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TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
PROJECT DATA
Mayor and Members of the Town Council
Community Development Department
Town Council Meeting
November 5, 2014
Agenda Item: P#— /
515 Hilary Drive; File #714094: Appeal of Design Review Board's
Approval of Site Plan and Architectural Review for the Construction of a
Rear Yard Fence for an Existing Single - Family Lot; Rich and Christi
McElreath, Owners; David and Charito Mittelman, Appellants;
Assessor's Parcel No. 039 - 133 -10
Address: 515 Hilary Drive
Assessor's Parcel Number: 039 - 133 -10
Property Owner:
Rich and Christi McElreath
Appellant:
David and Charito Mittelman
File Number:
714094
Lot Size:
9,200 square feet
Zoning:
R -1 (Single - Family Residential)
General Plan:
ME (Medium High Density Residential)
Flood Zone:
X (Outside 500 -year storm event)
On October 2, 2014, the Design Review Board approved a Site Plan and Architectural Review
application for the construction of a 5 -foot high fence along the rear property line of an existing
single - family lot located at 515 Hilary Drive. The owners of the property at 20 Rowley Circle,
David and Charito Mittelman (hereafter referred to as "appellants "), have filed a timely appeal of
board's decision. The appeal is attached as Exhibit 1.
PROJECT DESCRIPTION
The Design Review Board has approved a 68 foot long, 5 foot tall wood fence which would be
situated on top of a retaining wall along the rear (north) property line for an existing single - family
lot located at 515 Hilary Drive. The fence would be situated between the subject site and the
adjacent property to the rear at 20 Rowley Circle.
The applicant originally proposed to construct a 6 foot tall fence along the rear property line. The
fence would be situated on top of the uppermost of two existing 1 to 3 feet tall retaining walls
TOWN OF TIBURON PAGE 1 OF 6
Town Council N4cetinq
Nowniber ?, 2014
which are situated near the property line. These walls create a grade difference between the
subject site and the adjacent property at 20 Rowley Circle, with the subject property lower than
the neighboring lot. A 38 inch tall fence which is currently situated along the property line and
landscaping along the rear property line would both remain.
The applicants have indicated that the fence is intended to provide additional privacy for the
subject property. The fence would not extend to the western side of the property because an
existing fence and landscaping provide a buffer between the subject site and 10 Rowley Circle.
REVIEW BY STAFF
This application was first submitted for staff -level design review. During the staff review of this
application, the neighboring property owners at 20 Rowley Circle and 30 Rowley Circle raised
objections to the design of the proposed fence. The owners at 20 Rowley Circle raised concerns
that the proposed fence would block views from the rear of their property. The owner of 30
Rowley Circle raised concerns that the proposed fence would be inconsistent with the design of
other fences in the neighborhood. Community Development Department policy requires that
staff -level applications be referred to the Design Review Board when objections are received
from two or more neighboring property owners. As a result, this application was referred to the
Design Review Board.
REVIEW BY THE DESIGN REVIEW BOARD
The Design Review Board reviewed the application at the October 2, 2014 meeting (see staff
report and minutes attached as Exhibits 4 and 5). At the meeting, the applicant proposed a
revised fence height of five feet (5') as a measure to appease the owners at 20 Rowley Circle. The
applicant also addressed the question regarding character in the neighborhood by stating that
three other homes in the neighborhood had fences taller than 38 inches, with several closer to 6
feet tall. A representative of the neighbors at 20 Rowley Circle stated their opposition to either a
six foot or a five foot tall fence in the rear yard, asserting that the fence would block views of
Sausalito and a portion of Richardson Bay and would give their rear yard a "walled -in" feeling.
The Design Review Board concluded that the proposed six foot tall fence could potentially affect
views for the appellants even though the height would be similar to that of the existing
landscaping. The Board felt that a five foot tall fence would not block any views and represented
a reasonable solution to the applicant's privacy concerns. The Board voted 3 -0 to approve the
project with the condition of approval limiting the fence to a maximum height of five feet. On
October 13, 2014, the appellants filed a timely appeal of this decision.
BASIS FOR THE APPEAL
There are ten (10) grounds upon which the appeal (Exhibit 1) is based:
Ground #1: The appellants were not given equal time with the applicants at the Design
Review Board meeting.
TOWN OF TIBURON PAGE 2 OF 6
Toren Council Meeting
November 5, 2014
Staff Response:
The appellants were given the normal time allotted to neighboring residents who wish to speak
about an application. The Design Review Board traditionally allows applicants up to twenty (20)
minutes to make a presentation at a public meeting. Anyone else who wishes to speak is allowed
up to three (3) minutes, with persons representing a group or organization (such as a
neighborhood group or homeowners association) allowed up to five (5) minutes to speak. The
appellants were not present at the Board meeting, but were represented at the meeting by a family
friend who spoke for approximately three minutes. The appellants also submitted a 16 page letter
to the Board prior to the meeting and their representative submitted a 10 page script of his
remarks to the Board at the meeting.
Ground #2: Story poles were not erected for the proposed fence.
Staff Response:
The Design Review Board does not usually require story poles to be erected for new fences, but
requires such poles for new homes and major additions. The applicant installed a red string at a
five foot (5') height along the rear property line to illustrate the location and height of a fence
design which was lower than the six foot tall fence originally proposed as part of this application.
The Design Review Board indicated that the string helped them visualize the potential impacts of
the proposed fence, in the same manner that story poles illustrate other projects. Per Town
Council policy when hearing appeals, story poles and connecting lines have been installed for
Town Council review.
Ground #3: The location of the proposed fence panels relative to the property line is
unclear.
Staff Response:
The staff report presented to the Design Review Board indicated that the project would remove
the existing fence along the property line that belongs to the applicants. The submitted plans
clearly indicate that the existing fence would remain and that the new fence would be constructed
adjacent to the existing fence. This issue was clarified by the applicants at the Design Review
Board meeting.
Ground #4: The length of the proposed fence is unclear.
Staff Response:
The proposed fence would have a length of 68 feet, as indicated on the submitted plans. The
appellants' representative raised this question at the Design Review Board meeting and the
appellants clarified this issue for the Board at that time.
Ground #5: The proposed fence would impact views.
TOWN OF TIBURON PAGE 3 OF 6
Tonam Council Meering
November i, 2014
Staff Response:
All three Design Review Boardmembers present at the meeting visited the appellants' property
and evaluated the potential view impacts of the proposed fence. Chair Cousins stated that the
fence "would only obstruct the immediate foreground views of buildings and not obstruct the
water views and long distance views." Boardmember Kricensky said that he sat in a chair on their
patio and on the deck at their hot tub and "all he could see was roof and Del Mar, and that would
still be visible if a five foot fence was built," and added that "the water would be visible with a
five foot fence, but might be affected by a six foot fence." The Board concluded that a five foot
tall fence would not substantially impact the appellants' views.
Ground #6: The five foot fence height would not provide adequate privacy for the
applicants.
Staff Response:
The existing 38 inch tall fence along the rear property line provides the applicants very little
privacy protection from much of the appellant's rear yard, as adults and children are able to look
over the fence and down into the applicants' property. A five foot tall fence would allow taller
people to look down into the applicants' yard only when standing almost directly up against the
fence, substantially improving the privacy protection for the applicants.
Ground #7: The fence would allow the applicants to utilize a rear terrace area for
entertainment purposes and create a nuisance.
Staff Response:
The applicants have recently undertaken repairs to two three -foot tall retaining walls at the rear of
their property. The walls are situated approximately three feet apart, with the upper wall situated
approximately six feet from the rear property line. The appellants contend that this upper terraced
area will be utilized for entertainment purposes in such a manner that it would create a nuisance
for the neighbors. Such contentions are speculative. This relatively narrow upper terrace area
does not appear well suited to extensive entertainment, particularly given the presence of an
existing patio area closer to the applicants' house that is more suitable for such purposes. The
Tiburon Zoning Ordinance does not regulate normal residential rear yard use, such as where
people may site or entertain in open portions of their rear yard. Staff would also note that
expectations of complete audible privacy from adjacent residential yards are generally considered
to be unreasonable in a suburban environment such as that found in most of Tiburon.
Ground #8: The fence would affect the appellant's existing fence and retaining wall.
Staff Response:
The Design Review Board does not consider structural aspects of construction, which are only
reviewed as part of the building permit process. After a building permit is obtained for the fence,
the project would be reviewed for compliance with building codes and the fence would be
inspected to ensure that construction does not affect structures on neighboring properties. The
TOWN OF TIBURON PAGE 4 OF 6
Town Council Meeting
November i, 2014
Building Official has visited the site and concluded that the fence could reasonably be physically
constructed without affecting neighboring properties.
Ground #9: The Design Review Board improperly emphasized the appellant's
landscaping instead of the applicants' landscaping.
Staff Response:
The applicants submitted photographs of the appellants' property that were found online from the
real estate listing prior to purchase of the home by the appellants. These photographs show that
there was substantial landscaping along the appellants' rear property line that the appellants have
since removed. The Design Review Board noted that any privacy concerns caused by the removal
of this landscaping could be addressed by the appellants themselves. The Board further noted that
if the appellants did not like the appearance of the proposed fence, they had the ability to install
landscaping on their side of the fence. The Board determined that a five foot tall fence was a
reasonable solution to the applicants' legitimate privacy concerns.
Ground #10: The application is incomplete because it contains false and misleading
statements.
Staff Response:
The appeal states that the subject application contains "false and misleading statements"
regarding landscaping, photographs, the condition of the existing fence and project alternatives,
but does not specify what is false or misleading regarding these issues. The application form and
supplemental project materials are attached as Exhibit 3 for review by the Town Council.
CONCLUSION
The Design Review Board appropriately applied the guiding principles for Site Plan and
Architectural Review, the Hillside Design Guidelines, and other relevant provisions of the Zoning
Ordinance in its review of this project. The five foot high fence approved by the Board would
address the applicants' privacy concerns without substantially blocking views or creating privacy
issues for the appellants.
RECOMAMNDATION
It is recommended that the Town Council:
1) Hold a public hearing and take testimony on the appeal in accordance with the Town's
adopted procedure (see attached Exhibit 2), and close the public hearing.
2) Deliberate and, if prepared to do so, indicate its intention to deny the appeal.
3) Direct Staff to return with a resolution denying the appeal for consideration at the next
meeting.
TOWN OF TIBURON PAGE 5 OF 6
Town Council Meeting
November 5, 2014
EXHIBITS
1. Notice of appeal
2. Appeal procedures
3. Application form and supplemental materials
4. Design Review Board staff report dated October 2, 2014
5. Minutes of the October 2, 2014 Design Review Board meeting
6. Letter from David Carrel, dated September 7, 2014
7. Letter from David Mittelman, dated September 18, 2014
8. Letter from Roger McGee, dated September 22, 2014
9. Letter from Samuel Coffey, dated September 22, 2014
10. Letter from David Mittelman, dated September 26, 2014
11. Presentation materials submitted by James Demmert at the October 2, 2014 Design
Review Board meeting
12. Submitted plans
Prepared By: Kyra O'Malley, Assistant Planner
Daniel M. Watrous, Planning Manager
S: UdministrationMown CounctllStafRepor1s0014Wovember 5 DraftsU15 Hilary Drive appeal report.doc
TOWN OF TIBURON PAGE 6 of 6
APPELLANT(S) 1
(Attach additional pages if necessay)
Name:
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TOWN OF TIBURON
NOTICE OF APPEAL
1505 Tiburon Boulevard
Tiburon, CA 44910 Phone 415- 435 -7.3 73
Telephone: (Work) (Home)
FAX and/or e-mail (optional): ��� � � � si Mt %mo CC /!�
ACTION BEING APPEALED
Review Authority Whose Decision is Being Appealed: ` SCE. cr.CC w �je&3�
Date of Action or Decision Being Appealed: J C To � .r e),
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Name ofAvOicant: _?,%Cto'
Type of Application or Decision:
GROUNDS FOR APPEAL
(Attach additional pages if necessary)
16
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TOWN CLERK
TOWN OF TIBURON
STAFF USE ONLY BELOW THIS LINE
Last Day to File Appeal: Date Appeal Filed: �/—/ �(b
Fee Paid: 3L� U Receipt No. j L U / Date of Appeal Hearing: 71 4;0
NOTE: Current Filing Fee is $500 initial deposit for applicant and $300 flat fee for notT- applicant
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GROUNDS FOR APPEAL
1) Our position was not granted equal time at the Design Review Board meeting.
Our representative was limited to only three minutes to present our position. The
McElreath's were granted substantially more time to fully present their position. This
imbalance of time was inequitable. Although members of the public normally are limited
to three minutes, our representative should have been granted more time given that the
Board recognized that our property is meaningfully affected by the McElreath's proposal.
2) Story poles were not installed by the McElreath's. Story poles are required by
Tiburon Municipal Code 16- 50.070 for Board matters. Given that questions of height
and view relate to the Application, story poles would have been instructive. Rather than
installing story poles in accordance with the timing and certification requirements of the
Code, the McElreath's placed a "red string" above the existing fence. Neither we nor
Town Staff had the ability to review the height or length of such red string. The red
string apparently was put up on or about the day of the Board meeting (when we were
out -of -town) and removed immediately after. At its meeting, Board members referenced
the red string in making their decision. Although the McElreath's suggested at the Board
meeting that the height of such red string was 5 feet, no Board member or independent
person verified the height. Further, the Application proposed 6 -foot panels, so it unclear
why the McElreath's purportedly would place a red string at a 5 -foot height.
3) The record is unclear as to placement of the proposed panels. The Application
was to build fence panels immediately in front (on the southern side) of an existing fence.
However, the Staff Report stated that "[t]he existing 38 inch tall fence would be
removed[.]" That statement in the Staff Report was erroneous. It is not clear whether the
Board properly was aware of the placement of the proposed panels.
4) The Application is unclear as to the length of the proposed panels. The
Application proposes panels for a linear length of 68 feet of an 81 -foot existing fence.
However, the Application's "Minor Alteration Supplement" states that the proposed
fence panels would be installed "to the end of the upper retaining wall[.]" During the
Board meeting, the McElreath's similarly suggested the length would continue to the
upper retaining wall and likewise suggested that the upper retaining wall was at the 68-
foot mark. The references to "upper retaining wall" appear to relate to an upper terrace
deck in the McElreath's rear yard. Contrary to the Application, the length of such upper
terrace deck appears to be at the approximately 76 -foot mark. Additionally, the Staff
Report stated that the proposed fence panels would run the length of the existing fence
"except for a minor portion on the west side, which is currently covered in landscaping."
That statement in the Staff Report was erroneous (given that the fmal 13 feet of the
existing fence — the difference between 81 -foot existing and 68 -foot proposed — is neither
minor nor covered in landscaping). It is not clear whether the Board properly was aware
of the length that the proposed panels would be placed. Moreover, the length of that
placement is critical given that a variance may be necessary if the retaining wall
underlying the fence is more than 3 feet high (and the retaining wall does indeed appear
to be more than 3 feet high at some point along its west end).
