HomeMy WebLinkAboutPW Encorachments AmendmentAgenda Item No: 16
Meeting Date: May 18, 2009
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works �%
Preparby: ///, '"/f « — City Manager Approval4ai—
/i,,-
Interim Director of Public Works (AG)
Rilr Nn •nF 0? AC
SUBJECT: Consideration of a request for an exception pursuant to San Rafael Municipal Code Section
19.10.070 for an encroachment of private improvements upon City Open Space lands adjoining 81
McNear Drive.
RECOMMENDATION: Adopt Resolution denying exception pursuant to San Rafael Municipal Code
Section 19.10.070 for an encroachment of private improvements upon City Open Space at 81 McNear
Drive.
BACKGROUND: In 1981, the City Council approved a Parcel Map for a 4 parcel subdivision (Peacock
Gap Neighborhood One A) consisting of three residential parcels (including 81 McNear Drive) and a
remainder 69 acre parcel that subsequently was subdivided in 1985 into an Open Space parcel dedicated
to the City and 61 residential parcels. In connection with this later subdivision (Peacock Gap
Neighborhood One B), the City Council accepted the dedication by Subdivision Map to the City of a fee
simple interest in an approximately 33 acre Open Space parcel (APN 186-530-68) (See attached). A
portion of the Open Space abutted the 81 McNear Drive property.
Between 1984 and 1986, the then owners of 81 McNear obtained original and amended planning
approvals for construction of a single family residence and 2nd unit, as well as a swimming pool. (ED 84-
40 & UP 84-46). In August 1986, the owners obtained a building permit for the residence and 2nd unit,
and began construction. In December 1987, the owners obtained a swimming pool permit and began
construction of the swimming pool and ancillary structures that partially encroached upon the City Open
Space parcel. This encroachment went undetected through the sale of the property in 1989. The new
owner immediately performed a property line survey revealing for the first time that the swimming pool
encroached upon City Open Space. The owner's surveyor's plat showing the swimming pool
encroachments and a proposed lot line adjustment in the City's Planning file is attached. On August 21,
1989, the City Council adopted Resolution No. 8020 approving the proposed lot line adjustment whereby
approximately 2010 square feet of undeveloped private property on 81 McNear Drive was added to the
adjacent City Open Space in equal measure to, and in compensation for, the Open Space that was
privately developed. As a result Of this lot line adjustment, the property owner was permitted to retain the
swimming pool. Grant Deeds by the City and the owners, containing a legal description and plat map of
the lot line adjustment, were recorded on September 28, 1989. (See attached).
CITY CLERK ONLY
File No.:
Council Meeting:
Disposition:
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
Sometime between 1989 and 2000, the original owner or a subsequent owner of 81 McNear Drive
constructed private improvements consisting of fencing, landscaping and irrigation, rock walls, and a
storage shed, all of which encroached much more significantly upon the City Open Space parcel. (See
attached land survey map). The City became aware of this encroachment in 2000, apparently as a result
of a complaint by a neighbor. The City hired a Professional Land Surveyor, confirmed the encroachment,
and the Public Works Director sent the then property owner, Jesse Rhodes, a letter dated October 17,
2000 requiring the removal of all private encroachments within 60 days. (See attached Letter.). There is
no record that the City followed up on the enforcement of this requirement.
Marion Hill took title to 81 McNear Drive on August 31, 2006. (See attached Deeds).
At the time Marion Hill took title to the 81 McNear Drive property, the configuration of the property after
the lot line adjustment was reflected in the plat connected to the recorded Deeds, maps in the City's
Planning files, and the Assessor's Parcel Map for the property. (See attached Assessor's Parcel Map).
In March of 2007, the Public Works Department received a report of illegal tree trimming on City Open
Space at 81 McNear Drive. Staff visited the site, researched department files, and discovered the
longstanding encroachment issue that had apparently not been resolved. On April 12, 2007, the Director
of Public Works (not the same Director of Public Works who sent the October 17, 2000 letter) sent a letter
to Marion Hill, advising her of the history of this encroachment issue, advising that the encroachments
had apparently not been removed, requesting communication by May 15, 2007 in hopes of resolving the
issue, and advising that the matter would be referred to the Code Enforcement Division if resolution was
not reached. (See attached Letter). The Public Works Department received no communication from
Marion Hill and the issue was referred to Code Enforcement in June of 2007. City staff (including staff
from the City Attorney's office, Code Enforcement Division, and Public Works Department) had a series of
meetings to discuss this matter, culminating in a site inspection of 81 McNear Drive in February of 2008.
Marion Hill was subsequently contacted to schedule a joint inspection of the property and that inspection
occurred on April 7, 2008. According to a survey prepared on behalf of Marion Hill, her private
improvements encroach approximately 22,250 square feet (0.51 acres) upon the City Open Space parcel
(see Marion Hill Land Survey). The Code Enforcement Division issued a Notice and Order to Marion Hill
on May 15, 2008, requesting removal of private improvements on Open Space and compliance by July
15, 2008. (See attached Notice and Order). On June 4, 2008, Marion Hill requested an extension for
compliance with this Notice and Order and an extension was granted until August 16, 2008. On July 29,
Marion Hill met with City staff and proposed that the City grant permission for a permanent encroachment
for the private improvements on City Open Space. The City declined this request and an additional 60
day extension was granted to allow time to explore options, pushing the deadline to October 16, 2008.
On October 2, 2008, Marion Hill filed a Petition for an Exception under SRMC 19.10.070 to obtain an
encroachment permit for permanent encroachment of private improvements on City Open Space. Further
negotiations took place and the deadline for compliance was pushed to January 10, 2009.
At the request of Marion Hill and pursuant to SRMC Section 19.10.070, the Parks and Recreation
Commission scheduled a hearing on this issue for January 15, 2009, so the compliance deadline was
extended to March 16, 2009 to accommodate the hearing process. The Parks and Recreation
Commission held the hearing on January 15, 2009, received testimony and documents from City staff and
the applicant, and voted 4-3 to recommend to the Public Works Director that a portion of the existing
encroachment be allowed to remain by granting an Exception pursuant to SRMC Section 19.10.070.
Marion Hill presented a map showing the entire existing encroachment separated into three areas: A, B,
and C. The Commission was unable to make 2 of the 4 findings required by the SRMC to grant an
exception. In spite of that, and based on making only findings #2 and #3 (below), the Commission
recommended granting a limited Exception for only area A, approximately 2533 square feet of lawn area
and improvements, representing about 11 % of the total existing encroachment. (See attached Park and
Recreation Commission documents and minutes)
On April 3, 2009, Neil Jon Bloomfield, attorney for Marion Hill, sent a letter to Ken Nordhoff, City Manager,
requesting a meeting to discuss a possible land swap in lieu of the pending request for an Exception.
(See attached Bloomfield letter). Following discussions with Mr. Nordhoff, Deputy City Attorney Eric Davis
advised Mr. Bloomfield by telephone on April 14, 2009 that Mr. Nordhoff declined to meet with him
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Paee: 3
at this time regarding a possible land swap given the absence of any existing City policy on such a land
swap and the fact that he had initiated the formation of a City staff committee to look at such issues and
make recommendations to him. Mr. Davis advised Mr. Bloomfield that the Exception matter needed to
proceed to a public hearing before the City Council, and informed Mr. Bloomfield that the Public Works
Department had set the hearing for May 4, 2009.
The Public Works Department published a public hearing notice on this matter in the Marin Independent
Journal on April 24, 2009, and mailed copies of the notice to property owners within 300 feet of 81
McNear Drive (see attached Public Hearing Notice).
On April 27, at the request of Marion Hill, the Public Hearing was re -scheduled for May 18. The Public
Hearing re -scheduling notice was published in the Marin Independent Journal on April 29 and notices to
property owners within 300 feet of 81 McNear Drive were mailed. (See attached Public Hearing Notice).
The Public Works Department published a corrected public hearing notice on this matter on May 8, 2009.
This was done to correct an error in the description of the area of the proposed exception, which as
brought to the City's attention by Mr. Bloomfield. There was no change in the hearing date. This corrected
hearing notice was subsequently mailed to property owners within 300 feet of the property. (See attached
Public Hearing Notice).
On May 11, Public Works staff received a packet of information from Mr. Bloomfield on behalf of Marion
Hill requesting five separate actions by the City Council. (See attached).
ANALYSIS: City Open Space land is held in trust by the public exclusively for public use and benefit.
The Open Space adjacent to 81 McNear Drive was specifically dedicated in the Peacock Gap
Neighborhood 1-B Subdivision Map as a parcel "which shall forever be kept open and free from
permanent or temporary buildings and structures of any kind, and upon which no further re -subdivision
shall occur." (See attached Sheets 1 and 2 of Subdivision Map). Furthermore, the Open Space element
of the City's General Plan (Goal 30) emphasizes the importance of retention and preservation of Open
Space to serve as delineators between neighborhoods, as well as to provide wildlife habitat and simply
for its visual assets. (See attached General Plan, Goal 30). For those reasons, although human
interaction with the Open Space is an important factor, it is not the sole reason for its preservation.
Granting an Exception under SRMC 19.10.070 for private improvements on City Open Space is not
recommended because the applicant does not meet the criteria for such an encroachment as required in
the Municipal Code. The criteria specified in SRMC Section 19.10.070 require the City Council to make
the following four findings in order to approve an Exception permitting an Encroachment on City Open
Space:
(1) There are exceptional or extraordinary circumstances or conditions applicable to the request;
(2) The exception is necessary for the preservation and enjoyment of a substantial property right
of the petitioner,
(3) The granting of the exception will not be detrimental to the public welfare or injurious to other
property or property owners in the vicinity of the property that is the subject of the exception, and
(4) The granting of the exception will not interfere with public use of or rights to open space lands.
(See attached SRMC Section 19.10.070.).
Historically, the City Council has granted only one Exception under SRMC 19.10.070, when it approved
issuance of a License for use of City Open Space land by Resolution No. 6940 on October 15, 1984 (see
attached Resolution No. 6940). The property owner of 19 Indian Road, located within the unincorporated
part of Marin County adjacent to City Open Space, had requested permission to install a portion of a
septic tank leach field under the surface of City Open Space. The repair of the property owner's failed
septic system, mandated by the County of Marin, required a leach field that could not fit entirely on the
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Pape- 4
private property parcel. Without an approved septic system, the property would have been uninhabitable.
The request necessitated amendment of the Municipal Code to incorporate the appeal and exception
provisions currently in the Code. The 19 Indian Road encroachment was installed entirely underground
and did not make exclusive use of the City Open Space.
The existing 81 McNear Drive encroachment of private and exclusive improvements upon adjacent City
Open Space land is substantially different from the encroachment at 19 Indian Road, and does not meet
the criteria for exception in SRMC 19.10.070, for the following reasons:
Finding (1): There are no exceptional or extraordinary circumstances applicable to the requested
Exception. The construction of the private improvements by a prior owner of 81 McNear Drive on the
City's Open Space was made without City approval, were the subject of a letter by the City to a prior
owner that should have been communicated to the current owner in connection with her purchase of the
property, and should have been apparent to her from a review of all public records, including the Maps of
the lot line adjustment in the City's Planning files, the plat map of the lot line adjustment attached to the
Grant Deeds regarding the lot line adjustment, the Assessor's Parcel Map, and a site visit to the property.
Finding (2) The grant of the requested Exception is not necessary to the preservation and
eniovment of a substantial property right. The removal of the private improvements, including fencing
and landscaping, encroaching on the City's Open Space will not affect the owner's title to 81 McNear
Drive, or her ability to inhabit and enjoy 81 McNear Drive.
Finding (3). The grant of an Exception will be detrimental to the public welfare and will be incurious
to other property and property owners in the vicinity of Open Space upon which the
encroachments exist. The grant of the Exception would perpetuate an encroachment on City Open
Space which is inconsistent with the Subdivision Map dedication of the Open Space lands as "open and
free from permanent or temporary buildings and structures", interferes with the General Plan Goal 30 that
Open Space should serve as a neighborhood delineator, provide wildlife habitat, and foster visual
benefits. Such an Exception also arguably would adversely affect the neighboring properties in the vicinity
which were purchased based upon the continued existence of such Open Space as an amenity for their
neighborhoods.
Finding (4): The grant of an Exception will interfere with the public use of or rights to open space. If
the Exception were approved and a license granted to the owner of 81 McNear Drive to perpetuate the
encroachments into the Open Space lands, wildlife and members of the public would not be able to
access such Open Space lands, and the visual impacts of such encroachments would diminish the public
rights to such Open Space lands.
As previously noted, on May 11, 2009, staff received a packet of information from Mr. Bloomfield on
behalf of Marion Hill requesting five separate actions by the City Council. In addition to requests for
Exceptions for areas A and B (the Exception request for area C is apparently abandoned), the applicant is
now asking Council to take additional actions to 1) support a lot line adjustment with respect to walls
adjacent to the pool that encroach into Open Space, 2) approve discussions between the property owner
and staff for a trade of Open Space areas A, B, and C for lands to be acquired elsewhere by the
applicant, and 3) approve a suspension of Code Enforcement proceedings pending resolution of all
matters involving the encroachments. Staff recommends that Council take action only with respect to
approval or disapproval of the Exception request that is the subject of this hearing. The other items have
not been noticed for action by the City Council and staff believes are not the subject of appropriate
discussion at this time.
Accordingly, Public Works staff recommends that the City Council adopt the attached Resolution denying
the request for an Exception by petitioner Marion Hill.
FISCAL IMPACT: There is no fiscal impact to the City
OPTIONS: There are no recommended options.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
ACTION REQUIRED: Adopt the Resolution denying the exception request under San Rafael Municipal
Code 19.10.070 for private improvement encroachments upon the City's Open Space adjoining 81
McNear Drive.
ATTACHMENTS: Resolution
Peacock Gap One -B subdivision map
Grant Deeds of Lot Line Adjustment
Assessor's Parcel Map of 81 McNear Drive
10/17/2000 Letter from Public Works Director to Jesse Rhodes
Marion Hill Deeds to 81 McNear Drive
4/12/07 Letter from Public Works Director to Marion Hill
Notice and Order, dated 5/15/2008
Park and Recreation Commission documents and minutes
General Plan, Goal 30
Public Hearing Notices (April 24, April 29, and May 8)
Correspondence from members of the public.
Information packet from Neil Jon Bloomfield (May 11, 2009)
Marion Hill Land Survey
City Land Survey
Surveyor's Plat of swimming pool encroachments and
proposed Lot Line Adjustment.
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN
RAFAEL DENYING AN EXCEPTION UNDER SAN RAFAEL
MUNICIPAL CODE SECTION 19.10.070 FOR ENCROACHMENT
OF PRIVATE IMPROVEMENTS UPON CITY OPEN SPACE
ADJACENT TO 81 MCNEAR DRIVE
WHEREAS, the City of San Rafael is committed to the maintenance and
preservation of City Open Space lands, held in common by the public for the exclusive use
and benefit of the public; and,
WHEREAS, in 1985, the City accepted dedication of Open Space parcel APN
186-530-68 consisting of approximately 33 acres as part of the Peacock Gap
Neighborhood One B development project; and
WHEREAS, sometime between 1989 and 2000, the owner(s) of 81 McNear Drive
installed private improvements encroaching approximately 31,000 square feet upon Open
Space parcel APN 186-530-68; and
WHEREAS, in 2000 and again in 2007, the Public Works Department notified the
owner(s) of 81 McNear Drive and requested the removal of all such encroaching private
improvements on the City Open Space parcel; and
WHEREAS, on both occasions, the owner(s) of 81 McNear Drive did not respond
or comply with the City's request to remove the encroaching private improvements; and
WHEREAS, the Code Enforcement Division subsequently issued a Notice and
Order to the owner of 81 McNear Drive on May 15, 2008, requesting removal of the
encroaching private improvements; and
WHEREAS, the current owner of 81 McNear Drive, Marion Hill, has requested
an Exception under San Rafael Municipal Code Section 19.10.070 to maintain the existing
private improvements encroaching upon the City's Open Space, thereby obtaining
exclusive private rights to that portion of City Open Space; and
WHEREAS, the Exception request came on for public hearing before the Council
on May 18, 2009, after being duly noticed as required by San Rafael Municipal Code
Section 19.10.080; and
WHEREAS, the City Council has considered the evidence contained in the City's
staff report and presented at the public hearing on the Exception, and finds that such
evidence does not support the four findings required to approve an Exception under
SRMC 19.10.070;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
San Rafael hereby denies the request by the owner of 81 McNear Drive for an Exception
under San Rafael Municipal Code 19.10.070 to maintain private encroachments upon the
City's Open Space.
I, Esther C. Beirne, Clerk of the City of San Rafael, hereby certify that the foregoing resolution
was duly and regularly introduced and adopted at a regular meeting of the Council of said City on
the 18`h day of May, 2009, by the following vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ESTHER C. BEIRNE, City Clerk
5vo�
S'{<{M
N
m.5
Vi 11
m�=
pL9
2
A
51 4
90 Ll
LI
xc'i
omz_e
O
n
p,^,mg
°
;%
'b
N.
C Q
�o
_v...
rq
� L
2 PnFm
2
2
A ..I
n
a
€��m•
s m
-0>r
s �.. ^
amsse^
,.sse
e y
c^S o
P
-o-^
�
s
= e^'
a
ap�m' e
^
Ino
R
Eg
�m
�m lives m
m
:.
Amq
r
e S^ g oo
€
o
g eN ?
No4
_�^
8s
A8^m
m
ms�zmW
51 4
90 Ll
LI
xc'i
O
n
°
;%
'b
2
C Q
�o
(o
rq
�y
2
2
A ..I
n
a
/
m
)
\
,
\
, a/g[ ) §§ \\\
\�/±
I
¥
\\ \f\
ƒ^
22
\�
�
F ct,
w
?f2,
r
o �w
i
p
n
oz*
-'
N
v
N m(4
m
Ya(C
M
u
ti
F� b
'
1 \ml
aFPyykF � n �y X91 \LSN 1G mb aq mSS��2 n = � (\�
a • O°O'hFAA-`l £ Al 9C 4Y rlmY" N Y�pv'9 y L ti 1 �)�
nmmm 2 mA 2 �1�\
v Wny aN x nZ 2 m' `, NYom m c
ga oo�mg 'm" i C pn� La' at v,
I
'�Yv ~v a a8 O O
nm' $ o9yg 2 a Z
gZi 9 I n n
I
-'
N
II
Ilex
la
m
M
ti
F� b
'
�I
m
II14
o
k ^'s o
A'w
,
�, 2 'gyp
6 69S 3„LS.ld.6[
�
D
�lti �\•
to Qon'dtl3
Nit
�01AON5y53tlp1
Iq
lq
1
I� < - !•'yam Y
aFPyykF � n �y X91 \LSN 1G mb aq mSS��2 n = � (\�
a • O°O'hFAA-`l £ Al 9C 4Y rlmY" N Y�pv'9 y L ti 1 �)�
nmmm 2 mA 2 �1�\
v Wny aN x nZ 2 m' `, NYom m c
ga oo�mg 'm" i C pn� La' at v,
I
'�Yv ~v a a8 O O
nm' $ o9yg 2 a Z
gZi 9 I n n
I
nEC09CEo,:rREgeFstM '
n L!. IWEO£YSEE9i 89 58Q18
�iagn•1M. •
1
i 19d9S[p 2& Pia it 30
'r•"C•. ASCaAm[C MAL 10 4a({Rt(:Gi14fy 4wtll'll G. - Vii-
�]rti ca Bela re0.oa.ae. ! lalit .l,l?i.} flr,±l
L:$'�T. C7P F7t1V�t{C,. UaS_.9tlrlaw j
+Aa. �X CSC
i ':t.?lLb LtSLI;'M1EL 1 Cil. <•14'31'm
Y n'•'rrhi: L7aiFtGQ a6136t'NF. NaFeRrC6f03
_ _ v%n, i.:: Sr4IiMF.NT:+Tp. �•
DeGflelEliTMY LRNSrE1f T.l't
....aumylga:btlNiYM.4n w WYtl a1M.TFIycVmtllp{ aR
-.. rwerAV w,rM /JWvNlnlx.Nna]M Wmm]n,�mNwww
•w,WNlyrtnna911M1. -
• SI/N �Ou�YMiN)MtlIYMM•i.M�IV T:.�ajnnijtlp�`•
GRANT OfLE0 '_G �i7l1'lf1Yr�
run A vnu:.et cays.ocrii.riuM. rLrvoe of ,mAA a tl,a•: autv34a:w,
t3rela i.l.'a4a Rodrtacce.
nrnmi •:.9At11151 ,9 . • . .
• Cltp of Sap Rafael
Iar In a'. rov dl See Rafael "
l.v:n•r ni Merin . Stn. or Calilww., Jw •ice w '
a t ia: eh en Artw:ha'.u]t A. ;
nlis grant Dead fa ba t. P, recorded to memorialize a lot line adjoatueatl approved by t `
'rlgy tauoeil al e1.Q City of Ceti Rafael by Resolatloo No. ;jd.2G. on Aufust 21. 1989,
ao
4-.et tfld-nau bonudnvy Llhe beteein Lou 2'and 4, AA dallaeated va the parcel MAP
•entitled. "Parcel Map of ftaeo.R Cep Na/ghborhoed Oda A Portloas cf 2110 D.A. 349 to rhe
ctca of Sae Rafael, Ca11fornld• riled MArca 19, L982 Le gook 20 of Parael MaPa at Pa 4a 2Y,
cr33 Coouty Rccorda, rholl hereafter be as !cnotnd an tha Dead Plat at"chad an
A[tutmxeat ?.
i
4 1 -
1:
1 _
ii lnL 9/lei/39 A 4"4CX/Y�^IttJ _
i:arY jf.. =3n I'ranCltlr9, I
,Mme M.LMY+M1TnMnFe:gy f.glr WNdlY wq eWC P. _ •_. �... _. _....�. { ..
A.Whro{x•r].l'---------
vv/`.a �.`U!,� U,mi la' pn.ie a.fs m Id E]A• el NL,Inr(Lr/ J �� 1 - ... , i
nMwma];c w:new-stL+wLv.vnwa Anea.�tle+fl'.a m,n• T
ra "t 1
.. �'YTNka:mv tl�Y]gaM•RCN M41 /1 r
� /; !(� Ilam nw In. slla4! Mxn,l ry:1
nen Wl[�!l'P fi 1002 W112)
MME TAX ZI MEMENTt AS 11IRMIaa APJYE
Description: Marin, CA Document-Year-DoclD 1989.56078 Page: 7 of 4
Order. • bill Comment:
89 5&078
DZSCRZMOS
all ttat crruin res: propsrew aitxsate in the city- of
San Seraul, County of Maria, Stses oL California, describo!i
sa 2:01.w a:
BCVYaaiag at the Saathaaatcriy coraar of Lot Z said
turnPt being co=oa to Las 4 and ..the Lando.of Marin Municipal
U'ator rir trict racord4d in Book 10t2 tf Official Racorda at
°a7" 374 as dei.ineated off "a Pareel clap antitlwl "Carrel trap
cf 74tto-:10 Gap Soighkarhaad 3p6 w Ucrrionu. of. 'sllO O.R. 949
in the :it,y. 4 Ser. Y.aEael,eali_or:Pic" filsd Varcb 19, 1983 iu.
