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16. Kamdar appeal (went to CC via email on Mon) Item No. 16 regarding the Jay Kamdar Revocable Encroachment Permit appeal: The applicant withdrew his request for a hearing after the agenda had already been printed. If you wish to see a copy of the staff report please notify the clerk's office for a copy. I~-I ~ CITY OF CUPEI\TINO Parks and Recreation Department CITY COUNCIL STAFF REPORT Agenda Item Number llo May 1, 2007 ISSUE: Consider adopting a resolution upholding the City Manager's designated hearing Officer's decision to deny an appeal by Jay Kamdar regarding the issuance of a Revocable Encroachment Permit by the Director of Public Works for the installation of a fence adjacent tot 10060 Carmen Road. BACKGROUND: Mr. Krishna Kidambi, the owner of a new residence constructed at 10060 Carmen Road, contacted staff in late 2006 to ask if the City would allow him to build a fence where the street pavement ends on Carmen Road, up slope of Stevens Creek Boulevard (see attached map and photos). The grade from the end of Carmen Road to Stevens Creek Boulevard is approximately 35%; Mr. Kidambi and Mr. Kumaraswamy, his neighbor directly across the street, expressed concern that children playing ball or riding bikes at the end ofthe street might chase down slope and possibly out to Stevens Creek Boulevard. A standard City guardrail to prevent traffic from going over the slope down to Stevens Creek, barricaded the end of Carmen Road. The guardrail also protected some above and belowground utility installations. The guardrail was insufficient to keep balls from escaping from children playing in the street. In response to Mr. Kidambi's request, staff advised that he should apply for an encroachment permit. The right-of-way past the Kidambi property line is a "paper street", i.e., one with no improvements or purpose for public transit. However, there are utilities present and input/concurrence was needed from the utility companies before a permit could be issued. Mr. Kumaraswamy, Mr. Kidambi's neighbor directly across the street (who also abuts the paper street) was in support ofthe fencing plan. Mr. Kidambi was advised that access to the existing utility pedestal would need to be preserved and that reflective signing would need to be applied to the fence. Unfortunately, prior to fmalizing the details of the encroachment permit, Mr. Kidambi's contractor completed the installation ofthe fence across the end of Carmen Road. 1&'-/ May 1, 2007 Page 2 of4 When questioned by staff about the installation, Mr. Kidambi confirmed he understood that he did not have permission to proceed, but said that he had gone ahead with the work because he wanted to ''beat the coming rain". He was informed that this installation had not been approved and that he would still be subject to a review under an encroachment permit application. He applied for the permit and paid the appropriate fee. The Director of Public Works approved the permit on January 16, 2007. On January 27, 2007, in accordance with Cupertino Municipal Code (CMC) Section 1.16, Mr. Kamdar filed an appeal to the Director of Public Works' decision to approve the encroachment permit for 10060 Carmen Road. The Director of Public Works' decision was upheld after an appeal hearing conducted on March 7,2007. The Hearing Officer's findings are contained in the attached Notice of Determination (NOD) dated March 15, 2007. Also attached are the minutes of the hearing. The Hearing Officer found that the Public Works Director acted properly and in full compliance with the Cupertino Municipal Code. The point-by-point discussion of issues raised in the Kamdar appeal is contained within the NOD, and summarized here for Council's convenience. "1. It seems that the fence is built illegally. City has never notified me of such plans. Even the planning department's plans for the new house never shown any plans to build such fence. " The encroachment permit was issued after considering the existing conditions of the area in question and the impact of the fence on the immediate area as well as the street system and rights-of-way within it. In so doing, the Director of Public Works found that the fence, as an encroachment, does not pose a problem or any kind of hazard since there was a permanent barrier there in the first place to guard against the 35% slope down to Stevens Creek Boulevard. The fence has the appropriate reflective signing and preserves access to the utility box. The encroachment permit was issued after the fact, but there is nothing illegal or precedent setting about the fence. "2. Loss of openness and natural green in my neighborhood. There is a beautiful Oak tree that one can see at full length. Now it is half covered and possibly affecting the health of the tree; AND 3. Thefence looks ugly. Over 6' in height and violation of4'fence limit in front of the house. It is an eye sore. " These complaints are subjective. However, there is no danger to the oak tree from the fence footings as the tree is down slope. The fence is less than six feet high and is not in violation of any code since it is, for all intents and purposes a side yard fence and not a front yard fence. The fence is not solid for its entire height, but rather, is topped by an open lattice weave. I&-.