EXHIBIT NO._ i
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5) The proposed panels would negatively impact our southern view. The interior and
rear yard of our house provide a southern view towards and over the existing fence. The
McElreath's proposed panels would take away from our already limited view. Further,
the proposed panels would be placed directly behind and at a different height of the
existing fence, yet would stop at 68 feet, creating a step -down appearance of both height
and dual fence to the single existing fence for the remaining 13 feet of our level property.
The effect of that placement and length would be an eyesore. The height, appearance,
and length of the proposed panels would harm the enjoyment and value of our property.
6) The "compromise" for proposed panels at a 5 -foot height would not provide the
McElreath's with their asserted need for privacy. Many adults, including us, are tall
enough to have a line of sight over a 5 -foot high fence. A 5 -foot fence would harm our
view without conclusively benefiting the McElreath's purported privacy need.
7) A higher fence will facilitate the McElreath's ability to use their upper terrace for
entertainment and thereby create a nuisance to us. The McElreath's and their
preceding property owners have inappropriately converted a previously downward
slopping area into a level upper terrace deck in their rear setback. This upper terrace
deck is 20 feet from our master bedroom. Building a higher fence will further allow the
McElreath's to use the upper terrace deck in a manner that did not previously exist and
was not intended when our and the McElreath's properties were built. Their use of the
upper terrace deck for entertaining and other activities will cause noise and other negative
effects that will harm our existing quiet use and enjoyment of our property.
8) The McElreath's proposal may negatively impact the existing fence and its
underlying retaining wall. The existing fence is located above a retaining wall that
provides support to our property. Building the proposed panels in front of the retaining
wall (or removing the existing fence on top) creates a risk of short- and/or long -term
damage to the retaining wall. This risk is enhanced because the McElreath's and their
preceding property owners have already put stress upon the existing fence, including by
building additional retaining walls in their rear setback to create the upper terrace deck.
9) An improper emphasis was placed on our landscaping rather than the
McElreathIs landscaping. We did not need Design Review approval for planting and
removing landscaping, or our landscape features and flatwork. Yet the focus of the
Application, and a key focus of the Board, was on our landscaping. The effect was to
improperly shift the burden from the McElreath's to us as part of their justification for the
proposed panels. The effect also prevented a full assessment of whether the McElreath's
privacy needs could alternatively be addressed by landscaping on their own property.
10) The Application is not complete because it contained multiple false and
misleading statements. These include statements relative to (i) landscaping in the
McElreath's rear yard; (ii) landscaping in our rear yard; (iii) photographs representing our
rear yard in 2011, two years prior to the time the McElreath's acquired their property; (iv)
the condition of the existing fence; and (v) purported "alternatives" presented or
considered by the McElreath's and /or us.
EXHIBIT NO. _.I
30r-3
RESOLUTION NO. 17 -2010
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON
ADOPTING AN AMENDED POLICY FOR THE PROCESSING, SCHEDULING,
RECONSIDERATION, AND STORY POLE REPRESENTATION OF APPEALS, AND
SUPERSEDING EXISTING POLICIES
WHEREAS, the Town receives and hears appeals from decisions of various
commissions, boards and administrative officials from time to time, and
WHEREAS, the Town Council has adopted various policies over the years with
respect to appeal procedures, scheduling, and reconsideration, including Resolutions Nos. 2878
and 3218 and Town Council Policy Nos. 95 -01 and 2002 -01; and
WHEREAS, the Town Council has determined that it is timely and appropriate to
update and consolidate these policies regarding appeals; 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 Town Council Resolution No.
2878, Town Council Resolution No. 3218, Town Council Policy 95 -01, and Town Council
Policy 2002 -01 are hereby superseded by this Resolution.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the Town Council of
the Town of Tiburon does hereby adopt the following general policy with respect to processing,
scheduling, and reconsideration of appeals and for story pole installation for appeals.
APPEAL PROCEDURE
The Municipal Code sets forth instances when persons may appeal a decision by a review
authority (e.g. Town official, Design Review Board or Planning Commission) to the
Town Council. Any person making such an appeal must file a completed Town of
Tiburon Notice of Appeal form, available on the Town's web site and at Town Hall, with
the Town Clerk not more than ten (10) calendar days following the date of the decision
being appealed. Shorter time frames for filing an appeal apply to certain types of permits.
If the final day to appeal occurs on a day when Town Hall is closed for public business,
the final day to appeal shall be extended to the next day at which Town Hall is open for
public business. Appeals may not be revised or amended in writing after the appeal
period filing date has passed.
Tiburon Town Council Resolution No. 17 -2010 0311712010
EYHIBIT NO. Z_
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2. The appellant must submit filing fees with the Notice of Appeal form. Filing fees are set
forth in the Town's current adopted Fee Schedule.
(a) If the applicant is the appellant, the remainder of the filing fee (if any) will be
refunded following completion of the appeal process. Additional staff time or
costs to process an applicant's appeal is the financial responsibility of the
applicant and will be billed per the Town's current hourly rate schedule and/or at
actual cost if outside consulting is required.
(b) If the appellant is not the applicant, then a fixed amount filing fee is required with
no refund or additional billing required.
3. In the appeal form, the appellant shall state specifically either of the following:
(a) The reasons why the decision is inconsistent with the Tiburon Municipal Code or
other applicable regulations; or
(b) The appellant's other basis for claiming that the decision was an error or abuse of
discretion, including, without limitation, the claim that the decision is not
supported by evidence in the record or is otherwise improper.
If the appellant is not the applicant, the Town Council need only consider on appeal
issues that that the appellant or other interested party raised prior to the time that the
review authority whose decision is being appealed made its decision.
4. The appellant must state all grounds on which the appeal is based in the Notice of Appeal
form filed with the Town Clerk. Neither Town staff nor the Town Council need address
grounds introduced at a later time that were not raised in the Notice of Appeal form.
5. The procedure for presentation of the appeal at the Town Council meeting is as described
below. In cases where the applicant is the appellant, paragraphs (c) and (f) below would
not apply.
(a) Town Staff may make a brief (approximately 10 minute) presentation of the
matter and then respond to Town Council questions.
(b) Appellant and/or appellant's representative(s) may make a presentation of no more
than twenty (20) minutes and then respond to Town Council questions. Appellant
may divide up the twenty (20) minutes between various speakers or have only one
speaker, provided that the time limit is observed. Time devoted to responding to
Town Council questions shall not be included as part of the twenty (20) minute
time limit.
(c) Applicant and/or applicant's representative(s) may make a presentation of no more
than twenty (20) minutes and then respond to Town Council questions. Applicant
may divide up the twenty (20) minutes between various speakers or have only one
speaker, provided that the time limit is observed. Time devoted to responding to
Tiburon Town Council Resolution No. 17 -2010 0311712010
EXHIBIT N0. -2-
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Town Council questions shall not be included as part of the twenty (20) minute
time limit.
(d) Any interested member of the public may speak on the item for no more than
three (3) minutes. A speaker representing multiple persons (e.g., homeowner's
association, advocacy group or official organization, etc.) may speak on the item
for no more than five (5) minutes, at the discretion of the Mayor.
(e) Appellant is entitled to an up to three (3) minute rebuttal, if desired, of any
comments previously made at the hearing.
(f) Applicant is entitled to an up to three (3) minute rebuttal, if desired, of any
comments previously made at the hearing.
The testimony portion of the appeal hearing is closed and the Town Council will begin
deliberations on the appeal. There will be no more applicant, appellant, or public
testimony accepted unless requested by the Town Council.
8. If, following deliberation, the Town Council is prepared to make a decision on the appeal,
it will direct Town staff to return with a draft resolution setting forth the decision, and the
findings upon which it is based, for consideration at a future Town Council meeting. The
decision of the Town Council is not final until the resolution is adopted. Alternatively, if
the Town Council is not prepared to make a decision on the appeal, it may:
(a) Continue the appeal to a future date;
(b) Remand the item to the review authority from which it was appealed for further
hearing, review and action, with a specific description of the outstanding and
unresolved issues and appropriate direction thereon; or
(c) Refer the item to another review authority for its review and recommendations
prior to further Town Council consideration.
9. Following a final decision by the Town Council, Town staff will promptly mail a Notice
of Decision to the applicant and appellant.
RECONSIDERATION
If, after the Town Council has voted to direct staff to prepare a resolution of decision, significant
new information comes to light, which information was previously unknown or could not have
been presented at the appeal hearing due to circumstances beyond the parties' control and not due
to a lack of diligence, the Town Council may entertain a motion to reconsider its direction to
prepare a resolution of decision. Any such motion to reconsider must be made prior to adoption
of the resolution of decision, and the motion must be made by a Councilmember who voted on
the prevailing side in the vote sought to be reconsidered. Any Councilmember may second the
motion. The Town Council may consider and vote on the motion to reconsider at that time, and
if the motion carries, the matter shall be placed on a future agenda for further notice and hearing.
Tiburon Town Council Resolution No. 17 -2010 0311712010
EXBHBIT N0. aL
3 0�-5
SCHEDULING OFAPPEALS
The Town's policy is to schedule and hear appeals in an expeditious manner. Appeals
will generally be heard at the first regular Town Council meeting that is at least fifteen
(15) days after close of the appeal period. At the sole discretion of the Town Manager,
the Town may schedule the appeal for a subsequent Town Council meeting based on the
complexity of the matter, availability of key Town staff members and Councihnembers,
agenda availability, or unusual circumstances. Town staff will make reasonable efforts to
establish the hearing date for the appeal within three (3) working days of the close of the
appeal period. The Town Clerk, in coordination with appropriate Town staff, will
promptly advise all parties to the appeal of the selected hearing date.
2. The Town Manager will grant requests for continuances from the date established above
in the event that all parties to the appeal agree in writing to a date specific for the
continuance and that date is deemed acceptable by the Town Manager.
Attendance of parties to an appeal at the hearing is desired, but not required. The Town
Council will consider written comments or representation by others in lieu of personal
appearance.
F."VaVZOZ2411
For appeals where story poles were erected for review of the original decision being appealed, a
story pole representation shall be required for the Town Council's appeal review process, as
follows:
A story pole plan showing the poles to be connected, including location and elevations of
poles and connections, shall be submitted, reviewed, and accepted as adequate by
Planning Division Staff prior to installation of the poles and connections.
2. Critical story poles, as determined by Staff, must be connected by means of ribbons,
caution tape, rope or other similar and highly visible materials clearly discernable from a
distance of at least three- hundred (300) feet in clear weather, to illustrate the dimensions
and configurations of the proposed construction.
3. Story poles and connecting materials must be installed at least ten (10) days prior to the
date of the appeal hearing before the Town Council.
4. Failure to install the poles and materials in a timely manner may result in continuance of
the public hearing date.
Tiburon Town Council Resolution No. 17 -2010 0311712010 4
EXHIBIT NO. a
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5. Story poles must be removed no later than fourteen (14) days after the date of final
decision by the Town Council.
•' lly1; /li�1il
This policy, while primarily written for use by the Town Council, is intended to apply to the
extent practicable to Town decision - making bodies, other than the Town Council, which may
hear appeals from time to time. Be advised that certain types of appeals, such as appeals of staff -
level design review application decisions to the Design Review Board, may have different
deadlines for filing of the appeal than the ten (10) calendar days specified above.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Tiburon on March 17, 2010, by the following vote:
AYES: COUNCILMEMBERS: Collins, Fraser, Fredericks & O'Donnell
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Slavitz
RICHARD COLLINS, MAYOR
TOWN OF TIBURON
ATTEST:
DIANE CRANE IACOPI, TOWN CLERK
Tiburon Town Council Resolution No. 17 -2010 0311712010
E XHIBIT N0.
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I
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TOWN OF TIBURON
LAND DEVELOPMENT APPLICATION
• Conditional Use Permit
• Precise Development Plan
• Secondary Dwelling Unit
• Zoning Text Amendment
• Rezoning or Pezoning
o General Plan Amendment
o Temporary Use Permit
TYPE OF APPLICATION
Design Review (DRB)
Design Review (Staff Level)
!/��o +' _Variance(s) #
o Floor Area Exception
o Tidelands Permit
o Sign Permit
o Tree Permit
AUG 2 8 2014
• Tentative Subdivision Map
• Final Subdivision Map
• Parcel Map
• Lot Line Adjustment
• Condominium Use Permit
• Seasonal Rental Unit Permit
• Other.
APPLICANT REOU RED INFORMATION
SITE ADDRESS: `, I S �i rV Z PROPERTY SIZE:'
PARCEL NUMBER:d39- I -1 O ZONING:
PROPERTY
MAILING AI
APPLICANT (Other than Property Owner):
MAILING ADDRESS:
PHONE/FAX NUMBER:
a
l MAIFl�
ARCIIITECT/DESIGNER/ENGINEER [ \A —
MAILING ADDRESS:
PHONE /FAX NUMBER:
E -MAIL:
Please indicate with an asterisk ( -1) persons to whom Town correspondence should be sent
k. ,tar
BRIEF DESCRIPTION OF PR)6POSED
r
(attach separate sheet if needed):
of
(Dg 1t�Y-gr �r� 1
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I, the undersigned owner (or aumorized agent) of the property herein des -.oed, hereby make application for
approval of the plans submitted and made a part of this application in accordance with the provisions of the Town
Municipal Code, and I hereby certify that the information given is true and correct to the best of my knowledge and
belief.
I understand that the requested approval is for my benefit (or that of my principal). Therefore, if the Town grants
the approval, with or without conditions, and that action is challenged by a third party, I will be responsible for
defending against this challenge. I therefore agree to accept this responsibility for defense at the request of the
Town and also agree to defend, indemnify and hold the Town harmless from any costs, claims or liabilities arising
from the approval, including, without limitation, any award of attorney's fees that might result from the third party
challenge.
Signature:* Date: f
The property involving this permit request may be subject to deed restrictions called Covenants, Conditions and
Restrictions (CC &Rs), which may restrict the property's use and development. These deed restrictions are private
agreements and are NOT enforced by the Town of Tiburon. Consequently, development standards specified in such
restrictions are NOT considered by the Town when granting permits.
You are advised to determine if the property is subject to deed restrictions and, if so, contact the appropriate
homeowners association and adjacent neighbors about your project prior to proceeding with construction.
Following this pp dure will minimize the potential for disagreement among neighbors and possible litigation.
Signature:* Date:
*If other than owner, must have an authorization letter from the owner or evidence of de facto control of the
property or premises for purposes of filing this application
NOTICE TO APPLICANTS
Pursuant to California Government Code Section 65945, applicants may request to receive notice from the Town of Tiburon of any general
(non - parcel - specific), proposals to adopt or amend the General Plan, Zoning Ordinance, Specific Plans, or an ordinance affecting building or
grading permits.
