1. Fotsch Residence 2 Alexander Avenue Administrative Design Review Permit and Variance City Council Appeal Hearing | April 19, 2016

2. Appeal
Appeal of a Planning Commission decision upholding a Zoning Administrator decision approving an Administrative Design Review Permit and a Variance to allow for the construction of a new residential pier and deck/boat lift that would extend into the San Francisco Bay at 2 Alexander Avenue.
Appeal of a Planning Commission decision that upheld a Zoning Administrator decision approving an Administrative Design Review Permit and a Variance to allow for the construction of a new residential pier and deck/boat lift that would extend into the San Francisco Bay at 2 Alexander Avenue

3. Entitlements Requested
Administrative Design Review Permit Applications for Building Permits for the construction, renovation, or extension of any pier or dock in the R Zoning District Variance Encroachment into required 15 ft. rear-yard setback City Lease Agreement A portion of the project extends onto City property Applicant: Mid-Cal Construction, Inc. Property Owner: Edward Fotsch

4. Appeal
Appellants: Janeane Moody and Cherie Sinclair (6 Alexander Avenue) Legal Counsel: Christopher Skelton 6 2

5. Timeline
November 2013: Application submittal August 2015: Zoning Administrator approval of Administrative Design Review Permit and Variance August 2015: Appeal of Zoning Administrator approval to Planning Commission November 2015 & January 2016: Planning Commission review and denial of appeal – uphold Zoning Administrator approval (Vote: 4-1) February 2016: Appeal of Planning Commission approval to City Council April 2016: City Council review of appeal

6. Vicinity
Here is an aerial view of the subject property at the bottom of this image and the surrounding properties. The project site is in the R Two-Family Residential Zoning District.
The trapezoidal parcel is approximately 11,369 square feet and contains an existing single-family residence, garage, and site access stairs. A portion of the site is steeply sloping downhill towards the San Francisco Bay.
The parcel is located in the Old Town/Hurricane Gulch neighborhood with surrounding land uses consisting of a mixture of single and multi-family residential dwellings.
Seven out of nine waterfront residences currently have piers and/or floating docks, or, have entitlements but have not yet commenced construction. 6 2

7. The proposed pier/dock is located entirely within private property (“blue”), with the exception of the proposed encroachment into the City property (“pink”). The pier/dock will not encroach into the appellant’s property to the north (“green”); nor will it encroach into NPS-GGNRA property to the south (“red”).

8. NPS-GGNRA Coordination
Project has been properly noticed using available data from the Marin County Assessor
Zoning Administrator Aug Hearing – Contact not established via data
Planning Commission Nov Hearing – Mailed: 10/21/15; Posted: 10/22/15
Planning Commission Jan Hearing – Mailed 1/6/16; Posted 1/7/16
City Council Apr Hearing – Mailed 4/7/16; Posted 4/7/16
November 24, 2015 site visit with City Staff and NPS-GGNRA
Extensive City Staff coordination and exchange of information directly with NPS-GGNRA management

9. Site Plan / Project Description
The proposed project is the construction of a 946 square-foot residential pier with composite decking, and deck/boat lift.
The pier is 5 feet wide and will extend from an existing concrete and rock wall located at the bottom of existing beach access stairs which connect to the rear of the applicant’s residence.
The pier is rectangular in shape and contains a boat lift with permanent decking (16-feet wide) at the end, furthest point into the Bay. The pier extends into the San Francisco Bay a maximum of 154 feet from the face of the existing concrete and rock wall—the minimum distance required to clear existing natural rip rap and a rock formation near the end of the pier.
The pier will be supported by a concrete footing near the shore line and nine steel piles (supports). The deck/boat lift will have its own support system.
Due to the project encroaching into the required 15-foot rear-yard setback, a Variance is requested. The project complies with side-yard setback requirements.

10. Side Profile
Side Profile – Elevation Diagram.

11. Side Profile Original Design
In August 2015, the Zoning Administrator approved the project with a walking surface/top of pier height of NAVD 88. The North American Vertical Datum of 1988 (NAVD 88) is the vertical control datum of orthometric height established for vertical control surveying in the United States.NAVD88 is a measure of height established for vertical control surveying in the United States.
Original Design

12. Side Profile Original Design Lowered Design
In January 2016, the Planning Commission, in their upholding of the decision of the Zoning Administrator to approve the entitlements, required the walking surface/top of pier height to be lowered approximately 1.5 feet. This resulted in the walking surface/top of pier height to drop from NAVD88 to NAVD88. The lowest horizontal member of the project decreased from NAVD to 9.00 NAVD88—in compliance with then-required FEMA Base Flood Elevation requirements.
Original Design
Lowered Design