Back 20 0: Fcrcal Yaps at Page 22, Mar1r. county 8eterda,
cko•:ve %roc•. rsid Point ad eaa'innite along trio toamor, line Co
said Lac 2 er.: '.,at J Porth, 57alf-'03" gaar, 77.:7 Feet, th¢nee
i4nc:.ag rate cannon line forth 7T °s5'40" Q491 74.27 :oat cc
:.aa Jaid Lan,ln of Muri.li MLaiaipai Nttui District, th9nce
llcat ;7.41 Foot to the Pe1rz of Boyinring.
'�� st!seacmt A
Description: Marin, CA Document-Year.DociD 1989.56078 Page: 2 of
Order. bill Comment:
I
f
. ........
'::r
- _.._..
7�' ✓�a d•�T..^,fay
'�•-
;I
`L,'
� r Ltf:..Mi1�i<K. �' •. _
.;.5 er.',••r. ,:� _ ,l'.C':. �,t
Cv ,, - _ ::, tl•. :,11
_
I
5
iF
t
1
1
1
f
I
-
I
'
I
5
iF
t
1
1
1
1
s
1
.
I
I
!
f
t
mss' a
Description: Marin, CA Document-Year.DociD 1989.56078 Page: 3 of 4
Order.' bill Comment:
!,,I los:
98 98QTB
R;;SOLDTION No.
A UESDIXTION 07 TUE CITY COUNCIL OF TW CITY -OF
39N RAFAEL.ACCEPTIXG CONVEYANCE OF REAL PROPERTY
AT,,) AUTUOtl121NC THE VICR MAYOR AND CITY CLERX
70 EXEc.,Urn A 011ANT OEEO FOR LOT LINE .kDJU8TUE:;T
,W 01 McSPAd-URItL, 9AN RAFAEL, CALIFORNIA —
TNN CITY='01tiC77. 0F TRF C7'!'Y dF YEN
The Clt:r ro11DLL1 of L! -e. CLty of $uc Rafael, Ca1S2oenia,:
!1113 hareby accept tnat o.rrtaln sdod from Narrla Lucas RearlGaes,
dated September 15, 1t18tF, rur and an beL'al-i of the Clty of San Rafael
And tht, real prarwrty dnanrflmd lnercie, all uu more particularly
ucrarlbna in ,the attuchxert ilerIltq aad iaccrperated herein by rere-
UE IT FURTIER REa]1-V!0 that the VICE MAYOR and CITY CLBZK
are authorlwad to �XOCULa, on behalf of the City of San Rafael, w
-to )lircia Luca(t. Rodrigura for the exchange oL land. des-
oriue,l in Tel[tatl•:e Map/Lot Linc Adjustment- Boundary Eucraacitnunt
P^Int JK) Rcxeer DrIVII, Cr A.P. do. 1S5 i70 -U6,. Lot 2, 2GPV22 by AnriE-
Ooylt• :'nd dated ya) I -W", a Copy of M'hiCh )0 attnob!:d heroic, an.l
i ntl, a'1)trra0..'d her,7i;1 by rC in lVenS1C.
I. ,1;;dN.i13 11. LRONVIIII, C.lrih of the city of 5bn RafAul.
Califarnlu. hcrt•hy Cortlfy that the inroroing resolution wan duly
and regularly •inli"UeOd and Pdppted at u rell•11nr lm:ntinR of the
t:ouaell of said City held on the 21st day of Angunt, 195., by the
rol:atving W' W wit:
ATE.": .'Vi.Xf'ILy;lill6.t.'liE: Horu. Nrug.,ii, Tnryrr t rico-Mayor Sroiner
::0671: t/)ONC[L)SF.)Lt1N.R:,: None
AW,4i7; Gvhtiel Luysri4l!.+: ylnygt 'dnlryan
0 -l.lUYf:[Nl.ki,'i¢e Clork-
COPY �a�o
Description: Marin, CA Document-Year.DoclD 1989.56078 Page: 4 of !
Order.' bill Comment:
J 19 $Solt faCIMMAtiewsTa-
�014. No.Fr
Ewmw 40. ,f 0
r I9B4 �P i6 AB (t 30 -'
'LGiN fiFCiV4UED An_ M. gFJrj.8 PEC -14Z
r., a,p roo-u PaAYruWCL., yA�U.gCdflm-Y 01bCSkIA ..r,
P•e,.Wux �
z'irY us'OrkKu J3KES d. i 4f. 9 C
c •tea +¢awaa: L -I Cc. `ac4't IS
C.rTF«: ct"mca CP:A1Rr1Nesm
fi'A:L 7A) ST4.EAISHTi 41. •�,'J���""'•--�
9UYMAWARY IKIAM R T
,to ae l4daa wa4ri8uaa IUr S
Clo R15Mrd TpaA_.Cc'S>•+wamlMax+WNbawwurNp..y,.,a wxnn. en
3PIC49 n Opp"b4fa1.-%^�Pw,.:mwxrr+iLw.Ya+ar.�lrlwnvMVY,IwMrw.vr
Ix'1,'rY•�N III,w VI UT
iCC 2w'a et.. 3tw. BiU
iea fraa4feM1, CA 54194
GRANT DEED �8G-'f'ri•�
n4:, •, ':et D•+9Lt Cfk1iIJE9APUR• vim ci wnrPh Il nxnLT MmnHeda,.i
City If Sar_ Rafael
nu M, GRAN' idl c1
tlnzcia Lacaa Rudriglu¢, a =tried Unman, to Orr up¢rata property.
N • Itai paw& .y ir. 1-- rhv of San Rara4l
Cet 0 41. itt At , 9a!e of :y9yrnla, 5grnbnl ra
est .Orth 'itt A[a4hGettt A. '
111LV Crelll Deed it baiag r¢aordad to aaeartclira a lot lta4 adjuatatar, approved by tYa
arty conal oC the city tf 8an ealael by Rxaoluctom No. &17!5 on dLyput 21, 1989,
ao :hsr. int 2, pa dN taested oa the Bartel Map eotitimi, "pores! riap of a'eadock Cap
NO'Shbortoad Oa* A P4rtt4Pl rf 21LO O.R. 349 in the City of S¢a R¢irrl, Cnlffard¢" filed
14 -ch 1V, 1982 in Btok 21: of pats*! Naya at Paye 22, µtem County sero_da, shall heranftcr
be as dcaatCd OC the Dead PIAL attaanxd 4a ALt=bn.,T E.
ON•A Srptenlhar 25, 19&9
>ldkrie CJIPGR:M q
rYM•Cnry.1.MYW.ypny P nrvIP.Y I'uM tl[I,G •S.r!NI lWW px
ry ,.iYl:fl•L In,IW rMCM M,,,Y,M MY CPW Ny1V1Y:WY
rmM:n': a tY!M. pawryx YVpY. •aif.'r nwv xwrx.e k IM
nMI.Y.a,6a•14YI X..VWfQW bIY1nNIW,NAIMYYAKYnQ
IIu, Ivp.
Y.`fry::.l.`.n.S V:Y MiaXK41 P.N
UQTvtby L. a�aar: fY[thcNGylar --- -
ATT:s7:
•YYY
nne N, d�aa ✓ �,qty%GTerk
f
I
[irrr, Yrx fur YIISN pW"r Ar Vi
MAIL TAX ;,TAr moirs�., DIRE=10 At9YE lap, '&P,
Description: Marin, CA Document-Year.DoCID 1989.56079 Page: 1 of
Order. bill Comment-
8
ag 50079
• nmsrl::Pm�,ai
:.11 that corcain ranl y=oporty aicusto in ono City of
SA -1 eafael, CmLnty of HArie. Stare o4 California, described
42 follows:
Naginn:nv na the Southwesterly cornpr ee bat 2. copaan to
Set 2 and Lct 4 as dalitwnted on the Buroo-1 :•tae aaitlyd
"Per—. . limp .7f Peacock ,as: Neighborhood %)::a A Fcrtio:tc of
?::^• G. P..
$45 i.. the City of Sen ftafael.Califorrin" riled
larch 19, 1982 in Noon 20 of Farcul Mays at Fi74 ..42, Karin
COL:.ty EW*Ora%, rh4n10 4r07 said Point o: 8oginning along
;hr toan:u: lira to dais Lot 2 an'1 bat 4 ,',octh 374461031' shat
135.73 Fant, there lt%Vinif 5e3d Com.on line SoLch 7:°45'40"
:1•:'ic 1.'..13 :set, '10MCc VOVLL• 7771C'S1" heat 66.d3 E'o,t.
chcu.-a t:ornh 37'16'24" Wast 78.48 Faae to the Pe1nr of
Baginairq. .
STATE OF MliORNiA )
5:.
C007r OF HAR14
On this 25th day of SEaTcho£R , 1985", before me, JLANAE N. LEONCINI. a
iic:ary K617 a in and far tfi i -Ml anty and State, residing therein, duly
ecniT.Usioned and sworn, personnaly appeared OOROTNY L. OREIRER
coronally known to me (w-i!rovaC..taase-oft .n .yac i tlnyf
svidetee) to be the Yfce ?oyer Of the City of San Rafael that executed the within
otcdment and at.tnowledgad to ai6 that said City of Sar. Rafael did execute the
same.
IN WITNESS W14990F, 1 have herSMP sot Ty hand and affixed m,• afticiel Seal
`he gay and year in this certificate first above written,
N1JiNt AL
fA. IEONCINt
To n1d CR y *rdli .:A3��i?4 L5in: ri—onl`for wa.tp w.3r,EwE
Sold County and Stat! Eaf
Attachment A
Description: Marin,CA Document-Year.DOclD 1989.56079 Page: 2 of 9 I I'
Order. bill Comment:
i
�
.. .. . ..
.� .. .
�
¥2
\}
�
%
¥
»,z e
q
\
Description: + q a=_¥r mma1989,560 aPage: ay4�
orbill G_
,ALtKO.Mddt.
.
Description: + q a=_¥r mma1989,560 aPage: ay4�
orbill G_
MIIOtl00NI011119 tlO N015W09lIS TIJOI HIVA AIdWpO lON AtlW b'T30bVd 5kO5S3550 'N H9tl1W3M1 A0VMnDOUM1 MWMWSIAnj"JON 'AlN0S3SVtltlMM3W3339AMOJQAWV Nd NM 51Hl
�I
V
q)AYE,
.
•
Q
a
�U
W
Q• \y
fv
� �
Off• M
®o
N
0
2
M
Q4ZS
03'� 5
16
�'� "' • « ��
�.
0 fq
m
O
U) co
J 1�`i',1
7
Q Q
2
OD
�
O
CITY OF Meyer
lie Albert J. Bora
a.
Council Members
PeulMCohen -
Barbara Heller
Cyr N. Miller
Garya Phillips
DEPARTMENT OF PUBLIC WORKS: (415) 485-3355 FAX: (415) 485-3334
October 17, 2000
File Ref:
Mr. Jesse W. Rhodes
c/o Giampolini & So.
1445 Bush Street
San Francisco, CA 94901
APN 186-470-94/95 — 81 McNear Drive
Subject: Private Improvements on City's Open Space.
Dear Mr. & Mrs. Rhodes:
The City recently hired an engineer to perform a partial property survey to determine the
extent, if any, of private improvements on open space lands owned by the City of San
Rafael. The survey, a copy of which is attached, reveals that there are encroachments into
the open space lands consisting of fencing, landscaping, rock walls, and garden
improvements. As you can see from the survey, these encroachments are directly
adjacent to your property.
City staff has researched the appropriate files and has found that there is no authorization
from the City for these improvements. Consequently, these encroachments are not
authorized and must be removed from the open space lands. You are requested to remove
all said unauthorized encroachments from open space lands within 60 days or by
December 20, 2000.
Thank you for your immediate attention and cooperation on this matter
Very trail yours,
DAVID M. BERNARDI
Director of Public Works
Cc: Eric Davis, Deputy City Attorney
Cheng P. Yeo, Assistant Engineer
Kraig Tambomini, Associate Planner
1400 Fifth Ave., P. O. Box 151560, San Rafael, CA 94915-1560
ii Branch ;KLM,User :CAOI Comment: Station Id :NDYF
i .
RECORDING REQUESTED BY:
Old Republic TRte Company
YYY��7ii ORDER #: 0457002994•RB
APN #:• 186.470-99
y
WHEN RECORDED MAIL TO
Marlon K. Hill
81 McNear Drive
San Rafael, CA 94901
2006-0055293
Recorded I AEC FEE 10.00
Official Records I TRX 23020.00
County of I SURVEY M00AENi 10.02
10HV
KarrI
AssessorRecorder I
1
& IVX 31 -Aug -M I Page I of 2
11111111111111111111fill fill 111111
SPACE ASOVETNIS LINE FOR RECORDERS USE
veea
The undersigned grantor(s) declare(s):
Documentary transfer tax Is $13,020.00 (CoNBINED)
(X) computed on full value of property conveyed, or
( ) computed on full value less of [tens and encumbrances remaining at time of sale.
( ) Unincorporated area: (X) City of San Rafael
FOR A VALUABLE CONSIDERATION, receipt of which Is hereby acknowledged,
Jesse W. Rhodes and Brenda C. Rhodes, husband and wife
hereby GRANT(S) to
Marion K. Hill, a married woman as her sole and separate person
that property In City of San Rafael, Madn County, State of California, described as:
See "Exhibit A' attached hereto and made a part hereof.
Mail Tax Statements to Grantee at address above
Date August 25, 2006 lRi
/^+ �^, J se . odes
State of t��t �
County of M6Is�
r .
Rhodes
on .�'2ff'•'04 before me,
rn-C.- +
a Ng%P bAc In and for sa State, pig ers�naily appeared
=N. _. R
personally known to me or proved to me on the basis of
satisfactory evidence) Iq be the person(s) whose name(s) is/are
subscribed to the within Instrument and acknowledged to me
that he/she/they executed the same In his/her/their authorized _
capacty(tes), and that by his/her/their signature(s) on the a Kc aRO
Instrument the person(s), or the entity upon behalf of which cammtsston s U957d9
the person(s) acted, executed the instrument. '� Notary Public•Couromis
Modncctnly Ir
WITNESS my hand office ( _ OWComm.Ex" Jul 27.2004
Signature
NameVA
(typed or printed)
nTRECTEn
MARIN,CA Page I of 2 Printed on 05/13/2009 4:57:10 PM
Document: DDS 2006.55293
_ _.......
Branch :KLM,User :CAOi
Comment:
ORDER NO.: 0457002994118
EXHIBIT A
The land referred to is situated In the County of Marin, City of San Rafael, State of California,
and is described as follows:
PARCEL ONE:
Lot 2, as shown upon that certain Map entitled "Parcel Map of Peacock Gap Neighborhood One
A, Portions of 2110 O.R. 549, In the City of San Rafael, Californla , flied far record March 19,
1982 In Book 20 of Parcel Maps, at Page 22, Marin County Records,
EXCEPTING THEREFROM:
Beginning at the Southeasterly comer of Lot 2, said corner being common to Lot 4 and the
Lands of Marin Municipal Water District recorded in Book 1053 of Official Records at Page 578,
as shown upon that certain Map entitled "Parcel Map of Peacock Gap Neighborhood One A,
Portions of 2110 O.R. 549, In the Gty of San Rafael, California ; filed for record March 19,1982
In Book 20 of Parcel Maps, at Page 22, Marin County Records, thence from said point of
beginning along the common line to said Lot 2 and Lot 4, North 570 46' 03"West 77.27 feet;
thence leaving said common line, North 770 451400 East 74.27 feet to the said Lands of Marin
Municipal Water District; thence South 070 13'30m West 57.41 feet to the point of beginning.
PARCELTWO:
Beginning at the Southwesterly corner of Lot 2, common to Lot 3 and Lot 4, as shown upon
that certain Map entitled "Parcel Map of Peacock Gap Neighborhood One A, Portions of 2110
O.R. 549, In the City of San Rafael, California , filed for record March 19, 1982 In Book 20 of
Parcel Maps, at Page 22, Marin County Records; thence from said point of beginning along the
common line to said Lot 2 and Lot 4, South 570 46' 03"East 135.73 feet; thence leaving said
common line, South 770 45'404 West 12.13 feet, thence North 770 16' 51"West 56.83 feet;
thence North 370 16' 24"West 78AB feet to the point of beginning.
APN:186.470.99
Page 1 of 1
Station Id :NDYF
MARIN,CA Page 2 of 2 Printed on 05/13(2009 4:57:18 PM
Document: DDS 2006.55293
RECORDING REQUESTED BY
9 California Land Title of Marin
WHEN RECORDEDMAILTO, AND UNLESSOTHERWISE
SHOWN BELOW, MAR. TAX STATEMENTS TO:
Nam*. K. Hill, Trustees
street
Addma g i kG On a2ilre.
Zip SCLA j?0: aV-k, (A 940jp3
Order No. 532469AD
GRANT DEED
2u2ytD7—¢erb3E,825
Recorded I REC FEE IL 00
Official Records I
Count of i
JOAN C r7HAYER 1
Assesso"ecorder I
(
61si•9 % 13-Jun-,2QO'] 1 Page 1 of 2
THE UNDERSIGNED GRANTOR(s) DEQLARE(s)
Documentary Transfer Tax is $ NON nM Trtk t.k Parcel No. 186470-99
® computed on full value of interest or property conveyed, or Tax Code Area: B-000
O full value less value of liens or encumbrances remaining at
the time of sate
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Marion K. Hilt, a married woman as her sole and separate property
hereby GRANT(s) to
Marion K. Hill, Trustee of The Marion K. Hill Revocable Trust dated 8114/90, Re -state 3/17104
the following real property in the City of San Rafael, County of Marin, State of California:
See Exhibit A attached hereto and made a part hereof.
Dated: aline 7.2007
aGiFAV +/7.WA
►l� ' aA �■ V
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the poison(s) whose nome(s) Ware
subscribed to the within Instrument and acknowledged to me that
he/ she/ they executed the same In hisrherAhek suewdzed
cepadty(ies) and that by hisfiernhelr signature(s) on the
InsInsnenl the person(s). or the entity upon behalf of whkh use
person(s), acted, executed the Instrument
WITNESS my hand and official seal,
NINE
VV -4-0'm' --!-
r J. AURELIp
COMM -91692370 D
y�
homyocRuocRMA UJ
Comm. Exoim Ottober S, 7010
Exhibit A
ESCROW No. 532469 KD
ALL THAT CERTAIN real property situate in the City of San Rafael, County of Marin, State of California.
described below as follows:
PARCEL ONE:
Lot 2, as shown upon that certain Map entitled "Parcel Map of Peacock Gap Neighborhood One A,
Portions of 2110 O.R. 549, in the City of San Rafael, California", filed for record March 19, 1982 In Book
20 of Parcel Maps, at Page 22, Marin County Records.
Excepting therefrom:
Beginning at the Southeasterly comer of lot 2, said comer being common to Lot 4 and the lands of
Marin Municipal Water District recorded In Book 1053 of Official Records at Page 576, as shown upon
that certain Map entitled "Parcel Map of Peacock Gap Neighborhood One A, Portions of 2110 O.R. 549,
in the City of San Rafael, California", filed for record March 19. 1982 in Book 20 of Parcel Maps, at Page
22, Marin County Records; thence from said point of beginning along the common line to said Lot 2 and
Lot 4, North 570 46' 03" West 77.27 feet; thence leaving said common line, North 770 45'40" East 74.27
feet to the said Lands of Marin Municipal Water District; thence South 070 13'30" West 57.41 feet to the
point of beginning.
PARCEL TWO:
Beginning at the Southeasterly corner of lot 2, common to Lot 3 and Lot 4, as shown upon that certain
Map entitled "Parcel Map of Peacock Gap Neighborhood One A, Portions of 2110 O.R. 549, in the City of
San Rafael, California". filed for record March 19,1982 in Book 20 of Parcel Maps, at Page 22, Marin
County Records; thence from said point of beginning along the common line to said Lot 2 and Lot 4,
South 570 46' 03" East 135.73 feet; thence leaving said common line, South 770 45' 40" West 12.13 feet;
thence North 770 16'61" West 56.83 feet; thence North 370 16'24" West 78.48 feet to the point of
beginning.
CITY OF
n.
PUBLIC WORKS (415) 485-3355 FAX: (415) 485-3334
Andrew J. Preston, P.E., P.L.S., Director of Public Works
April 12, 2007
Marian K. Hill TR
81 McNear Drive
San Rafael, CA 94901
Re: Private improvements on City Open Space
Dear Ms. Hill,
Mayor
AlberiJ. Boro
Council Members
Paul M Cohen
Barbara Heller
Cyr N Miller
Sery 0 Phillips
File: 06.02.06
On October 17, 2000, the City sent you, or a previous owner of your property, a letter requesting the
removal of certain private improvements on adjacent City Open Space. These improvements were
associated with your property. The City required that the improvements be removed by December
20, 2000. A copy of the original notification letter is attached, as well as a copy of the land survey
performed at that time.
The improvements have apparently not been removed.
Please contact me in an attempt to clarify and hopefully resolverthis matter. If you believe that the
private improvements associated with your property are not encroaching upon City Open Space, and
that you have received this notice in error, please provide an explanation. A representative of the
Public Works Department is available to visit your property and meet with you to discuss this issue
at your convenience. We will do everything we can to help you with this process. If, after
discussion with the City, you do not agree with the intent of this letter or the City's position relative
to encroachments upon the Open Space adjacent to your property, you may appeal this notice to the
City Council pursuant to the provisions of Chapter 1.90 of the San Rafael Municipal Code (attached).
If we have not heard from you by May 15, 2000, and we have no assurance that you are committed
to removing all encroachments that may exist, this matter will be referred to the Code Enforcement
Division for their action pursuant to Chapter 1.46 of the San Rafael Municipal Code (attached).
I look forward to hearing from you and working with you to resolve an issue that has been apparently
left unresolved for so many years.
Sincerely,
Andrew J. Preston,1%., P.L.S.
Director of Public Works
Copy to: Lynda LeVeque, Code Enforcement Manager
Eric Davis, Deputy City Attorney
111 Morphew Street, P. O. Box 151560, San Rafael, CA 94915-1560
CITY OF
CIMMON
Mayor
Albert J. Boro
Council Members
Greg Brockbank
Damon Connolly
Barbara Heller
Cyr N. Miller
COMMUNITY DEVELOPMENT DEPARTMENT (415)485-3085 FAX (415)458-5338
May 15, 2008
Marion Hill
81 McNear Drive
San Rafael, CA 94901
By Regular Mail and Certified Mail, Return Receipt Requested
RE: NOTICE AND ORDER PURSUANT TO S.R.M.C. CHAPTER 1.46;
81 McNear Drive (A.P.N. 186-470-99)
Dear Property Owner:
As a result of the inspection conducted at the captioned property on Monday, April 7,
2008, by the City's Code Enforcement Officials and Public Works Department, you are
hereby notified pursuant to Chapter 1.46 of the San Rafael Municipal Code that
conditions exist on your property which constitute violations of the San Rafael Municipal
Code, and the incorporated uniform codes, and are hereby ordered to correct such
violations, as follows:
L San Rafael Municipal Code (SRMCI
(See Attachment A, for the City Parks Superintendent specification of violations, the
required corrections, and the required compliance dates.)
