TO: Napa County Planning Commission
FROM: Brian D. Bordona - Director of Planning, Building and Environmental Services
REPORT BY: Andrew Amelung - Planner II
SUBJECT: Solar Pavilion Variance (P24-00122-VAR)
RECOMMENDATION
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SOLAR PAVILION VARIANCE / GREGORY SIEWART / NO. P24-00122-VAR
CEQA status: It has been determined that this type of project is statutorily exempt from the California Environmental Quality Act. [See “Projects Which are Disapproved” subsection (a) and (b) which may be found in the guidelines for the implementation of the California Environmental Quality Act at 14 CCR §15270.]
Request: That the Napa County Planning Commission consider the following: denial of a Variance Application to maintain an existing unpermitted pavilion located within the side and rear yard setbacks.
The project is located on an approximately 0.16-acre parcel within the Residential Single (RS) base zoning district and Urban Reserve (UR) combining district with a Rural Residential (RR) designation at 2234 Sandra Dr., Napa, CA 94558; APN: 042-081-012-000.
Staff Recommendation: Deny the Variance Application.
Staff Contact: Andrew Amelung, Planner II, 1195 Third St, Suite 210, Napa, CA 94559; (707) 253-4307; andrew.amelung@countyofnapa.org
Applicant Contact: Gregory Siewert, 2234 Sandra Dr., Napa, CA 94558; (707) 478-9214; gregsiewert@gmail.com
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EXECUTIVE SUMMARY
PROPOSED ACTIONS:
That the Planning Commission: Deny Variance Application No. P24-00122-VAR because one or more of the required findings for approving a variance cannot be met.
On May 8, 2024, the Applicant submitted a request for a variance to maintain an existing unpermitted pavilion that is in use as a shade structure with unpermitted electrical installations located four (4) feet within the side yard of the required six (6) foot setback and 13 feet within the rear yard of the required 15 foot setback of the property, and does not meet the minimum five (5) feet from the property line for miscellaneous improvements in yards. The structure is approximately 385 square feet (35 feet x 11 feet) and is approximately nine (9) feet in height. This structure is currently a code violation and part of Code Enforcement Case CE23-00100. Variances are applied prospectively and not as a means to cure existing code violations.
According to Napa County geodatabase satellite imagery, the structure was constructed at some point between 2002 and 2005 without a building permit. The property was purchased by the applicant in 2011 and in 2020 the installation of 10 solar panels on the structure was permitted by the County. The variance is requested as to the yard development standards required in the RS zoning district (NCC § 18.104.010), as well as the requirements for the placement of detached accessory buildings and solar panel systems (NCC § 18.104.140) and the requirements for miscellaneous improvements in yards (NCC § 18.104.280).
Application materials and staff report are available on the Department’s Current Projects Explorer at: https://www.countyofnapa.org/2876/Current-Projects-Explorer
Staff has reviewed the proposed project and recommends that the Planning Commission deny the Variance application.
ENVIRONMENTAL IMPACT
ENVIRONMENTAL DETERMINATION: It has been determined that this type of project is statutorily exempt from the California Environmental Quality Act. [See “Projects Which are Disapproved” subsection (a) and (b) which may be found in the guidelines for the implementation of the California Environmental Quality Act at 14 CCR §15270.]
BACKGROUND AND DISCUSSION
Owner: Gregory and Heather Siewert
Applicant: Gregory Siewert
Zoning: RS-UR Zoning District
General Plan Designation: Rural Residential
Filed: May 8, 2024
Complete: July 25, 2024
Property Area: 0.16 Acres
Existing Development: Single Family Primary Dwelling Unit, detached carport, shade and solar pavilion structure
Proposed Structural Development: N/A
Adjacent General Plan Designation / Zoning District / Land Use:
North - Rural Residential General Plan designation / RS-UR Zoning District / Single-family Residence
East - Rural Residential General Plan designation / RS-UR Zoning District / Single-family Residence
South - Rural Residential General Plan designation / RS-UR Zoning District / Single-family Residence
West - Rural Residential General Plan designation / RS-UR Zoning District / Single-family Residence
Parcel History: Lot 30 - Final Map of Pueblo Park, filed April 23, 1954
Code Compliance History: CE21-00008; CE23-00100
Discussion:
Required Findings for Variance Approval
In order to approve a variance request, all of the following findings must be met and supported by substantial evidence. It is important to note that if the first substantive finding requiring “special circumstances” cannot be met, then no further analysis is necessary, and the variance cannot be approved. Staff has determined there are no special circumstances applicable to this property and recommends denial.