If you wish to receive such notice, then you may make a written request to the Director of Community Development to be included on a
mailing list for such purposes, and must specify which types of proposals you wish to receive notice upon. The written request must also
Specify the length of time you wish to receive such notices (s), and you must provide to the Town a supply of stamped, self- addressed
envelopes to facilitate notification. Applicants shall be responsible for maintaining the supply of such envelopes to the Town for the duration
of the time period requested for receiving such notices.
The notice will also provide the status of the proposal and the date of any public hearings thereon which have been set. The Town will
determine whether a proposal is reasonably related to your pending application, and send the notice on that basis. Such notice shall be
updated at least every six weeks unless there is no change to the contents of the notice that would reasonably affect your application.
Requests should be mailed to:
Town of Tiburon
Community Development Department EXHIBIT N0.
Planning Division
1505 Tiburon Boulevard /
Tiburon, CA 94920 p� to al0
(415) 435 -7390 (Tel) (415) 435- 2438(Fax)
www.towmiftiburon.org
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MINOR ALTERATION SUPPLEMENT
Please fill in the information requested below:
1. Briefly descri
separate
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2. Lot area in square Peet (Section 16-100.020(L))':-
3. Square footage of Landscape Area:
4. Proposed use of site
Existing
Proposed \
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family residential, commercial, etc.):
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Zoning: Us
5. Describe any changes to parking areas including number of parking spaces, turnaround or maneuvering areas.
Yards
(Setbacks from property
line)
(Section 16-
ft,
No Q�a2.5 ft.
100.020(Y))-
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Rear
ft.
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Right Side
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Maximum Height
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(p ft.
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sq.ft.
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sq.ft.
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Lot Coverage as
%
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(Section 16-
sq.ft.
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100.020(F))"
'Section numbers refer to specific provisions or definitions in the Tiburon Municipal Code, Title IV, Chapter 16 (Zoning)
SAPlanning \Forms \Current Forms \Design Review Board Application for Minor Alteration 9- 2012.doc EYE-' IBT 1 N0.
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SUPPLEMENTAL APPLicAnoNFORM FOR MINOR ALTERAT ION TOR'NOFTIBURON REP. 9 -2012 PAGE 3 tv k
Design Review Board and Staff
1505 Tiburon Blvd. (= ' Y I�
Tiburon, CA 94920
2014'
0 44 J
Dear Design Review Bard and Staff,
We are submitting this letter in conjunction with our design review application for installation of a new
fence on our property line between 515 Hilary drive and 20 Howley Circle. The current fence is 38
inches high and we are asking for a standard six foot privacy fence.
The current fence is dilapidated, our dog was able to go through it at several locations, and even with
repairs, our dog can jump over it. More importantly, given the topography of the 2 lots and recent
changes our neighbors have made to the landscaping and adding raised concrete patios, we have
absolutely no privacy in our backyard, family room, kitchen, breakfast room and, most importantly, our
master bedroom.
Let us first say we like our neighbors and their children and there is no animus in the situation. We
are sad that we could not come to a fair solution on our own and have offered multiple options to
address our privacy concerns and at the same time preserve the views they created last month. The
fence was always a problem but their recent attempts to "gain views" have come at the cost of our
privacy. We cannot seem to come to a mutually acceptable solution. We are submitting it to design
review and are optimistic that you will be able to implement a fair compromise.
I have inserted pictures below and submitted large 8x10 versions with the application.
Picture 1
This shows the existing fence and our neighbor's great kids. As you can see, any child over age 5 can
easily see over the fence and into our bedroom. More importantly, the fence only comes up to waist
height on adults. You can see on the right of the photo the gap under the current fence which also
causes privacy issues and you can see from the grass height, the elevation difference on the Rowley
side of the fence.
L XE)IBITT N0. 3
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Picture 2
This shows the view from the fence height right into our master bedroom, which is 25 Ft from the
fence. Even worse the maple tree in the picture is about to loose its leaves.
Picture 3
This shows the view from the fence into our family room.
NO. S2
5 OF a(
Pictuve 4
This is an aerial view of the properties when we bought our house last year. The property addresses
are marked. The redline is the property line and the fence in question and the trees and shrubs
highlighted in yellow are what they removed last month.
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Picture 5
This shows the gap under the fence, the uphill grade of their backyard, the landscaping they removed
last month, the hardscaping they removed last month, and the new raised patio they installed last
month. All of which hurt our privacy. As a side note before the removal of the landscaping you could
not see through the gap under the fence.
1i1IBTT NO. L3
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Pictures SWA
Show 20 Rowley circle when our neighbors purchased the property. The pictures snow the views they
had when they purchased the property. All the highlighted trees, shrubs and landscaping are what
they removed.
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Our attempts at campramuse:
When we began discussing a new fence with our neighbors in April, we told them we would like a
standard six foot fence with craftsman decorative lattice on top. Mr Mittelman (one of the property
owners) said he didn't like that style but would send us some options to consider. We told them we
would be patient and could wait a small amount of time. Over the next few weeks, Mr Mittelman
mentioned a couple of options, both standard privacy fence height 5 -6 feet, one with open picture
window gaps at the top and one that is horizontal.
We then checked back several times over the spring and summer and finally mentioned that we
would like to put in the new fence before summer was over. While we were waiting to hear from them
on the fence, they instead removed the hardscape, removed most of the trees, shrubs and other
landscaping from their yard and installed a new raised patio at the highest grade point on their lot. If
their intent was just to trim overgrown landscaping they would have also cut the height of the trees
and shrubs on their east and west sides but they left those. Thereby retaining their own privacy from
side neighbors, but on our side, they took out or cut back everything that maintained privacy between
our properties.
At this point, we knew we had to get a fence in before the seasons changed and our bedroom was
completely exposed. We filled out the applications for design review and went to talk to Mr Mittelman
to get their approval. We thought they would maybe want a different stye of fence so we were
prepared to pay for the fence on our own and let them put in their own fence on their side in their own
time. Mr Mittelman then informed us that he wants to keep the existing fence height and just screen
with landscaping. (Which as we have seen from the above pictures is not a permanent solution and
can be removed or cut to the point that it is ineffective for privacy.)
Alternatives we offered:
We offered and Mr Mittelman refused all of the following:
• 1st: The original six foot fence option, completely within building parameters, no variance required.
• 2nd: We offered to "step down" the height of the fence to 5 Ft for the last 16 feet of the new fence
starting at their rose bush in front of their new patio thereby maintaining the views from the kitchen
and family room (which was the only view they initially mentioned they wanted to maintain).
• 3rd: Mr Mittelman complained that the appearance of a new fence behind and higher than the first,
would be unattractive so we offered to cut down the old fence and install the new fence in it's place
which would also reinforce the retaining wall, another item which Mr Mittelman requested.
• 4th: Mr Mittelman complained about the gap at the bottom of the fence so we offered to install the
new fence a few inches lower to cover the gap.
• 5th: We offered to lower the height on the taller portion of the fence to 5 3/4 feet instead of 6 feet.
• 6th: We offered to change the style of the fence to plain flat boards.
• 7th: We offered to do the fence style Mr Mittelman suggested initially with the top 1ft having gaps
but making the gaps smaller 4 -6 inches instead of 12 inches.
• At one point they offered a 4 fit fence but now say that they only want to screen with landscaping
We have tried to be reasonable and good neighbors in this process. Ironically, before all of this
happened, we even spent 2 days removing our children's tree house and moving it down 1 & 1/2 feet
to address the neighbors' privacy concerns. We are only asking for the same consideration.
As you can see, we have tried to be reasonable and come to some sort of solution but the neighbor's
only want landscaping as privacy screening. Unfortunately, landscaping alone is-apt'EV ?q fgie i Q 3
solution because at any point they can cut it down to the fence height or remove it entirely.
I aFa�
We look forward to hearing from design review staff and board. Thank you for your time and
consideration.
Sincerely,
Richard and Christi McElreath
515 Hilary Drive
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Design Review Board
1505 Tiburon Blvd.
Tiburon, CA 94920 �a IL
Re: 515 Hilary Dr.
A. Request
Despite our best efforts we have been unable to come to an agreement with the neighbors at 20
Rowley Circle regarding a new fence on our property line. We are requesting that the design
review board come to a fair and reasonable compromise taking into consideration our privacy
rights and the neighbors' concerns as to their views.
B. Bringing this matter to Design Review was not our preference or our first choice as to how to
resolve this mater
We are saddened and disappointed that we are here. We did not just declare that we intended
to put in a 6 foot fence and leave it at that and apply to design review. We have made multiple
attempts over months to come to a reasonable fair compromise with the neighbors at 20
Rowley Circle. We do not want to have animosity with our neighbors. We like their family and
have many of the same friends. We have tried to be fair and come to a reasonable agreement.
We have not even discussed this to anyone of our mutual acquaintance to avoid gossip and
divisiveness. We really just want a fair and reasonable compromise between our privacy rights
and their desire for views. Unfortunately, this does not seem possible without the assistance of
design review to balance the interests of both homeowners' rights.
C. We offered numerous alternatives and were willing to consider any taller fence options the
neighbors were willing to propose
The neighbors' assert that we declared we intended to put in a 6 ft fence and that was the only
option we would consider. That is not the case, we offered all of the following (all entirely at our
expense):
1. A Standard 6 ft privacy fence which would not require a variance as the highest part of
the retaining wall separating our properties is 3 ft. (Municipal Code Section 16- 30.040
B2)
2. We offered to remove the existing fence and build the new fence directly on top of the
retaining wall, thereby removing the neighbors' privacy concerns under the fence (a gap
of 1 -3 inches) and addressing the neighbors' concerns about reinforcing the retaining
wall. It would also lower the height of the fence by the 1 -3 inch gap.
3. Since the neighbors had originally only indicated they wanted to maintain a view across
the NW corner of our property we offered to lower the fence to 5 feet for the last 16
feet of the fence as there is not a view into our bedroom and less privacy concerns.
4. We offered to lower the remainder of the fence by an additional 6 inches down to 5.5 ft.
Which is actually an additional 1 -3 inches lower due to placing the fence on the
retaining wall rather than having it float with the gap at the bottom.
5. We offered our original craftsman design style of panels as submitted, we offered plain
wood panels, we even offered to do the panel style they had mentioned they liked with
open sections for the top foot of the panels.
E XHIM N0. 3
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6. We specifically asked the neighbors if there was any fence option, higher than the
existing fence, that they would be willing to propose or consider. The neighbors said
"no" they would only agree to landscaping for privacy.
7. That is when we realized that it was impossible to come to a reasonable and fair
compromise without the assistance of design review.
D. We did not refuse to consider other wood fence options
The neighbors repeatedly state that we refused to consider a custom wood fence. That is not
true. In our last conversation regarding the fence prior to applying for design review, we
specifically asked if there was any fence option other than what was currently there that they
would consider and Mr. Mittleman specifically said "No, the only options he would consider are
landscaping."
E. The neighbors did not have views when they moved in as they assert.
Exhibit 6, 7, 8 and 9 show the landscaping in the backyard and the views enjoyed by our
neighbors when they bought 20 Rowley Cir. These photos are from the realtor's website listing.
(Please note how little of the fence you can even see and that will give you a basic idea of how
much was removed.) The landscaping was like this when we moved in as well except perhaps
more overgrown.
F. Landscaping alone is not sufficient
1. The neighbors are more than welcome to put in any landscaping they wish to cover the
new fence. If the neighbors intend to provide us with privacy at a reasonable level that
can't be seen through using landscaping then they should have no objections to our new
fence because they would never see it. It would be completely covered by their new
privacy landscaping.
2. In one day, all the landscaping that had afforded us privacy was gone or cut back to such
a degree that it no longer provided any privacy. New landscaping can just as easily be
cut, poisoned, or otherwise destroyed to such a degree that it would not provide
privacy.
3. At the same time 20 Rowley circle was re- graded and a new higher elevated patio was
installed further damaging our privacy rights. Exhibit 5 is an image of bare yard, a higher
grade and raised patio, this demonstrates the changes made while we were waiting to
hear back on the fence.
4. We are in the middle of a drought. Expensive large plantings such as trees or shrubs
would have to be at least 10 feet high including the root bulb to afford us reasonable
privacy and would take an excessive amount of water to get them established and keep
them alive. We are already being asked to cut back on water usage. It is more than
reasonable to assume that at some point in the near future our water for landscaping
could be rationed or eliminated leaving our new privacy plantings to die. We need a
permanent solution and landscaping cannot provide that solution.
G. We should be able to have a reasonable expectation of privacy in our backyard and inside our
house.
1. As Exhibit 1 shows any child over 5 can see over the existing fence. (We have redacted
the faces of the children at the neighbors' request).
2. We love talking to neighbors through the fence, but we should be able to walk around in
our pjs while we hang laundry outside, make breakfast in the kitchen, or get clothes out
E) IEUTT NO. 3
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of our bedroom dresser without worrying that someone can see us. This does not seem
unreasonable.
3. Exhibits 2 and 3 show the views directly into our family room and bedroom from the
fence (and the maple tree in front of our bedroom loses its leaves in winter leaving us
even more exposed).
H. The fence is in need of replacement.
The neighbors say the existing fence is not in need of replacement. Our dog was recently able to
walk through the fence into neighbors' backyard in multiple locations. The wood is degraded to
the point that it is brittle and falls apart. The neighbors replaced a few boards to correct the
existing holes (where our dog was going through the fence) but the rest of the fence is in the
same condition.
The landscaping at 20 Rowley Circle at the time both parties purchased their properties
provided privacy between the properties. If one property owner makes substantial changes to
their property negatively impacting another property, the party making the changes has an
obligation to make reasonable accommodations to return the privacy to its previous condition.
One of the objections raised by the neighbors' is that their landscaping was for their benefit and
they can do anything they want to it without regard for their neighbors' privacy. As the
neighbors have pointed out, we moved to 515 Hilary Dr. with the property in certain condition
as did they. However, that goes both ways. We moved to 515 Hilary Dr. with reasonable privacy
based on the landscaping in place at the time. We have a reasonable expectation that the
privacy between the two properties will remain the same. If a homeowner makes substantial
changes to the landscaping which adversely impacts a neighbor's privacy they have to be willing
to make reasonable accommodations to put the neighbor in the same position, as to privacy,
that they were in prior to the changes.
J. Argument that the privacy at the NW property line should also be a concern
One of the objections raised by the neighbors is that the last 12 feet of the NW property line
(which is not getting a new fence) should also cause us privacy concerns. This is not the case
for3 reasons:
1. The last 12 feet backup to 10 Rowley Circle. Exhibit 10 shows a view from our side of
this portion of 10 Rowley Circle. It has substantial landscaping that provides sufficient
privacy.
2. Exhibit 11 shows the view on the back of the NW corner of our house. There are no
windows, there is no view into our bedroom, and there are less privacy concerns due to
proximity to windows and doors.