If you have not achieved compliance with the San Rafael Municipal Corte by making
the required corrections by the specified compliance dates, the undersigned Code
Enforcement Officials may schedule a (rearing before an Administrative Hearing
Of to obtain an administrative order directingyour compliance, and imposing on
you administrative civil penalties up to $500 a day, per violation, and administrative
costs, as well as the costs of actual abatement by the City, which may be collected from
you by civil action, together with attorney's fees, or by special assessment or tax
collection, as authorized by the provisions of Chapter 1.46 of the Sall Rafael Municipal
Code, a copy of which is attached.
The compliance date for correction of the noted violations is Tuesday, July 15, 2008.
A re -inspection will be conducted on or about Wednesday, July 16, 2007, to verify
compliance.
Extension of Compliance Date: If you believe that there are legitimate grounds for
an extension of the compliance date, you may submit a written request to the Code
Enforcement Manager specifying the grounds and requested period for such an
extension. The Code Enforcement Manager must receive such a written request no
later than 10 days prior to the compliance date specified in this Notice and Order.
The Code Enforcement Manager may grant an extension of the compliance date if
the Code Enforcement Manager determines, in his or her discretion, that a good
faith effort has been made to correct the violations and an extension is reasonable
under the circumstances.
If you have any questions concerning the particular violations and the required
corrections, please feel free to contact the appropriate Public Works Official as indicated
on the Attachments. If you have any additional questions pertaining to the Notice &
Order process, please contact Code Enforcement Officer DJ Heckler at
(415) 458-5337.
Lynda eVeque
Code Enforcement Manager
Art Gibney
Operations and Maintenance Manager
cc: Eric Davis, Esq. Deputy City Attorney
Attachment A
Notice and Order - 81 McNear Drive
Specification of Violations—San Rafael Municipal Code (SRMC)'- Code
Enforcement Officer
Noted Violations:
1. Encroachments into City Open Space consisting of fencing, landscaping, rock
walls, structures, and garden improvements have occurred. Abate illegal
encroachments by removing any fencing, structures, and any portions of
rock wall that extend from your property into the City's Open Space, or that
are adjacent to and benefiting your property but located in the City's Open
Space, as shown on the Survey Map, dated March 31, 2001 attached hereto
as Exhibit "A". Cap and remove hardware for irrigation improvements that
exist in the City's Open Space. SRMC 19.10.060 (1), (10) Open Space
Regulations.
The compliance date for correction for abatement of the noted violations
on this attachment is Tuesday July 15, 2008. A re -inspection will be
conducted on or about Wednesday July 16, 2008 to verify compliance of
the noted violations.
If you have any questions concerning the noted violations or their corrective
action, please call (415) 485-3377.
1
1,46.010
Sections;
1.46.010
1.46.030
1.46.040
1.46,050
1.46.060
1.46.070
1.46.080
1.46.090
1.46.100
1,46.110
1.46.110
1.46.130
1.46.140
1.46.150
1.46,160
Chapter 1.46
Applicability, _
Notice and order.
Method of service.
Compliance with notice and
order.
Noncompliance with notice and
order- Hearing.
Notice of hearing.
Hearing -Findings, decision and
administrative order.
Administrative order.
Administrative civil penalties.
Administrative costs,
Supplemental hearing, decision
and administrative order,
Failure to comply with
administrative order.
Right of judicial review.
Recovery of administrative civil
Penalties and administrative
costs. "
Code enforcement assessment
lien—Tax collection.
1:46.010 Applicability,
This chapter provides for administrative remedies,
which are in addition to all other legal remedies, criminal
or civil, which may be pursued by the city to address any
violation of this code, including any codes adopted by
reference, or other public nuisance. (Ord 1706 § 7 (part),
1997).
1.46.030 Notice and order.
A. Whenevera code enforcement official determines
that a violation of this code, including any codes adopted
by reference, or any other public nuisance, is occurring
or exists, the officio] may issue a written notice and order
to the person orpersoas responsible for the code violation
or other public nuisance.
B. A notice and order issued pursuant to this chapter
shall contain the following information:
I. The date and location of the code violation or
public nuisance;
2. A description of the violation orpublic nuisance,
with reference to the applicable sections of this code, and
the sections of any code adopted by reference;
:San Rr' M
12
3. The actions required to correct the violation or
abate the public nuisance, and the date by which compli.
ance shall be achieved;
4. A statement that if compliance is not achieved
by the compliance date, that administrative civil penalties
and administrative costs, as well as the costs of actual
abatement by the city, may be imposed on.the responsible
person, and collected judicially, or by special assessment
or tax collection, as provided in this chapter,
5. Eitber a copy of this chapter, or an explanation
of the consequences of noncompliance with this chapter
and a description of the hearing procedure and appeal
process;
6. Such other information as may be required'by
any code adopted by reference, where applicable. (Ord.
1706 § 7 (part), 1997).,
1.46.040 Method of service,
A. The notice and order and any other notices re-
quired by this chapter shall be served as provided in
Section 1.08.060 of this code, and the'requirements of
any codes adopted by reference, where applicable.
B• where real property is involved, the notice and
order and all other notices required by this code shall be
mailed to the record owner of the property at the address
as shown on the last equalized county assessment roll,
and also shall be conspicuously posted at the property
which is the subject Of the notice and order.
C. The failure of any person to receive any notice
required under this chapter shall not affect the validity of
any proceedings taken under this chapter. (Ord. 1706 §
7 (part), 1997).
1.46.050 Compliance with notice and order,
If the code enforcement official deterwincs that all
violations have been corrected or the public nuisance
eliminated within the time specified in the notice and
order, no further action shall be taken. (Ord. 1706 § 7
(part), 1997).
1.46.060 Noncompliance with notice and
order—Hearing,
A. If the codaenforcement official determines that
full compliance bas not been achieved by thacompliance
date specified in the notice and order, the official may
schedule a -hearing before an administrative hearing
Officer,
B. A Britten notice of hearing shall he served on the
responsible person and, where real property is involved,
on the record property owner, as provided in Section
1.46.040. (Ord. 1706 § 7 (part), 1997).
;f -v
san rafael
COMMUNITY SERVICES
To: Parviz Mokhtari, Interim Director, Public U
Works Department
From: Carlene McCart, Director, Community Services
nate: January 28, 2009
Re. Recommendation from the Park and Recreation Commission Regarding Request for
Exception of Encroachment, 81 McNear Drive
Recommendation The Park and Recreation Commission, by a 4 to 3 vote, recommends
the City Council grant an Exception for Encroachment to Ms Marion Hill, 81 McNear Drive,
for a portion of improvements represented as Lawn Area on attached map (2533s/f
encroachment of San Rafael Open Space)
Background In 1989 the property owner of 81 McNear Drive installed a swimming pool and
supporting structures that encroached on City Open Space. In 1989 A lot line adjustment
was approved for 81 McNear Drive to accommodate a limited encroachment on City Open
Space due to the installation of a swimming pool and rock retaining wall on the property.
The City was deeded a proportionate amount of square footage as exchange for the
impacted Open Space
A subsequent owner of 81 McNear was notified by letter in October 2000 that additional
encroachments into the Open Space consisting of fencing, landscaping, rock walls, and
garden improvements existed at that time. The letter directed the encroachments be
removed from City Open Space by December 20, 2000. The letter received no response
from the then property owner. No further action was taken on behalf of the City.
In February, 2008 City Public Works and Code Enforcement staff conducted a site
inspection of 81 McNear Court, owned by Marion Hill. A review of the property perimeter
and land survey concluded that the private property encroached on City Open Space. That
same month the City contacted the property owner requesting an appointment for a joint
inspection. The joint inspection occurred on April 7. City staff determined that the property
significantly encroached onto City Open Space with features comprising of a rock retaining
wall, fencing, structures and landscape. According to a survey completed by Ms. Hill, her
property encroaches on approximately 30,000 square feet of City Open Space land.
A Notice and Order to Cease and Desist was mailed and hand delivered to the property
owner on May 15, 2008. On June 4, 2008 Ms. Hill requested an extension on the Notice and
Order which was granted until August 16, 2008. On July 29, 2008 the property owner met
with City staff to propose permission be granted from the City to encroach permanently on
City Open Space. A 60 day extension was granted on the Notice and Order. In October,
0 Page 1
2008, a 90 day extension was granted to allow the property owner time to explore options to
resolve the issues. At that time Ms. Hill, through attorney Neil Jon Bloomfield, submitted a
Request for Exception under Section San Rafael Municipal Code Chapter 19.10.070.
Attachment A includes a chronological record of correspondence between the City and Ms.
Hill. Ms. Hill originally requested an Exception for Encroachment. She amended that
request before the Commission meeting to include a delay of proceedings and consideration
of sale of the Open Space property or trade for like property. Since the Commission is only
authorized by Ordinance to review Exceptions for Encroachment on City owned open space,
the original request was considered.
Historically, the City granted an Exception and issued an Encroachment Permit for use of
City Open Space in one instance. In 1984, the property owner of 19 Indian Road located
within the unincorporated part of Marin County, adjacent to the City's Open Space lands,
requested permission to install a septic tank leach Feld on the City's Open Space lands. The
repair of the property owner's failing septic system, required by the County of Marin,
necessitated a 3,600 square foot leach field that could not fit on the private property. The
request triggered changes in the Municipal code to allow an appeal process and exceptions
in Chapter 19.10. The City Council granted an Exception pursuant to SRMC Section
19.10.070 and authorized an agreement with the property owner to permit installation of the
leach field on the City Open Space.
In 2004 an Exception was requested by a resident of Convent Court. The Commission did
not recommend the Exception be granted. The property owner rescinded the Appeal to City
Council and abated the encroachment rather than enter into a lengthy and expensive
process.
In order to grant an Exception of Encroachment, the Commission must make the following
findings:
1. There are exceptional or extraordinary circumstances or conditions applicable to the
request,
2. The exception is necessary for the preservation and enjoyment of a substantial property
right of the petitioner.
3. The granting of the exception will not be detrimental to the public welfare or injurious to
other property or property owners in the vicinity of the property that is the subject of the
exception;
4. The granting of the exception will not interfere with public use of or rights to open space
lands.
Analysis The consensus of the majority of the Commission was the portion of the
encroachment that is lawn and landscape as extension of the backyard meets two of the four
criteria for Exception as outlined in the Municipal Code Chapter 19.10.070
1. There are exceptional or extraordinary circumstances or conditions applicable to the
request;
Vote: yes 3 votes no 4 votes
0 Page 2
2. The exception is necessary for the preservation and enjoyment of a substantial property
right of the petitioner.
Vote: yes 5 no 2
3. The granting of the exception will not be detrimental to the public welfare or injurious to
other property or property owners in the vicinity of the property that is the subject of the
exception;
Vote: yes 4 no 3
4. The granting of the exception will not interfere with public use of or rights to open space
lands
Vote: yes 4 3 no 4
It was M/s Lubamersky/Bastillos an Exception for Encroachment be made for Area A, Lawn
based on Criteria 2 and 3 of the San Rafael Municipal Code Section 19. 10
Ayes: Bastillos, Lubamersky, Warnecke, Yates
Noes: Clark, Mihan, Quintero
Absent: None
Attached to this memo is a copy of the Minority Report submitted by Commissioners Clark,
Mihan and Quintero outlining their position.
Fiscal Impact There is no fiscal impact attached to this recommendation, however, if the
City Council upholds the recommendation there will follow a decision on the disposition of the
Open Space property, either by creating an easement, a lease, land trade or sale. In order
to accomplish a sale the property must be declared surplus to City needs and rezoned, along
with a General Plan amendment and possible environmental review before conducting a
competitive bid process.
Conclusion The Park and Recreation Commission, by a 4-3 vote found the existing
encroachment at 81 McNear to meet two of the four required criteria for Exception. They
recommend a portion of the Encroachment be allowed to remain. Those in opposition have
stated their reasoning.
I am available to clarify any of the information presented or proceedings that led to the
recommendation. Please call on me if I can be of assistance.
0 Page 3
LAW OFFICES OF NEIL JON BLOOMFIELD
901 E STREET, SUITE 100
SAN RAFAEL, CA 94901
(415) 454-2294 ® FACSIMILE (415) 457-5348
EMAIL: njbloomfield()nlblaw.com
The San Rafael Park and Recreation Commission
C/O Carlene McCart, Director
San Rafael Community Services
618 B Street
San Rafael, CA 94901
Re: 81 McNear Drive (APN 186-470-99) and Related
Dear Commissioners and Carlene:
Marion Hill and my office have jointly been working on a variety of solutions to the issues
involved with this pending request for an exception. While it is still necessary and appropriate to
grant her the exception she has requested for an interim period until an acceptable alternate
resolution is completed, alternative solutions are all actively being developed and progress on
them is being made weekly. Ms. Hill's exact suggestions for the present meeting on January 15
are as follows:
® ITEM 1
Discuss the Issues Preliminarily and Then Postpone to the March Meeting
After discussion of the issues involved in Ms. Hill's exception application and with the
alternative solutions currently under development, such that each Commissioner can make
his or her questions and general approaches to the problem and its solutions clear, Ms. Hill
suggests and requests that the matter be continued to the March Park and Recreation
Committee meeting. During that time, hopefully a win-win solution that coincides with a
Commission consensus of approaches to the problem can be refined and presented for final
action at the March meeting. This we view as item 1.
® ITEM 2
At the March Meeting, Consider a Resolution of Support for the Surplus Land
Proposal Outlined Below
Ms. Hill suggests and requests that the Commission also set for the March meeting a
resolution of support for the sale proposal outlined below.
E ITEM 3
At the January 15 Meeting, Provide Some Preliminary Indications On Possible Land
Trade Situations For Parcels A, B and C as Indicated on Attached Map
Ms. Hill suggests and requests that the Commission give her some indication of its
preliminary thoughts about a possible land trade for Parcels A, B or C IF the proposed sale
of the requested parcel to Ms. Hill (ITEM 2 above) is not attractive to the Commission or
does not otherwise clear each involved City agency. If this third alternative is selected, then
the parcel located might adjoin the present 33 acres of open space, or might adjoin another
park or open space area. At least one potential possibility has been identified, but it is hoped
that City Staff might have others in mind, or identify others at the Commission Meeting. This
search and acquisition may take substantial time, effort and cost to locate, select, and
secure. Ms. Hill would like some assurance that this is an area that City staff and/or the
Commission will support before spending the time and money to secure the right to buy
such a parcel to trade it for Parcels A, B or C.
Carleen McCart Page 2
January 8, 2009
By way of further comment regarding Item 2, this is a new possibility that essentially came up
through discussions with other agencies within the City and seems a very sound ultimate
solution. It involves the possible purchase by Ms. Hill of between a quarter acre and one acre of
the dead end portion of open space land adjoining her home. This land is presently not
accessible to the public due to slopes, poses a potential fire danger to Ms. Hill and her
neighbors, and may be become a potential liability issue for the Open Space District. I have
mentioned this to Eric Davis, City Attorney, and he has been kind enough to provide me with a
copy of the relevant city ordinance, Resolution 5734, passed August 6, 1979. The first step in
this process would involve an appraisal. We will discuss this process shortly with the City
Manager and Eric Davis, and begin the appraisal process. Paragraph 8 of the ordinance as
provided by Eric Davis states:
" 8. Land which is not readily marketable because of odd shape,
which is unsuitable for development by itself, lacks the area to meet
the minimum spaces requirements for building in its particular zone,
is landlocked or which is otherwise substantially lacking in its sale
potential, may be sold by taking offers or by negotiation provided
that the price compares reasonably with the appraisal. The grant of
easement and the like shall be presented to the planning
commission for its evaluation and recommendation to the City
Council....."
Since submitting the exception request, we have been able to quantify and map exactly the
areas in question. A map is attached to further focus the discussions we are having and want
to continue to have with your staff and with other City staff over the next several months. The
attached map shows the areas of concern in considerable detail.
It would also be appropriate at this time to price the exception for the interim period until the
purchase can complete, or the exception in total if the other alternatives are not attractive to the
City of San Rafael. Ms. Hill proposes at this time that the exception she requested be granted
with annual payment for the exception of $350.00. The exception could have a built-in review in
three years, by which time we might have completed one of the alternative total solutions, either
the purchase or the land trade. While in some ways this is a long time, the reality is that the
time is needed for City processes, not for Ms. Hill. She would complete her proposed purchase
within a month, and has her survey work ready. The City must go through quite a few processes
and these take time. Within three years, or perhaps sooner, Ms. Hill would expect to complete
the following:
A purchase of areas A, B and C, as outlined above in Item 2. At this time, we are seeking
your Commission's support for the sale of these as surplus lands, although the bulk of that
process goes on with other City agencies. The sale will of course contribute the appraised
value of the lands transferred to the City Budget. However, to make this more of a "win-win"
for all concerned, Marion proposes at the same time to make a contribution to the Park and
Recreation budget to reach the following totals, which are far higher than the likely
Carleen McCart
January 8, 2009
Page 3
appraised values. The following additional schedule of combined purchase price and
contribution illustrates the revenue enhancement that could be anticipated:
• If the purchase is the one half acre to the deer fence, $100,000.00 total
revenue enhancement. This is marked on the attached map as area C,
shown with little triangles as well. It is one half an acre (21,998 square feet
roughly)'
• If the purchase is only area B on the attached map $50,000.00(6,626
square feet roughly)`
• If the purchase is only the lawn area, $25,000.00. This area is shown as
area A on the attached map and marked with little arrows (2,533 square
feet roughly)`
• If the purchase is only of area 2, $10,000.00.
• If the purchase is one full acre, $130,000.00. If there is interest in this,
Marion will prepare and submit a drawing showing that exact area.
The completion of the purchase would significantly enhance one or more of the pending Park
and Recreation projects that need funding and is otherwise stalled. Our investigation of the
scope of the problem and its historical development has also progressed. The City played an
active part in the chain of events that led to Ms. Hill purchasing the property, believing her
boundary went considerably downhill from her pool area and rock wall improvements, all the
way to the top of the hill, encompassing more than the area B now in question. Area B is 6,626
square feet. Ms. Hill was aware that she did not know where the exact boundary was between
the deer fence and the area ten feet downhill from the edges of areas 1 and 2. She was told
there was no survey available, when in fact there were surveys that she was not aware of, but
these were not shown in the title report. She was given a City of San Rafael 3 R report that
confirmed at the time of purchase that there were no violations. (See page 3 of attached 3 R
report). In fact, City records also included the attached report of a planner indicating there were
no open violations. Now, many years later, the City has come back and claimed that there were
violations, i.e. the encroachment, and that they needed to be remedied. This turnaround by the
City has caused Ms. Hill great prejudice and harm; however, we are seeking a good solution for
all concerned without pointing any fingers of blame. The "win-win" approach avoids the need for
the City to attempt costly code enforcement proceedings, and also avoids the need for Ms. Hill
to pursue claims against the City and others for not reporting the problem to her as part of her
purchase.
Both Ms. Hill and myself look forward to discussing all of these issues with the Commission
next Thursday. Some of you were not able to come to the site inspection held in the Fall, and
Carlene has not yet been able to come to the site to review the situation "on the ground" as it
exists. With the requested adjournment after preliminary discussion, all of you who are inclined
to come and inspect but have not yet done so could now come, at one set time and date.
Carleen could come as well to view the exact situation on site, which is desired and requested
by Ms. Hill as the applicant.
As stated in the request for exception letter dated October 6, 2008 which has led to this item
occurring on your agenda, "It is also noteworthy that Marion Hill through my office is now as of
Carleen McCart Page 4
January 8, 2009
this date pursuing a possible lot line adjustment and/or land swap, a possible purchase of the
sliver of land involved, and a possible acquisition of other lands to swap with the City for this
sliver of land. It is possible that significant short-term progress with any of these projects under
way may make this request moot. However, since these matters may take some considerable
time, and since otherwise code enforcement proceedings would be accelerating and the
present dispute might be getting larger rather smaller, the requested exception should be
granted unless and until progress on these other matters make the exception unnecessary."
We look forward to working towards a good solution for all concerned to the issues presented
by the present application. We do believe this process will take somewhat longer than the time
frame so far allotted, but we are hoping to reach some preliminary areas of agreement at the
meeting on 1-15-09, without any formal action, and provide the period from then to the March
meeting for an ongoing constructive dialogue on the issues involved.
I enclose a few helpful items: The map mentioned above, which defines and illuminates the
areas we are considering; the City of San Rafael 3 R report, which shows that there were no
violations at the time of purchase; the internal staff memo of August 2006 which confirms that
all was resolved and no further action was needed or appropriate as per City files (the opposite
of the City's present Code enforcement position); and Ms. Hill's e-mail to the realtor, with the
handwritten response, which advised that there was no survey. Because of that memo, it was
reasonable for Ms. Hill to assume that the lot lines included the improvements shown in the
property marketing materials and which were maintained and improved and are basically the
back yard and pool area of the house. I also enclose a "guide" to the cross -hatching and
marking of Parcels A, B and C on the large map provided with this letter.
Enclosures
San Rafael Park and Recreation Commission
Meeting Minutes
January 15, 2009
Commission Chair Ralph Mihan called the meeting of the San Rafael Parks and
Recreation Commission to order at 7:00 p.m.
Roll Call: Mark Bustillos, Susan Clark, Mark Lubamersky, Ralph Mihan, Armando
Quintero, Fred Warnecke, Craig Yates, Jeff Jones (Alt)
Commissioners Present: Mark Bustillos, Susan Clark, Mark Lubamersky, Ralph
Mihan, Armando Quintero, Fred Warnecke, Craig Yates, Jeff Jones (Alt),
Commissioners Absent: None��\
\\
Staff Present: Director Carlene McCart, Assistant Director Bill Schar�� �d s
e
Superintendent John Tune, Cultural Affairs Supervisor Jane Lange
Action Items
A. Request for Exception for Encroachments on City Open Space by
am,
'g
Marion Hill Owner of 81 McNear DrrveAy
Director McCart provided b 1111 op the i �of the encroachment at 81
McNear Drive on city own edpen spay PreJio�bs to this ownership a lot
line adjustment had beeranted to recon i 8 encroachment on to city open
\n
space. Land was tra �h the City tb accommodate the property's back
#\\�\
yard retai mg, all anda 1111, In 2000 a previous owner was notified of further
� vv� v� �
encr�� ����stmg �ng landscaping, rock walls, and garden
im3�ements �� ro ertFWas requested to abate the
encroachment, but nolurther aion was taken.
The current abatemdi fiction began in February 2008 resulting in a Cease
i\ o\ .
Rtl: esist order iss %= in May 2008. The owner was granted extensions on
WM\ �`.
ego er and reque bd an Exception to Encroachment to allow the
A
am Sid to rema��n Open Space. That request was amended, asking
�� \A
inste��diseission of the issues at this meeting a postponement of
decision srch, a determination on the part of the Commission to grant
an Excepti and recommendation to City Council that the land be declared
surplus arida recommendation to sell or trade the City open space in total or
in part.
