Project Title:
10000 Morgan Territory Road Variance and Tree Permit
County File Number:
CDVR25-01012
Appellant:
Michael Milani
Applicant/Owner:
Cheryl Rayma Green (Applicant & Owner)
Zoning/General Plan:
A-40 Exclusive Agricultural District / AL Agricultural Lands
Site Address/Location:
10000 Morgan Territory Road in the Livermore area of unincorporated Contra Costa County (Assessor's Parcel Number: 006-110-016)
California Environmental Quality Act (CEQA) Status:
Exempt, CEQA Guidelines Section 15061(b)(4) and CEQA Guidelines Section 15301(a)
Project Planner:
Allison Seoane, Project Planner (925) 655-2871
Allison.Seoane@dcd.cccounty.us
Staff Recommendation:
Deny (See section II for full recommendation)
I. PROJECT SUMMARY
This is an appeal of the Zoning Administrator's decision to deny a Variance and Small Lot Design Review to allow a 6-foot front yard setback (where 25 feet is the minimum required) for two, 8-foot tall columns to support an entry gate.
The Zoning Administrator's decision to approve a Tree Permit to allow work within the dripline of one code-protected tree for the installation of the mechanical equipment for the entry gate is not being appealed.
II. RECOMMENDATION
Department of Conservation and Development, Community Development Division (CDD) staff recommends that the County Planning Commission:
A. DENY the appeal.
B. FIND that the Variance is exempt from CEQA under Section 15061(b)(4) of the CEQA Guidelines.
C. FIND that the Tree Permit is exempt from CEQA under Section 15301(a) of the CEQA Guidelines.
D. UPHOLD the Zoning Administrator's denial of the Variance and Small Lot Design Review and approval of the Tree Permit under County File CDVR25-01012, based on the attached findings and conditions of approval.
E. DIRECT staff to file a Notice of Exemption with the County Clerk.
III. GENERAL INFORMATION
A. General Plan: AL - Agricultural Lands.
B. Zoning: A-40 Exclusive Agricultural District.
C. California Environmental Quality Act (CEQA): CEQA Guidelines, Section 15061(b)(4), Review for Exemption, exemption for projects that will be rejected or disapproved by a public agency.
CEQA Guidelines, Section 15301(a), Existing Facilities, Class 1 exemption for exterior alterations of existing facilities.
D. Previous Applications:
1. CDLL85-00081: A Lot Line adjustment to change the common property line to conform to an existing fence between APN: 006-110-019 and the subject property at APN: 006-110-016 was approved by the CDD on December 27, 1985.
2. CDLL12-00002: A Lot Line Adjustment between the subject property at APN: 006-110-016 and 006-110-028 was denied by the Zoning Administrator on October 23, 2012 due to non-payment of penalty fees.
3. CDLP23-02055: A Land Use Permit to legalize an existing second single-family residence with a Variance to allow a 7-foot front yard setback (where 25 feet is the minimum required) and a 43-foot side yard setback (where 50 is the minimum required) was approved by the Zoning Administrator on November 18, 2024 contingent on completion of concurrent Lot Line Adjustment CDLL23-00022.
4. CDLL23-00022: A Lot Line adjustment to transfer 6,525 square feet of land from APN: 006-110-028 to the subject property at APN: 006-110-016 concurrent with CDLP23-02055 is still ongoing and has not been completed.
IV. BACKGROUND
A. BIRF05-00618 Code Enforcement Case: Code Enforcement Case BIRF05-00618 for two columns exceeding 6 feet in height, an electric gate built without permits, and two unpermitted residences was initiated on April 7, 2005. A Courtesy Letter was sent to the property owner on April 18, 2005. A Notice of Pending Nuisance Abatement was sent on August 21, 2007. A Determination of Fine was filed on July 15, 2010. The case was closed with a lien on February 28, 2012.
On June 26, 2018, the Board of Supervisors approved Ordinance No. 2018-15 to amend the County Zoning Code section 82-4.270 to exempt fences with a maximum height of seven feet from the definition of "structure," where previously, fences with a maximum height of six feet were exempt from the definition of structure. This Zoning Code amendment was passed in order to align with the new California Building Codes that were in effect as of January 1, 2017.
