Santa Cruz County's granting of six variances for a new house on the beach has been upheld by the Sixth District Court of Appeal. The unanimous three-judge panel ruled that the county could consider federal and county regulations as "special circumstances" in approving variance requests.
The controversy was centered on some of Santa Cruz County's most desirable real estate, namely, Beach Drive, next to Rio Del Mar Beach, in Aptos. In 1996, Jim and Judi Craik purchased a house at 415 Beach Drive, and Norma Odenweller and Robert Fleck bought the adjacent lot at 413, which contained a garage and parking area. Odenweller and Fleck then submitted plans to build a house and sought numerous variances.
The county Planning Commission approved six variances allowing three stories instead of two; a 32-foot-high structure instead of 28 feet; a 16-foot front yard setback and 8-foot second story deck setback instead of 20 feet for both; 53% lot coverage instead of 50%; a second story deck; and more than 50% of the front yard to be used for parking. The county provided findings for all the variances and noted conditions such as the narrow 35-foot lot and FEMA hazard zone regulations that prohibit living space in the lower 23 feet of the structure. Moreover, most of Beach Drive was developed before the county adopted a general plan and zoning regulations, and few of the existing 61 houses meet current regulations. For example, 19 of the existing houses have three stories, and the majority has front yard setbacks of 10 feet or less.
The Craiks sued, arguing that the county was making ad hoc, parcel-by-parcel decisions in violation of state planning and zoning laws. They contended that the county could grant a variance only if there were physical disparities between the subject property and other lots in the zoning district. They also argued that the variance conflicted with the county general plan and that the county's findings were inadequate. But Santa Cruz County Superior Court Judge Richard McAdams and the appellate panel rejected all three arguments.
"First, there is no authority to support that a ‘physical' disparity is a precondition for a variance," Acting Presiding Justice Eugene Premo wrote for the Sixth District. "Government Code §65906 requires variances to be granted ‘because of special circumstances applicable to the property.' The Santa Cruz County Code adopts the same concept (‘special circumstances'). And the leading case in this area interprets the concept as emphasizing only undefined ‘disparities between properties.' Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506. Thus, defendant [the county] was not barred from considering the FEMA and related county regulations as special circumstances."
Even though the regulations apply to everyone, the practical impact of the rules can be considered disparate, the court held.
As for the general plan conflict, the court ruled that the general plan limitations were a matter of interpretation and the court would defer to the county. Finally, Premo wrote that the county's findings "need not be stated with judicial formality. … We have no trouble following defendant's analysis. The property in question is small and the backyard is unusable. Hence the need for a forward-setting building site and decks. The proposed structure cannot be occupied in the first 23 vertical feet. Hence the need for 4 additional feet and an extra story."
Jim Craik v. County of Santa Cruz, No. H020690, 00 C.D.O.S. 4980, 2000 Daily Journal D.A.R. 6627, filed May 3, 2000, ordered published June 1, 2000.
For Craik: Douglas E. Marshall, (831) 425-7900.
For the county: Rahn Garcia, assistant county counsel, (831) 454-2040.
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