
parking: one parking spot in the existing garage, which is partially encroaching; and
one parking space on the driveway apron, which is completely encroaching into the
right -of -way. The existing driveway parking space results in a vehicle practically
abutting the street (street curb intersection) with almost no visibility of roadway
conditions when backing out. An allowable purpose of the encroachment permit
according to the Resolution subsection (C)(5)(a), is accommodation of parking where
the applicant cannot feasibly locate such parking on private property. This finding is
readily made based on review of the existing conditions as previously described, and
the improvements amount to an in -kind relocation of the existing condition.
Secondarily, Resolution subsection (C)(5)(b), states that where "the public safety or
welfare is better served by allowing such parking to encroach" an encroachment permit
is allowable (emphasis added). This finding is also readily made. The proposed
encroachment permit improves the public safety as it relates to parking by relocating
the second parking space partially on the private property. This translates into a shift of
approximately twenty (20) feet further from the roadway. This redistribution of
parking within the right -of -way allows for improved sightlines for the property owner
and creates a safer streetscape by providing an opportunity for pedestrians and through
traffic to take notice of cars backing down the driveway. The existing circumstances
present significant safety concerns in light of the through traffic and the adjacent
intersection of Las Lomas Lane because there is no prior indication that a car is backing
into the street. The approximately forty -five (45) foot reverse down the driveway
would better serve the public by providing notice of a car entering the street. This
demonstrates that the public safety is better served by these proposed improvements.
Physical Circumstances
Resolution subsection (C)(14) allows applications for temporary relief from physical
circumstances that create practical hardships to the creation of proper access to private
property in the absence of an encroachment. In order to access their front gate, the
existing conditions necessitate the residents of 1895 Mar West to navigate a narrow
passage between the car parked on the driveway apron at 1897 Mar West and the
surrounding hillside landscape just to start along the path that cuts across the front of .
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August 13, 2014
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1897 Mar West, which terminates at their entrance. Part of the purpose of the
encroachment permit application is to remedy this awkward approach, which has
historically resulted in adverse confrontations about noise, accessibility, and site
disturbances. The present circumstances are not proper conditions to accessing
property, but the encroachment permit plans for substantially improved ingress and
egress.
Not an Impermissible Purpose
Resolution subsection (D) details impermissible purposes. Subsection (D)(1) was relied
on in denying the application. It states, "Encroachments for the purpose of, or having
the practical effect of, privatizing the affected area for the exclusive use or benefit of one
or limited number of individual owners in lieu of the general public." Review of the
encroachment permit plans, as well as the surrounding property conditions reveals that
approval of this application would not have the practical effect of privatizing the area
for the exclusive benefit of the applicant. As described above, the encroachment permit
provides benefits to the applicants, the neighbor at 1895 Mar West, all pedestrians and
motorists who travel along Mar West via safer sight lines and vehicle awareness as well
as the Town via slope stability, beautification, and emergency access. Finally, these
improvements are consistent with the neighborhood character as defined in terms of
setbacks. The proposed improvements mirror conditions all along Mar West,
specifically driveway conditions at 1859 and 1865 Mar West.
Change in Conditions
At a future date, should the Town determine that conditions have changed and street or
pedestrian improvements are necessary along Mar West, the encroachment permit has
built in as a condition of approval the Towns discretion to revoke the permit at any
time without consideration of cost of removal. This condition is especially noteworthy
for the present application because the improvements proposed are not of a permanent
nature like a house or garage. Rather, the encroachment includes a driveway, a parking
space, a retaining wall, and other related features. Every element of the encroachment
plan is capable of being dismantled should future conditions necessitate it.
Conclusion
There was no meaningful discussion of these points by the Director. There was only
reference to the Resolution and conclusory statement that the permit served an
impermissible purpose. Unfortunately, this attempt at efficiency comes at the expense
of the rights of the McCulloughs. The point of this appeal is for the Council to hold a de
novo hearing, and render a decision based on evidence and findings.
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August 13, 2014
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Thank you for your consideration of this important matter.
Very Truly Yours,
Christopher A. Skelton
CC: Client
To:
From:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Department of Public Works
Community Development Department
Town Council Meeting
August 20, 2014
Agenda Item: P43
Subject: 1897 Mar West Street: Appeal of Denial of an Encroachment Permit
Application Requesting Installation of a Driveway, Parking Area, and
Retaining Wall in the Mar West Street Right -of -Way; Brian and JoAnne
McCullough, Owners; Brian McCullough and John Merten, Appellants;
Assessor Parcel No. 059 - 121 -10
Reviewed By: 6�
BACKGROUND
In May 2014, the Town received an encroachment permit application and drawing (Exhibits 1
and 2) for work in the public street right -of -way (ROW) abutting 1897 Mar West Street. This
residential property is owned by Brian and JoAnne McCullough and the project is known as the
"McCullough Driveway ". The ROW area in question is a steep slope located along a particularly
narrow stretch of Mar West Street. The application proposed installation of a concrete driveway,
parking area, and retaining wall in the ROW. The purpose of the project is to create additional
parking for the property and provide vehicular access to a proposed elevator located in the
residence, as the owners would like the elevator to be the main entrance to their multi -level home
and bypass the existing staircase. A portion of the driveway and parking area would be located
on private property but a substantial majority would be located in the Mar West Street ROW.
On May 7, 2014, the Interim Town Engineer denied the encroachment permit application on the
basis that the proposal was inconsistent with the Town's encroachment permit policy (Exhibit 3).
The applicant subsequently filed a timely appeal of this decision (Exhibit 4).
The plans received to date are schematic in nature and do not provide the details required for an
extensive evaluation. Staff has not required the applicant to expend the funds required for a more
extensive design as the design concept did not comply with the Town's encroachment permit
policy.
PROJECT HISTORY
In 2011, the McCullough's filed two separate encroachment permit applications requesting
improvements within the Mar West Street ROW in front of 1895 and 1897 Mar West Street. The
first application (referred to as the `Barley Stairs ") called for the installation of concrete stairs,
retaining walls, and the replacement of a concrete pad for refuse can storage in front of 1895 Mar
TOWN OF TIBURON PAGE Z OF 5
Town Council Meeting
August 20, 2014
West Street. The primary purpose of this application was to provide direct pedestrian access to
that property and to the adjacent residence at 1893 Mar West Street. Currently, pedestrian access
to 1893 and 1895 Mar West Street is indirect and requires using the driveway in front of 1895
Mar West Street and a narrow walkway fronting the three parcels in the street ROW. The
McCulloughs would prefer that pedestrian access to 1895 and 1893 Mar West Street not involve
people crossing in front of their residence and the use of the driveway accessing their garage.
There is currently no vehicular access to 1893 or 1895 Mar West Street. The encroachment
permit application for the Barley Stairs was referred by the Town Engineer to the Town Council
and approved by the Council on August 23, 2011. The project was never constructed as it was
contingent upon approval of the second application.
The second 2011 application (referred to as the "McCullough Garage ") called for, among other
things, the expansion of an existing one -car garage at 1897 Mar West Street into a two -car
garage. This application was also referred by the Town Engineer to the Town Council and would
have involved approval of an enclosed garage located partially on public ROW, which is beyond
the scope of the Town Engineer's review authority. The Town Council was divided on whether to
approve this application despite its inconsistencies with the Town's encroachment permit policy.
On a 3 -2 vote following two public meetings, the Town Council denied the application as
inconsistent with the Town's encroachment policy but "granted staff authority to review and
approve a redesigned project that conformed with Town policy." Staff reports and minutes from
the Town Council meetings of July 20 and August 23, 2011 are attached as Exhibits 5, 6, 7 & 8.
REGULATORY FRAMEWORK
Chapter 19 of the Municipal Code establishes the encroachment permit requirement, process, and
procedure, but actual policy concerning encroachment permits is set forth in Town Council
Resolution No. 16 -2010 (attached to Exhibit 2). The Town Council adopted the policy to provide
clarity and consistency concerning the purposes of encroachment permits. The policy contains
lists of "allowable" and "impermissible" purposes for encroachment permits, and has proven to
be a highly useful tool for Town staff.
PROJECT DESCRIPTION
The application on appeal, referred to as the "McCullough Driveway ", is substantially different
than the "McCullough Garage" application denied by the Town Council in 2011, in that it would
not result in the expansion of an enclosed garage located partially on public street ROW. Instead,
the owners propose a new angled driveway, supported by a retaining wall, that would begin at the
existing driveway entrance to 1897 Mar West Street garage and extend to the western property
line, where an existing elevator shaft is built into the residence. Parking for two vehicles in
tandem would be possible along the length of this driveway, although the lower space would be
relatively steep and in all likelihood a single vehicle would use the driveway for parking
purposes. A substantial majority of the improvements would be on the public ROW, including
most of the parking area being created. It appears that the retaining wall could reach
approximately 8 feet in height, tapering in height as it approaches the existing driveway. The
drawings submitted are schematic at this point. More detailed drawings would be required for
site plan and architectural review, building permit, and final encroachment permit approval.
To,wN OFTIBORON Page 2 of 5
Town Council Meeting
August 20,2014
The Notice of Appeal filed with the Town cites Section C -5 of Resolution No. 16 -2010 as the
only ground for appeal of the denial. Section C -5 of the Resolution sets forth the following
"allowable purpose ":
To accommodate required parking where the Town finds that (a) the applicant cannot
feasibly locate such parking on private property; or (b) the public safety or welfare is
better served by allowing such parking to encroach.
Section C -5 provides flexibility to accommodate "required parking" on the public right -of -way
when it is not feasible on private property or when the public safety or welfare is better served by
allowing it to encroach onto the public right -of -way. The term "required parking" refers to a
zoning ordinance requirement to provide on -site parking associated with a use. Two - family uses
in modern times typically require three on -site parking spaces. However, uses that have been in
existence for a very long time (the main building dates to 1900) are grandfathered with respect to
"required parking "; hence the continued acceptance by the Town of the existing one -car garage
for this property despite significant upgrades and additions to the structure over the decades. The
Town has no requirement that parking be upgraded to meet current codes in the event of a
residential addition or remodel, and the existing parking on site is all that is currently "required"
by the Town's zoning regulations for this use on this site. Section C -5 is inapplicable on that
basis. However, should the Town Council choose to do so, it may review the application on a "de
novo" basis and not exclusively on the grounds of the appeal.
CONFORMANCE WITH POLICY
In addition to not being currently listed as an "allowable purpose ", the proposed work would in
practical effect privatize and provide exclusive permanent use of that portion of the street ROW
for the owners of 1897 Mar West Street. This would appear to conflict with Section D -1
(Impermissible Uses) of the Town's policy. It seems inconceivable that anyone besides the
owners, tenants or guests of 1897 Mar West Street would park in the proposed driveway as
designed. Should they do so, it is likely a serious neighbor dispute would result.
Furthermore, even if a Memorandum of Encroachment is recorded pursuant to Policy Section
E.3.c, an encroachment permit holder is unlikely to remove a physical encroachment of this cost
and magnitude without a protracted legal fight should the Town demonstrate reasonable cause
and seek its removal at some point in the future. This would appear to conflict with Section B
(General Provisions) of the Town's policy in terms of permanence, at least on a practical (if not
strictly legal) basis. One could perhaps argue that the encroachment is of a long -term, as opposed
to permanent nature, pursuant to Section E (Duration) of the Policy, and that the encroachment
would provide a long -term public benefit commensurate with the private benefit to the permit
holder. However, the application submitted does not appear to contain such public benefit, but
could be conditioned to provide some public benefit in terms of a widened public street along its
frontage.
TOWN OFTIBURON Page 3 of 5
Town Council Meeting
August 20, 2014
,I] � Y [I]►6�
(A) If the Council finds insufficient merit in the application and the appeal, it should direct
staff to return with a resolution denying the appeal as inconsistent with adopted Town
policy.