McCart reminded the Commission that their authority allowed them to make a
recommendation only on the Exception utilizing four criteria contained in the
Open Space chapter of the Municipal Code:
1. There are exceptional or extraordinary circumstances or conditions
applicable to the request
2. The exception is necessary for the preservation and enjoyment of a
substantial property right of the petitioner.
Park and Recreation Commission
Meeting Minutes, January 15, 2009
Page 2
3. The granting of the Exception will to be detrimental to the public welfare or
injurious to other property or property owners in the vicinity of the property
that is the subject of the Exception
4. The granting of the Exception will not interfere with the public use or rights
to Open Space lands.
Historically, the City has granted one Exception for Encroachment in the
1980s to allow for a private property owner to extend his underground septic
leach field into city owned Open Space. All other reqs y4% W Jere denied.
Staff asserted the circumstances in this ca:
outlined in the Municipal Code Chapter 19.
should be denied.
McCart introduced Marion Hill, owner of 81
Attorney to present the request.
Ms. Hill requested the Commis:
issue so that the improvements
remain in use as extensions, of I
Realtor's flyer advertising tF\\\hc
there were unusual circ rrlda'nc
sited:
Neil Bloomfield,
lance as; to how to resolve this
owed
g\0 \\\
She distributedn Space be he to
Ay' purchased. She stated
the Encroachment. She
• Befor she purch2�the home in 2006 she reviewed the City reports
F� la\2„\a\'X rt 11•oo\
����� Ay that 6v 11 d her to the previous lot line adjustment and
ndsc ute. \\\\ °
,,
• There was pd surve: available to review.
\\\
• She was una,, of the encroachment when she purchased the
house. Notifi"'ation of encroachment was not present in the City file or
��Ry
Structural Ins146tion reports.
he majoritJo an improvements are natural.
e backYaid of her home is primarily the pool and patio area
..
• �T e �orton of the Encroachment that contains the lawn area is her
hI" riority to retain.
• Tho"�ity should have pursued the Encroachment notice in 2000, prior
toyer purchase.
Mr. Bloomfield continued by saying there are three or four sub issues to this request.
The rock walls and lawn area are important to Ms Hill for the retention and enjoyment of
her back yard. One half acre is involved. The 2,533 s/ft that comprise the lawn area
can't be seen from other properties and no wildlife currently occupies this area of the
Encroachment. The improvements minimize the risk of fire from the Open Space to Ms.
Hill's property. The Residential Report generated by the City prior to sale of the property
indicated "all problems were solved", and alluded to the resolution of the dispute over the
side yard landscape. The presence of the deer fence
Park and Recreation Commission
Meeting Minutes, January 15, 2009
Page 3
on Open Space land may be controversial, but the improved lawn area does
not prohibit public use.
Bloomfield requested
1. A three to five year exception while a permanent solution is identified.
2. The rock walls are small, present a slight encroachment, do not effect
wildlife or people and if removed would destabilize the existing soils.
3. The irrigation of the lawn area should be permittedJo remain as it supports
the landscape and has been in place for over 20 years
4. The portion sectioned off by the deer fence should be allowed to be traded
for land identified by the City as priority for Open Space
5. The Commission should consider the lawn area, walls irngation a6d deer
fenced areas separately. \�
6. Hill did not build the deer fence, and should not ba res ponsibl' o its
removal since it is 30 feet from her property.
���o
Mr. Walter Dill, 85 McNear Drive had previously oLu�ned the property before
����_
subdividing into three residential lots The'1ariginaaWner of 81 McNear Drive
installed the improvements that encroac nto Ctyj� space. A subsequent
��V� o �,�
owner installed the landscape on tl��nct�ad area��address drainage
problems. When the home at 81 "M, ear Drrog was u i ized for the Marin Showcase
AnwO
the improvements on the Open�Space were p'rese as part of the property. The
property is landlocked. He isjtavor of the E�c4Rtion.
Space,
made
if D ���t� lot improvements encroach on City Open
Llabailier§ky what is the s¢e°a d location of the shed on the encroachment?
r`sK z
Bloomfield1fthe shed is 100' approximately and located between the deer fence
N
and the IaM' Reaea. "AO`
\\\
\\e.
Lubamersky:Wh I the value of the Open Space land affected by the
Encroachment? VF
Bloomfield: The value is arbitrary. An appraisal will be done. Proceeds from a
possible sale could be earmarked for parks projects.
Lubamersky :If and Exception is granted the City will be setting precedent
Bloomfield: Consider a 3-5 year easement
Bustillos; The letter of 2000 is troublesome in that no action followed
Yates: A 3-5 year period for resolution is acceptable
Clark: There is sympathy for the property owner as she did not realize the backyard
encroached on City Open Space. Was the City responsible for notifying her?
Park and Recreation Commission
Meeting Minutes, January 15, 2009
Page 4
McCart: No, the Residential Report prepared by the City relates to the soundness of
the systems within the home structure, not property lines.
Jones: Shall we evaluate four areas in question be separately utilizing the criteria?
Quintero: There are frequent encroachment disputes between the City and adjacent
property owners. There are 20 such cases currently. The resolution with this case
will impact others going forward. There is concern for precedeggq
The deer fence can be eliminated with no impact on Hill's home o�
Mihan: Open Space serves as visual relief, buffer between neigh
preservation, wildlife habitat and recreational opportunities. Open Space i��not
surplus land.
Hill interjected into the Commission comme�\nt§`'tilt\she understands the City's
\\\\\\\\\\O\
position and restated that the los s of the �dwn ales her primary concern. In
addition, without the deer fence, wild life ould i, rr ptQ her property and pose a
risk to her pets.
Bloomfield interjected that his iefft would a4l'l��a�r�liuction of their request to
preservation of the lawn areoQ2fty�OR
Mihan: No
the City Council deny the request for
and let Hill appd' them
LLbam�'� It was incumbebt upon the City to follow up on the letter of 2000
} Y V
abating heaencroachment. 1donation to the City for the use of the property would
be acceptat ,o`
Quintero: More`120 properties are in the same circumstance, this request is not
unique.
Warnecke: Hill is not at fault for the Encroachment, therefore criteria #2 is met in this
case.
Quintero: The Commission should consider the entire Encroachment, rather than
the suggested four parts.
Lubamersky: The Commission should consider only the lawn area since that is most
critical to the property owner
The Commission voted informally 4-3 to consider the four areas individually.
Park and Recreation Commission
Meeting Minutes, January 15, 2009
Page 5
M/s Mihan Quintero to recommend to City Council denial of Exception for
Encroachment for areas B, C &D as represented on the survey provided by the
property owner of 81 McNear.
AYES: Bustillos, Clark, Lubamersky, Mihan, Quintero, Warnecke, Yates,
NOES: None
ABSENT: None
Discussion ensued and the Commission applied the four criteria
Encroachment that Area A, or the lawn area occupies. The cone
the Commission was the portion of the encroachment that is law
extension of the backyard meets two of the four criteria for Exce
1. There are exceptional or extraordinary circumstances
request
2.T
prol
3.T
to o
the
Vote: yes no
Yates Mihan
Bustillos Lubamersky
Clark Quintero
Warnecke
Sortion of the
of the majority of
�ndscape as
to the
of a substantial
c welfare or injurious
that is the subject of
4. The granting of the exception will not interfere with public use of or rights to open
spacelands
Vote: yes no
Lubamersky Clark
Warnecke Mihan
Park and Recreation Commission
Meeting Minutes, January 15, 2009
Page 6
Yates Quintero
Bustillos
It was M/s Lubamersky/Bustillos an Exception for Encroachment be made for Area A,
Lawn based on Criteria 2 and 3 of the San Rafael Municipal Code Section 19.10
Ayes: Bustillos, Lubamersky, Warnecke, Yates
Noes: Clark, Mihan, Quintero
Absent: None
Minority Report opposing the motion of the Park and Recreation of 1/15/2009 for
an exception for the major encroachments at 81 McNear Dr.
The Open Space in question was dedicated in 1985 as part of the Peacock Gap
Neighborhood One B project.
It stated in the dedication "We further herby offer for dedication of public use and
benefit, in fee simple, for use as public open space parcel `B" upon which shall forever
be kept open and free from permanent or temporary buildings and structures of any kind,
and upon which no further resubdivision shall occur."
Further the City's stated in "Goal 30: Protected Open Space" of the City 2020 Plan:
"Retain and protect open space areas that serve as delineators between neighborhoods
and between adjacent communities, as wildlife habitat, and as visual assets for the
community. Open space areas can also function as connectors between neighborhoods,
for example with the creation of pathways in environmentally appropriate areas."
Human interaction with the open space is not the sole reason for it preservation.
The owner of 81 McNear Drive was the subject of a October 17, 2000 notice from City of
the major encroachment, fencing, landscaping, rock walls, etc. with a survey attached.
Further, City records showed that there was a land swap between the City and a prior
owner in 1989 to accommodate the then property owner's rock wall along the property
line. This appears to have been known by the present applicant as mentioned in her
counsel's correspondence on this matter. That alone would suggest constructive notice
that beyond the rock wall was not part of the home and land that she purchased in 2006.
When the present owner purchased the property she claims that the seller and realtor did
not disclose the major encroachments. Then her course of action should be against those
parties. Yet the owner showed the Commission the sales brochure upon which she relied
and bought 81 McNear Dr. it states that the house and land for sale covered .75 of an
acre. The encroachments themselves are probably another .75 acres.
As to the Charge to the Commission, it was to examine the applicant for a possible
exception under Ordinance 19.10.030 are follows:
City of San Rafael Ordinance Chapter 19.10.030 provides the basic policy statements
pertaining to Open Space under the jurisdiction of the City.
Subsection 19.10.070 provides for exceptions under which an adjacent private land
owner can occupy City dedicated Open Space.
In examining the exceptions in this case the land owner does not meet any of the
exceptions so as to merit granting relief as follows:
"(1). there are exceptional or extraordinary circumstances or conditions applicable
to the request. "
The owner of 81 McNear does not have any exceptional or extraordinary
circumstances to warrant an exception. While the applicant and her counsel argue that
the City's poor/faulty notice and records and follow up created an extraordinary
circumstance, that does not meet the requirement of this exception. Her incredible
home (the site of a Marin Designer Showcase event) includes a very large deck, a
swimming pool and spa, rock wall and a very substantial patio and appurtenant
planters and landscaping. These appear to be more than sufficient amenities to her
home. And abutting dedicated open space is an incredible and major visual amenity in
itself. Encroaching upon and taking over Open Space to further substantially enhance
her property is totally unnecessary under the circumstances.
"(2). The exception is necessary for the preservation and enjoyment of a substantial
property right of the petitioner. "
The applicant does not have a property right in the Open Space. The fact is that she,
and her predecessors, adversely occupied and continue to occupy over 33,000 sq. ft.
does not give her a property right, despite her counsel's assertion. It was never
hers, nor any of her predecessors property. The applicants substantial home,
deck/pool/patio and landscaping on her property and the exclusive use thereof is her
property right, not the Open Space.
"(3). The granting of the exception will not be detrimental to the public welfare or
injurious to other property or property owners in the vicinity of the property that is
the subject of the exception.
Granting an exception will take the Open Space out of public ownership and thus is
detrimental to the public welfare generally, will diminish the delineators between the
neighborhoods specifically, will continue to severely restrict wildlife habitat and will
reduce the visual assets of homes within the community.
"(4) The granting of the exception will not interfere with public use of or rights to
open space. "
Granting an exception for the 330,000 sq ft, or even 2500+ sq ft, to the applicant will
eliminate any possible future public use of this Open Space and forever diminish the
right of the neighbors to enjoy the Open Space as a permanent separation of homes in
this neighborhood. The encroachment now goes to within 30 feet of the yard of the
neighbor on the other side of the Open Space.
The minority report believes that if all of the home owners abutting this Open Space
were allowed to push onto the Open Space, there would be no Open Space providing
the very amenities for which this Open Space was set aside and established. The
applicant's next door neighbor who now encroaches significantly on the Open Space
spoke at the Commission meeting and most likely will be seeking an exception from
the City for the Open Space that he has fenced in adjacent to the Open Space lands
that are a part of this application. There are many other known encroachments that the
City staff is now addressing and there are most likely many other encroachments
around the City unknown at this time. To allow this encroachment and any alienation
of the title of Open Space lands will set a very bad precedent.
The minority Commissioners, while sympathetic for the applicant, do not believe that
the applicant met any of the exceptions and so dissented from the motion.
GOAL 30: PROTECTED OPEN SPACE
It is the goal ol'San Rafael to preserve and protect open space and the natural
environment for all to enjoy. Preservation ol'open space and the natural
environment More been a prim il. for San Rafael residents for many rets. 1111ienever
possihle, the naimal terrain and vegetation of the communih- should be preserved and
maimainect
OS -1. Open Space Preservation.
Preserve, dunugh a variety of methods, the open space areas identified in the
Inventory of Potential Open Space Sites (See Appendix 1). Retain and protect open
space areas that serve as delineators between neighborhoods and between adjacent
communities, as wildlife habitat, and as visual assets for the community. Open space
areas can also function as connections between neighborhoods, for example with the
creation of pathways in environmentally appropriate areas.
OS -la. Open Space Inventory. Update the Inventory of Potential Open Space Sites.
Identify and prioritize open space parcels for finite protection. Maximize the use of
available resources when assessing City involvement in securing open space by applying
the following non -prioritized evaluation criteria;
a. Environmental health and sanely issues (specifically geology and hydrology), and
potential geoseismic hazards.
b. Resource Areas and Aesthetics (visual backdrop or edge, unique site features,
shorelines/ridgelines, wetlands, wildlife habitat including wildlife movement corridors
and habitat for endangered species).
c. Importance to the community as a whole or adjoining neighborhoods.
d. Merits of alternative uses.
e. Proximity to other open space meas.
f. Recreation potential.
g. Accessibility.
h. Availability of outside financial assistance.
i. Potential maintenance and management costs and liability exposure for the City.
Responsibility; Comnnulity Development
Timeframe: Long Term
Resources: Staff Tinne, Grants
OS -1 b. Preservafion Opportunities. Through the development review process, preserve
open space areas identified on the Open Space Inventory. Encourage the dedication of
open space areas that are adjacent to public open space. Possibilities also include
acquisition of fee title or acquiring easements for preserving open space. When potential
open space is not contiguous to existing public open space, the preference is to retain the
open space in private ownership. When portions of a site are retained as private open
space, ensure the preservation and mmnagennent of that open space through appropriate
means, including required ma intenauce, as determined though development review. Work
with other public and non-profit agencies to identify sources for acquisition and
maintenance of open space.
Responsibility: Community Development, Public Works. City Manager
Timefianre: Ongoing
Resources: Pees, Grants, Donalicnns, Bonds
OS -le. Cluster Development. As part ofthe development review Process, encourage the
eluslcring of development to presene desired open space.
Responsibility: Community Development
Timeframe: Ongoing
Resources: FecsOS-2. Open Space Mmiagennent.
280 SAN RAFAEL 20201 OPEN SPACE
�� � = a m
� ` i
U � xg g
w n"c
d. Cn m m e � 8
M a
.Yi y 3� m
� � a =q
r'� O O dN � o
' � �
San Rafael
hillsides were
purchased in
the 1970s and
preserved as
open space for
perpetuity.
Maintain and manage City Open Space lands. Designate appropriate uses to specific
sites. Determine maintenance needs to address uses and the preservation of natural
amenities. Address illegal camping and campfires. disease control, erosion control,
urban/wildlife interface, recreation and other activities harmful to open space
environment, as well as vegetation management and wildlife habitat protection issues.
OS -2a. Open Space Management Plat(s). Establish a committee with representatives
from neighborhood associations, environmental organizations, user groups and other
stakeholders to prepare an Open Space Management Plants). The plan should address use
and ongoing maintenance of open space areas. The management plan should address
appropriate access points, parking areas, public information signage, trail extensions,
restoration of erosion and other degraded areas, and guidelines for the location of
amenities such as picnic tables and benches. Amend zoning provisions as needed.
Funding options should be explored and identified for open space management such as
open space maintenance assessment districts, agreements with other public agencies to,-
maintenance,
ormaintenance, neighborhood "adoption." volunteer programs, private funding and other
means.
Responsibility: Public Works, Police Department, Fire Department Connnunity
Services, Community Development
Timefi ame: Lona Tel
Resources: Statf Time, Grants, Volunteers, Donations
OS -2b. Removal of Invasive Species. Use volunteer and other
types of work crews to remove selected invasive vegetation from
open space areas.
Responsibility: Public Works
Timeframe: Ongoing
Resources: Staff Time, Volunteers
OS -2c. Diseased Vegetation. Work with County and regional
experts in finding solutions for the prevention and disposal of
diseased vegetation, such as vegetation affected by Sudden Oak
Death Syndrome.
Responsibility: Public Works
Timeframe: Ongoing
Resources: General Fund
OS -2d. Illegal Encampments. Continue to work with private
and public property owners to identify and remove illegal
encampments in open space areas.
Responsibility: Police, Fire, Community Development
Timeframe: Ongoing
Resources: Staff Time, Fines
See CON -15a Onvasive Plant Ordinance), CON- l5b (Removal of Invasive Species on
Private Property) and CON -15c (Removal of Invasive Species on Public Property).
OS -3. Open Space Use.
Protect told preserve the natural value of open space and wildlife habitat areas while
permitting educational and recreational uses compatible with these resources. Specific
use objectives include:
a. Open space areas should be maintained in a nalur.d state.
b. Open space areas are a community resource for use and enjoyment by the
residents of San Rafael.
c. Uses of open space areas shall be secondary to open space preservation, and
limited to those uses with a minimal impact on the environment.
282 SAN RAFAEL 2020/OPEN SPACE
OS -3a. Management of Private Open Space. In designating open space as part of a
development project or with the dedication of land for open space, identify limitations to
uses in those areas, such as restrictions on ornamental landscaping, structures and fences.
Responsibility: Connnunity Development
Timeti'ame: Ongoing
Resources: Fees
See OS -2a (Open Space Management Plans).
OS -4. Access to Open Space.
Encourage provision of access to open space areas in the design of adjacent
development. Secure access Baths shown on Exhibit 34 as part of subdivision
approvals and design access paths to avoid or minimize neighborhood and user
conflicts with sensitive wildlife habitat areas.
OS -4a. Access Points. Through the development review process, identify access points
and parking areas to be retained and required improvements.
Responsibility: Community Development
T i nl e fira I n e: Ongoing
Resources: Nees
05-5. Coordination with Other Jurisdictions.
Coordinate San Rafael's open space system with adjacent cities, Marin County, the
State, and regional and private open space systems.
OS -5a. Coordination with Other Jurisdictions. Continue to work with public agencies
managing open space within the San Rafael Planning Area to ensure a coordinated system.
Responsibility: City Manager, Public Works
Timeiiame: Ongoing
Resources: Staff Time
OS -6. Utilities in Open Space.
Discourage utilities in open space areas. Necessary utilities in open space should be
located and designed to minimize harm to the area's environmental and visual quality.
OS -6a. Utilities in Open Space. Use zoning ordinance provisions and the design and
environmental review processes to evaluate the location and design of public utilities.
Responsibility: Community Development
Timeframe: Ongoing
Resources: Fees
OS -7. Public Education.
Provide education programs to residents about wildlife, fire hazard, watershed
protection and open space habitat.
OS -7a. Public Education. Continue outreach and public education. Examples include the
dissemination of educational materials and programs related to %%ildland fire prevention,
feral cats, and Marin County StorniNvater Pollution Prevention Program (MCSTOPPP)
requirements.
Responsibility: Fire, Public Works
Timeframe. Ongoing
Resources: Staff Time, Grants
SAID RAFAEL 2020 / OPEN SPACE 283
k
CITY OF SAN RAFAEL
NOTICE OF PUBLIC HEARING
The City Council of the City of San Rafael will hold a public hearing:
PURPOSE: To receive public comments on the request for an exception to
San Rafael Municipal Code Section 19.10 for encroachment
upon City Open Space for the installation of private
improvements serving 81 McNear Drive.
DATE/TIME/PLACE: Monday, May 4, 2009 at 8:00 PM in the City Council Chamber,
City Hall, 1400 Fifth Avenue, San Rafael.
WHAT WILL HAPPEN: You may comment on the issue. The City Council will consider
all public testimony and will then decide whether to approve or
deny the exception to the Municipal Code.
IF YOU CANNOT ATTEND: You may send a letter to Esther C. Beime, City Clerk, City of
San Rafael, Room 209, P.O. Box 151560, San Rafael, CA
94915-1560. You may also hand deliver a letter prior to the
meeting.
FOR MORE INFORMATION: You may contact Parviz Mokhtari, Director of Public Works at
(415) 485-3359. Office hours are Monday through Friday, 8:00
a.m. to 4:30 p.m., 111 Morphew Street, San Rafael, CA.
SAN RAFAEL CITY COUNCIL
/s/ Esther C. Beirne
ESTHER C. BEIRNE, City Clerk
(Please publish in the Marin Independent Journal on April 24, 2009.)
CITY OF SAN RAFAEL
NOTICE OF RE -SCHEDULED PUBLIC HEARING
EXCEPTION REQUEST FOR OPEN SPACE ENCROACHMENT
SERVING 81 McNEAR DRIVE
Notice is hereby given that the public hearing previously scheduled for May 4, 2009 at 8:00 p.m.,
has been re -scheduled before the City Council of the City of San Rafael on May 18, 2009, at
8:00 p.m., as follows:
PURPOSE: To receive public comments on the request for an exception
under San Rafael Municipal Code Section 19.10.070 for an
encroachment upon City Open Space for the installation of
private improvements serving 81 McNear Drive, including but
not limited to landscaping and irrigation, walls, a storage shed,
and fencing, covering approximately 31,000 square feet.
DATE/TIME/PLACE: Monday, May 18, 2009 at 8:00 PM in the City Council
Chamber, City Hall, 1400 Fifth Avenue, San Rafael.
WHAT WILL HAPPEN: You may comment on the issue. The City Council will consider
all public testimony and will then decide whether to approve or
deny the exception under the Municipal Code.
IF YOU CANNOT You may send a letter to Esther C. Beirne, City Clerk, City of
ATTEND: San Rafael, Room 209, P.O. Box 151560, San Rafael, CA
94915-1560. You may also hand deliver a letter prior to the
meeting.
FOR MORE You may contact Parviz Mokhtari, Director of Public Works at
INFORMATION: (415) 485-3359. Office hours are Monday through Friday, 8:00
a.m, to 4:30 p.m., 111 Morphew Street, San Rafael, CA.
SAN RAFAEL CITY COUNCIL
/s/ Esther C. Beirne
ESTHER C. BEIRNE, City Clerk
(Please publish in the Marin Independent Journal on Aril 29. 2009.)
