To: Board of Supervisors
From: John Kopchik, Director, Conservation and Development
Report Title: 2 Highland Blvd. Kensington Appeal (County File #CDDP24-03011)
☒Recommendation of the County Administrator ☐ Recommendation of Board Committee
RECOMMENDATIONS:
1. OPEN the public hearing on an appeal of the County Planning Commission’s decision to approve the construction of a 568-square-foot rooftop deck and Juliet balcony addition to an existing single-family residence located at 2 Highland Boulevard in the unincorporated Kensington area; RECEIVE testimony; and CLOSE the public hearing.
2. DENY the appeal by Heman Patel and Aditi Shastri.
3. DETERMINE that the proposed project is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15301.
4. APPROVE a Kensington Design Review Development Plan for the project to allow construction of a 568-square-foot rooftop deck and Juliet balcony (County File No. CDDP24-03011).
5. APPROVE the findings in support of the project.
6. APPROVE the project conditions of approval.
7. APPROVE the 2 Highland Boulevard Residential Deck/Balcony Project.
8. DIRECT the Director of Conservation and Development to file a Notice of Exemption with the County Clerk.
FISCAL IMPACT:
The applicant has paid the necessary application deposit and is obligated to pay supplemental fees to cover all additional costs associated with the application process.
BACKGROUND:
This hearing is an appeal of the County Planning Commission’s January 8, 2025 decision to approve a Kensington Design Review Development Plan (County File No. CDDP24-03011) for a new rooftop deck with railing and a new Juliet balcony at an existing single-family residence located at 2 Highland Boulevard in the Kensington area
A Kensington Design Review application for the proposed project was submitted to the Community Development Division (CDD) on November 17, 2023. In accordance with the provisions of the Kensington Combining District Ordinance, a notice was sent to neighboring property owners within 300 feet of the subject property. During the 34-day notification period, the Community Development Division (CDD) received one letter requesting a public hearing and on April 1, 2024, the applicant submitted a Development Plan application to move forward with the project
The development plan application was heard by the Zoning Administrator (ZA) on October 7, 2024. The Zoning Administrator opened the hearing for public comments. The applicant was present and there were no other speakers. The Zoning Administrator approved the project with a modification to Condition of Approval #3 - Landscaping for Privacy Screening to require vegetative screening along the property line between the subject property and the property located at 7 Arlington Avenue to reduce privacy impacts. The Zoning Administrator added that the approved vegetative screening is to be installed prior to final building inspection. On October 17, 2024, an appeal to the Zoning Administrator’s decision was submitted by Heman Patel and Aditi Shastri.
On January 8, 2025, the County Planning Commission (CPC) heard the appeal of the ZA’s decision to approve the development plan. The applicant and the appellants were present at the hearing. After receiving testimony from both the applicant and the appellant and considering CDD staff’s project analysis, the CPC voted (5-0) to deny the appeal and approved the project with the following modification to the condition of approval (COA) #3:
The applicant shall install and maintain evergreen drought-tolerant vegetative screening that extends no less than 6 feet above the existing fenceline and at least 8-feet wide within the affected area between the subject property and the property located at 7 Arlington Avenue to reduce privacy impacts. The vegetative screening shall be consistent with the County’s Water Efficient Landscapes Ordinance. At least 30 days prior to issuance of a building permit, the applicant shall submit landscaping plans that demonstrate compliance with the above requirement for vegetative screening for the review and approval of CDD. Approved vegetative screening shall be installed prior to issuance of the building permit.
PROJECT DESCRIPTION
The proposed project is for the addition of an approximately 568-square-foot rooftop deck extending towards the eastern property line above existing living space and a new approximately 7-square-foot Juliet balcony on the southwestern portion of an existing single-family residence. The new gross floor area will be 2,189 square feet, where 2,600 square feet is the maximum gross floor area.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
The proposed project is exempt under CEQA Guidelines Section 15301(e)(1) - Existing Facilities. Additions to existing structures are exempt from environmental analysis provided that the addition will not result in an increase of more than “50 percent of the floor area of the structures before the addition, or 2,500 square feet, whichever is less.” The project is to build a rooftop deck above the existing living space and a new Juliet balcony. The existing single-family residence is 2,182 square feet. The project will include the addition of approximately 575 square feet of floor area, less than 50 percent of the existing floor area.
ZONING AND GENERAL PLAN
The subject property is located within the R-6 Single-Family Residential District. The parcel was formerly designated as Single-Family High Residential (SH), the new updated General Plan designation is Residential Medium Density (RM). The proposed development is consistent with the current zoning and meets the intent and purpose of the General Plan designation.
APPEAL OF THE COUNTY PLANNING COMMISSION’S DECISION
One letter of appeal to the CPC’s decision was timely submitted on January 21, 2025, from Heman Patel and Aditi Shastri of 7 Arlington Avenue. Summary of the appeal points in the letter and staff responses are provided below.
Appeal Letter of Heman Patel and Aditi Shastri
Appeal Point 1: The single, drought tolerant tree to cover a height of 6 ft. over existing fence and width of 8 ft. that was proposed as a Condition of Approval is inadequate for the following reasons:
a. Provide the bare minimum privacy coverage, even at the full height and width
b. The full height and width would not be reached for 3-5 years during which the appellants will not have the bare minimum privacy protection
c. The protected dimensions only protect up to 4.5. ft. height and 6 ft. width because 25 percent trimming is allowed from protected dimensions even after those 3-5 years
d. There is no fine or penalty for failing to maintain or cut the protected tree other than a requirement to replant the tree and give it the required 3-5-year period to reach the protected dimensions.