(B) If the Council finds sufficient merit such that it wishes to modify its policy to
accommodate it substantially as proposed, Council should consider the following:
a. Modifying the Town's encroachment permit policy to provide a sound basis
for approval of the permit. A resolution to that effect is attached as Exhibit 9,
with revisions to the current policy shown in strikeout/underline format.
b. Require the applicant to submit more detailed plans for staff review that will
allow staff to fully evaluate the affect of the project on the hillside, sight
distance, and adjacent properties.
c. Consider the application of conditions of approval that would provide the basis
for consistency findings with the amended policy, such as the following:
1) Permit holder shall widen and shall be responsible for the costs of widening
Mar West Street below the proposed retaining wall a minimum of two feet in
order to improve sight distance and public safety of the street in the vicinity of
the property frontage. A separate low retaining wall will likely be required to
create the street widening.
2) The extent of retaining wall encroachment shall be reduced by
approximately five feet (5') to allow adequate space for only tandem parking
on the proposed driveway (where the car is shown on the drawing and in the
area immediately east of the car) by narrowing the width of the driveway in
that area. The narrowing shall occur such that at least a portion of any parked
vehicle would be located on private property of 1897 Mar West Street.
3) Construction of the Barley Stairs by the permit holder is required as part of
the project.
4) A Memorandum of Encroachment shall be required that memorializes the
revocable nature of the permit and other conditions.
d. Direct staff to return at the next meeting with a resolution memorializing the
granting of the appeal and direct with the Town Engineer to issue the
encroachment permit substantially based on the above conditions in addition to
the standard permit conditions, following site plan and architectural review and
building permit approval.
FINANCIAL IMPACT
Other than staff time, there is no fiscal impact anticipated to the Town. Installation and
maintenance of all improvements would be the responsibility of the property owner /permit
holder.
IRON Page 4 of 5
Town Council Meeting
August 20, 2014
SUBSEQUENT APPROVALS REQUIRED
In addition to an encroachment permit, the improvements envisioned in the application would
also require site plan and architectural review and building permits.
RECOMMENDATION
Due to the inconsistency of the proposal with adopted Town policy, Staff recommends that the
Town Council uphold the staff's denial of the encroachment permit. In the event the Town
Council wishes to approve the encroachment, staff recommends that the Town Council follow the
process laid out in Option B above.
EXHIBITS
1. Encroachment Permit application filed May 1, 2014.
2. Encroachment Permit Drawing (1 sheet) by John Merten dated 4/29/2014.
3. Denial letter dated May 7, 2014 with Town encroachment policy attached.
4. Notice of Appeal.
5. Town Council staff report of July 20, 2011.
6. Town Council minutes of July 20, 2011.
7. Town Council staff report of August 23, 2011.
8. Town Council minutes of August 23, 2011.
9. Draft Resolution modifying Town's encroachment permit policy.
Prepared By: Scott Anderson, Director of Community Development
Pat Barnes, Town Engineer
Page 5 of 5
ENCROACHMENT PERMIT APPLICATION
Town of Tiburon • 1505 Tiburon Boulevard • Tiburon. CA 94920 • (4 15) 435-7354
Payment Amt:-1iy220
Check No: / 2
❑ Cash
Notes:
FOR OFFICE USE ONLY
Encroachment Permit No,
t�'
Date Received: —a`' I iT
Plan Attached: X es ❑ No
❑ Inspection Required. Contact Public Works at 435 -7399 two days before starting work.
• Performance Bond / Deposit required
• Additional Conditions Apply — See Attached List.
CONDITIONS OF APPROV
Planning Dept. Rev. (if apply):
Approved by Public Works Approval Date Initials
The permit is valid for 6 month from approval date, unless otherwise stated.
APPLICATION INFORMATION
Basic applications (e.g., driveway resurfacing or routine utility connections) are reviewed by the Public Works and usually
granted within 5 to 7 business days. The basic Encroachment Application fee is $85 with a 5150 Inspection Fee (for 1
inspection). Applications for more involved projects are reviewed by the Town Engineer and there may be an additional fee
charged. After the encroachment application has been reviewed and granted, the applicant will be notified to pick up a copy
of the approved application which serves as the permit When the project is completed, a final inspection will be performed.
If related to a building project, occupancy permit will be withheld until final Public Works approval.
OB 7 Mar Web+ Vree{- it-q§ I -orna LY, br+an.- Mc cuflonm
Location of Work & Nearest Cross Street Name of Property Owner
Description of Proposed Work — Attach any drawings, documents, schematics, and written description to illustrate your
scope. For driveways, specify type of surfacing and size of culvert, if applicable.
54M aA91TcdlMen.
Estimated Start Date: rr&4AIr Estimated Completion Date: (,l (j 2Qf
i-oft McRTr7N
Name of Applicant
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41 ts— l -og6.5
(Area Code) Phone Number
N of Contractor
'4 01075c6 -7
License No
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(Area Code) Phone Number
The undersigned hereby applies for permission to perform the above described work and/or otherwise encroach on Town of
Tiburon right -of -way or property pursuant to any required building permits. Applicant agrees that all work shall be
performed in accordance with the rules, regulations and standards of the Town of Tiburon, in addition to the General
Provisions or Special Conditions as applicable. All work shall be subject to inspection and approval by the Public Works
Department. Applicant agrees to indemnify, defend and hold the Town of Tiburon, and its employees, agents, and officials,
harmless from any claims, losses or damages that may arise from Applicant's exercise of this encroachment permit and any
other permit granted by the Town. Proof of insurance is required upon request.
Applicant's
-z9- I
F- `7,I—THBIT NTO.-
ENCROACHMENT PERMIT APPLICATION
INSTRUCTIONS AND FEES
An encroachment permit must be obtained from the Department of Public Works for any work or
activity performed:within Town streets, public right -of -ways, or Town -owned land, or for any work
that may affect these areas. Examples of work requiring an encroachment permit are:
• Debris Box (special fee may apply — see No. 5 below and must be coordinated with Building)
• Driveway approach
• Street and drainage improvements
• Repair and maintenance of utility services
• Minor tree trimming or thinning
• Sidewalk repair or installation
• Lengthy traffic control or lane closures, e.g. work or events requiring temporary closure or
diversion of traffic lanes. (Must be coordinated with Police and Tiburon Fire District).
• Transportation — Heavy, wide, and unusual loads through a separate Tiburon Transportation
Permit (Must be coordinated with Police)
The following items must be submitted prior to the issuance of an encroachment permit:
1. A completed encroachment permit application, including a comprehensive description of the
proposed work, start and finish dates, and contractor's name and phone number, must be filed
in person at Town Hall (see reverse side of this sheet).
2. A site plan or other diagrams illustrating general location and scope of the work.
3. Payment of an $85.00 application processing fee (cash or check only). Public Works will
determine whether the proposed work is considered to be a minor or major improvement. In
accordance with the current Engineering Fee Schedule Exhibit A, the applicant may be
required to submit additional fees if the work is determined to be a major improvement and
involves review by the Town Engineer.
• Minor Improvement or Application Associated with a Building Permit....... Total $235.00
• Major Improvements ....... 3% of Value of Right -of -Way Improvements ($300.00 min)
4. Additional application fees for major improvements will be due at the time of pick -up. The
applicant may not begin work until these fees have been paid.
Debris Box Application Fee is $85 with a $75 Inspection Fee. Usually a debris box associated
with a Building Permitted project will not require an encroachment permit.
Routine applications are reviewed by Public Works and are usually granted within 5 to 7 business
days. Applications for more involved projects are reviewed by the Town Engineer and may require
additional time to process.
Once the application has been reviewed and granted, the applicant will be notified to pick up a copy
of the approved application which serves as the permit. The applicant must comply with all
special notes, general conditions, and /or special provisions applicable to their project.
A Final Inspection will be performed by the Department of Public Works upon completion of the
project. A phone call is required to Public Works to request final inspection.
TOWN OFTIBURON I���
PUBLIC WORKS PERMIT CONDITIONS -Permit No.
Note. Thefollowing standard and checked (4) conditions apply to this permit.
1. APPENDING LIST OF CONDITIONS: In the event that these following conditions conflict with the
conditional notes and language found in the Permit Application, the following conditions and special conditions
will supersede and prevail.
2. ACCEPTANCE OF THE PROVISIONS: It is understood and agreed by the Permittee that all conditions have
been read, and understood. The Permittee agrees to comply with all conditions.
3. KEEP PERMIT ON WORK SITE: This permit, or a complete copy, shall be kept at the site of the work and
upon request must be shown to any representative of the Town or any law enforcement officer.
4. PERMITS FROM OTHER AGENCIES: Permittee must obtain all other permits required by other public or
private agencies or individuals necessary in order to perform the intended work.
5. INSPECTION NOTIFICATION: A preconstmction meeting or discussion will occur. The Pcmduce shall
notify the Maintenance Division at (415) 435 -7399 a minimum of two (2) working days prior to the
performance of any work under this permit. Permittee will provide construction schedule, initially and
periodically, and contact information. All work must be Inspected prior, during, and after backfill, or re-
excavation will be required at Permittee's expense.
6. CONSTRUCTION METHODS: Any work performed without inspection or contrary to discussions with the
Town's inspector, the Maria County Public Works Uniform Construction Standards (latest edition), Caltrans
Standard Plans (latest edition) or approved plans shall be deemed non - complying and will not be accepted by
the Town. Attention is called to the following special provisions:
(a) _ Underground line (e.g. conduits, mains, services) installation will be neat open cut.
(b) _ Cement slurry backfill for trenches is required unless proper compaction can be
demonstrated as per attached standards or greater.
(c) _ A minimum of six (6) inch saw -cut and removal of pavement beyond trench edge lines will
be required.
(d) If trench is within three (3) feet of edge of curb /gutter, saw -cut and removal will continue to
the edge of gutter.
(e) _ All PCC concrete replacement will be full panel, score line to score line, or as directed by the
Inspector.
(f) Plating of trenches will be allowed for up to five (5) calendar days. Ramping of plates is
required.
(g) _ All cement slurry backfill and paving will be completed within ten (or _) calendar days
of excavation for each 100 -foot section of pipe installation.
(h) Backfill, required compaction, final AC paving and/or PCC replacement will be conducted
within ten (or ) calendar days of excavation.
(i) Temporary repairs to existing grades, backfilling, and making the work site safe we required.
(j) _ Others:
Town of Tiburon— PW Permit Conditions — Permit No. I `_� Iof4
7. WORK HOURS: All work shall be restricted to 8:00 am (_) to 5:00 pm (_ ), Monday— Saturday
(excluding holidays) or as directed by the Engineer. Work at times other than regular workdays requires
additional compensation for overtime inspection and written approval from the Town.
8. TRAFFIC CONTROL: Construction traffic control shall conform to the current edition of the "Manual of
Traffic Controls for Construction and Maintenance Work Zones ", as published by the State of California,
Department of Transportation. Provisions shall be made for lighted barricades, delineators, traffic control
personnel during construction and excavation.
9. UNDERGROUND SERVICE ALERT: Permittee must notify Dig Alert network at least 48 hours in advance of
start of work for location of underground utilities.
10. GUARANTEE: The Permittee shall indefinitely guarantee all work performed under this permit. Any failure
caused by defective materials or workmanship shall be promptly repaired or replaced at the Permittee's
expense.
11. STORAGE OF MATERIAL: Excavated material, sand, gravel, or any construction materials and debris shall
not be stockpiled or stored on the Town right -of -way, except as approved by the Town.
12. PUBLIC CONVENIENCE:
(a) The Permittee shall conduct his operations as to offer the least possible obstruction and inconvenience
to the public and abutting property owners, and he shall have under construction no greater amount of
work than he can prosecute properly with due regard to the rights of the public.
(b) Spillage resulting from hauling operations along or across any publicly traveled way shall be removed
immediately by the Permittee at his expense. As applicable, noxious fumes and smells shall be
mitigated to the satisfaction of the Town, at the Permittee's expense. Action may include using
alternative material or relocation of material until installed.
(c) Convenient access to driveways, houses, and buildings along the work shall be maintained and
temporary approaches to crossings or intersecting highways shall be provided.
(d) If ordered by the Inspector, water shall be supplied by the Permittee for the alleviation or prevention of
dust nuisance.
(e) In order to expedite the passage of public traffic through or around the work and where ordered by the
Inspector, the Permittee shall install signs, lights, flares, barricades, and other facilities for the sole
convenience, safety and direction of public traffic.
(f) Also, where directed by the Inspector, the Permittee shall provide and station, at Permittee's expense,
competent flag - persons whose sole duties shall consist of directing the movement of public traffic
through or around the work.
