REPORT TO COUNCIL
SUBJECT
Title
Appeal of a Decision by the Planning Commission Denying a Variance to Legalize an Existing 112-square-foot Detached Accessory Structure in the Rear Yard of a Single-Family Property with a Reduced 2-foot 5-inch Side Setback where 4 Feet Minimum is Required, and a Reduced 2-foot 2-inch Rear Yard Setback where 10 Feet Minimum is Required
Location: 160 S. Pastoria Ave. (APN: 165-15-007)
File #: PLNG-2023-0642
Zoning: R-2 (Low Medium Density Residential)
Applicant / Owner: Scott McClennan (applicant) / Tracy and Scott McClennan (owner)
Environmental Review: Class 3 Categorical Exemption relieves this project from the California Environmental Quality Act (CEQA) provisions.
Project Planner: Wendy Lao, 408-730-7408, wlao@sunnyvale.ca.gov
Report
REPORT IN BRIEF
General Plan: Low-Medium Density Residential
Existing Site Conditions: Single-family home
Surrounding Land Uses
North: Single-family home
South: Single-family home
East: Single-family home
West: Duplex
Issues: Substandard setbacks and unpermitted construction in backyard.
Staff Recommendation: Deny the appeal and uphold the decision of the Planning Commission in denying the Variance for the accessory structure.
BACKGROUND
On July 10, 2023, a Neighborhood Preservation code enforcement case NP-2023-2879 was opened involving an unpermitted accessory structure in the rear yard of a single-family property. The accessory structure is 112 square feet in size and has a shed roof which starts at a height of 8-feet 7-inches near the northern property line (side yard) and slopes up toward the center of the property to a peak of 9-feet 11-inches. Per the municipal code, accessory structures that are 8 feet or less in height are not subject to setback requirements, however structures that exceed 8 feet in height must provide a 4-foot side yard and 10-foot rear yard setback. Because the accessory structure exceeds 8 feet height and has a reduced side yard setback of 2-feet 5-inches and a reduced 2-foot 2-inch rear yard setback, the accessory structure is not in compliance with the municipal code.
On September 1, 2023, the applicant submitted a Planning Application for a Variance to legalize the accessory structure with substandard side and rear setbacks. On November 29, 2023, the Zoning Administrator held a public hearing to consider the project. After deliberation, the Zoning Administrator concurred with staff’s recommendation, concluding that approving the application would grant a special privilege to this property not granted to other properties in the neighborhood with the same physical characteristics. Additionally, there were other viable locations on the subject property where an accessory structure could be built in compliance with zoning code requirements, including side and rear setbacks. While other Variances have been granted in the neighborhood, only one applied to an accessory structure. However, the conditions for granting that Variance are not present at the subject site and therefore, would not support this project. Based upon the above, the Zoning Administrator denied the Variance application, as outlined in the Findings for Denial in Attachment 2. For further details, please refer to the minutes from the Zoning Administrator meeting in Attachment 9.
On December 14, 2023, the Applicant filed an appeal of the Zoning Administrator’s decision. On April 22, 2024, the Planning Commission held a public hearing to consider the project. Following deliberation, the Commission decided to continue the hearing to May 28, 2024, to allow staff time for additional research. For further details, please refer to the Planning Commission staff report and minutes in Attachments 7 and 10. On May 28, 2024, the Planning Commission held a public hearing to consider the project. Following deliberation, the Commissioners voted to deny the appeal and uphold the Zoning Administrator’s decision to deny the Variance, with Vice Chair Iglesias abstaining and Commissioners Howard and Howe absent. For further details, please refer to the Planning Commission staff report and minutes in Attachments 8 and 11. On June 10, 2024, the Applicant filed an appeal of the Planning Commission’s decision to the City Council.
