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HomeMy WebLinkAboutTC Minutes 2012-08-15TOWN COUNCIL MINUTES CALL TO ORDER Mayor Fraser called the regular meeting of the Tiburon Town Council to order at 7:30 p.m. on Wednesday, August 15, 2012, in Town Council Chambers, 1505 Tiburon Boulevard, Tiburon, California. ROLL C_ALI, PRESENT: COUNCILMEMBERS: PRESENT: EX OFFICIO: Collins, Doyle, Fraser, Fredericks, O'Donnell Town Manager Curran, Town Attorney Danforth, Director of Administrative Services Bigall, Director of Public Works/Town Engineer Nguyen, Police Captain Hutton, Planning Manager Watrous, Associate Planner Tyler, Town Clerk Crane Iacopi ORAL COMMUNICATIONS None. CONSENT CALENDAR 1. Amendments to Town Code pertaining to Mobile Vending Vehicles - Adopt ordinance amending Title VI, Chapter 23 (Motor Vehicles and Traffic) of the Tiburon Municipal Code to prohibit the parking or standing of mobile vendors on certain street segments during certain hours (Chief of Police Cronin) 2. Amendments to Town Code pertaining to the Keeping of Chickens and Honey Bees and other text amendments - Adopt ordinances amending Title VI, Chapter 20 (Animals) and Title IV, Chapter 16 (Zoning) of the Tiburon Municipal Code (Town Code) (Director of Community Development Anderson) A) An Ordinance of the Town Council of the Town of Tiburon Amending Municipal Code Title IV, Chapter 16 (Zoning) by Making Various Text Amendments including but not limited to adding, deleting and modifying definitions, adding a section regarding reasonable accommodation [for the disabled], requiring site plan and architectural review approval for demolition of structures, making amendments to requirements for Temporary Use Permits, Tidelands Permits, vehicle gate setbacks, secondary dwelling unit s and termination of nonconforming uses, and modifying affordable housing overlay zone incentives consistent with the Tiburon General Plan; Town Council Minutes #16 -2012 August 15, 2012 Page I B) An Ordinance of the Town Council of the Town of Tiburon Amending Municipal Code Title IV, Chapter 16 (Zoning) and Municipal Code Title VI, Chapter 20 (Animals) with respect to Chicken and Honey Bee-Keeping Regulations and Miscellaneous other Amendments 3. Management/Mid-Management Compensation Program - Adopt resolutions repealing Resolution No. 22-2012 and No. 23-2013 and adopted amended resolutions for Fiscal Year 2012-13 to correct clerical errors (Director of Administrative Services Bigall) 4. Memorandum of Understanding (MOU) with Service Employees International Union (SEIU) - Approve MOU between Town of Tiburon and SEIU Local 2021 effective July 1, 2012 through June 30, 2015 (Director of Administrative Services Bigall) MOTION: To adopt Consent Calendar Item Nos. 1 through 4, as written. Moved: Collins, seconded by O'Donnell Vote: AYES: Unanimous ACTION ITEMS 1. Establish Name for new Joint Recreation Facility at 600 Ned's Way - Consider recommendation of Heritage & Arts Commission and determine appropriate name for new building at 600 Ned's Way (Town Manager Curran) Town Manager Curran gave the report. She said the project that has been known as "Ned's Way" for some time now needs a better name. She said this would also assist the Jt. Recreation Committee in its fundraising for furnishings for the new facility. Curran said that one name that had been proposed and discussed was "Dairy Knoll;" she said this referred to the fact that a Portuguese dairy was located near the site. In originally considering a name for the building several years ago, the Town Manager said that several governing concepts were employed. These included finding a name that: a) was unique and evocative rather than routine; b) was rooted in Tiburon history; c) had not been used in other major place or building names in the Town or County; d) avoided the use of bureaucratic or institutional sound names like "facility"; e) was perhaps a bit whimsical, in light of its recreational use; and f) was not overly specific to "recreation" in the event the use of the building expands over time. Town Manager Curran said that pursuant to the Town's naming policy for public spaces, the Heritage & Arts Commission had been consulted for its recommendation about the proposed naming of the site. She said that at its June 26 meeting, the commission recommended a slightly different version of the name: "Dairy Hall." Curran said the commission thought it would be descriptive of the new building that was being constructed at the site. She said that either name would seem appropriate and that the ultimate decision was in the Council's purview. Town Council Minutes #16 -2012 August 15, 2012 Page 2 Vice Mayor O'Donnell asked which name, if any, was preferred by the Jt. Recreation Committee members. Town Manager Curran said that in her discussions with Director Andreucci, a preference was given for "Dairy Knoll." She noted that there had not been a formal recommendation by the committee; however, Curran said that the committee members had "adopted" the name and were enthusiastic about the concept of "Dairy" in the name, whatever it might be. Mayor Fraser opened the item to public comment. There was none. Councilmember Fredericks said she, too, liked the reference to a dairy, especially since the calving barn still stood at the Public Works Corporation Yard. She said that naming it after the site rather than a building might be the better course, as the uses of the site could broaden in future. On the other hand, Fredericks said she would be willing to defer to the expertise of the Heritage & Arts Commission in this matter. Councilmember Collins said that he thought the name was adequate but that he was not enthralled with it. He asked whether the committee was open to, and had pursued, other ideas. Town Manager Curran said that some time had passed since she had discussed the name with the Jt. Recreation personnel; she said that it might be possible to pursue this recommendation. Councilmember Doyle said he liked the choice of "Dairy Knoll". The Councilman said his home was located in the vicinity of the farm that had once been in that area; he said the name fit the site well since it was a knoll, not a hall. He also said that Ned's Way was built with the idea of preserving some of the open space in the area, so in his opinion, it also worked to name the site with that in mind. Mayor Fraser said the name also rang true for him and that it brought meaning to the site. The Mayor said that he was not opposed to Councilmember Collins' suggestion, if the rest of the Council wanted to pursue it. MOTION: To adopt the name "Dairy Knoll" for the new facility at 600 Ned's Way. Moved: Fredericks, seconded by Doyle Vote: AYES: Unanimous 2. Encroachment Permit for Staircase at 1877 Centro West - Consider approval of encroaclunent permit for the installation of a staircase in the public right-of-way at 1877 Centro West Street, Assessor Parcel No. 059-07-16 (Director of Public Works/Town Engineer Nguyen) Director Nguyen gave the report. He said that in June 2012, local contractor Mark Swanson submitted an encroachment permit application for work at 1877 Centro West Street to replace an entry stairs, handrails, a steel gate and retaining walls. The Director noted that the previous staircase and retaining wall had been installed years before in the public right of way (ROW) and that the new staircase and retaining wall proposed to do the same. Nguyen said that since the Town Council Minutes #16 -2012 August 15, 2012 Page 3 proposed staircase is of a permanent and substantial nature, Town staff was required to bring the application to the Council for its review. Nguyen said that staff had reviewed the plans and finds the encroachment to be in general compliance with Town requirements and guidelines. He said that if the Council voted authorized the encroachment, staff would prepare additional conditions of approval and require recordation of the encroachment permit, making it revocable [per Town policy]. Councilmember Fredericks asked whether the proposed structure would encroach less than the existing one. Nguyen said that statement was correct. Councilmember Collins asked whether stairs in various other places along the same street also encroached onto the ROW. Director Nguyen said that they did. Collins also asked whether the applicant had looked at constructing the improvements in another way. The Director said that staff had asked the applicant to consider not encroaching into the ROW but was told that it created too many difficulties; he suggested allowing the applicant to explain the reasons. Mayor Fraser noted in the staff report that the staircase existed before the garage was built. Director Nguyen said that he was not familiar with the garage construction; however, Planning Manager Watrous said that the previous stairs existed prior to construction of the new garage. Mayor Fraser said that the neighborhood had a history of problems with speeding cars. He noted that the ROW was used by pedestrians, cars and bicycles; he asked if an encroaching staircase might exacerbate an already dangerous situation. He asked whether the stairs might come down the left side of the house instead. Director Nguyen said that staff had also discussed this question with the applicant; he said that staff's premise was that the applicant should be allowed to replace the existing staircase for ingress and egress, however, staff also believed there was an opportunity [for the Council] to determine whether there were other ways to access the property. Contractor Mark Swanson handed out a timeline of the project and described the history of the project to date. He showed the configuration of the existing stairs when the garage was built in 2005 (page 1); he then showed the site plan approved by the Town in 2010 (page 2); he said this also showed the site at the start of the current construction, with an existing concrete retaining wall and stairs that come towards Centro West Street. Swanson said that his clients thought that it would be better for the stairs not to spill out onto Centro West so they had proposed bringing them back even more than the 2010 plans allowed. Mr. Swanson said that he started work on the other improvements in 2010. In 2012, Swanson said they came up with the revised plan [for the stairs] which seemed to be a better solution for his clients and the community. He said the plan was circulated to the neighbors and received their Town Council Minutes #16 -2012 August 15, 2012 Page 4 endorsement. Mr. Swanson said that a lot of time and money had been spent to date on building new retaining walls and a swimming pool. He said that this work included cutting back the slope and removal of walls which would also improve the sight line at the corner. Swanson said that he had relied upon prior approvals from the Town to proceed; he said it would be difficult and that he did not have authorization to change his course of action now. He reiterated that his clients think the re- oriented stairs are in the best interest of the Town, as well. Mayor Fraser asked if there was any public comment on the matter. There was none. Vice Mayor O'Donnell said he supported the application, as submitted. He said that he lived in the neighborhood above the property in question and passed the home on took Centro West. O'Donnell agreed that it was a narrow street with a difficult corner; he said that although the encroachment was a taking of a public space, there were no good alternatives, and it was a significant improvement for both the property owner and the Town. Councilmember Collins said that he, too, supported the application and that it would make the area safer than before. Councilmember Doyle concurred with his colleagues. MOTION: To approve encroachment permit #12-75 for installation of a staircase in the public ROW at 1877 Centro West Street, as presented. Moved: Fredericks, seconded by Doyle Vote: AYES: Unanimous PUBLIC HEARINGS 1. 1 Blackfield Drive - Consider appeal of Design Review Board decision to approve a request for site plan and architectural review to construct exterior alterations to an existing commercial building (Planning Manager Watrous) Applicants: Fresh & Easy Neighborhood Markets; Nadel Architects Appellants: Darren Wein, Jennifer Rasmussen, Lynde Selden, Kyle and Ann Mary Belek, Murray and Tiffany Dunn AP No. 034-212-18 --Application withdrawn on August 15, 2012. 