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23. Hearing on Appeal ~I l!l\\~' n I . CUPEIQ1NO PUBLIC WORKS DEPARTMENT Summary AGENDA ITEM 2J AGENDA DATE JaDuarv 17. 2006 SUBJECT AND ISSUE Hearing on Appeal by David and Margaret Critzer and Jowei Chen of the Notice of Determination by the City Manager denying the Appeal of the Community Development Director's decision regarding the installation of a bathroom window at 20272 Northcove Square and Recommendation by Staff to deny the Appeal. INTRODUCTION On September 6, 2005, the Council heard an appeal filed by David and Margaret Critzer to the City Manager's determination to dismiss an administrative appeal hearing regarding the Community Development Directors decision to issue a permit for the installation of a bathroom window at 20272 Northcove Square. The hearing was dismissed because the City learned that a civil suit in Superior Court had been previously seryed on the parties regarding the same issue in dispute. Upon hearing the appeal, the Council directed the City Manager to hold the Administrative hearing (which was dismissed without prejudice, allowing it to be reconsidered at a later date) and that hearing was held on October 25,2005. Following the hearing, the Director of Public Works, as the hearing officer designated by the City Manager City, issued a Notice of Determination dated November 15, 2005 finding that the Community Development Director acted properly and in full compliance with the Cupertino Municipal Code in issuing the building permit for the Modification to install a window in the upper bathroom at 20272 Northcove Square. On December 1, 2005 the Mr. James Eller, the attorney representing the Critzers and Ms.Chen filed an appeal to that notice of determination with the City Council. This report and the attached Notice of Determination respond to the appeal. BACKGROUND In December of2003 Mr. Jerry Enos, the owner and resident at 20272 Northcove Square requested that the Northpoint Homeowners Association (HOA) approve his request to install a window in the upstairs bathroom of his residence. The HOA, in Januaryof2004, approved this request which then, in accordance with the Cupertino Municipal Code 23-1 Printed on Recycled Paper (CMC), formed the basis for the issuance of a building permit by the City to install the window. The window was installed in late February of 2004. Mr. Enos has recently sold his home and relocated to Nevada. The new owner is Mr. Darien Tung who has been advised ofthese most recent transactions. By letter on May 17, 2004, Attorney Christian Picone representing the Critzers requested that the City review the issuance of the permit, alleging that it violated city ordinances and claiming that the window is a "visual privacy intrusion". Efforts were subsequently made at several points throughout the next year by the City to assist in resolving the differences between the parties including a City sponsored mediation through Project Sentinel. This effort culminated in a letter from the Director of Community Development on April 27, 2005 summarizing those efforts and noting that at some point the HOA reportedly offered to pay for the installation of obscure glass in the window and further noting that this was an acceptable solution to the City and, as such would conclude the City's involvement in the matter. At some point thereafter, obscure glass was actually installed in the window. However, on May 10, 2005 the Critzers and Ms. Chen by letter requested a meeting with the City Manager to appeal the Community Development Directors position as stated above from his letter of April 27, 2005. Attempts were made by the City Manager to schedule a hearing on June 6, 2005 and subsequently July 12, 2005. The City then received a letter from James Eller, who apparently was now the attorney representing the appellants. (Mr. Picone had earlier advised the City that he no longer represented the Critzers.) Mr. Eller requested another postponement, which was then set for July 19, 2005. It was at this point that the City learned ofthe case pending in Superior Court on the same issue and dismissed the hearing. As noted above following Council direction on the Critzer's appeal of this dismissal, the hearing was held on October 25,2005 with the Director of Public Works acting as the hearing officer designated by the City Manager. The Notice of Determination by the City Manager dated November 15,2005 denying the Appeal is attached. APPEAL OF CITY MANAGERS DETERMINATION TO COUNCIL On December 1, 2005 attorney James Eller representing the Critzers and Ms. Chen filed an appeal to the City Manager's determination of November 15,2005. The appeal is to the City Council and the appeal hearing is scheduled for January 17, 2006. In reviewing the appeal letter from Mr. Eller, while detailed and replete with legal citations and references along with a chronology of events, it does not in any material way 23- .l present any new relevant fact or compelling argument to support the appeal. The report can be summarized into three basic components as follows: "..City Manager Mischaracterizes the Proper Standard for Modifications" "..City Cannot Permit This Violation ofIts Ordinance to Stand" The Notice of Determination clearly and correctly cites the applicable provisions ofthe Cupertino Municipal Code (CMC) which governed the decisions of the Community Development Director in that "The proper procedure for applications for a modification permit for a property in the RIC zone is found in CMC Sections 19.44.080A and 19.44.080B which specifically provides that the applicant, along with other required submittals shall also include a letter of approval from the appropriate Homeowners Association." This procedure was followed and the appellant's argument to the contrary, and notwithstanding their references to various sections of the code, simply has no merit. As such, there has been no violation of any ordinance on this matter so the second claim regarding a violation is not relevant or applicable. "..City Cannot Allow the Appellants Due Process Rights to Be Violated" This entire claim is directed at the Home Owners Association in their alleged failure to notify the Critzers of the proposed changes. The Notice of Determination references this point in noting that". . . there is no legal requirement for the City to notice any party or property beyond the permit applicant when the permit is issued. Whatever noticing may or may not be done by the HOA is strictly within the purview of the HOA and the City has no jurisdiction or responsibility for the HOA's process beyond compliance with applicable law." It further notes that "..whatever dispute remains following this finding and determination, is strictly a civil matter by and between the private parties involved and no further action is required or necessary by the City of Cupertino." This is clearly stated in the determination and the appellants offer nothing further to support their position except demanding that the City take jurisdiction over the HOA's procedures and policies. It is not, as the appellant suggests, a matter of the City ".wash(ing) its hands of any defects in the HOA's process." Whatever failing the appellants believe occurred in the HOA transactions is a matter solely between the property owners and their Association. CONCLUSION The determination by the Director of Public Works was carefully considered and, in evaluating of all the facts and representations of the various parties it concluded that the Community Development Director's Decision to issue the building permit for the modification to install the window was found to be fully compliant with the existing provisions of the Cupertino Municipal code, and as result the Appeal was Denied. 1.')-3 The appeal, as noted variously above, does not provide any new relevant fact, evidence or other compelling basis to alter the Determination of the City Manager of November 15, 2005. Therefore staff recommends that the Council uphold the Determination by the Director of Public Works on behalf of the City Manager and deny the appeal of the determination by David and Margaret Critzer and Jowei Chen. STAFF RECOMMENDATION It is recommended that the City Council deny the Appeal by David and Margaret Critzer and Jowei Chen of the Determination by the City Manager that that the Community Development Director acted properly and in full compliance the Cupertino Municipal Code in issuing the building permit for the Modification to install a window in the upper bathroom at 20272 Northcove Square. Submitted by: Approved for Submission: ~,L.t t.iU'tf Director of Public Works ~ David W. Knapp City Manager ;2..)-1.{ City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 (408) 777-3354 DEPARTMENT OF PUBLIC WORKS Ralph A. Qualls, Jr., Director Date of Determination: November 15, 2005 David and Margaret Critzer 20282 Northcove Square Cupertino, CA 95014 Jowei Chen 20292 Northcove Square Cupertino, CA 95014 Jerry Enos 2547 Deora Way Henderson NV 89052 Northpoint Homeowners Assn Attn: Celeste Strarr 10880 Northpoint Square Cupertino, CA 95014 Darien Tung 20272 Northcove Square Cupertino, CA 05014 Steven M. White White & MacDonald 99 Almaden Blvd, Ste 1050 San Jose, CA 95113 James Eller Eller and Associates 60 South Market Street San Jose, CA95113 Subject: Hearing on Appeal by Critzer regarding window installation at 20272 Northcove Square - Notice of Determination This notice refers to the Hearing held at 2:00 PM on October 25, 2005 at the Cupertino City Hall on the above subject which I conducted as the City Manager's designated City Hearing Officer on this matter. The following persons were present: David and Margaret Critzer, Appellants James Eller, Esq. Eller and Associates (Representing the Appellants) Leslie Starr, Northpoint Homeowners Association (HOA) Stephen White, Esq., White and MacDonald (Representing Northpoint HOA) Steve Piasecki, Director of Community Development City of Cupertino Ciddy Wordell, Principal Planner, City of Cupertino Eileen Murry, Esq., Asst. City Attorney, City of Cupertino Carol Shepherd, Admin. Assistant, City of Cupertino Issue of Appeal The Appellants in this matter, Margaret and David Critzer and Jowei Chen are appeaJing the determination of the Director of Community Development to issue a building permit under the provisions of Cupertino Municipal Code (CMC) to Jerry Enos for a building Printed on Rscycled Paper 1. 