Milpitas council denies variance for covered deck at 860 Evans Road

The Milpitas City Council voted 3-1 on May 21 to deny a minor site development permit and zoning variance that would have allowed a covered, attached deck to encroach into the Hillside Combining District side-yard setback at 860 Evans Road.

Staff told the council the proposal would expand a legally nonconforming structure and did not meet the required variance findings. Planning staff and the city attorney said alternatives — including an uncovered deck, a detached patio cover, or relocating a covered deck to the property’s opposite side — would comply with current code without granting the property a special privilege.

Randy Baez, associate planner for the city, told the council the applicant sought approval for an approximately 1,082-square-foot attached accessory building on a 0.8-acre lot and a deviation from the hillside minimum 40-foot side setback. Baez said the existing home already encroaches into the setback with portions as close as 11 feet, that adjoining lots were developed before the Hillside Combining District was adopted in 1992, and that the project would reduce the required 40-foot setback to as little as five feet.

"Staff does not recommend approval because there is no evidence of special circumstances, and this would be an enlargement of a nonconforming structure," Baez said. He told the council the proposal could be relocated or be reconfigured as a detached structure that would be subject to different (less restrictive) setback rules.

The applicant and a family member described living at the site for about 25 years and said the deck needs a roof because of intense sun and high winds on the hill. The applicant also said use of an uncovered or detached structure would be impractical for daily use and would not capture the site’s view. "We need a roof over the deck," the applicant said.

The Planning Commission had recommended approval by a 4-1-1 vote after a public hearing; staff asked the council to overturn that recommendation. One nearby property owner submitted written support and spoke in favor at the council meeting. Council members who voted to deny the variance said they were sympathetic to the applicant but that the variance findings and the city’s nonconforming-structure rules were not met. Council members pressed staff on whether alternatives had been fully tested and whether approving the variance would create an unfair precedent.

Motion and vote: Council Member Chua moved to adopt staff’s recommendation to deny MSD24-0257 and variance VA25-0001; Council Member Lam seconded. The motion passed with three votes in favor and one dissent (Council Member Lien). The record shows Vice Mayor Barbadillo, Council Member Chua and Council Member Lam voting aye and Council Member Lien voting no.

The staff report cited the Milpitas Municipal Code, the Hillside Combining District development standards and CEQA guidelines (staff referenced CEQA exemptions described in the staff report) and noted that alternatives were feasible on the site. The council did not adopt any amendments; the denial is the final action recorded for this item at the meeting.

The council’s action leaves the applicant the administrative option to redesign the project to meet existing setbacks or pursue a detached structure that complies with the code; staff also suggested the applicant work with planning staff on feasible alternatives before returning with revised plans.