2. 2308 Mar East Street - Consider appeal of Design Review Board decision to approve a request for site plan and architectural review to construct additions to an existing single- family dwelling with variances for reduced side yard setbacks and excess lot coverage, and a floor area exception (Associate Planner Tyler) Town Council Minutes #16 -2012 August 15, 2012 Page 5 Applicant: Dr. Peter Wilton Appellants: Magdalena Yesil and Jim Wickett, David and Kathryn Kulik AP No. 059-195-01 Staff presented the report detailing the history of the project and described the appeals procedure. Councilmember Fredericks asked for clarification regarding the problem identified in determining lot size and floor area ratios (FARs) for some of the lots because of the mean high tide. Ms. Tyler stated that in order to determine the lot coverage and FARs for the properties that are on the waterfront, the amount of dry land must be determined using the mean high tide line. Generally, BCDC can help determine where this mean high tide line is. Councilmember Fredericks said she reviewed the data and did not have a sense of whether the applicant's lot is smaller or larger than the other two. She asked if there was any information about this at all or would it only be available if one has the mean high tide boundaries. Mr. Watrous replied that the Town only has the mean high tide boundaries in the calculations for the dry land area for lots that have submitted applications within the last 20-30 years. The Mayor had asked for additional information on this and staff found 6 parcels out of 29 parcels with information on them, not including the ones on either side. He added that the Town has not been given the lot line information in connection with detailed maps to make those calculations. This is not something they normally do until somebody applies for an application for the property and, at that time they ask the applicants to provide this information. Councilmember Fredericks asked if the proposed kitchen is within the appropriate setback or is the variance on the setback to accommodate the kitchen structure. Ms. Tyler replied that the variance is for the kitchen addition expansion because it intrudes into the side yard setback. She explained that when the project was initially submitted, the applicants had requested two side yard setback variances, but upon revisions, they eliminated the west side yard setback variance. She said that the only one that was approved was for the eastern side adjacent to 2310 Mar East. Councilmember Fredericks questioned the basis of the finding that the privacy was improved for 2310 Mar East. Ms. Tyler noted it had to do with how the expansion of the kitchen's projection out would actually block certain windows now viewed from 2310 Mar East Street. Councilmember Fredericks further confirmed it was a combination of the fact that there was a window in the solid wall and how the windows were placed in the kitchen. She stated when there is a lot which has various forms of non-conformity that comes in on an application, she asked if there is any particular policy for curing non-conformity, and Ms. Tyler stated "no." Vice Mayor O'Donnell noted that along Mar East, some properties have a deck that extends out into the Marine zone of the property. He asked if this portion of the deck was counted towards the FAR within the property. Mr. Watrous replied that an open deck would not count towards FAR whether it is on dry land or not. It does count toward lot coverage; however, the Town's zoning allows decks to extend into the marine zone but does not allow floor area to necessarily extend into the Marine zone. Town Council Minutes #16 -2012 August 15, 2012 Page 6 Councilmember Collins asked Mr. Watrous whether or not 2306 Mar East was a double lot. Councilmember Collins asked when the applicant purchased 2308 Mar East, and Ms. Tyler said she was not sure of the date but the applicant was present and could answer the question. Mayor Fraser said a comment in the staff report states, "The Board articulated findings for both variances but noted that the hardships on the applicant were the standards of the R2 zone." When he was on the Planning Commission he remembered they talked about zoning and, in some instances, they would make a recommendation for a change to the zoning ordinance and he asked what the process is for the Council to address or zoning issues through such changes. Mr. Watrous said this would be an amendment to the Zoning Ordinance which requires hearings before the Planning Commission and Town Council and adoption by ordinance. He said they have had this discussion in workshops regarding other zones. The one that often arises is the RO- 2 zone which has 15% lot coverage, and they end up approving many variances for this. In that case, the Council has discussed on a number of occasions whether to change that ordinance to better fit the neighborhood and has chosen not to. He added that there has not been a global discussion on the R-2 zone. Mayor Fraser asked and confinned that the Council has not had discussion with regard to the R-2 zone or as it relates to Mar East and as it relates in terms of looking at the zoning there in recent times. Vice Mayor O'Donnell added that they have not held this discussion for most of Tiburon for that matter and he said as Councilmember Fredericks stated the flavor of each property is unique. Mayor Fraser asked for the appellant's presentation. Magdalena Yesil, Appellant, said she is here with her husband, Jim Wickett and her son, Justin Wickett. They own and live in 2306 Mar East. She said they are here because after numerous visits, the Planning staff could not make the finding for variances for 2308 Mar East, yet the DRB could. They are appealing the decision because they believe what the Planning staff said, as she quoted; "There would appear to be insufficient evidence to support the findings for the variances requested specifically for physical hardship and injurious to neighboring properties." She asked how the DRB made the findings that Planning staff could not. Regarding physical hardship, they already heard from Ms. Tyler that the way the DRB made this finding is that the hardship and practical difficulty is that zoning does not fit the site. She said in other communities like Newport Beach, one is allowed to build 50%-60% lot coverage. The question as to what lot coverage currently this house has, according to the application it actually currently has 69% lot coverage. Even if it were in Newport Beach, it would be above the lot coverage required. On the variance finding that the project would not be injurious to other properties, the Boardmembers made this finding by saying the 5 foot balconies in the back would not be party decks and the project, in general, would not be injurious to neighboring homes. This decision was reached with three of the five members present. Town Council Minutes #16 -2012 August 15, 2012 Page 7 Ms. Yesil said one reason they bought their home was because it was a wide lot. They knew it would provide them with more frontage and it already had an existing pier and dock which was in fairly bad shape. They bought this home about 5 years ago and did a retrofit as approved as a conditional use permit in 2008. Unlike the applicant's letter which indicated they added 770 feet, they actually added 703 feet, but this did not require a variance. She also pointed out that the screening between the two homes at the water level is very difficult. She provided a picture showing the proximity of the two homes to each other and said they are quite close in one area which she showed as the view into the master bedroom. Regarding two issues of hardship, Ms. Yesil said Vice Chair Emberson of the DRB said that to live on the water and not to be able to enjoy a deck on the water is a hardship. In fact, today the home at 2308 Mar East has two decks totaling about 400 square feet at the lower level. The applicant has said the decks do not have sunlight and rear views, but both decks get quite a bit of sun, have furniture and other items on them, and have direct views toward Angel Island. She said the applicant is planning to fill this deck and make it into a fourth bedroom, and then push it out 5' 10" and build a new deck downstairs, as well as new deck upstairs. She believes this is exactly the kind of self-induced hardship that the variance process does not allow for. To fill in a deck that already exists and then to say they need another deck is not a hardship argument because the lack of decks does not apply. She also pointed out that the hardship argument that the applicant has put forth on maintaining the rear of his home does not apply. He has said he cannot maintain the rear of his home; therefore, he needs decks at both levels for maintenance. But as the picture shows, during low tide there is plenty of dry beach for external maintenance. Her home was painted about 1.5 years ago and they have no decks, docks or any access on two sides of their home and have no difficulty painting the whole house because they basically timed it and worked with the tides. She displayed a picture of their master bedroom and said today, outside light, sounds, and views from 2308 Mar East are limited in the present condition. Now two decks are being proposed and they do not really know what those two decks will do because they are not architects and cannot visualize it. They were told that the decks with their privacy screens would not be injurious to them. She went and retained an architectural and structural engineering firm and asked them to provide their expert opinion. The firm works as expert witness in cases of this kind, and they are extremely careful in what they say because they must appear in court at times and defend their findings. She asked them to help them visualize whether the two decks would be injurious to her or not from a privacy standpoint. Ms. Yesil then presented a perspective from overhead showing the two homes as they exist and the master bedroom roof (in yellow) and the two decks proposed at the upper and lower level. At the lower level, there is a triangular deck connecting another deck. The two new decks add 5' 10" at both levels which add up to about 410 square feet of new deck, bringing 2308 Mar East's outside living space 25% closer to their master bedroom at two different levels. She said the Council may think 5'10" is not that much, but from a percentage or relative closeness point of view, it brings outside living space with all of its issues 25% closer to their master bedroom at two different levels. The 410 square feet of outside living space means they will hear Town Council Minutes #16 -2012 August 15, 2012 Page 8 conversation. During the DRB hearings they were told that 5 feet decks are not likely to support large parties. They understand this but do not know how one could stipulate that. The bottom line is there does not need to be a loud party to hear what is going on next door because of their proximity. They can hear conversations and laughter, and this is furthermore exacerbated by the fact that there is water, and when calm, sound waves reflect off the water and make the situation worse for them. The injurious situation can be conversation, laughter, an intimate gathering and not necessarily loud parties. She said same as sound waves, light waves also will project out and its reflection off the water will cast into their bedroom. They have no ability to screen with trees or bushes. Regarding the proposed privacy screen which the DRB discussed and approved for the upper deck, she presented a picture from the applicant's packet. She believes that the upper deck was granted based on this privacy screen functioning. She presented a picture of the proposed decks and, while they are not architects, they asked for the expert opinion of architects and engineers to help them understand if the privacy screens would provide privacy for them. They found that someone