CITY OF SAN CLEMENTE - File #: 26-318

Date	Action By	Action	Result	Action Details	Meeting Details	Video
8/18/2026	City Council			Not available	Meeting details	Video
8/18/2026	City Council			Not available	Meeting details	Video

Submitted By: Public Works

Prepared By: Alex Vlosky, Associate Civil Engineer

Zak Ponsen, Assistant City Engineer

Subject:

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APPEAL OF THE DENIAL OF AN ADMINISTRATIVE ENCROACHMENT PERMIT FOR A WALL IN THE RIGHT OF WAY LOCATED AT 1202 AVENIDA DE LA ESTRELLA AND FINDINGS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

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Summary:

The property at 1202 Avenida De La Estrella is a corner-lot parcel (intersecting with La Placentia) with an existing unpermitted retaining wall built in the public right-of-way along both street frontages. The property also has unpermitted concrete steps in the public right-of-way along Avenida De La Estrella. Recently, unpermitted modifications to the wall prompted a public complaint that the wall blocks the vehicle's line of sight at the intersection of Avenida De La Estrella and La Placentia. A Code Case (CE2025-0141) was initiated and the property owner applied for an Administrative Encroachment Permit to allow the wall and steps to remain in place.

The City Engineering Division reviewed the existing wall and site conditions and denied the application for the administrative encroachment permit on March 26, 2026 for several reasons including, but not necessarily limited to:

• Both the pre-existing and recently modified walls block the line of sight for vehicles turning onto Avenida De La Estrella from La Placentia. As constructed, the wall violates Orange County Standard 1117 for proper line of sight at intersections.

• The wall and steps were built without permits and are located approximately 2’-4” from the curb face along the street frontages. The Building Code requires permits for such improvements and approval is discretionary, not by right.

• The encroachment of walls and steps in the right-of-way prevents the future construction of a public sidewalk along either property frontage and will inhibit an ADA access ramp at the intersection. City Municipal Code 12.08, State, and Federal regulations all require sidewalk along public streets wherever feasible, including this location.

• The recent modifications to the wall added light sconces that protrude even further into the right-of-way and pose a hazard to pedestrians in the area already significantly constrained.

• The wall is also designed to allow the property to drain directly onto the existing narrow 2-foot-wide sidewalk creating a slip hazard on the narrow sidewalk.

• The pre-existing and recently modified wall heights exceed the Zoning Code limit, which requires walls and fences to be no more than 3.5 feet in the front yard setback.

The applicant has submitted an appeal letter and package (Attachment 2); however, staff is still unsupportive of allowing the improvements to remain in the right-of-way.

Pre-existing unpermitted wall with fence.

Existing line-of-sight and wall.

Background:

The pre-existing wall located along both frontages of a corner lot at 1202 Avenida De La Estrella has existed since at least 2007. According to the new property owner, the wall was likely built in the 1950-60’s. No permit records for any walls are on file with the City. In accordance with City Improvement plans, the property line is located 5’ from the face of the curb on both cross streets. The wall encroaches into the right-of-way approximately 2’-4” from the face of the curb on both street frontages.

During the recent wall modifications, the pre-existing fence sections were removed and replaced with a solid wall between the columns, further reducing visibility. The wall height appears to vary from 60” to 75”. The existing drain holes to the sidewalk remain unmodified. Two new lamps were installed that protrude from the face of the wall at about head-height and pose a risk to pedestrians walking on the narrow sidewalk. The gate at the stairway has also been modified into a solid structure that reduces visibility. The existing steps were not modified but lack a handrail and a compliant landing area.

This matter was included on the June 16, 2026, regular meeting agenda of the City Council. At the request of the property owner, City Council voted to continue the item until August 18, 2026.

Discussion:

San Clemente Municipal Code Chapter 12.20 governs the issuance of permits for encroachments into the public right-of-way. Permanent improvements, such as walls and steps, typically require an Administrative Encroachment Permit agreement to be recorded on the parcel title. These agreements hold the City harmless and require the property owner to remove the improvements in City right-of-way for any reason when requested by the City. This document does not preclude the requirement for building permits or other requirements for existing or proposed improvements (see Attachment 5 for an example).