ENVIRONMENTAL REVIEW
A Class 3 Categorical Exemption relieves this project from the California Environmental Quality Act (CEQA) provisions. Class 3 Categorical Exemptions include construction of a limited number of new, small facilities or structures including accessory structures such as garages, carports, patios, swimming pools, and fences.
APPEAL & STAFF RESPONSE
The applicant’s letter of appeal, included as Attachment 5, states that they meet the three required Variance findings outlined in the municipal code and provides several reasons for the appeal. Below is a summary of the applicant’s appeal and staff comments in response.
1. The applicant’s letter states that they meet Variance Finding 1 because the lot is substandard in size, measuring only 50 feet in width. The letter states that moving the accessory structure to a 10-foot rear yard setback could negatively impact neighbor privacy or infringe on the root area of a heritage Magnolia tree.
Staff comment: The subject property is a rectangular lot that is 50 feet wide and 115 feet deep, similar to other lots in the neighborhood, as shown in the Assessor’s Parcel Map on Attachment 12. The municipal code allows some flexibility in the location or design of an accessory structure, even when accommodating for tree roots. The code does not require any side or rear yard setbacks for accessory structures that are under 8 feet in height and less than 120 square feet; the municipal code requires a 4-foot side and 10-foot rear yard setback only for accessory structures that exceed 8 feet in height. While some neighbors have expressed support for the project and indicated that privacy is not a concern, two neighbors have expressed concerns about the existing accessory structure’s height and setbacks. Based on the reasons above, Variance Finding 1, “There are exceptional or extraordinary circumstances or conditions applicable to the property or use involved which do not apply generally to property, improvements or uses within the same zoning district”, cannot be met.
2. The applicant’s letter states that they meet Variance Finding 2 because the applicant has received some neighbor support for the detached home office, whereas an ADU could be larger and cause more significant impacts to both the property and neighbors.
Staff comment: Although some neighbors have expressed support for the project, two other neighbors have voiced concerns regarding the unpermitted structure, citing its proximity to the property lines, height, visibility, and the lack of a city permit. The structure was constructed without the benefit of permits, and without opening up the walls and roof to verify how it was constructed, staff cannot confirm whether the structure meets minimum health and safety requirements. Additionally, staff does not consider a detached home office to serve the same purpose or offer the same benefits as an ADU. Regulations for ADUs are distinct from other accessory structures in that they align with the state’s goal of increasing housing throughout the state. The building code mandates that habitable rooms, except kitchens, must have at least 70 square feet of floor area and be no less than 7 feet in any horizontal direction, and state law requires ADUs to be at least 150 square feet. Therefore, Variance Finding 2, “The approving of such variance will not be materially detrimental to the public welfare or injurious to the property, improvements or uses within the immediate vicinity and within the same zoning district,” cannot be met.
3. The applicant’s letter states that they meet Variance Finding 3 because granting the variance would not provide the applicant with special privileges not available to surrounding property owners, as an aerial view of the neighborhood shows that many sheds and accessory structures have been built with little or no setback from property lines.
Staff comment: There is only one other Variance related to an accessory structure in the neighborhood. That Variance allowed a workshop and covered parking space with a reduced 6-foot 5-inch rear yard setback, where 10 feet is the minimum, and 33% rear yard coverage, where 25% is the maximum. Granting that Variance enabled the property to construct a two-car garage, thereby, bringing the overall property into zoning code compliance with respect to parking requirements. However, the circumstances with the current Variance application are different, and if approved, it may set a new precedent for current and future unpermitted accessory structures throughout the city. Staff is concerned residents may disregard the zoning code, build accessory structures without permits, see if neighbors complain and then apply for a Variance if needed.
Second, while there are other neighboring properties with accessory structures as mentioned by the applicant, the claim that these other structures do not comply with zoning code requirements for height, setback, and size cannot be verified. While the presence of these structures may be visible via satellite view on Google Map, the level of detail is insufficient to confirm their compliance. These structures may potentially comply with the height, setback and size limits that would allow them to be built closer to the property lines as permitted by the code. Based on the reasons above, the Variance Finding 3, “Upon granting of the variance the intent and purpose of the ordinance will still be served and the recipient of the variance will not be granted special privileges not enjoyed by other surrounding property owners within the same zoning district,” cannot be met.