CITY OF SAN RAFAEL
CORRECTED NOTICE OF RE -SCHEDULED PUBLIC HEARING
EXCEPTION REQUEST FOR OPEN SPACE ENCROACHMENT
SERVING 81 McNEAR DRIVE
Notice is hereby given that the public hearing previously scheduled for May 4, 2009 at 8:00 p.m.,
has been re -scheduled before the City Council of the City of San Rafael on May 18, 2009, at
8:00 p.m., as follows:
PURPOSE: To receive public comments on the request for an exception(s)
under San Rafael Municipal Code Section 19.10.070 to legalize
existing encroachments upon City Open Space of private
improvements serving 81 McNear Drive, including but not
limited to landscaping and irrigation, walls, a storage shed, and
fencing, covering up to approximately 22,250 square feet.
DATEJTIME/PLACE: Monday, May 18, 2009 at 8:00 PM in the City Council
Chamber, City Hall, 1400 Fifth Avenue, San Rafael.
WHAT WILL HAPPEN: You may comment on the issue. The City Council will consider
all public testimony and will then decide whether to approve or
deny the exception under the Municipal Code.
IF YOU CANNOT You may send a letter to Esther C. Beirne, City Clerk, City of
ATTEND: San Rafael, Room 209, P.O. Box 151560, San Rafael, CA
94915-1560. You may also hand deliver a letter prior to the
meeting.
FOR MORE You may contact Parviz Mokhtari, Director of Public Works at
INFORMATION: (415) 485-3359. Office hours are Monday through Friday, 8:00
a.m. to 4:30 p.m., 111 Morphew Street, San Rafael, CA.
SAN RAFAEL CITY COUNCIL
/s/ Esther C. Beirne
ESTHER C. BEIRNE, City Clerk
(Please publish in the Marin Independent Journal on May8, 2009.)
I
'4ay.14.2009 10:57 AM
May 13, 2009
Parviz Mokhtari
Director, Public Works
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
Re: Encroachment at 81 McNear Drive
Dear Mr. Mokhtari:
PAGE. 1/ 2
I am writing this letter to protest the exception of encroachment
existing at 81 McNear Drive. My home backs up to the land in
question and can' t believe that this issue has gone on for so many
years. I can't understand how this has gotten so out of hand. The
former owners were told to abate the encroachment many years ago
and I don't understand why this was not addressed and enforced
back then. If there is an issue of the City not enforcing the
abatement, we will be happy to offer to volunteer to take the fence
down.
Last year when the owners at 81 McNear Drive were cutting precious
trees in Open Space most likely to improve their view, we were told
that something was happening back there but had always been under
the impression that this land belonged to the homeowner. We have
always been in accordance with the San Rafael Fire Department
maintaining our land and even some of the Open Space to create a
defensible space for fire safety.
I am the original owner of this property since 1972, moved here from
a ghetto neighborhood in Boston, Mass. I lived in a closed in space
concrete and made my move here to Marin County because I loved
the idea of seeing the beauty of the open space, trees and wildlife. I
highly resent the idea that these neighbors seem to have the
Y3y.14.2009 10:57 AM PAGE. 2/ 2
entitlement to pass over what the City of San Rafael told them to
abate the encroachment last year.
One of my biggest concerns is that the fence that is sitting on the
open space offers no access for evacuation incase of a Wildland
Fire. The fence has closed off all means of escape for many of the
neighbors that back up to this land in violation.
Sincerely,
Jeffrey Snyder
63 Driftwood Court
San Rafael, CA 94901
415-456-1554
LAW OFFICE OF DONALD J. FARBER RECEIVER CITY
A PROFESSIONAL CO-RPORATION CITY OF SAN R)
175 NORTH REDWOOD DRIVE, SUITE 130 M+
SAN RAFAEL, CALIFORNIA 94903 2009 MAYII AIN
PH (415) 472-7181 FAX (415) 472-7182
WWW . D O N F A R B E R .COM EMAIL : N 3 D G T @AOL . C O M
Esther C. Beirne, City Clerk May 6, 2009 MAY 0 6 2009
City of San Rafael
Room 209, P.O. Box 151560
San Rafael, CA
94915-1560
Re: Objection to "Exception Request for Open Space Encroachment Serving 81
McNear Drive. To Be Considered at May 18, 2009 City Council Meeting
Dear City Clerk:
Having been noticed by mail of the aforesaid Request for Exception, I object to any
grant of the exception. Please convey this letter to all members of the City Council prior to
May 18, 2009. Thank you.
Residing a few hundred yards from the proposed exception at 56 Driftwood Court, I
contend the burden of proof is on the petitioner to establish a community rather than a
private—interest in proceeding with the encroachment. No such community interest has
been shown to prevail. In particular, "walls, a storage shed, and fencing" will privatize City
Open Space, and inhibit others from using such accesses.
City Code § 19.10.070 imposes a high burden on the petitioner to warrant the
exception. By the terms of the ordinance, the descriptive request fails on all counts. The
ordinance provisions ate cited below, with the undersigned's commentary following each in
emboldened print Noteworthy is that all four subsections below in their entirety must be
satisfied before any exception is granted.
19.10.070 Exceptions.
(a) Where practical difficulties, unnecessary hardships or results
inconsistent with the general purpose of this chapter may result from the
strict application of its provisions, exceptions may be granted as provided
in this section.
(b) On appeal, the city council may grant an exception from the express
terms of this chapter by making the following findings:
(1) There are exceptional or extraordinary circumstances or conditions
applicable to the request; (No "exceptional or extraordinary" ,
circumstances have been shown, or if they have, they have been
-2— May 7, 2009
around this "hillside" for decades with no apparent harm to the
community.)
(2) The exception is necessary for the preservation and enjoyment of a
substantial property right of the petitioner; (the word "preservation"
implies the petitioner's vested property rights, in the context of "walls,
a storage shed, and fencing" are being encroached upon by others. If
appears the opposite is true, i.e. the property interest of the petitioner,
once expanded, will encroach upon community access).
(3) The granting of the exception will not be detrimental to the public
welfare or injurious to other property or property owners in the vicinity of
the property that is the subject of the exception; (the "fence" itself is
detrimental to others' access, and is a breach of the concept of "Open
Space."
(4) The granting of the exception will not interfere with public use of or
rights to open space lands. (Same as 11(3)")
This is a simple case in which the Law sets a high standard of public interest
before it may be contravened for private purposes. City council members are sworn to
protect the public interest, and the law, and a vote to grant an exception where no
exception is warranted by the facial terms of the law would, in this citizens' view, be
contrary to good governance and the needs of the City of San Rafael.
I thank all members of the City Council for their consideration.on this matter.
Sincerely
VWW4L
Donald J. Farber w
at I AYa
56 Driftwood Court
ldar No. t84t3'
San Rafael, CA
94901
MAR1N ✓if-i�
CONSERVATION
-o-LEAGUE
April 28, 2009
City Council
City of San Rafael
1400 Fifth Avenue
P.O. Box #151560
San Rafael, California 94915-1560
Re: Encroachment into City Open Space at 81 McNear Drive
Dear Council Members:
Marin Conservation League has been active in preserving and protecting park and open space
lands in Marin County for 75 years. We are fully aware of the challenges that each acquisition
of open space entails, often involving extended negotiations and large volunteer efforts by
communities and neighborhoods. We are also aware of the value to the public that each open
space provides as visual and recreational amenity. Even relatively small areas of open space
provide diverse wildlife habitats within neighborhoods and access to larger areas of open space.
The City of San Rafael has invested enormous effort and funds to secure these lands, and they
are essential to the City's character.
For these reasons, we believe that public open space must be preserved and protected from
encroachments by private landowners and therefore urge you to uphold your staff
recommendation and deny the request for an Exception to Encroachment at 81 McNear Drive.
We are aware that the City issued a Cease and Desist Order in May 2008 to abate the existing
encroachment. The encroachment apparently had extended, in piecemeal fashion, into the
adjacent open space lands over a period of years, giving the successive property owners a false
sense of entitlement to the open lands beyond the residence.
In this case, the property owner requested that the City grant an Exception based upon the four
criteria contained in the Open Space Chapter of the City's Municipal Code. While the Park and
Recreation Commission found that a portion of the encroachment in Area A (the lawn) might
meet the criteria for granting an exception, we believe that this may not be in the long-term
interests of the City. Granting an encroachment exception provides the property owner and
future owners strong arguments that the city could be equitably estopped from exercising
rights against them in the future. Such action is akin to issuing a permanent private use permit
on public lands. This would also set a precedent for other similar encroachments into City -
owned open space.
:xs.�zsr
. - .marl nc n RSLI .It4t n lragii .org .. _.
Therefore, we urge the City to uphold the policies under Goal 30 (Protected Open Space) of the
General Plan, deny the applicant any exception to the encroachment, and proceed to enforce its
Cease and Desist Order of abatement.
Si�s
Nona Dennis
President
cc: Carlene McCart, Director of Community Services, City of San Rafael
4 }}
April 18, 2009
CI TY Ur '!'J4 6AFAEt
Ms. Susan L. Adams
Marin County Offices
3501 Civic Center Drive
San Rafael, CA 94903
Re: Environmental concerns on San Rafael City Open Spaces
Dear Ms. Adams:
I have received a notice of public hearing from the City of San Rafael that the Public Works
Department is considering an exception to Code 19.10 for a private individual to undertake private
improvements encroaching on City Open Space land. While this may be an issue for which you may
have no control, I nevertheless bring it to your attention. My concern is that my house and property
is located at the bottom of a steep hill that is being considered for an exception to code 19.10 and
what impact the decision may have environmentally on future land erosion, land slides, flooding and
destruction of live oak trees.
If there is any advice that you may give me and/or what my options may be to dissuade the Public
Works Department and the San Rafael City Council from approving this unusual request, I would
appreciate hearing from you.
Enclosed please find the letter from the Public Works Department.
Thank you for any advice you may lend to this matter.
Sincerel,
Jjo one6wod Court
ael, CA 94901
Apri118,2009
Environmental Department
Marin County Office
3501 Civic Center Drive
San Rafael, CA 94903
Re: Environmental concern in San Rafael
To Whom It May Concern:
I have received notice of public hearing from the City of San Rafael that the Public Works
Department is considering an exception to Code 19.10 for a private individual to undertake private
improvements encroaching on 31000 feet of City Open Space land.
I am concerned that should the City Council approve this unusual request that clearing of land and
making whatever improvements are planned may have a detrimental impact on the existing land
through eventual erosion, landslides and flooding, as well as destruction of live oak trees.
As my home and property is located at the bottom of a steep hill where the encroachment is to take
place on top, I am wondering if an environmental evaluation should be made to determine what long
term effect this may have on the surrounding neighborhood?
Thank you for any consideration you may give to this request.
Sincerel ,
Jo one
60 ood Court
San el, CA 94901
Mayor
CITY OF !%+ J Albert J. corn
'1 Council Members
I VGreg Brockbank
Damon Connolly
Barbara Hefter
Cyr N_ Miller
)epartment of Public Works, 415 -485 -3355 -Fax (415) 4853334
April 14, 2009
NOTICE OF PUBLIC HEARING — CITY COUNCIL
You are invited to attend the City Council hearing on the following proposed project
3UBLIC HEARING ITEM: 81 McNear Drive, request
thrXcepoon to wner Rafael
McN arr Drivehas 910 for
:ncroachment of private improvements upon City peSpace-The
- ricroa ed an exception to the San Rafael Municipal Code for the installation of private improvements
f uppricluding. but
approximately 3mited to square landscaping
City Open on, walls.
lland.�orege shed, and fencing, covering an area
MEETING DATEIflMEILOCATION: Monday, May 4, 2009, 8:00 p.m. City Council Chambers,1400 Fifth
Avenue at D St, San Rafael, CA
FOR MORE INFORMATION: Contact Parvlz Mokhtari, Director of Public Works, at (415) 4853359 or
Parviz.mokhtari@cityofsanrafael.org. You can also come to the Public Works Department located at 111
Morphew Street from 8:00 B.ffL to 5:00 p.m., weekdays. The staff report may be reviewed after 5:00 p.m. on
the Friday before the meeting at
_.,._.. . e„rrrrtv (Ierk/City Council Redevelopment Agency Agendas.htm.
rovementa on
WHAT en Sp ce The City CN: Youou cill wi► consideril public testimony and decide whether to approve ord deny
comment on the proposed encroachment Of Private imp
City Op
the encroachment
IF YOU CANNOT ATTEND: You can send a letter to the City of San Rafael, Public Works Department, 111
Morphew Street, San Rafael, CA 94915. You can also hand deliver it prior to the meeting.
and all
rs received will be noted Interested parties will be heard. If you challenge in
At the above time and place, all letters be limited to raising only those issues you or someone else raised at the
court the matter described above. you may ndence derwered at, or prior to, the above referenced
public hearing described in this notice, or in wrtlten correspond
public hearing (Government Code Section 65009 (b) (2)).
Judicial review of an administrative decision of the City Council must be filed with the court not later than the 90"' day
following the date of the Council's decision. (Code of Civil Procedure Section
e do used y calling (415) 485 3085 (+mice)
3tgn Language and interpretation and assisfiva Crstenirrg devkes may reg
or (415) 465.3198 (TDD) at least 72 hours in advance. Copies of documents are avarilable In accessible fomrats upon
request
Public Gansportation to City Hall is available through Golden Gate Transit, Line 22 or 23. Para -transit is available by
calling Whistiestop Wheels at (415) 454-0964. to attend the meeting/hearing,
To allow individuals with environmental illness °r p �u sensitivity
individuals are requested to refrain from wearing
scented 111 Morphew St, P.O. Box 151560, San Rafael, CA 94915-1560
RECEIVED CITY CLERK
CITY OF SAN RAFAEL
1009 MAY 13 AM 10: 16
May 9, 2009
Esther C. Beirne, City Clerk
City of San Rafael
Room 209, P.O. Box 151560
San Rafael, CA 94915-1560
Re: Objection to Exception Request for Open Space Encroachment Serving 8l McNear Drive.
To Whom It May Concern:
A rumor is circulating in my neighborhood that the occupant at 81 McNear Drive is now putting
forward a request to exchange open space in that area for open space in another part of San Rafael.
If indeed that rumor should be true, I am astonished that a proposal of that nature should even be
considered by the City Council. Should such an exchange be granted, it will confurn the old adage
that money talks. There is a saying by Benjamin Franklin: "He that is of the opinion money will do
everything may well be suspected ofdoing everything for money." I do hope did wisdom will prevail
with the City Council members and that they will not fall victim to the whims ofthe wealthy. Should
you approve apossible exchange ofopen space, I believe that it could encourage many others seeking
expansion of their property on open space to present their case to City Council. Surely there was a
purpose in establishing Open Space Code 19.10 for the benefit of all citizens of San Rafael?
I strongly recommend that the City Council decline anyrequest for encroachment or exchange ofopen
space concerning the request from 81 McNear Drive.
Thank you for your consideration to this request.
60 Driftwood Court
San Rafael, CA
RECEIVED
April 27, 2009 (.JAY - 4 2009
Mr. Pariv Mokhtari PUBLIC WORKS DEPT.
r,ITY OF SAN RAFAEL
Director of Public Works
City of San Rafael
111 Morphew Steet
San Rafael, CA 94915-1560
Re: 81 McNear Drive request for exception to Code 19.10
Dear Mr. Mokhtari,
My husband and I have lived in our home at 64 Driftwood Ct for over thirty
years. About twenty years ago, my husband noted that trees had been cut
down in the open space. We reported it to the Parks and Recreation
Department but nothing seems to have been done to prevent further
construction in the area.
Open space, according to Mr. Ralph Mihan, serves as visual relief between
neighborhoods, land preservation, wildlife habitat, and for recreational
opportunities. Open space is not surplus land.
Should the owner of 81 McNear Dr., claiming that she was not aware of the
land encroachment when she purchased the house, expect her neighbors to
pay for her mistake? We strongly oppose the request of the owner of 81
McNear Dr. for an exception for encroachment of open space and we thank
you and the city for including our opinions on the matter.
Regards,
Jennifer Glass
64 Driftwood Ct.
(415)454-4090
RECEIVED CITY CLERK
CITY OF SAN RAFAEL
2009 APR 34 AM 9: 38
April 30, 2009
Esther C. Beirne
City Clerk
City of San Rafael
P.O. Boz 151560
San Rafael, CA 94915-1560
Re: notice of re -scheduling for open space encroachment
To Whom It May Concern:
I believe it inconsiderate on the part of the city to re -schedule the public hearing
meeting previously scheduled for May 4, two weeks later.
I purposely canceled a business trip so that I could attend the May 4 meeting and
I believe it is unfair to give such short notice of change of date.
Adding to this insult on your part, it has come to my attention that the May 4
date was inconvenient to Mrs. Hill at 81 McNear Drive. Poof again that those
living in multimillion dollar homes are the privileged citizens of San Rafael.
Please stop procrastinating on this issue!
Sincerely,
John Semone
,60 Driftwood Court
City of San Rafael
Public Works Department
111 Morphew Street
San Rafael, CA 94915
RECEIVED
APR 2 9 2009
PUBLIC WORKS DEPT.
CITY OF SAN RAFAEL
Re: Encroachment of Open Space Code 19.10 at.81 McNear Drive
To Whom It May Concern:
With the pending issue of granting 31000 feet of open space to the occupants
at 81 McNear Drive at the San Rafael City Council meeting on May 4, 2009, I
object to allowing any encroachment on City Open Space.
Open Space is designated for the preservation of the beauty of the land, not
for anyone to take over property for purposes of improving the size of their
land. As a homeowner living on Driftwood Court below the proposed land in
question, I feel that any further work done in the area, such as tree clearing,
irrigation improvements, construction of buildings and walls would
undermine the integrity of the land that has been preserved for Open Space.
It is also concerning that any intrusion on this open space may create
excessive runoff and flooding that could endanger the lower areas on
Driftwood Court. Live oak trees abound in this area and any disruption of
the land could endanger these native California trees
It is my understanding that the home in question at 81 McNear Drive has
already illegally installed fencing and a wooden structure on this designated
Open Space and any further encroachment should not be allowed. Please do
not open the floodgate for this and further exceptions that may come your
way concerning Open Space Code 19.10.
April 18, 2009
Mr. Parviz Mokhtari
Director of Public Works
City of San Rafael
111 Morphew Street
San Rafael, CA 94915-1560
Re: 81 McNear Drive request for exception to Code 19.10
Dear Mr. Mokhtari
My wife and I have your notice ofpublic hearing scheduled for Monday, May 4 concerning a request
from the owner of 81 McNear Drive for an exception to San Rafael Municipal Code 19.10 for
encroachment ofprivate improvements upon City Open Space audwe strongly object tothose
plans. Further, we are shocked and dismayed that the City of San Rafael would even consider
making an exception to Code 19.10.
We believe that any change or clearing of trees and undergrowth to the existing open space being
considered may well undermine the steep hillside and create flooding and erosion to our land and
the surrounding lower area over time with extensive rainfall. As it currently is, it is not uncommon
to experience flooding on our property and the surrounding area on Driftwood Court during heavy
rainfall. It should also be noted that there are a number of live oak trees on this hillside that could
be endangered over time and erosion.
It is with deep concern and disappointment that the City of San Rafael would be taking this request
seriously and allowing it to reach a city council meeting. Let the Council know that we are
very much opposed to this request for exception.
l
Since elf,
Gerlinde and Jo Semon
60 Driftwogd~Court
San Rafael, CA 94901
April 20, 2009
San Rafael Park and Recreation Commission
City Hall
1400 Fifth Avenue
San Rafael, CA 94901
Re: Meeting Minutes January 18, 2009
To Whom It May Concern:
I have just read the minutes of your meeting on January 18, 2009 and must admit to great
surprise that you are considering a request for exception for encroachments on city open space
by Marion Hill, owner of 81 McNear Drive. Any exception to code 19.10 opens a pandora's box
for an exception to the current 20 requests that are pending. This is a dangerous precedent which
will lead to more unnecessary bureaucratic paperwork and backlog for the City of San Rafael.
My home is situated at the bottom of a steep hill, below where 81 McNear Drive is located.
While objecting to the exception you are considering for 81 McNear Drive, I am further
concerned that any change that may take place in the open space area could, over time, create
erosion, possible landslides and additional flooding. We already experience flooding during
heavy downpours and clearing of wooded open space could exacerbate those conditions. I might
add that the dog at 81 McNear Drive barks consistently and is an irritant to my wife and fellow
neighbors. I also note that an 8 foot fence was constructed a number of years ago surrounding
the property of 81 and an illegal shed is located in the open space area. How has that been
allowed?
I am stunned that you have allowed this matter to reach a decision by the City Council and do
believe your time would be better spent on matters that impact a greater majority of the
population of San Rafael.
60 Drittwood Court
San Rafael, CA 94901
cc: Public Works Department
Mayor Albert J. Bono
April 23, 2009
Open Letter to San Rafael City Council Members:
Mayor Albert J. Born -P�
Barbara Heller
Cyr N. Miller
Damon Connolly
Greg Brockbank
CITOfSRLY AN AFAE
1009 APR 21 AM 9! 58
Re: Notice of Public Hearing concerning San Rafael Municipal Code 19.10
Dear Council Members:
It has come to my attention that a public hearing item concerning 81 McNear Drive,
requesting exception to San Rafael Municipal Code 19.10 for encroachment of private
improvements upon City Open Space, is to be discussed at your May 4 meeting. I strongly
urge you to give careful consideration to any exception you may make on encroachment to
open space. Should you approve this exception, I believe it will open the flood gates for
similar requests that are currently pending. As you well know, what makes San Rafael and
Marin County so special is the unique preservation of open space. Please protect our open
space and do not allow any exception to an established code.
It should be noted that several of the multimillion dollar homes located on McNear Drive
have already installed fencing and a wooden structure illegally in the open space to be
discussed at your meeting. Your approval will only encourage those individuals and others
to flout the rules concerning Code 19.10.
As responsible Council Members, I urge you to review closely the issue of Open Space and
what impact an exception may have on our community.
Sincerely,
0JAB A. Semone
Driftwood Court
San Rafael, CA 94901
Page 1 of 1
Diane Wachter
From: gloria snyder [cabolovers2000@yahoo.com]
Posted At: Thursday, April 23, 2009 5:56 PM
Conversation: Public Hearing Meeting May 4th - Regarding Exception to Municipal Code 19.10 at 81 McNear Drive
Posted To: Public Works Mail
Subject: Public Hearing Meeting May 4th - Regarding Exception to Municipal Code 19.10 at 81 McNear Drive
It May To Whom Concern:
I am in receipt of notice of public hearing for May 4, 2009 with regard to allow encrochment on city open space. This property
is directly located behind my home which is at 63 Driftwood Court. f am the original owner of this property since 1972. This
space has always been open and the home in question asking for this allowance should not be granted this exception. For
one thing these people have been wanting to cut trees on the open space since last year. We have been told by the Fire
Department that the property which is designated as open space was maintained by the City but due to lack of funding they
have not been doing this for a long time. As very responsible homeowners of record, we have maintained this area for many
years, creating defensible areas for fire prevention. These people have never done one thing beyond the boundaries of the
fence that they have currently to create defensible fire space. How much more land do these people need? We walked
behind our home with the City of San Rafael Fire Chief up at our property last year to discuss our land and the creation of
defenisble space. We have done over and above the necessary improvements to help with fire prevention.