13. Appeal Bases Illegal exemption of project from CEQA
Inability to make findings under the SMC
Procedural defects

14. Appeal Basis #1 Illegal exemption of project from CEQA
CEQA. (A) Initial Study required under fair argument of possibility of significant effect due to unusual circumstances.
City of Sausalito is the “lead agency”
Categorically Exempt under CEQA Guidelines Section – New Construction or Conversion of Small Structures
No new evidence presented to disqualify CEQA Categorical Exemption
“Responsible agencies” have reviewed and provided their own specific mitigation and design requirements
Most recent correspondence: SF Water Board concurs that project is Categorically Exempt from review under CEQA
Responsible agencies, each of these agencies defer to the City of Sausalito as the lead agency.
As part of the application to the City of Sausalito, the project has received correspondence from the Army Corps of Engineers, SF Bay Conservation Development Commission (BCDC), and by way of BCDC, comments from the Department of Fish and Wildlife; the Sausalito/Marin City Sanitary District, and the San Francisco Bay Regional Water Quality Control Board. What is common when other external agencies are involved, is that these agencies look for the project to receive local government approval and that the environmental documentation is conducted prior to undergoing each of these agencies regulations. With regard to the possible presence of eelgrass in or around the proposed pier project, each of these agencies are requiring that eelgrass surveys be conducted prior to construction and during construction. If eelgrass beds are found under the location of the pier, a mitigation and monitoring program must be implemented to compensate for impacts to the eelgrass beds, including the possible imposition of alternatives to mitigate impacts to the eelgrass habitat.
Recent correspondence that was received as late mail from the CA Dept of Fish and Wildlife, where they have determined that eelgrass was clearly identifiable within the vicinity of the proposed pier and that a survey will be required prior to construction of the project. This requirement is consistent with all of the earlier communication and correspondence with these external agencies.

15. Categorical Exemption Exceptions
The project is to be located in a particularly sensitive environment "...where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies."
The cumulative impact of successive projects of the same type in the same place, over time is significant.
Where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.
A project which may result in damage to scenic resources, including but not limited to, trees, historic buildings, rock outcroppings, or similar resources, within a highway officially designated as a state scenic highway.
A project is located on a site which is included on any list compiled pursuant to Section of the Government Code.
A project may cause a substantial adverse change in the significance of a historical resource.
There are certain designated circumstances which would preclude the use of an otherwise applicable Categorical Exemption. With respect to the Class 3 Categorical Exemption being applied in this project, the Exemption could not be used for any of the following…
The appellant claims that the presence of eelgrass in or around the project demand environmental review under CEQA. The appellant's contention is an incorrect application of the provisions of the CEQA Guidelines. The project is not located in an area that has been designated as an area of "... environmental resource of hazardous or critical concern" that has been "... precisely mapped, and officially adopted pursuant to law by federal, state or local agencies.“
The appellant contends that the project “results in a reasonable probability that the activity will have a significant effect on the environment due to unusual circumstances.” The unusual circumstances cited include the presence of eelgrass, the habitat that is afforded by the rock outcropping and/or eelgrass, and the identified depletion of eelgrass habitat in and around the San Francisco/Richmond Bays. Staff, the Zoning Administrator, and the Planning Commission find that these circumstances are not unusual to the project site or nearby vicinity.
The project is typical of the many piers and floating systems along the San Francisco Bay shoreline and is similar to the piers of nearby property owners. No new persuasive evidence has been presented to exempt the application of a Categorical Exemption under CEQA and none of the exceptions identified under CEQA Guidelines apply.
Staff, the Zoning Administrator, and the Planning Commission find that the appropriate environmental review determination is that the project is Categorically Exempt from CEQA.

16. Appeal Basis #2 Inability to make findings under SMC
2. Inability to make findings. (A) Project is too tall (privacy and view); (B) Project is too close (privacy and view); (C) Project foreseeably includes tree removal that will unreasonably contribute to, and exacerbate, privacy concerns.
Pier is located at elevation below appellant’s windows
Planning Commission required lower pier height/walking surface
Pier could be observed when looked down from “primary view” areas
Guardrails have not been proposed and are not required
Proposed pier is 7 ft. set back from either side of property boundary
Trees between 2 and 6 Alexander – alteration not subject to permitting; screening is voluntary

21. Photo taken from appellant’s pier
Photo taken from appellant’s pier. Mutual privacy concerns characteristic of piers and docks in this area.

