Steep Lot Justified Grant Of A Variance For The Replacement Single Family Home

By William W. Abbott

Eskeland v. City of Del Mar (February 19, 2014) ___Cal.App.4th.___. While most land use debates involve projects of physical substance, even the single family home is capable of generating appellate opinions. The most recent case involves a grant, by the City of Del Mar, of a variance from a front yard setback requirement. The variance was granted so that the owners could construct a new single family home in the footprint of the existing single family home. The history suggested that the existing home was constructed before the current setback standard was adopted. The owner proposed to reconstruct in the same footprint, but would expand the footprint parallel to the front property line. As a result, there would be a linear expansion of the building including new additional square footage to be built within the setback restriction, but no additional perpendicular intrusion into the front yard setback area. The building lot included areas with a 25% slope, and buildable area was limited.

The lot owner, Scurlock, first obtained design review approval for the home design, then applied for a variance to build within the 20 foot setback area required by the City of Del Mar code. The Eskelands, along with other neighbors opposed the grant of the variance. The planning commission granted the variance, and the Eskelands appealed. After review, the city council declined to set the appeal for hearing, effectively making the decision of the planning commission the city’s final decision on the variance. The neighbors argued that the city code prohibited issuance of the permit in violation of the code. Additionally, the neighbors argued that the lateral physical expansion represented an improper expansion of a non-conforming structure.

These cases largely turn on the technical wording of the development code of the affected city or county and not state statute. In this case, the city first, and then the appellate court, was required to interpret and reconcile the various provisions on setbacks, non-conforming structures and the effect of a variance. The appellate court concurred in the city’s interpretation of its own code regarding the circumstances in which a variance could be utilized in this instance to permit reconstruction in the same location, notwithstanding the setback requirement. The appellate court also went on to conclude that there was substantial evidence in the record to support the findings. The city’s findings demonstrated careful attention to the relevant requirements of the city code and thoughtful utilization of the site specific information (as an example, the slope and the limited flat building pad on site as compared to nearby properties) to justify the grant of the variance.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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