going out on those decks will be able to see them. The privacy screens do not block direct view into her bedroom, do not eliminate views into their master bedroom and bed, and the permit-granting process has been built on Photoshop images because no one can go out to the decks to confirm that the privacy screens work. Their architects show that the privacy screens deployed do not offer the visual privacy for their bedroom as was discussed. The screens furthermore do nothing to avoid the injurious effects of the two new decks from an acoustic privacy and lighting point of view. Ultimately, the 2308 Mar East additions in the rear provide direct line of sight and injurious effect from an acoustic and lighting point of view. Ms. Yesil said they were told in the hearing that they live in a very open environment and it will not be made worse through these decks, but she questioned whether this is true. If the project is built they have two levels of 5' 10" protruding further into their master bedroom. She asked to see what percentage this would be from a penetration point of view, asked that a satellite image of the two homes be taken and that the applicant's architectural plans be overlaid on top of them. They were told that from the closest point of view of the decks they will now have a 60% visual penetration into their master bedroom. This gets worse moving further back on the decks. The closer one is the smaller the angle; the farther one is the wider the angle. She put the two slides side by side for the Council to help make their own decision and asked if the project would be injurious to them or really enhance their privacy. They think not, with all due respect to the DRB members, and they do believe they will be injured from the building of these two decks. She said even in approaching the granting of the variance on a balancing of equities theory which is not the zoning ordinance, this design still does not stand up to the test. When one balances the relative equities of what the applicant is gaining and what is being taken away from them, the applicant complains he is getting merely a modest balcony and hardly even a deck. Yet to get him this, his structure comes 25% closer to their master bedroom within 20 feet, encroaches upon their bedroom privacy, and prevents their ability to sleep in that room since they cannot shield from the conversations and light. They cannot plant trees since it is water and rock between them and the applicant's words "the modest gain he will receive" does not balance the very major detrimental impact to the quality of their daily lives, their ability to sleep, their loss of privacy Town Council Minutes #16 -2012 August 15, 2012 Page 9 and the loss of property value they will experience. Ms. Yesil then discussed the second bedroom in the rear (highlighted in yellow), presented the layout and said with the new plans the southwest area of the home gets 4' closer to them. Today they have two outdoor areas in the southwest elevation-the entry walkway and the lower deck. If the project is built, they will have four additional outdoor areas right by their second bedrooms. So, what is a quiet area today will have significantly more traffic, more light, and it will affect the quality of life in their second bedroom. She presented a picture of what exists today as the second bedroom, windows, an existing fence between the two properties, and she said they do not have the ability to plant a tree, lattice for the fence for the wind to go through, and the privacy tree which screens between the two homes. The applicant's plans will expand through the area; the tree will be taken away because it will most likely not survive, and if the plans are built as is they will have the home 15 feet away from their window, two stories of windows and a new sliding door. The proposed design creates areas of light and activity adjacent to the 2306 Mar East second bedroom. Ms. Yesil said they requested clerestory windows at the entry and stairway. This was discussed at the May 4th DRB meeting but it was never incorporated into the plans. The clerestory windows are very important to them because this is the entry into the home as well as the stairway, and most of the time it will be lit which will shine right into their bedroom. They also requested the tree be maintained or replaced which the applicant agreed to but it was never stipulated into the permit. They also asked that the sliding doors be made into solid doors to reduce glazing. Regarding the decks, they believe that the lower deck should not be granted because it is a good example of self-induced hardship. There are already two decks at this level totaling 400 square feet and furthermore, the lower deck is injurious to their privacy to their master bedroom as it is exactly at the same level. They also asked for the DRB to reconsider the upper deck. The upper deck has been granted based on the theoretical function of the privacy screen which does not provide the visual privacy claimed by the applicant nor does it eliminate the injurious acoustical and lighting into their master bedroom. The upper deck is injurious to the privacy of their master bedroom and they also believe it should be eliminated. In closing, they are before the Council because they have asked that 2308 Mar East not be granted. Staff in three different reports said that there appears to be insufficient evidence to support the findings for the variances requested, specifically for physical hardship and injurious to neighboring properties. In contrast, in granting the variances for 2308 Mar East, the DRB determined that the zoning designation did not fit the site or the Mar East waterfront vicinity in general. She believes this is dangerous precedent for the Town of Tiburon because it creates a lawless environment for the Town. She asked that the Council adopt the staff's recommendation by denying the excess lot coverage variance in light of lack of physical hardship to the applicant and the injurious and detrimental effects of this variance on them and on their property. Councilmember Fredericks asked Ms. Yesil to clarify the shortcomings are of the screen on their patio, as when she visited the site it was not in good shape. Ms. Yesil said the screen was there when they purchased their home. It is a very thin fence and is very high from their side because Town Council Minutes #16 -2012 August 15, 2012 Page 10 they are 25 feet lower than 2308 Mar East. She said she cannot grow bushes there but if they could they would prefer more light screening. But because there is not dirt underneath for them to grow bushes in, they are basically limited to whatever the current fence can provide. It is not a perfect fence and light does come through. Light goes in every direction and diffuses out, so they believe even though there is a fence in front of the sliding glass doors, at night when turning on a flashlight in the area, it does light up towards the sky and they can see the light. They originally were not opposed to the house coming out 4 feet towards them and they just ask that changes be made so their life is not as difficult, as they believe it will be if the request is approved. David Kulik, Appellant, said his wife Kathryn and he are the owners of 2310 Mar East and thanked the Council for the time put in preparing to hear this meeting. He has three goals for his presentation-the first is that he wants to demonstrate the injurious impact that these variances have on their property through a PowerPoint presentation. Secondly, there are many legal issues in play and he will ask that his attorney, Mr. Len Riflcind to articulate on those, and finally, they want to show where they think the DRB missed the mark in finding for these variances. Mr. Kulik presented the orientation of the two properties; 2310 and 2308 Mar East. He said what is shown is the result of a fierce battle waged 40 years ago. The final result was set in detail to maximize the privacy in an area that was inherently not private while also minimizing the impact to light and views for all players involved. There is a lot of evidence when going through their home, given the strategically placed windows that look directly down property lines, privacy enhancements, unique cuts that maximize the view from 2308 over to Berkeley. All of this was done with careful consideration of the relative orientation of the two properties and done on purpose. He brought up the concept of absolute versus relative, stating they fully concede that what is being proposed is not that much from an absolute perspective. It is 5' 10", and if the properties were separated by 100', less than a 6% relative impact to the separation, it would not be an issue and would be negligible. However, these two properties are separated by 8' and 5' 10" represents a 72% impact to the relative separation of the two properties. What it does is create levered and adverse impacts for every change in 2308 Mar East to this carefully constructed scheme of 2310 Mar East. He said he would show the result of variances to the zoning ordinance that were granted by the DRB and he asked the Council to keep one thought in mind as he goes through the slides-he asked that the Council ask itself the question, is 2310 Mar East made better or worse for what is being proposed? The answer to that question is the very basis for their appeal. Mr. Kulik stated at the closest point of approach now from one of the two open-air decks to their property, they have 20 feet of separation, which they accept. The new project, from their perspective, calls for two decks and a kitchen extension, and that separation now from 20' gets reduced to the order of 8' which is a 60% reduction in the separation between an open-air deck and their living room, which has several adverse effects for them. First, in looking at the acoustic issues, from 8' in their living room listening to the deck, they can hear every word that is said. Worse, in the opposite, someone standing on that deck can hear every conversation that occurs in their living room. It changes the way they live in their house. On the upstairs, they would have a kitchen pop-out which has cooking and cleaning sounds at unpredictable hours, Town Council Minutes #16 -2012 August 15, 2012 Page I1 which is 8' from their master bedroom, which changes a lot of things in their master bedroom. Also, having lived at 2310 Mar East for 4 years now, they know the prevailing wind is right down the line of 2308 Mar East. They use this window for ventilation at night and they open it. They can hear the water and can get a lot of fresh air. Regardless of how good the ventilation system is in the kitchen, they know from experience that every odor emanating from the kitchen will end up in that window. Mr. Kulik pointed to an illustration which represents the visual privacy intrusion range from the new decks into their main living areas. Their master bedroom is upstairs, the main living room is downstairs, and the yellow represents what they have to do with window treatments to maintain their visual privacy in those spaces. He presented a slide that represents a 55 degree intrusion angle into their main living spaces. Admittedly, this is not great, but what the project does is when they move out 5'10", it increases that angle to 80 degrees. This is a 45% increase in the visual penetration into their master bedroom and main living room. From pictures inside their home, they can see the deck 20 feet away from their living room. What will happen with the new project is someone will be 8 feet away from their living room, can literally read the paper over his shoulder as he sits on the couch, and this presents a look down porch directly into their main living space. This forces them to use window treatments to guard their privacy. They have a fantastic view of the Golden Gate Bridge and it puts them in a difficult scenario because their choice is to look at the bridge and accept the new privacy intrusion or maintain their privacy and block off the view from their entire living space of the dining, living room and kitchen. He displayed a picture taken from the perspective from his pillow in his bedroom upstairs. He