3. 10 Rowley circle has 2 fences, the fence shown in Exhibit 10, then there is a 3 -5 foot gap
space, then there is another fence. So no one can get close enough to see over the
existing fence on our side.
K. There is no evidence that the maiority of the houses on Rowley Circle have 3 -4 foot fences One
of the arguments made by the neighbors is that the majority of the houses have 3 -4 foot fences
between the properties on Rowley Circle and Hilary Drive. There is no evidence of this.
1. Exhibit 12 is an assessor's parcel map showing the properties in question.
L There are 8 properties in question 10, 20, 30, 40, 50, 60, 70, &80 Rowley Circle.
,i ,WHIT NO. _
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1. 1 was notable to speak to all of these homeowners, however, of those I
spoke to, THREE (3) had 6 ft fences. So at least, 3 of the 8 properties
have 6 ft property line fences with Hilary Drive and possibly more.
ii. Only 20 and 30 Rowley Circle have made this claim
1. We went and spoke to Mr. Carrel at 30 Rowley Circle. 30 Rowley Circle
has a fence that would -be Oft 6 inches tall if it continued onto our
property line at the same height.
iii. There is certainly precedent for a 6 ft privacy fence when at least 3 of the 8
homeowners on Rowley Circle have a 6 ft privacy fence and possibly more.
L. Recommendation
We would recommend by way of compromise:
Removing the existing fence, building a new 5ft 6 in fence directly on top of the retaining wall
(which would make it arguably 1 -3 inches shorter because we get rid of the gap at the bottom)
and lowering the height to 5 feet for the last 16 feet where there are less privacy concerns so
the neighbors can retain their view. This would address our privacy concerns and still allow the
neighbors to retain their views.
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TOWN OF TIBURON
1505 Tiburon Boulevard
Tiburon, CA 94920
To:
From:
Subject:
Reviewed By:
PROJECT DATA
Members of the Design Review Board
Assistant Planner O'Malley
Design Review Board Meeting
October 2, 2014
Agenda Item: 3
515 Hilary Drive; File No. 714094; Site Plan and Architectural Review
for Construction of a Fence for an Existing Single- Family Dwelling
ADDRESS: 515 HILARY DRIVE
ASSESSOR'S PARCEL: 039 - 133 -10
FILE NUMBER: 714094
OWNER: RICH AND CHRISTI MCELREATH
APPLICANT: SAME
LOT SIZE: 9,200 SQUARE FEET
ZONING: R -I (SINGLE FAMILY RESIDENTIAL)
GENERAL PLAN: MH (MEDIUM HIGH DENSITY RESIDENTIAL)
FLOOD ZONE: X
DATE COMPLETE: SEPTEMBER 23, 2014
PRELIMINARY ENVIRONMENTAL DETERMINATION
Town Planning Division Staff has made a preliminary determination that this proposal would be
exempt from the provisions of the California Environmental Quality Act (CEQA), as specified in
Section 15303.
PROJECT DESCRIPTION
The applicant is requesting design review approval to construct a fence for an existing single -
family dwelling on property located at 515 Hilary Drive. The property is currently developed
with a single - family dwelling.
A series of existing 1 to 3 foot tall retaining walls are situated near the rear property line. These
walls create a grade difference between the subject site and the adjacent property at 20 Rowley
Circle, with the subject property lower than the neighboring lot. A 38 inch tall fence is currently
situated on top of the retaining walls along the property line.
The proposed wood fence would be located on the rear north property line in between the subject
site and 20 Rowley Circle. The proposed fence would have a maximum height of six feet (6'),
TOWN OF TI6URON
PAGE 1 OF 4
or- .
Design Review Board Mecting
October 2, 2014
would stand on the property line (approximately 68 linear feet), and would connect to the
remaining perimeter six foot (6') tall fence along the other property lines. The existing 38 inch
tall fence would be removed, except for a minor portion on the west side, which is currently
covered in landscaping.
This application was first submitted for staff -level design review. During the review of this
application, the neighboring property owners at 20 Rowley Circle and 30 Rowley Circle raised
objections to the design of the proposed fence. As a result, this application has been referred to
the Design Review Board.
ANALYSIS
Design Issues
The subject property is located on the north side of Hilary Drive adjacent from the Del Mar
Middle School. The site is reasonably level, with a slight slope upwards from Hilary Drive. The
property faces south with views of the Richardson Bay and Sausalito. The streets above Del Mar
Middle school change in elevation with the lots along Hilary Drive at a lower elevation than those
along Rowley Circle.
The property owner at 20 Rowley Circle has raised concerns that the proposed 6 foot tall fence
would block views from their rear yard toward Sausalito and a portion of Richardson Bay. The
applicant has indicated that the additional fence height is necessary to address privacy concerns,
as the existing fence is too short to prevent neighbors from looking down into their rear yard.
The property owner at 30 Rowley Circle has raised concerns that the proposed 6 foot tall fence
would be inconsistent with other fences in this neighborhood. The existing 38 inch tall wood
fence appears to be similar to other rear yard fences for the homes along the boundary between
properties on Hilary Drive and Rowley Circle. However, the majority of the rear yards in the
vicinity appear to have landscaping as well as fencing to provide screening between the uphill
and downhill properties, while the subject property has no such screening vegetation to provide
appropriate privacy between the neighbors.
The Design Review Board is encouraged to view the existing fence from the subject property to
evaluate potential privacy issues, visit the residence at 20 Rowley Circle to determine if the
proposed fence would create any visual impacts on the adjacent home, and view other homes in
the vicinity to determine if the proposed fence would be inconsistent with the visual character of
the surrounding neighborhood.
Zoning
Staff has reviewed the proposal and finds that it is in conformance with the development
standards for the R -1 zone.
Public Comment
As of the date of this report, there have been four (4) letters in opposition regarding this
application.
Page '_nt 4
a6 'F 3
RECOMMENDATION
Staff recommends that the Board:
Dcsi};n Ruvle'N' Board Meeting
Ocrober 2, 2014
The Board should review this project with respect to Zoning Ordinance Sections 16- 52.020 (H)
Guiding Principles, and determine that the project is exempt from the provisions of the California
Environmental Quality Act (CEQA) as specified in Section 15303. If the Board wishes to
approve the application, it is recommended that the attached conditions of approved be applied.
ATTACHMENTS: I.
Conditions of Approval
2.
Application and Supplemental Materials
3.
Email dated September 7, 2014 from David Carrel
4.
Letter dated September 18, 2014 from David Mittelman
5.
Email dated September 22, 2014 from Roger McGee
6.
Email dated September 22, 2014 from Sam Coffey
7.
Submitted Plans
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Page 3 of 4
DO D
There were no public comments. A F)T
Boardmember Kricensky said that this was a modest proposal and is needed for the house. He
said that adhering to the setback would pinch the entry and affect how it works with the rest of
the house. He agreed with staffs findings regarding the variances.
Vice Chair Tollini agreed with Boardmember Kricensky and suggested that if the setback was
sensitive the carport could be pushed to the north, but noted that the current amount of space
between the proposed side lot line and the neighboring house was reasonable. He agreed that
complying with the setback would pinch the entry and given the amount of screening and that
there are no objections, he could support the project as presented.
Chair Cousins agreed with the other Boardmembers.
ACTION: It was M/S (Kricensky/Tollini) that the request for 25 North Terrace is exempt from
the California Environmental Quality Act and to approve the request, subject to the attached
conditions of approval. Vote: 3 -0.
3. 515 HILARY DRIVE: File No. 714094; Rich and Christi McElreath, Owners; Site Plan
and Architectural Review for construction of a fence for an existing single - family
dwelling. The project would involve the construction cf a 6 foot tall fence on top of a 1 to
3 foot tall retaining wall along the rear property line. As &essor's Parcel No. 039 - 133 -10.
The applicant is requesting design review approval to construct a fence for an existing single -
family dwelling on property located at 515 Hilary Drive. A series of existing 1 to 3 foot tall
retaining walls are situated near the rear property line. These walls create a grade difference
between the subject site and the adjacent property at 20 Rowley Circle, with the subject property
lower than the neighboring lot. A 38 inch tall fence is currently situated on top of the retaining
walls along the property line.
The proposed wood fence would be located on the rear north property line in between the subject
site and 20 Rowley Circle. The proposed fence would have a maximum height of six feet (6'),
would stand on the property line (approximately 68 linear feetj, and would connect to the
remaining perimeter six foot (6') tall fence along the other property lines. The existing 38 inch
tall fence would be removed, except for a minor portion on the west side, which is currently
covered in landscaping.
This application was first submitted for staff -level design review. During the review of this
application, the neighboring property owners at 20 Rowley Circle and 30 Rowley Circle raised
objections to the design of the proposed fence. As a result, this application has been referred to
the Design Review Board.
Christi McElreath, owner, noted the very lengthy opposition letter to their application for a new
fence in their back yard. She distributed a letter to the Board responding to that opposition. She
said that when they first moved into their home the fence was in a state of disrepair and their dog
TIBURON D.R.B. MINUTES #15 Zi EI IBIT NO.-&-
10/2/14
i e� 3
had pushed through it on several occasions. She said that they wanted to have a new fence so that
their bedroom would not be completely exposed from the neighbor's back yard. She stated that
the neighbor cut back all of the landscaping along the property line so severely that there was no
privacy whatsoever.
Ms. McElreath presented photos taken from the neighbor's property at the time they purchased
their home. She stated they have now planted grass all the way to the property line and there is
now no place to plant privacy screening. She said that she offered multiple options for fencing or
screening and the neighbor has said no to every option and made no other suggestions. She felt
that landscaping could be removed and said that she cannot put in landscaping for privacy on her
side because it would be very expensive, would require 10 foot trees or shrubs and would not be
a permanent solution.
Ms. McElreath stated that the fence needs to be replaced as it is in bad condition. She said that
the fence is only three feet high and does not provide any privacy. She noted that there are eight
houses on Rowley Circle and three of them have six-foot high privacy fences. She said that the
fence at the northwest corner is not as much a concern as the fence on the northeast comer. She
said that they are not asking to replace the last twelve feet on that side because it is over six feet
high, has full landscaping, and there are no privacy concerns in that corner. She said that they
have tried to be as nice as they possibly can and are only asking for something reasonable to
protect their privacy.
Vice Chair Tollini asked for the height of the red string along the property line. Ms. McElreath
said that it is five feet high. Vice Chair Tollini asked if they would like the fence to be five feet
tall. Ms. McElreath said that they would like it higher but five feet seems like a reasonable
compromise.
The public hearing was opened.
James Demmert, representing the Mittelmans, said that they could not attend because of the
death of Mr. Mittelman's father. Mr. Demmert read a statement from the Mittelmans and stated
that their concerns are mainly about the potential view impacts. He said that they love the view
and appreciate sitting in the patio and hot tub and being able to enjoy the view. He stated that the
proposed fence would undercut their view and give their backyard a walled -in feeling. He said
that they do not like the appearance and the height of the fence. He said that the existing fence is
in good shape and does not need to be replaced. He stated that the Mittelmans had a six foot
hedge along the center of the property line, but it was there to obscure views of the McElreaths'
roof and there was no hedge on the east and west edges of the property line to preserve their
views. Mr. Demmert stated that the Mittelmans were amicable to putting in landscaping to
obscure the privacy, but they opposed a six foot fence because it would be fence them in, make it
feel like they are in a trailer park and min their view.
Rich McElreath, owner, stated the neighboring property could still put in landscaping to obscure
the fence. Privacy landscaping would cover the fence and therefore putting in the fence would
not impact them if they planted screening in front of the fence.
TIBURON D.R.B. MINUTES 1#15
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The public hearing was closed.
Vice Chair Tollini said that he visited the Mittelman' property, which appeared to be the only
property affected by the proposed fence. He thought that the five foot height illustrated by the
red string was imminently reasonable. He imagined that a taller height might start to make the
neighbors' yard feel enclosed. However, he did not see any real grounds to object to a fence. He
said that if the neighbors do not like the look of the fence then they can plant landscaping to
obscure it.
Boardmember Kricensky thought that both parties could make an argument but there is a
reasonable expectation of privacy. He said that the Board needs to address the views from the
Mittelman' property. He said that he sat in a chair on their patio and on the deck at their hot tub
and all he could see was roof and Del Mar, and that would still be visible if a five foot fence was
built. He said that even on the sides the water would be visible with a five foot fence, but might
be affected by a six foot fence. He said that he was confused as to what view would be lost with
the fence. He noted that they had landscaping at six feet high before and the property would not
feel any more boxed in than it was before if there was a fence. He said that right now you can
look right down into the applicants' bedroom from the rear yard. He believed that this was a
reasonable request for privacy. He said that it is not the Mittelmans' obligation to provide
additional landscaping for privacy, but if they want more privacy than the fence provides then
they can plant in front of it. He said that he really tried to understand the Mittelman's view issue
but believed that five feet should be the maximum height and that anything higher than that
would start to infringe on the view.
Chair Cousins said that he also went to the adjacent property and found that the fence would only
obstruct the immediate foreground views of buildings and not obstruct the water views and long
distance views. He said that removing the landscaping in the I ttelmans' back yard changed the
conditions and he felt that their neighbors should be able to respond to restore their privacy. He
felt that the compromise of a five foot fence was more than reasonable.
ACTION: It was M/S (Kricensky /Tollini) that the request for 515 Hillary Drive is exempt from
the California Environmental Quality Act and to approve the request, subject to the attached
conditions of approval, and the additional condition of approval that the fence be limited in
height to five feet. Vote: 3 -0.
E. APPROVAL OF MINUTES #14 OF THE SEPTEMBER 4, 2014 DESIGN
REVIEW BOARD MEETING
ACTION: It was WS (Kricensky/Tollini) to approve the minutes of the September 4, 2014
meeting, as written. Vote: 3 -0.
F. ADJOURNMENT
The meeting was adjourned at 7:35 p.m.
TIBURON D.R.B. MINUTES #15
10/2/14
El l�1- 111BIT NO. 5
3e -r 3
Kyra O'Malley
From: David Carrel <david @carrel.net>
Sent: Sunday, September 07, 2014 10:47 AM
To: Kyra O'Malley
Subject: Comments for Design Review: File 714094
To whom it may concern,
I received the courtesy notice regarding the application for Design Review of a 6' fence in the rear yard of 515 Hilary
Drive. I am the owner of 30 Rowley Circle and the southwest corner of my rear yard connects to the northeast corner
of the yard in question. I wish to voice my opposition to this request. All the yards along the block share rear yard
fences and they are all a similar height. Having one that is nearly twice the size of all others will be very ugly.
Additionally, we live on a slope with the Hilary houses being down hill from the Rowley houses. For the Rowley houses,
our views of the water will be obstructed by large fences being constructed. While this fence would not directly block
my views of the water, it would block my neighbors' water views and it will stick up into my ambient views as a large
protuberance. Additionally, as other neighborhood fences age and need replacing, a single larger fence will encourage
others to build larger fences, if for no other reason than to blend in with the single ugly outlier so it stands out less. This
will lead to more views being blocked. These properties have happily lived with three foot fences since the 60's. We all
purchased our homes with the expectation (certainly the desire) that the status quo be maintained.