Staff Response: During a site visit conducted on August 29, 2024, Staff was shown wooden poles on the fence for a visual representation of the area that appellants assert needs to be covered to block the view from the subject property to appellants’ neighboring property at 7 Arlington Avenue. The space proposed for coverage by appellants was approximately 5 feet wide and 8 feet tall. At a second site visit conducted on November 1, 2024, the appellants utilized an opaque plastic sheet with the story poles to demonstrate the area of high concern for privacy. The total height of the opaque plastic sheet structure was about 73 inches (approximately 6 feet) above the existing fence. The County Planning Commissions’ decision to approve the project included a modification to the recommended Condition of Approval (COA) #3 - Landscaping for Privacy Screening. At the County Planning Commission meeting, the compromise was to require vegetative screening that would extend to no less than 6 feet above the existing fence and at least 8 feet wide within the affected area between the subject property and the property located at 7 Arlington Avenue to reduce privacy impacts.
Regarding the future cutting or maintenance of the vegetative screening, COA#3 requires the applicants to maintain the vegetative screening at the listed dimensions. Failure to maintain compliant vegetative screening would violate the development plan conditions of approval, and the County may enforce compliance. Moreover, it is anticipated by the applicant and staff that the vegetative screening will be achieved by the planting of one or more trees of a size and dimensions sufficient to satisfy COA#3 at the time of planting. The County’s Tree Protection and Preservation Ordinance (Chapter 816-6 of the County Ordinance Code) provides that any tree required to be retained as a condition of approval of a development plan is code -protected. That is, the County’s Tree Protection and Preservation Ordinance provides that any tree providing the required vegetative screening could not be cut down, destroyed, topped, or removed, and no trenching, grading, or filling could occur within the dripline of the protected tree, except pursuant to a tree permit issued by the County. Routine pruning, not involving topping or tree removal would be allowed.
Appeal Point 2: The drought-tolerant tree would be planted prior to construction permit approval but it would not be required to reach the protected height prior to construction approval.
a. The proposed tree would provide no privacy protection during construction unlike a permanent screen.
b. The proposed tree would provide no privacy protection even at the minimal code protected dimensions for 3-5 years.
c. The proposed tree could be cut down at any time without any consequences other than the requirement to replant the tree and restart the 3-5 year period needed to reach the protected dimensions.
Staff Response: COA#3 requires that applicant to submit landscaping plans, at least 30 days prior to issuance of a building permit, that demonstrate compliance with the vegetative screening requirement for the review and approval of CDD. The COA also requires that approved vegetative screening must be installed prior to issuance of the building permit.
Staff and the CPC considered the appellants’ request for a permanent structure, as opposed to vegetative screening. However, a permanent structure that extends 6 feet above the existing fenceline would require approval of a variance. A variance application has not been submitted by the applicant. But staff has considered whether circumstances and the evidence in this case support the required findings for approval of a variance, and staff does not believe a variance is warranted or appropriate in this case. The proposed project would not have a substantial privacy impact on neighboring properties, and any impact can be appropriately mitigated with the required vegetative screening.
Currently, there is an existing Maple tree located at the rear of 7 Arlington Avenue that partially blocks the view from the subject property to 7 Arlington Avenue. While the existing Maple tree provides partial temporary partial screening, the COA#3 is intended to provide a more robust mitigation to any additional privacy impacts from the project. The CPC’s decision to approve the project with the modified COA#3 was based on the evidence and testimony received, including review of the existing screening elements on site. COA #3 provides guidelines to the type of vegetation and timing of installation to address the main concerns with full coverage and growth time of the tree and/or vegetation. The revised condition of approval includes a requirement from the applicant to submit landscaping plans that demonstrate compliance with the above requirement for vegetative screening for review and approval by the Department of Conservation and Development, Community Development Division at least 30 days prior to issuance of a building permit. The approved vegetative screening will be required to be installed prior to the issuance of the building permit. And as discussed above, the vegetative screening can be enforced by the County and may include code-protection under the County’s Tree Protection and Preservation Ordinance if the screening is provided, as intended, by the planting of one or more trees.
Appeal Point 3: The appellants state that they did not receive a Final Condition of Approval for their review prior to the appeal period.
Staff Response: Conditions of Approval are not final until the appeal period has expired and no appeal is filed. Here, staff provided appellants the link to the County Planning Commission hearing for reference to the action taken by the CPC, including the approved conditions of approval. Moreover, both appellants were present at the hearing, and the appeal letter reflects the modifications approved by the Planning Commission.
CONCLUSION AND STAFF RECOMMENDATION
The proposed development is consistent with the RM, Residential Medium Density General Plan Land Use designation, and substantially complies with the intent and purpose of the R-6 Zoning District. The project is also consistent with the -K Combining Districts; therefore, as proposed, the subject improvements to an existing residence are an appropriate use for the subject site and its characteristics. Staff recommends that the Board of Supervisors deny the appeal and approve County File #CDDP24-03011, based on the attached findings and conditions of approval
CONSEQUENCE OF NEGATIVE ACTION:
If the Board were to grant the appeal or deny the project, the property owner would not be allowed to build the rooftop deck and Juliet balcony.