(g) Pedestrian access shall be maintained and provisions for ADA accessibility shall be required.
Town of Tiburon — PW Permit Conditions — Permit No. 14 4 ` -�4 2 of 4
13. EROSION AND SEDIMENT CONTROL MEASURES: The Permittee is obligated to insure compliance with
all applicable stormwater regulations at all times. The BMPs (Best Management Practices) according to the
Marin County Stormwater Protection Program (MCSTPP) and Stormwater Best Management Practice
Handbook Construction BMP Fact Sheets shall be implemented and maintained to effectively prevent the
potentially negative impacts on this project's construction activities on stormwater quality.
Stockpiles of soil, material, and wastes shall be properly contained and covered to minimize sediment transport
from the site to streets, drainage facilities or adjacent properties via runoff, vehicle tracking, or wind.
14. CLEANUP: Upon completion of daily work the Permittee shall clean the right -of -way of all rubbish,
construction debris, trees, brush, excess materials, temporary structures and equipment.
15. SAFETY:
(a) The Permittee shall be completely responsible for the conditions of the job site, including safety, and
shall not be limited to normal working hours. Work and Safety provisions shall conform to all
applicable Federal, State, and local laws, ordinances, and codes, and to the rules and regulations
established by the California Division of Industrial Safety applicable to the work.
(b) The services of the Inspector in conducting construction review of the Penittee's performance is not
intended to include review of the adequacy of the Permittee's work methods or safety measures, in, on,
or near the construction site, and shall not be construed as supervision of the actual construction nor
make the Inspector or the Town responsible for providing a safe place for the performance of work by
the Permittee, or subcontractors; or for access, visits, use work, travel or occupancy by any person.
(c) The Permittee shall carefully instruct all personnel working in potentially hazardous work areas as to
potential dangers and shall provide such necessary safety equipment and instruction as is necessary to
prevent injury to personnel and damage to property.
(d) Shoring and Trench Safety Plan - Attention is directed to the Civil Code of the State of California, the
State Labor Code, and the Stale of California Division of Industrial Safety.
16. PROTECTION OF PERSON AND PROPERTY: The Permittee shall take whatever precautions are necessary
to prevent damage to all existing improvements, including above ground and underground utilities. If such
improvements or property are damaged by reason of the Permittee's operations, they shall be replaced or
restored to a condition equal to or greater than what existed prior, at the Permittee's expense, without delay.
17. RESPONSIBILITY FOR REPAIR OF FACILITIES: All public or private facilities and improvements to
remain, including but not limited to structures, telephone cables, roadways, curbs, gutters, parking lots, private
drives, and storm drains disturbed during construction of the work shall be repaired and/or replaced by the
Permittee to match facilities existing prior to construction. In addition, the Permittee shall be responsible for any
settlement damage to such facilities or adjoining areas for a period mentioned in Item 11— "Guarantee" after
acceptance of such required facilities. In the event the Permittee refuses or neglects to make good any loss or
damage for which he is responsible under this Permit, the Town may itself, or by the employment of others,
make good any such loss or damage, and all cost and expense of doing so shall be charged to the Permittee.
18. CONTRACTOR'S LICENSE NOTICE: Contractors are required by law to be licensed and regulated by the
Contractor's State License Board.
19. PRIVATE IMPROVEMENTS: Any private improvements to be installed on Town right -of -way as part of this
permit shall be continuously maintained to a safe, clean, and serviceable level, and that the Permittee agrees to
remove said improvements at the Permittee's expense in the event that the Town requests such removal at its
discretion.
20. NO PRECEDENT ESTABLISHED: This permit is granted with the understanding that this action is not to be
considered as establishing any precedent on the question of the expediency of permitting any certain kind of
encroachment
Town of Tiburon — PW Permit Conditions — Permit No. I 14 �� 3 of 4
21. INDEMNITY: The Permittee specifically obligates himself and hereby agrees to protect, hold free and
harmless, defend and indemnify the Town, the Engineer and his consultants, and each of their officers,
employees and agents, from any and all liability, penalties, costs, losses, damages, expenses, causes of action,
claims orjudgments, including attorney's fees, which arise out of or are in any way connected with the
Permittee's, his Contractor's, or his subcontractors' or suppliers' performance of work under this Permit. To the
extent legally permissible, this indemnity and hold harmless agreement by the Permittee shall apply to any acts
or omissions, whether active or passive, on the part of the Permittee or his agents, employees, representatives,
or Subcontractor's agents, employees and representatives, resulting in liability irrespective of whether or not
any acts or omissions of the parties to be indemnified hereunder may also have been a contributing factor to the
liability. Unless waived, Permittee shall include the Town, the Engineer and his consultants, and each of their
officers, employees and agents as additional insureds on their policy and insurance documents shall be
submitted to the Town prior to work commencing.
22. OTHER:
Permittee(s): Jo •, h Mer Leh fit_
Print name Initial
Print name Initial
Town of Tiburon — PW Permit Conditions — Permit No. `'r "74 4 of 4
Studio''
Landscape Architecture
232 Sir Francis Drake Blvd.
San Anselmo, CA 94960
Tel: 415.721.0905
Fax: 415.721.0910
February 6, 2014
Al Petrie,
interim public works director
1505 Tiburon Blvd.
Tiburon, CA 94920
RE: 1897 Mar West
Mc Cullough Residence
Dear Mr. Petrie:
I have submitted plans to the Town of Tiburon for City Council approval on behalf of my clients Mr. and Mrs.
McCullough. The plan view and elevation drawing illustrate improvements to the vehicle parking for this narrow
street. The intention is to provide a safer parking and pedestrian condition for the street, provide for additional off-
street parking in a congested area and fix an unsafe and unsightly home access condition.
The right -of -way in front of 1897 Mar West currently services as the only access for neighbors to the West. This
narrow concrete walkway is irregular, poorly lit and unsightly. There is a garage and a steep single car driveway
as well as a stone veneer staircase within the right -of -way. The entire right -of -way has been modified over
numerous construction projects and the plantings are cultivated and not native. The slope face contiguous to the
street is a steep with an exposed cut face revealing bedrock and loose soil.
There is an approved and permitted plan to create a new staircase directly in front of the neighboring property to
the West that will improve access, safety and eliminate the need to cross the right -of -way in front of 1897 Mar
West in the future.
The proposed paved surface within the Town right -df -way will improve the conditions along this narrow section of
Mar West. By providing for additional off- street parking, fewer vehicles will line and close down the roadway. The
off street parking will be of a Town conforming gradient (less then 18 %) for safe usage and access. This project
will allow the frontage of 1897 Mar West to become more attractive, reduce erosion and provide for safe and more
convenient access.
This home is unlike most homes in Tiburon in that it does not have the conventional driveway and garage
configuration that most homes enjoy. The access is very awkward and hazardous especially as the occupants
age there is a potential for injury. Nearly every homes along this street have frontage parking within the right -of-
way and this pattern is visible all the way to Beach Road. The proposed paved surface is almost identical to the
driveway condition at 1859 and 1865 Mar West Street only a few houses away.
Please consider these important point when you make the determinations for your support of this proposal.
Sincerely, A ��
John Marten
WWW.STUDIOGREEN.COM Page 1 of 1
Description of Project COPY
This property is unique in many ways and these distinctive features influence the utilization and
enjoyment of the home. This home is older and does not meet current required parking needs since
there is a substandard garage and non - private off - street parking.
The access to the home requires the Owners to traverse many steps and walk up an unsafe
pedestrian pathway. As the Owners become older and develop physical limitations, this inconvenient
access way is adversely impacting the quality of life. This lack of parking within a reasonable
proximity to living space is not typical in Tiburon and therefore this property does not offer the same
qualities almost all other homes owners enjoy.
The proposed driveway will provide safe utilization of this property, improve the street access
and public welfare in a number of ways.
Per resolution No. 16 -2010 Section C, Allowables Purposes item 5.
• - (a) "Applicant cannot feasibly locate such parking on private property ;"
Response: The proposed driveway provides access to the closest point and up to the base
of the existing home. The proposed off - street parking space is developed up against the
base of the house with as much surface on the private property as possible. There is no
other means to increase parking on the private property.
• — (b) "the public safety or welfare is better served by allowing such parking to
encroach."
Response: Mar West street in the vicinity of this home is a narrow roadway with
substandard parking. When a vehicle is parked in front of this property the street is
effectively a single lane road with 2 way traffic, exposing the town to unsafe and dangerous
conditions from the limited driving lane posing unexpected safety concerns. By removing
vehicles from on street parking, there is a great public benefit of protection and at no cost to
the Town. See attached ahotos.
1897 Mar West
2. Having to access the home across a cracked and substandard pedestrian pathway and
numerous steps has become a hardship that is not typical of other Tiburon home owners. This
hardship is more acute as the Owners age and the obstacles effect day to day enjoyment of
their property.
3. Many homes along Mar West Street have car parking of various compositions, see attached
photos. These parking spaces are in the public Right -of -Way. The only difference is the ease
of creation.
Approx. 1889 Mar West
Approx. 1805 Mar West
dw
Approx. 1771 Mar West
Scott Anderson
From:
Daniel Bort lbortdc @gmail.com]
Sent:
Monday, August 11, 2014 9:57 PM
To:
Scott Anderson
Cc:
BrianMcCullough @earthlink.net
Subject:
Encroachment Permit -- 1897 Mar West
Scott,
PH-?
This afternoon I went to the Town Hall and looked at the McCulloughs' plan. I have no objection to it. We have
our garage at 1889 Mar West sitting largely on the Town right -of -way. The Town thought it was a good idea
then (late 1980s), and the McCulloughs' plan seems like a good idea now.
-Daniel Bort
p hCL
AUG 11 ZU19 II
PLANNING DIVISION
Town of Tiburon • 1505 Tibumn Boulevard • Tibumn, CA 94920 • R 415.435.7373 E 415.435.2438 • wsmeci.ribumn.mus
May 7, 2014
Studio Green Landscape Architecture
232 Sir Francis Drake Blvd.
San Anselmo, CA 94960
Attn: John Merten
RE: Application for Encroachment Permit for a driveway, retaining
wall, parking space and related improvements on Town Right of
Way adjacent to 1897 Mar West Street; EP # 14 -74
Dear Mr. Merten,
In February, and again on May 1, 2014, after our meeting with the
Planning Division, your firm submitted an application for an
Encroachment Permit on behalf of your clients, Brian and JoAnne
McCullough, to install a driveway, parking space, retaining wall and
related improvements on the Mar West Street right -of -way (ROW)
abutting 1897 Mar West Street.
Your letter and encroachment permit application have been reviewed by
Town staff for consistency with applicable policies and regulations. We
understand your desire to secure additional parking for your residence and
improve vehicular access to parking spaces. However, the proposed
improvements are inconsistent with the Town's policy as set forth in
Resolution 16 -2010 (attached) regarding encroachments into the Town's
right -of -way. It appears to staff that the encroachments would have the
practical effect of privatizing the affected area for the exclusive benefit of
one or a limited number of individual owners in lieu of the general public,
and would therefore be an "impermissible purpose" according Section D
of the Policy. Furthermore, the proposed work does not qualify for any of
the "allowable purposes" as set forth in Section C of the Policy.
For these reasons, the Public Works Department must deny this
encroachment permit application. Staff would gladly work with you on a
new application that better conforms to the provisions of the Policy.
Please be advised that you may file an appeal of this denial with the Town
Clerk within ten (10) days of the date of this letter using the enclosed
appeal form. The appeal filing fee is $500.
Alice Fredericks
Mayor
Frank Doyle
Vice Mayor
Jim Fraser
Councilmembcr
Emmett O'Donnell
Councilmember
Erin Tollini
Councilmember
Margaret A. Curran
Town Manager
EXHIBIT NO..
Should you have any questions please contact me at 435 -7388.
Sincerely,
Al Petrie, P.E.