said one can see a silhouette of a person and actually see the tenant renting 2308 now in the picture. Again, they know the scenario is not perfect and inherently not private, but this gets much worse when the upper deck creates a perch of an 80 degree or worse intrusion angle into their bedroom looking directly at him as he sleeps on his pillow. This puts him in the choice again of whether he should cover up 2/3 of the window and block the view from his master bedroom and maintain his privacy or does he sacrifice all that and let somebody look at him while he sleeps. Mr. Kulik then presented before and after views from his dining room table, showing the lower decks that extend out which is the same concept. Someone has the ability to look at him and his only option is to cover the window with a treatment and all the people at his table cannot see the Golden Gate Bridge and to say nothing of the fact that the person is 8 feet away from their table. This is a significant problem and a devastating change to their quality of life because they have no private conversation at their dining room table. He then presented a picture from the perspective of where the upper deck will be and it is taken from the line of the story poles in place now. The red silhouette shows a person standing on the deck, the pillow from where the previous picture was taken, and inverting the silhouettes, he showed the view from the upper deck into their bedroom. The only choice he has is either let somebody watch him in bed or use a treatment and block off views of the bridge. It is the same concept on the lower deck, which he then similarly explained. Admittedly, he said this is not a primary view window but it is tremendously enhancing to the character of the house and it speaks to the meticulous design placed there. It adds a lot of light to the stairs, is a safety enhancing Town Council Minutes #16 -2012 August 15, 2012 Page 12 feature, and adds character to the room. Looking out the window one can see the Sutro Tower, Angel Island and the water, and he asked the Council to ask the question--Is 2310 Mar East made better or worse by this? Len Rifkind, attorney for the appellant, said he knows the Council understands the concept of findings, but in his view this is the analysis they will have to partake--to decide whether or not the Council can make findings under the Tiburon Municipal Code Section 16.52.030 (e). There are four findings required by State law to be made in order to determine whether or not the Council can grant what has been requested, namely a side yard setback variance, a lot coverage variance, and a floor area exception. He read verbatim number 3 of the Municipal Code and specifically called out that "self-created hardships may not be considered among the factors that might constitute special circumstances and a self-created hardship results from actions taken by present or by prior owners of the property that consciously creates very difficult hardships claimed as the basis for an application for a variance." He noted that staff, in three staff reports in December, May and June all concluded each time that they could not make this finding, which is significant. The reason they could not is that at least with the lot coverage exception, this property is so overbuilt, it exceeds six standards in the R-2 zoning that there is no need to go even further beyond the overbuilding that has already occurred, so staff could not make the finding for that very reason. Staff has said in fact that any application that requests both a lot coverage variance and a floor area exception is by definition an example of fundamental overbuilding, and this is what this application is requesting. Regarding the side yard setback on the east side, Mr. Rifkind said it is down to 6", but this was created 40 years ago and the language right in the ordinance states that a "self-created hardship, whether by present or prior owners..." Therefore, when 40 years ago a lot line adjustment was detennined between the two properties, it unfortunately affected 2308 with the situation it is finding today. The reason the lot line adjustment was created was so the owner who owned both 2308 and the lot would be able to build what is now 2310 Mar East. Mr. Rifkind also pointed out the second finding that the Council must make is the idea that it cannot be injurious to the neighbors' property. He thinks the picture says this and tells the story. It seems abundantly clear that the Kulik family's privacy, views, and sunlight are all significantly impacted by the proposed project as it is designed. Regarding the findings, he stated the California Supreme Court in 1974 had a case called "Topanga" and one of the lines he loves about the decision says, "a finding bridges the analytic gap between the raw evidence and the agency's ultimate decision." The raw evidence here is the two decks seen in the kitchen pop out. The ultimate decision is whether this Council decides whether or not to grant these variances. What the finding is going to bridge is the gap between the two decks and the decision whether to grant or not grant the variances. It seems there is enough evidence presented that the Council cannot make those findings. It is clear that for the injurious aspect, the Council has heard from Mr. Kulik that there is a levered and adverse impact, which the pictures show. In terms of the hardship, when the house already exceeds every aspect of the zoning standards, the resolution would be there is nothing stopping the applicant from Town Council Minutes #16 -2012 August 15, 2012 Page 13 building within the existing footprint. They could have the same decks and kitchen albeit the house is slightly smaller at 2,600 feet. They want 2,900 feet, so they could still build all the same design within those 2,600 feet there, and this is what they are suggesting the Council go. Another point raised and staff talked about it is the idea of non-conforming use and non- conforming structure, and the zoning ordinance, Section 16.62.030 addresses both. Regarding the structure part, they are not changing the use but the whole point of having a non-conforming ordinance is the goal of any zoning ordinance is so that all the structures and uses actually conform and comply. The goal is not to have a structure that will go beyond what is permitted by the standards, and that is what unfortunately this application does and contrary to what provision Section 16.62.030(b) says, which he read into the record. Usually an applicant will ask for a variance in order to get around it, and they have indicated and shown clearly is that the Council cannot make those findings. Lastly, from a policy standpoint and from the concept of precedence, Mr. Rifkind stated he thinks every Council thinks about that, if the Council decides to grant this application because the applicant thinks it is modest and only 5'l 0" and the DRB said it was not a big deal; that they are only increasing the square footage by 10%, the facts are that they are moving from 20 feet to 8 feet. The applicant says that all homes in the Mar East neighborhood are non-conforming. This is a sweeping statement but there is no evidence that is actually true. He does not know if anybody really knows this. The applicant has said that all homes in the Mar East neighborhood have variances, but 2310 does not, 2332 does not and 2248 does have one but it has specific findings stating it was not injurious to any adjoining properties. If this is granted, the Council will have the potential for every home in Mar East to be able to come forward and point to 2308 as an example and neighbors will oppose this. If the Council stands up for the zoning ordinance and does not grant this, the Mayor suggested doing a zoning change which he said is not before the Council tonight, and he would appreciate based upon everything heard if the Council would uphold the appeal, deny the application. Mr. Kulik concluded the presentation, stating he spent a lot of time doing some research of a precedent setting case on Mar East that would show all elements in play here--an application, variance, neighborhood opposition, Town opposition and ultimately an appeal. He found the most applicable case and this is his house, 2310 Mar East. Forty years ago a man owned a vacant lot and wanted to construct a residential structure. He submitted plans to the Town that called for a variance. On seeing these plans, neighbors were opposed and the Town encouraged the applicant to redraw his plans. He did so, resubmitted the plans for a structure that had zero variance to the zoning ordinance, and this structure is his house. fie thinks it is precedent setting that in asking for a variance not just in Tiburon or not just on Mar East Street, but in this specific locale, there is a precedent that if you ask for a variance you cannot injure somebody else. Obviously, putting up a structure on a vacant lot would be injurious and the neighborhood and the town made it happen, so that wouldn't go forward. Now what the Council sees is a structure that is completely compliant and required no variances to be built. With no disrespect to the DRB, when things are granted through variance and justification is used, attention must be called to it if it is disagreed to. Town Council Minutes #16 -2012 August 15, 2012 Page 14 Mr. Kulik stated that a Boardmember said the screen would completely eliminate the view of the bedroom next door. He was referencing 2306. He knew it was a problem from looking at a deck through a bedroom and said the screen that has gotten so much air time through debates would solve that problem. What that Boardmember did not address was this situation; he worried about the screen at 2306 but never mentioned the situation in his finding for both variances. Another Boardmember said the project would not be injurious to other properties but instead would enhance their privacy. With all due respect, Mr. Kulik said they are not familiar with the chain of logic that would allow somebody to conclude that this does not injure their property. Finally, a third Boardmember states that the hardship and practical difficulty was that the zoning does not fit the site. This is an opinion and it is fine, but to find for a variance that injures their property is not appropriate. In other communities like Newport Beach are allowed to build 50%-60% lot coverage, but this is Tiburon and we should not be modeling our zoning after them. To grant a lot coverage variance without mentioning the injurious effects or lack thereof to his property is something he cannot agree with. Mr. Kulik said his goals are that he wanted to demonstrate the injury this has to his property, his attorney talked about the legal points, and he wanted to say why they disagree with what the DRB said in finding for the variances. Staff, over the course of the past seven months, has been completely professional and he appreciates this. Mayor Fraser asked for any clarifying questions from Councilmembers, and there were none. He asked the applicant to come forward for his presentation. Dr. Peter Wilton, Applicant, said he appreciates the Council's time to come out and look at the property. He began by agreeing that the findings were made unanimously. There was mention there were only 3 members of the DRB present which is correct, although there are plenty of comments fiom the fourth member who was present at the two previous hearings. In the minutes, he was equally supportive. He said that the question was whether the DRB act appropriately and he believes this requires them to look at these issues; 1) the nature of the review process and was it fair and meaningful; 2) what is the nature of prevailing development along Mar East; 3) what is the scope of the proposed work; and 4) what have they done in response to concerns of the neighbors. In looking at these individually, the review process involved three meetings with the DRB. It involved very extensive direct engagement with the neighbors and they even retained an independent party to try and resolve the issue and take further input to try and address the needs of neighbors. The outcome of that was different depending upon