}, May 1, 2007 Page 3 of4 With respect to the notion that the fence is somehow out of character with the existing neighborhood, this neighborhood is zoned for low density residential. The fence is a standard six-foot high side yard fence detail commonly in use throughout the city and it fully complies with all building code requirements for residential fences. As it is installed at the end ofthe street, there are no site distance issues to address. "4. The free access from Stevens Creek for hikers and walkers is now gone. " The new fence has an access opening for the utility cabinet; it does not completely block pedestrian and bicycle access to Stevens Creek. However, as noted above, there is a 35% slope at a drop of 14 feet to Stevens Creek Boulevard. This is not, by any means, a safe or desirable access to the street below. Hoo Hoo Way is a far better access to Stevens Creek Boulevard and is less than 100 feet farther from the cul-de-sac than a Carmen Way connection. Children typically play in this dead-end street, so the fence is an improvement to the barrier in that it prevents soccer balls or other children's playthings from going down the slope to Stevens Creek. Both property owners immediately adjacent to the paper street have children and want the newly constructed fence to remain. "5. There is no public benefit. If the City paid for this fence then it is waste of my tax money. " The City did not pay for the fence. Mr. Kadambi and Mr. Kumaraswamy, his neighbor across the street, cooperated to install the fence in accordance with the City's requirements at their own expense. In his March 23, 2007 email to the City Manager and City Council (also attached), Mr. Kamdar asked the Council to review the Hearing Officer's decision, focusing on the aesthetics of the fence. Mr. Kamdar suggests that his concerns could be addressed by lowering the fence to three feet. When this was proposed in the appeal hearing, the neighbors living adjacent to the fence (who paid for its installation) objected to the proposal saying that three feet would not keep bouncing balls from going down slope to Stevens Creek Boulevard. DISCUSSION: The fence in question, built as part ofthe Kidambi home and paid for by the Kidambi's and the Kumarasway's, is a typical side yard fence. Their plan was to block the unsightly view of guardrail and utility boxes while solving what they perceived as a safety problem. They took this initiative, complied with the city permitting requirements (albeit retroactively) and jointly paid for the installation. Two our knowledge only the Kamdar's have objected to the installation. /&-3 May 1, 2007 Page 4 of4 If the Council determines the fence should be removed, the work would be done at city expense. The Kidambi's and Kumarasway's would not be responsible for removing the installation now permitted. Staff could not find a compelling reason to commit public money to undoing a solution provided by residents that adhered to the permitting process. RECOMMENDATION: Adopt the resolution upholding the City Manager's designated hearing Officer's decision to deny an appeal by Jay Kamdar regarding the issuance of a Revocable Encroachment Permit by the Director of Public Works for the installation of a fence adjacent tot 10060 Carmen Road. Any interested person, including the applicant, prior to seeking judicial review of the City Council's decision in this matter, must first file a petition of reconsideration with the City Clerk within ten days after the Council's decision and any petition so filed must comply with Municipal Ordinance Code 2.08.096 Respectfully submitted: Approved for submission to City Council: '771~ Therese Ambrosi Smith, Director Parks and Recreation Department ~ David W. Knapp, City Manager /h--1 DRAFT RESOLUTION NO. 07-078 A RESOLUTION OF THE CUPERTINO CITY COUNCIL UPHOLDING THE CITY MANAGER'S DESIGNATED HEARING OFFICER'S DECISION TO DENY AN APPEAL BY JAY KAMDAR REGARDING THE ISSUANCE OF A REVOCABLE ENCROACHMENT PERMIT BY THE DIRECTOR OF PUBLIC WORKS FOR THE INST ALLA TION OF A FENCE ADJACENT TO 10060 CARMEN ROAD Whereas, on January 16, 2007, The Director of Public Works issued a revocable encroachment permit for a fence adjacent to 10060 Carmen Road, and Whereas, on January 27,2007, in accordance with Cupertino Municipal Code (CMC) Section 1.16, Mr. Kamdar filed an appeal with the City Manager of the Director of Public Works' decision to approve the encroachment permit for 10060 Carmen Road, and Whereas, an appeal hearing was held by the City Manager's designated Hearing Officer on March 7,2007 at 2:00 PM, and Whereas, the Hearing Officer rendered a decision denying Mr. Kamdar's appeal on March 15,2007, and Whereas, in accordance with CMC Section 1.16, Mr. Kamdar has appealed the Hearing Officer's decision to the City Council, and Whereas, the City Council, in considering the evidence at a regularly scheduled meeting on May 1,2007, considered the testimony presented and found the Public Works Director acted appropriately in issuing the revocable encroachment permit, NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: The Cupertino City Council upholds the City Manager's designated Hearing Officer's Decision to deny an appeal by Jay Kamdar