TO:
Honorable Mayor Powell and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Richard Thompson, Community Development Director
Laurie Jester, Planning Manager
Jason Masters, Assistant Planner
SUBJECT:Title
Consideration of the Parking and Public Improvement Commission's recommendation to uphold an Encroachment Permit Appeal and allow a private water fountain feature in the public Right-of-Way to remain - 130 41st Street (Community Development Director Thompson).
DENY APPEAL
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Recommended Action
RECOMMENDATION:
Overturn the Parking and Public Improvement Commission's recommendation to approve the Encroachment Permit Appeal for a water feature in the public Right-of-Way, denying the application.
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FISCAL IMPLICATIONS:
There are no direct fiscal implications resulting from this action.
BACKGROUND:
On September 25, 2014 the Parking and Public Improvement Commission (PPIC) held a noticed public meeting and recommended that the City Council approve the encroachment appeal to allow a non-conforming water fountain feature constructed without permits in the public Right-of-Way to remain at 130 41st Street.
A building permit was issued for an interior remodel on the subject property on August 9, 2012, without any proposed exterior or encroachment work. After construction, the applicant altered the existing older legal non-conforming planter/retaining wall creating a water fountain feature in the private property portion of the front yard which also extended into the public right-of-way adjacent to the drive-street. Private water features are not permitted on public property. Subsequently, Code Enforcement contacted the applicant regarding filing an encroachment permit application to request approval for, or remove, the improvements. As the improvements are not permitted by the Manhattan Beach Municipal Code (MBMC), they cannot be approved by staff and thereafter the applicant submitted an Encroachment Permit appeal on October 2, 2013. In accordance with MBMC Section 7.36.080, the PPIC reviews the appeal request and its recommendation is forwarded to the City Council. The first 2.5 feet of the water fountain feature is located in the public right-of-way, the remaining 4 feet is located on private property. The fountain steps down with the slope and is a maximum of 30 inches wide in the right-of-way, with 12 inches deep of water.
DISCUSSION:
The plans show modifications to the existing planter wall, creating a water fountain feature extending into the site's existing, sloped encroachment area. The house was originally built in 1986 and the planter was approved at that time. Section 7.36.150 (D) of the Municipal Code permits fences and walls in encroachment areas at a maximum height of 36 inches in this area, but does not permit water fountain features or other improvements in drive-street encroachment areas. Raising the natural grade with retaining walls or planters is not allowed by the Municipal Code; since the planter previously existed it may remain.
The subject portion of 41st Street is characterized as a very narrow street in the north Manhattan Beach - El Porto area without sidewalks. Several old unpermitted encroachment fences, walls (mostly retaining) and planters exist in this area.
The MBMC Section 7.36 governs use of the public right of way by private parties. The intent of these standards is to allow private use and development of the public right of way with improvements that are functional, attractive and non-obtrusive to the public, consistent with building safety and public works standards, and compatible with public facilities and surrounding developments. MBMC Section 7.36.150 (D) states that only fences and walls up to 36" and landscaping are permitted on vehicular streets. Staff's understanding of the purpose of this requirement is to allow minimal private use of the public right-of-way with minor improvements and limited alteration of the natural grade.
Public Input
A notice of the PPIC meeting was mailed to all property owners within a 300 foot radius. Staff received three letters in opposition and several in support of the project.
At the September 25, 2014 PPIC meeting, public comment was limited to a single neighbor who was in support of the project. Commissioners voiced concern that they didn't want to set a precedent by approving a water feature which is inconsistent with the Encroachment Permit Standards. However, the majority of Commissioners also felt that the application met the required Encroachment Permit findings (Attachment 5) as the water feature is not detrimental to public health and safety and not injurious to property and improvements in the vicinity and zone of the subject property and will not impede pedestrian access. Staff's analysis of the findings is also included in Attachment 5.
At the meeting, the Commission passed a motion recommending approval of the encroachment appeal to allow the water feature in the public Right-of-Way to remain.
The Commission also passed a motion to request the City Council to direct staff to study a possible Code Amendment to administratively allow water features in the public Right-of-Way subject to specific criteria, such as sustainability, small size and setbacks by a 5:0 vote. Staff does not believe that an Amendment is necessary as the code required standards and findings (Attachment 6) that address structures in the public Right-of-Way and provides a process for appeal, public input and individual review of requests. Additionally, this is the first time that this type of structure has ever been requested. Staff believes that allowing a water feature in the public Right-of-Way would set a precedent that is inconsistent with the intent of the Encroachment Permit Standards and may create a condition detrimental to public health and safety. Staff time and resources would be required to study a Code Amendment.
CONCLUSION:
The water fountain feature intensifies the non-conforming condition, and may create a potential liability for the City due to accidental run-off on the adjacent street and driveways, and the presence as potentially an attractive nuisance. Staff recommends that the City Council overturn the Parking and Public Improvement Commission's recommendation to allow the water feature to remain thereby denying the appeal.
Attachments:
1. PPIC 9-25-14 Staff Report and Attachments
2. PPIC 9-25-14 Draft Minutes (Final minutes not yet adopted)
3. Written Public Comments
4. Encroachment Appeal Plans
5. Encroachment Permit Required Findings
6. Encroachment Permit Standards - 7.36.150
7. Encroachment Permit Handout (Applicable Sections)