Pursuant to NCC § 18.128.060(A) - Findings prior to issuance - before issuing a variance, the zoning administrator or the commission shall make all of the following written findings: 1) that the procedural requirements set forth have been met; 2) that special circumstances exist applicable to the property, including size, shape, topography, location or surroundings, because of which strict application of the zoning district regulations deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification; 3) that granting of the variance is necessary for the preservation and enjoyment of substantial property rights; and 4) that granting of the variance will not adversely affect the public health, safety or welfare of Napa County.
Staff has analyzed each of the required findings as follows:
1) That the procedural requirements have been met:
Staff Response: An application and the required processing fees have been submitted for a variance, accompanied with a statement from the applicant outlining the reasons for the request. Site plans depicting the location of the project and elevation drawings showing the appearance of the existing structure have been submitted as required by Napa County Code (NCC) § 18.128.020. According to NCC § 18.128.040, the applicant shall bear the burden of proof in establishing facts supporting the applicant’s eligibility for granting of a variance while also providing other appropriate information, including graphic depictions necessary to show the grounds for granting of a variance. As such, the applicant has submitted a narrative with responses to the required findings and the appropriate information needed to assess the request of a variance.
Noticing and public hearing requirements have been met. The hearing notice for the December 4, 2024, public hearing was posted on November 23, 2024, and copies were forwarded to property owners within 1,000 feet of the project parcels and all other interested parties.
2) That special circumstances exist applicable to the property, including size, shape, topography, location or surroundings, because of which strict application of the zoning district regulations deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification:
Staff Response: No special circumstances exist that are applicable to the property, including size, shape, topography, location or surroundings, which would deprive the property of privileges enjoyed by other property in the vicinity and under identical zoning classification. The parcel is a rectangular lot that is approximately the same size and dimensions on grade as those within the same subdivision. The structure extends four (4) feet into the required six (6) foot side yard setback and 13 feet into the required 15 foot rear yard setback. The existence of a swimming pool in the developable space behind the dwelling unit is the primary limiting factor for the nonconforming placement of the solar pavilion. The applicant will not suffer practical difficulties and unnecessary hardships in the absence of a variance, other than the financial consequences required to abate the existing violations performed by the prior owner. The proposed variance request would be an exception to NCC Chapter 18.52 - RS Residential Single District and NCC Chapter 18.104 - Additional Zoning District Regulations. County Code allows for the development of accessory structures and solar panel systems within yards (NCC § 18.104.140), as well as miscellaneous improvements in yards (NCC § 18.104.280), however both of which may be allowed only under specific development standards, which the existing structure does not meet, primarily maintaining a distance of five (5) feet from the property line.
3) That granting of the variance is necessary for the preservation and enjoyment of substantial property rights:
Staff Response: Granting of the variance is not necessary for the preservation and enjoyment of substantial property rights. The parcel is already developed with a residence and owners are therefore exercising an effective use of the property. The property owners have the right to pursue building permits for a shade structure and a solar array system that are in compliance with NCC § 18.128.020 and NCC § 18.128.040 upon the correction and abatement of the existing violations.
4) That granting of the variance will not adversely affect the public health, safety or welfare of the County of Napa.
Staff Response: Denial of the variance will not affect the public health, safety or welfare of the County of Napa, however granting of a variance for the placement of structure so close to a property line may have unintended effects on public health, safety or welfare.