regarding the issuance of a revocable encroachment permit by the Director of public Works for the installation of a fence adjacent to 10060 Carmen Road. i&~5 Resolution No. 07-078 2 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1 st day of May 2007, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST APPROVED: City Clerk Mayor, City of Cupertino J~-& Attachments: Pictures relating to fence adjacent to 10060 Carmen Road in Cupertino California, 95014. Administrative Hearing Minutes dated Wednesday, March 7, 2007 E-mail message from Mr Jay Kamdar to the City Clerk requesting appeal to the City Council /fo -7 Itv ..8 Street view of the fence. View of the fence from Kidamby driveway. Note Guard-rail directly behind fence. /&-7 View of utility boxes and guard-rail behind fence. View of the fence from Stevens Creek Boulevard. J b --/6 ~ CITY OF CUPEIQ"INO Administrative Hearing Minutes Wednesday, March 7, 2007 2:00 p.m. Conference Room A, City Hall 10300 Torre Avenue, Cupertino, CA 95014 Subiect: An administrative hearing to appeal the approval of Encroachment Permit No. 4521 for a residential fence adjacent to 10060 Carmen Road in Cupertino, California, 95014. Attendance Present: Hearing Officer Therese Ambrosi Smith, Parks and Recreation Director Recording Secretary, Karen B. Guerin, Administrative Assistant Ralph Qualls, Public Works Director Jay and Hema Kamdar, Appellants Krishna Kidambi, Applicant Subra Kumaraswamy, Neighbor representing the Applicant Hearine Recording Secretary Karen B. Guerin administered the oath to the following witnesses: Jay and Hema Kamdar, Appellants Krishna Kidamb~ Applicant Subra Kumaraswamy, Neighbor representing the Applicant Therese Smith introduced herself as the Hearing Officer appointed by City Manager David Knapp to decide the case. Hearing Officer Smith announced the date as March 7, 2007, the time as 2:06 p.m., and the location ofthe hearing as Conference Room A. Hearing Officer Smith informed the parties that each point of view would have ten minutes to represent their case and that she would render a decision in writing within 20 days of the hearing. Furthermore, she stated that ifher decision is unacceptable to either party, they have the right to appeal it to the City Council. Hearing Officer Smith asked the parties to state their name(s) for the record before speaking. Jay Kamdar. Appellant Jay Kamdar stated his name for the record and that he was a resident at 10080 Carmen Road in Cupertino. Mr. Kamdar stated that he had filed the appeal because the fence was a bothersome. He said that the fence had taken away the natural beauty that they / h -I I had enjoyed for many years. He stated that he has been a Cupertino Resident for a long time and that he has always enjoyed the beauty and openness of his neighborhood. He said that the fence blocked the openness and that there was no need for the fence to be as high as it was. Mr. Kamdar also stated that he wondered how the city could go about approving the fence without the input of the other residents. He said that he was surprised that the city didn't reach out for their opinion before doing what it had done. He stated that he was requesting that the fence be removed so that the openness can be restored. He also stated that there was a beautiful oak tree behind the fence and that a lot of people enjoyed the road for easy access. Mr. Kamdar also stated that his kids used to take the route to go to Elementary School. Hema Kamdar. Appellant Hema Kamdar stated that the previous steel fence, built by the city, was adequate and had been in place for many years. She also mentioned that her children and other neighborhood children had been safe and there had not been any danger. She stated that alot of people walk and enjoy the beauty in the area and that she didn't see any reason for the fence to be that high. Mr. and Mrs. Kamdar requested that the fence be removed or it be done tastefully so that it enhanced the area. Hearing Officer Smith asked Mr. Kamdar if it was his opinion that the fence could be lowered. Mr. Kamdar responded in the affirmative and indicated that the wall could be done differently but reiterated that the fence had to be lowered. Krishna Kidambi. Applicant Kris Kidambi stated his name for the record and that he was a resident at 10060 Carmen Road in Cupertino. He also mentioned that his property abutted the fence. Hearing Officer Smith interjected and asked the applicant where he lived in relation to the appellant. Mr. Kidambi stated that they lived right next door to each other. Mr. Kidambi mentioned that he would like to refute aspects of an email sent by the appellant, which outlined certain points. He addressed the issue of safety and stated that on two occasions, while playing bal~ kids have chased it down to Stevens Creek. He also mentioned that while his kids were playing basketbal~ the ball went down the hill. He stated that this was also a safety issue for those on Stevens Creek. Mr. Kidambi stated that he had talked with Assistant Director Glenn Goepfert, over a two-month period, in regards to the safety concern. He said that he and his neighbor proceeded to have the fence installed before the rainy season. He stated that he was subsequently asked to obtain an encroachment permit