HomeMy WebLinkAbout16 - Appeal of Modification Permit No. 2007 -050 - 1132 Ebbtide RoadCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 16
December 11, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jaime Murillo, Associate Planner
(949) 644 -3209, imurillo(&citv.newport- beach.ca.us
SUBJECT: Appeal of Modification Permit No. 2007 -050
1132 Ebbtide Road
APPLICANT: Paul and Norma Fruchbom
ISSUE
Appeal of the Planning Commission's decision to modify the Zoning Administrator's
approval of Modification Permit No. 2007 -050: the Modification Permit, as modified by the
Planning Commission, allowed hedges, a portion of an entry gate, and a pilaster to
exceed the 3 -foot height limit within the required front yard setback and allowed an
existing 9.5- foot -high vehicle access gate to exceed the 6 -foot height limit within the
required 6 -foot side yard setback.
The City Council must, after considering all of the evidence presented, either, approve,
modify, or disapprove, in whole or in part, Modification Permit No. 2007 -050.
RECOMMENDATION
1) Conduct public hearing;
2) Adopt Resolution No. 2007 - modifying the approval of Modification Permit
_
No. 2007 -050, as follows: 1) modify the approval of Hedge 1 to a maximum height of 6
feet; 2) modify the approval of Hedge 2 to a maximum height of 8 feet; 3) authorize the
retention of the existing entry gate and pilaster encroachment; 4) authorize the retention
of the existing sculpture encroachment; 5) authorize the retention of the existing 9.5 -foot
high driveway gate; and 6) deny, without prejudice, the applicant's request for the
proposed sculpture encroachment.
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 2
DISCUSSION
Proiect Description
The applicant requested a modification permit to exceed the 3 -foot height limit for
fences, hedges, and accessory structures within the 86 -foot front yard setback with the
following existing elements:
1) Hedge 1- An existing 10- foot -high hedge, as measured from interior grade, which
the applicant proposed to trim down to a maximum height of 7 feet. The hedge
encroaches 74 feet into the required 86 -foot front yard setback area as a
continuation of the fence approved by Modification Permit No. 2509 in 1980 (see
Background discussion below).
2) Hedge 2- An existing 12- foot -high hedge, as measured from interior grade (14.5
feet measured from sidewalk grade), located between the front of the house and
the entry gate element, which is 5 feet above the 7 -foot fence/hedge height (as
measured from interior grade) permitted by Modification Permit No. 2509.
3) Entry Gate- A 6- foot -9- inch -high entry gate and 6- foot -high pilaster that
encroaches 8 feet beyond the 38 -foot encroachment authorized by Modification
Permit No. 2509, for a total encroachment of 46 feet into the required 86 -foot
front yard setback. A 1980 building permit is on file for the construction of a fence
that references Modification Permit No. 2509; however, plans were not archived
and staff is unable to verify whether the plans were incorrectly approved or if
improvements were incorrectly constructed in the field. The original wrought iron
entry gate was replaced by the current property owner with the gate that exists
today.
4) Sculpture 1- An existing 10- foot -high sculpture that encroaches 46 feet into the
front yard setback.
The applicant also requested the approval of:
5) Sculpture 2- A new 11- foot -high sculpture, which is proposed to encroach 65 feet
into the front yard setback area; and
6) Driveway Gate- The retention of an existing 9.5- foot -high driveway gate that
exceeds the 6 -foot height limit within the required 6 -foot side yard setback. The
gate was replaced 3 years ago by the owner after a vehicle crashed through the
previous existing gate.
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 3
Attachment 2 (Project Plans) and Attachment 3 (Site Photographs) illustrates each of
the requested elements.
Background:
The subject dwelling was originally constructed in 1960. In 1980, Modification Permit
No. 2509 was approved allowing: 1) the construction and replacement of an existing 6
to 7- foot -high fence and driveway gate (variable height to account for terraced grade)
along the northeasterly side property line; and 2) a new 8.5- foot -high entry gate and a 6
to 7- foot -high fence that encroaches 38 feet into the required 86 -foot front yard setback
area. The approval letter and plans for Modification Permit No. 2509 are attached for
reference (Attachment 4).
The current property owner and applicant purchased the home in 1984. According to
the applicant, the existing walls, hedges, pilasters and gates have remained unchanged
since he purchased the home, with the exception of the entry gate and the driveway
gate. According to a neighboring property owner (2739 Windover Drive), the hedges
historically measured approximately 6 feet in height, but have grown to a height greater
than 6 feet within the last 4 years prompting a complaint to the City.
On March 14, 2007, the Code & Water Quality Enforcement Division issued a notice of
the violation to the applicant related to the height of the hedge located along the
northerly side of the front yard setback area.
On May 23, 2007, the applicant submitted an application request for a modification
permit to allow the existing 10- foot -high hedge, reduced to a height of 6 to 7 feet, to
remain in the front yard setback area. In reviewing the submitted application request,
additional existing over - height improvements were discovered and added to the
modification request.
On August 20, 2007, the Zoning Administrator approved the applicant's request
(Modification Permit No. 2007 -050) with conditions restricting the height of Hedge 1 to a
maximum height of 7 feet and Hedge 2 to a maximum height of 12 feet (Attachment 5;
Approval Letter).
