San Joaquin County planning panel denies variance for wall that encroaches into right of way

SAN JOAQUIN COUNTY

The San Joaquin County Planning Commission denied a variance request for a property owner who built a block-and-wrought-iron wall that Public Works says sits in the county right of way on North Alpine Road. The commission voted 5-0 to accept staff's recommendation to deny the variance (PA2400350).

Associate Planner Alisa Goulart told the commission the applicant sought a reduced front-yard setback, from 0 feet to -13.24 feet, for an existing fence consisting of a 3-foot-high CMU block topped by 3 feet of wrought iron and located between the roadway and the property line. Goulart said the building permit submitted and finalized on 05/03/2022 depicted the fence on the property line, but a subsequent Public Works survey found the fence in the county right of way, approximately 18 feet from the edge of the paved roadway rather than the 31 feet it would occupy if sited on the property line. Goulart said staff could not make the four required variance findings and recommended denial.

Cheyenne Raymond, engineering services manager with Public Works, said the department received a complaint, surveyed the site, and sent three letters to the property owner notifying them the fence was an illegal encroachment. "We sent 3 letters to the property owner," Raymond said, and the department documented the fence in the right of way and related concerns including drainage impacts and an unpermitted electrical installation.

At the hearing the property owner's attorney, Paul C. Kozlo, acknowledged the wall is in the wrong place and attributed the placement to a surveyor's error. Kozlo said moving the wall would be "a very expensive task" and that the owner would accept a revocable encroachment permit, naming San Joaquin County as additional insured, and agreeing to remove the wall if the county later needed the right of way. "There's no question about it," Kozlo said, acknowledging the wall sits in the right of way.

A nearby neighbor, Thomas Krause, testified in opposition and presented exhibits alleging multiple construction-related violations. Krause told the commission he lives at 11512 North Alpine Road next door to the subject property and said construction proceeded without demolition or building permits, that five heritage oaks were cut, that a 330-foot, 24-inch pipe was installed, and that the new wall encroaches 13 feet into the right of way and 4 feet onto his property. Krause said the wall also intersects AT&T fiber facilities and complained that permits and inspections were sought only after the county discovered the work. "This proves this was deliberate and no mere accident," Krause said.

Commissioners questioned whether the county or the applicant should have caught the error earlier. Staff explained the building permit was processed using the site plan provided by the applicant and flagged the standard stamp that places responsibility for verifying property lines on the applicant. Deputy Director of Public Works Alex Chetley said encroachment permits have been issued rarely and typically under unique circumstances.

Commissioner (speaker 5) moved to recommend denial of the variance based on the inability to make findings 1, 2, 3 and 4; the motion was seconded and passed unanimously, 5-0. The chair advised the applicant of appeal rights under Government Code section 65009(b)(2) and that the appeal period and fee were listed in the staff notice.

The commission limited its action to the variance request; staff noted separate code enforcement work and an open enforcement case for the unpermitted electrical installation tied to the project.

What happens next: the denial stands unless the applicant files an administrative appeal or pursues other remedies; staff described an alternative pathway that would require an encroachment permit with conditions, insurance naming the county, and an agreement that the encroachment would be revocable and removed if the county widened the road.

The Planning Commission took no other formal land-use actions after the vote and adjourned following routine announcements.