B. CDLP23-02055 Land Use Permit: A Land Use Permit application and a Lot Line Adjustment application were accepted by the Department of Conservation and Development on December 4, 2023. The Land Use Permit was approved by the Zoning Administrator on November 18, 2024, which legalized one previously constructed, unpermitted residence with a Variance to allow substandard front yard and side yard setbacks and conditioned the second unpermitted residence inside a previously existing barn to be restored to a barn. The Variance is contingent upon completion of concurrent Lot Line Adjustment CDLL23-00022 as the approved setbacks are based on the new lot line configuration.
C. Zoning Administrator Decision on the CDVR25-01012 Variance: A Variance application was accepted by the Department of Conservation and Development on February 12, 2025. A Notice of Intent to Recommend Denial of the Variance and Small Lot Design Review was sent on April 10, 2025, which included an opportunity to request a public hearing before the Zoning Administrator (ZA). There was no hearing request received by staff.
On June 18, 2025, the CDVR24-01012 permit to deny the Variance and Small Lot Design Review and approve the Tree Permit was signed by the Deputy Zoning Administrator.
D. Appeal of the Zoning Administrator Decision: An appeal of the Zoning Administrator decision was filed on June 26, 2025, within the 10-day appeal period, by Michael Milani, the project contact person, on behalf of the property owner.
V. SITE AREA/DESCRIPTION
The subject property is in a 14.55-acre kite-shaped lot on the west side of Morgan Territory Road. The lot is developed with a barn in the north corner, and two, two-story single-family residences along the northeast property line to the south-west of the barn. The lot is similar to several neighboring lots in that many of the lots along Morgan Territory Road are substandard and less than the required minimum 40-acre lot size and 250-foot average lot width. A mechanical gate and two 8-foot tall stone supporting columns have been built on the lot between the primary residence and Morgan Territory Road, as shown on the photos as Attachment D. The gate and columns are within the required minimum front yard setback.
VI. PROJECT DESCRIPTION
The applicant requests approval of a Variance to allow a 6-foot front yard setback (where 25 feet is the minimum required) for two, 8-foot tall columns to support an entry gate and a Tree Permit to allow work within the dripline of one code-protected tree for the installation of the mechanical equipment. The two columns and mechanical equipment were installed without first obtaining a building permit. Approval of the Variance and Small Lot Design Review is necessary to obtain a building permit for the columns as built, because at their current height they are considered structures pursuant to County Code Section 82-4.270(2), and therefore, are subject to setbacks and small lot design review. The applicant is requesting the County Planning Commission to overturn the Zoning Administrator's decision to deny the Variance and Small Lot Design Review.
VII. APPEAL
An appeal letter from Michael Milani, the contact person for CDVR25-01012, was received on June 26, 2025. The appeal letter is included as Attachment B. This appeal is based on three appeal points, each of which are summarized below and followed by a staff response.
A. Summary of Appeal Point #1: In response to Variance finding #1, the appellant states that the Variance would not constitute a grant of special privilege because the property is located in a rural area, and many immediate neighbors have similar, large, entrance gates. The appellant also states that the support columns do not pose health and safety concerns.
Staff Response: Variance finding #1 requires evidence to be brought forth that proves that there is not a grant of special privilege inconsistent with the limitations on other properties in the vicinity and the respective land use district of the subject property. There is no quality about the subject property that constitutes a limitation that the neighboring properties do not experience. The subject lot is a similar size and topography to the neighboring properties. The shape of the lot, while different from its neighbors, does not limit the property from constructing an entry gate with support columns to be either 7 feet tall and thus not subject to setbacks, or taller than 7 feet and conforming to A-40 zoning setbacks.
The A-40 zoning district is specifically designated for low density, rural areas. Therefore, the rural setting is not a reason to allow a reduced front yard setback for the columns, and the reduced front yard setback is inconsistent with the A-40 zoning district.
The appellant did not provide addresses so Staff may verify the legality or existence of these alleged gate structures located in the required front setback for properties in the vicinity. Further, the approval of a variance for one property does not constitute that other neighboring properties in the vicinity may be subject to the same variance. Each project must meet variance findings independent of each other.
Finally, health and safety are not requirements of the Variance findings.