On August 27, 2007, Planning Commissioner Michael Toerge initiated an appeal of the
Zoning Administrator's approval of Modification Permit No. 2007 -050 on the grounds
that the proposed modification fails to meet all three of the required findings necessary
to approve the request.
On October 18, 2007, the Planning Commission held a public hearing on the appeal of
the Zoning Administrator's approval and voted 4 to 3 to uphold the Zoning
Administrator's approval, but removed the sculpture encroachments from the action.
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 4
On October 23, 2007, Councilmember Leslie Daigle appealed the Planning Commission's
approval of Modification Permit No. 2007 -050.
Planning Commission Decision
After an extensive discussion on the project and considering the testimony received at the
public hearing, a majority of the members of the Planning Commission felt that the
Modification Permit, as approved by the Zoning Administrator, correctly addressed the
practical difficulties, especially the unusually large 86 -foot front yard setback, associated
with the property and that the findings to approve the applicant's request for each of the
elements could be supported. With the exception of the sculptures, the Planning
Commission voted to approve the Modification Permit No. 2007 -050. The Planning
Commission decided not to take action on the sculptures per the request of the
Assistant City Attorney for the reasons discussed below. The Minutes from the Planning
Commission hearing have been attached for reference (Attachment 6).
Sculptures
At the October 18, 2007, Planning Commission hearing, the Assistant City Attorney
advised staff and the Planning Commission that authorizing a discretionary approval for
specific works of art was unadvisable due to freedom of speech issues related to time,
place and manner restrictions versus regulating content of speech. Furthermore, the
Zoning Code was not intended to regulate artwork.
Since the date of the Planning Commission hearing, staff has considered issues related to
the approval of the sculptures and has determined that the City Council should take action
only on the existing 10- foot -high sculpture (Sculpture 1), but not the proposed 11 -foot -high
sculpture (Sculpture 2). Since the existing sculpture is in place, a condition of approval can
be imposed limiting the approval to the speck sculpture that exists today; if any changes,
replacement, or relocation of the sculpture takes place in the future, the approval of that
sculpture to encroach into the front yard setback shall become null and void. Given that
the proposed sculpture is a unique work of art and is not yet in place, it would be
inappropriate to approve the applicant's request, which may prove difficult to regulate in
the future. Therefore, the modification for Sculpture 2 should not be considered at this
time.
Appeal
Chapter 20.95 of the Municipal Code establishes the procedures for the appeal process.
Pursuant to Section 20.95.060 C, a public hearing on an appeal is conducted "de novo ",
meaning that it is a new hearing and the decision being appealed has no force or effect
as of the date the appeal was filed. The appellate body is not bound by the decision
being appealed or limited to the issues raised on appeal.
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 5
Modification Permit Findings
Chapter 20.93 (Modification Permits) of the Newport Beach Municipal Code provides for
administrative relief for certain development proposals where there is a practical
difficulty or physical hardship, including relief from the required building setbacks and
from the maximum height limitations for walls, fences, and hedges. In order to approve
a modification permit, the following three findings must be made:
A. The granting of the application is necessary due to practical difficulties associated
with the property and that the strict application of the Zoning Code results in
physical hardships that are inconsistent with the purpose and intent of the Zoning
Code.
B. The requested modification will be compatible with existing development in the
neighborhood.
C. The granting of such an application will not adversely affect the health or safety of
persons residing or working in the neighborhood of the property and will not be
detrimental to the general welfare or injurious to property or improvements in the
neighborhood.
The attached October 18, 2007, Planning Commission staff report (Attachment 7) provides
a detailed analysis of the practical difficulties associated with the property and staffs
original recommendations on whether sufficient facts exist to support the required findings
for each of the elements requested in the application. After considering facts and
testimony received at the Planning Commission hearing and revisiting the project site, staff
believes the City Council should consider the following facts in support of each finding:
Practical Difficulties Finding (Finding A)
To make this finding, it must be shown that the property has some practical difficulty or
constraint that, when combined with the strict application of the setbacks and height
limitations, creates a physical hardship that is inconsistent with the purpose of the code.
Staff believes that the property is significantly impacted by an 86 -foot front yard
setback requirement, which is disproportionately larger than any other front yard
setback in the community and equates to approximately 46 percent of the total lot
area. Front yard setbacks within the project's community (Harbor View Hills
Community Association) range from 6 feet to 86 feet, with no apparent consistency
in their application with respect to lot size or lot orientation. The application of an
86 -foot front yard setback on this property disproportionately impacts this property,
not only by limiting the percentage of the lot area that can be built on, but also
resulting in a front yard area significantly greater than that of other properties
(Attachment 8; Front Yard Setback Comparison).
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 6
Given the subject property's large front yard setback and the 3 -foot height limitation
for fences, walls and hedges within this setback, the property is significantly limited
to the types of improvements that can be constructed, including a protective wall,
fence or screen hedge. As a result, the property is afforded less privacy and subject
to increased noise and headlight impacts from vehicles then the other properties
similarly situated adjacent to Crown Drive or similar roadways. This is inconsistent
with the purpose and intent of the Zoning Code.