I would also like to add that I have never been contacted in any way by the neighbors at 515 Hilary to ask my opinion or
even inform me of their desire to do this.
I request that the Planning Division reject this application for not fitting in with the character of the neighborhood and
having an undue impact on neighbors.
Thankyou
David Carrel
30 Rowley Circle
Cell: 415- 845 -9021
E)KEuBTT NO.
Lb�'I
September 18,
Sent via electronic mai l and overnight mail
Town of Tiburon
Planning Division
1505 Tiburon Blvd
Tiburon, CA 94920
Attn: Kyra O'Malley (komalley @townoftiburon.org)
lu� SEP 18 2014 L
NLANN'
RE: 515 Hilary Drive, Tiburon (Fence) (File No. 714094)
My wife and I are the property owners at 20 Rowley Circle in Tiburon (the "Adjacent
Property"). We have been notified that our neighboring property owners, Richard and Christine
McElreath, at 515 Hilary Drive in Tiburon (the "Subject Property") have submitted for Design
Review an application received August 28, 2014 (the "Application ") to erect 6 -foot high fence
panels (the "Proposed Panels ") along part of the property line between the Adjacent Property and
the Subject Property. The Proposed Panels would stand directly on the south side of the
approximately 3.5 foot high existing fence (the "Existing Fence") yet would nm only 68 feet in
length of the approximately 80 -foot length of the Existing Fence. My wife and I strongly oppose
the Proposed Panels. In support of our opposition, my wife and I submit the following
background and concerns, which in summary are that:
• the Proposed Panels would negatively affect our view;
• the Proposed Panels are not visually appealing;
• the McElreath's can achieve privacy by landscaping their Subject Property;
• our landscaping is not for the benefit of the Subject Property's privacy;
• the Existing Fence does not need replacement; and
• the Application may require a variance.
Throughout our limited time knowing the McElreath's prior to their submission of the
Application, my wife and I have acted as good neighbors to them. Even with regard to the
Existing Fence, my wife and I have sought to fully understand the McElreath's position and
engage in discussions. Nonetheless, because the McElreath's insist on an approximately 6 -foot
high fence consisting of premade panels — which are constant elements of all seven "alternatives"
cited in the Application that the McElreath's "offered" during two discussions in August — my
wife's and my concerns remain unaddressed.
My wife and 1 recognize this letter is lengthy. In an effort to reduce some of the length,
we have placed in endnotes certain details and rebuttals. Please appreciate that this letter reflects
the deep- rooted concerns held by my wife and I with respect to the McElreath's proposal and
certain unfounded assertions they make in the Application. We hope that the background and
concerns presented in this letter will provide necessary information and context missing from the
Application.
EKHIBIT NO.
1����
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
BACKGROUND
Properties
My wife and I purchased our Adjacent Property in the summer of 2011. The McElreath's
purchased their Subject Property in the summer of 2013. At the time of both our and the
McElreath's purchases, the Existing Fence existed in its current location and current height.
When my wife and I purchased the Adjacent Property three years ago, we fully recognized that
the Existing Fence was only approximately 3.5 feet in height (including the gap below). In tam,
the McElreath's must have recognized when they purchased the Subject Property a mere one
year ago that the height of the Existing Fence afforded limited privacy protection.
Our neighborhood generally is hillside in nature, and the Subject Property sits below the
Adjacent Property. Yet the houses on each of the Subject Property and the Adjacent Property sit
on relatively level lots. There are artificial terrace decks supported by retaining walls rising from
the ground level of the Subject Property to the ground level of the Adjacent Property.'
Additionally, the Subject Property's rear yard (including the artificial terrace decks) appears to
be about twice as deep as the Adjacent Property's rear yard.
History
My understanding is that the Existing Fence was built approximately ten years ago in
connection with replacement of, or repair to, the underlying retaining wall. It also is my
understanding that the preceding owner of the Subject Property refused to share the cost of
repairing or replacing the retaining wall and the connected Existing Fence. Rather, the preceding
owners of my Adjacent Property incurred the full cost and burden of the repair and replacement.
It further is my understanding that while work was being performed on the retaining wall and the
Existing Fence, the preceding owner of the Subject Property prevented workers from accessing
the Subject Property, thereby making the repair and replacement relatively difficult.
Outreach
The Application cites April 2014 as the date when McElreath's and I initially began
discussing replacement of the Existing Fence. My recollection of the initial discussion goes back
earlier, closer to the autumn of 2013 soon after the McElreath's purchased the Subject Property.
Then and thereafter, I did express a willingness to consider replacing the Existing Fence both to
enhance its appearance and to extend the life of the underlying retaining wall. I recall discussing
various heights and styles, but these merely were discussions and I was always noncommittal.
More critically, I emphasized two basic principles to the McElreath's: (i) my wife and I value
our view and any new fence should not detract from that view, and (ii) I did not intend to make
any changes to the fence until our kitchen remodel was completed, when I then intended to focus
on updating our rear yard and its landscaping.2
- 2 - EXHIBIT NO. I
a61:0
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
Preview
In April 2014, however, the timing of Existing Fence's replacement was forced upon my
wife and I by the McElreath's when they built a tree -based platform (the "Viewing Platform") in
the rear setback that allowed someone standing on it a direct view into our master bedroom and
master bathroom.3 My wife made clear her strong objection to its location and harmful impact
on our privacy. As a result, the McElreath's temporarily placed a single 6 -foot high fence panel
— the same style and height that they propose now in the Application — to block our view of the
Viewing Platforms 4 A photograph of the sample fence panel is attached as Exhibit A. Having
seen a preview of the Proposed Panels, as reflected in Exhibit A, my wife and I had the benefit of
evaluating its height and appearance. In July 2014, I asked Mrs. McElreath to remove the single
fence panel and I also informed her that I soon intended to cut down the dying cherry plum tree
(also visible in Exhibit A).
Ending
Concurrent with my request in July 2014 to remove the single fence panel reflected in
Exhibit A, Mrs. McElreath informed me that she in fact wanted to extend the same fence panel
style and at the same height along the full length of the Existing Fence. She indicated that doing
so was the least expensive option and she did not want to spend money on building another
custom wood fence. She informed me that she needed a decision in one month, during which
time her family appeared to be on vacation prior to start of school.
After that month period, Mrs. McElreath did reengage the matter with me and provided
more detail about her proposal. I asked her questions and expressed my concerns — she
mischaracterizes some of these as "complain[ts]" in the Application — but ultimately told her that
my wife and I believed that a 6 -foot high fence would harm our view and that the appearance of
the Proposed Panels was not visually appealing. Because Mrs. McElreath and I could not reach
agreement on either the height or appearance, I proposed simply leaving the status quo (i.e.,
continue with the Existing Fence that was in place when the McElreath's purchased the Subject
Property one year ago). I suggested, but Mrs. McElreath refused to consider, landscaping as an
alternative approach. Mrs. McElreath stressed that she could not accept any fence less than
approximately 6 feet in height and would take the matter to Design Review.
CONCERNS
The Proposed Panels would negatively affect our view
Like most residents of Tiburon, my wife and I consider our view to be precious. It was a
key consideration when we purchased our Adjacent Property. Our house was built and remains
oriented to maximize the view. During the day, we have a partial view of Richardson Bay from
certain points of our Adjacent Property. At night, we also view the lights on the Sausalito Hills
illuminating in the distance. The Proposed Panels would undercut our view. Sitting in our
preexisting hot tub on the east end of our property or sitting in the living room looking out the
picture windows, the Proposed Panels would fully or partially obstruct our view. Sitting or
- 3 - ElXIIISIT N0. `
3 Lr- I
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
standing, instead of having a natural view, we would have to look upon a 6 -foot high fence that
would create a boxed -in perception within the relatively small rear yard of the Adjacent
Property. Instead of light and air filtering through shrubbery planted along the property line, a 6-
foot high fence would reduce natural sunlight and airflow to property line shrubbery, forcing us
to either not plant any or requiring such shrubbery to grow far higher than previously existing or
desirable. Significantly, my wife and I believe that a 6 -foot high fence, particularly the Proposed
Panels requested in the Application, would cause our Adjacent Property to decline in value.
The McElreath's apparently do not have a water or hillside view from the southern side
of their house on the Subject Property. Still, as they are residents of Tiburon, we assume they
should be able to appreciate the importance of a view. My wife and I always have stressed the
importance of our view to the McElreath's and our other neighbors. On multiple occasions, we
have invited the McElreath's to our home in an effort to help them gain an appreciation of our
view. Yet rather than appreciating, based upon her communications to me and in the
Application, Mrs. McElreath seems to believe that (a) my wife and I still would have some view
by standing in the rear yard to look over a 6 -foot high fence, and (b) my wife and I only have a
view on the west side of our Adjacent Property. Both of these beliefs are wrong. Our natural
view from the Adjacent Property should not be undercut or blocked while sitting or standing, and
our natural view from the Adjacent Property runs the full length of the Existing Fence.
It is disturbing that the McElreath's assert in the Application that my wife and I are trying
to "`gain views "'. Nothing could be further from the truth. My wife and I are trying to maintain
the view we had when we purchased our Adjacent Property, including through pruning shrubs on
our side of the Existing Fence that we had let become overgrown while we were focused on
adapting to our new home and undergoing our kitchen remodel. The primary factors that
currently negatively affect our views are (1) the height and appearance of the roof of the house
on the Subject Property,5 and (2) trees on the Subject Property that its preceding owners and the
McElreath's have not maintained .6 We recognize that the our view from the Adjacent Property
is limited. But because it is limited, my wife and I cannot afford to sacrifice any portion of our
view.
The Proposed Panels are not visually appealing
As noted above, my wife and I already have had a preview of the appearance of the
Proposed Panels as seen in Exhibit A. Simply stated, placing 6 -foot high fence panels behind an
approximately 3.5 foot wood fence would be an eyesore. We believe that no resident of Tiburon
reasonably could be expected to accept such a double -layer differing - height fence design.
The Application notes that the McElreath's offered to remove the Existing Fence and
place the Proposed Panels standing alone. This alternative approach is one that I generally
suggested when we first discussed replacing the fence in 2013. My reasoning was to both better
support the retaining wall below the fence through adding more posts and to select a new style of
fence amenable to both us and the McElreath's. The Existing Fence's style is not what my wife
or I would choose if building it anew .7 Regardless, I rejected the Application's 3rd alternative
` _.L NO. -7
IBIT
-4- s�r�la � s
� bf- 0
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
not because of the approach, but rather again because my wife and I cannot accept the height and
appearance of the Proposed Panels.
. Although the premade Proposed Panels from Home Depot suit the style of the
McElreath's and would match the panels they have placed in front of their side fences, the
Proposed Panels — even standing alone without the Existing Fence — is not a style that my wife
and I ever would choose or want. As the Application alludes to, while I did propose a custom
style fence (specifically, the approximately 3 -foot high fence at 141 Tiburon Boulevard) to the
McElreath's many months ago for discussion purposes, Mrs. McElreath repeatedly dismissed
replacing the existing custom wood fence with a new custom wood fence as being too costly.
One can presume that the appearance of the fence matters less to the McElreath's because their
rear yard view is not oriented towards the property line. By comparison, from the Adjacent
Property house and rear yard, the appearance of the fence along the property line and its
surrounding view is very important to my wife and me.
Further, the Application seeks to build the Proposed Panels along only 68 feet of the
existing approximately 80 -foot property line. The effect of having the fence stop short of the
property line would in itself be visually unappealing. The Adjacent Property is a relatively level
lot and having the Proposed Panels stop short of the full length of the property line is
unacceptable to my wife and I. The same would be true if, as the McElreath's suggest in the
Application's 2nd alternative, the Proposed Panels "step down" to five feet for the final
approximately 12 feet on the west end of the Adjacent Property.s While a step down fence may
be acceptable on a slopped property or where no view is at issue, again the Adjacent Property sits
on a relatively level lot and the orientation of the Adjacent Property is directly towards the
Existing Fence and its surrounding view.
The McElreath's can achieve privacy by landscaping their Subject Property
My wife and I generally understand and respect the McElreath's privacy concern.' But
we do not believe the manner in which they propose to address that concemlo is the only or best
alternative, particularly given the adverse affect the Proposed Panels would have upon our view
from the Adjacent Property.
The Application focuses on the Adjacent Property's landscaping, but makes no mention
of landscaping on the Subject Property. If I was the owner of the Subject Property, I would
foremost consider using landscaping to protect my own privacy. I repeatedly suggested this
alternative to Mrs. McElreath but she refused to even discuss it and does not acknowledge it in
the Application. l The natural slope of the north of the Subject Property's rear yard leading up to
the Existing Fence is an ideal area on which to place small trees, hedges, or some other type of
landscaping so as to achieve privacy below from views above. The placement and shape of the
evergreen tree to the right side of Picture 3 of the Application 12 and the maple tree in Picture 2 of
the Application seem intended to afford the Subject Property some degree of privacy. To the
extent that privacy is insufficient for the McElreath's, they should consider enhancing the
number and type of landscaping features on the Subject Property. I believe they could do so in a
-5 - E SEAT BIT N0. I
15
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
manner that enhances their privacy without extending any landscaping to a height that adversely
affects my wife's and my view from the Adjacent Property.
Two key facts merit reiteration. First, the McEheath's purchased the Subject Property
only one year ago and with the Existing Fence as is and at its current height. The core privacy
concern cited by the McEheath's has existed from the first day they moved into the Subject
Property. While they may hope to change the height of the Existing Fence now, its privacy
impact is something they probably did consider prior to purchasing the Subject Property.
Second, the Application only seeks Proposed Panels for 68 feet of the approximately 80 -foot
property line. The result will be that someone can readily see over the remaining Existing Fence
on the final 12 feet of the west end of the Adjacent Property and look directly into the rear yard
of the Subject Property (albeit not its master bedroom). Stated differently, even if permitted, the
scope of the proposal in the Application would only partially address privacy concerns on the
Subject Property. Strategic landscaping throughout the entirety of the Subject Property's rear
yard is the only certain and the best manner to achieve privacy.
Our landscaping is not for the benefit of the Subject Property's privacy
Rather than focus on landscaping the Subject Property's rear yard to protect their own
privacy, the McElreath's instead seek to shift the burden to my wife and I by challenging our
landscaping decisions in our rear yard. 13 In particular, the Application states that my wife and I
"took out or cut back everything that maintained privacy between our properties" This simply is
not true. It is my understanding that I did not need Design Review approval for (a) planting and
removing landscaping, and (b) landscape features and flatwork. Nonetheless, because the
Application contains numerous false and misleading statements about our purported actions, my
wife and 1 feel compelled to respond and correct the record.