22. Photo taken from appellant’s pier
Photo taken from appellant’s pier. Mutual privacy concerns characteristic of piers and docks in this area.

23. Appeal Basis #3 Procedural defects
3. Procedural defects. (A) Incomplete application; (B) Deficient findings and conditions of approval; (C) Inadequate story poles
Project is complete with all required info. to comprehensively review the project
SMC authorizes Zoning Administrator to review specific Admin. Design Review Permit and Variance applications
Project design remains similar and consistent with Zoning Ordinance and General Plan
Rebuilding of stairs and landing – non-discretionary permitting
Trees between 2 and 6 Alexander – alteration not subject to permitting; screening is voluntary
The project does not violate the Public Trust Doctrine
The appellant suggests that the project violates the Public Trust Doctrine. In Staff, the
Zoning Administrator, and the Planning Commission's opinion, the project does not
violate the Public Trust Doctrine. As stated in the January 20, 2016 Planning
Commission Staff Report: The Public Trust Doctrine is a common law principle which
provides that lands under the ocean and under navigable streams are owned by the
public and held in trust for the people by government. These "public trust lands" also
include filled lands formerly under water. The traditional uses allowed under the Public
Trust Doctrine were once described as water-related commerce, navigation, and
fisheries. The concept has evolved over time and has been shaped by the courts. The
statutory grants from the State to the City allow the City to lease trust lands for trust
purposes. The California Supreme Court has said that the public trust embraces the right
of the public to use the navigable waters of the State for bathing, swimming, boating,
and general recreational purposes [Marks v. Whitney (1971) 6 Cal.3d 251, ].
The statutory grants from the State to the City specifically allow for the lease of public
trust lands. In Staff's opinion, the use of the minimal amount of City-controlled land in
question for a dock which can be utilized by others in cases of emergency, does notviolate the Public Trust Doctrine. Staff notes that other pier projects in the vicinity,
including 40 Alexander Avenue and the appellant's own property at 6 Alexander Avenue,
have been offered leases of City-controlled property for pier projects. Should the City
Council uphold the approval of the project, the application of the Public Trust Doctrine
will be taken under consideration by the Council in its review of whether or not to grant
the proposed lease to the applicant for the farthermost extension of the pier on Citycontrolled
property.

25. Recommendation
Deny the appeal and uphold the Planning Commission’s decision upholding a Zoning Administrator decision approving the Administrative Design Review Permit and Variance
Options for Council Action
Uphold appeal and deny entitlements
Continue public hearing for additional info. and/or project revisions
Remand project to Planning Commission for further consideration of a specific issue(s)

26. Fotsch Residence 2 Alexander Avenue Administrative Design Review Permit and Variance City Council Appeal Hearing | April 19, 2016

27. NPS-GGNRA Feedback (12/2/15)
Realign the pier plan so that the platform portion of the pier is setback at least 3’ from NPS-GGNRA boundary [moving closer to appellant]
Reduce the width of the platform to allow a setback at least 3’ from NPS-GGNRA boundary
Redesign the platform from a “T” design to a “L” design so that the deck/boatlift may be constructed off the northerly portion of the platform [moving closer to appellant]
EXTRA SLIDE
NPS-GGNRA has provided feedback for the project plans which were updated following the November 2015 site visit. The site visit confirmed that the proposed project does not encroach onto NPS-GGNRA property. The proposed setback of the deck/boatlift platform is 1’-6” away from NPS-GGNRA property.
Through City Staff, the NPS-GGNRA has requested the applicant to consider the following modifications to the project plan:
• Realign the pier plan so that the platform portion of the pier (at the end of the deck) is setback at least 3’ from NPS-GGNRA boundary [this would move the project closer to the appellant]
• Reduce the width of the platform to allow a setback at least 3’ from NPS-GGNRA boundary
• Redesign the platform from a “T” design to a “L” design so that the deck/boatlift may be constructed off the northerly portion of the platform [this would move the project closer to the appellant]
The property owner has relayed to City Staff that project plan modifications are not necessary due to prior approval from the Army Corps and the fact that NPS-GGNRA represents an open space into which the project is not entering.

28. Guardrails
2013 California Building Code – Section Where required. Guards shall be located along open-sided walking surfaces, including mezzanines, equipment platforms, stairs, ramps and landings that are located more than 30 inches measured vertically to the floor or grade below at any point within 36 inches horizontally to the edge of the open side. Guards shall be adequate in strength and attachment in accordance with Section Exception: Guards are not required for the following locations: 1. On the loading side of loading docks or piers.