The applicant added a 10 -foot -high sculpture (Sculpture 1) for the stated purpose of
enhancing the visual appearance of the large front yard area. The setback creates
a physical hardship in locating these structures within the front yard due to the
height limitation of 3 feet. This sculpture cannot be located behind the front yard
setback since the house is located at the setback line due to the limited buildable
area of the lot. This encroachment is minor in nature and similar to other accessory
outdoor garden improvements, such as a patio umbrella, heater, or fountain.
Given the location of the property in relationship to the intersection of Crown Drive
and Crown Drive North, and in order to provide increased protection from vehicular
impacts, the applicant contends that a larger driveway gate is required to increase
visibility of the gate and alert on- coming vehicles to the turning roadway, and to
help shield the property from vehicular headlights. The new 9.5 -foot -high gate was
constructed of reflective stainless steel and increased height to make the gate more
visible to drivers at night.
Neighborhood Compatibility (Finding 8)
The purpose of this finding is to ensure that the granting of the modification will not
result in development that is out of character with existing development in the
neighborhood. In determining whether or not this finding can be supported, the City
Council should consider the following:
•
Entry Gate & Pilaster- The existing entry gate and pilaster have been in place for
several years and maintain a 40400t setback to the front property line, more than
what a majority of the other properties in the neighborhood are required to
provide, and can be found compatible with the existing development.
• Hedge 1- If Hedge 1 is modified to a maximum height of 6 feet, maintaining a 12-
foot setback to the front property line (74 -foot encroachment) can be considered
compatible with development within the community for the following reasons:
o As previously stated, front yard setbacks in the community range from 6 feet
to 86 feet.
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 7
o Corner lots similarly situated along Crown Drive are only required to
maintain setbacks ranging from 13 feet to 20 feet.
o Lots on the west side of Ebbtide Road, across the street from the applicant,
are reversed frontage lots with the front yard setbacks on the view side and
the 6 -foot rear yard setbacks fronting Ebbtide Road. This configuration
permits screening of rear yards from the street with 6 -foot walls, fences, and
hedges, similar to what the applicant is proposing.
o Limiting the height of the hedge to a maximum height of 6 feet would be
consistent with the development limitations of the other properties in the
Harbor View Hills community with reduced or reversed setbacks.
• Hed a 2- Hedge 2 at a height of 12 feet exceeds the standard 6 -foot -high fences,
walls, and hedges that other properties in the neighborhood are permitted to
provide and results in development that is out of character with the development
limitations in the neighborhood; however, allowing the hedge to maintain a
maximum height of 8 feet is more in scale with the existing development in the
Harbor View Hills community and still provides the property adequate privacy and
protection from the noise and headlight impacts from vehicles traveling along
Crown Drive.
• Drivewav Gate- Although the existing 9.5 -foot -high driveway gate exceeds the
standard 6- foot -high fences and walls that other properties in the neighborhood
are permitted to provide, it has been noted by several members of the community
and members of the Planning Commission that the gate is visually pleasing and
provides an aesthetic benefit to the community. It should also be noted that the
wrought iron vehicular access gate constructed by the Jasmine Creek Community
Association on the property immediately east of the subject lot is 7.5 feet high.
The applicant's as -built driveway gate is an average height of 7.75 feet (9.5 feet
max) and can arguably be found consistent character with the adjacent gate.
• Sculpture 1- The existing 10- foot -high sculpture is located behind Hedge 1 with a
majority of the sculpture screened from public view. The sculpture is a minor
architectural feature that results in negligible visual impacts, similar to other
accessory outdoor improvements, such as patio umbrellas, heaters, and
fountains. This improvement enhances the applicant's front yard landscaping and
will not result in development that is out of character with the existing
neighborhood.
• The Harbor View Hills Community Association reviews proposed developments
within the community to ensure compatibility with the character of the
neighborhood, and have submitted a letter stating they have no objection to the
hedges so long as they do not impede Association views or traffic safety.
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 8
• The front yard landscaping improvements can be found consistent with General
Plan Land Use Policy LU 5.1.6 (Character and Quality of Residential Properties)
which requires that residential front yard setbacks and other areas visible from the
public street be attractively landscaped.
Health and Safety (Finding C)
Staff believes the extension of the entry gate and pilaster into the front yard setback,
Sculpture 1, and the over - height driveway gate will not be detrimental to the general
welfare or injurious to property or improvements in the neighborhood. The entry gate
and pilaster have existed in that location since 1980 without proving to be detrimental.
The existing 10- foot -high sculpture is a minor architectural feature that does not impact
views and should not negatively impact persons residing in the neighborhood. The
driveway gate provides the applicant. increased protection from vehicular impacts at the
intersection and increases visibility and safety for on- coming vehicular traffic
approaching the intersection.
The hedges are several years old and have not proven detrimental to most surrounding
property owners or contributed to vehicle site distance problems. Several surrounding
property owners have actually submitted letters in support of the hedges, as they
provide increased privacy for their properties as well; however, the neighboring property
owner that is opposed to the hedges is negatively impacted by Hedge 1. According to
the neighbor at 2739 Windover Drive, the hedge has grown taller over the years, slowly
eliminating views of Catalina Island and sunset views of the ocean. It is important to
note that the City does not have private view protection policies or regulations; however,
when a height deviation is requested from what is normally permitted by Zoning Code, it
is reasonable to take into consideration the resulting private view impacts the deviation
creates. The neighbor states and it is evident from the photographs in Attachment 8 that
private views of Catalina Island and sunset views of the ocean are completely screened
by Hedge 1 at any height greater than 6 feet. The view impacts of Hedge 1 could,
therefore, be considered detrimental and the finding cannot be made for any portion of
that over - height hedge that significantly impacts the private view. By requiring the height
of Hedge 1 to be reduced to 6 feet maximum and applying a condition of approval
restricting the planting of any trees behind or in front of the hedge that would further
screen the private view, staff believes the finding could be supported.