who you are talking to. Mr. and Mrs. Kulik purchased the home at 2310 Mar East in December and before they purchased, they were well aware of their plans. They actually had story poles up for the original proposal that were three times larger than what they ended up with. The Kuliks made the decision to purchase anyway. Town Council Minutes #16 -2012 August 15, 2012 Page 15 Dr. Wilton said that they engaged the Kulik's even before they purchased, tried to get their input, the result of which has continued and has been neither collaborative nor compromising. Mr. Kulik has basically said the only thing that is acceptable to him is to stay within the envelope and that he was wasting their time and money putting story poles up and doing anything else. Dr. Wilton characterized discussions with 2306 Mar East as collaborative but not compromising. There has been a lot of compromise made but so far it has all been unilateral. He said they even tried to reach out to the Wickett's one week ago suggesting further discussions. The result was an approach of "give us everything we want and we will drop our appeal." So, unfortunately, that process has not been that productive, but it has been active. Regarding prevailing development, Dr. Wilton believed the properties are all unique on Mar East which is why precedent does not apply because everything is so different in each case. This particular property is highly compromised for many reasons. The first two involve the setback from other properties along Mar East and the setback from two immediate neighbors. He displayed an exhibit showing the setback line to the edge of the prevailing development along Mar East and said that no other property is set as far back than this particular property. The next reason they feel it is compromised is because of the lack of an upper and lower deck which is open and unobstructed. Every other house along Mar East has a multi-level exterior deck with unobstructed views of the Golden Gate Bridge and the rest of the Bay. The one exception is the WIckett's house, which has a single level deck. He showed photos of decks at 2310, 2312, and 2306 Mar East. Their original request for decks was approximately 700 square feet and in light of what happened with the Wickett's house two years ago, they do not believe they are asking for the world, but rather something quite similar. Today, they are requesting a deck of only 280 square feet. Dr. Wilton said that other properties along Mar East are all basically tiered, meaning the lower deck extends out further than the upper deck. Their proposal is not to do this but have the decks in line which denies them a lot of light and sun on the lower deck. He said they have a partial view of the Golden Gate Bridge from the lower deck, but there will be a privacy screen and that view will no longer be possible. They do not have a dock and would like access to the water. They originally included a dock in the plan, but removed it because of objections from neighbors and the desire for more privacy. The Wickett's have a dock so the fact that they are not able to do this is further hardship. Dr. Wilton said that the lack of maintenance is a serious issue for them. He presented a picture of the property at iow tide on the water's edge. When they bought their house in March of 2011 they found leaks everywhere. He pointed to areas which are rotted and the only way they could access it is having somebody in a sling go over the roof. The other main purpose of these decks is to give access to maintaining the waterfront side of the property. They found holes all along the area because the property had never been maintained because of the fact that nobody can get to it. So the house is deteriorating and needs to be upgraded. Dr. Wilton said that the Council heard reference to a lot line adjustment, and he showed plans showing the locations of 2310 and 2306 Mar East. He said that in 1971 the owner decided to Town Council Minutes #16 -2012 August 15, 2012 Page 16 build the house at 23 10 Mar East and its original location was right on the boundary line with a zero variance. Mr. Kulik asserted that his house was built with no variances, which is correct, but only because the owner moved the lot line. This immediately created a substandard side yard for his property and in addition, it took a large portion of available dry land from their original plot. They feel this is a very significant issue that has brought him here today, and this is why they have a side yard setback variance request. He said that the Town transferred the variance granted to 2310 to theirs by precedent, so, they are asking for a continuation of that side yard setback. Councilmember Fredericks questioned what Dr. Wilton meant by "they transferred the variance." Dr. Wilton said there was a lot of protest about building 2310 Mar East and discussions back and forth between neighbors. Because of the opposition from neighbors, the owner of this property wanted to get away from the variance so he moved the lot line. He said there is a high tide line so that portion of dry land area is gone and taken from him, which again, is why they are before the Council. While it is history, it is context and part of the reason why this property is compromised. Dr. Wilton stated the DRB looked at all of this and concluded there is hardship for this property. in terms of the physical maintenance and because they were being denied the privileges of every other owner along Mar East has, particularly in terms of the open, multi--tiered deck. Regarding the scope of the project, Dr. Wilton said that they have been questioned on their personal motivations for what they are doing. This is their retirement home and would like to grow old there. To do this they need to put what is necessary to live on one level without stairs. They would like single floor access to the kitchen, bath, bedroom, living room and dining room on the top level. It has been proposed to them to take away the roof of the existing structure and stay within the envelope and put the decks there, but to do this and accommodate aging in place would basically be extremely expensive or impractical. They are starting a family and want room for kids. He continues to research and write from home and both have wheelchair-bound dependents that are going to visit. Therefore they do think the plan to have 4 bedrooms is excessive. They are increasing the lot coverage by about 300 square feet, most of which is within the existing envelope. The only actual increase in the envelope is the kitchen pop out at 50 square feet. Everything else is reclaiming the existing footprint of the property. Dr. Wilton said they calculated FAR's on the adjoining properties and looked at Lhe dry land area. His architect, Mr. Sadrieh ran the numbers for lot coverage and floor area and the house is not that far out of line. Councilmember Frederick asked how Mr. Sadrieh determined what the mean high tide line was. Mohammad Sadrieh, architect, stated they are not exact, but are extrapolated from where the mean high tide line is on the property below them. Dr. Wilton agreed it is an estimate but better than nothing. This is why the rest of the lot coverage does not make sense in this area. If he wants to get a low lot coverage number, he can just build on water which is exactly what has happened with 2306 Mar East, and which is why he Town Council Minutes #16 -2012 August 15, 2012 Page 17 thinks the variances need to be granted. He felt that the calculations are not meaningful in this kind of situation and this is the conclusion the DRB reached. He could get around the lot coverage by putting everything on the water which they have not done, but 2306 Mar East has done. Dr. Wilton presented the square footage they are proposing at 2,900 square feet and he showed other properties along Mar East showing it is not excessive, and he said this is one of the reasons also the DRB reached the conclusion that it was modest. There are complaints about them filling in the lower deck, but the lower deck is covered so it does not get sunlight except for a very brief period of the day on a very small portion of the deck, so they would like to have an uncovered deck. It is actually a porch, but the main issue is getting access to maintenance, and this is why they are asking for the lower deck-to be able to maintain the property just like everybody else along Mar East. Regarding the concerns about privacy and views, deck size and view intrusion, the DRB looked at all things mentioned tonight and they made the comment at the end of the process that it is a very thoughtful design, that they responded appropriately to the issues raised, and they concluded it did not intrude into the primary view spaces. He displayed adjustments made to the original plans on the decks made in May and in June. The original deck was supposed to be 700 square feet and the decks have been reduced to 280 square feet. They are surrounded by a deck of 1,660 square feet, 700 of which was added 2-3 years ago. The DRB called this a balcony where people are not going to be able to congregate and not a deck. The Council heard a lot of complaints about noise from both neighbors, but in thinking about the ability to congregate outside and create noise, it is easier to do that on the two adjoining properties. Privacy is a two-way street and they are being asked to accept noise into their house but they are not being given the same privilege by their neighbors. Notwithstanding that, they have done a lot of things to give privacy which no other house on Mar East has done. They have extensively used privacy screens to try and address the privacy issue. The DRB concluded that as a result, the house would actually increase privacy and that expectations of total privacy along Mar East are just not reasonable nor are the possible. He displayed where photos were taken from and explained theirs, stating in the previous presentation this was not shown. They were taken from angles that were very advantageous to the views of their neighbors. Councilmember Fredericks asked how far the viewpoints are from the windows, and Dr. Wilton said it depends on where one stands and said the decks give them even less privacy. He explained one photo was taken from the middle of the dock of 2306 Mar East or 2/3 away from the end of the Wickett's dock. Another was taken from the first boat hook from Mr. Kulik's house or about 40 feet, and lie continued displaying various views and explaining what they have done to address the DIZB's comments. He noted it is not possible that light can protrude through the timber fence. Dr. Wilton said they had proposed a solution to the Wickett's that will completely solve their Town Council Minutes #16 -2012 August 15, 2012 Page 18 privacy problem, have offered to pay for a design of their own choosing that would sit at an angle off of their house and given them total privacy. He presented a view from their bedroom, taken from their own submission on record when they wanted to replace the window. The reason their photos look different is because when they took photos of his home, the Wickett's stood right up against their wall and looked back. However, it would be possible to have a modest screen which would provide them with total privacy while still retaining their views of the east bay and sunrise which they want, but they have not chosen to do that. In looking at all of this, the DRB basically said the granting of this variance will not be detrimental to the welfare or injurious to the other property in the vicinity. It is not a perfect solution, but it is modest and reasonable. Dr. Wilton said he thinks the design is good for the community. He presented a picture of what the home looks like today and 3D renderings of what they are proposing, stating there is not significant expansion on the envelope at 55 square feet at the kitchen pop-out, and they believe it will do a great deal to improve the general value of properties and communities along Mar East. Councilmember Doyle said he noticed the use of deck spaces and asked why the option for a dock going out to the water was not considered. Dr. Wilton said because Mr. Wickett and