The City Engineer reviewed the site conditions of the unpermitted wall and found that in accordance with Orange County Standard 1117, the wall violates the adequate site distance requirement for vehicles turning from La Placentia to Avenida De La Estrella. The location of the wall in the right-of-way also prevents the City or the property owner from constructing an ADA-compliant sidewalk in the future, which must be at least 4’ wide to satisfy State and Federal codes. The wall also drains onto the existing, deficient sidewalk creating the potential for unsafe pedestrian use during wet conditions. The modified wall has newly mounted lamps that protrude farther into the right-of-way. Additionally, since there are no records for permitting of the wall, there is no certainty that the wall was built to accepted standards to withstand the new weight that has been recently added to the wall by the recent filling of the areas between the columns with unknown types of soil (compaction issues, settling, expansion, water retention with clay soils absorbing water and becoming too heavy for the wall, etc.).

The Planning Division also reviewed the condition of the wall and found that it exceeds the zoning height limit for walls in the front setback which requires a discretionary hearing for any walls above 42 inches.

The property owner’s Appeal letter (Attachment 2) lists several reasons for arguing that the wall should remain, including privacy, unreasonable burden, and that the wall would meet the criteria for a sidewalk waiver if a sidewalk were to be built. Municipal Code 12.08.010(A)(4) requires property owners to build a sidewalk if their permit valuation exceeds $50,000 and allows application for waiver of sidewalk if the property owner needs to build a retaining wall in excess of 3 feet. This property is not required to install a sidewalk at this time, but a waiver of sidewalk would be reviewed in great detail when and if a project triggers the sidewalk requirement in the future. Based on initial analysis of the current grades of the site and neighboring residences, it appears that the existing wall retains 30-36 inches and may not meet the criteria for a waiver if the property owner were required to build the sidewalk.

The property owner has verbally offered to restore the wall to its original condition or modify it to help mitigate the issues. However, staff have determined that any wall, fence, or railing more than 30 inches high (meeting the 36 inch threshold for line of site with a 30 inch wall and 6 inch curb) poses a line-of-sight issue at the intersection. Additionally, any allowance for a modified wall at this location should be subject to removal by the owner if the City, for any reason desires to have the wall removed. The City has an upcoming project to add a sidewalk on the other side of the street that may result in the need for a new ADA ramp at this intersection and require removal of the wall improvements in the near future. Finally, there are other safety issues (improper drainage and light sconce protrusions) also need to be corrected for safety reasons.

Considerations Identified by Staff:

The central issue in this appeal is whether a wall should be permitted to encroach into the public right-of-way. There are numerous reasons why the encroachment permit was denied. The sight distance poses a safety issue and a complaint from the public has already been received. Neither the previous wall nor the modified wall satisfies sight distance requirements of Orange County Standard 1117. The wall and step improvements impede the construction of a compliant 4-foot-wide sidewalk and ADA access ramp. Staff reviewed the other properties along this section of Avenida De La Estrella and determined that sidewalk is feasible along this entire block. There are also additional public safety concerns caused by improper drainage and light sconce protrusions into the public right-of-way.

If City Council elects to uphold the denial of Administrative Encroachment Permit E25-0416, then the property owner will be required to remove the wall and steps from encroaching into the public right-of-way and construct curb drains for the site drainage to properly discharge to the street. Removing the wall from the right-of-way would result in the property owner needing to either regrade the yard to a sloped condition or construct a new retaining wall at the property line that complies with zoning standards.

Conversely, approving or partially approving the appeal would allow a wall and stairs to encroach in the public right-of way, but should require reducing the wall height to not exceed 30 inches in height in order to satisfy the line-of-sight and zoning standards together with removal of the drains to fix the slipping hazard. The City’s future project to add a sidewalk on the other side of the street will include an ADA ramp to cross the street at this intersection, which could require wall removal at that time.