Summary
Based on the above analysis of the 3 necessary findings to approve the subject
modification request, staff is recommending that the City Council approve Modification
Permit No. 2007 -050, as follows:
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 9
1) Hedge 1- Approve Hedge 1 at a maximum height of 6 feet, located a minimum of
12 feet back from the front property line.
2) Hedge 2- Approve Hedge 2 at a maximum height of 8 feet.
3) Entry Gate- Approve the retention of the existing 6- foot -high entry gate and
pilaster as proposed.
4) Sculpture 1- Approve the existing 10- foot -high sculpture in its current location
and impose a condition stating that if at any time in the future the sculpture is
relocated, replaced, or modified, the approval of the sculpture to encroach within
the front yard setback shall become null and void.
5) Driveway Gate- Approve the retention of an existing 9.5- foot -high driveway gate
that exceeds the 6 -foot height limit within the required 6 -foot side yard setback.
6) Sculpture 2- Deny, without prejudice, the new 11- foot -high sculpture, which is
proposed to encroach 65 feet into the front yard setback area. Given that the
sculpture is a unique work of art and is not yet in place, it would be inappropriate
to approve the applicant's request and may prove difficult to regulate in the
future.
The applicant has been advised of staff's recommendation and has agreed to trim the
hedges and abide by the conditions of approval. It should be noted that the applicant
wanted to plant a tree in front of Hedge 1 to increase privacy; however, due to the
issues and concerns discussed in this report, the applicant has agreed to remove an
existing bottlebrush tree and replace it with two new trees. The new trees would be
located so that their crowns would impose on the view from the 2739 Windover Drive
residence no more than the existing bottlebrush tree.
Environmental Review
The project qualifies for a Categorical Exemption pursuant to Section 15301 (Existing
Facilities) of the Implementing Guidelines of the California Environmental Quality Act
(CEQA). The exemption includes the addition of accessory structures to an existing
structure.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to property owners within
300 feet of the property and posted at the site a minimum of 10 days in advance of this
hearing consistent with the Municipal Code. Additionally, the item appeared upon the
agenda for this meeting, which was posted at City Hall and on the City website.
Prepared by:
a me Murillo, Associate Planner
Attachments:
1. Draft Resolution
2. Project Plans
Appeal of Modification Permit No. 2007 -050
December 11, 2007
Page 10
Submitted by:
..WE i/ _ �•
3. Site Photographs
4. Modification Permit No. 2509
5. Modification Permit No. 2007 -050 Approval Letter
6. 10/18/07 Planning Commission Minutes
7. 10/18/07 Planning Commission Staff Report
8. Front Yard Setback Comparison
9. Photographs of Neighbor's View Impacts
10.Applicant's Letters and Presentation
11. Letters of Support
12. Letters or Opposition
ATTACHMENT 1
Draft Resolution
0
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH MODIFYING THE PLANNING COMMISSION'S APPROVAL OF
MODIFICATION NO. 2007 -050 FOR PROPERTY LOCATED AT 1132
EBBTIDE ROAD (PA 2007 -111)
WHEREAS, an application was filed by Mr. and Mrs. Paul Fruchbom with respect
to property located at 1132 Ebbtide Road, and legally described as Lot 77 of Tract
2202, requesting approval of a modification permit to exceed the 3 -foot height limit for
fences, hedges and accessory structures within the 86 -foot front yard setback with the
retention of the following elements: 1) hedges; 2) a portion of an entry gate; 3) a
pilaster; and 4) a sculpture. The request also included the addition of a new 11- foot -high
sculpture within the front setback and the retention of an existing 9.5- foot -high vehicle
access gate located in the 6 -foot side yard setback; and
WHEREAS, at a noticed public hearing held on August 20, 2007, the Zoning
Administrator considered the application, plans and evidence, both written and oral, and
approved Modification Permit No. 2007 -050 with conditions restricting the height of the
hedges; and
WHEREAS, on August 27, 2007, Planning, Commissioner Michael Toerge
initiated an appeal of the Zoning Administrator's approval of Modification Permit No.
