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Home My WebLink AboutTC Res 1993-04-21 (3) ',~ , ~ RESOLUTION NO. 2918 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON MODIFYING A DECISION OF THE DESIGN REVIEW BOARD GRANTING AN EXTENSION OF TIME FOR A RESIDENTIAL REMODEL AND ADDITION AT 2024 PARADISE DRIVE (APPLICANT: KING. APPELLANT: LlZZA) WHEREAS, on December 19, 1990, the Town Council of the Town ofTiburon approved a Site Plan and Architectural Review application, two variances (height and front yard setback) and a revocable encroachment permit for 2024 Paradise Drive (Robert and Undine King, owners); and WHEREAS, pursuant to Section 4.02.11 of the Town's Zoning Ordinance, the King's had until December 19, 1992, to either obtain a building permit or file for a discretionary one year extension of the 1990 approvals under Section 4.02.12; and WHEREAS, within the allotted time the Kings filed an application for an extension of time; and [' WHEREAS, on January 14, 1993, the Design Review Board ("DRB") held a duly noticed public hearing to consider the King's application. The DRB granted the King's application for extension; and WHEREAS, the action of the DRB was appealed to the Town Council in a timely manner by Tiberio Lizza; and WHEREAS, the Town Council held a noticed public hearing on February 17, 1993. After consideration of all oral, written and documentary evidence presented in the staff report and by the appellant, the applicants and all other persons, the Council voted 3-2 (Friedman, Thayer, Nygren - yes; Kuhn, Thompson - no) to grant the appeal and reverse the decision of the DRB granting an extension of time for the 1990 design review approval. WHEREAS, the Town Council heard additional public testimony regarding the appeal on March 3 and 17, 1993. On March 17, 1993, the Kings and Town Council agreed to a compromise to avoid potential litigation; and WHEREAS, the terms of that compromise are contained in a settlement agreement, approved by the Town Council on April 21, 1993, a copy of which is attached hereto and incorporated as part of this resolution. ~ Drafted 4/12/93 1 ~. NOW, THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Tiburon that: 1. The decision of the DRB granting an extension of time for the site plan and architectural approval at 2024 Paradise Drive is modified as follows: (a) The Kings previous approval of December 19, 1993, shall be modified as described and shown in the settlement agreement between the Town and the Kings, incorporated as Exhibit A to this resolution. (b) The extension of time shall run for one year from the date the settlement agreement is executed by the Town. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on ADril 21, 1993 by the following vote: AYES: COUNCILMEMBERS: Thayer, Thompson, Nygren, Friedman NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Kuhn ~ ~,,~~ MICHAEL FRIEDMAN, MAYOR Town of Tiburon ATTEST: (}~YI ~d4~ THERESE M. HENNESSY, WN CLERK " Drafted 4/12/93 2 .. FULL AND FINAL RELEASE AND SETTLEMENT r--- RECITALS A. On December 19, 1990, the Tiburon Council approved the Site Plan and Architectural Review Application ("design review approval") of Robert and Undine King (hereafter "the Kings") for their property at 2024 Paradise Drive. B. Pursuant to Section 4.02.11 of the Town of Tiburon's zoning ordinance, on November 19, 1992, the Kings timely applied for a one-year extension of time on their design approval. On January 14, 1993, the Design Review Board granted this extension, which was appealed to the Town Council. C. On February 17, 1993, the Town Council granted the appeal and voted to deny the Kings the one-year extension, subject to preparation of a written resolution containing appropriate findings of fact and law. D. On March 3, 1993, the Kings, through their legal counsel, presented the Town Council with a "Demand to Cure or Correct Action Taken in Violation of the Brown Act," alleging that the Council engaged in seriatum deliberations of public business without notice and in private. The Kings also presented documents asserting that their constitutional rights of equal protection and due process were violated by the decision of the Town Council. r--- E. The Town of Tiburon and Tiburon Town Council deny the allegations of the Kings. However, both parties agree that a compromise is preferable to litigation, F. Liability for all claims which have been or may be asserted by the Kings involving their application for an extension of time for their design review approval at 2024 Paradise Drive is disputed by the Town of Tiburon. This release and settlement shall not be treated as an admission of liability or responsibility at any time for any purpose. Based on the above facts, the parties now wish to compromise and settle their dispute on the following terms and conditions: 1. The Kings agree not to file any lawsuits or pursue any legal claims against the Town of Tiburon, the Town Council, or any elected or appointed officials of the Town, arising out of the Kings' application for an extension of time for their design review approval filed on November 19, 1992, the February 17, 1993 ~ -1- .- , public hearing on the application, or any alleged Brown Act violations involving the Town's actions on this application. /", 2. In consideration of the Kings',agreemept not to sue described in Paragraph 1, the Town agrees to permit the Kings to proceed with construction in compliance with the site plan and architectural approval of December 19, 1990, provided it incorporates the following modifications to the Kings' previous design approval of December 9, 1990: (al The garage door, south and east walls of the two-car garage shall be deleted. (b) In place of the garage door on the west wall, there will be a wrought iron gate with automatic opener. The gate height shall start at 3-1/2 feet at the north end and shall increase as necessary to match the change in elevation towards the southern end of the parking area. The gate may contain the scroll work shown on the drawings attached as Exhibit A. (c) The existing planned roof of the garage shall not be changed. r--- (d) Wrought iron guard rails, matching the previously approved wrought iron rails for the project and not exceeding 3-1/2 feet in height, shall be substituted for the east and south walls of the garage. (e) A clear non-tinted transparent glass windbreak shall be installed on the south elevation. The glass area of the windbreak shall be as large as possible with as little framing as possible in order to preserve the view to the maximum extent feasible. 4. 3. The plans and drawings attached as Exhibit A and incorporated herein, contain all of the changes described in Paragraph 2 above. Any change to the carport which does not substantially conform to these plans and drawings shall not be made without review and approval of the Town Council. Any changes to the project other than the carport shall be governed by the applicable ordinances and rules of the Town. The revisions to the project listed in Paragraph 2 and attached as Exhibit A have been plan checked and approved by the Town's Building Department as being in conformance with all adopted and applicable building codes. r'- -2- ~ ~ 5. The Town waives any design review or plan check fees associated with the changes described in Paragraph 2 above or with reactivation of the existing plan check approval. The Kings will be responsible only for Sanitary District and School District tees and building permit fees which were required for issuance of a building permit prior to this agreement. r- 6. In consideration of the Kings' agreement not to sue, the Kings' design review approval and time to pay for and obtain their building permit shall be extended to one year from the date of the Town's execution of this Settlement Agreement And Release. The Kings understand that under the Town's current zoning ordinance, there can be no further extensions of time granted. Nothing in this Release precludes the Kings from obtaining an additional time extension should the Town amend its zoning ordinances to permit additional extensions. 7. The terms of this Release and Agreement shall be binding upon the heirs, successors, and assigns of the parties. r Should either party be required to commence legal proceedings to enforce or interpret any provisions this Settlement and Release, the prevailing party shall be entitled t~oe er reasonable attorneys' fees and expenses i rr in that pr eeding. DATED: :?tUUf,7 , 1993 C c....-...-~ ?C~C? l\ Robert King ~ of 8. DAJW-y 7 , 1993 DATED: ~ /'-1<!C_Y 1993 /' . ~,.~~-- Mayor, Town of Tiburon [ASH:438] r, -3-