Interim Public Works Director 1 Town Engineer
Cc: Peggy Curran, Town Manager
Scott Anderson, Director of Community Development
Ann Danforth, Town Attorney
Joel Brewer, Superintendent of Public Works
Matthew Swalberg, Engineering Technician
RESOLUTION NO. 16 -2010
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON ADOPTING A POLICY REGARDING
THE ISSUANCE OF ENCROACHMENT PERMITS
PURSUANT TO TITLE V, CHAPTER 19 OF THE TIBURON
MUNICIPAL CODE
WHEREAS, the Town's regulations regarding encroachment permits for work
proposed in Town streets, street right -of -ways and other Town interests in real property
(including easements) are set forth in Title V, Chapter 19 of the Tiburon Municipal Code; and
WHEREAS, said Chapter 19 establishes definitions and procedures for the
review, issuance, conditioning and revocation of encroachment permits but does not set forth
policy direction for the benefit of Town decision - makers as to the appropriateness of various
requests for encroachment into said areas; and
WHEREAS, the Town Council finds that the Town has not, in the past,
adequately restricted the granting of such encroachments, and that as a result, Town property has
on occasion been converted to private use and Town -owned access has been unduly limited or
eliminated, all for private benefit and/or exclusive use of one or a limited number of individuals
rather than for the general public; and
WHEREAS, although Town encroachment permits are conditioned to require the
permit holder to remove encroachments at the Town's reasonable request, the substantial and
costly nature of some improvements, among other factors, inhibits actual removal and
compliance with Town direction to that effect; and
WHEREAS, the Town Council intends to continue granting encroachment
permits to the extent necessary and appropriate to promote the public safety and welfare and, on a
short term basis, accommodate short term work that cannot feasibly be accomplished without a
temporary encroachment; and
WHEREAS, the Town Council has determined that it is timely and appropriate to
adopt policy direction to further guard Town property interests against incursion by private
property owners and to clarify the Town's discretion to require the removal of encroachments;
and
WHEREAS, the Town Council has held a public meeting on this matter on March
17, 2010 and has heard and considered any public testimony and correspondence; and
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon does hereby adopt the following general policy with respect to encroachment permits
issued pursuant to Title V, Chapter 19 of the Tiburon Municipal Code.
Tiburon Town Council Resolution No. 16 -2010 0311712010
A. Definitions
For the purposes of this Resolution, the meaning of words and phrases, including
without limitation, Town streets, street right -of -ways, Town -owned land and other Town
interests in real property (including easements), shall be as set forth or used in Title V,
Chapter 19, of the Tiburon Municipal Code.
B. General Provisions
The Town shall have discretion to revoke any encroachment permit at any time. No
encroachment permit shall grant any private property owner a permanent right to perform work in
or use the area subject to the encroachment permit. The Town may, in its discretion, grant an
encroachment permit allowing access from private property to the public right -of -way, provided
that the Town shall condition any such encroachment permit as it deems appropriate to manage
or enhance the public right -of -way. The Town is not responsible for the cost of altering,
modifying, or removing any such encroachment if it deems such alteration, modification, or
removal is warranted.
C. Allowable Purposes
For the following purposes, and only if the Town finds that the encroachment will serve public
safety or welfare, the Town may issue encroachment permits for work within, upon, or beneath
Town streets, street right -of -ways, and other Town interests in real property (including
easements). Said permits shall contain conditions that shall include, without limitation,
revocation at the Town's discretion.
1. To allow access to private property for entry/egress purposes.
2. To allow applicants to install, build or replace sidewalks, curbs and gutters and curb cuts.
3. To allow applicants to install, maintain, or replace landscaping, within the parameters of
this policy. -
4. To allow applicants to maintain, repair or replace previously lawfully - installed
encroachments.
5. To accommodate required parking where the Town fords that (a) the applicant cannot
feasibly locate such parking on private property; or (b) the public safety or welfare is
better served by allowing such parking to encroach.
6. To allow applicants the opportunity to secure approval for existing encroachments that
the applicant cannot prove were lawfully installed and that are consistent with this policy
and Title V, Chapter 19 of the Tiburon Municipal Code.
7. To allow applicants to drain their properties of storm water in a controlled fashion
acceptable to the Town Engineer.
8. To allow utility companies to perform necessary work.
9. To allow Town contractors and/or service providers to perform authorized work.
10. To allow community groups to perform authorized work, either using volunteers or
contractors.
Tiburon Town Council Resolution No. 16 -2010 0311712010
11. To allow applicants to position a debris box or portable moving box for temporary
construction, storage or moving purposes, where such placement will not unreasonably
impede traffic circulation and pedestrian safety or otherwise be detrimental to public
safety or welfare.
12. To allow a limited and controlled amount of equipment and material associated with
permitted building construction activity.
13. To allow permitted special events with civic purpose and benefit.
14. To allow applicants temporary relief from unusually severe topographic or other physical
circumstances that create practical hardships to the creation of proper access to or
improvement of private property in the absence of the encroachment.
15. To allow control of invasive or fire -prone plants, for fire prevention or other purposes of
public benefit.
D. Impermissible Purposes
Encroachment permits for work within, upon, or beneath Town streets, street right -of -ways, and
other Town interests in real property (including easements) should not be issued in the following
instances:
1. Encroachments for the purpose of, or having the practical effect of, privatizing the
affected area for the exclusive use or benefit of one or a limited number of individual
owners in lieu of the general public.
2. Encroachments that would block, impede, or discourage public use or access over an area
determined by the Town Engineer to be appropriate and suitable for public use or access
either at present or in the foreseeable future.
3. Encroachments that in the judgment of the Town Engineer are not necessary or
appropriate to serve one of the allowable purposes listed in Section C above.
E. Duration.
Encroachment permits shall contain conditions of approval to restrict the duration of the
encroachment to a reasonable time necessary to accomplish the purpose thereof.
Except where the Town grants the permit pursuant to Sections C.1, C.2, C.3, C.4, C.5,
C.6 or C.7, above, or as provided in E.2, the Town will allow only temporary
encroachments.
2. Notwithstanding Section E.1, the Town shall have discretion to issue a permit for a long-
term encroachment if it finds that the encroachment is necessary for public safety reasons
or that the encroaching improvement will have a long -term public benefit commensurate
with the private benefit to the permit holder.
3. The conditions of approval for any permit for a long -term encroachment shall include,
without limitation, the following conditions of approval:
a. By acceptance of the permit and construction of the improvement or performance of
the work, the permittee agrees to indemnify, defend and hold the Town harmless from
Tiburon Town Council Resolution No. 16 -2010 0311712010
any claims, losses, litigation or other liabilities that may arise from the permittee's
performance of the work or construction and maintenance of said improvement.
b. The permittee shall execute a Memorandum of Encroachment, record it in the County
of Marin's Recorder's Office and provide the Town Engineer with a conformed copy
of the recorded Memorandum. If the subject project requires a building permit, the
permittee must record the executed Memorandum of Encroachment before the Town
issues said building permit. For all other projects, permittee must record the executed
Memorandum of Encroachment before the permittee enters onto the Town's property
to perform work pursuant to the encroachment permit.
c. The Memorandum of Encroachment shall describe the improvement that is subject to
the encroachment permit and shall contain the following advisory notice:
The encroachment permit does not grant the owner of the
encroaching improvement any permanent rights. The Town
has discretion to revoke the encroachment permit at any time.
In the event that the Town revokes the encroachment permit,
the owner of the encroaching improvement must promptly
remove the encroachment. The Town is not responsible for the
cost of altering, modifying, or removing any such
encroachment.
F.. Fee Waivers
The Town Council hereby authorizes the Town Engineer to waive application and/or processing
fees, in whole or in part, for certain encroachment permits in the circumstances listed below.
1. Where the applicant is a non -profit corporation or one or more citizens seeking
permission to perform work for the benefit of the public, the Town Engineer may
waive fees to an extent commensurate with the public benefit.
2. Where the applicant is a contractor performing work for the Town, the Town
Engineer may waive the fee in its entirety.
3. When permits are deemed, at the discretion of the Town Engineer, in support of
the public benefit.
Tiburon Town Council Resolution No. 16 -2010 0311712010
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon on March 17, 2010, by the following vote:
IN$) x1a"T1
ABSENT: COUNCILMEMBERS:
ATTEST:
DIANE CRANE OPI, TOWN CLERK
Collins, Fraser, Fredericks & O'Donnell
None
Slavitz
IZICHARD COLLINS, MAYOR
TOWN OF TIBURON
Tiburon Town Council Resolution No. 16 -2010 0311712010
APPELLANT(S)
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FAX and/or e-mail (optional): i41 9231 M , CV n"
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TOWN OF TIBURON
NOTICE OF APPEAL
1505 Tiburon Boulevard
Tiburon, CA 94920 Phone 415- 435 -7373
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ACTION BEING APPEALED
Review Authority Whose Decision is Being Appealed: 77 �y t-pn RU 6 I,-r- %(/D -� f
Date of Action or Decision Being
Name of Applicant: d0 1101, AAA- - 4ft /
Type of Application or Decision: G N ,, krpA c 4 *nen / L
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GROUNDS FOR APPEAL
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STAFF USE ONLY BELOW THIS LINE
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Fee Paid: Receipt No. Date of Appeal Hearing:
NOTE: Current Filing Fee is $500 initial deposit for applicant and $300 flat fee for non - applicant
S. WminisnaaonlForwWotice afAppeal for'nt revised 3- 9- 2010.doc Revised h9aich 2010
E -21-11 IBIT NO.-
To:
From:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
Mayor and Members of the Town Council
Department of Public Works
Town Council Meeting,
July 20, 2011
Agenda Item:
Subject: 1895 & 1897 Mar West Street: Encroachment Permit Application #11 -51
and #11 -72; Brian and JoAnne McCullough and David Barley, Owners and
Applicants; Assessor Parcel Nos. 059- 121 -10 and 11
Reviewed By:
BACKGROUND
The Town has received two encroachment permit applications requesting installation of private
improvements on the Mar West Street public right -of -way adjacent to residential properties
located at 1895 and 1897 Mar West Street. One application requests (among other things) that a
portion of a garage addition be constructed in the public right -of -way. The second application
requests the installation of a concrete staircase, retaining walls, and the replacement of a concrete
pad for refuse can storage. While the Public Works Director typically approves encroachment
permits of a minor or temporary nature, Chapter 19 of the Tiburon Municipal Code requires
Town Council approval of any encroachment permit "entailing the construction of buildings, car
decks, carports, garages or other long -term improvements of a substantial nature ". Staff has
determined that both of these applications are beyond the scope of its authority and require Town
Council action if they are to be approved.
REGULATORY FRAMEWORK
Chapter 19 of the Municipal Code establishes the encroachment permit requirement, process, and
procedure, but actual policy concerning encroachment permits is set forth in Town Council
Resolution No. 16 -2010, attached as Exhibit 1. The Town Council adopted the policy to provide
clarity and consistency concerning the purposes of encroachment permits. The policy contains
lists of "allowable" and "impermissible" purposes for encroachment permits, and has proven to
be a highly useful tool for Town staff.
PROJECT DESCRIPTION
In April 2011, architect Michael Heckmann submitted Encroachment Permit #11 -51 for work in
the public right -of -way adjacent to 1897 Mar West Street. This residential property is owned by
Brian and JoAnne McCullough and the project is known as the "McCullough Garage ". The
encroachment permit proposes installation of a one -car garage addition to an existing garage, a
concrete driveway, retaining walls, a stone veneer stairway, and a wood trellis in front of the
garage. A substantial portion of the garage would be on private property, but all the other
TOWN OF TIBURON
PAGE 11+OF4 -
*i
Torn Council Ntceting
July 1-0, 2011
improvements and a portion of the garage would be installed in the Mar West Street public right -
of -way. Please refer to application materials attached as Exhibit 2 for details.
In May 2011, Mr. Heckmann submitted Encroachment Permit # 11 -72 for work at 1895 Mar
West Street, which is owned by David Barley and is adjacent to the McCullough property. The
project is referred to as the `Barley Stairs ". Please refer to application materials submitted as
Exhibit 3 for details. This permit requests the installation of a concrete staircase with retaining
walls, a metal handrail and a replacement concrete pad for refuse containers. These
improvements are proposed in the Mar West Street public right -of -way, and would allow access
for the property owner and an adjacent neighbor at 1893 to their respective homes. Currently, the
only way to access these properties is to use the driveway leading to 1897 Mar West Street, and
then the narrow sidewalk passing in front of the McCullough residence. The slope up from Mar
West Street is quite steep in this area, creating the unusual access situation for the residents of
1893 and 1895 Mar West Street. Several Black Acacia trees would need to be removed to allow
installation of the proposed improvements. Please refer to Exhibit 4 for photos of the existing
sidewalk.