and did so. In regards to the issue of beauty, Mr. Kidambi stated that it was such an eyesore before and that the property upgrade brought added value to the neighborhood. In regards to the issue of the view being blocked, Mr. Kidambi stated that he didn't know of any alternative to prevent a ball from going down the hill. He also indicated that they stayed within the legal limit of 6 feet for the fence. Mr. Kidambi stated that if the appellant didn't deem the area a safety hazard, then he would like that statement in writing and the appellant responsible if an 1& --/~ accident occurred. He also stated that if there was an issue of beautification, and the area was within the city right of way, then the city should be responsible for maintaining it. Subra Kumaraswamy. Neighbor representing the Applicant Subra Kumaraswamy stated his name for the record and that he was a resident at 10081 Carmen Road in Cupertino. Mr. Kumaraswamy talked about his kids playing in the area and how their ball would go over the side sometimes. He also mentioned that the cars on Stevens Creek have to come to a halt at times, which could cause an accident. He said that it puts the people in the street and neighborhood children in danger if a ball goes over the side. He also stated that there was a beaten down guardrail in place previously and that it was an eyesore. He stated that they thought they were doing a favor to the neighborhood and that they had good intentions. Hearing Officer Smith asked the neighbor if he had paid for installation of the fence. Mr. Kumaraswamy responded that they both (the applicant and himself) had paid for the fence. At this time, Mr. Kidambi commented on the statement that there was a usable pathway at that location, and mentioned that the slope was 35% and not feasible as a pathway. He also stated that the trail access point at Hoo Hoo Court was a much better solution. Ralph Qualls. Public Works Director Public Works Director Ralph Qualls addressed the points made by Mr. Kamdar. In regards to the fence being built illegally, Mr. Qualls stated that the permit was issued after the city looked at all the existing conditions. Mr. Qualls also confirmed that Mr. Kidambi did have dialogue with the city and that the city understood what Mr. Kidambi was trying to do. Mr. Qualls mentioned that although it was unusual practice to issue the permit after the fact, it didn't present a problem because if so, the city wouldn't have issued the encroachment permit and the fence would have to be removed. He also stated that the fence had the appropriate signage and that it preserved access to the utility box. Mr. Qualls stated that the original barrier was in place because of the grade of the slope. In regards to the permit being issued after the fact, Mr. Qualls stated that there was nothing illegal or precedent setting about this fact. He also addressed the concern of the loss of openness, natural green space, the health of the oak tree, the height of the fence, and the fence being out of character for the neighborhood. Mr. Qualls stated that there was no danger to the oak tree, and that the fence was less than 6 feet high and not in violation of any code, and as far as aesthetics, the fence was no more or less attractive than the barrier that had been there before. Mr. Qualls also stated that the neighborhood was zoned for low density residential and that the fence was a standard 6-foot high detail, which was commonly used in the city and that it fully complies with all the code requirements. Mr. Qualls also addressed the issue of free access for the hikers and walkers to Stevens Creek. He stated that he would not recommend that anyone use this access because it was not safe, especially with the traffic on Stevens Creek going by at higher speeds. Mr. Qualls also stated that the access point at Hoo Hoo Court, which was less than 100 feet away, was a safer slope access. Lastly, Mr. Qualls 1&-13 addressed the issue that there was no public benefit to the fence and that it was a waste of tax money. He confirmed that the city did not pay for the fence. Mr. Qualls concluded that in terms of the law, the facts, and the history, he found that the appeal to be without merit. Therese Ambrosi Smith. Hearing Officer Hearing Officer Smith asked if the request for the encroachment permit raised any red flags in the Public Works Department. Mr. Qualls responded that there was discussion with the applicant about putting the fence in and the department indicated that an encroachment permit would be needed. Mr. Qualls reiterated that the applicant went ahead and installed the fence prior to receiving a permit. He also stated that if the installation of the fence posed a problem, the city would have required that the fence be removed. Hearing Officer Smith asked if there was anything about the cul-de-sac that raised a red flag. Mr. Qualls indicated, "No". Hearing Officer Smith inquired about access to the utility box and asked if there was still access down the slope. Mr. Qualls responded that there was still access down the slope. Hearing Officer Smith inquired about the height of the lattice on top of the fence and confirmed that it was the applicants' idea to install the lattice in order to break up the mass ofthe