There is a drainage ditch up'behind the property that has never been cleared and we believe that since it was stopped being
maintained by the city that water retention from years of extensive rain has caused trees to have rotted and fallen down. The
other neighbors in question on Driftwood Court are in opposition to this encroachment granting are maintaining the clearing of
the drainage area. These people who own 81 McNear Drive again have never made any attempt to do anything beyond their
current fenceline. Why now should they be given the land to do with whatever they wish? If that is the case, we propose that
we take over the Open Space ourselves because we have been the only people that have maintained that open space for
many years. It should go to the people who care about the land not want to have more area to build on.
Also, please check the records from the San Rafael Police Department six weeks ago when we had to have the police
department come up to our home because the Hill's son was sitting by the fenceline with a pair of binoculars watching my
husband and myself take a hot tub. This is on the record with the police department. They went up to the home at 81 McNear
and spoke to the wife. We have an invasion of privacy going on here and are not pleased to hear that these same people
want to take over more property to have their son watch us from a closer vantage point?
Has the City of San Rafael considered that if these people come in and start cutting trees, and building walls around their
property how it will impact the possible slippage of the land and what will happen to the neighbors trees and land below this
land in question? What about the noise a cement wall will cause from the passing by trucks back and forth down San Pedro
Road and in the canyon behind the McNear address.
I implore the City of San Rafael to stop this request and deny this encroachment of our beloved land. I know that if it was in
your back yard you would never even have brought this to the City Council for consideration.
Sincerely,
Jeffrey and Gloria Snyder
63 Driftwood Court
San Rafael, CA 94901
4/24/2009
April 27, 2009
Mr. Pariv Mokhtari
Director of Public Works
City of San Rafael
111 Morphew Steet
San Rafael, CA 94915-1560
Re: 81 McNear Drive request for exception to Code 19.10
'RECEIVED
MAY - 4 2009
PUBLIC WORKS DEPT.
CITY OF SAN RAFAEL
Dear Mr. Mokhtari,
Having once been the victim of an unethical real estate salesman, I feel for
anyone that has been misinformed by previous owners, which seems to be
Ms. Hill's problem.
Unfortunately I am unable to attend your hearing because of a series of
problems brought on by old age, however: I first complained to the city of
San Rafael early on about the removal of a berm some six feet high and ten
feet wide that straddled what then the rear property line of #61.
Prior to it's removal during the construction of Ms. Hill's home, said berm
had protected those of us living below the open space from massive run off
during periods of heavy rain.
Though my protest had been ignored, I protested a second time when the
fence builders threw a wide loop in the fence (31,00 square feet is 3/4 of an
acre) and the larger trees contained therin were cut down.
Regards,
W.J. Glaeod
64 DriCt.
(415) 454-4090
RECEIVED
h4hY 13 20019
PUBLIC WORKS DEPT.
tarviz Mokhtari, Public Works Director CITY OF SAN RAFAEL
Ralph Mihan, Parks and Recreation Commission Chair
City of San Rafael
Parks and Recreation Commission
111 Morphew Street
San Rafael, CA 94915
Re: Encroachment of Municipal Code 19.10 at 81 McNear Drive
Dear Sirs:
With issue to upcoming vote of the San Rafael City Council, i object to the granting of this
encroachment of City Open Space.
Open Space is designated for preservation of the beauty of the land, not for anyone to take over
property for purposes of improving the size of their land. One land swap was already negotiated
for this property for support of the pool and retaining wall. An additional extension to include the
installed fencing and wooden structure is excessive.
As a recent newcomer to this neighborhood (I am a 10 year resident of Marin), I appreciate the
conflict that Ms. Hill finds herself in as I experienced similar confusion with property lines that
was discovered after my home purchase. As a result, I support her request to consider the lawn
area, deer fence and wooden structure separately.
As a Marin resident on the near -by Driftwood Court, I am concerned about maintaining the open
spaces that make Marin such a desirable place to live and the dangerous precedent this may
set. Please help to protect Marin from future encroachments.
S-cerely,
„^ ,
(�
Susan Gardella
61 Driftwood Ct
San Rafael, CA 94941
LAW OFFICES OF
NEIL JON BLOOMFIELD
TELEPHONE 901 E STREET # 100 FACSIMILE
(415) 454-2294 SAN RAFAEL, CALIFORNIA 94901 (415) 457-5348
May 11, 2009
To City Council members Greg Brockbank, Barbara Heller, and Damon Connolly; Vice
Mayor Cyr Miller, and Mayor Al Boro, and to Parviz Mokhtari, Acting Director of
Public Works
Re: 81 McNear Drive (APN 186-470-99) Request for Exception Under Section
19.10.070—Minor Landscaping, Rock Wall, and Deer Fence encroachments
in a small portion of 33 acre open space parcel at a dead end steep edge
of open space (Open Space AP 186-530-68)
Dear Council Members, Vice Mayor and Mayor, and
Acting Director Mokhtari:
I represent Marion Hill in connection with 81 McNear Drive, San Rafael. By this
letter, Marion Hill is requesting that the City Council take 5 distinct actions:
1. Grant an exception to the lawn area A and also to lot line adjustment area 2 A
and 2 B for the existing lawn and rock wall use that has been on the property
that Marion Hill own since more than 18 years, and more than 16 years since
she acquired the property not knowing of encroachment issues (2718 sq
ft.).The Park and Recreation Commission voted 4-3 to grant this exception;
2. Grant an exception also to the Area B, for the existing landscaping(4488
square feet). The Park and Recreation Commission voted to deny this
exception.
3. Approve discussions towards a trade of open space lands, for a permanent
change of ownership of areas A B and C as described above (21,946 square
feet), and instruct staff to conduct those discussions with Marion Hill, and or
the purchase of said land as surplus land along with a funding to the City to
acquire additional space by the applicant;
4. Express support for the very small minor lot line adjustment that Marion Hill is
submitting to swap areas 2 A and 2B for area 1, as shown on the attached
Marion Hill Request for Exception and Related Requests 5-11-09 Page 1
map, except if it becomes moot by a larger swap of open space land (this
does not solve many of the problems, only one minor problem)(see attached
5-11-09 letter to City Engineer Karen Chew); and
5. Approve a suspension of enforcement activity on Areas A, B, and C until the
discussions and official actions related to 1,2,3, and 4.
The exception is requested pursuant to Section 19.10.070 of the San Rafael
Ordinance 1198. The actions 3, 4, and 5 are partially related. Unfortunately, with
each member of City staff having a defined area, and with no defined policy for
guidance on 3, and perhaps even 4, discussions on 3 and 4 are difficult without an
expression of support by the City Council. Marion Hill and my office have requested
meetings to discuss 1,2, 3, 4, and 5, with Public Works and with the City Manager,
and these requests for meetings have been deflected, and avoided, and/or refused,
so some help is needed with them from the City Council.
By this letter, Ms. Hill submits that practical difficulties, unnecessary hardships, and
results inconsistent with the general purpose of the open space ordinance would
result from strict application of these provisions, so she would like an exception.
Petitioner realizes that exceptions are relatively unusual, but in her special
circumstances they are warranted, based on the City's own guidelines.
Petitioner is an innocent victim in this matter. She purchased reasonably believing
there was no open space encroachment. There is no real public access and the area
is not visible to neighbors. The only actions that Petitioner has taken in this regard is
to remove dead vegetation threatening her house with fire danger, as mandated by
the fire department. The City has no budget to do this, and being just uphill from the
dead vegetation, it was an extreme fire threat to Petitioner. Petitioner has made a
number of win-win proposals to staff, and is hoping the City Council will be helpful in
this regard. The House was the 2002 Marin Designer Showcase Home,when owned
by prior owner Jesse Rhodes. The public and the showcase staff all utilized the lawn
area as part of the property, as did every owner, long prior to its sale to Petitioner.
A. Exact exception requested:
The exact exception Petitioner is requesting is that (1) that she be granted a
permanent exception for Areas A and 2 A; (2) that she be granted a 5-7 year
exception for area B; (3) that the City suspend any requests to abate the small
portions of the old rock wall that might (or might not) be presently encroaching on
open space; and (4)that the City suspend requests to abate the lawn, irrigation,
shed, and deer fence as well, for a period of 5-7 years. While it is not per se an
Marion Hill Request for Exception and Related Requests 5-11-09 Page 2
exception, Petitioner also requests an expression of support for the lot line
adjustment to cover the rock wall, and also an expression of support for exploratory
talks for a swap for a slightly larger amount of open space land not immediately
contiguous to Petitioner's property. Petitioner will at the same time use her best
efforts to arrange and complete a lot line adjustment, land swap, or purchase of the
land in question, and other related and similar possible solutions, in order to
accomplish a more permanent resolution with equivalent benefits for the City of San
Rafael and for her.
B. There are exceptional and extraordinary circumstances and conditions
applicable to this request.
As further detailed below, at pages 4 and 5, Petitioner purchased the property with
the improvements that might encroach already existing, and with the reasonable
assumption they were part of her property. In her purchase, no encroachments or
nuisance conditions were noted in the City Residential Report (RBR), and there was
absolutely no notice to her from anyone that there was a problem or potential
problem. The seller to Ms. Hill appears to have deliberately concealed the situation
in the 2006 sale process, and certainly did not disclose anything about it to
Petitioner. The files at San Rafael City Hall that Petitioner reviewed at the time of
purchase contained no notice of any unsolved problem of encroachment.
Apparently, however, the City had become aware of an encroachment problem in the
year 2000, or prior, but did not notify Petitioner of it until 2007. This latest time lapse
is seven recent years of inaction by the City, which is how the situation developed
that Petitioner became an innocent victim of the prior encroachment situation. The
City did not put any annotations in the files open to the public at the front desk at City
Hall that would alert even the most diligent purchaser to this problem. The City took
no action from the date these conditions arose in 1988-1990 until 2000. This
represents another 11 years of inaction that contributed to the circumstances that
allowed Petitioner to be misled. In 2000, the City did send a letter about
encroachments. This letter was not disclosed to Petitioner by the Seller, and was not
disclosed by the City in its residential purchase report at the time of the sale. The
letter was not in the City's files routinely made available for purchaser's inquiries at
the time Petitioner purchased the property. David Faw inquired of code enforcement
as part of issuing the RBR, and determined there was no outstanding issue, in
connection with issuing the RBR in 2006, when Marion Hill purchased the property.
San Rafael's inaction and the lack of any actual or constructive notice to Petitioner
has led to justifiable reliance by Petitioner in concluding that the improvements were
all proper as they exist and is they existed at the time she purchased. Mandating an
immediate change now would be prejudicial to her. A combination of Petitioners
Marion Hill Request for Exception and Related Requests 5-11-09 Page 3
lack of notice of this situation from anyone, the 11 year period of inaction followed by
another 7 year period of inaction, and the impact of any further change now on
Petitioners fire protection, landscaping, hardscaping, and privacy, plus apparent
errors made in an earlier lot line adjustment with the City, all combine to make this
an exceptional and extraordinary situation.
C. This Exception is Necessary for preservation and enjoyment of a
substantial property right of Petitioners.
The action requested is necessary for the preservation and enjoyment of substantial
property rights of Petitioner Marion Hill, because her lot and landscaping were built
and developed in such a way that (1) apparently open space lands would go to the
immediate border of the concrete deck alongside her swimming pool, and within
several feet of her swimming pool; (2) open space lands might threaten her house
with unreasonable fire danger; (3) rock walls present for decades might have to be
partially demolished, and (4) her lawn as it exists is not acceptable to the City of San
Rafael open space district, so she would lose the use and enjoyment of her lawn.
The use and enjoyment of her pool, side and rear yard,r lawn, poolside area, and
the landscaping that she thought she purchased would all be substantially impaired
and/or eliminated if open spaces regulations were strictly applied to the small areas
in question. Additionally, the protection of her pets from coyotes and the protection of
her house from fire would be unreasonably impaired absent an exception. Re -
extending open space to the border of Petitioners lawn and/or pool would create a
fishbowl effect, with a huge loss of privacy and normal enjoyment of property rights,
and would lower the market value of her property. It would also require new fencing,
new hardscape, and new landscaping, as opposed to present now 20 years mature
landscaping and hardscaping, at very large expense. There would be necessarily
diminished appearance and utility for a large number of years. Apparently there is
little or no funding for fire protection pruning in open space, and the proximity of so
much dry fuel threatens her property unreasonably with fire danger, unless she is
allowed to maintain it and keep it from getting excessively dry.
D. The Granting of the requested exception will not be detrimental to the
public welfare or injurious to other property or property owners in the
vicinity of the property that is the subject to the exception.
Because this sliver of land at the top of a steep portion of the 33 acre open space
and is at the end of the open space, where it dead ends anyway, and because the
area has been deer fenced for decades, no one has been utilizing it as public space
in the past 20 years. Further, petitioner is asking permission to add 2 gates to the
Marion Hill Request for Exception and Related Requests 5-11-09 Page 4
historic deer fence. By doing that, the public will have more access than it has had at
any time since the deer fence was constructed prior to 1989 and most likely
substantially earlier. This area in question as mentioned above is a dead end "T" at
the end of the open space. This portion leads to no other open space or street. It is
steep and inaccessible from the normal open space trails. Other persons in the
vicinity can use it only by climbing steep slopes that have no trails, causing erosion
and at some personal danger. Most or all of Petitioner's immediate neighbors
support the exception. There is no aspect of the requested exception that is
detrimental to public welfare.
E. The Granting of the exception will not interfere with public use of or
rights to open space lands.
Petitioner and her use have not interfered with public use of the 33 acre open space
below Petitioner's property. The public has made no use of the sliver of land to date,
and to do so would have to traverse unsafe steep slopes, cause erosion, and risk
exposure to poison oak. Petitioner proposes to add two gates for ingress and
egress through the deer fence. By adding two gates to the historic deer fence,
Petitioner would increase public access beyond that which has existed for 18 years,
to the extent the public wanted to and the open space district wanted the public to
climb the unsafe steep slopes, cause potential erosion, and risk poison oak
exposure by coming up to the deer fence and going through it to the other side. In
any case, the deer fence in question was not installed by Petitioner, and by inputting
gates whatever interference it poses will be eliminated. The public has had trails
across the 33 acres, and still does, and will continue to, if anything petitioner's
suggestion will increase the public's use and access, and certainly it will not
decrease it from the area as used and utilized this past 18 plus years.
It is noteworthy in the background that code enforcement proceedings are under
way, which Petitioner is requesting be suspended for 5-7 years pending completion
of the land swap discussions. Some of the code enforcement efforts might well prove
unfounded since the deer fence is not on Petitioner's property, some other items are
not on her property, and none of these encroachments or alleged encroachments
were actually constructed by Petitioner. Petitioner should not be the one who needs
to remove them, to the extent they are not on her property and she did not construct
them. However, she does wish to acquire and use these encroachments and/or
improvements now, through an exception that has the effect of a license or
easement for a period of time, affecting the lawn, a small portion of rock fence, small
historic shed, and deer fenced area, and therefore she is applying for this exception.
It is also noteworthy that Marion Hill through my office is now as of this date
Marion Hill Request for Exception and Related Requests 5-11-09 Page 5
pursuing a possible lot line adjustment and/or land swap, a possible purchase of the
sliver of land involved, and a possible acquisition of other lands to swap with the City
for this sliver of land. It is possible that significant short-term progress with any of
these projects under way may make this request moot. However, since these
matters may take some considerable time, and since otherwise code enforcement
proceedings would be accelerating and the present dispute might be getting larger
rather smaller, the requested exception should be granted unless and until progress
on these other matters make the exception unnecessary. In any case, Marion Hill is
hereby requesting an exception so that the existing deer fence can remain (she
would at her own expense add two gates so if the public does climb steep trails to
get there, they could enter the deer fenced area), the small portion of a rock wall,
and minor irrigation facilities that keep the lawn green and thus minimize or avoid fire
hazards are also requested.
An understanding of the relevant history relating to the chain of ownership of 81
McNear Drive, San Rafael, prior to Marion Hill's acquisition of the property in 2006, is
important in evaluating this request. San Rafael's City Hall unpublished unrecorded
records establish that in March of 1989, under the ownership of Marsha Lucas
Rodriguez, it was discovered that the swimming pool and patio she was constructing
in her rear yard encroached into San Rafael Open Space. In order to avoid the costly
relocation of the swimming pool and retaining wall to correct the problem, a land
swap was negotiated between Ms. Rodriguez and the City of San Rafael whereby
the 81 McNear Drive parcel was adjusted by each party deeding to the other an
equal amount of land solely for the purpose of eliminating the encroachment which
exited with respect to the pool and rock retaining wall. Subsequently, Ms Rodriguez
sold the property to the Rhodes family who then sold it to Ms. Hill. Nothing was noted
in public access files on the property, in the RBR issued, or otherwise implemented
to warn or advise Ms. Hill of this problem. The area now in controversy with the City
of San Rafael is an area that Marion Hill reasonably thought was within the parcel
she purchased.
Marion Hill acquired title to 81 McNear Drive on September 1, 2006, moved in shortly
thereafter and has resided there ever since. As outlined above, a the time she
purchased 81 McNear Drive, Ms. Hill was not informed and unaware that areas of
landscaping, portions of the rock retaining wall structures and other garden
improvements (all of which had been constructed or erected long before she
purchased the property) encroached into San Rafael Open Space. Based on her
understanding of the 1989 land swap, Ms. Hill thought that the portion of the rock
retaining wall which borders the patio adjacent to her swimming pool no longer
encroached into the San Rafael Open Space and was located within her parcel.
However, She has now retained a surveyor to further map and advise, and she has
Marion Hill Request for Exception and Related Requests 5-11-09 Page 6
determined that there is a small area of rock wall encroachment outside her parcel (2
A, 180 square feet and 2 B (80 square feet) (260 square feet total)) within her
boundary as it now exists. Marion Hill proposes (a) both an exception for this very
small encroachment and also a further lot line adjustment to bring the 260 foot rock
wall are back within her property, providing another portion of her property to
compensate in equal square footage; (b) an opportunity to purchase the contested
areas of her back yard from the City; (c) an opportunity to swap it for other land that
would become open space' and/or (d) make a payment in lieu of such land swap so
that other city open spaces or parks can be improved or expanded for the benefit of
the public. Until one of these can be completed and completely solve the problem,
she wants an exception for the improvements in question. The area in question is
not accessible by the public in any meaningful way, because of slope issues and the
sliver of land's "dead end" aspect. The public's enjoyment of the adjoining 33 acres
of public space is not in any way diminished by her non-exclusive use of this small
dead end portion of the 33 acres.
The areas involved are roughly 2700 square feet for area A and 2 A; 4488 square
feet for area B; and 14,740 square feet for area C. Area C, the deer fence area is
larger, but Petitioner is not seeking an exclusive right to use that area. It was
enclosed by a deer fence by others decades ago, and she will if permitted to add
gates so the public can easily cross that fence.
The record and history with respect to the origin and maintenance of the
encroachments referenced in the Order, confirms that at all times since Ms. Hill
acquired the property, she has acted in complete good faith and has not
demonstrated any intention to violate San Rafael's codes and regulations governing
Open Space. Moreover, it remains unclear from the public record just when the City
of San Rafael first had notice of this problem—there had been an earlier land swap,
and Petitioner had no awareness or indication that there was any unsolved boundary
or encroachment problems with the swap. The swap by a previous owner was done
in 1989. It was reasonable for Petitioner when she purchased in 2006 to conclude
that this swap had taken care of the problem. Apparently it did not take care of the
problem. Petitioner believes that the house and swimming pool and rock walls were
constructed between 1985 and 1990. All of the work on the present swimming pool,
rock wall, and house were constructed and done by her predecessors in interest and
not by her, and done decades ago. The City records relating to the land swap show
no action or mention of an encroachment issue at any time between 2001 and 2007,
and none between 1990 and 1999. The encroachments (if that is what they are)
existed for approximately eighteen years before Ms. Hill purchased the property. Ms.
Hill had no actual knowledge or understanding of any of the referenced
Marion Hill Request for Exception and Related Requests 5-11-09 Page 7
encroachments when she purchased in 2006, and none until the City contacted her
in 2007.
In the present circumstances, the lack of notice of the encroachments will serve as a
legal defense to encroachment if the matter cannot be settled amicably. Marion Hill
is working hard to settle it amicably. Ms. Hill's lack of notice does, and the City's
involvement in this lack of notice, both do also bear on the issue of her good faith
vis a vis the City of San Rafael in considering her entitlement to invoke any
exceptions under Chapter 19.10, Section 19.10.070 of the San Rafael Ordinance
dealing with Open Space, which she is now by this letter formally requesting. When
she purchased, the encroachments or claimed encroachments existed exactly as
they are today. She has made no changes.
The following further comments apply:
1. Deer Fence: The deer fence located to the east and south east of the 81
McNear property east property line was in place when Ms. Hill purchased the
property. Petitioner did not construct this fence. As discussed above, Ms. Hill has
always understood and believed that the deer fence was in place well before her
predecessors -in -interest purchased the 81 McNear Drive property. The deer fence
prevents deer from ravaging her garden and neighboring gardens and flowers and,
most importantly, has cut off hungry coyotes' access to her house pets and those of
her immediate neighbors.
Ms. Hill owns and lives in her home with her two children. She has cleared and
removed dry brush, dead, dry fallen limbs and leaves and other undesirable
combustible vegetation in the area, as mandated by the fire department, in the areas
between the deer fence and her property line to maintain fire safety, which she
believes is incumbent on all hillside property owners. Ms. Hill has no desire or
intention to interfere with public access, use and rights to the Open Space area
adjacent to and below her property. Ms. Hill wants to have the deer fence modified
with ample gates, so it can still protect her pets and flowers from the deer and her
pets and those of her neighbors from the wandering coyotes who are a real threat to
her and her neighbors' household pets, which affording those few who might wander
up through the steep hillside and poison oak to "utilize" the area inside the deer
fence, at least until a land swap for that area can be completed. To that end, in lieu
of the City removing the Deer Fence, she proposes that an unlocked gate or gates
be installed in the deer fence (at her expense and to City standards), in order to
provide the public with full and complete access and use of this isolated and difficult
to reach wooded hillside area.
Marion Hill Request for Exception and Related Requests 5-11-09 Page 8
In consideration of the City's permitting the Deer Fence to remain in its present
configuration, except for the proposed gates, Ms. Hill would agree to maintain the
Deer Fence to City standards and to clear dry and dead brush and limbs as
necessary, so as to maintain and preserve an improved and enlarged fire break area
between the Deer Fence and her property, and to make a contribution of funds to
help with other needs of the Park and Recreation Department.
2. Irrigation System. The Irrigation System has been in place within the Open
Space for at least 18 years, long before Ms. Hill acquired the property, and long
before her immediate predecessor in interest purchased it as well. This Irrigation
System has proven effective in preventing the areas adjacent to the Open Space
from becoming overly dry and flammable, and has facilitated the growth of ground
cover to limit erosion of and erosion onto the adjacent Open Space land.