In either scenario, if the property owner does not voluntarily comply, it would result in continued enforcement action until the property is brought into a safe and legal condition.

In the event the City Council decides to partially or fully approve the property owner’s appeal, a draft version of the Administrative Encroachment Permit is included for City Council and applicant consideration (Attachment 4). Terms of the agreement (Attachments 4 and 5) include, but are not limited to, the following requirements for the property owner(s):

• Recording the agreement in the chain of title on the applicant’s property.

• Compiling with City, local, State and Federal requirements.

• Maintaining the encroachments in a safe and clean condition at its sole cost and expense.

• Agreeing to remove and pay for the removal and reconstruction of the encroaching improvements.

• Maintaining a homeowner liability policy or commercial general liability insurance naming the City and its elected and appointed officials, officers, employees, agents, and volunteers as additional insureds.

• Agreeing to defend (with counsel acceptable to City), indemnify and hold harmless the City all its agencies, officers, elected and appointed officials, employees, volunteers and agents from and against all liabilities, claims, demands, judgments, damages, losses, costs and expenses, including attorney and expert fees and costs that may in any manner or form arise out of or in connection with the encroachment, the property or issuance of the encroachment permit.

Council Options:

• Adopt Resolution No. 26-109 (Attachment 1), denying the appeal and upholding the denial of Administrative Encroachment Permit E25-0416 for retaining walls in the right-of-way.

• Modify and adopt Resolution No. 26-109.

• Modify and adopt Resolution No. 26-___ (Attachment 3, Alternate Resolution), partially granting the appeal, making CEQA findings and directing the issuance of an administrative encroachment permit subject to City Council specified conditions.

• Grant full approval of the appeal which would allow the wall to remain in the current condition with no further obligation of the applicant.

• Continue the item and direct staff to provide additional information.

Environmental Review/Analysis:

If the City Council denies the appeal, the action is not considered a Project pursuant to California Environmental Quality Act (CEQA) Guidelines.

If the City Council elects to allow the existing or modified improvements, then staff recommends that the City Council determine that this project is categorically exempt from CEQA under Class 3 (New Construction or Conversion of Small Structures, 14 CCR 15303(e)) because it is an accessory structure.

Fiscal Impact:

None at this time.

Potential Action(s):

recommendation

The City Council should conduct the appeal hearing and consider any information presented by the applicant or the public before or during the hearing. After conducting the appeal hearing, the City Council should adopt a resolution deciding the appeal.

If the City Council moves to adopt Resolution No. 26-109 without modifications, that would:recommendation

1. Deny the appeal; and

2. Uphold the denial of Administrative Encroachment Permit E25-0416 for retaining walls and stairs in the right-of-way.

If the City Council moves to adopt Resolution No. 26-XX without modifications, that would:recommendation

1. Partially grant the appeal;

2. Determine the project is categorically exempt from CEQA under Class 3 (New Construction or Conversion of Small Structures, 14 CCR 15303(e)); and

3. Grant an Administrative Encroachment Permit E25-0416 for retaining walls and stairs in the right-of-way subject to the terms and conditions in the permit (Attachment 4), those specified in the resolution (the encroaching wall improvements shall not exceed a maximum height of 30 inches and the drain shall be removed or modified to properly drain to the street and not onto the sidewalk) and those specified in the Agreement Containing Covenants Affecting Real Property (Attachment 5).

If the City Council grants the full appeal of the applicant, the applicant will have no further obligation to correct any of the cited violations.

recommendation

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Attachment:

1. Resolution No. 26-109, denying the appeal

2. Applicant Appeal Package

3. Alternative Resolution No. 26-XX, partially granting the appeal

4. Sample Administrative Encroachment Permit

5. Sample Agreement Containing Covenants Affecting Real Property

Notification:

Published in SC Times on June 4, 2026

Daniel Roberts, property owner

Legislation Details