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My New Hero

By Frank Gruber

I couldn’t help it. Ignoring my usual 10:30 curfew, I had to stay up until the bitter non-end, until two in the morning, to watch the Planning Commission not decide what to do about Stephanie Barbanell’s and Jerry Bass’ six-foot fence and fourteen-foot hedge on Seaview Terrace.

But the lost sleep was worth it. I have a new hero: Planning Commissioner Julie Lopez Dad.

I’m ready to eat crow. Students of the battles of Seaview Terrace -- and I understand that with part of the money the City is giving the School District under their new deal (Hurrah!) the District is establishing a Civics curriculum based on Seaview -- may remember that when I first reported in November that the Bass/Barbanells wanted a variance for their overlarge fence and hedge, I reported on a meeting I chanced upon between them and Commissioner Dad. ("WHAT I SAY: Ungrateful Greens and Fences and Hedges," Nov. 3, 2003)

Shamelessly (shamefully?) employing the columnist’s stock in trade -- blithe cynicism -- I suspected that Commissioner Dad was giving advice to the Bass/Barbanells in advance of their upcoming hearing before the Zoning Administrator (ZA).

Well, maybe she was, but based on what she said at the Planning Commission hearing on the appeal of the ZA’s denial of the variance, Commissioner Dad would have told Ms. Barbanell and Mr. Bass to “tear down that fence!”

To my shock and awe, at the hearing Commissioner Dad strongly articulated and defended the public interest behind the City’s pro-civility, pro-pedestrian front yard setback laws and by doing so prevented the Commission from setting a precedent that would have subverted the City’s efforts to build a more livable and open city.

Okay, so what happened?

Not much, in a certain sense. The seven commissioners deadlocked without a majority of four able to agree on anything, and at two a.m. continued the matter.

Two commissioners, Ms. Dad and Terry O’Day, were ready to reject the variance outright, as the Commission has rejected all such attempts to wall-in front yards in the past.

Commissioners Arlene Hopkins, Barbara Brown and Jay Johnson, not only would not vote to deny the variance, but took the position, amazing for public officials in a “progressive” community, that the City should abrogate the rights of the public to traverse Seaview Terrace and allow the residents to create a gated community. It’s hard to imagine a more striking betrayal of the public interest by three self-proclaimed social and environmental progressives.

The remaining two commissioners, Gwynne Pugh and Chair Darrell Clarke, were in the middle. Both appropriately acknowledged the public interest in maintaining an open and pedestrian friendly environment on Seaview Terrace along with access to the beach, and neither was willing to bend reality to “find” the facts necessary to grant the variance the Bass/Barbanells wanted. (E.g., they rejected the Bass/Barbanells’ argument that the fence is justified because they use their front yard as their back yard.)

However, given what they perceived to be unique security problems near the beach, Commissioners Pugh and Clarke wanted, and tried, to craft a compromise that would give the Bass/Barbanells some leeway to build a fence higher than 42 inches in the front yard setback, but with conditions designed to preserve the openness of the walk street.

A legal digression. The law is tough on variances, probably tougher than it should be. It requires that the City “find” that the subject property has qualities that make it different from nearby properties with the same zoning. Property owners are not entitled to variances to fix problems that affect an area generally. There is one exception under which the City can give a variance without finding unique circumstances, but that provision is limited to cases where a variance would create a public benefit.

Trying to find a compromise, Commissioner Pugh offered two possibilities. One was to allow a six-foot “transparent” wrought iron fence along the edge of the sidewalk (the location of the current fence), with shrubbery no higher than 42 inches. But a problem with this “yard behind bars” approach arose when Pugh and Clarke realized they could not make the required findings to justify it, because the security concerns the Bass/Barbanells cited as reasons for their fence and hedge are not unique to their property.

This was where Commissioner Dad made her heroic stand. She pointed out that if the Bass/Barbanells were successful in justifying a security fence based on neighborhood security fears, the precedent could then be used all over the city, wherever any property owner claimed that his or her neighborhood had a special security problem. (If you listen to people who testify before the Commission and City Council, that would mean everywhere.)