fence. Mr. Qualls responded that the lattice was about a foot high. Hearing Officer Smith summed up that the fence was about 5 feet of solid mass with passage to get around it. Hearing Officer Smith also asked if the oak tree was down slope from the fence. Mr. Qualls responded in the affirmative. She also inquired if the installation of the fence would have been above the root. Mr. Qualls confirmed that the only penetration of the fence would have been above the root and that there was no danger to the tree. Hearing Officer Smith also asked how deep the footings of the fence were. Mr. Kidambi responded that they were about 18 inches. Hearing Officer Smith concluded that she had all the information that she needed and would render a determination in writing within a couple weeks. Additional Comments Mr. Kamdar added to his testimony and stated that -the safety issue was an after thought because the neighbors bought their homes with the knowledge that the street was open. He also mentioned that there had never been a safety problem and that a ball could still go over a 6-foot fence. Mr. Kamdar asked that the fence be lowered to 2-3 feet and that the openness be restored. Hearing Officer Smith stated that she would go out and take a look at the site and render her decision in writing. I {p -I Ii Mr. Qualls also informed the group that if the city decided to require modification of the fence, the city would bear the costs because the applicant complied with the requirements. Mr. Kidambi stated that they had two concerns that they wanted addressed - safety and beauty. Mr. Kamdar also indicated that he felt that the city should have asked the opinion of the neighbors. In response, Mr. Qualls stated that there was no requirement for notification and that the matter concerned following the law. Mrs. Kamdar stated that the city must have spent a lot on the landscaping for the area and now the wall blocked it off. She also mentioned that kids are still able to go after a ball and that it's not that safe. Hearing Officer Smith thanked everyone for attending. Adjournment The hearing was adjourned at 3:02 p.m. / &-i:5 Grace Schmidt From: David Knapp Sent: Friday, March 23,20072:00 PM To: City Clerk Cc: 'jay@magsil.com'; City Council Subject: FW: Appeal to City's decision about the fence adjacent to 10060 Carmen Road Pis schedule and notify Mr. Kamdar. -----Original Message----- From: Jay Kamdar [mailto:jay@magsil.com] Sent: FridaYI March 231 2007 1:03 PM To: David Knapp Cc: City Council Subject: Appeal to City's decision about the fence adjacent to 10060 Carmen Road Dear Mr. Knapp and Respected City Council, I have received a notice from the City denying my appeal regarding the installation of a fence at the end of Carmen Road. I feel that a more serious considerations need to be given to my request and so I would like to appeal to the City Council. Due to excessive business travel I have planned through April '2007 I would like to request the hearing date to be scheduled in the month of May. My request to the City was not for a removal of the fence. My request is to find a solution to maintaining openness and green view of the Carmen Road Street. During the hearing I had proposed a solution that will address the openness of the Carmen Road and at the same time addressing the safety concerns of two neighbors who have built the fence. I requested that the fence height be brought down from 6' to 3'. In the City's letter dated March 15, 2007 the hearing officer has failed to acknowledge and address my proposed solution and it seems that the letter goes into long details justifying City's decision purely from a legal point of view. I condone City's decision process in this matter. As I have pointed out, City has let my two neighbors build a fence without seeking inputs from any other neighbors and their feelings_ I find it hard to believe that the City is OK with anyone building the fence first on the City property and then issuing the permit later. Shouldn't City have asked the simple question that how come all these years the City let Carmen Road residents live with a simple guard rail and an "end of the street sign"? It would be prudent for the city to think that others must have raised their children on Carmen Road and how come they never complained about the safety and asked the City to build a bigger fence?? It is because people like I have enjoyed the openness and the view from the Carmen Road. I do not know of any safety issues during past many years that I have lived on the Carmen Road. The City should have reached out to Carmen Road residents at large and seek their input prior to issuing such permit. I want to request to the City Council to examine City's decision process and hopefully reconsider my sincere request to bring the fence height down from 6" to 3' that would ensure concerns of all parties - the safety and the openness. I would greatly appreciate if you could please confirm the request for the appeal and advice me if you need me to write my arguments to the City Council now or wait till the hearing. Thank You.. - Jay Kamdar 408-497 -1177 From: David Knapp [mailto:DaveK@cupertino.org] Sent: MondaYI February 05, 2007 12:27 PM To: Jay Kamdar Cc: City Council Subject: RE: 10080 Carmen Road j(p-((p 3/26/2007