Mrs. Yesil indicated this would go straight past their bedroom window and be even more intrusive of their privacy. They would love to be able to do this, but this is one of the reasons why they think this property is compromised. Councilmember Doyle asked about the tiering with steps going down and Dr. Wilton said this would be great, but in responding to the neighbors and the DRB's suggestions, they pulled the balconies back into the line of the kitchen pop-out. Everybody else along Mar East is sitting outside at a table having a BBQ with friends, and they want to do this, but they have been responsive to the DRB. Mayor Fraser noted Dr. Wilton purchased the house in March of 2011 and he mentioned the many hardships that his house has. He asked if he was aware of this when he purchased the house. Dr. Wilton said what he was not aware of was the deteriorated condition of the house. Mayor Fraser said he was talking more about the physical characteristics noted in the neighborhood, such as decks and the docks that everybody else has. Dr. Wilton said he bought the house as a fixer-upper and bought it with reasonable expectations that he could get approval to do that from the Town for something reasonable and sensible, and it has proven to be one of the most arduous things he has done in his life. He did not feel it should be this difficult to try and improve a property in a responsible way. Mayor Fraser opened the public comment period. Karen. Hardesty, real estate broker, said she moved from Newport Beach and has lived in Old Tiburon since 1982. She objected to the reference to Newport Beach because she felt that development took over and ruined the beautiful seaside town. One reason she chose Tiburon was because she was confident this would not happen. Her other concern with the DRB's findings was a disregard for the ordinances as they stand on the books. She suggested they be amended, Town Council Minutes #16 -2012 August 15, 2012 Page 19 said she has sold 4 waterfront properties in Mar East, representing the sellers of 3 and the buyer of one. She was sorry Dr. Wilton was not alerted of the arduous task of getting something through in Tiburon, but the reason is to protect the character of their community. Every buyer she has worked with is notified they must love it the way it is but there are no guarantees. She said there are many houses on Mar East that have less light, less outdoor space and one of the Boardmembers told her that people who live on Mar East "can't expect privacy." She objects to this. The values of privacy. and views on that street are very important, and having represented the 4 properties, she has run across many potential buyers that not only state the views are important, but that privacy is an issue. She said that Marjorie Nevers, who resided in the house at 2308 Mar East for many years, never felt that her privacy was intruded upon by the neighbors on either side. The line of sight was not an issue and her views, light and the outside decks below were wonderful. Regarding the comments about the aging of the property, she noted that the main level does have a bedroom, bath, kitchen, a dining area and living room, and Ms. Nevers lived there happily until she died at the age of 98. David Schwartz said he has lived in Tiburon for decades, sells real estate in Tiburon and he finds it preposterous that somebody would purchase the property without having the proper investigation into looking at what needs to be done. He represented the Kulik's in the purchase of their property. The story poles were up and he suggested the Kulik's go to the Town to get a feel of what can be done. Mr. Schwartz said that staff was reassuring in that they could not support any kind of push out on the building. The property has gorgeous views, is well-located, and the bigger issue is not if you propose modest things it should be approved., but how much will it harm the neighbors. Views, privacy and light are what the DRB is supposed to uphold the most when they are looking at a project, and in this case, they turned a blind eye. Mik Flynn said they live on the water side and although she had previously said that their home is not affected by what the Wilton's are doing, their home is, in fact, impacted by anyone along Mar East making major changes as they are proposing. When they purchased their home, one thing abundantly clear is that they needed to stay within the footprint of the house. She has been inside the Kulik's house and can say as an owner, the project would make an enormous difference. '~AThen putting a deck all alongside a house, it completely impacts everything it is that someone paid for and worked so hard to do. Generally, people along Mar East cannot get outside and clean their windows, but people have to figure it out and take care of it. Rick Barberi said when he looks at this proposal he thinks it is a classic Trojan horse situation. He asked how many times staff has seen proposals that are scaled back 50% to 70% as they go through the process. More importantly, the creation of the artificial hardship for new decks is preposterous. What bothers him, given they all live with privacy issues, they have had a number of similar projects slip through the cracks, like the house two doors down from him. Clearly, when both of the people claiming hardship come forward and show the Council diagrams looking from the balcony of the new decks or the balcony of the new house into their bedrooms, it is interesting to see how the applicant's pictures show you inside the bedroom looking into another bedroom. He hoped that common sense will prevail and the DRB is overruled. Town Council Minutes #16 -2012 August 15, 2012 Page 20 David Salizar said he was asked to attend the meeting by Christina Hansen who is an architect and resident of Tiburon and used to be a tenant at 2310A Mar East. He is an architect and feels this is a complicated situation and he sympathizes with all parties involved. He read a letter from Ms. Hansen into the record. He said given situations like this, he thinks that having everyone appreciate the views and coining to some sort of degree to consensus is an appropriate solution. Muriel Martenz said she is the current tenant of 2308 Mar East and is an interior designer who has worked on several large remodel of home throughout Marin, Pacific Heights and in Seacliff in San Francisco where they face the same challenges that this situation does. She believes the improvements are extremely modest and have been made in the spirit of reaching out to the neighbors to embrace whatever ability to keep their privacy maintained as possible. The outdoor space they are adding is very limited and is definitely a balcony and not a deck. The neighbors on both sides have huge decks and docks and this addition is very minor. In terms of needing the outside decks from living there, maintenance cannot be addressed without having some deck space that is uncovered on the lower level in order to improve and maintain the property above. It cannot be done from the rocks down below as it is way too dangerous. Having lived on the property, she is definitely in a fishbowl with no privacy and she looks forward into 2310 Mar East. There is only one window at 2306 Mar East which is set far ahead so she does not see into the bedroom at all, but just one tiny corner of it. The house at 2310 Mar East has the ability to look directly into the entire main living area of 2308 Mar East and she believes that the addition they are proposing adds immense privacy for 2310 Mar East. It makes a solid wall out of an entire wall of panoramic windows that right now look at 2310 Mar East. She is surprised that the neighbors are fighting this so much because it adds such a degree of privacy between the two homes. She knows Mr. Kulik was talking a lot about window treatments and having to cover up the views, but she has lived in the house for 3 months and the entire time, the one bedroom window at 2306 Mar East and 3/ of the windows at 2310 Mar East have had their shades drawn the entire time they have lived there. Right now there is a huge solid wall between the two houses and 2306 Mar East has large skylights at the top of the house which are lit every night and there is already a huge about of light coming from them, so she is very confused about the concerns on lighting between the two properties. She voiced her support for the plans, thinks they are quite modest and appropriate. Mayor Fraser called on DRB Member Kricensky to answer questions of the Council. Vice Mayor O'Donnell asked Mr. Kricensky for his opinion of the meeting and how the DRB arrived at their decision. Boardmember Kricensky said they looked at the development occurring along Mar East and the extent to which other homes extend out to the bay and what they enjoy. He said that when any house builds before another one they try to obtain the maximum views they can get. He referred to neighbors claiming views as a "borrowed view." The DRB feels there is a compromise that can happen. He understood the issue of nonconformance caused by zoning, which happens all over Tiburon. The Town has done a relatively good job of keeping their generalized zoning categories over certain areas for consistency, but when there is something like this with so little land area, very narrow lots and a these houses were not built with that zoning. They have often granted variances to allow applicants to build a reasonable home. The staff Town Council Minutes #16 -2012 August 15, 2012 Page 21 report stated that if they went by the dry land area and did the setbacks, they could build a 700 square foot home, which is unreasonable. They felt that looking at the development and homes along the waterside and what they got to enjoy, they felt this house could afford to have some decks and not necessarily interfere at all with the neighbor's primary views. They came to the conclusion that the side views were not primary views, but still look into each other's houses. Mayor Fraser called for the appellant rebuttal. Magdalena Yesil said that Christina Hansen was outraged with the project, and then she was retained by Dr. Wilton as a consultant, so it is very unfair to represent her as an independent party. She thanked the tenant as well as Dr. Wilton for saying that the home at 2308 Mar East cannot see into our bedroom now, but if the plans go through, they will and this is the injury they are talking about. There is a significant difference with what exists today and what will happen tomorrow if these proposed plans go through. When they got the approval to build the deck, it was with the cooperation of their two neighbors on either side. They had one neighbor get up and speak on their behalf, they did not intrude on anyone's privacy. Both 2306 and 2308 Mar East were built about the same time and to say one was disadvantaged over the other is wrong. Jim Wickett said until tonight, they never talked about a dock. Dr. Wilton never told him there was a dock and in fact the first time he heard about it was when the DRB mentioned a dock. Dr. Wilton would have to build a pier 300 feet out into the bay. This would be a great weekend house, but not for many children and invalids. David Kulik said they bought their house in December 2011. Until June 2012, the Chairman of the DRB was never in his house to see this from his perspective. He said 2310 Mar East was built in compliance with the zoning. Not every house in the area has been granted a variance and he never mentioned the injury effect to his house by variance, and this was never considered by the DRB. As it pertains to the buying situation, they were accused of being knowing buyers and aware of the plans which is absolutely correct. Having lived in 2310 Mar East, they knew exactly what the situation was and they knew about the history of the properties and how essentially the development potential of 2308 Mar East was compromised build 2310 Mar East. He and Dr. Wilton had nothing to do with that. When they bought their properties, everybody knew the rules or should have known the rules in what the limitations were on those properties. They did not bring any of this on themselves. They were informed