Commissioner Pugh’s second suggestion was more inventive. He noted that the one unique circumstance of the Bass/Barbanell property is that their house is set back the full depth of the set back, about 26 feet from the edge of the walkway. The rest of the block has been built out, typically to about eight feet from the walkway.

Fact is, given the narrowness of the walk street, the required setback, 30 feet from the centerline of the walkway, is too wide. The charm of the walk street comes from the little gardens in front of the tight-knit buildings.

Charming little garden behind 42 inch wall on Seaview Terrace (Photos by Frank Gruber)

Commissioner Pugh’s idea was to allow the Bass/Barbanells to build a higher than normally allowed fence that would more or less continue the façade line between the two adjacent structures. This would give the Bass/Barbanells the security they said they needed, yet the front of the property would be visually open to the public to the same extent as other properties on the street.

The interesting thing about this proposal is that it echoed the history of the site. In the original subdivision plan for Seaview Terrace, reproduced below, a center strip running fifteen feet on either side of the centerline, i.e., to about ten feet from the edge of the current walkway, was dedicated for “Park and Walk Purposes.”

Original Seaview Terrace Subdivision Map with Tract Map Language

In other words, when Seaview Terrace was still private, deed restrictions prohibited property-owners from building where the Bass/Barbanells currently have their fence.

Regardless whether Commissioner Pugh was aware of this history when he made his proposal, which would have, in effect, restored the old covenant in place of the City’s setback requirement, it had a certain amount of sense. Given the unique location of the Bass/Barbanell house, the Commission might have been able to make the necessary findings, and it looked like Commissioners Pugh and Clarke would have rounded up at least two more votes from Commissioners O’Day and Johnson.

But the compromise didn’t happen.

Barry Rosenbaum, the City Attorney’s liaison to the Planning Department, opined that if the Commission wanted to grant a variance different from the one requested, the Commission needed to hear from the applicants as to whether they would want the variance.

Fair enough. A bad idea, maybe, in this case, but fair enough.

Did the Bass/Barbanells accept this reasonable compromise that gave them what they said their family needed in the way of enhanced security, and only required them to “give up” the same narrow strip of front yard that all their neighbors now kept open?

While you ponder that, let’s take a timeout for irony, reflection, and reiteration of overriding theme. The reason I started writing about the Bass/Barbanells and their desire for a variance to keep their ugly fence and hedge was because it was ironic that these two activists who had opposed so many other applications for variances now wanted to bend what is a rather strict law and get their own.

Ugly fence and hedge at 16 Seaview Terrace

The fact is, it’s too hard in this city to get a variance or any other discretionary permit, politically because of people like the Bass/Barbanells, and I look forward to the next time they oppose a reasonable request for a variance to reduce parking requirements or to obtain a conditional use permit to serve alcoholic beverages.

Back to the hearing. Around 1:30 in the morning, when Chair Clark asked Ms. Barbanell if she would accept Commissioner Pugh’s proposal, she told the Commission that she was so upset she was having heart palpitations. (I had the feeling she had expected a different outcome.) She told them she was unhappy, that they didn’t understand that her family needed to enclose the entire yard. The answer was no.

So there the Commission was. Stumped and stymied in the wee hours. Commissioner Hopkins asked for a continuance so that she could try to craft findings to justify the fence and hedge. Ultimately, Commissioners Clarke and Pugh agreed to the delay, even though it was clear that the Bass/Barbanells did not have the four votes necessary to overturn the ZA’s ruling, which should have been the end of it.

Commissioners Dad and O’Day voted against the continuance, Commissioner O’Day noting that it was the Commission’s job to make decisions. My new hero, Commissioner Dad, pointed out that the evening’s record would show that the findings Commissioner Hopkins wanted could not be made.

* * *

Speaking of heroes, congratulations to Susan McCarthy and John Deasy and their staffs for negotiating an agreement to defuse the crisis over school funding and the proposed Community for Excellent Public Schools (CEPS) ballot measure.

Of course they couldn’t have done it without direction from the City Council and School Board, and a general sense of goodwill, no to mention CEPS’ public agitating. But if, over the past 30 years, more elected officials and policymakers had shown this kind of flexibility and imagination, ballot box government would not have hamstrung California.
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