B. Summary of Appeal Point #2: In response to Variance finding #2, the appellant claims that the property is in a rural area and the strict application of zoning requirements would not protect the general public or visitors. The appellant states that the gate has been in place for decades without health or safety issues.
Staff Response: The appellant has not provided evidence as to what special circumstance applies due to the property's size, shape, topography, location, or surroundings that deprives the subject property of rights enjoyed by others in the vicinity. The A-40 zoning district is specifically designated for low density, rural areas. Therefore, the rural setting is not a reason to allow a reduced front yard setback as required for the two columns.
The area is relatively flat, and the entry gate is still achievable even if the columns were lowered to 7 feet, so the columns could legally be located within the front yard setback without a variance.
Further, the fact that the gates have been in place for 20 years without necessary permits and the property owner has never sought to legalize the gates until now. is not a finding for granting a variance.
C. Summary of Appeal Point #3: In response to Variance finding #3, the appellant claims that the Variance meets the intent and purpose of the land use district because the A-40 zoning district allows for accessory structures auxiliary to single-family residences. The appellant claims that the columns, while oversized, are still subordinate to both residences on the property.
Staff Response: The property in the A-40 district is subject to the allowed uses set forth in Section 84-82 of the County Ordinance Code, which includes a detached single-family dwelling and the accessory structures and uses normally auxiliary to it. An entry gate with support columns could be consistent with the residential uses allowed in the A-40 district provided it meets the regulations set forth in County Code Section 82-4.270 that either allow for two 7-foot tall support columns that are exempt from setback requirements, or two 8-foot tall support columns that would be deemed accessory structures required to be set back 25 feet from the front property line. Because the support columns comply with neither of these requirements, the previously constructed oversized columns do not meet the intent and purpose of the A-40 district.
VIII. STAFF ANALYSIS
Columns that exceed 7 feet in height are considered structures that are required to meet the setbacks of the zoning district where the subject property is located per County Ordinance Code Section 82-4.270. The subject property is located along the east side of Morgan Territory Road where lots in the A-40 Exclusive Agricultural District are intended to be a minimum of 40-acres, but are generally a minimum of 5 acres. The subject property lacks qualities that would be considered a limitation that is not experienced by other properties in the vicinity and in the respective A-40 land use district that necessitate the placement of column structures within the front yard setback. Therefore, granting a variance to allow a 6-foot front yard setback (where 25 feet is the minimum required) for two 8-foot tall entry gate support columns would be a grant of special privilege.
There does not appear to be any special circumstance applicable to the subject property due to its size, shape, topography, location or surroundings that support relief from the zoning regulations for the oversized columns. The lack of physical constraints on the property does not show that the applicable zoning regulations would deprive the subject property of the rights enjoyed by other properties in the vicinity and in the A-40 District.
The A-40 District allows a detached single-family dwelling and auxiliary accessory structures. The two entry gate support columns could be consistent with the residential uses allowed in the A-40 District provided they are reduced to 7-feet in height, and are therefore not structures subject to setback requirements per County Ordinance Code Section 82-4.270. Alternatively, the columns could be setback 25 feet so as to not be in the front yard setback. Therefore, approval of a Variance to allow the previously constructed oversized support columns would not meet the intent and purpose of the A-40 District.
IX. CONCLUSION
The location of the previously constructed columns on the subject property is a predominantly flat area. The subject property in the A-40 Exclusive Agricultural District can accommodate two support columns that are 7-feet in height, or alternatively, columns that are not in the front yard setback, and therefore, a Variance to the A-40 front setback requirement would not be required. Staff is unable to make the required findings for recommending approval of the Variance and the Small Lot Design Review to allow for two eight-foot-tall entry gate support columns that have a front setback of 6 feet (where 25 feet is the minimum required). Therefore, staff recommends denying the appeal and upholding the Zoning Administrator's decision on CDVR25-01012 to deny the Variance and Small Lot Design Review to not allow the two 8-foot tall columns to have a front setback of 6 feet (where 25 feet is the minimum required), and approve the Tree Permit to allow work within the dripline of one code-protected tree for the installation of the mechanical equipment for the entry gate, based on the findings, which are included as Attachment A.
County Planning Commission - September 10, 2025
CDVR25-01012
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