2007 -050 on the grounds that the proposed modification fails to meet all three of the
required findings necessary to approve the request; and
WHEREAS, at a noticed public hearing held on October 18, 2007 on the appeal
of the Zoning Administrator's decision to approve Modification Permit No. 2007 -050, the
Planning Commission considered the application, plans and evidence, both written and
oral, and approved Modification Permit No. 2007 -050 with the exception of the
requested sculptures; and
WHEREAS, the Planning Commission determined that approval of a modification
for specific works of art is inappropriate; therefore, the Zoning Administrator's approval of
Modification Permit No. 2007 -050 was modified to eliminate the sculptures from the
approval; and
WHEREAS, pursuant to Section 20.95.060 C, a public hearing on an appeal is
conducted "de novo ", meaning that it is a new hearing and the decision being appealed
has no force or effect as of the date the appeal was filed. The appellate body is not
bound by the decision being appealed or limited to the issues raised on appeal; and
WHEREAS, a public hearing on the appeal of the Planning Commission's
decision to modify the Zoning Administrator's approval of Modification Permit No. 2007-
050 was held on December 11, 2007 in the City Hall Council Chambers, at 3300
Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of
the aforesaid meeting was given. The application, plans, a staff report and evidence,
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City of Newport Beach
City Council Resolution No.
Page Z_&7
7
both written and oral, was presented to and considered by the City Council at this
meeting; and
WHEREAS, the property is designated Single -Unit Residential Detached by the
General Plan Land Use Element and Local Coastal Program Land Use Plan and zoned R-
1-B (Single - Family Residential). The existing residential structure is consistent with these
designations. The existing hedges, portion of entry gate, pilaster, existing and proposed
sculptures, and existing vehicle gate are accessory to the primary use; and
WHEREAS, since the date of the Planning Commission hearing, staff has
considered issues related to the approval of the sculptures and has determined that the
City Council can take action only on the existing 10 -foot -high sculpture (Sculpture 1), but
not the proposed 11- foot -high sculpture (Sculpture 2). Since the existing sculpture is in
place, a condition of approval can be imposed limiting the approval to the specific
sculpture that exists today; if any changes, replacement, or relocation of the sculpture
takes place in the future, the approval of that sculpture to encroach into the front yard
setback shall become null and void. Given that the proposed sculpture is a unique work
of art and is not yet in place, it would be inappropriate to approve the applicant's
request, which may prove difficult to regulate in the future. Therefore, the modification
for Sculpture 2 will not be considered at this time; and
WHEREAS, Section 20.93.030 (Modification Permits) of the Newport Beach
Municipal Code requires findings and facts in support of such findings for approval of a
modification permit for the retention of the existing hedges, entry gate, pilaster, and
sculpture located within the 86 -foot front yard setback and retention of the existing 9.5-
foot -high driveway gate located within the 6 -foot side yard setback. Such findings and
facts to support such findings are as follows:
1. Finding: The granting of the application is necessary due to practical difficulties
associated with the property and that the strict application of the Zoning Code
results in physical hardships that are inconsistent with the purpose and intent of
the Zoning Code.
Facts in Support of Finding:
a. The property is significantly impacted by an 86 -foot front yard setback
requirement, which is disproportionately larger than any other front yard
setback in the community and equates to approximately 46 percent of the total
lot area. Front yard setbacks within the project's community (Harbor View Hills
Community Association) range from 6 feet to 86 feet, with no apparent
consistency in their application with respect to lot size or lot orientation. The
application of an 86 -foot front yard setback on this property disproportionately
impacts this property, not only by limiting the percentage of the lot area that can
be built on, but also resulting in a front yard area significantly greater than that of
other properties.
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City of Newport Beach
City Council Resolution No. _
Paae 3 of 7
b. Given the subject property's large front yard setback and the 3 -foot height
limitation for fences, walls and hedges within this setback, the property is
significantly limited to the types of improvements that can be constructed,
including a protective wall, fence or screen hedge. As a result, the property is
afforded less privacy and subject to increased noise and headlight impacts from
vehicles then the other properties similarly situated adjacent to Crown Drive or
similar roadways. This is inconsistent with the purpose and intent of the Zoning
Code.
c. The applicant added a 10- foot -high sculpture (Sculpture 1) for the stated
purpose of enhancing the visual appearance of the large front yard area. The
setback creates a physical hardship in locating these structures within the front
yard due to the height limitation of 3 feet. This sculpture cannot be located
behind the front yard setback since the house is located at the setback line due
to the limited buildable area of the lot. This encroachment is minor in nature and
similar to other accessory outdoor garden improvements, such as a patio
umbrella, heater, or fountain.
d. Given the location of the property in relationship to the intersection of Crown
Drive and Crown Drive North, and in order to provide increased protection from
vehicular impacts, the applicant contends that a larger driveway gate is required
to increase visibility of the gate and alert on- coming vehicles to the turning
roadway, and to help shield the property from vehicular headlights. The new
9.5- foot -high gate was constructed of reflective stainless steel and increased
height to make the gate more visible to drivers at night.
2. Finding: The requested modification will be compatible with the existing
development in the neighborhood.
Facts in Support of Finding:
a. Harbor View Hills Community Association reviews proposed developments
within the community to ensure compatibility with the character of the
neighborhood, and have submitted a letter stating they have no objection to the
hedges so long as they do not impede Association views or traffic safety.
b. The existing entry gate and pilaster have been in place for several years and
maintain a 40 -foot setback to the front property line, more than what a majority
of the other properties in the neighborhood are required to provide, and can be
found compatible with the existing development.
c. Front yard setbacks in the community range from 6 feet to 86 feet and corner
lots similarly situated along Crown Drive are only required to maintain setbacks
ranging from 13 feet to 20 feet
d. The lots on the west side of Ebbtide Road, across the street from the applicant,
are reversed frontage lots with the front yard setbacks on the view side and the
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City of Newport Beach
City Council Resolution No.