4. The applicant’s letter notes that some Commissioners encouraged an appeal to the City Council, expressing support for an accessory structure for an office use, but stating they lacked the legislative authority to grant the variance. The letter includes a request to the City to revise the municipal code to allow increased height and reduced setbacks for accessory structures used as an office when smaller than 120 square feet.
Staff comment: As noted above, the Planning Commissioners voted to deny the Variance, with one Commissioner abstaining. Commissioner Iglesias abstained from voting to approve or deny the variance and raised the applicant’s right to appeal. Chair Pyne and Commissioner Serrone voted to deny the appeal and expressed support for conducting a study to evaluate municipal code requirements for accessory structures. California law requires the city’s decision-making body to evaluate the merits of projects based on the current regulations. City staff and decision makers shall not base decisions on potential future regulations as it is unknown whether, how or when the municipal code may change in the future.
5. The applicant’s letter also notes that the current ordinances inadvertently encourage homeowners to construct larger accessory dwelling units (ADUs), even though smaller, simpler and less costly structures could serve the original purpose.
Staff comment: The state law supports the development of ADUs, which may include space for a home office, and restricts cities’ ability to deny them. ADUs are required to include a kitchen, bathroom, and habitable space, and City staff has not conducted a study to determine whether ADUs are primarily being used as offices rather than residential purposes. As noted above, staff does not consider a detached home office to serve the same purpose or offer the same benefits as an ADU.
6. The applicant’s letter states that a detached home office would support housing affordability, help reduce climate impacts due to reduced traveling, and generate less parking demand compared an ADU.
Staff comment: The Variance Findings do not consider housing affordability, climate impact, or parking increase. Staff is not prohibiting a detached home office, but simply requires projects to comply with setback and/or height restrictions depending on the structure’s location and size. Nonetheless, ADUs are not required to provide parking spaces. In addition, approval of the variance for the home office does not preclude the applicant from constructing an ADU in the future.
7. The applicant has cited significant personal costs as a reason to keep the existing structure as-is.
Staff comment: The Sunnyvale zoning code does not permit the city to review an applicant’s financial circumstances, nor is staff trained to determine financial feasibility of an applicant’s project when evaluating whether a Variance application meets the required Findings in SMC 19.84.050. As such, this is not a valid justification that may be considered.
OPTIONS TO MODIFY THE STRUCTURE FOR COMPLIANCE:
Staff has identified several options available to the applicant to modify the structure and bring it into compliance with code requirements:
1. The structure may be lowered to 8 feet in height. Accessory structures which are 8 feet or less in height and up to 120 square feet are exempt from side yard and rear yard setback requirements.
2. The structure may be relocated to comply with the 4-foot side and 10-foot rear yard setback requirements. Structures between 8 feet and 15 feet in height within this zoning district are required to comply with these setback requirements.
3. The structure may be expanded and converted to an ADU, which includes a kitchen, bathroom, and additional requirements include 150 square feet minimum, as described above. State law requires new detached ADUs to comply with 4-foot setbacks, but allows the conversion of existing structures with substandard setbacks, including those without prior permits, into ADUs in their current location. ADUs support the state’s goal of providing more housing, and the state restricts cities’ ability in prohibiting them.
PUBLIC CONTACT
Public contact was made by posting the Council meeting agenda on the City's official-notice bulletin board at City Hall, at the Sunnyvale Public Library and in the Department of Public Safety Lobby. In addition, the agenda and this report are available at the City Hall reception desk located on the first floor of City Hall at 456 W. Olive Avenue (during normal business hours), and on the City's website.