The landscaping on the Adjacent Property was designed by the owners preceding my
wife and I to accomplish two goals: minimize the sight of the roofing on the Subject Property
while maximizing the natural view to the south. As previously noted, and is evident from a visit
to the Adjacent Property, the roofing on the Subject Property is an eyesore that our Subject
Property's preceding owners were (or anyone for that matter would be) compelled to screen
against. By strategically placing shrubbery, the preceding owners of our Adjacent Property were
able to balance minimizing the sight of the undesirable roofing while maximizing southern views
along the full length of the property line, especially along the sides where the roofing is less
directly in sight.
Indeed, the landscaping that existed when my wife and I purchased the property was
focused on center of the property line so as to obscure the Subject Property's roofing. On the
sides, there was limited shrubbery and only then seldom extending higher than waist-high (i.e.,
the approximate height of the Existing Fence). It is correct that I pruned certain shrubs along the
Existing Fence (and other plantings throughout the Adjacent Property) in July 2014, but doing so
was long overdue (given that I had neglected landscaping for more than a year while preparing
and undergoing our kitchen remodel project) and such pruning now has served to restore the
flowing bloom on some of the shrubs along the Existing Fence.
- 6 - E yHMIT N0. I
6 av 0
Town,ofTiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
Significantly, as is evident in Picture 5 of the Application and as is more evident in
person, I have not been able to complete the landscaping update of the Adjacent Property's rear
yard. My landscaper and I were in discussions as to planting various shrubs and other
landscaping features, including additional topsoil (the watering drip system valves are exposed in
some places in anticipation of adding more plantings and soil). Yet as a result of the
McElreath's insistence on the Proposed Panels, I have been forced to defer completion of the
landscaping in my rear yard. The timing of the Application served to prematurely `freeze' an
uncompleted rear yard in a manner that does not accurately depict its prior or future appearance.
The Proposed Panels, if permitted, would have such an immediate impact upon the Adjacent
Property's rear yard that I cannot invest in finishing the landscaping until this matter is
resolved. 14
- The McElreath's were not guests on our Adjacent Property prior to purchasing their
Subject Property in 2013, and to our knowledge could not have been familiar with the condition
of the rear yard and its landscaping when my wife and I purchased the Adjacent Property in
2011. In an effort to promote their Application, however, the McElreath's make various
assumptions and draw conclusions based in part upon photographs of the Adjacent Property
(including publicly available MLS pictures from the summer of 2011 when the Adjacent
Property was listed for sale by its preceding owners, i.e., more than two years before the
McElreath's purchase of the Subject Property). Because the McElreath's purchased the Subject
Property in a private sale, there are no MLS photographs publicly available to evidence its
condition at the time of sale. The McElreath's further offer no photographs of their own to
illustrate their view of the Existing Fence at the time they purchased the Subject Property.
Regardless, to correct the record and provide context to the pictures in the Application, my wife
and 1 respond as follows:
Picture 4 of the Application is a Google Earth image dated in 2013. The
McElreath's assert it shows an assortment of trees and shrubs that we removed in
July 2014. That is not correct, at least based upon what I can see in the picture 15
The quality of the picture is not clear both in the Application and via Google
Earth itself. The picture also has limited utility because it is an overhead view,
i.e., cannot illustrate the view from the Existing Fence or the height of any
landscaping on the ground. Again, much of the previous plantings on the
Adjacent Property were waist -high and mere ground cover, yet the quality of the
picture cannot portray that fact.
Picture 5 of the Application shows the concrete patio recently placed on the
Adjacent Property 6 The angle of the picture creates a misleading image of the
slope of the uphill grade and the height of the patio itself. The McElreath's
suggest it is a "raised" patio. That is not correct. The patio sits on the natural
grade of the property only a few inches above the current ground and it replaced a
concrete patio of the same height but which had a much larger footprint in the rear
yard (Pictures 6 and 7 of the Application show the prior concrete patio).
Moreover, as is plainly evident from a visual inspection of the patio, the area
- 7 - E_X&HIBIT NO. -1
7 eF 0
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
surrounding it is not complete. That surrounding area needs additional soil and
landscaping, which again I have been unable to complete due to the Application. 17
Pictures 6 and 7 of the Application are MLS photographs from opposite ends of
the rear yard taken in the summer of 2011. The Application notes that shrubs
were removed. As should be evident from each picture, however, the shrubs were
focused on the center of the property. Consistent with the landscaping design I
described above, the shrubs were placed in the center (not the sides) of the
Adjacent Property so as to obscure the roofing on the Subject Property (and
otherwise for the enjoyment of the Adjacent Property's preceding owners).
Further, again, many of the preexisting shrubs were merely waist -high (i.e., not
higher than the Existing Fence) such as the lavender at the right side of Picture 6.
Other points evident from these pictures are as follows: (1) the top of Picture 6
illustrates the age and condition of the cherry plum tree, which also appears in
Exhibit A attached hereto, that my arborist advised should be cut down; (2) to the
right of Picture 6 behind the apple tree, the Existing Fence is clearly visible, again
reflecting that landscaping was minimal at the sides of the Existing Fence (and
thus did not provide privacy for the Subject Property); (3) also to the right of
Picture 6, the gap below the Existing Fence is visible to my eye; and (4) to the left
of Picture 6 and to the right of Picture 7, potted plants are visible, which were not
transferred upon the sale of the Adjacent Property.
Picture 8 of the Application is an MLS photograph from the Adjacent Property's
main room looking outside towards the south west corner. The Application
indicates that a rose bush and other landscaping were removed. Based upon a
clearer image of Picture 8, however, it appears that the bushes and landscaping
referred to in the Application are actually the potted plants noted in point (4)
immediately above which, as evident in Pictures 6 and 7, were placed
immediately in front of the main room windows. Additionally, in a clearer image
of Picture 8, it is possible to see the Existing Fence on the west side of the
Adjacent Property, again reflecting that landscaping was minimal at the sides of
the Existing Fence (and thus did not provide privacy for the Subject Property).
Exhibit B attached hereto shows a picture of the center -west side — nearly half the
full length — of the Existing Fence taken from the preexisting kitchen (before its
remodel) on the Adjacent Property. This picture was taken in July 2013,
approximately the time when the McEheath's purchased the Subject Property. In
contrast to Picture 8 of the Application, Exhibit B illustrates the true character of
the landscaping. The Existing Fence is fully visible and, as noted above, the
landscaping is minimal and most shrubs are waist -high. Also, to my eye, the gap
below the Existing Fence is visible on the far right side. To the left of the window
in Exhibit B is the maple tree that sits on the Subject Property. To the left of the
door in Exhibit B is the rose bush that the McElreath's apparently refer to in the
margin of Picture 8; however despite the height of that rose bush (which was
-8- WHIT NO.�_
8 a.0 �1
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
overgrown and sits behind the apple tree), it alone did not provide privacy for the
Subject Property.
Picture 9 of the Application is an MLS photograph taken from the master
bedroom of the Adjacent Property. The Application states that it is of the "NE
corner ". That is incorrect. The landscaping in the image is actually the center of
the property (i.e., the same landscaping appearing in Pictures 6 and 7). Stated
differently, the image does not illustrate the east corner of the Adjacent Property
as asserted in the Application; instead, while it was taken from the east side of the
Subject Property where the Master Bedroom is located, the picture is oriented to
the west and thus captures the center of the Adjacent Property's rear yard.
Exhibit C attached hereto does show more of an east - facing view of the Subject
Property. Although all of the MLS photographs are publicly available, the
McElreath's choose to include only four (Pictures 6 -9 of the Application) of the
rear yard, but not this Exhibit C. From the window on the left side of Exhibit C, a
large portion of the Existing Fence on the east side is plainly visible, again
reflecting that landscaping was minimal at the sides of the Existing Fence (and
thus did not provide privacy for the Subject Property). Of particular note in
Exhibit C, the greenery appearing in the left picture window above the fence (but
below the red leaves of the dying cherry plum tree) actually are trees and other
foliage running along the property line on and between the Subject Property and
its eastern neighbor at 525 Hilary Drive (i.e., the two - dimensional nature of the
picture distorts the depth and true location of that greenery, which is not on the
Adjacent Property).
Exhibit D attached hereto also shows the east comer of the Adjacent Property
from the master bedroom of the Adjacent Property (in contrast to the orientation
of Picture 9 of the Application which actually shows the center of the property).
This picture was taken in October 2012, nearly a year before the McElreath's
purchased their Subject Property. Clearly evident over the hot tub deck is the east
corner of the Existing Fence with small and thin tree - lings, again reflecting that
landscaping was minimal at the sides of the Existing Fence (and thus did not
provide privacy for the Subject Property).
The Existing Fence does not need replacement
The Application describes the Existing Fence as "dilapidated ". That is not correct in my
opinion. Although the Existing Fence is showing wear and tear, it (and the retaining wall
beneath it) seems to be in good condition. The wooden slats between the Existing Fence's posts
have broken or fallen out in the past leaving holes in the fence. Over the past two years, I either
tolerated those holes or put boards in front to cover the holes. In July 2014, however, I did take
the initiative to repair and replace those slats a minimal cost born by me.'s I have been told that
unless mistreated, the Existing Fence could last at least another ten years.
- 9 - EXHIBIT NOM
1 of 0
Town-of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
I intend to act to protect the integrity of the Existing Fence. At one point earlier this year,
the McElreath's attached a zip line to a post along the Existing Fence. Although I did not realize
it initially, the weight from children hanging on the zip line had the effect of causing the Existing
Fence to buckle and vibrate each time the zip line was used. For that reason (and a general
concern about liability), I asked the McElreath's to de- attach the zip line from the Existing Fence
earlier this summer. 19
As previously discussed and as alluded to by the Application's 3rd alternative, I am
willing to agree to actions to enhance support to the retaining wall underlying the Existing Fence.
I also am willing to replace the Existing Fence when it becomes necessary. But I do not want to
prematurely replace a good fence unless one of equal quality, and agreeable height and
appearance, is built in its place. I do not believe the Proposed Panels meet those replacement
criteria, and therefore I am content to maintain the status quo of the Existing Fence. The
preceding owner of the Subject Property had an opportunity to negotiate a different height fence
when it was built ten years ago, but he refused to take advantage then of that opportunity. If the
preceding owner of the Subject Property sought now to build a 6 -foot high fence along the
property line, I am confident that the preceding owner of my Adjacent Property would strongly
object. My wife and I feel similarly as successors -in- interest to the Adjacent Property. Like the
preceding owners of the Adjacent Property would feel, my wife and I do not want insult added to
injury by being forced now to accept a fence at a height and of an appearance of the Proposed
Panels.
Additionally, I believe that the adjacent placement of the Proposed Panels may adversely
affect the Existing Fence. Moisture, vines, and other materials may become trapped in between
the Proposed Panels and the Existing Fence, thus hastening the demise of the Existing Fence.
Further, the southern side to which the Proposed Panels will face (with or without the Existing
Fence) must absorb strong sunlight in the daytime and powerful winds and rains during certain
times of the year. I am not confident that premade panels can avoid cracking and other
deterioration as a result. Ultimately, I am concerned that if and when the Existing Fence and its
underlying retaining wall do require repair or replacement, the McElreath's (or their successors -
in- interest to the Subject Property) will be unmotivated or again refuse to share the cost of
repairing or replacing the Existing Fence and its underlying retaining wall because, if allowed to
build the Proposed Panels, the fate of the Existing Fence and its underlying retaining wall will be
of less consequence to the Subject Property. In other words, the history of ten years in the past
may repeat itself ten years in the future if the McEireath's are permitted to place Proposed Panels
in front of the Existing Fence.
The Application may require a variance
The total length of the Existing Fence is approximately 80 feet. According to the
Application, the Proposed Panels would be built only for 68 feet of the length of the Existing
Fence measured from its east end. Although not explicit in the Application, it seems implicit that
the McElreath's recognize that a variance would be necessary to place a 6 -foot high fence along
the approximate 12 feet remaining of the Existing Fence. At approximately the 68 foot point, the
height of the retaining wall below the Existing Fence clearly appears to be more than 3 feet. The
_10- E- XHIBIT NO. I___
lfj of 0
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
height of the retaining wall seems to increase as the property line runs from east to west, i.e., the
ground on the lower side (the Subject Property side) of the retaining wall seems to descend from
the east end to the west end. Yet the true height of the retaining wall may be difficult to measure
because the preceding owner of the Subject Property and the McElreath's have built up artificial
terrace decks next to the retaining wall. As a result, it is unclear whether a variance is in fact
necessary at a point less than 68 feet of the length of the Existing Fence. Tiburon Municipal
Code provides that a variance is necessary for a fence more than 6 feet in height on the upper
side (e.g., the Proposed Panels) and more than 3 feet on the lower side (e.g., the underlying
retaining wall). Without a proper assessment of the retaining wall's height and an understanding
of the build up of the artificial terrace decks adjacent to the retaining wall below the Existing
Fence, the Application should not be deemed complete due the uncertainty of whether a variance
is necessary.
CONCLUSION
Given the background related to the Existing Fence, and due to the concerns listed above,
my wife and I strongly object to the Proposed Panels that the McElreath's request to build on
part of the property line between the Subject Property and the Adjacent Property.
letter.
Thank you for your attention to the information provided and concerns raised in this
David Mittelman
20 Rowley Circle
Tiburon, CA 94920
(email: dtmitt@yahoo.com)
1 The McElreath's recently requested a building permit to perform work on one or more retaining
walls supporting the artificial terrace decks. In the interest of full disclosure, on September 11,
2014, I submitted a letter to the Town of Tiburon Building and Planning Departments requesting
that no such permit be issued until a determination is made that the retaining walls and artificial
terrace decks supported thereby have been built to and are in conformity with applicable Tiburon
Municipal Code.
L °H IBIT NQ -�
11 Il aF \�
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
2 My wife and I obtained a permit to remodel our kitchen at the Adjacent Property prior to the
McElreath's purchasing their Subject Property. We commenced remodeling shortly after the
McElreath's purchased their Subject Property. The remodel project was substantially completed
in June 2014.
3 In the interest of full disclosure, on September 16, 2014, I submitted a letter to the Town of
Tiburon Building and Planning Departments requesting that the Viewing Platform be removed
because it is a non - conforming structure within the rear setback.
4 The McElreath's state in their Application that they lowered by 1.5 feet the height of the
Viewing Platform (which they label a "tree house") to address its impact upon my wife's and my
privacy. That marginal reduction in height did not address our privacy concerns, as any person
standing on the Viewing Platform still can see into our master bedroom and bathroom. A
"reasonable and good neighbor" in our view would not have built the Viewing Platform in the
first place, or thereafter simply would have removed it upon hearing my wife's strong objections.
5 Shortly after purchasing the Subject Property and concurrent with our kitchen remodel at the
Adjacent Property, the McElreath's also undertook a substantial remodel of their own home.