Ms. Hill believes that the hardware for the Irrigation System should never be
removed as it provides important fire prevention benefits discussed above. Because
it is an important element of the enhanced firebreak, Ms. Hill would agree to pay for
the cost of water to operate and maintain this Irrigation System. Apparently the open
space district does not have funding to maintain the 100 foot fire protection breaks
recommended and required for fire safety, so irrigating this area makes a positive
contribution to public safety and to petitioners safety, and helps protect open space
and the city of liability if a fire should erupt and cross open space lands.
3. Garden Shed. This shed, constructed by others decades ago, exists for the
purposes of storage of materials and tools relative to maintenance of the Irrigation
System and the firebreak area as proposed.
4. Rock Wall & Lawn Extending into the City's Open Space. As discussed,
Ms. Hill believed that the portion of the rock retaining wall ("Rock Wall") surrounding
the swimming pool patio area, and the lawn were incorporated into her property
pursuant to the land swap transaction between the City of San Rafael and Ms
Rodriguez. If not incorporated, an exception should be made for them. The amount
of land involved is minimal in this aspect. Immediately beyond and below the Rock
Wall in some areas on the property, the grade drops off steeply and needs to be
planted with ground cover for a distance of at least 20 feet into the adjacent Open
Space in order to eliminate ongoing soil erosion. While Ms. Hill is willing to do that
planting and maintenance, if her doing it is not agreeable to the City, then it is
requested that the City plant the area to prevent the Rock Wall and patio from sliding
or subsiding.
In the Spring, Summer and early Fall, there exists an unprecedented, high risk of
grass and/or forest fires within the Open Space area, which risk, in and of itself, is an
Marion Hill Request for Exception and Related Requests 5-11-09 Page 9
exceptional circumstance warranting special consideration for Ms. Hill's situation.
Fire protection in the one hundred feet downhill from her property is necessary for
the preservation and enjoyment of her property free from fires and the fear of fires
racing uphill and engulfing her home and those of her neighbors. Ms Hill believes
that in the case of residences at 81 and 85 McNear Drive, where the homes are only
separated from Open Space land by a mere eight to thirty feet at points along the
property line, special considerations are warranted. These homes are particularly at
risk in the event of a fire due to their close proximity to Open Space, the massive
amounts of dry, combustible vegetation on Open Space land, and a steep uphill
slope fanned by strong winds from the Bay. Moreover, assuming that the City of
San Rafael does not have available the necessary financial resources to fund any
clearing, removal of brush and other related fire prevention work in the Open Space
area, Ms. Hill's proposal takes on even more importance and should be strongly
considered. Finally, under no circumstances could Ms. Hill's proposed brush clearing
and fire break work be characterized as being detrimental to the public welfare or
injurious to other neighboring property or neighbors in the vicinity of 81 McNear
Drive.
In conclusion, Ms. Hill in good faith stands ready to be a good partner with the City
and a good neighbor to open space. She has offered to assume some of the burden
of costly and necessary open space maintenance on this small sliver of land in
question. She intends over time to attempt to purchase the sliver of land, or make a
lot line adjustment so it is included in her property, or purchase other needed or
desired open space land and trade it for any interest the City and Open Space
District may have in this sliver of land. From the present time, until further progress
on those items might eliminate the need for the exception, Petitioner is also
requesting (a) a directive to staff to facilitate the minor lot line adjustment to fully
"legalize" the rock wall encroachment of less than 250 square feet, constructed with
a permit by others a long time ago; and (b) a directive to staff to explore an
exchange of open space land for other land adjoining existing open space, to
expand existing open spaces area, as a final solution to this problem to be
implemented over the next five years. On item (b) Petitioner is prepared to
move forward immediately, it is the City's processes that will take some time,
as the City apparently has no policy on open space trades, and thus staff is
reluctant to proceed with discussions. Petitioner suggests that the
discussions happen immediately, and be used to develop policy for future
trades, and that the present proposed trade move forward immediately, as a
final and complete solution to all of the issues raised by the exception
application.
Marion Hill Request for Exception and Related Requests 5-11-09 Page 10
It is noteworthy that the initial notice of this meeting went out describing Marion Hill's
request as one for new improvements, which except for the deer gate fence, is not
accurate. It is also noteworthy that the notice went out talking about a 33,000 square
foot area involved, when in reality Petitioners main request involves 2,700 square
feet; her second most important request involves 4,488 square feet; all her requests
combined involve less than 22,000 square feet. This makes it seem like Petitioner is
asking for much more than she is asking, and creates a higher likelihood of public
opposition than would occur with Petitioners actual proposal. Additionally, Petitioner
has a number of separate proposals. She asked staff to delineate them separately,
as each of the 5+ requests should be treated separately.
The appeals section of the City Code requires an appeal within ten days of a ruling.
The exception section says the appeals provision applies. No one appealed from the
grant of the lawn area exception, so one would think it would be final and finally
granted. However, City staff views it as an issue de novo. This interpretation makes
the appeal section not sensible, and may not be the appropriate interpretation.
Nonetheless, Marion Hill and my office look forward to your careful consideration of
our proposals, each hopefully getting the respect and attention that each of the 5+
requests properly requires.
On Behalf of Marion Hill, Petitioner, and on behalf of my office, we wish to extend a
thank you for your time and consideration on this matter. Any of the City Council
Member who would like a site inspection prior to the hearing are welcome to arrange
these directly with Marion Hill, who will make herself available to accommodate such
inspections. It is unfortunate that the Public Works Director, the City Manager, and
the City Attorney have all found they are not in favor of meetings to progress on the
issues set forth above, without a directive from the City Council. For that reason, this
directive and instruction is sought as well by this application.
enclosures
tru
Neil Jon BloorAfield
Attorney for Petitioner Marion Hill
Marion Hill Request for Exception and Related Requests 5-11-09 Page I I
LAW OFFICES OF
NEIL JON BLOOMFIELD
TELEPHONE 901 E STREET # 100
(415) 454-2294 SAN RAFAEL, CALIFORNIA 94901
May 11, 2009
Karen Chew Land Engineer
Department of Public Works & to Planning Department
City of San Rafael
111 Morphew Street
San Rafael, CA 94915-1560
Planning Department
City of San Rafael
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
FACSIMILE
(415) 457-5348
Re: 81 McNear Drive (APN 186-470-99) Rock Wall and Lot Line
Adjustment, and related (adjoins with Open Space AP 186-530-68)
Dear Ms. Chew and Planning Department:
I represent Marion Hill in connection with 81 McNear Drive, San Rafael. There are
boundary issues between her rear yard and adjoining City Open Space. There was
a lot line adjustment done in 1989 to include the pool, deck and rock walls.
However, the lot line adjustment as it actually occurred, so an unknown reason did
not include the rock wall as built. Ms. Hill is starting discussions with the City that will
hopefully lead to a trade of other open space lands (proposed new) for areas where
there are encroachment disputes. However, these may take some considerable
time, and at present we cannot be assured of the success of the larger trade
proposals. The present attached proposal is for a very minor lot line adjustment
between the two adjoining parcels, to trade LL Adjustment 1 for LL adjustment 2 A
and 2 B as shown on the attached map. Please process this adjustment request.
Since for some unexplained reason the prior 1989 lot line adjustment on this parcel
did not correctly encompass the rock wall, it is requested that the fees for this lot line
adjustment be waived. If you see it otherwise, please let me know what fee needs
San Rafael City Submittal for Lot Line Adjustment
Eliminate Rock Wall Encroachment This Issue Only 5-11-09
to be deposited to get this started, and either Marion Hill or my office will bring the
applicable fee over to you.
Ms. Hill in good faith stands ready to be a good partner with the City and a good
neighbor to open space. It seems that a program of progress on many different
fronts is necessary to reach a fair result in this regard.s part of her efforts, s
now proposes this lot line adjustment. n71
Attorney for Marion Hill
Enclosure —Proposed Adjustment Map—
Rock Wall encroachments only
San Rafael City Submittal for Lot Line Adjustment
Eliminate Rock Wall Encroachment This Issue Only 5-11-09
t
< �C 'T \ -
Ao r �
m.� R IM
1 z
s
TENTATIVE MAP—LOT LINE ADJUSTMENT
HILL /TR RESIDENCE — 81 MCNEAR DR. AVE.
� xwp waMw loi
0
Z
m
D
0
To City Council members Greg Brockbank, Barbara Heller, and Damon
Connolly; Vice Mayor Cyr Miller, and Mayor Al Boro:
Dear Council Members, Vice Mayor and Mayor:
At the May 18, 2009 hearing I have 3 specific requests of the City
Council:
1. To grant an exception for the critically important lawn area and rock
wall (area A per map and low retaining wall bordering patio) as
approved by Parks and Recreations commission at the Jan 15th hearing.
2. To grant a limited 5-7 year exception for existing encroachments
(including only vegetation, irrigation pipes and sprinklers, deer fence)
on Open space per the California Municipal Code with the requirement
that I promptly install 2 access gates for the public.
3. To instruct the city staff to meet with me and /or my attorney and
explore a land trade ,where I would provide additional land to adjoin
existing Open Space Park in exchange for the present area of Open
Space area in controversy, or to explore a purchase of the encroaching
area or an easement over the encroaching area as surplus land.
I believe that after reviewing the history and the facts about this
encroachment issue at 81 Mc Near Drive that the 4 criteria necessary
for granting an Exception pursuant the applicable San Rafael Municipal
laws will all be present and that the City Council should now find
justifiable cause to grant the requested exceptions in this case.
Letter to City Council 5-10-09 Page 1
It is my hope that the facts in this case will be carefully and objectively
considered without prejudice, and with full attention to the purposes of
the exception provisions .The exception provisions were written into
the Municipal code for circumstances such as mine.
I believe the requests above are reasonable ,fair and justified based 20
years of mistakes dealing with this issue ,the non -disclosure to me of
the problem at the time of acquisition ,and the City's 7 or more years of
awareness yet inaction on this specific situation . Simply put, had the
City completed its encroachment action in the year 2000 when it
started it, I would not be dealing with this issue today. Negligence by
the City in the years prior to 2000 and the subsequent 7 years of
inaction of enforcement by the city has now unfairly created a burden
and now a prejudicial bias against me. I was not even in the picture
when the present encroachments were installed. I purchased the
property September 1, 2006. For over a year now I have been bearing
the burden of defense against impending code enforcement threats,
the stress and fear of potential loss of property rights, potential loss of
enjoyment of my backyard, and potential loss of significant property
value for issues that dates back to 1989 and two previous owners.
The City had more than 7 years to exercise its enforcement duties, I am
now requesting, by way of an exception, the same amount of time and
consideration to find a resolution that will be advantageous to the City
and mitigate damages to me as the affected property owner.
Letter to City Council 5-10-09 Page 2
I have worked very hard with an attorney and surveyor for a win-win
resolution, I have now a solid proposal to bring to the City which if the
City and Public finds acceptable, if accepted and implemented, would
eliminate the need for the exceptions!
The 1St Exception, if granted, will allow me to continue to enjoy the use
of substantial property rights that I reasonably believed that I
purchased with the home.
The 2nd Exception, if granted, is only temporary but will allow me the
time needed to present and complete one or more possible land trades
of square footage of equal or greater value to the public to adjoin
existing park space in exchange for the encroaching area .It would also
allow time for a possible lot line adjustment if necessary. The portion of
land adjacent to my lot line that is behind the deer fence has probably
been inaccessible to the public for well over 15 years .It has little or no
value to the public due to its difficult and steep topography, and due to
its out of the way location. It is an area that is for practical purposes
inaccessible due to the fact that it is remote and land locked from three
sides. This sliver of land is of much greater use and need to me for the
preservation of an irrigated fire break, privacy due mature vegetation,
and continued enjoyment of my backyard. I have in fact, a parcel in my
possession that can offer a much greater benefit to the Open Space
Park lands in a land swap; however, the City has no policy to even
consider the offer and declined to meet with us.
Letter to City Council 5-10-09 Page 3
I am now asking publicly that City staff be directed to meet with me to
discuss and consider this exciting option that could lead to a win-win
solution on behalf of all parties. I would also request that further Code
enforcement action be postponed while I am working actively with the
City, as I am doing, in good faith to resolve this issue.
Thank you for your fair and thoughtful consideration on my behalf,
Sincerely Yours,
//�� L:W.&
Marion Hill
Letter to City Council 5-10-09 Page 4
J
TimeLine 81 McNear
1986: residence constructed with a permit
1987: pool constructed with a permit
1988-1989-1990: pool discovered to be encroaching. Lot line adjustment
implemented. A retaining wall constructed with a permit, final constructed and
approved which appeared to resolve encroachment issues but apparently did not.
2000: 9-00 City does survey, and writes a letter to the current owner alluding to an
encroachment issue. Nothing is done to document this in non confidential city files.
Nothing is done to follow up from fall of 2000 until the Spring of 2007. Nothing is
done to notify future buyers of the issues.
2001-2007: City does nothing to indicate any ongoing problems at 81 McNear
2006: July 25 2006 Marion Hill contracts to buy 81 McNear and reviews disclosure
statements that do not alert her to previous city letter and claim of encroachment by
the City. Seller applies for Residential Building Report.
8-8-06 David Faw working for the City of San Rafael issues a Report of Residential
Building Record, which refers to and attaches design review conditions for front
year, dated 4-23-02, and does not refer to or allude to any violations relating to
encroachments on open space. In preparing the report, Mr. Faw consults with Joe
Garcia of Code enforcement. Mr. Garcia advises Mr. Faw that he has reviewed the
operative file and determined that the file had been closed and no further action is
required. No mention of any violations or any open issues is made in the Report or
in Mr. Faw's memo of his conversation with Mr. Garcia. Mr. Faw was a contract
RBR inspector for the City, and reviewed the same files as did Marion Hill and came
to the same conclusion: no outstanding problems.
8-06 Marion Hill reviews City of San Rafael Residential Building Report that does
not disclose existing encroachment dispute, even though the City had issued a letter
in year 2000 claiming an encroachment and saying it had to be removed. Seller
disclosures to buyer on pending transaction states as follows: Item 13: No surveys,
encroachments or boundary disputes; item 15: no use of any neighboring property
by seller. Marion Hill is thus misled.
8-31-06 Marion Hill Completes her purchase of 81 McNear
2007: 4-12-07 City issues letter complaining of encroachment and referring to year
2000 letter
2008:: Marion Hill starts on lot line adjustment (minor) and on request for an
exception, submits formal application for exception in the Fall of 2008
2009: January 2009: Marion Hill request for exception comes to hearing at Park
and Recreation. There is public support for the exception and no public opposition.
5-9-09 Page 1
The Commission approves an exception for lawn area A, and denies an exception for
areas B and C. No appeal is filed from that action.
March 2009: Neil Bloomfield contacts Parviz Mokhtari and sets up meeting to
discuss recommendations to City Council and possible land swap to occur on March
30. Mr. Mokhtari's staff calls on 3-30 to postpone meeting and promises to
reschedule. Following that, Mr. Mokhtari does not make himself available for any
meetings.
April 2009: Marion Hill locates suitable open space land to trade land for land. Neil
Bloomfield writes and call Ken Nordhoff and requests meeting to discuss possible
land swap and possible surplus land designation, and offers various dates. Eric
Davis calls a week later and advises Neil Bloomfield that Mr. Nordhoff will not make
himself available for a meeting.
May 2009: Marion Hill plans to submit her minor lot line adjustment (rock wall) to
City. Marion Hill request for exception scheduled for hearing before City Council.
5-9-09 Page 2
How 81 McNear meets the four criteria needed to grant an
exception per San Rafael Municipal Code
A. There are exceptional and extraordinary circumstances and
conditions applicable to this request.
Marion Hill purchased the property with the improvements that might encroach already
existing, and with the reasonable assumption they were part of her property. In her
purchase, no encroachments or nuisance conditions were noted in the City Residential
Report, and there was absolutely no notice to her from anyone that there was a problem
or potential problem. The seller to Ms. Hill appears to have deliberately concealed the
situation in the 2006 sale process, and certainly did not disclose anything about it to
Petitioner. The files at San Rafael City Hall that Petitioner reviewed at the time of
purchase contained no notice of any unsolved problem of encroachment. David Faw
and code enforcement officer Garcia reviewed the status of the property in August 2006
and concluded there was no problem. Apparently, however, the City had become aware
of an encroachment problem in the year 2000, or prior, but did not notify Petitioner of it
until 2007. This latest time lapse is six and a half recent years of inaction by the City,
which is how the situation developed that Petitioner became an innocent victim of the
prior encroachment situation. The City did not put any annotations in the files open to
the public at the front desk at City Hall that would alert even the most diligent purchaser
to this problem. The City took no action from the date these conditions that arose in
1989 until 2000. This represents another 11 years of inaction that contributed to the
circumstances that allowed Petitioner to be misled. In 2000, the City did order and
Encroachment Plat Map and did send a letter about encroachments. But the City did not
follow up on its letter to the property owners at the time, and did not make a notation
anywhere in the public file that would alert a potential purchaser. This was inappropriate
and has now caused potential damage to the current property owner. The existence of
the encroachment plat map and the June 2000 letter were not disclosed to Petitioner by
the Seller, and was not disclosed by the City in its residential purchase report at the
time of the sale. These documents were also was not in any noticeable fashion in the
City's files routinely made available for purchaser's inquiries at the time Marion Hill
purchased the property. San Rafael's inaction and the lack of any actual or constructive
notice to Marion Hill has led to justifiable reliance by Marion Hill in concluding that the
improvements were all proper as is. Mandating an immediate change now would be
prejudicial to her. A combination of Marion Hills lack of notice of this situation from
anyone, the 11 year period of inaction followed by another 7 year period of inaction, and
the impact of any further change now on Marion Hills fire protection, landscaping,
hardscaping, and privacy, plus apparent errors made in an earlier lot line adjustment
with the City, the non recordation by the City and its surveyor of the encroachment plat
map, and the indication in the City files that David Faw had reviewed the situation and
no enforcement action was needed in 2006, and the residential building report referring
to planning items as recommended by Mr. Faw and not referring to the encroachment
known to the City at that time, all combine to make this an exceptional and
extraordinary situation.
5-10-09 Marion Hill Request for Exception Meets All 4 Criteria for an Exception Page 1
B. This Exception is Necessary for preservation and enjoyment of a
substantial property right of Petitioners.
The action requested is necessary for the preservation and enjoyment of substantial
property rights of Petitioner Marion Hill, because her lot and landscaping were built and
developed in such a way that (1) apparently open space lands would go to the
immediate border of the concrete patio alongside her swimming pool, and within several
feet of her swimming pool; (2) open space lands might threaten her house with
unreasonable fire danger; (3) rock walls and patio area present for decades might have
to be partially demolished and (4) roughly 40% her lawn as it has existed for over 15
years is not acceptable to the City of San Rafael open space district and would have to
abandoned and returned to a natural state which would cause her lose use of a large
portion of the usable backyard and create flammable conditions within 25 feet of her
home.(5) the petitioner will likely also suffer monetary damages for resale with loss of
the substantcial lawn area. The use and enjoyment of her pool, side and rear yard
area, lawn, poolside area, and the landscaping that she thought she purchased would
all be substantially impaired and/or eliminated if open spaces regulations were strictly
applied to the small areas in question. Additionally, the protection of her pets from
coyotes unreasonably impaired absent an exception. The space involved was included
in the brochure and marketing pictures, and was used at open houses and other events
relating to the promotion of the property, leading to reasonable expectation of the right
to enjoy those areas. Re -extending open space to the border of Petitioners lawn and/or
pool would create a fishbowl effect, with a huge loss of privacy and normal enjoyment of
property rights, and would require new fencing, new hardscape, and new landscaping,
as opposed to present now 20 years mature landscaping and hardscaping, at very large
expense and with a necessarily diminished appearance and utility for a large number of
years.
C. The Granting of the requested exception will not be detrimental to
the public welfare or injurious to other property or property owners in
the vicinity of the property that is the subject to the exception.
Because this sliver of land at the top of a steep portion of the 33 acre open space and is
at the end of the open space, where it dead ends anyway, and because the area is
densely vegetated and steeply sloping, no one has been utilizing it as public space in
the past 20 years. There was no opposition to the request at the Park and Recreation
hearing, and in fact, there was public support for the granting of the request that was
unanimous. Further, petitioner is asking permission to add 2 gates to the historic deer
fence. By doing that, the public will have more access than it has had at any time since
the deer fence was constructed prior to 1989 and most likely substantially earlier. This
area in question as mentioned above is a dead end "T" at the end of the open space.
This portion leads to no other open space or street. It is steep and inaccessible from
the normal open space trails. Other persons in the vicinity can use it only by climbing
steep slopes that have no trails, causing erosion and at some personal danger. Most or
all of Petitioner's immediate neighbors support the exception.
5-10-09 Marion Hill Request for Exception Meets All 4 Criteria for an Exception Page 2
D. The Granting of the exception will not interfere with public use of or
rights to open space lands.
Petitioner and her use have not interfered with public use of the 33 acre open space
below Petitioner's property. The public has made no use of the sliver of land to date,
and to do so would have to traverse unsafe steep slopes, cause erosion, and risk
exposure to poison oak. Wildlife similarly makes only the most limited use if any of this
land locked end of the Open Space area. Petitioner would immediately add two gates
for ingress and egress through the deer fence, thereby improving access to the public.
By adding two gates to the historic deer fence, Petitioner would increase public access
beyond that which has existed for 18 years. The public has had trails across the 33
acres, and still does, and will continue to, if anything petitioner's suggestion will increase
the public's use and access, and certainly it will not decrease it from the area as used
and utilized this past 18 plus years.
The following further comments also apply:
1. Irrigation System. The Irrigation System has been in place within the Open
Space for at least 18 years, long before Ms. Hill acquired the property, and long before
her immediate predecessor in interest purchased it as well. This Irrigation System has
proven effective in preventing the areas adjacent to the Open Space from becoming
overly dry and flammable, and has facilitated the growth of ground cover to limit erosion
of and erosion onto the adjacent Open Space land. Ms. Hill believes that the hardware
for the Irrigation System should never be removed as it provides important fire
prevention benefits discussed above. Because it is an important element of the
enhanced firebreak, Ms. Hill would agree to pay for the cost of water to operate and
maintain this Irrigation System. Apparently the open space district does not have
funding to maintain the 100 foot fire protection breaks recommended and required for
fire safety, so irrigating this area makes a positive contribution to public safety and to
petitioners safety, and helps protect open space and the city of liability if a fire should
erupt and cross open space lands.
2. Rock Wall & Lawn Extending into the City's Open Space. As discussed,
Ms. Hill believed that the portion of the rock retaining wall ("Rock Wall") surrounding the
swimming pool patio area, and the lawn were incorporated into her property pursuant to
the land swap transaction between the City of San Rafael and Ms Rodriguez. If not
incorporated, an exception should be made for them. The amount of land involved is
minimal in this aspect. Immediately beyond and below the Rock Wall in some areas on
the property, the grade drops off steeply and needs to be planted with ground cover for
a distance of at least 20 feet into the adjacent Open Space in order to eliminate ongoing
soil erosion. While Ms. Hill is willing to do that planting and maintenance, if her doing it
is not agreeable to the City, then it is requested that the City plant the area to prevent
the non -offending Rock Wall and patio from sliding or subsiding.