Paae 4 of 7
6 -foot rear yard setbacks fronting Ebbtide Road. This configuration permits
screening of rear yards from the street with 6 -foot walls, fences, and hedges.
e. Allowing Hedge 1 to maintain a height of 6 feet would be consistent with the
development limitations of the other properties in the Harbor View Hills
community with reduced or reversed setbacks.
f. Allowing the Hedge 2 to maintain a maximum height of 8 feet is more in scale
with the existing development in the Harbor View Hills community and still
provides the property adequate privacy and protection from the noise and
headlight impacts from vehicles traveling along Crown Drive.
g. The sculpture is a minor architectural feature that results in negligible visual
impacts, similar to other accessory outdoor improvements, such as patio
umbrellas, heaters, and fountains. This improvement enhances the applicant's
front yard landscaping and will not result in development that is out of character
with the existing neighborhood.
h. The front yard landscaping improvements can be found consistent with General
Plan Land Use Policy LU 5.1.6 (Character and Quality of Residential Properties)
which requires that residential front yard setbacks and other areas visible from
the public street be attractively landscaped.
i. The driveway gate is visually pleasing and provides an aesthetic benefit to the
community. The wrought iron vehicular access gate constructed by the Jasmine
Creek Community Association on the property immediately east of the subject
lot is 7.5 feet high. The applicant's as -built driveway gate is an average height of
7.75 feet (9.5 feet max) and can be found consistent character with the adjacent
gate.
3. Finding: The granting of such an application will not adversely affect the health or
safety of persons residing or working in the neighborhood of the property and will
not be detrimental to the general welfare or injurious to property or improvements
in the neighborhood.
Facts in Support of Finding:
a. The encroachment of the hedges, entry gate, pilaster, and sculpture into the
front yard setback and the encroachment of the 9.5- foot -high driveway gate
into the side yard setback will not be detrimental to the general welfare or
injurious to property or improvements in the neighborhood.
b. The entry gate and pilaster have existed in that location since 1980 without
proving to be detrimental.
c. The sculpture is a minor architectural feature that does not impact views and
should not negatively impact person's residing in the neighborhood.
15
City of Newport Beach
City Council Resolution No. _
Page 5 of 7
d. The driveway gate provides the applicant increased protection from vehicular
impacts at the intersection and increases visibility and safety for on- coming
vehicular traffic approaching the intersection.
e. The hedges are several years old and have not proven detrimental to most
surrounding property owners or contributed to vehicle site distance problems.
f. The reduced hedge heights will not negatively impact private or public views.
WHEREAS, the proposed project qualifies for a Categorical Exemption pursuant
to Section 15301 (Existing Facilities) of the Implementing Guidelines of the California
Environmental Quality Act (CEQA). The exemption includes the addition of accessory
structures to an existing structure; and
NOW, THEREFORE, BE IT RESOLVED:
Section 1. The City Council of the City of Newport Beach hereby approves
Modification Permit No. 2007 -050 as modified, subject to the Conditions set forth in
Exhibit "A."
Section 2. The City Council of the City of Newport Beach hereby denies, without
prejudice, the requested encroachment of the proposed.1 1 -foot-high sculpture.
Section 3. This action shall become final and effective fourteen days after the
adoption of this Resolution unless within such time an appeal is filed with the City Clerk
in accordance with the provisions of Title 20 Planning and Zoning, of the Newport
Beach Municipal Code.
PASSED, APPROVED AND ADOPTED THIS 11th DAY OF DECEMBER 2007.
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
N
City of Newport Beach
City Council Resolution No. _
Page 6 of 7
EXHIBIT "A"
CONDITIONS OF APPROVAL
MODIFICATION PERMIT NO. 2007-050
1. The development shall be in substantial conformance with the approved plot
plan, floor plans and elevations, dated December 7, 2007, except as noted in the
following conditions.
2. Anything not specifically approved by this Modification Permit is prohibited and
must be addressed in a separate and subsequent Modification Permit review.
3. The existing 6- foot -high pilaster and 6- foot -9- inch -high entry gate encroaching 46
feet into the 86 -foot front yard setback may be retained or replaced, but shall not
exceed their present height.
4. The existing hedge (Hedge 1) encroaching approximately 74 feet into the
required 86 -foot front yard setback shall be trimmed within 30 days from the
effective date of this action and regularly maintained to a maximum height of 6
feet, as measured from the immediately adjacent grade elevation of the interior
front yard.
5. The placement of new trees (in accordance with the definition of the Municipal
Code) located within the 86 -foot front yard setback shall be prohibited, with the
exception of the two new trees identified in Condition No. 6, or unless reviewed
and approved by the Planning Department prior to installation to ensure the trees
would not impose on the view from the 2739 Windover Drive residence.
6. The existing bottlebrush tree located at the corner of the property adjacent to the
intersection of Ebbtide Road and Crown Drive, within the front yard setback, may
be removed and replaced with two new trees as illustrated on the approved
plans.
7. The existing driveway access gate (approximately 9.5 feet in height measured
from the adjacent sidewalk) may be retained in its present configuration and shall
not exceed present height. Application and plans for building permit for the as-
built installation shall be submitted within 30 days of the effective date of this
approval and the applicant shall diligently pursue issuance of the building permit.