ANALYSIS
Staff has reviewed these two permits within the regulatory framework established by Resolution
No. 16 -2010, and provides the following analysis for each.
Barley Stairs Annlication (EP 11 -72)
If designed and conditioned to conform to Town requirements, such as minimum setback from
the edge of pavement, the Barley Stairs proposal would be, in staff's opinion, an acceptable
encroachment to improve access to the property and replace existing encroachments as authorized
under Sections C -1 and C -4, respectively, of the Resolution. The installation of the stairs would
allow direct pedestrian access to and from Mar West Street for the residents of 1893 and 1895
Mar West Street without the necessity of using the McCullough driveway. The existing sidewalk
in front of these three homes is narrow and in need of maintenance; the portions no longer needed
would be removed as part of the work. The new stairway would constitute a permanent (although
revocable) improvement within the public right -of -way and would be highly visible based on the
elevation drawings. Design review approval of the project elements would be required should the
Town Council approve the encroachment permit.
McCullough Garage Annlication (EP 11 -51)
The McCullough Garage application presents a more problematic situation in that it proposes a
portion of an enclosed garage addition to be located on the public right -of -way, which is an
impermissible purpose under Section D -1 of the Resolution. To staffs knowledge, no one has
applied with the Town for an enclosed garage on the public right -of -way since 1998. The last
such application, for a property on Spanish Trail Road, was denied by the Town Council as being
poor public policy, and staff has diligently enforced that policy ever since as an important and
appropriate protection to keep public property from effectively becoming private property. In
2010, the Town Council reinforced the policy and ongoing practice by adopting Resolution 16-
2010.
Tow'N of TI6l ; IU)N Page 2 of 4
Town Council Meeting
July 20, 2011
However, even into the 1980's some properties, particularly in the Old Tiburon neighborhood,
received approval to construct garages in the right -of -way, sometimes under the mistaken belief
by the Town that the unused street right -of -way was still privately -held and had not been
accepted into public ownership. Photographs provided by the applicant depict a few of those
instances along Mar West Street. However, staff has verified that all of Mar West Street,
including its entire right -of -way, has been deeded or dedicated for public street purposes and that
no portion remains owned by the heirs of the original sub - divider (Dr. Lyford) or any other
private individual.
Section C -5 of the Resolution allows flexibility to accommodate "required parking" on the public
right -of -way when not feasible on private property, but allowing new fully enclosed buildings to
be built (even partially) on the public right -of -way remains highly inadvisable as it unnecessarily
burdens the right -of -way and has the effective of creating a long -term privatization of public land.
Simply because an applicant cannot accomplish what he or she wishes on their private property
does not create a basis for doing so on public land. An open -style parking improvement (as
opposed to an enclosed garage) with minimal encroachment into the right -of -way is the approach
that allows the parking but in a manner that is consistent with both policy and practice. Except
for the proposed trellis, the other elements of this application, including the access staircase,
driveway, and retaining walls would be acceptable under Sections C -1 and C -2 of the Resolution,
provided that they conform to Town requirements such as setback from edge of pavement.
In both cases, the proposals represent "long -term encroachments of a substantial nature" and
could have a substantial adverse effect on vehicular or pedestrian circulation or on public health
and safety, particularly given the narrow rights -of -way that characterize the neighborhood.
Therefore, any Town Council approval should be conditioned to include a recorded
Memorandum of Encroachment to address revocability, maintenance and other issues, as well as
other reasonable conditions to be imposed by Town staff.
FINANCIAL IMPACT
Other than staff time, there is no fiscal impact anticipated. Installation and maintenance of the
improvements would be the responsibility of the property owner /permit holder.
RECOMMENDATION
Staff recommends that the Town Council:
1. Review the two encroachment permit applications and hear any public comment.
2. Approve the Barley Stairs application (EP 11 -72), subject to the imposition of reasonable
conditions by Town staff.
3. Approve the McCullough Garage application (EP 11 -51), amended to eliminate the trellis
and provide an oven yarking space in lieu of the proposed enclosed garage, subject to the
imposition of reasonable conditions by Town staff.
1. Town Council Resolution No. 16 -2010
2. Application materials for the Barley Stairs project
Tow-,; OF TCBf Ru:. Page 3 of 4
Town Council Meeting
July 20, 2011
3. Application materials for the McCullough Garage project
4. Photos of existing sidewalk
Prepared By: Matt Swalberg, Engineering Technician
Nicholas Nguyen, Director of Public Works
Scott Anderson, Director of Community Development
S: IdministrationlTenm CounciAStaf ReportsQ011Vuly 20 draffslMar West Street Encroachment Permits report.doc
TOWN OFTI6URON Page 4 of 4
Mayor Slavitz closed the public hearing
MOTION: To accept the report, as presented.
Moved: O'Donnell, seconded by Fraser
Vote: AYES: Unanimous
ABSENT: Fredericks
PUBLIC HEARING
1. 1895/1897 Mar West— Consideration of encroachment permit applications to construct
private improvements on the Mar West public right -of -way adjacent to private properties
located at 1895 and 1897 Mar West (Department of Public Works; Department of
Community Development)
-- Encroachment Permit Application Nos. 11 -51 and 11 -72
-- Owners /Applicants: Brian and Joanne McCullough; David Barley
-- Assessor Parcel Nos. 059- 121 -10 and 11
Director of Public Works /Town Engineer Nguyen gave the report. He said the Town had
received two encroachment permit applications requesting installation of private improvements
on the Mar West Street public right -of -way adjacent to residential properties located at 1895 and
1897 Mar West Street. Nguyen said that one of the applications requests that a portion of a
garage addition be constructed in the public right -of -way, and the second application requests the
installation of a concrete staircase, retaining walls, and the replacement of a concrete pad for
refuse can storage.
Nguyen said that while the Public Works Director typically approves encroachment permits of a
minor or temporary nature, Chapter 19 of the Tiburon Municipal Code requires Town Council
approval of any encroachment permit "entailing the construction of buildings, car decks,
carports, garages or other long -term improvements of a substantial nature ". He said that staff had
concluded that both of these applications were beyond the scope of its authority and would
require Town Council action if they are to be approved.
The Director recommended that the Town Council consider 1) approval of the Barley Stairs
application (EP 11 -72), subject to the imposition of reasonable conditions by Town staff; and 2)
approve the McCullough Garage application (EP 11 -51), amended to eliminate the trellis and
provide an open parking space in lieu of the proposed enclosed garage, subject to the imposition
of reasonable conditions by Town staff.
In his written report, Nguyen said that in both cases, the proposals represent "long -term
encroachments of a substantial nature" and could have a substantial adverse effect on vehicular
or pedestrian circulation or on public health and safety, particularly given the narrow rights -of-
way that characterize the neighborhood. Therefore, any Town Council approval should be
conditioned to include a recorded Memorandum of Encroachment to address revocability,
Town Council Minutes 915 -2011 July 20, 2011 Page 6
EXMLIBIT NO. 6
maintenance and other issues, as well as other reasonable conditions to be imposed by Town
staff.
Mayor Slavitz asked about other buildings in the neighborhood that had garages built right up to
the street. Director of Community Development Anderson said that the last application the Town
had received to build a garage in the public right -of -way had been denied in 1998. He said that
the examples [on Mar West] cited by Mayor Slavitz had been built in the 1980s or earlier, prior
to adoption of more current Town regulations. He noted that the McCullough garage was already
a non - conforming structure.
Mayor Collins asked about the application to build a garage on the right -of -way on Spanish Trail
that had been denied. Anderson explained that the width of the roadway in that location was
similar or less than Mar West Street.
Vice Mayor Fraser asked about the existing sidewalk and vegetation and who had the
responsibility for maintenance.
Director Nguyen said that in many cases, the property owners "take ownership" of the right -of-
way and maintain it. Town Attorney Danforth clarified, noting that under the Town's sidewalk
maintenance ordinance, the sidewalk is owned by the Town but it is the responsibility of the
property owner to maintain it.
Mayor Slavitz asked what the purpose was for a public right -of -way. Town Attorney Danforth
said that it had several uses, to maintain a buffer for the opening of car doors and the like, and for
the ability to expand or maintain the street.
Director Nguyen commented that in this location, there was not much useful space available [on
the road right -of -way] for the public benefit.
Mayor Slavitz asked why town staff recommended approval of the stairway application.
Town Manager Curran replied that it was because one property was accessed via the other
property and the stairway would allow more reasonable access over the right -of -way for people
to get to their homes. But she warned of "privatization" of the right -of -way in the garage
application; she said the Town's policy was clear that it was impermissible to build an enclosed
structure in the public right -of -way.
Councihmember O'Donnell asked whether it was common to have that much right -of -way [in the
location of the McCullough garage]. Director Anderson said that it was not unusual to have a 50
feet of right -of -way for a public street, but noted that this subdivision dated to the 1800's and its
surveyors do not appear to have paid munch attention to how topography affected street layouts
or property lines.
Councilmember Collins asked Staff for an explanation of the 50 feet; he was told it was roughly
Town Council Minutes 915 -2011 July 20, 2011 Page 7
30 feet of right -of -way and 20 feet of roadway in this location.
Mayor Slavitz opened the public hearing.
Architect Michael Heckmann, representing the McCulloughs, said that this application was the
"final step" in the remodel project for his clients, and that it went further to resolve a number of
issues in the neighborhood, such as lack of parking.
Heckmann also said that the stairway would provide a safer, code - compliant way to access the
two homes. He said the design was similar to a Raccoon Lane stairway already approved by the
Building Department.
Heckmann said that the design of the garage would be in character with the house, and proposed
minimizing the height by using a "green" roof.
As for the trellis, Mr. Heckmann said that he was not sure why staff recommended against
approval and that all three affected property owners supported the project as presented.
Vice Mayor Fraser asked where the occupants of 1893 and 1895 Mar West parked. Mr.
Heckmann said that they parked on the street but that even parking parallel did not allow enough
[legal] clearance on the roadway.
The Vice Mayor asked if the proposed additional parking pad would take away one space on the
street. Mr. Heckmann said that it would not, that there would still be parking for five cars and
that the garage would "get two cars off the street."
Councilmember Collins asked if one wall would be removed from the existing garage. Mr.
Heckmann said that it would be, in order to widen the garage door to accommodate the turning
radius into the driveway.
Collins also asked about where the trash receptacles were located for the Barley residence. Mr.
McCullough said that they had to bring them across his driveway, which was difficult when a car
was parked there.
Councilmember Collins asked if the second parking space could be pushed back farther off the
street. Mr. Heckmann said that he was concerned about pushing back which might jeopardize the
foundation of the house. He added that the garage was 18 feet off the pavement, while two other
garages down the street were just one and three feet off the pavement.
Town Manager Curran said that the Town was protective of its right -of -way and that the genesis
of the Town's policy, adopted in 2010, had been due to illegal privatization of public rights -of-
way.
Curran said that while town staff supported the idea of off - street parking, it might be helpful to
Town Council Minutes #15 -2011 July 20, 2011 Page 8
move off - street parking back and/or create a parking pad [which was allowed under Town
policy].
She said that enclosed buildings were prohibited on town right -of -way and that the Town staff
saw no way to allow it under existing policy. She also commented that it was important to think
of the future public good in making its decision.
Councilmember Collins asked whether creation of a parking pad on Mar West would necessitate
the building of a retaining wall. Mr. Heckmann said that it would, and that it would probably
have to reach a height of 11 feet in the back.
Vice Mayor Fraser asked for the actual amount of setback required from the street in the Town's
regulations, and asked whether a smaller garage could be contemplated, wherein the Town could
allow a smaller encroachment, such as two feet, under the policy. Mr. Heckmann said that a 19-
foot setback was required by the Town. Director Anderson said that a standard parking space is
8 -1/2 by 18 feet. Heckmann added that it made no sense not to build it correctly. Mr.
