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September 12, 2017 > Editorial: Rights or Right

Editorial: Rights or Right

Cities face an enormous challenge when property values skyrocket and landowners yield to the premise that bigger is better. When ownership rights and neighborhood character move in opposite directions, it is often up to city government to mediate a misalignment of goals. As land has become more valuable in our communities, maximizing space and profit realized from location and construction has driven some owners to insert what have been called Òmega-homesÓ into otherwise modest neighborhoods. Introduction of large, 2-story homes adjacent to existing single-story homes may be inappropriate in character, block sight lines, sunlight and access to solar energy and create privacy concerns. How can this be regulated, yet retain important property ownership rights?

The City of Fremont is now wrestling with updating its zoning and design guidelines for residential construction throughout the City. At its City Council meeting on September 5th, councilmembers heard several alternatives introduced by Staff with a bewildering array of terminology and concepts including setbacks, lot coverage, massing, solar installation, balconies, remodel vs. demolition, floor and ceiling height and much more. How should regulations address Floor Area Ratio (FAR) that compares usable floor area to lot size? In the case of a remodel, should initial size of the existing home be used to calculate FAR (including a second floor, if desired)? How is FAR calculated if an Accessory Dwelling Unit (ADU) is anticipated or exists? How will home orientation affect shadows and seasonal obstruction of potential solar energy production? If a second story is anticipated, what percentage of the first floor can be covered? How will proposed construction fit in with neighboring homes?

Ten alternatives allowing Òministerial design reviewÓ were presented to the Council; a separate proposal was advanced by Councilmember Bonaccorsi. Although there appeared to be basic agreement among the Council about privacy concerns and community character, the enforcement and review process raises questions. As explained by Community Development Director Jeff Schwob, ministerial review allows staff to judge if rules and standards are met. If so, a permit will be issued. If the design of a plan does not meet codified restrictions, applicants can request a discretionary review, requiring a public notice and hearing to show Òthe intent was met in a different way.Ó Mr. Schwob noted that there has only been one example of discretionary review in FremontÕs history.

Questions about the administrative staff role when applying standards was raised by Councilmember Bacon. In situations that require interpretation of an ordinance, does the final decision rest with a staff member or legislative review? In either event, there is bound to be controversy since ownership might be nine tenths of the law, but the final tenth of zoning and design ordinances spell the difference. The balancing act for FremontÕs City Council is a tightrope, but should it err on the side of neighborhood character and, in the words of the General Plan, respect FremontÕs neighborhoods as the Òbuilding blocksÓ of the community.

Policy 4-1.2 of the Community Character section of the General Plan says, ÒNeighborhoods Maintain and enhance FremontÕs identity as a city of neighborhoods. Planning and design decisions should define neighborhood edges and gateways, build neighborhood pride and recognition, and strengthen the physical qualities that make each neighborhood distinctive. The intent is to preserve the desirable qualities of each neighborhood while allowing them to evolve, grow, and adapt over time.Ó This is a mouthful and somewhat nebulous. Exactly what does ÒevolveÓ mean in the context of an established neighborhood of older, primarily single-story dwellings? Is a mega-home evolution or destruction? The City Council has an obligation to define neighborhood character as best it can and eliminate ambiguity. When new neighborhood zoning and design guidelines are revisited in October, a definite line should be drawn to guide staff and developers. While some neighborhoods have official recognition and protection from radical design intrusion, others are waiting for a city-wide decision to limit the invasion of meg-homes in their midst. At the end of this process, someone will be unhappy. Will profit triumph?

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