3- 5' modification to install a window in the upper bathroom at 20272 Northcove Square in the City of Cupertino: This residence is located in the Northpoint Condominiums, a residential single-family cluster (RIC) development and the management of the development rests with the Northpoint Homeowners Association (HOA). The Appellants claim that this window, which faces their yard with their home being visible from the bathroom window, creates a nuisance and invasion of their privacy. They further claim that they received no notice of this modification to Mr. Enos' home and had no opportunity to object until the window was actually being installed. The Appellants cite CMC sections 19.44.060 Site Development Regulations and 19.44.080 Changes after Granting of a Cluster Zone as the basis for their claim of invasion of privacy on this appeal. They also cite CMC section 1.09.180 as the basis for claiming that the modification is a nuisance. They seek to have the City remedy the situation because they claim that they had no prior notice and that the permit was not properly issued for this modification. Finding and Determination on the appeal: I have carefully reviewed the written documentation presented by any and all parties noted above and have reviewed the applicable sections of the Cupertino Municipal Code. I have carefully considered the statements made at the hearing by the Appellants, the Community Development Director and the Northpoint Homeowners Association. Based on that review and consideration, I find that the Community Development Director acted properly and in full compliance the Cupertino Municipal Code in issuing the building permit for the Modification to install a window in the upper bathroom at 20272 Northcove Square. The basis for this finding is that CMC section 19.44.060 cited by the Appellants relates to the process followed in the initial design and planning reviews of a project and not to .modifications. The proper procedure for applications for a modification permit for a property in the RIC zone is found in CMC Sections 19.44.080A and 19.44.080B which specifically provides that the applicant, along with other required submittals shall also include a letter öf approval from the appropriate Homeowners Association. This process was properly followed as required by the CMC, as the Northpoint HOA responded with its approval of the proposal and the building permit was issued in full compliance with the law. Further, there is no legal requirement for the City to notice any party or property beyond the permit applicant when the permit is issued. Whatever noticing mayor may not be done by the HOA is strictly within the purview of the HOA and the City has no jurisdiction or responsibility for the HOA's process beyond compliance with applicable law. 2}-b Finally, this installation of the window does not rise to the level of meeting the criteria to be declared a nuisance since it is a minor change and it was installed in compliance with existing regulations and procedures. Since the Director's Determination to issue the building permit for the modification is found to be fully compliant with existing provisions of the Cupertino Municipal code, the Appeal is Denied. Further, whatever dispute remains following this finding and determination, is strictly a civil matter by and between the private parties involved and no further action is required or necessary by the City of Cupertino. Please note that my decision may be appealed to the City Council by filing an appeal with the City Clerk of Cupertino within ten business days of the date of this Notice of Determination. Additional Co=ents Apart and aside ftom this determination, it is my general conclusion that the City has made a considerable effort over a long period of time, to help resolve the matter by facilitating discussions between the private parties and through a City-sponsored mediation, even though the City would typically have no obligation to do any of these things. In consideration of the discussion at the hearing regarding possible solutions in this dispute that are outside the purview of the City, I am strongly encouraging the private parties, including the Northpoint Homeowners Association, the Appellants and the apparent new owner of the residence, Mr. Darien Tung, to work together to seek a common, timely and equitable solution. The City has suggested this on numerous occasions for an entire year. Finally, it is my opinion and conclusion that the HOA is, irrespective of their stated view to the contrary, best suited to facilitate that effort in order to seek a common end to this dispute. Sincerely, ~ ;tJ.A ~ (.J (¡J U f-J.. Ralph A. Qualls, Jr. V Director of Public Works C: David Knapp, City Manager Charles Kilian, City Attorney Steve Piasecki, Director, Community Development 23-7