McCullough said that the current [old] garage was not useable because of its size.
Architect Heckmann asked the Council to find some flexibility in its policy and to weigh the
merits of the project, and special circumstances, such as topography and location, in its decision.
He suggested that the public safety could be served under Section C -5, and that a long -term
public benefit could be obtained under Section E -2.
Mayor Slavitz said he thought the application, as presented, was in conflict with what was
permissible in the policy.
Mr. Heckmann said that the street parking in that location was not to legal standard now, and that
the new garage and stairway would contribute to public safety through better access for property
owners, visitors, and public safety personnel.
Applicant Brian McCullough noted that there was a lot of property crime in that area, with three
hit and run accidents, vehicles being "keyed" and a bumper stolen. He said that he had made
improvements to the area by removing acacia trees which impeded visibility, and added that the
Town had not done anything to maintain the vegetation or address the slide problems. He noted
that he alone was funding the project, including the stairs, for the benefit of his neighbors, as well
as improving the aesthetics. He also commented that it was an overcrowded street for parking
because many workers downtown parked there because it was "free" parking.
Mayor Slavitz closed the public hearing.
Town Attorney Danforth recommended that the Town Council apply its encroachment policy to
this application. She stated that with all due respect to Mr. Heckmann, who has considerable
experience in the community, he had "cherry picked" the parts of the policy to fit his argument.
Town Council Minutes #15 -2011 July 20, 2011 Page 9
Danforth noted that section E -2 of the policy allowed encroachments only for the purposes listed
under Section C. She noted that parking could be created in another fashion other than the one
proposed by the applicant, and that it was not necessary to enclose the garage for public safety or
public benefit under Section E -2. She said that approving the permit, as presented, would result
in unnecessary privatization of the right -of -way.
Mayor Slavitz concurred, stating that he saw no way to make findings to create an exception
under the Town's policy.
Councilmember Collins asked if this applied to the other application (for the stairway), as well.
Town Attorney Danforth said that the stairs could qualify for an encroachment permit under
Section C -1, but that the trellis did not qualify. She added that the parking pad would be
acceptable under the Town's policy.
Councilmember O'Donnell said that he disagreed with staffs recommendation. He said that in
his [Hillhaven] neighborhood, it was a common occurrence for homeowners to make
improvements in the public right -of -way. He noted that the McCulloughs had built a beautiful
home and had taken great care in maintaining both their own, and the Town's, property.
O'Donnell said that the creation of a parking pad on the street would be an eyesore in the
neighborhood, and that the garage would be more consistent with the overall existing character.
He said that he did not see the permit as a private taking, rather, a solution to a problem in a
unique neighborhood (one of the oldest in the Town), where the property lines were not drawn
nor streets built to modern standards or current needs.
Councilmember O'Donnell said that he had to stop twice while driving down Mar West Street in
that location in order to let a truck pass. He said that the permit would be a "common sense"
approach and has the complete support of the neighbors.
O'Donnell said that he would support approval of both the stair application, as well as the garage
application. He also said he thought a gable on the garage would be aesthetically pleasing and
would match the house.
Councilmember Collins introduced the idea of modifying the Town's policy before voting for an
approval. Town Attorney Danforth said that would be a prudent approach and one where the
Council could use this application as a case in point.
Collins also suggested that a separate "cut -out" for parking might be a requirement for approval
in order to get a car (or its wheels) off the roadway. Director Anderson said that could be
consistent with the Town's policy and a benefit to the general public.
Vice Mayor Fraser said that he knew the street in question very well, having lived in that
neighborhood. He said that street was unusual and the neighborhood was unique. He suggested
that once in a while, the Council should go back and look at its codes and try to make
Town Council Minutes #15 -2011 July 20, 2011 Page 10
adjustments for all the right reasons. Fraser said that the applications constituted a well-put-
together plan, and that he thought findings could be made that the improvements would also
improve public safety in the area.
The Vice Mayor also commented that from the look of it, one would never know that the existing
garage was on a public right -of -way because of its setback; he said that permitting it would not
constitute a precedent and that he would vote for its approval. However, Vice Mayor Fraser
concurred that the approval should be "done properly" by considering changes to the policy.
Mayor Slavitz said that he understood the sentiments of his colleagues but still thought that it
appropriate to look at the findings and recommendations in the staff report. He said that he would
vote for approval of the stairway improvements but not the garage, because the findings to
approve it could not be made under the Town's policy. He also pointed out that all four staff
members present were unanimous in their opinion that allowing the garage was poor public
policy and set a poor precedent.
The Mayor said that while everyone says an approval would not set a precedent, voting for an
exception in his experience did set a precedent and that before long, other applicants would want
similar approvals. He noted that the applicants themselves discussed other garages in the
neighborhood. He also said that he would be more sympathetic if there were no other options.
The options he saw were to carve out two parking spaces [parking pad], or building an open
garage, like other residents had done on Solano Street.
Councilmember O'Donnell said that the Town would probably allow the applicant to re -build the
[enclosed] garage if there was a fire, and in any event, he said it was the job of the Council to
review applications on a case -by -case basis.
O'Donnell said that "Old Tiburon" is unique, and that the garage was set back so far already, one
would never know if was on the right -of -way. He also stated that pushing the garage back would
require removal of a "gorgeous tree ".
Vice Mayor Fraser reiterated his opinion that a parking pad was not a good solution. He said it
would detract from the neighborhood, and that pushing the garage back even further might
jeopardize the property. He said that the alternatives presented in the Council discussion were not
good alternatives.
Town Engineer Nguyen commented that it had been asserted but not demonstrated that the
parking pad could not be pushed further back on the property, noting "anything can be done" in
engineering to achieve a result.
Councilmember Collins again discussed amending the policy; he said that he did not know about
these kinds of situations at the time the policy was adopted. He said that bringing back an
amended policy to Council would allow an analysis of what an appropriate exception might be.
Town Council Minutes #15 -2011 Jule 20, 2011 Page 11
Applicant McCullough said that getting cars off the center line of the roadway to a legal level
might be the exception to the policy.
Mayor Slavitz noted that the majority of the Council wanted to find an exception in the policy in
order for its consideration of the [garage] application. Council directed the Town Attorney to
return to Council with recommendations for a modified policy.
Item continued to either August 17 or September 7.
TOWN COUNCIL REPORTS
None.
TOWN MANAGER'S REPORT
Town Manager Curran said she had received a request from Battalion Chief Ed Lynch about the
possibility of staging a scaled -down version of the Fireman's Ball at the September 23 Friday
Nights on Main (FNOM). She said Lynch had requested permission for the music and event to go
slightly later (until 10:30 or 11 p.m.) than the usual FNOM end time of 9 p.m. Council concurred
with the request.
Curran noted that there would be a report from the MCCMC Committee on Pension Reform at a
Council meeting in September, led by Councilmember O'Donnell.
Finally, the Town Manager reported that Town staff had obtained an estimate to remake the
public sign at the Cove Shopping Center similar to the new sign at Blackie's Pasture. A brief
discussion ensued about the sign at Blackie's and view blockage caused by another (Caltrans)
street sign in the vicinity.
WEEKLY DIGESTS
• Town Council Weekly Digest —July 8, 2011
• Town Council Weekly Digest —July 15, 2011
ADJOURNMENT
There being no further business before the Town Council of the Town of Tiburon, Mayor Slavitz
adjourned the meeting at 10:33 p.m.
JEFF SLAVITZ, MAYOR
ATTEST:
Town Council Minutes 915 -2011 July 20, 2011 Page 12
To:
From:
Subject:
Reviewed By:
TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
BACKGROUND
Mayor and Members of the Town Council
Town Staff
Town Council Meeting
August 23, 2011
Agenda Item:
1895 & 1897 Mar West Street: Consider Revisions to the Town's
Encroachment Permit Policy (Resolution No. 16 -2010) and Consider
Encroachment Permit Application #11 -51; Brian and JoAnn McCullough,
Owners and Applicants; Michael Heckmann, architect; Assessor Parcel Nos.
059- 121 -10 and 11
The Town has received two encroachment permit applications asking to construct private
improvements in the Mar West Street public right -of -way. The projects are adjacent to
residential properties located at 1895 and 1897 Mar West Street. One application proposes
(among other things) to construct a portion of a garage addition in the public right -of -way. The
second application proposes to install a concrete staircase, retaining walls, and the replacement of
a concrete pad for refuse can storage. Both applications required Town Council approval.
The Town Council discussed this item at length at its meeting of July 20, 2011. Draft minutes of
that meeting are located in Consent Calendar portion of this Town Council packet for reference.
At that meeting, the Council expressed no objections or concerns about the second application's
(i.e. Barley Staircase) general consistency with the Town's Encroachment Policy, adopted in
Town Council Resolution No. 16 -2010 ("Encroachment Policy). That application has
subsequently received a conditional approval for design review and will be progressing through
the encroachment permit process. Some redesign, including reducing the size of the proposed
stairway, will be required to meet Public Works conditions.
A majority of the Town Council also supported the garage application as well, but acknowledged
that approving that project would violate the Encroachment Policy. Council directed staff to
return with potential revisions to the Policy for Council consideration. The Council indicated that
it would decide the encroachment application after making an appropriate policy change.
POTENTIAL REVISIONS TO POLICY
The Council adopted the current Encroachment Policy on March 17, 2010 to address a long -term
problem: the proliferation of permanent encroachments that effectively convert Town property to
private use. The Encroachment Policy imposed significant restrictions on such encroachments,
TOWN OF TIBURON
PAGE 1 OF 4
L411IDIT NUJ.
Town Council Meeting
August 23, 2011
establishing narrow criteria for encroachment permit approval. The 1897 Mar West application
does not meet the existing criteria. Town staff's draft revisions to the policy would widen the
criteria to reflect the Council's July 1 Oth consensus. As understood by staff, that consensus
dictated the following:
1) The revisions should apply to the current application, but be narrowly focused to
apply only to similar situations;
2) Authorized encroachments should produce a substantial and material public safety
benefit by improving a substandard safety- related public street condition, creating
or upgrading street parking to meet current standards of acceptability, and
minimizing the extent of encroachment of a structural addition.
Unusual Circumstances: In reviewing the physical context and characteristics of the pending
application, staff found little to distinguish it from numerous similar situations where a steep
slope forms a part of the public right -of -way abutting private property. However, the existing
building that encroaches onto the right -of -way is a highly unusual and limiting circumstance
throughout nearly all of Tiburon. The proposed revision capitalizes on this rare occurrence by
expanding Section CA of the Encroachment Policy Resolution to allow additions to such pre-
existing structures under certain circumstances. At present, Section CA of the Encroachment
Policy allows permits for permanent encroachments to maintain, repair or replace previously
lawfully - installed encroachments. If amended, Section CA would also authorize additions to
prior lawfully - installed encroachments where the Town found sufficient public benefit.
Public Benefit: Council members favoring the project indicated that the project would improve
the 1897 Mar West Street situation in that the substandard safety- related public street conditions
of narrowness and limited sight distance are combined with existing on- street parking that is a
substandard distance from the center line of the roadway. There is also an unusually deep (25')
portion of unused Mar West Street right -of -way abutting the subject parcel. These circumstances
create a situation where the project could materially improve the existing conditions. For
instance, an improved parking "cut out" along the street could provide a material public safety
benefit by increasing the distance of parked cars from the centerline of the roadway, enhancing
sight distance, and reducing centerline- crossing maneuvers. These could be substantial and
material public safety benefits if properly designed and implemented. The maximum garage
encroachment of five feet into the 25 feet of unused right -of way could be found by the Town
Council to be "minimized ". The project would also create a new "guest" parking space on the
driveway apron leading to the garage addition.
If the Council decides to modify Section CA of the Encroachment Policy as described above, it
should also amend Section D.1 to allow the relative privatization of public property that would be
occupied by the permitted additions, which is impermissible under the current policy. A draft
Resolution amending the current Encroachment Policy is attached as Exhibit 1. All proposed
revisions are on pp. 2 -3 of that exhibit, with proposed new text double - underlined.