Their remodel included upgrades to most of their house and landscaping. Notably, however, the
McElreath's chose not to remodel the roofing on their house. That roof was put in place
approximately twenty years ago. At the time, the preceding owner of my Adjacent Property
submitted complaints to the Building Department about the appearance of the roof, describing it
as an "eyesore ". His description of the roofing on the Subject Property remains true today, two
decades later.
6 My wife and I are aware of the Tiburon Municipal Code's chapter titled View and Sunlight
Obstruction From Trees. We had expected and hoped that the McElreath's would maintain the
trees on their Subject Property in a reasonable manner so as to preserve our view, just as my wife
and I have pruned trees on our Adjacent Property to maintain their viability and at the requests of
our neighbors. My wife and 1 recognize now that we will need to utilize the legal process in the
Tiburon Municipal Code in an effort to compel the McElreath's to trim and thin the trees on their
Subject Property.
7 My understanding is that the preceding owner of my Adjacent Property chose the fence style in
part because it was economical, particularly given that the preceding owner of the Subject
Property refused to contribute to the cost of or facilitate access to its construction.
s The Application frames this 2nd alternative as a means of the McElreath's offering to facilitate
"the only view [we] initially mentioned [we] wanted to maintain." My wife and I disagree with
that characterization, but it is indicative of the failure by the McElreath's to understand and
appreciate the quality and extent of our view from the Adjacent Property. More significantly, I
note that the location where the McElreath's offered to step down the fence to a 5 -foot height
coincides with a point where the retaining wall clearly extends more than 3 feet; accordingly, it
-12- E --KHIBIT NO•�_
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
seems the McElreath's offer was motivated less by a concern for our view and more by a
practical realization that a 6 -foot fence at that point would require a variance (given the
aggregate height of the more than 3 -foot retaining wall and a 6 -foot fence would exceed the
maximum 9 -foot threshold at which a variance is necessary).
9 We wish the McElreath's had the same concern for our privacy. As previously discussed, the
McElreath's built a Viewing Platform that looks directly into my wife's and my master bedroom
and bathroom. Of greater distress is the McElreath's decision to use pictures of my wife's and
my children prominently in the Application. My wife and I did not, and do not consent to, the
use of any images of our minor children by the McElreath's in a public document. No parents
should reasonably be expected to allow their child to be used against them by a third party. For
the record, we acknowledge that our children have looked over the Existing Fence, although
typically to speak with the McElreath's children. It is disturbing that the McElreath's would
seek to gain advantage from such a friendly and normal behavior among children. It also is
disturbing that the McElreath's seemingly had a camera or some other recording device readily
available to capture optimal images of our children without my wife's or my consent. For the
record, our children do not look over the Existing Fence with an aim to gaze into the McElreath's
master bedroom, and any implication to the contrary in the Application is insulting.
10 Also for the record, my wife and I ourselves have never sought to invade the McElreath's
privacy by looking into their mater bedroom. The only time we ever have seen into the
McElreath's open bedroom is when we looked at Picture 2 of the Application. The primary
vantage point from the Adjacent Property allowing sight towards the McElreath's master
bedroom is in the east corner of the Adjacent Property. We do not routinely stand in or traverse
that comer. Since Mrs. McElreath informed us she would take this matter to Design Review, my
wife and I have stood in the corner to better understand the McElreath's privacy concerns.
Candidly, we have to strain to see the McElreath's bedroom. Moreover, there is a manhole cover
on the ground in that east comer (for access to a sewer main that ntns along the backside of all
even- munbered addresses on Rowley Circle) and we have little desire to socialize on or around a
manhole cover.
" It may be that the McElreath's refuse to consider landscaping on the Subject Property because
they want to utilize the artificial terrace decks below the Existing Fence for entertainment and
other functions. If so, by refusing to utilize that space for landscaping, any lack of privacy is
their own decision and one that my wife and I should not be forced to remedy by being forced to
accept the Proposed Panels. I do note that area in which the artificial terrace decks are located
likely was a natural slope at a point in the recent past before the McElreath's and the preceding
owners of the Subject Property decided to build up artificial terrace decks. It is unfortunate that
actions — which may have been taken without permit and not in conformity with Tiburon
Municipal Code — to build and enhance artificial terrace decks have subsequently served to
reduce the attractiveness of strategically placing landscaping on the Subject Property.
EX ILUBIT NO._�____
-13- 3 kv 11
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
12 My recollection of the evergreen tree is that it had branches extending lower than appears in
Picture 2; accordingly, I believe that some of the natural screening afforded by the evergreen tree
recently has been removed. At the left side of Picture 2, I note the appearance of small
extensions that appear to be new branch growth. If indeed fully developed branches recently
were removed, it would be understandable that new growth now is appearing in their place. And
if indeed there were fully developed branches that recently were removed, it would seem that the
removal of those branches on the Subject Property were a cause of loss of privacy afforded to the
McElreath's master bedroom. Therefore, a key part of the McElreath's privacy concern may
have been self - created by the owners of the Subject Property.
13 The Application seems to imply that my wife and I acted nefariously to remove landscaping
only after the McElreath's proposed a 6 -foot high fence. This is not correct. As previously
discussed, my wife and I always intended — and told the McElreath's and our other neighbors
that we intended — to redesign our rear yard after our kitchen remodel was substantially
complete. Much of that landscaping had already commenced by mid -July 2014 when Mrs.
McElreath specifically alerted me that she wanted to place a 6 -foot high fence on the property
line the subsequent month.
14 The McElreath's assert in the Application regarding my landscaping decisions that:
"if their intent was just to trim overgrown landscaping they would have also cut
the height of the trees and shrubs on their east and west sides but they left those.
Thereby retaining their own privacy from side neighbors, but on [the McElreath's]
side, [the Mittelman's] took out or cut back everything that maintained privacy
between our properties."
This is not correct. I personally have trimmed, and paid landscapers to trim, all of the hedges on
both sides of my Adjacent Property. I presume the McElreath's have seen me on the roof of my
house or on my 14 -foot high tripod orchard ladder pruning and trimming trees and hedges
throughout the Adjacent Property. I also discussed with each side neighbor this past summer my
hope to have more extensive trimming on each side (or possibly replacing the trees on the west
side). • Trimming the full height (which is more than 14 -feet high) of the trees requires a
professional to climb the trees. My intent, as discussed with my neighbors, was to hire such an
arborist in conjunction with finishing the landscaping in my rear yard or during rainy season. It
is disturbing that the McElreath's would make faulty assumptions and assertions about my
intentions toward my side neighbors. I have always strived to maintain good relations with all
my neighbors and have sought to discuss with them before taking any material action affecting
my Adjacent Property.
15 The poor quality and north west facing angle of the satellite image in Picture 4 seems to distort
the actual landscaping that existed on and around the Adjacent Property. For example, the
landscaping apparently highlighted in the Application on the mid -right side of the picture seems
to be tall hedges that actually are located my east neighbor's property at 30 Rowley Circle (and
-14- LU-IITIT N0A _
�i )f �1
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
due to their height, his hedges will extend over the shared property line onto the Adjacent
Property). As another example, the landscaping apparently highlighted in the Application on the
bottom -right side of the picture actually may be very tall trees and shrubs that exist on the
Subject Property itself and along the shared property line between the Subject Property and 525
Hilary Drive. As still another example, the landscaping apparently highlighted in the
Application on the left side of the picture seems to be the Adjacent Property's apple tree in full
bloom, which I fully premed in July 2014 to renew and extend its life.
16 It seems this picture was taken near the point on the property line where the Application
suggests the Proposed Panels will end (i.e., at approximately 68 feet); therefore, the relevance of
this picture seems limited.
17 Additionally, my wife and I are perplexed at the McElreath's assertion that "before the
removal of the landscaping you could not see through the gap in the fence." Anyone who visited
our Adjacent Property could easily see through the gap in the fence. That gap runs the entire
length of the Existing Place and certainly has been there since at least ten years ago when the
Existing Fence was built. When Mrs. McElreath described her proposal to me in August 2014, I
detected then that she seemed surprised at the visibility afforded through the gap. It may be that,
because the view from the Subject Property is not oriented towards the Existing Fence, the
McElreath's never appreciated the visibility afforded through the gap; however, anyone on the
Adjacent Property, which again is oriented toward the Existing Fence, easily witnessed the gap
and its visibility down to the Subject Property's rear yard. It also may be that that the
McElreath's are alluding to slightly raised landscaping mounds previously in the Adjacent
Property's rear yard, which I lowered back to natural grade in July 2014; however, those mounds
were only in a few places of the rear yard and the effect of lowering them actually was to reduce
the height from which someone could view into the Subject Property's rear yard (i.e., removing
those landscaping mounds actually served to marginally increase the privacy afforded to the
Subject Property). Certainly, if and when this Design Review matter is completed, and I am able
to refocus on completing the rear yard, some of the landscaping and shrubbery I chose will block
some points of visibility through the gap.
18 The McElreath's assert that their dog is able to go through and jump over the Existing Fence.
When the Existing Fence's slats were broken in the past, their dog did penetrate it. Now that the
slats have been repaired, that possibility should be lessened. With particular respect to a dog
jumping over it, along approximately 16 feet the length of the east end of the Existing Fence is a
green mesh wire that extends approximately 1.5 feet above the top of the Existing Fence. It is
my understanding that the preceding owners of my Adjacent Property put the mesh wire in place
to prevent the dog of the Subject Property's preceding owners from jumping into the Adjacent
Property. It still seems to serve its purpose. Regardless, my intent sometime in the future is to
remove the green mesh wire. Rather than allowing their dog to jump into my yard, I would
prefer that the McElreath's use a modern "electronic fence" system to control their dog, similar
to that utilized by other nearby neighbors. Moreover, part of the reason why a dog may be able
to jump into the Adjacent Property is because the artificial terrace decks on the Subject Property
-15- EXHIBIT N0. 1
Town of Tiburon, Planning Department
515 Hilary Drive (Fence) (File No. 714094)
September 18, 2014
have been built up so high that any person could easily climb (and any medium -size dog jump)
over the fence.
19 I also am concerned that the integrity of the Existing Fence (and its underlying retaining wall)
is at risk due to separate retaining walls within the rear setback of the Subject Property that have
been improperly constructed. Mrs. McElreath recently informed me that those separate retaining
walls "bowed and were not pressure treated wood in some locations[.]" It is possible that those
separate retaining walls in the rear setback were improperly built, without a permit, and are
adversely impacting the Existing Fence.
2e Additionally, the "Minor Alternation Supplement" submitted by the McElreath's in connection
with the Application describes installing the Proposed Panels from the north east comer of the
Subject Property "to the end of the upper retaining wall[.]" This description is unclear. If the
"upper retaining wall" referred to is that which supports the upper artificial terrace deck on the
Subject Property, then by my measure, that upper retaining wall ends at approximately 76 feet —
not 68 feet as otherwise suggested in the Application — from the north cast corner of the Subject
Property.
E_ _ f_ { _ 1 NO
16-
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a
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Kyra O'Malley
From:
RCMCGEEI @aol.com
Sent:
Monday, September 22, 2014 9:36 AM
To:
Kyra O'Malley
Cc:
Scott Anderson
Subject:
515 Hilary Drive
Ms. O'Malley,
I live directly uphill from 515 Hilary Dr and 20 Rowley Circle. I have known the Mittelmans at 20 Rowley Circle for several
years. They are good and cooperative neighbors. Mr. Mittelman has trimmed trees on his property to preserve my view of
Richardson Bay and Sausalito. It would be unfortunate if a fence between 515 Hilary and 20 Rowley Circle were built so
high that the Mittelman's view was impacted.
Roger McGee
113 Ham Court
415 - 533 -5164
111HIFIT NO.
-V
(bV;(
Kyra O'Malley
From: Sam Coffey < Coffey @eesclaw.com>
Sent: Monday, September 22, 2014 6:45 AM '
To: Kyra O'Malley SEP '12 Yl)14
Subject: Application 714094 I .
Kyra:
My wife and I live at 40 Rowley Circle and received the notice about the proposed fence at 515 Hilary.
We're generally wary about fences at 6' and above in this particular neighborhood. It has a quaint, open, friendly feel to
it, and we'd worry that new fences at that height, particularly along the street, would undermine that with a compound
like feel. As for internal perimeter fences at that height, we'd be concerned that new fences at that height would
impede neighbors' views out to Richardson Bay, Sausalito, etc. as well.
Just our 2 cents. Thanks for taking it into consideration.
Sam
Samuel R. Coffey
Epstein, Englert, Staley & Coffey
425 California Street, 17th Floor
San Francisco, CA 94104
Direct Dial: 415 - 398 -6390
Main Office: 415 - 398 -2200
Fax: 415-398-6638
Email: coffevCc2eesclaw.com
www.eesclaw.com
PLEASE NOTE: To ensure compliance with revised Treasury Regulations under
Circular 230, this is to advise you that any tax advice contained in this
communication is not intended or written to be used, and cannot be used, for
the purpose of avoiding tax - related penalties that may be asserted against
the taxpayer. A taxpayer may rely on professional advice to avoid federal
tax penalties only if that advice is reflected in a comprehensive tax
opinion that conforms to stringent requirements under federal law.
The information in this message is confidential and is intended only for the
named addressee(s). This message may be protected by the attorney /client
privilege. If the reader of this message is not an intended recipient (or
the individual responsible for the delivery of this message to an intended
recipient), please be advised that any re -use, dissemination, distribution
or copying of this message is prohibited. If you have received this message
in error, please reply to the sender that you have received this message in
error and then delete it. Thank you.
EnHIBIT NO.�
I dri
Kyra O'Malley
From: David Mittelman <dtmitt @yahoo.com>
Sent: Friday, September 26, 2014 6:02 AM
To: Kyra O'Malley
Subject: 515 Hilary - Staff Report
Kyra - In reviewing the staff report, the following sentence appears near the top of page 2: "The existing 38 inch tall
fence would be removed, except for a minor portion on the west side, which is currently covered in landscaping."
That sentence appears to contain two possible errors.
First, my understanding and reading of the McElreath's application is that the existing fence will NOT be removed.
Rather, the new fence panels will placed immediately to the south and adjacent to the existing fence. Please refer to my
Exhibit A for a sample photo of the placement and appearance of the fence panels.
Second, given that the existing fence is approximately 80 linear feet, I would NOT describe the final 12 feet of that length
as "minor ". Further, that 12 feet of length is NOT covered in landscaping. It may be, however, that you are using the
end of the upper terrace deck in the subject property as the reference. At that point, there is a tree on my property that
covers that west side corner. But the end of that upper terrace deck is at about 77 linear feet of the existing fence by
my measure. Please refer to footnote 20 in my letter. Again, the Application itself is confusing on this point because it
cites 68 linear feet multiple times yet the Minor Alteration Supplement describes the end point of the proposed panels
as being at "the end of the upper retaining wall[.]"