8. In order to provide adequate sight distance at the intersection of Ebbtide Road
and Crown Drive, the height of existing plantings shall be reduced to 24 inches
maximum within the sight distance triangle, per City Standard 110 -L, unless
otherwise approved by the Public Works Department. This reduction in height of
plantings within the sight distance triangle shall be subject to review and approval
prior to issuance of building permits, unless otherwise approved by the Public
Works Department.
11
City of Newport Beach
City Council Resolution No. _
Page 7 of 7
9. The existing hedge (Hedge 2) along the northeasterly property line shall be
trimmed within 30 days from the effective date of this action and regularly
maintained to a maximum height of 8 feet, as measured from the immediately
adjacent grade elevation of the interior front yard.
10. The approval of the existing 10- foot -high sculpture (Sculpture 1) shall be limited
to the specific sculpture that currently exists; if any changes, replacement, or
relocation of the sculpture takes place in the future, the approval of that sculpture to
encroach into the front yard setback shall become null and void.
11. If any of the existing public improvements surrounding the site are damaged by
private work, new concrete sidewalk, curb and gutter, street pavement, and other
public improvements will be required by the City at the time of completion of
private construction. Said determination and the extent of the repair work shall be
made at the discretion of the Public Works inspector.
12. This approval was based on the particulars of the individual case and does not,
in and of itself or in combination with other approvals in the vicinity or Citywide,
constitute a precedent for future approvals or decisions.
13. Prior to issuance of building permits, the applicant shall submit to the Planning
Department an additional copy of the approved architectural plans for inclusion in
the Modification Permit file. The plans shall be identical to those approved by all
City departments for building permit issuance. The approved copy shall include
architectural sheets only and shall be reduced in size to 11- inches by 17- inches.
The plans shall accurately depict the elements approved by this Modification
Permit and shall highlight the approved elements such that they are readily
discernible from other elements of the plans.
14. All work performed within the public right -of -way shall be reviewed and approved
by the Public Works Department under an encroachment permit/agreement, if
required.
15. This approval shall expire if the required actions described in Condition Nos. 4, 7,
and 9 are not completed by the respective deadlines. Prior to the expiration date of
this approval, an extension may be approved in accordance with Section 20.93.055
(B) of the Newport Beach Municipal Code. Requests for an extension must be in
writing.
iS
ATTACHMENT 2
Project Plans
11
C�
•
_
PROJECT DESCRIPTION
SCULPTURE NOTES
LEGAL DESCRIPTION
EXISTING SCULPTURE IS APPROXIMATELY 10 -0' HIGH BUT VERY NARROW
IN THE TOP HALF THAT IS A SPIRE ABOVE 3 -0' AND LESS THAN 12' WIDE FROM THE V -0' LEVEL
PARCEL NO.: 458 - 681 -0+
THIS SCULPTURE IS MOVEABLE BUT CURRENTLY WELDED TO A 31' X 28' BASE SUNK INTO THE GROUND
LEGAL DESCRIPnON: N TR 2202 BLR LOT 77 UN
PROPOSED SCULPTURE IS APPROXIMATELY 11'-0' HIGH AND THE WIDTH AT THE WIDEST POINT
OWNER
IS 80' ALTHOUGH MOST OF IT IS CONSIDERABLY NARROWER. THIS IS A FREESTANDING
SCULPTURE THAT JUST SITS ON ITS BASE SO IT CAN BE MOVE ANY TIME WITH A CRANE AS IT IS
PAUL AND NORMA FRU WM
APPROXIMATELY 2000 LBS. THE BASE IS 43'X41'
PROPERTY MAILING ADDRESS
1132 EBBTIDE ROAD
q Ey
CORONA DEL MAR, CA 82825
ZONING
CROWN ROAD
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PROJECT NOTES
DATE
1132 ROAD
SITE PLAN AND
12.07.07
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ATTACHMENT 3
Site Photographs
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Sculpture 1
Hedge 1 (Existing)
5v
ATTACHMENT 4
Modification Permit No. 2509
w
FI CATION APPLICATION.
unity Development Department
'of Newport Beach 540 -2138
Application ec y
PLEASE PRINT OROR T Y PE
Fee: $ 110.00
icant WVj1,:0,41 S5 T? z
Phone 6- 129-Za�f/�
ass of Property Involved//?.? .a✓.T"n -✓
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ting nonconformi ties
t"mT"
'posed nonconformities �iI/G�✓'. %y�ACGS, Tr9 - ✓ /i.�;_��
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kyioos.iMoidiifications, Use Permits, Variances, etc: -G
gal Description. of Property Involved (if too long,. tach separate sheet)
s — L.> a _
OWNER'S AFFIDAVIT
.i1ib) �{we) depose
ae}a say that I am we are the owners of the, prope.rty. ies involved in
Yhds a;ppii
cation. (I) (we) further certify, .under penalty of `perjury, ha
-
statements t
the fdregoing statements and answers herein contained and; the - information
e'rewith submitted are in all respects true and correct, to the best of (.my)
nowledge..and belief.