buyers, knew what the situation was, and they are being compromised. The present issue is that it sets up a tremendously dangerous precedent and a business model that says to buy the cheapest house on the street, extract value from your neighbors, improve the property and have a greater rate of return at everyone else's expense. Len Rifkind, attorney, asked the Council to focus on the findings as to whether there is an injury. There are advantageous ways photos can be taken and he agreed their photographs are taken from the vantage point of showing when nearest the closest corner and over the railing. Dr. Wilton's photographs step back from the corner so it looks like there is more privacy. He thinks that if you extend out and look to the east from the deck railing that someone might do on a 5'10" deck or Town Council Minutes #16 -2012 August 15, 2012 Page 22 balcony, you will see more of the house. He said that Christine Hansen was a tenant at 2310 Mar East and conflicted herself out by her previous letter to the Town stating that any extension to the present building volume at the southeast fagade would essentially eliminate privacy to the sleeping and living areas. Paul Smith, attorney for Dr. Wilton, said the three presentations the Council saw are sophisticated, high tech and articulate and make the Council's job both harder and easier; easier because they have a lot of information in photos and visuals and harder because there is some contradictory information. For those who were able to visit Dr. Wilton's house, he asked the Council to use common sense and their eyes. The core of the appeals is privacy. Views might have been an issue early on but through the DRB process, a series of meetings where they methodically reviewed the project and tailored it back every step of the way, the Council is down to one question-Is the privacy impact injurious to the neighbors or is it not? Whenever appellants disagree with the DRB's determination of the findings, you hear a lot about what staff said and the DRB does not always agree with the staff. The Board goes through and methodically reviews the process, facts, visit the site and try to make their own determination of how the facts and circumstances apply on any given property. The Council has heard a lot about precedents, but they have always said these projects do not set precedents. Each decision is based on facts and circumstances of the applications before the Council. In looking at precedents, the Council can go up and down Mar East and see many exceptions and many variances, so there is nothing unusual about the application. It is simply a question of whether or not the DRB made the findings. He referred to specific language in the DRB minutes where they stated and articulated how they made the findings. The record is replete with their determinations of the findings and this is what is before the Council now. He asked to recognize there is substantial evidence in the record to support the DRB's findings and there is a strong legal position for their decision. Mayor Fraser closed the public comment period and asked for Council comment and deliberation. Councilmember Fredericks said in previous appeals when the Council has talked about "borrowed views" the concept has usually been applied to new construction when a previously built home has used a view from their main living areas across a lot, often a lot where there is only a place to be built that would constrain the view of the existing house. She has never heard it applied to a remodel, and she asked if this is an existing policy. Mr. Watrous stated that the Hillside Guideline that describes borrowed views as she described has to do with a view across an undeveloped piece of property. He thinks there is a broader, somewhat looser interpretation and usage of the term that has been used to describe views across a portion of a lot where a house could reasonably considered to expand, in the same way Boardmember. Kricensky described it. Councilmember Collins said that he agreed with Paul Smith that the presentations were terrific, were professional in content, and he commended both the appellant and the applicant for what they had presented. He said that he believed that the DRB tried to accommodate both sides of the issues with a mutually acceptable plan and tried to get people together to do something that Town Council Minutes #16 -2012 August 15, 2012 Page 23 would work for everybody, which is a part of the DRB's role. He said that the Board tried to provide guidance for the project, but that in his opinion the DRB stretched too far to make the findings. He said that he cannot reach the same conclusion that the DRB did. He said that he agreed with what staff repeatedly informed the DRB about the Staff s inability to make findings 3 and 4. He said that the Town's Municipal Code is clear in its wording that although a non- conforming structure may be altered or remodeled or enlarged, the discrepancy between existing conditions and the zoning standards shall not be increased. He said that residents must be able to rely on what the Tow'n's Municipal Code provides, and on the facts of a given situation, and that that one cannot ask for or be entitled to a variance that changes the facts for those people that rely on the Town's Municipal Code. He said that he thinks the proposed project would affect the important views and the privacy of Mr. Kulik. He said that he thinks that the applicant's house should be redesigned within the footprint of the existing house and not beyond it. He said that the applicant can have decks facing out onto the water, but that the applicant has to decide what the applicant is willing to give up to have those decks, such as, one bedroom less, or shifting the kitchen to somewhere else. Therefore, he said that he cannot support the application. He also has a concern that if the Council does not uphold the appeal, that the Town could be facing meritorious litigation for an abuse of discretion in granting what has been asked for when there is no basis in fact for, nor is there a logical rationale for the snaking of the last two findings necessary to approve the application. Councilmember Fredericks said zoning is meant to control incompatible uses within a zone. Some of the really fine analysis that has to be done when zoning does not fit an area has to do with why you have zoning to begin with. In this case, if one just looks at the juxtaposition of the three houses and their privacy, views, noise and light conflicts, you have to make very fine decisions. The Mar East neighborhood is an example of the kinds of incompatibilities that are generated by their legacy building before the Town was incorporated and the attempt to make zoning work in a place where the lots are non-conforming, where there are greater potentials for view blockage, smaller setbacks, privacy issues and access issues, and it is a real challenge. The result of that is that when there are remodels, some of the lots do enjoy the privileges of the lots that have already put second stories on, but others do not because their impact on their neighbors is different. So, to make an argument that one is entitled to a certain remodel because you should enjoy every view and every advantage of every lot around you in a neighborhood where the lots and their positions and the siting of the structures are so different is a very hard argument to make, although she really wishes it was something everyone could always be granted. She said she, too, cannot make the findings to grant the variances. She thinks some of the hardships, particularly those generated by the setbacks, were generated by previous owners, as Mr. Rifkind pointed out. In making a finding about the detriment and injury to other properties, she found the most compelling thing was being in the living room of 2310 Mar East and walking from the back of that room to the front of that room while looking up at the applicant's home. As you move forward, you can see more and more of that room. So the amount of view penetration is really specific to where you are in the room and not to isolated areas. Based upon this, she tends to feel there are great privacy and view impacts, even though the protrusion from the wall of the existing applicant's home is relatively small. There are other Town Council Minutes #16 -2012 August 15, 2012 Page 24 questions of whether the walls of the kitchen really balance the new views, the increased privacy that is offered by them balance the views into both the appellant's homes that is offered by the new upper and lower decks. She thinks the idea of borrowed views is not so important because the actual view detriment looking outboard to the vistas tends to be the most impacted and not the primary views necessarily protected by the Hillside Guidelines and ordinances. But the privacy issue is very compelling and the neighbors always have to make a choice between privacy, light and air and what is more important to them. She thinks this is very injurious. Also, the closeness of the lots and the positions of the dwellings on the lot make a big difference too. Therefore, she cannot make a finding that the proposed remodel is not injurious to the properties around it and she cannot make a finding that any of the hardships claimed were not self-created by the applicant. Councilmember Doyle said he thinks design-wise, there are some elements of the project that can be shifted around. The Council is not here to tell the applicant how to do it, but there are some changes that can make things work. He does not have that big of an issue with that entryway being changed. The kitchen could be pulled over further and make it wider and only go out half that distance. That would solve one of the problems on the second floor of looking into a bedroom and would place that upper balcony farther away from the bedroom of the house to the left. There was talk about tiering that happens in all of the other houses around there, and if a design had been proposed where the upper area was only pulled out just a little bit to extend the kitchen and make it wider and the deck was pulled away from the house to the right it solves one of the problems. The view would not be blocked and people on the upper deck would still be a good distance away. He does not see how the lower deck changes what is happening if there are screens to block views of the house to the other side. He thought they could have a deck that is closer to the water that would take away some of the physical hardships of not having a deck and not being able to enjoy the sun. He thinks there could be design changes made to this that would be positive for both neighbors and the applicant and still have a beautiful home. He agreed with what Councilmembers Fredericks and Collins said about buying the house and knowing what one can and cannot do. The DRB is not here to help somebody make money, but do what is right for the community. If a house can be designed within the guidelines and you make money on it, that is .fine, but he does not think it is their job to worry about whether you will not make as much money if you pull the kitchen back two feet. So, he would like to see the project return with some variations and continue the matter. He thinks there is an opportunity to have a deck somewhere closer to the water that goes out, and there is an opportunity not to infringe on the neighbor's privacy. When someone is looking into someone's master bedroom and you are 8 feet away, there has to be a way around that. He does not think they can protect side views for every property. He was surprised at how magnificent the views are from all three houses. The architect designed it well, but in the spirit of compromise with some minor changes, there could be some good results. He would like to see the matter come back with some minor changes. Vice Mayor O'Donnell said he was able to visit all three properties that afternoon and meet almost everyone in the chambers. He said it is unfortunate that this has become such a Town Council Minutes #16 -2012 August 15, 2012 Page 25 contentious issue and he does support the statement made by Paul Smith that privacy