112 notices were sent to surrounding property owners and residents within 300 feet of the subject site in addition to standard noticing practices, including advertisement in the Sunnyvale Sun Newspaper and on-site posting.
To date, the City has received three letters of support from neighbors at 159 Waverly Street, 156 South Pastoria Avenue, and 164 South Pastoria Avenue. The City also received one letter from a resident at 480 Lincoln Avenue expressing concerns about setbacks. For further details, see the public comments in Attachment 13.
At the November 29, 2023 Zoning Administrator public hearing, two neighbors at 164 South Pastoria Avenue and 156 South Pastoria Avenue voiced support for the Variance. See the meeting minutes in Attachment 9 for more information. On March 3, 2024, the property owner of 155 Waverly Street called city staff and voiced concerns about the office location, height, and design, as well as the structure being constructed without permits; see the email summary in Attachment 13 for more details. At the May 28, 2024 Planning Commission meeting, Stephen Meier spoke in support of the project. See the meeting minutes in Attachment 11 for more information.
ALTERNATIVES
1. Deny the appeal and uphold the Planning Commission’s decision to deny the Variance for the accessory structure based on the Recommended Findings for Denial in Attachment 2.
2. If the City Council can make the Findings for Approval, grant the appeal and approve the Variance for the accessory structure subject to draft Conditions of Approval in Attachment 3.
3. Alternative 2 with modifications.
STAFF RECOMMENDATION
Recommendation
Alternative 1: Deny the appeal and uphold the Planning Commission’s decision to deny the Variance for the accessory structure based on the Recommended Findings for Denial in Attachment 2.
JUSTIFICATION FOR RECOMMENDATION
As noted above in the staff report, the findings for a Variance cannot be met with the project as proposed. The applicant has alternative options to correct the current issues with the accessory structure.
Levine Act
LEVINE ACT
The Levine Act (Gov. Code Section 84308) prohibits city officials from participating in certain decisions regarding licenses, permits, and other entitlements for use if the official has received a campaign contribution of more than $500 from a party, participant, or agent of a party or participant in the previous 12 months. The Levine Act is intended to prevent financial influence on decisions that affect specific, identifiable persons or participants. For more information see the Fair Political Practices Commission website: www.fppc.ca.gov/learn/pay-to-play-limits-and-prohibitions.html
A check in the checklist below indicates that the action being considered falls under a Levine Act category or exemption:
SUBJECT TO THE LEVINE ACT
_x_ Land development entitlements
___ Other permit, license, or entitlement for use
___ Contract or franchise
EXEMPT FROM THE LEVINE ACT
___ Competitively bid contract*
___ Labor or personal employment contract
___ Contract under $50,000 or non-fiscal
___ Contract between public agencies
___ General policy and legislative actions
* "Competitively bid" means a contract that must be awarded to the lowest responsive and responsible bidder.
Staff
Prepared by: Wendy Lao, Associate Planner
Reviewed by: Julia Klein, Principal Planner
Reviewed by: Shaunn Mendrin, Planning Officer
Reviewed by: Trudi Ryan, Director of Community Development
Reviewed by: Connie Verceles, Deputy City Manager
Approved by: Tim Kirby, City Manager
ATTACHMENTS
1. Vicinity and Noticing Map
2. Recommended Findings (Denial)
3. Alternative Action - Draft Conditions of Approval and Standard Requirements (if appeal is granted)
4. Site and Architectural Plans
5. Appeal Letter to City Council
6. Zoning Administrator Staff Report, November 29, 2023
7. Planning Commission Staff Report, April 22, 2024
8. Planning Commission Staff Report, May 28, 2024
9. Excerpt of Final Minutes of the Zoning Administrator Hearing, November 29, 2023
10. Excerpt of Final Minutes of the Planning Commission Hearing, April 22, 2024
11. Excerpt of Final Minutes of the Planning Commission Hearing, May 28, 2024
12. Assessor’s Parcel Map
13. Public Comments