CITY COUNCIL: Two Encroachment Permit Applications for Installation of New Utility Pole, Electric Transformer & Fence in Public Right-of-Way associated with Golden Bough Theater Remodel Project

Meeting Date: October 4, 2011
Prepared by: Sean Conroy, Plng & Bldg Services Manager

City Council
Agenda Item Summary

Name: Consideration of two encroachment permit applications for the installation of a new utility pole, an electric transformer and a fence in the public right-of-way on east side of Casanova Street between Eighth and Ninth Avenues associated with the Golden Bough Theater remodel project. The applicants are the Pacific Gas and Electric Company (PG&E) and Pacific Repertory Theater (PacRep).

Description: The City issued a building permit to PacRep for interior renovations to the Golden Bough Theater. The permit included an upgrade to the existing electrical systems.

PG&E determined that a new transformer would be required in addition to a new utility pole. PacRep is proposing a wood fence to screen the new transformer.

Overall Cost:
City Funds: N/A

Staff Recommendation: Approve the application.

Important Considerations: CMC Section 12.08 outlines the City’s process for reviewing encroachment applications. An encroachment is defined as: “any excavation, structure or object, temporary or permanent, upon, over or under any City property or public right-of-way, except driveways…”

CMC Section 13.20.020 authorizes the City’s electric franchisee to
“construct, maintain and use poles, wires, conduits and appurtenances necessary or proper for transmitting and distributing electricity to the public for any and all purposes in, along, across, upon, under and over the streets within the City…”

Decision Record: N/A

Attachments:
• Project Plans.

Reviewed by:

______________________________ _____________________
John Goss, Interim City Administrator Date

CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR MCCLOUD &MEMBERS OF THE CITY COUNCIL
THROUGH: JASON STILWELL, CITY ADMINISTRATOR
FROM: SEAN CONROY, PLNG & BLDG SERVICES MANAGER
DATE: 4 OCTOBER 2011
SUBJECT: CONSIDERATION OF AN ENCROACHMENT PERMIT APPLICATION FOR THE INSTALLATION OF A UTILITY POLE, AN ELECTRIC TRANSFORMER AND A FENCE IN
THE PUBLIC RIGHT-OF-WAY ON THE EAST SIDE OF CASANOVA STREET BETWEEN EIGHTH AND NINTH AVENUES. THE APPLICANTS ARE THE PACIFIC GAS AND ELECTRIC COMPANY (PG&E) AND PACIFIC REPERTORY THEATER (PAC REP).