seems to be the number one issue here. If you go through the DRB minutes, Boardmembers Kricensky, Johnson and Tollini talked specifically about that issue. The question is whether the privacy that is lost or gained and how you argue it is an injurious act. On that particular street, you are always going to be dealing with privacy issues. Some people have docks, some do not, you can always turn, pull a shade, and when talking about something that is injurious, you are usually talking about whether someone's primary views are blocked. In this case, there are none that are blocked. Vice Mayor O'Donnell supports Councilmember Doyle's suggestion to continue the project and would like to see if a compromise could be fashioned by the parties. He thinks that the need for a deck at the top level is not as great and since the house is being completely remodeled or restored, if the deck started at the current point of where the house ends now, the property owner is not losing that much space and would gain that tiering effect of a lower deck and upper deck as seen throughout Mar East and would solve the maintenance issue, although he does not see that to be a huge impediment. It would also solve the privacy issue for 2310 Mar East because it would have the same impact they are dealing with today. It would also solve the privacy issue for 2306 Mar East and would remove the screen that hangs off the side of the building. He would allow the property owner to expand on the lower deck and even as the rendering shows, to connect the lower deck to the existing side deck which allows for a larger outdoor enjoyment space. It would be difficult for the other property owners to argue against that because they have huge docks that extend out. He would like to also see some sort of compromise fashioned. He also had an opportunity- to spend some time in Ms. Nevers' house. It is a substandard house and it needs renovation. It will improve everyone's property values by having a nice home there and he would like to see things work out, the project continued, and designed in a fashion that Councilmember Doyle and he described as a compromise. , Mayor Fraser complimented the applicants and appellants for their passion and persuasion. However, in thinking about this and going back to the fundamentals, he is unable to make the findings that will support an additional variance on top of a non-conforming use that already exists. It is very clear what the code says and he believes the Council should abide by the code. If they are not happy with it and think their zoning or code is incorrect, they should find a way to bring that forward and change it in the proper process. Mar East is an eclectic environment and the Council looks at neighborhood issues, and may adjust the code to be reflective of how the times have changed. Maybe that will be true someday along Mar East, but they are now living with the R-2 zoning and the Municipal Code the way it is. He also is not able to snake a finding that the project is not injurious to both 2306 and 2310 Mar East with the extension of the decks as proposed now. Therefore, he cannot support the DRB's decision. He does think that Councilmember Doyle and Vice Mayor O'Donnell have made a good suggestion in terms of coming together for a compromise solution. But he thinks they must work within the existing footprint because outside of it means they have to go against their codes, and he does not think they can make a finding for a property that already has a lot coverage of 67% and approve a further variance, and justify that with any reasonable finding. He also thinks that if they do that, it should be remanded back to the DRB as opposed to having the Council become the design team Town Council Minutes #16 -2012 August 15, 2012 Page 26 for the house. He thanked the appellants, applicants, and participants, and he thinks a compromise should be struck so that the applicant can improve his property within the existing footprint. Councilmember Fredericks said it seemed to her that Councilmember Doyle's suggestion was outside the existing footprint and she would not preclude some modest non-privacy intrusion. Councilmember Doyle said in looking at all of the houses along there, this house is stuck back and a bit different, but if you bump something out half the distance of 5' 10" and make it wider within the interior structure of the house, there is still the same footprint of the kitchen and they are not infringing upon someone's privacy. The owner would get something and the neighbor would get something. He thinks some small alterations will result in something everybody can live with. Vice Mayor O'Donnell said he very much believes privacy is a two-way street. He thinks the privacy issue can be mitigated but does not find them injurious. With respect to overcoming the findings when it comes to bumping the house out, they must be fair and remember that the codes and zones were dropped on the neighborhood after the neighborhood was built. This is probably the most difficult street to analyze because of the fact that the property is extended to the water and they must have a little bit of allowance and fairness in making a finding that would bring some harmony between the groups. He would like to see the project continued and remanded to the DRB with the recommendations that the Council developed tonight if the applicant agrees. Town Attorney Danforth clarified that the Council could remand the application back to the DRB if the applicant is willing to make the changes stipulated by Council that would lessen the impacts on the neighbors. Mr. Watrous stated the other option is that if the Council feels it cannot make the findings for the variance they could grant the appeals and deny the project without prejudice with the direction that it can return to the DRB with a new application that addresses the issues in the fashion described by the Council, Town Attorney Danforth said the reason for denying the application without prejudice is because in the normal case, if an application is denied, they cannot return with a similar application for a year. The next question would be if the Council asks them to file a new application, would the Council wish to waive the fees. Mr. Watrous said the Council has done this on occasion. Vice Mayor O'Donnell said Councilmember Doyle's suggestion is for 2.5 feet, but his idea is more restrictive; to leave the edge of the current property at the top level where it is. They could pull the wall back if they wanted to put a deck there. On the lower level, they could come out to the 5'l 0" which would create a tiering effect and it would solve the major privacy issues on the upper level into the bedrooms of both levels. Mr. Watrous clarified the suggestion to stay within the footprint for the upper level and possibly expand the lower level. Councilmember Fredericks referred to the privacy issue for 2310 Mar East. Vice Mayor O'Donnell said his understanding is there is a much greater privacy issue with the upper deck and bedroom. He felt all the presentations were skewed based upon who was giving them. Town Council Minutes #16 -2012 August 15, 2012 Page 27 Councilmember Fredericks said she was at the site and saw the lower deck's possible impact even when it is pulled back to the fagade looking back into the bedroom for 2306 Mar East. She thinks if they want people to agree, they cannot reintroduce the same problem. Councilmember Collins said there is already a deck below and they could make a deck above and pull back the wall within the interior of the house. His problem is they would still have the need for variances going outside the existing building footprint. Vice Mayor O'Donnell said building this will violate three ordinances, and asking them to create a lower deck to create a tiering effect he sees as a fair compromise. Councilmember Fredericks said rather than designing it for Mr. Sadrieh and his client, they should take into consideration the discussion they had, the suggestion that Councilmember Doyle made and see if they can come up with something when and if they decide to re-apply. Mayor Fraser said he thinks the issue is variance. Within the existing footprint, he thought that the Council had some agreement. When going outside of the existing footprint is where they have a difference of opinion. Mr. Watrous said in his opinion, if the Council is talking about a project that does not extend beyond the existing footprint of the building, not only would it not necessarily need a variance, it is a substantially different project, which lends itself toward a separate application rather than remanding this application for re-design. Something like that could conceivably be a staff level design review, and would be a different project. If the lower deck is expanded out, it would trigger a variance, depending on how it is designed and extended out. Cuncilmember Doyle said it is also the design factor and what it would look like. If they just bump it out a bit, it solves some of the problems on the upper floor and also looks better. When he was looking at the plans, he was thinking of a small bump out that does not affect what the neighbors are seeing and that does not affect privacy that will give the applicant all the same amenities they are looking for without some of the effects on the neighbors. He was looking at a very small front change of about 2.5 feet which should not cause problems while also providing for the architectural detailing. He suggested granting the appeal and having them go back to the DRB. If they designed something that was not injurious to the neighbors, he could support that. Town Attorney Danforth said she is hearing two Councilmembers recommending modest changes and three Councilmembers saying very definitely that they cannot make the findings with respect to this project. However, she has not heard anyone rule out the possibility that with a change along the lines that Councilmember Doyle has outlined, they might be able to make the finding with respect to injury, or the lack thereof. So, if the Council feels that some variance might be tolerable if it was considerably reduced in scope so as to lessen the impact on the neighbors, this could be specified in the resolution. If not, she thinks the best thing is for the resolution to be silent on that point and assume that the applicant has listened and knows the risk if they return with a project that needs a variance. Town Council Minutes #16 -2012 August 15. 2012 Page 28 Mayor Fraser supported being silent in the resolution, because he thinks the Council is designing on the fly and the issue is rather dramatic. To respect everybody's input, it would be inappropriate for the Council to make such a decision for any number of feet being acceptable when three Councilmembers agree that they do not believe that a variance makes sense. Councilmember Fredericks said she cannot make the appropriate findings for a variance on what is before them now. She feels they should grant the appeals and deny the application without prejudice and the applicant can return. Mr. Watrous suggested the motion be to direct staff to prepare a resolution granting the appeal to deny the project without prejudice. Councilmember Fredericks recommended that fees be waived if the applicant returns with a substantially different application. Mr. `1Vatrous summarized the direction is to assume that the applicant has been paying attention to the deliberations of the Council in teens of direction of what issues need to be addressed in a future application, to which the Council agreed. MOTION: To direct staff to prepare a resolution granting the appeal to deny the project without prejudice and to impose no fees. Moved: Fredericks, seconded O'Donnell Vote: AYES: Unanimous TOWN COUNCIL REPORTS None. TOWN MANAGER'S REPORT None. WEEKLY DIGESTS • Town Council Weekly Digest - August 3, 2012 * Town Council Weekly Digest- August 10, 2012 ADJOURNMENT There being no further business before the Town Council of fhe/ own of Tiburon, Mayor Fraser adjourned the meeting at 11:10 p.m. :[IM FRASER qV ,IYOR ATTES DIANE CRANE IA OPl, TOWN CLERIC Town Council Minutes #16 -2012 August 15, 2012 Page 29