5-10-09 Marion Hill Request for Exception Meets All 4 Criteria for an Exception Page 3
Partial History of Issues Relevant to City Council Hearing on
81 McNear set for 5-18-09
The City has a history of making serious mistakes with this
situation, which has caused an unfair hardship and burden on
Marion Hill as the current property to defend herself against
Code Enforcement issues that date back to pre -2000 when
encroachment violations were discovered by the city. Despite
earlier indications in City files that use and encroachment
issues had been resolved , in the year 2000 the City concluded
that there as an encroachment problem. An Encroachment Plat
Map was done, and an order to remove adjacent encroachment
was sent out by letter with the map to then owner Jesse
Rhodes. Evidently , then owner Jesse Rhodes ignored the letter
and the encroachment plat map that was sent to him.Somehow
the city dropped the ball and never pursued the issue further.
It was not until April 12, 2007 that the city found the file
and took interest in the issue again. The City then reissued its
October 17, 2000 letter out to the new owner of the property .It
is indeed disturbing that the file on the encroachment issues
somehow disappeared away from public view and owner view
for 7 years and that the City never followed up in the year 2000
on their original notice to the previous owners.
In August of 2006 Marion Hill, as a prospective buyer of the
home at 81 McNear Drive, researched the files available to her
at the City during the investigation period of her purchase. In
the City files made available to her there was no copy of the
2000 encroachment letter nor the Encroachment Plat Map. Had
the City report or available City files indicated that there was an
Page 1 5-9-09
encroachment issue regarding the backyard, she would have
insisted on a survey and either not purchased if the survey
showed a substantial encroachment, or possibly purchased at a
much lower price.
In 2006, City staff reviewed the use and compliances history
and consultant David Faw did a memo (see attached) to the
City staff and file determining that there were no ongoing
problems and the situation was in compliance. At the same
time, a "routine" residential pre sale report ("RBR") was issued
by the City paid for by the seller in connection with Ms.Hill's
purchase, and that report did not indicate any use or
encroachment issues with the back yard. In fact, the RBR has
a section for VIOLATIONS and this August 8, 2006 RBR
report stated that there were none.
Marion Hill was justified in relying on City staff consultant
David Faw's Memo which was in the City files, and the City's
own report issued by David Faw, as it was the only information
available to her. City enforcement files are confidential, and not
available to purchasers. City staff not referring to any such
problem or issue in the RBR , plus the fact that in reviewing the
file and concluding there were no such issues, combined to
prevent Marion Hill from "finding out" about this problem.
The issue of encroachment in the retaining walls surrounding
her pool and lawn were also not disclosed to her by the prior
owner in connection with the sale, and in fact, the use of the
lawn in property promotional events and in promotional
pictures reasonably led her to reasonably assume that the
lawn and rock walls were included as a legitimate part of the
backyard she was acquiring.
Page 2 5-9-09
The City's conduct in this matter is even more substandard
because it obtained and did not make record or notation in the
accessable files of an Encroachment Plat, a form of survey. The
City contracted for an Encroachment Plat Map with surveyor
Oberkamper and Associates. This Encroachment Plat was
completed in September of 2000. Also, this lack of notation in
the City Residential Building report issued 8-8-06, and related
inaction, together constitute a violation or potential violation of
applicable law and proper protocol with regard to the
encroachment survey. This combines with the City's own
Residential Building Report, a report that the City was paid to
research, and which the City is properly expected to issue with
a reasonable degree of accuracy, to create a situation the
requires help now from the City, rather than enforcement
action against the present owner.
It seems that a known major encroachment violation onto
City lands and known to the City for 7 years would certainly
qualify as a critical disclosure by the City, and should have
certainly been included on the RBR report, particularly when
City staff disclosed at length other planning and prior
enforcement issues regarding the front yard lawns.
Marion Hill reviewed a Residential Building Report ("RBR")
from the City of San Rafael issued August 8 2006 when she
purchased the property. The report did not mention any
existing encroachment and did not mention any encroachment
Plat Map prepared for the City. The report did not mention the
letter from David Bernardi of the Public Works Department
dated October 17, 2000. The 2006 RBR report by the City to
the buyer Marion Hill had attached to it various front yard
design review conditions revised and dated 4-23-02. Such
design review conditions are not usually attached to RBR
reports. There is and was in fact no front yard non compliance
Page 3 5-9-09
or encroachment existing in 2006 nor since. What the report
does not mention, the report implies is in good order and
does not require attention.
Neither the existence of an encroachment within her lawn
area and the hardscape walls surrounding her pool and patio
and lawn, nor the existence of the year 2000 encroachment
letter nor the survey encroachment plat were disclosed to her
by the prior purchaser in connection with the sale. And thus,
the encroachments were not known to her at the time of
purchase.
The City's action and inactions operating side by side with the
wrongful conduct of the seller of the property in concealing this
situation from Marion Hill have created an unusual hardship
for her and for the property. It is suggested that the City
should take responsibility for its failures and the potential
damages resulting from the administrative lapses.The City
should now make a reasonable accommodation by the granting
of an Exception.
It is Marion Hill's impression that City staff normally works to
explore "win-win" situations to a problem. In this instance
however, City Staff has not been willing to meet to discuss
possible declaration of surplus land and purchase (a revenue
enhancing approach) and has not been willing to meet to
discuss an Open Space land swap. We agree with and
understand this need to defend and protect our parks, which
are precious to all of us. However, since the present exception
applicant has proposals to enhance City Park revenue and
proposals to increase city open space land, while at the same
time solving the present issue, in a land swap, it makes sense
Page 4 5-9-09
for the City to now grant a limited time (5-7 year) exception to
allow that possibility to become a reality.
It is noteworthy that meetings requested by the applicant with
City staff to discuss this have been declined by staff, because of
a lack of policy or direction from the City Council, an odd
stalemate for the applicant. At the same time, in the present
instance, there are grounds for a permanent exception for the
lawn area which grounds led to a favorable vote on that aspect
by the Park and Recreation Commission. It is odd and unusual
for City Staff to not support the Commission's findings, and at
the same time be unwilling, as the Public Works Acting Director
has been, to meet with the applicant to discuss the
Commission's findings and other constructive solutions, as well
as his apparent desire to recommend to the City Council
something different than what the Park and Recreation
Commission voted for. City staff are in denial of the possibility
that a citizen has a justifiable reason for the granting of an
exception and seem terrified of setting a precedent to such an
extent that the city staff is refusing to make use of and apply
its own laws even when the criteria for an exception is met and
the circumstances justify the granting of the Exception.
Page 5 5-9-09
SCALE 1 :1,109
50 0 50 100 150
FEET
Monday, October 13, 2008 3:48 PM
City of San Rafael {
Addresses
Abe, Situs Addresses
Streets
Abc Street Names
Street Centerline
— ROW
OneWayArrows
Buildings/Landmarks
Points of Interest
POST OFFICE
CHILD CARE
;FORMER PU...
CHURCH
[—]PUBLIC BUIL...
SCHOOL
[4]HOSPITAL
SHOPPING M...
MALL
GOLF & COU...
HOTEL
FOUNDATION
Parcels
Easements
I
Parcels
Boundaries
Bay Waters
SCALE 1 :6,954
500 0 500 1,000 1,500
FEET
http://maps.cityofsanrafael,org/home/mapFile.aspx Tuesday, September 23, 2008 2:00 PM
I
8,2 2
§
\\}\/\@
]yj
}
§
/2F}0
j
}(
\$)
dk0
\\\)2 $
\
E>
()\
/!
/))!\~/
2
;«
0
6P4 or !&
3§/t;7§{ §)!
)
\
\\\
PM
)\
\)
u:9
}Iq � \
)\
l
r � �
OK
; R; art;
1E F4
jp
V
r
r�
u
i �l
tr a c }n P ¢ r
r�
.
�C n�,"4frs
�' ' < � r s r � 1✓ 'Tr✓� a 1 i ,;iPxt � t
�Y
?0
l rr
77
� f £ 1 I ir'S s •.' 'rl �. F7 �'1 �J+ � t �.
� sr>a5
., F i•r� ,�-��"�f �1��{fw�gr�y,iia �8 oi"vtry c�'* :Lxr !•ajf� '�r.
r�
¢ x "fir �`xp • �,�`�f Stl (:. 1r �f "�.�ttr e � <
�/ t �fXef�t-k1
t "1, �& a air i r C d
x
Y. • ' a 7. Dir ' f¢ < 1� a v j'4
n
S F
IBMgam, r i r
ff
i
���r•-.
' t
S
J
ar,.x
r r',
ax4E
ca
&i
r
tr a c }n P ¢ r
r�
.
�C n�,"4frs
�' ' < � r s r � 1✓ 'Tr✓� a 1 i ,;iPxt � t
�Y
?0
l rr
77
� f £ 1 I ir'S s •.' 'rl �. F7 �'1 �J+ � t �.
� sr>a5
., F i•r� ,�-��"�f �1��{fw�gr�y,iia �8 oi"vtry c�'* :Lxr !•ajf� '�r.
r�
¢ x "fir �`xp • �,�`�f Stl (:. 1r �f "�.�ttr e � <
�/ t �fXef�t-k1
t "1, �& a air i r C d
x
Y. • ' a 7. Dir ' f¢ < 1� a v j'4
n
S F
IBMgam, r i r
1
m
MEMORANDUM TO FILE
REPORT OF RESIDENTIAL BUILDING RECORD (RBR), 80608-014
Date: August 8, 2006
From: David Faw
Contract RBR Inspector
Regarding: Administrative hearing Order
City of San Rafael
Dated September 5, 2001
I reviewed the attached Hearing Order noted above with Mr. Joe Garcia, Enforcement
Officer of the City of San Rafael. Mr. Garcia reviewed the operative file and determined
that the file had been closed, and that no further action is required.
i
I
Excerpt from August 2006 Disclosure, Rhodes to Marion Hill: �!
Represents No Encroachments and No Use of Neighboring Property by fill,
Rhodes
BOUNDARIES, ACCESS AND PROPERTY USE BY OTHERS: ARE YOU (SELLER) AWARE PF...
13. Surveys, easements, encroachments or boundary disputes......... , ❑ Yes 4 No
14. Use of the Property, or any part of it, by anyone other than you, with or without permission,
for any purpose, Including but not limited to, using or maintaining roads, driveways or other 1
fors of ingress or egress or other travel or drainage, ,,, , , , , , , , , , , , , ❑ Yes K1 No
15. Use of an neighboring " " " " " " " " "
Y 9 9 property by you .......................................... ❑ Yes JerNo
Explanation:
FROM : MARION K HILL PHONE NO. : 92 Jan, 08 2009 10:40AM PS
c"or J
BUILDING & SAFETYDMSIQN
PO Box 181589 San Rafael, CA 94915.1560
REPORT OF RESIDENTIAL BUILDING RECORD
obi ri` h. vt5Fb (t's'5IGm f1zv%q Qrn %l-rtbrag g'A•rr;r) �1 X2342 � Q1ZAclp
This report is compiled from the results of an Inspection of the property and review -of the
records of the City of San Rafael. All reader of this report are hereby put on notice that they
may review the files on this property In the Community Development Department at City Mall,
1400 Fifth Avenue, San Rafael, The City encourages all readers of this report to read the files
and review the completeness of the Information. This Inspection and review of the records does
not Include an evaluation of the structural or seismic safety of the'structure. Readers are
advised to seek professional advice if there is a concern,
Street Address nn
Assessor Parcel Numberfs). / 9A
Date Issued
Date Issued
Date Issued, �• # -�
Date Issued
Date Issued
Date Issued - • $- # `Zr
Date Issued #
Zoning District:]
ONO ��� Peim[141red
For 'S `G:1 (� rU WNhoua al
For _pmt-+ a
For
For
For
ForNrt�,
For
Permit No. Date Issued: For
Permit No,
Permit No,
Permit No.
Date Issued:
For
Date Issued: For
Date Issued: . For
I]
1
FROM : MARION K HILL PHONE NO. : 92 San. 09 2009 10:4tAM P2
1%
0 Detached Garages
1l.A4eessory Buildings
Q Storage Sheds
U Decks
i]: Other A
Type of dwelling units observed:
U Single Family Dwelling
idt Single Family Dwelling with Accessory Dwelling or Duplex
0 Triplex 0 Condominiom/fawnhouse 0 Apartments
Number of dwelling units observed:
a No undocumented dwelling units observed.
❑ .An undocumented and possibly illegal additional dwelling unit has been identified during this
'insp'ection. Information must be submitted to document this unit's legality, a permit forthis
unit must be obtained to legalize R, or the unit must be abated. This report has been referred
to the Code Enforcement Division for follow-up and potential abatement of the
undocumented.dweliing unit.
❑ A. second kitchen as defined by the San Rafael Municipal Code has been observed during
this inspection. While a second kitchen is not a violation of San Rafael Zoning regulations, it
may not be used by a separate household or In conjunction with an unpermitted additional
dwelling unit. The second kitchen is described as follows:
Location:
Facilities:
Date of Report Issuance: Sk - lb Report Iration Da
Residential Building Rep( o QI l Issued By: v
This report is valid for 3 months from the date of issuance unless extended
by endoraem.ent below.*
.Extended from: To: By:
2 .
FROM : MARION K HILL
PHONE NO. : 92 San. 08 2009 10:42AM P3
the following Information is the result of a physical inspection of the property. it should be
understood that the inspection is cursory and does not attempt to evaluate the overall condition
Of electrical, mechanical, or plumbing systems. The City cannot guarantee the adequacy of
these systems or verify concealed defects. It is recommended that the prospective buyer
evaluate the building In its entirety using licensed contractors or private inspection firms.
m
Q Exterior Siding
a Wood Stoves and Inserts
Q Reroofing
Q Garage Conversions
O Hot Tubs, spas, pools
zj
Q RemodeURepairs to
a 00,0!
00 0
0
Replacements
t < m
0 Furnace Replacement
0.m
❑Other
a �.y
that haVe expired (see Page 1)
a
liipOpz
Smoke defectors
a.00)
Q CI Q
Nonmetallic (Romax) electrical wiring
unprolacled in areas T below (cover or iconduit)n
411300
Firewall (between garage and dwellingx
Doorbetween garage and dwelling
Water
Water heaters;
(tis" solid wend with saiF-closing.aid
latching hardware) Ala ACCESS 44 OV.I��t•(�1L
uL79Q,
18" above garagefloot
O q O
�oqa
Unprotected openings in firewall SpA
gypping
Heat OctsPenetrating drewalland
Whhin garage minimum k6 gauge
Q Q O
Gas shut off
ferrous metal
m p p Q
Temperature pressure relief (TPR) valve
Q 9 Q Q
spa or pool fencefgate complies with City
9 Q Q'Q
Overflow pipe from TPR
code
'60Q0
Dishwasher, air gap on drain system
OQUO
HandraiisonstairsiATC(i.l()it. #A.)Mfji(n
9 Q O Q
WQQQ
Bathrooms (no windows) exhaust fan
House numbers
q q qQ
Deck guardrails
p)oQq
Other
Describe Indetail;
�Ci�
A1'b lttl ta>D nip "S ft �
- G n
A C 140
Q Habitable Additions
Q Exterior Siding
a Wood Stoves and Inserts
Q Reroofing
Q Garage Conversions
O Hot Tubs, spas, pools
O Accessory SWoturee
(carports, breezeways)I(itchen,
Q RemodeURepairs to
q Water Heaters and Boiler
Bathrooms
Replacements
O Elsdtrical Subpaneis and
New SPanels
0 Furnace Replacement
q Permits previously issuedervice
❑Other
and Duct Work
that haVe expired (see Page 1)
(] Other
Make Vit! noted corrections within 3a days and call for re inspection.
3
•
RESOLUTION NO. 02 -
RESOLUTION OF TEE SAN RAFAEL PLANNING COMMISSION APPROVING THE
ENVIRONMENTAL AND DESIGN REVIEW PERMIT AMENDMENT (ED01-019) TO
ALLOW LANDSCAPE MODIFICATIONS FOR AN EXISTING SINGLE FAMILY
RESIDENCE LOCATED AT 81 MCNBAR DRIVE
APN: 186-471-94
WHEREAS, on October 22, 2001, the applicant submitted an Environmental and Design
Review Permit Amendment to allow landscape modifications for an existing single-family
residence located at 81 McNear Drive; and
WHEREAS, the application was deemed complete for processing by the Planning
Division on November 12,2001; and
WHEREAS, upon review ofthe, application, the project was determined to be exempt
from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section
15304 (b) of the CEQA Guidelines which exempts now gardening or landscaping; and
WHEREAS, the City of San Rafael Design Review Board reviewed the project on
January 23, 2002, and the current revised proposal on March 19, 2002, and recommended
approval of the project; and
WHEREAS, on April 9, 2002, the San Rafael Planning Commission held a duly noticed
public hearing on the proposed Environmental and Design Review Permit Amendment (ED01-
019), accepting all oral and written public testimony and the written report of the Community
Development Department staff; and
WIIEREAS, after closing the public hearing and discussing the project issues, the
Planning Commission directed staff to revise the conditions of approval and return the resolution
for adoption on April 23,2002; and
WHEREAS, the Planning Commission makes the following findings relating to the
Environmental and Design Review Permit Amendment:
California Environmental Quality Act (CEQA,) Finding
1. The Planning Commission exercised its independent judgment and determined that the
project is categorically exempt from the requirements of the California Environmental
Quality Act (CEQA), pursuant to CEQA Guidelines Section 15304, Minor Alterations to
Laud, in that the request is for the replacement of landscaping for an existing single-family
residence.
i
Environmental and Design Review Permit Findings
2. The project design, as conditioned, is in accord with the San Rafael General Plan 2000, the
objectives of the City of San Rafael Zoning Ordinance, and the purposes of Chapter 25 of the
Zoning Ordinance in that the project: a) proposes landscape modifications that are
appropriate for the single-family residential setting; b) preserve and enhance views from
public property; and c) minimize impacts on adjacent properties.
3. The project design, as conditioned, is consistent with all applicable landscaping design
criteria and guidelines in that the project: a) proposes landscape modifications that achieve
the intent of the original landscaping to screen the residence and the accessory structure from
surrounding properties and open space; and b) proposes landscape modifications that have
been reviewed by the Design Review Board to ensure that the design is compatible with the
existing structures and development in surrounding environs.
4. As conditioned, the project design would minimize adverse environmental impacts in that
the the proposed project: a) was determined be exempt from the requirements of the
California Envinmrental Quality Act (CEQA), pursuant to CBQA Guidelines Section 15304,
N uor Alterations to Land; b) would enhance the streetscape with additional trees; c ) would
preserve existing vegetation; and d) would minimize the use of water on site by limiting turf
areas and inclusion of automatic, low volume, irrigation.
5. The project design, as conditioned, will not be detrimental to the public health, safety or
welfare, nor materially injurious to properties or improvements in the vicinity given that the
project has been reviewed by the appropriate agencies and conditioned accordingly.
NOW TIiE12EFORE BE IT RESOLVED, that the Planning Commission of the City of
San Rafael approves the Environmental and Design Review Permit Amendment subject to the
following conditions:
Conditions of Approval (ED01-019)
PlanningDivislon
1. This Design Review Permit Amendment (EDO 1-019) allows the landscape modifications as
presented for approval by the Planning Commission on April 23, 2002, except as modified by
these conditions of approval. All previous conditions of Environmental and Design Review -
Pemrit (ED84.40) and Use Permit (UP94-46) approvals for this property, except those
modified by this permit amendment approval, shall remain in full force and effect and shall
run with the land.
2. This Design Review Permit Amendment shall be valid until July 23, 2002, subject to a time
extension by the Community Development Director. The approved landscaping and
irrigation shall be installed or a time extension granted prior to the expiration date, or this
approval becomes null and void.
-2-
9
3. Hours of construction shall be limited from 8:00 AM to 5:00 PM. Monday through Friday
only:
4. The flood/security lights that shine upon the residence at 82 McNear Drive and the lights at
the porta cochere, shall be removed or modified so as not to produce glare off-site.
5. The hedge height along the entire inside driveway area shall be "trained" or allowed to grow
and maintain an increased height that is no lower than the top of the existing columns, except
in locations where an increased hedge height would present a significant security issue, as
determined by the Community Development Department in consultation with the Police
Department.
6. The applicant shall employ Best Management Practices (BMPs) to eliminate or reduce the
production of fruit on the olive trees to the maximum extent practicable.
7. Prior to installation of the landscaping, the applicant shall provide verification from Marin
Municipal Water District (MIWD) stating that the proposed landscape plan has been
approved.
S. The applicant shall maintain all existing landscaping in good condition, and replace any dead
or dying plants with new stock of a size compatible with the remainder of the growth at the
time of replacement.
9. Landscape pruning shall be accomplished in a manner that best maintains the landscaping's
ability to screen the subject residence and accessory structure. At no time shall landscape
screening be pruned such that less than the minimum required installed height or width, as
denoted on the approved landscape plan, remain in any given time period.
10. Irrigation shall be extended or installed to provide water for the six proposed olive trees, two
proposed potato vines, four proposed sweet olive shrubs, four proposed redwood trees, eight
existing redwood trees, five existing blue spruce trees and one existing oak tree on the east
and southeast side of the property. The applicant shall submit irrigation plans for all existing
and proposed landscaping for review and approval by the Community Development Director,
prior to installation of the landscaping.
The foregoing Resolution was adopted at the regular City Planning Commission meeting held on
the 23n1 day of April, 2002.
-3-
i
i
MEMORANDUM TO FILE
i
REPORT OF RESIDENTIAL BUILDING RECORD (RBR), RO608-014
i
Date: August 8, 2006
From: David Faw
Contract RBR Inspector
Regarding: Administrative hearing Order
City of San Rafael
Dated September 5, 2001
I reviewed the attached Hearing Order noted above with Mr, Joe Garcia, Enforcement
Officer of the City of San Rafael. Mr. Garcia reviewed the operative file and determined
that the file bad been closed, and that no finther action is required.
i
Bill Bullock
From: Marion Hill [marionhill@sbcglobal:netj
Sent: Tuesday, August 08, 2006 8:15 AM
To: Bullockwn@sbcglobal.net
Subject: some questions...
Hi there Bill,
In regard to our conversation the other day, I am writing you to track down the following items if they exist:
Any architectural plans ?
lot survey NO
an information or receipts of work performed on the roofs to address the leaks
any geotech report? No
any info on the neighbor below or to the side9 v
any info on the setbacks around the water tower /near dog pen?
Also,
Please check with Jesse about the following items staying with the house:
Media room all present equptment ,Inc. TV ( not that I know how to use it)
.mirrors in Masterbath .
xstainless table in kithchen
airplane lights in boys room C>
This is all that comes to mind for now....
If you need to reach me ,feel freeto call,my cell is 717-0694 ,however I will be up in the country for
no reception up there...
Regards
s/g/2006
Mq W
Page 1 of 1
is