BACKGROUND AND PROJECT DESCRIPTION
The Golden Bough Playhouse is located on the west side of Monte Verde Street between
Eighth and Ninth Avenues in the Theatrical (A-1) District. The Golden Bough consists
of two theaters, the main theater that is accessed primarily from Monte Verde Street and
the Circle Theater that is accessed primarily from Casanova Street. The surrounding
properties are zoned Single-Family Residential (R-1). This site is considered historically
significant as it has contributed to the performing arts culture of the City since
approximately 1907. There are two utility poles adjacent to the Golden Bough, one near
the northwest corner and one near the southwest corner of the property.
On February 3, 2011 PacRep was approved for a building permit authorizing interior
renovations of the Golden Bough. The renovations include upgrading the electrical
system. Following standard process, once the permit had been issued the Theater
contacted PG&E about the electrical service upgrade. PG&E determined that a new
transformer would be needed to accommodate the electric service upgrade. PG&E has
also determined that the existing utility poles are currently at capacity and that a new
utility pole would be required. The utility pole would be located completely within the
public right-of-way while the transformer would be located partially on the applicant’s
property and partially within the right-of-way.
PG&E has specific location and access requirements for its installations. It was
determined that there is not sufficient space on the north, east or south sides of the
property for the transformer. The transformer cannot be located near the northwest
corner of the property due to the location of a significant tree. The transformer could be
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located in the existing parking area, however, this would reduce the already limited onsite
parking and handicap vehicle accessibility.
In summary, the following encroachments are being requested:
1) Installation of a new utility pole approximately 18 feet south of the existing utility
pole near the northwest corner of the Golden Bough property.
2) A new electric transformer. The transformer is approximately 77 inches tall.
3) Concrete pad for the electric transformer.
4) Fence enclosure to screen the transformer. The fence would enclose an area
approximately 12’8” x 12’2” to accommodate the minimum access requirements
of PG&E.
Several neighbors have expressed opposition to the proposed encroachments. The
primary concerns relate to potential view impacts that a new utility pole would create and
impacts on the character of the right-of-way.
EVALUATION
CEQA: Staff has determined that the proposed encroachment permits are exempt from
the California Environmental Quality Act (CEQA). CEQA Guidelines Section 15301
authorizes an exemption for interior or exterior alterations involving electrical
conveyances for projects involving negligible or no expansion of a facility’s use. The
site is authorized to operate as a Live Performance Theater. The applicant is not
proposing to expand or alter the approved use on the site.
Electric Franchise: CMC Section 13.20.020 authorizes the City’s electric franchise
grantee (PG&E) to construct, maintain and use poles, wires, conduits and appurtenances
necessary or proper for transmitting and distributing electricity to the public for any and
all purposes in, along, across, upon, under and over the streets within the City.
Traditionally the City has not required PG&E to obtain an encroachment permit based on
the franchise agreement. However, as discussed in the following section, the Municipal
Code does have provisions that appear to require an encroachment permit for utility lines.
No exception is listed for the grantee of the electric franchise.
Encroachment Permit: CMC Section 12.08.030 requires an encroachment permit for
all encroachments, including utility lines, into the public right-of-way. Encroachment
permits can be either acted upon by the City Administrator or forwarded to the Council
for review. The City Administrator has forwarded these applications to the Council for
review.
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CMC Section 12.08.060 establishes the encroachment application review standards.
These are outlined below followed by a brief response from staff.
A. Need. The applicant shall be determined to have a justifiable need for the
encroachment, and the encroachment shall not be contrary to the public interest.
Response: The Golden Bough has operated on substandard electrical service for many
years. The proposed electrical service upgrade will improve the safety of the building,
its occupants and its neighbors.
The utility pole must be placed in the public right-of-way to be parallel with the adjacent
poles. There is no option to place the pole on private property. However, PG&E has
indicated that the either of the existing poles on the north and south sides of the property
could be modified to allow power to be supplied to the new transformer. However, a
significant amount of additional trenching would be required. This cost would be borne
by the applicant.
The transformer is not required to be placed in the public right-of-way, however, as
discussed previously several constraints limit the ability to place the transformer on
private property. Placing the transformer underground would require a metal transformer
lid. PG&E has indicated that vehicles could not park on the lid, thus eliminating the
potential of putting the transformer under the existing parking area.
The transformer could potentially be placed underground in the right-of-way, however,
this would likely create visual impacts as the lid could not be covered with landscaping
material.
B. Safety. The granting of an encroachment permit shall not create a hazard to public
health or safety.
Response: The Theater has been operating with a sub-standard power source for many
years. The proposed electric service upgrade will allow the Theater to operate in a safer
manner. The proposed encroachments do not create a hazard to public health and safety.
C. Drainage. The proposed encroachment shall not adversely affect the normal drainage
of surface water, unless an acceptable mitigation is included that will be advantageous to
the general public and meet the standards herein.
Response: The proposed encroachments will not significantly impact the normal
drainage of surface water.
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D. Circulation and Parking.
1. The proposed encroachment shall not adversely affect vehicular and/or
pedestrian traffic nor the parking of vehicles.
2. The proposed encroachment shall not adversely impact existing rights-of-way nor
preclude or make difficult the establishment or improvement of existing or potential
streets or pedestrian ways.
Response: Parking and congestion has been a consistent concern of neighbors in the area
for many years. In an attempt to improve the situation, the City painted parking spaces
along Casanova Street. The proposed encroachments will not impact existing on-street
parking, vehicle circulation or pedestrian traffic. However, if the transformer was
required to be placed on private property, it would likely result in a reduction of the
already limited on-site parking and contribute to the congestion along the street.
The City currently has no plans to improve the existing right-of-way along this street.
However, the transformer is setback a sufficient distance and would not preclude the City
from widening the street or otherwise improving the right-of-way in the future. It should
be noted that other encroachments exist in the vicinity that extend further into the rightof-
way than would the proposed encroachments.
E. Public Use and Enjoyment.