Tow\ oPTIBiTRON' Page 2 of 4
Town Council Mecting
August 23, 2011
THE CURRENT ENCROACHMENT PERMIT APPLICATIONS
As discussed above, the draft revisions are motivated by the Council's support of the proposed
encroachments. However, achieving the expected benefits is not as straightforward as it might
appear. The Public Works Director has evaluated the site to estimate the extent of work
necessary to create improved street parking along the street frontage in the vicinity of the project.
With the currently proposed Barley Staircase, there is only space for a one -car cut -out between
the proposed staircase and the McCullough entryway and garage addition. To create the cut -out,
it is estimated that a retaining wall as high as 11 feet must be constructed. If designed and built
along with the Barley and McCullough proposed improvements, the cut -out could be better
integrated and conceivably less stark and massive. Another option would be to create a two -car
cut -out, which is a more cost - efficient design since the earthwork is only marginally increased, if
any, and the overall scale of the project would be no greater. However, it would more than likely
require revising the Barley and McCullough plans to do so. Thus, while creating a cut -out would
meet the criterion of public safety benefit, it is unlikely to be easily or inexpensively
accomplished.
REMAINING CONCERNS
There is remaining concern on the part of Town staff as to the parking benefits purportedly
gained by construction of the garage addition. The existing one -car garage is not currently used
to park a vehicle, but instead serves as a storage, or possibly workshop, area. The owner stated at
the July 20, 2011 meeting that the garage was not usable for parking because of its size.
However, the proposed addition to the garage (see Sheet A2.1 of Exhibit 2) has exactly the same
floor area as the existing garage, begging the question as to whether the enlarged structure would
actually be used to park two vehicles or if the enlargement will simply allow one car to share the
space with the existing storage area. It seems appropriate that if an existing encroachment is
expanded for garage purposes that the structure be used for that purpose alone.
If the proposed double garage is used for only one vehicle, and the additional curb cut for the new
space removes one parking space from the street, there is no net gain of parking in the vicinity,
although one car would be parked off the street rather than on it. It may be more appropriate to
simply allow a modest increase in the size of the existing garage to allow it to be more suitable
for parking, particularly if it is difficult to create or conclude there is a public safety benefit
associated with this application. This seems feasible in that the owner has already indicated his
intention to eliminate the wall between the existing garage and the addition.
FUTURE STEPS
If the Council decides to issue the requested encroachment permit for the proposed garage
addition, the project would require design review approval and a variance from the Design
Review Board for reducing the front yard setback to zero. The applicant would also need a
building permit before beginning construction.
or TIISI,IwN Page 3 of 4
Town Council Meering
Aucust 23, 2011
RECOMMENDATION
Staff recommends that the Town Council:
1. Hear and consider any public comment.
2. Consider adoption of revisions to the Encroachment Policy.
3. If appropriate, indicate conceptual approval of the McCullough Garage application (EP 11-
51), subject to a determination of conformance with the revised Policy, the imposition of
reasonable conditions by Town staff, and securing of all necessary permits.
EXHIBITS
1. Draft revisions to Town Council Resolution No. 16 -2010
2. Letter from Dellie and Doug Woodring, dated August 1, 2011
3. Application drawings for the McCullough Garage project
Prepared By: Scott Anderson, Director of Community Development
Nicholas Nguyen, Director of Public Works
Ann Danforth, Town Attorney
SA4dmiWstratioMTmvn CoundA3IaffRepnrts@OI 11 August 23 dra,JisUdar West Street Encroachment Permits report2.doc
Trn\•s nr Tuai l aoN Pagc 4 of 4
Clerk. He said the cancellation of the election would result in a cost savings to the Town.
Mayor Slavitz asked if there was any comment from the public on this item. There was none.
MOTION: To adopt resolution appointing Richard Collins and Frank Doyle to the Town
Council and cancelling the November 8, 2011 election.
Moved: Fredericks, seconded Fraser
Vote: AYES: Fraser, Fredericks, O'Donnell, Slavitz
ABSTAIN: Collins
The Town Clerk noted that the appointees would not take office until December 7, 2011.
—� 2. 1895/1897 Mar West Encroachment Application and Resolution Modifying
Encroachment Policy –
a. Consideration of encroachment permit applications to construct private
improvements on the Mar West public right -of -way adjacent to private properties
located at 1895 and 1897 Mar West (Department of Public Works; Department of
Community Development) – continued from July 20, 2011
Encroachment Permit Application Nos. 11 -51 and 11 -72
Owners /Applicants: Brian and Joanne McCullough; David Barley
Assessor Parcel Nos. 059 - 121 -10 and 11
b. Consideration of Resolution modifying Town encroachment policy (Town Attorney
Danforth/Director of Community Development Anderson)
Town Attorney Danforth said that the Council had discussed the applications at length at its July
20, 2011 meeting. At that meeting, Danforth said that the Council expressed no objections or
concerns about the application for the Barley staircase's general consistency with the Town's
Encroachment Policy, adopted in 2010. She said that the application had subsequently received a
conditional approval for design review and would be progressing through the encroachment
permit process, noting that some redesign, including reducing the size of the proposed stairway,
would be required to meet Public Works' conditions.
Danforth said that a majority of the Town Council also supported the garage application at the
same meeting, but acknowledged that approving that project would violate the Town's
Encroachment Policy for an enclosed structure on the Town's right -of -way. She said that Council
directed staff to return with potential revisions to the policy for Council consideration, and that
the Council indicated that it would decide the encroachment application after making an
appropriate policy change.
The Town Attorney said that Councilmembers favoring the project indicated that the project
would improve the substandard street conditions of narrowness and limited sight distance
Town Council Minutes #17a -2011 August 23, 2011 Page 3
E "HIMIT N0.Y
combined with existing on- street parking that was substandard distance from the center line of
the roadway. She said that there was also an unusually deep (25') portion of unused Mar West
Street right -of -way abutting the subject parcel and that these circumstances created a situation
where the project could materially improve the existing conditions. For instance, Danforth said
that a parking "cut out" along the street could provide a material public safety benefit by
increasing the distance of parked cards from the centerline of the roadway, thereby enhancing
sight distance and reducing centerline- crossing maneuvers.
According to Danforth, these could be substantial and material public safety benefits if properly
designed and implemented. She also stated that the maximum garage encroachment of five feet
into the 25 feet of unused right of way could be found by the Town Council to be "minimized".
The project would also create a new "guest" parking space on the driveway apron leading to the
garage addition.
Ms. Danforth led the discussion of which sections of the existing policy should be amended if the
Council chose to amend the policy. However, she added that staff was not certain that the
circumstances of the application truly fit the definition of public benefit, as it was not obvious
that applicant's project would actually achieve the additional, improved parking.
Danforth said that the Public Works Director had evaluated the site to estimate the extent of
work necessary to create improved street parking along the street frontage in the vicinity of the
project. With the current proposed Barley staircase application, she said there would be only
space for a one -car cut -out between the proposed staircase and the McCullough entryway and
garage addition. She said it was estimated that an 11 -foot high retaining wall would need to be
constructed to make this improvement.
Another option would be to create a two -car cut -out and, according to staff, the overall scale of
the project and related earthwork would be no greater. Danforth said that it would most likely
require revisions to the Barley and McCullough plans to do this. She noted that while creating a
cut -out would meet the criterion of public safety benefit, it was unlikely to be easily or
inexpensively accomplished.
The Town Attorney said that staffs remaining concerns centered around the purported benefits
gained by construction of the garage addition. She said that the existing one -car garage was not
used to park a vehicle currently, but instead served as storage or possibly a workshop. She said
the owner stated at the July 20 meeting that the garage was not usable for parking because of its
size. She stated that the proposed addition was exactly the same size which begged the question
of whether there would be a net gain of parking spaces. Danforth said that if the Council did not
find that there was a public safety benefit associated with this aspect of the application, the
Council might decide to simply allow a modest increase in the size of the existing garage to
enhance its suitability for parking.
Councilmember Fredericks asked about the Barley stairway application and which properties it
would connect. She noted the intricate path and lane structure in the neighborhoods of "Old
Town Council Minutes #17a -2011 August 23, 2011 Page 4
Tiburon" and asked whether any properties would be "cut off' by construction of the new
staircase. Town Engineer Nguyen said that none would be.
Fredericks then asked if a third property would lose the right to use the sidewalk as a result of
relocating the stairway in the applicant's plans. Town Manager Curran said that the
improvements would alter the access but would not cut it off. Town Attorney Danforth said that
the sidewalk was owned by the Town and that access would not be disrupted. She added that the
access to the third house would appear to be improved by the proposed stairway.
Fredericks also asked if the 25 -foot setback for the garage was from the center of the roadway.
Mr. Nguyen said that the distance was measured from the edge of the pavement.
Mayor Slavitz asked what the response was to the statement that the application would `only"
encroach five feet into the public right -of -way. Town Attorney Danforth said that the public
right -of -way was lost in increments and that each structures reduced opportunities for use of
improvements to those right -of -ways in the future. She said that it behooved the Council to
decide if the encroachment would actually create any new parking before approving the
application.
Councilmember Fredericks asked about the encroachment of the existing garage and was told
that a majority of the garage was on private property but that a portion encroached onto the Town
right -of -way. She asked how often the Town allowed a structure to be built on its right -of -way
and then asked for it to be removed. Town Attorney said that it had never been done.
Councilmember Fredericks said that in her analysis, what the applicant sought in their garage
application represented a gift of public good to a private property owner. She said that it was
difficult at this moment to envision future uses of that right -of -way but that there might be a time
in future where it could be used as a site for utility boxes for fiber optic service, for instance, and
that once given up, it would no longer be available for public use.
Councilmember Collins asked for more clarification of the number of parking spaces that could
be created in a cut -out west of the staircase. Town Engineer Nguyen said that the project, as
designed, allowed for one car space but that if redesigned, possibly a two -car cut -out could be
achieved.
Councilmember O'Donnell asked whether the stairs could be "re- zigged "or designed differently,
to create more parking along the street, as envisioned by Councilmember Collins. Architect
Heckmann said that it might be possible but that it would mean a longer or steeper stairway
between the two houses. He said that it would make a more `vertical" staircase and that they had
planned for a more graceful design.
Councilmember Fredericks asked if a new design [of the stairs] would still require an estimated
11 -foot retaining wall in the vicinity. Nguyen said that plans would have to be developed and
noted that staff was not trying to tell the applicant "how" to redesign the project [but was offering
Town Council Minutes #17a -2011 August 23, 2011 Page 5
some ideas regarding solutions to the parking issue].
Mayor Slavitz asked if the applicant would be creating more parking spaces on the street on his
own, if this proposal was approved, or whether the Town would get involved with this proposal.
Town Engineer Nguyen said that answers to this question had not been addressed.
Mayor Slavitz opened the item for public comment.
Michael Heckmann, architect representing the applicant, expressed surprise at the direction the
Council seemed to be moving in. He said that 30 days ago, the Council had indicated its interest
in approving the proposed garage addition as a positive step in resolving some neighborhood
parking issues, as well as approving the stairway application, as submitted. He said the direction
given to staff was that the Town's policy would be amended at the subsequent meeting prior to
approval of the project.
Heckmann briefly reviewed the highlights of the garage project and stairway. He said the
stairway would provide a new access point; that currently everybody who accessed the stairway
walked up the McCullough driveway and accessed the stairs over the McCullough property. He
said had met with the Building Inspector and that the stairway, as proposed, met the Town's code
requirements. He said he did not think a retaining wall was a good idea and that it would limit the
ability to landscape and would result in a big, exposed chunk of concrete wall in that vicinity. He
said he was not certain where the discussion of the easement for the garage was headed.
Councilmember Collins asked whether the existing garage could simply be widened by three to
four feet. Mr. Heckmann said that the simply widening of the garage would allow the single
garage to function better but that it would be a tragedy not to get another parking space out of it,
in the process.
In response to questions from Councilmember Collins about moving the staircase in another
direction or relocating it, Heckmann said that it would not be possible since the neighboring
property owner (Bille) also wanted to apply for a permit to build a garage or a parking space in
that location.
Mayor Slavitz asked if the garage could be moved back and possibly dug into the hill. Mr.
Heckmann said they had looked at that alternative and had talked to a geotechnical engineer who
said it would undermine the foundation of the house.