Special Circumstances & Hardship
Zoning law does not recognize “self-created” hardship and therefore potential financial losses alone caused by zoning compliance do not constitute grounds to grant a variance. Self-imposed hardships also include circumstances in which property owners purchase property in anticipation of obtaining a variance for a use forbidden at the time the owners bought the property. Hardships created by the previous owner of a property also may be considered self-imposed and thus are insufficient for a variance. (PMI Mortgage Ins. Co. v. City of Pacific Grove, (1981) 128 Cal. App. 3d 724, 731-32, San Marino v. Roman Catholic Archbishop, (1960) 180 Cal. App. 2d 657, 672; Minney v. Azusa, (1958) 164 Cal. App. 2d 12, 31-32.
No hardship exists as a result from special circumstances relating to the property that are not shared by other properties in the area. The most unique aspect of the property is its location within an island of Napa County jurisdiction surrounded by the City of Napa, however even if the parcel were located in the City, according to the City of Napa Zoning Ordinance § 17.33.030 - Single-Family Home Standards, the minimum side yard setback would be five (5) feet with a rear yard setback of 15 feet.
While the applicant claims the structure existed when the property was purchased in 2011, it is the property owner’s responsibility to conduct research and due diligence on the property including the existence of any violations and its compliance with Napa County Code standards. Furthermore, the current property owner is responsible for any code violations on their property including correcting violations from a prior owner.
The primary dwelling unit, unpermitted carport, and unpermitted solar pavilion are located on a parcel that is approximately 0.16 acres, or 6,970 square feet, with approximately 3,564 square feet of buildable area after taking into account the yard imposed by County Code. The parcel was created in 1954, prior to the adoption of the County’s current parcel design standards described in Section NCC § 18.104.110, which require a minimum of 8,000 square feet for parcels in the RS zoning district. The parcel is located within an island of County jurisdiction surrounded by the City of Napa, and while the parcel is zoned with an Urban Reserve (UR) combining district, the General Plan for the property and neighborhood is Rural Residential (RR) despite its urban nature. However, if the parcel were to be annexed by the City of Napa, according to the City of Napa Zoning Ordinance § 17.33.030 - Single-Family Home Standards, the minimum side yard setback would be five (5) feet with a rear yard setback of 15 feet, with certain allowances for accessory structures up to three (3) feet from the property line.
Parity
The variance is not necessary to bring the applicant into parity with other property owners in the same zone and vicinity. Conversely, allowing the variance would grant the owner a special privilege. Applicant must show that characteristics of their property differ from other similarly situated properties. In order to establish parity, the applicant provided an aerial image with a cluster of random houses with other “non-compliant” structures highlighted. However, the random sample alone does not provide substantial evidence that applicant’s property has characteristics that differ from those other parcels. The existence of other code violations within the area does not constitute the right to maintain a code violation. Within the general vicinity (all Napa County parcel numbers beginning with 042), a county record search shows that over the past ten years there have been 2,153 documents submitted to the Building Division that are associated with approved building permits, however no variances have been issued during the same ten-year period.
Code Enforcement Notice of Violation
In April 2023, it was brought to the Napa County Code Enforcement Division’s attention that two unpermitted structures were on the property located at 2234 Sandra Drive (Code Enforcement Case CE24-00100). One structure was an unpermitted detached carport that did not meet the required distance between structures and was situated on two sides of a fence that ran through the property. The other structure was an unpermitted shade structure with electrical installations and a solar array mounted on the roof, which did not meet the required side and rear setbacks. An inspection was requested on May 1, 2023, and conducted on May 10, 2023, during which zoning and building violations that required immediate attention were observed. A Notice of Violation was issued for the property on May 31, 2023, with further direction on the abatement process. The applicant agreed to pursue a demolition permit for the unpermitted carport, with plans to construct an attached carport that would meet County development standards in its place. An application for a demolition permit for the noncompliant carport was submitted in November 2023, and issued in December 2023, however it expired in February 2024 without any demolition activities taking place. The applicant requested a Pre-Application meeting to discuss the possibility of applying for a Variance from County setback requirements. On January 18, 2024, the applicant attended an in-person meeting with Planning, Building and Code Enforcement staff and was informed that it was unlikely that staff could support the Variance request. On May 8, 2024 the applicant submitted an application for a variance to maintain the noncompliant and unpermitted solar pavilion.