1. The proposed encroachment shall not diminish public use or enjoyment, either
visual or physical, of the City property or public right-of-way to be encroached
upon.
Response: The proposed encroachments will not diminish the public use of the right-ofway.
The right-of-way is currently landscaped and slopes up from the street and is not
used as a walking path along the street. The transformer, fence and utility pole will add
new structures into the right-of-way. Some neighbors have expressed concerns regarding
these structures and potential impacts on views and neighborhood character. The Council
should consider these concerns.
Staff notes that the fence will extend to within approximately six feet of the street edge
and would need to be tall enough to screen the transformer. Staff recommends that the
transformer pad be excavated so that the proposed fence would not exceed four feet in
height. This would limit the prominence of the fence while still screening the
transformer.
2. The encroachment and enjoyment shall be in the public interest.
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Response: It is in public interest to ensure that electrical service to residences and
businesses is safe and reliable.
3. The length of time an encroachment has existed shall not by itself prejudice a
decision.
Response: N/A
F. Compatibility.
1. The proposed encroachment and its mitigation shall be consistent with the
General Plan and the adopted ordinances of the City. Particular attention shall be
given to Section P1-48 of the General Plan, which prohibits the construction of
sidewalks and concrete curbs in the R-1 district, unless necessary for drainage
and/or pedestrian safety.
Response: The applicant is following the procedures established in the Municipal Code.
The encroachments do not involve the construction of sidewalks or curbs. Goal G1-2 of
the General Plan encourages preserving the village character. This is a consistent theme
throughout the General Plan. The Council should consider whether the proposed
encroachments conflict with this goal.
2. The encroachment shall not create, extend, or be reasonably likely to lead to an
undesirable land use precedent.
Response: There are examples of other electric transformers that have had to be located
on public property due to site constraints. There are also numerous examples of
encroachment permits for fences and walls in the public right-of-way. Again, it should
be noted that there are several encroachments in the vicinity of the Theater. The
proposed encroachment permits will not lead to an undesirable precedent.
3. Granting of a permit shall not adversely affect the usability or enjoyment of one
or more adjoining parcels.
Response: The proposed encroachment permits will not adversely affect the usability of
adjoining parcels. However, several neighbors have expressed concern that the
encroachments will affect the enjoyment of their property due to view impacts from the
proposed pole and loss of open space in the public right-of-way. The Council could
consider mitigations to lessen the impacts on the neighborhood.
4. The proposed encroachment and its mitigation shall be compatible with the
surrounding area and adjoining properties.
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Response: Some potential mitigations are discussion later in this report.
G. Public Property/Greenbelt.
1. The proposed encroachment shall not adversely affect any public property,
including existing vegetation or its root structure, and shall not significantly reduce
greenbelt area that may be used for tree planting.
Response: The proposed transformer and utility pole have been sited to avoid impacts on
the neighboring trees. The encroachment will reduce the amount of open space in the
public right-of-way, but the majority of the right-of-way will still remain landscaped.
The encroachments do not appear to create a significant adverse affect on public
property.
2. Significant trees which would be affected by the proposed encroachment shall be
identified by the Director of Forest, Parks and Beach and approval for removal
shall follow City policy.
Response: The transformer was sited specifically to avoid impacts on the neighboring
significant tree. No tree removals are required.
H. Mitigation. When deemed appropriate by the City, the applicant shall include those
measures appropriate to compensate the City for the loss of the use of City property or
the public right-of-way, or to repair damage thereto.
Response: The applicant is proposing a wood fence to match the existing wood fence on
the property and to replant the right-of-way to mitigate the visual impacts. Some other
mitigations the Council could consider include:
• Do not approve the encroachment permit for the utility pole. This would reduce
the visual impacts on neighboring properties and the clutter of the right-of-way.
• Require that the transformer pad be lowered and that the fence not exceed 4’ in
height.
• Require additional landscaping such as shrubs or a lower canopy tree that would
further reduce the visibility of the encroachments.
• Require that the transformer be placed on private property.
• Require that the transformer be placed completely underground.
Design Review: CMC Section 17.58.010.B indicates that design review is required for
all new development. The definition of “development” includes electrical power and
transmission lines. CMC Section 12.08.050.A indicates that the Planning Commission
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shall provide recommendations to the Council for encroachments permits that accompany
design review applications in the CC, SC, RC and R-4 Districts. Commission review for
encroachments in other districts, such as the A-1 District in which this project is located,
is not required.
If the Council is supportive of the encroachment permit applications, staff would then
process a Track 1 Design Study application. The application could be administratively
approved by staff. If the Council does not approve the encroachment permits, then no
Design Review application would be needed.
RECOMMENDATION
Staff recommends the following motions:
1. Deny the encroachment permit request for the new utility pole. This would
require that one of the existing poles be modified to accommodate the needs of the
new transformer.
2. Approve the encroachment permit requests for the transformer, transformer pad
and fencing with the following special conditions:
• A Design Study application shall be approved by the City for the proposed
encroachments prior to installation.
• The proposed fence shall not exceed four (4) feet in height and the top of the
proposed transformer shall be at least six (6) inches below the top of the
fence.
• The applicant shall work with staff on a specific landscape plan that limits the
visibility of the proposed encroachments and enhances the appearance of the
right-of-way.
• The applicant agrees, at its sole expense, to defend, indemnify, and hold
harmless the City, its public officials, officers, employees, and assigns, from
any liability; and shall reimburse the City for any expense incurred, resulting
from, or in connection with any project approvals. This includes any appeal,
claim, suit, or other legal proceeding, to attack, set aside, void, or annul any
project approval. The City shall promptly notify the applicant of any legal
proceeding, and shall cooperate fully in the defense. The City may, at its sole
discretion, participate in any such legal action, but participation shall not
relieve the applicant of any obligation under this condition. Should any party
bring any legal action in connection with this project, the Superior Court of
the County of Monterey, California, shall be the situs and have jurisdiction for
the resolution of all such actions by the parties hereto.