Councilmember O'Donnell added that it would also mean losing the beautiful palm tree in that
location. Town Manager Curran pointed out that the applicants' plans showed removal of the
tree. Heckmann said that his clients wanted to preserve it and possibly move relocate it on the
property.
Joanne McCullough said that the two -car garage would be a public benefit and would create
more parking on the street. She said the design was aesthetically pleasing, and included a "living
Town Council Minutes #17a -2011 August 23, 2011 Page 6
roof' on the top. She said that tenants from two other homes crossed their property daily, and that
the McCulloughs would like the Barley and Bille residences to have their own access to their
homes.
Councilmember Fredericks reiterated her concerns about privatization of the public right -of -way.
She also suggested an application for open garage structure would be in compliance with existing
Town policy guidelines. She said that a public benefit might be gained if parked cars were
farther back from the center line of the street but that overall, she did not see a public benefit in
the project, as presented.
Councilmember Fraser said that 30 days ago, a majority of the Council had been supportive of
the project but realized that an amended Encroachment Policy, that included exceptions for
public safety benefits, would be needed to approve it. He said that Mar West was a very unique,
narrow street, and there were hazards to both people and cars when travelling down it. He said
the McCulloughs were doing the right thing in trying to manage the area by maintaining and
trimming vegetation and sought to address the parking issues on the street, as well. He
recommended that the Council allow them to move forward with the project and to work with the
Town Engineer and Planning staff on a final, acceptable design to implement the project.
Councilmember Collins said that he had supported the idea of changing the policy at the last
meeting but now wondered what the quid pro quo would be to allow the [garage] encroachment.
He said that a change in policy for one applicant might results in a change for others. He asked
whether an open structure could resolve the issue, or perhaps widening the driveway to create
additional off -street parking.
Councilmember O'Donnell agreed with Councilmember Fraser's assessment. He said that when
he looked at the site, he saw that it was a unique situation. He said that dozens and dozens of
structures in old Tiburon were in the public right -of -way and that the garage did not represent a
taking of public land. He said he could not support the building of a huge concrete wall in that
location [to create parking "cut- outs" in lieu of a parking structure]. However, he said he did
favor an idea mentioned by the Town Manager earlier in the evening that would enhance the
public benefit, that is, an idea that McCulloughs might be able to carve out a shallower space,
with a lower wall, in front of their property to create extra parking space on the street. He said
this would help satisfy the requirements of an amendment to the policy which would allow an
encroachment for improvements to public safety.
Mayor Slavitz said that he saw only private benefit in the garage application, and that there was
no guarantee that the new garage would provide additional, off -street parking. He said that there
were other options for the applicants, such as a carport. Slavitz said that Town staff supported the
stairway application and that a case could be made that it would enhance the public benefit.
Mayor Slavitz closed the public hearing and asked for Council's direction in the matter.
Town Council Minutes #17a -2011 August 23, 2011 Page 7
MOTION: To amend the Town's Encroachment Permit Policy, as proposed.
Moved: Fraser, seconded O'Donnell
Vote: AYES: Fraser, O'Donnell
NAYES: Collins, Fredericks, Slavitz
Motion failed.
Councilmember Fredericks asked if the Council needed to take action to approve or disapprove
the entire project, as presented. Town Attorney Danforth said that there were two applications,
one for the garage and one for the stairs. The Council should decide each application separately.
She said that if the applicant was willing to redesign the garage to comply with Town guidelines,
the Council could consider approval subject to conditions. Town Manager Curran said that Town
staff had a few ideas about the configuration of the stairs, but that the general concept met the
criteria needed for approval. She said that if approved by Council, the [stairs] application need
not return to Council for further action.
MOTION: To approve the encroachment permit application for the Barley stairs, subject to
final design approval by Town staff.
Moved: Fredericks, seconded by Collins
Vote: AYES: Unanimous
MOTION: To deny the encroachment permit application for the McCullough garage, but to
grant staff authority to review and approve a redesigned project that conforms
with Town policy.
Moved: Fredericks, seconded by Collins
Vote: AYES: Collins, Fredericks, Slavitz
NAYES: Fraser, O'Donnell
TOWN COUNCIL REPORTS
Councilmember Fredericks said that if anyone on the Council was interested in joining the
National League of Cities, and attending an upcoming conference, they should see her.
TOWN MANAGER'S REPORT
Town Manager Curran said a special meeting had been noticed for the Alta Robles project hearing
on August 31. She also listed other upcoming Council meetings in September.
WEEKLY DIGESTS
• Town Council Weekly Digest — August 5, 2011
• Town Council Weekly Digest— August 12, 2011
• Town Council Weekly Digest —August 19, 2011
Town Council Minutes 91 7a -2011 August 13, 2071 Page 8
RESOLUTION NO. XX -2014
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF TIBURON AMENDING RESOLUTION 16 -2010
THAT ESTABLISHED A POLICY REGARDING THE
ISSUANCE OF ENCROACHMENT PERMITS PURSUANT
TO TITLE V, CHAPTER 19 OF THE TIBURON
MUNICIPAL CODE
WHEREAS, on March 16, 2010, the Town Council adopted Resolution 16 -2010
establishing a policy regarding the issuance of encroachment permits pursuant to Title V, Chapter
19 of the Tiburon Municipal Code; and
WHEREAS, the Town Council now desires to amend the policy; and
WHEREAS, the Town Council has held a public meeting on this matter on
August 20, 2014 and has heard and considered any public testimony and correspondence; and
NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of
Tiburon does hereby declare Resolution 16 -2010 to be superseded by this Resolution for
purposes of prospective review and action on applications for encroachment permit.
BE IT FURTHER RESOLVED that the Town Council of the Town of Tiburon
does hereby amend in its entirety the general policy with respect to encroachment permits issued
pursuant to Title V, Chapter 19 (Encroachments) of the Tiburon Municipal Code, to read as
follows:
A. Definitions
For the purposes of this Resolution, the meaning of words and phrases, including
without limitation, Town streets, street right -of -ways, Town -owned land and other Town
interests in real property (including easements), shall be as set forth or used in Title V,
Chapter 19 of the Tiburon Municipal Code.
B. General Provisions
The Town shall have discretion to revoke any encroachment permit at any time. No
encroachment permit shall grant any private property owner a permanent right to perform work in
or use the area subject to the encroachment permit. The Town may, in its discretion, grant an
encroachment permit allowing access from private property to the public right -of -way, provided
that the Town shall condition any such encroachment permit as it deems appropriate to manage
or enhance the public right -of -way. The Town is not responsible for the cost of altering,
modifying, or removing any such encroachment if it deems such alteration, modification, or
removal is warranted.
Tiburon Town Council Resolution No. XX -2014 —1- -12014
EXHIBIT NO. 1
C. Allowable Purposes
For the following purposes, and only if the Town finds that the encroachment will serve public
safety or welfare, the Town may issue encroachment permits for work within, upon, or beneath
Town streets, street right -of -ways, and other Town interests in real property (including
easements). Said permits shall contain conditions that shall include, without limitation,
revocation at the Town's discretion.
1. To allow access to private property for entry/egress purposes.
2. To allow applicants to install, build or replace sidewalks, curbs and gutters and curb cuts.
3. To allow applicants to install, maintain, or replace landscaping, within the parameters of
this policy.
4. To allow applicants to maintain, repair or replace previously lawfully - installed
encroachments.
5. To accommodate required parking typically required by code fora use where the Town
finds that (a) the applicant cannot feasibly locate such parking on private property; (b) the
public safety or welfare is better served by allowing such parking to encroachLCqj
substantial and material public safety benefit will result in that a substan dard safety-
related public street condition (such as inadequate width or sight distance) in the project's
public street frontage will be made standard or significantly improved: and d) the physical
extent of the encroachment is minimized to the extent feasible.
6. To allow applicants the opportunity to secure approval for existing encroachments that
the applicant cannot prove were lawfully installed and that are consistent with this policy
and Title V, Chapter 19 of the Tiburon Municipal Code.
7. To allow applicants to drain their properties of storm water in a controlled fashion
acceptable to the Town Engineer.
8. To allow utility companies to perform necessary work.
9. To allow Town contractors and/or service providers to perform authorized work.
10. To allow community groups to perform authorized work, either using volunteers or
contractors.
11. To allow applicants to position a debris box or portable moving box for temporary
construction, storage or moving purposes, where such placement will not unreasonably
impede traffic circulation and pedestrian safety or otherwise be detrimental to public
safety or welfare.
12. To allow a limited and controlled amount of equipment and material associated with
permitted building construction activity.
13. To allow permitted special events with civic purpose and benefit.
14. To allow applicants temporary relief from unusually severe topographic or other physical
circumstances which create practical hardships to the creation of proper access to or
improvement of private property in the absence of the encroachment.
15. To allow control of invasive or fire -prone plants, for fire prevention or other purposes of
public benefit.
Tiburon Town Council Resokition No. XX -2014 - -1- -12014
D. Impermissible Purposes
Encroachment permits for work within, upon, or beneath Town streets, street right -of -ways, and
other Town interests in real property (including easements) should not be issued in the following
instances:
1. Encroachments for the purpose of, or having the practical effect of, privatizing the
affected area for the exclusive use or benefit of one or a limited number of individual
owners in lieu of the general public, except as may be authorized under Section C.5
ab-Qv—e.
2. Encroachments that would block, impede, or discourage public use or access over an area
determined by the Town Engineer to be appropriate and suitable for public use or access
either at present or in the foreseeable future.
3. Encroachments that in the judgment of the Town Engineer are not necessary or
appropriate to serve one of the allowable purposes listed in Section C above.
E. Duration.
Encroachment permits shall contain conditions of approval to restrict the duration of the
encroachment to a reasonable time necessary to accomplish the purpose thereof.
1. Except where the Town grants the permit pursuant to Sections C.1, C.2, C.3, CA, C.S,
C.6 or C.7, above, or as provided in E.2, the Town will allow only temporary
encroachments.
2. Notwithstanding Section E.1, the Town shall have discretion to issue a permit for a long-
term encroachment if it finds that the encroachment is necessary for public safety reasons
or that the encroaching improvement will have a long -term public benefit commensurate
with the private benefit to the permit holder.
3. The conditions of approval for any permit for a long -term encroachment shall include,
without limitation, the following conditions of approval:
a. By acceptance of the permit and construction of the improvement or performance of
the work, the permittee agrees to indemnify, defend and hold the Town harmless from
any claims, losses, litigation or other liabilities that may arise from the permittee's
performance of the work or construction and maintenance of said improvement.
b. The permittee shall execute a Memorandum of Encroachment, or similaz written
agreement to the satisfaction of the Town Attorney, record it in the County of Marin's
Recorder's Office and provide the Town Engineer with a conformed copy of the
recorded Memorandum. If the subject project requires a building permit, the
permittee must record the executed Memorandum of Encroachment before the Town
issues said building permit. For all other projects, permittee must record the executed
Memorandum of Encroachment before the permittee enters onto the Town's property
to perform work pursuant to the encroachment permit.
c. The Memorandum of Encroachment shall describe the improvement that is subject to
the encroachment permit and shall contain the following advisory notice:
Tiburon Town Council Resolution No. XX- -2014 —1- -12014
The encroachment permit does not grant the owner of the
encroaching improvement any permanent rights. The Town
has discretion to revoke the encroachment permit at any time.
In the event that the Town revokes the encroachment permit,
the owner of the encroaching improvement must promptly
remove the encroachment. The Town is not responsible for the
cost of altering, modifying, or removing any such
encroachment.
F. Fee Waivers
The Town Council hereby authorizes the Town Engineer to waive application and/or processing
fees, in whole or in part, for certain encroachment permits in the circumstances listed below.
1. Where the applicant is a non -profit corporation or one or more citizens seeking
permission to perform work for the benefit of the public, the Town Engineer may
waive fees to an extent commensurate with the public benefit.
2. Where the applicant is a contractor performing work for the Town, the Town
Engineer may waive the fee in its entirety.
3. When permits are deemed, at the discretion of the Town Engineer, in support of
the public benefit.
Tiburon Town Council Resolution No. XX -2014 - -1- -12014
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Tiburon on , 2014, by the following vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ALICE FREDERICKS, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Tiburon Town Council Resolution No. XX -2014 - -1- -12014