Title
Consideration of Citizen Petition Related to 4418 E. Osborn Road
Description
This report provides the City Council with information in response to a citizen petition submitted by Mr. Wally Graham at the Aug. 29, 2018 Formal City Council meeting.
Report
Summary
Mr. Graham provided a petition regarding vehicular access to 4418 E. Osborn Road via the alley located to the east of the parcel (Attachment A). In addition, he requested that the City Council appoint an impartial arbitrator to hear the issues his neighbors have with the proposed use of the alley for a retail store front with accessory coffee shop use.
Staff Response
The following responds to the petition dated Aug. 29, 2018, in addition to including information on alley access regulations and a prior letter of clarification.
Alley Access Regulations
Alleys are public rights-of-way that the City holds in trust for use by the public. Alley access is permitted for all types of refuse collection. All single family and multi family developments may use adjacent alleys for access by-right with additional requirement for multifamily developments that alleys used for access must be fully paved.
Commercial uses are not outright banned from using alleys for access. Under Ordinance G-780, adopted in 1967 commercial uses may use alleys for service vehicle access by right. Access for employee and customer access requires approval of a Technical Appeal by Planning and Development Department (PDD) staff, with the exception that commercial uses which were established prior to 1967 and utilized access to and from an adjacent alley were allowed to continue to utilize such established access. There are no provisions in the ordinance stating that any such rights are terminated through vacancy or disuse of the development.
Prior Letter of Clarification
On Oct. 20, 2016, a letter of clarification was sent by PDD staff in response to a written inquiry by William Allison of Withey Morris PLC, who was retained by the applicant at that time, Newquist Commercial Properties. The inquiry was regarding past use of the alley by the commercial use on this site. Staff researched the site, which included old aerial photos, variance applications, and building permits for the site. It was staff's conclusion that this site had utilized the alley along the eastern side of the property for access to the portion of the lot behind the existing building (Attachment B).
Historical Basis of Alley Access Rights
The right of this property to use the public alley was confirmed based on research of records providing the following historical information, which was summarized in the letter of clarification:
Aerial photos shows the business on the property has used the alley to access the property since at least 1964. City aerial photos from 1964 show cars parked behind the building, perpendicular and directly adjacent to the alley. Subsequent photos from 1971, 1975, 1978, 1982, 1986, 1991, and 1995 all show the same parking area, where only legal access was from the alley. In addition to the 1964 aerial photo confirming the legal access prior to 1967 ordinance change, the latter photos demonstrated that use of the alley for access to the rear of the lot had been well established and continuous.
The original 1955 plat dedication shows the alley was intended for vehicular access to property. The 1955 plat of "Chestley Manor" created the commercial property, the adjacent residential lots, and dedicated alley in question. This alley was dedicated 20' wide, as opposed to 16' wide as dedicated for the other alleys on the same plat. The 20' wide alley dedication is significant because the Subdivision Ordinance, Chapter 32 of the City Code, required (and still requires) that any alley dedicated adjacent to commercial or multifamily developments be 20' wide. The wider alley allows vehicular access to the property through the alley. The 20' wide alley dedication supports the conclusion that the alley was dedicated to allow vehicular access to the building.
The original 1963 Building Permit shows the alley as the only legal access to public roads. The City issued a building permit in 1963 for the building currently standing on the property, which is not proposed for demolition. The building was permitted to be constructed within 5' of the east and west property lines, leaving no room for access to enter to the rear of the property, except for the alley. The 1961 zoning ordinance in effect at that time permitted these setbacks for a C-1 use.
After considering these facts together, it was clear that prior access to the alley had been well established and legal.
Continued Access
As mentioned above, the 1964, 1971, 1975, 1978, 1982, 1986, 1991, and 1995 aerial photos all show a parking area to the rear of the building, with access from the alley. After 1995, it appears that the building may have had some long vacant periods. There are no provisions in the Ordinance stating that periods of non-use of a parcel, limit their utilization of adjacent public rights-of-way for access.
Other Options for Access
The other options for access appear to require demolition of the building. Since the building was built in accordance with codes and ordinances in effect at the time, it would not be legal for the City to require demolition to be able to access the rear half of the lot. Access through the adjacent property to the west, the Circle K, is not physically possible due to the location of the Circle K store. It also would not have been possible to force Circle K to allow access across their property to provide access to the rear of the property.
Alley Access Appeals
The submitted petition requests appointment of an arbitrator related to the alley access issues. The arbitration process is currently not a provision or requirement adopted by the City Council, and requiring this particular applicant to participate in an arbitration process may not be legal.
Safe Use of Alley
Many alleys within the City are shared by commercial, multifamily, and single family users, and have trash collection services within the alley and these do not create any known safety issues compared to similar alleys. Currently, it does not appear that any of the four residences located directly east of the alley in question utilize this alley for vehicular access; it appears that it is used for trash collection.
Location
4418 E. Osborn Road
Council District: 6
Department
Responsible Department
This item is submitted by Deputy City Manager Mario Paniagua and the Planning and Development Department.