Shade Structure History
According to Napa County geodatabase satellite imagery, the shade structure was constructed at some point between 2002 and 2005 without a building permit. The property was purchased by the applicant in 2011. While the applicant has claimed that, based on Google Earth imagery, that the structure has existed for 20 years without issue (see Attachment C), Napa County geodatabase satellite imagery shows that the structure was demolished in 2018 and rebuilt as what appears to be a slightly larger structure (see Attachment E).
Solar Permit History
In 2020, the applicant obtained a solar permit from the Building Division (BR20-01841-AES) to mount a solar array system on the roof of the primary dwelling unit as well as on the roof of the shade structure. Because the solar system was processed as a streamlined ministerial building permit, it did not require inspection or review by the Planning Division. The site plans submitted for the solar permit inaccurately depicted the shade structure as an Accessory Dwelling Unit and inaccurately showed a side and rear yard setback of five feet from the property line.
RS Zoning District Yard Setbacks Requirements
According to NCC § 18.104.010, front and rear yard setbacks for the RS zoning district are 20 feet, while the side yard setback is six (6) feet, with three (3) additional feet for each story above the first story of any building, as well as a minimum 10-foot yard setback on the street side of a corner lot. According to the submitted site plans (See Attachment D), the solar pavilion is two (2) feet from the side yard property line and two (2) feet, three (3) inches, from the rear yard property line. At a site visit conducted on June 25, 2024, the structure was measured as being one (1) foot, 11 inches from the property side-yard property line, and two (2) feet, two (2) inches from the rear-side property line (see Attachment E).
Detached Accessory Structures and Solar Array System Requirements
According to NCC § 18.104.140 a detached garage, accessory building or solar panel system may occupy not more than 50 percent of the area of a rear yard. The area of the rear yard of the property measures to approximately 1,200 square feet, while the area of the structure is 385 square feet, which does not exceed 50 percent of the area of a rear yard. NCC § 18.104.140 further states that if such a structure is situated not less than 70 feet from any street it may be located not closer than five (5) feet. This demonstrates that the closest an accessory structure or solar panel system can be from the property line is five (5) feet. Furthermore, NCC § 18.104.140 states that an accessory structure not having a common wall with the main building shall not be placed closer than eight (8) feet from the primary building. The solar pavilion as it exists does not meet the eight (8) feet required distance from the unpermitted detached carport, which does not meet the eight (8) feet required distance from the main building.
Miscellaneous Improvements in Yard Requirements
NCC § 18.104.280 does allow for certain miscellaneous improvements in yards, including subsection (D) which allows swimming pools, spas, trellises, arbors and gazebos, but only if located in rear and side yards and are more than five (5) feet away from any property line, which the current structure does not meet.
Public Comments
As of the date of this staff report, the County has received zero public comments on the variance proposal.
Decision Making Options:
As noted in the Executive Summary Section above, staff is recommending the Planning Commission deny the variance as summarized in Option 1, below. Decision making options include the following:
Option 1 - Deny Proposed Variance (Staff Recommendation)
Disposition - This action would result in the denial of a variance to maintain the unpermitted and noncompliant solar pavilion. Staff recommends this option as, with the denial of the variance, the request is consistent with the Zoning Ordinance, applicable General Plan policies, and other County regulations.
Action Required - Follow the proposed action listed in the Executive Summary and deny the proposed variance.
Option 2 - Approve Proposed Variance
Disposition - Should the Commission disagree with Staff’s recommendation and feel that each one of the variance findings can be made, this action will result in approval of a variance to maintain the unpermitted and noncompliant solar pavilion. However, Commissioners must articulate what aspects of the project satisfy each of the required findings for variance approval per NCC § 18.128, based on substantial evidence. This is a high bar and could result in other similarly situated non-compliant parcels to also seek a variance to cure code violations.
Action Required - Commission deliberates on the aspects of the project meet the required findings. Commission would make a motion to continue to a date certain to allow Staff to prepare recommended findings and complete CEQA review documents in support of approval.
Attachments:
A. Code Enforcement Documents
B. Application Packet and Project Statements
C. Site Plans
D. Graphics
E. Public Comments