- David Mittelman
LiIIBIT NO.�
Cb�1
IG441VC4 WI VF-0 flLi^
Dc� -2 J
Introduce yourself/ /close friend of Mittelmans//
explain why Mittelmans not there// asked me to
represent them //
The Mittelmans live at20 Rowley Circle. They are most
directly impacted by the McElreath proposal. The
Mittelmans are strongly opposed to the McElreath
proposal. So strongly opposed, that the Mittelmans wrote
a 16 -page letter in opposition so that it can be part of the
record.
Fortunately for everyone - including me - the Mittelmans
have provided me with a much shorter speech that I will
read on their behalf.
1 E! T4lBlT NO.1—
OT `1
We have lived in our house for more than 3 years. One
thing we love about our house is its view. The entire
house is oriented to maximize the southern view -
towards Richardson Bay and Sausalito Hills. It is a view
we appreciate sitting on our patio, sitting in our living
room, and even sitting in our hot tub. We realize our
view is limited in some places, especially by the
McElreath's roof. That is why we are passionate about
maintaining our view. The McElreath's fence proposal
would undercut our view and give our backyard a
walled -in feeling.
Over the summer, we had a preview of the fence panels
the McElreath's proposed. You can see it in exhibit A.
We simply don't want to look at a fence that looks like
that. Period. We don't like the appearance, and we
don't like the height.
EXHIBIT NO.� II
Clearly, we and the McElreaths have been unable to
reach agreement on a replacement fence. So why not
keep the same height fence that existed when the
McElreaths purchased their property one year ago.
There was a time 10 years ago when the McElreath
predecessors could have negotiated for a higher fence.
They did not utilize that opportunity. Why should the
McElreaths who purchased their property one year ago
have the right to demand a higher fence now?
The existing fence is in good shape. It does not need to
be replaced.
As for our landscaping along the fence line, visualize the
fence in thirds: the east end, the center, and the west
end. Yes, we had 6+ feet hedges along the center of the
fence line. That was to obscure the McElreath's roof.
But as seen in our Exhibits B, C, and D, the east end and
west end of the fence line had either no hedges or only
small shrubs, to allow viewing corridors along both
3 EXHIBIT NO.AL
3 Dr It
sides of the McElreath's roof. The fact is the
landscaping on our property never provided privacy to
the McElreath's.
The McElreath application focused on what we have
done to our rear yard? What about the McElreath's rear
yard? We are not the ones seeking Design Review.
Your focus should be less on what landscaping decisions
we made on our side of the fence, and more on the
McElreath's decisions. And your focus should be more
on whether the McElreaths truly have considered all
alternative in lieu of their request.
First, the McElreath's decisions. They have changed the
use of the area on their side of the fence. When we
bought our property, my wife and I recall that the
ground on the other side of the fence was unlevel and
sloped down to a second retaining wall. That second
retaining wall probably was there for slope
stabilization. But the McElreath's changed that use.
4 E 01HIBIT NO.�
4o��c
Now, immediately on the other side of the fence, what
was a simple terrace now is a functional terrace deck.
A deck area that Mrs. McElreath told us she wants to use
for entertaining, child structures, and other activities.
It makes us wonder. Do the McElreath's want a higher
fence simply for privacy, or is the real reason to
maximize the use of their upper terrace deck? The east
end of their upper terrace deck is only 20 feet away
from our bedroom's glass door. Even with a fence, noise
from entertaining on the McElreath's upper terrace
deck would easily travel. This gravely concerns us.
Second, their alternatives. Not once did the McElreath's
application mention the possibility of their own
landscaping. When I raised the issue, Mrs. McElreath
refused to discuss it. Before the McElreaths demand a
replacement fence that my wife and I object to,
shouldn't they exhaust all their alternatives? Isn't the
most reasonable alternative they could consider their
own landscaping? They could place hedges along the
X.
�1 >�.:IBIm N0.
grade of their property, or along their lower terraces, to
screen out any view from above. Even their upper
terraces potentially could be planted with overarching
broad - leafed shrubs to provide a canopy. All without
growing so high as to adversely affect the view from our
property. Landscaping is always a key element when
applicants seek approval from this Board. We believe
that the McElreaths should consider their own
landscaping to protect their own privacy.
My wife and I do not want a replacement fence. We
want to maintain our view. But, out of respect for the
McElreath's stated privacy concerns, we are willing to
propose this compromise. We will put hedges along the
entire length of our side of the existing fence of a
sufficient depth IF the McElreaths will do the same on
their side of the existing fence. More specifically, if the
McElreaths will restore their upper terrace deck to its
original purpose - not for entertaining and activities,
but rather for landscaping. To be clear, we're not
-,HIFTT NO. �1
«lam
6
suggesting hedges so tall that we lose our view, but
rather sufficient depth of hedges to create a buffer zone
on each side of the fence. So our family can not easily
walk right up to the fence and look down in the
McElreath property. And the McElreath family can not
easily stand on their upper terrace area and look into
our property. Depth, not height. Again, my property
previously had limited shrubs on the east end and west
end, so this proposal is a sacrifice on our part to place
more extensive landscaping. If the McElreaths are
serious about privacy, then they should be willing to
sacrifice potential use of their upper terrace deck and
instead utilize landscaping.
Thank you for your time and consideration.
' X IETT NO. I
J�1.iA 1
7 1 ,� ��
Here are some basic Q&A's. If you are asked by the Board. Or,
in your discretion, points that you can address if the
McElreaths bring up.
REMEMBER: If you don't know, just say that. Or say that you'd
need to talk to the Mittelmans about it. People will
understand. This is most likely to occur if the McElreaths (or
Board members) raise something new. Especially if it's not
something that I had a chance to consider, then it's appropriate
for you to say that the Mittelmans hadn't had a chance to
consider that point and that need to consult with us.
Q: Do the Mittelmans want to postpone the meeting until a
more convenient time?
A: NO. This has been a cloud hanging over us for more than a
month. They want to move forward. That's why we asked you
to represent us.
Q: Would the Mittelmans accept a lower fence. Perhaps of 5
feet?
A: NO. First, the McElreaths insisted they needed a 6 foot
fence (maybe 4 inches less at 53/4 feet) for privacy. So why are
they willing to accept a 5 foot fence now and sacrifice their
privacy. Second, the Mittelmans on their own used cardboard
and sticks to test various height fences, including 5 feet. Even
that height undercuts their views.
Q: What about appearance, would the Mittelmans accept any
appearance proposed by the McElreaths.
A: Perhaps. Since the McElreaths refused to budge on the
height, I declined to discuss appearance. However, I sense the
appearance is more important to the Mittelmans than to the
McElreath's. We look upon it regularly, due to the orientation
of our house.
E-KIHIHIT NO. 1 l
% OF It
Q: Do the Mittelmans file complaints with the Town about the
McElreath's viewing platform ( "tree house ") and the retaining
walls. And did the officials reject my complaints?
A: Yes, but I have appealed those decisions. The issues are not
yet settled.
Q: The eastern neighbor at 30 Rowley has a fence at an
approximately 5 foot height. Wouldn't it be consistent to
continue that height fence into the Mittelmans?
A: NO. The property at 30 Rowley is about a 2 foot higher
grade than the Mittelmans at 20 Rowley. The actual height of
he 30 Rowley fence is approximately the same 31/2 feet high as
the Mittelmans at 20 Rowley.
Q: The Mittelmans just put in a 6 foot fence between their
property and the neighboring property at 30 Rowley, so why
not act the same toward the McElreaths?
A: The "new" fence is actually just a repair of a prior one. It
was literally falling over and apart. My neighbor and I agreed
to make simple repairs - to just one section of the fence --
consistent with the existing style of the fence.
Q: Just this week, the Mittelmans trimmed privacy hedges
along the side of their property with the neighbors at 30
Rowley.
A: That was a decision by my neighbor at 30 Rowley. The
hedges are on his property. He was courteous enough to
consult with me in advance.
I
Q: The hot tub in my rear yard violates the setback
requirements. .
A: That hot tub was placed there by the prior property owner,
Judge Broderick. I would be surprised in the Judge violated the
>HIBIT N0. I I
0�oF 1�
law. But if the Design Review staff wants to inspect, then they
can do so anytime. My lot is not deep. While a normal rear
setback is 25 feet, it can be less if the depth of the lot is not of a
sufficient depth. Mine is not. By my calculation, my setback is
closer to 20 feet.
Q: If the Mittelmans reject the McElreath's offer, are the
Mittelmans prepared to pay for the cost of repairing the fence
and underlying retaining wall.
A: YES. It's happened before to these properties, and yes we
understanding we have to do it again.
Q: Are the Mittelmans worried the McElreaths are trying to
build a second story?
A: YES, in the long run. The prior owners tried to do 25 years
ago. When the McElreaths now say in their application that we
are trying to "gain views ", we wonder whether they are
asserting that we never had a view and thus a second story
would not hurt us.
Q: For the compromise proposal to place a depth of hedges,
how deep?
A: To be determined.
EXHIBIT NO.�
It aF `I
James -
First, thank you for doing this
I feel good about my position. My 16 -page letter built a record. So I can appeal if the
initial decision is not to my liking. Bottom -line for you is to feel confident and
comfortable. No one will expect you to know everything. You'll probably be cut
some slack.
It would be nice if you could record the meeting (i.e., the portion relating to 515
Hilary). Your new iPhone should do the trick, using the voice recording option. It's a
public hearing so I don't think there is any prohibition against recording. By same
token, you don't have to ask or tell anyone you are recording.
The meeting is tonight (Thursday) at 7pm. Tiburon Town Hall, 1505 Tiburon
Boulevard. Next to library. Walk into Town Hall, the meeting room is on the right
You can't miss it.
You should get there 5 minutes early. Introduce yourself to the Chairman, Gordon
Cousins, and inform him you are representing us us. You also can introduce yourself
to staff, particularly Kyra O'Malley, who will be seated on the side.
There are three different property items on agenda. The Chairman can take it in
order he wants. Typically, he will get the easiest ones out of the way first. So my
guess is our will be last one.
The applicants - the McElreaths - will be called to present their request The Board
may ask questions.
Then Chairman will ask for public comment. He should ask you to go first If it's
open call, then jump up at try to go first.
So you know, other members of public certainly can speak. At least one, maybe
more, of my neighbors will speak - I believe in opposition to the fence. I haven't
coordinated anything. So you don't have to worry about that. People will say what
they will say.
You will learn the process by watching the speakers, including the McElreaths
before you. There are three props: (i) podium, (2) microphone which you must
speak into, and (3) a wall onto which items (architectural drawings, etc.) may be
tacked (there should be tacks there already).
When it's your turn, hand out the four photos (Exhibits A, B, C, D) to the Board
members. These are part of my letter, so already in the record. They also may
ask you to tack the pictures up to the wall. If they don't ask, then don't both.
The pictures are not so key. Rather, the oral argument is.
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AUG 2 8 2014
EIi�iIS?T NO. I�
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November 5, 2014
Kyra O'Malley
Assistant Planner
Tiburon Development Department
Re: Fence at 515 Hilary Drive.
To the Town Council:
NIA 0i Z01-
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As a resident of Del Mar and neighbor to both the Mittlemans and the
McElreaths, I would like to share my thoughts on the subject of the
proposed fence that separates the two families' yards. I object to
the higher fence for two reasons.
1) This disagreement has become a source of issue across the
neighborhood. A lot of us are friends with both families and are
aware of the acrimony that exists between them. This negatively
impacts neighbor gatherings, playdates, and seeing our children off at
the bus stop. It becomes uncomfortable when talking to one family if
in the presence of the other, for fear of inferring we are "taking
sides ". If this negativity is all for reasons of a fence between
neighbors, I argue that the fence height should exist as it currently
does. It certainly has proved through the test of time that it serves
it's purpose well, so why change it? There is value in keeping with
what works.
2) This neighborhood, as many in Tiburon, are built on hills. When
families purchase a house built on a hill, it is with the expectation
that privacy may be less than complete given that they live on a
slope. This should be taken into account when purchasing the house
and not be a considered something to alter after the fact, especially
since doing so impacts others.
Please let me know should you have any questions.
Rega
Ashley Read
100 Howard Dr.
Tiburon
NOV - :) 2014
TOWN CLERK
TOWN OF TIBURON
Diane Crane lacopi
Subject: FW: 515 Hilary Drive
From: David King [mailto:dkina68(&grnail.coml
Sent: Thursday, October 30, 2014 11:04 AM
To: Dan Watrous
Subject: Fwd: 515 Hilary Drive
Dear Mr. Watrous,
AJ C E - Vf E
0Gf 3 0 ZU14
TOWN CLERK
TOWN OF TIBURON
I am forwarding the below email since it sounds like Ms. O'Malley is out of the office. Thank you for your
consideration.
Best,
David
---- - - - - -- Forwarded message ---- - - - - --
From: David King <dking682email.com>
Date: Thu, Oct 30, 2014 at 10:33 AM
Subject: 515 Hilary Drive
To: komal1gyOtownoftiburon.org
Dear Ms. O'Malley,
I am writing in opposition to the rear yard fence proposal for 515 Hilary Drive.
I first became aware of this proposal after reading about it in the October 22, 2014, issue of The Ark. I was so
surprised to read that the Design Review Board had approved a 5 -foot fence for that location that I tracked
down the family at 20 Rowley Circle to offer my support.
I am passionate about the issue because I grew up at 30 Rowley Circle and have such fond memories of the
houses and the neighborhood. I lived full -time at 30 Rowley from my birth in 1968 until I left for college in
1987, and my family continued to own the house until 1999. I spent hours and hours of my childhood playing
in our back yard and in the back yard of our neighbors at 20 Rowley, the Brodericks.
I strongly believe that a 5 -foot fence is inappropriate for the proposed location. The houses in the Del Mar
neighborhood "cascade" down the hill. There was historically a steep drop -off between the houses on Rowley
and the houses on Hilary. This created a natural boundary between the properties, and as a result, there was
(and is) no need for an additional high fence. The fences have always been very low.
What made the area special was the sense of openness, and not being "walled in", that existed as you looked
out, down the rest of the valley, over Del Mar School to Richardson Bay. The neighborhood fought very hard
to preserve this feel, which I understood had been intended from the subdivision's creation —at one point
joining together in opposition to a second story at 515 Hilary. Mr. Broderick even led the efforts to
underground the telephone poles in the neighborhood to enhance the views for all.
The feeling of living on Rowley Circle made such an impression on me that I spent my life trying to make it
back to Tiburon. I was finally able to return 4 years ago, when my wife and I purchased a house in Hawthorne
Terrace —with a view of Richardson Bay. Please don't allow the nature of the Del Mar neighborhood, and the
fine balance between the houses and the landscape, to be permanently ruined by the construction of a 5 -foot
fence.
Sincerely,
David King
735 Hawthorne Drive
Tiburon, CA 94920
415 -789 -5531
dkin268(.@Pmail.com