Signature(s)
NfSTE >An agent may sign for the owner if.written aut ori.zat on. rom tn e
'record owner is filed with :the application
DO NOT COMPLETE APPLICATION BELOW THIS LINE
Re Filed �2 S' Fee Pd. / /O. OU';+ '`Receip't No.
wring Date Posting Date G Mail Data
M6diFication Committee Action__
/f
uate �7I9 8D Appeal
e
Nea ri ng P. C Action
is Appeal
C. 'C. Action a
CA .1 FORN L-I
(AYTIA1
54o• 38
lee I i I'll i ji and A I i (i
AvplicAfw', Plaxson B. Smith
Aulc;rr,s!. of pr,oi:,,Ly 111volve(I 1132 Ebbtiue Road. Corona del Mar
'$:Lc.qal De;cript - Lot 77, Tract No. 2202
---------
*4 di�igp
�i?n IRccW%tfd to permit: 1.) Construction and replacement of an existing 61
a dr
—and 2. a new 8 6" hi entry and -P — to
a Co hi h fence
and set ac area where too ae permits a
,encroechwfff e Permits a
qfFfen-ce---There is existing Pool uipmwt within t required 5- northeasterly
1� -aria —
se
Modifications Committee on February 19, 1980 approved the application
bject to the following conditions:
'That development shall be in substantial conformance with the approved
plot lan and
evil a it: ons.
t:
-I'-,Th'e Hodifications Committee determined in this case that the proposal would
-e'a't =be detrimental to persons. p:•operty or improvements in the neighborhood
"and that the modification as approved would be consistent with the legislative
Anient of Title 20 of the Newport Beach Municipal Code, and made the following
d' 1. That the proposed fence and entry development in the 86' front: Yard will not
cibstrucl V, ro, a Oinf, res dential property and will not be detrimental to the
-tm-
qh
q
qh i1ronr encroachments at
- - - Urlve
-reffa-M-MmOnS CaUSed F)y-Yke-fe-rr-a-in--oT-tYe-s�lf6e. c 6- ' A --'row" occur ong 3. Mt 15e aT-ur-ar-g`r-aje-o-f-TFW--
s 0 Ban scre heignt and access to 5-e-f�-o-nf-oT-t&--k Dose -r-e-g-UTr-e -ftVi-fi-i-aYi-cTn-f-
rMents. q. Inat the existing pool equip-m-e-nt-i-s-To-c-aT§U--adya-c-e-nt -fa —
rest dential properties.
K;POTE: This approval shall extent: for a period of 18 aoo,hs from the end
of the appe al period, and cannot be extended.
recision of the Committee may be appealed to the Planning Commission
-%HO,jnl< day" or the date of the decision.
Any a!)pcal filed shall be
by a filing fee (it 1100.00. 110 boildiiiD permits may be issood
3.until the appeal period has expired.
SS�y MO .''IVWL
NAIAMW:11
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m
ATTACHMENT 5
Modification Permit No. 2007 -050
Approval Letter
August 20, 2007
PLANNING DEPARTMENT
3300 NEWPORT BOULEVARD
NEWPORT BEACH, CA 92663
(949) 6443200 FAX (949) 644.3229
NOTICE OF ZONING ADMINISTRATOR ACTION
Paul and Norma Fruchbom
1132 Ebbtide.Road
Newport Beach, CA 92660
Approved
Application No.
Site Address
Modification Permit No. MD2007 -050
(PA2007 -111)
1132 Ebbtide Road
On August 20. 2007, the Zoning Administrator approved the above referenced application
based on the findings and conditions in the attached action letter.
By:
Zoning AqKinistratUr Javier S. Garcia, AICP
JSG:ks /rb
cc: APPEAL: The Zoning Administrator's decision may
contact be appealed to the Planning Commission within 14
Michael P. Simondi days of the action date. A $600.00 filing fee shall
4685 Macarthur Court, Suite 450 accompany any appeal filed. No building permits
Newport Beach, CA 92660 may be issued until the appeal period has expired.
3a
Application No.
Applicant
Site Address
Legal Description
MODIFICATION PERMIT NO. MD2007 -050
(PA2007 -111)
PLANNING DEPARTMENT
3300 NEWPORT BOULEVARD
NEWPORT BEACH, CA 92663
(949) 644 -3200 FAX (949) 644 -3229
Modification Permit No. MD2007 -050
(PA2007 -111)
Paul and Norma Fruchbom
1132 Ebbtide Road
Lot 77, Tract 2202
On August 20. 2007, the Zoning Administrator approved the application request to
exceed the 3 foot height limit allowed for fences and screen plantings (hedges) in the
required 86 -foot front yard setback with the retention of the following existing elements:
1.) screen planting /hedge, 2.) an entry gate, 3.) a pilaster, and 4.) sculpture. Also included
is a request to permit the addition of a new 10 -foot tall sculpture and retention of the
existing screen planting (hedge) that encroaches 74 feet into required 86 -foot front yard
setback. The application includes a request to allow the retention of an existing vehicle
access gate located within the 6 -foot side yard setback. The hedge is approximately 18
feet tall and the vehicle access gate is approximately 11 feet tall, measured from the
adjacent sidewalk. The property is located in the R -1 -13 District. The Zoning
Administrator's approval is based on the following findings and subject to the following
conditions.
FINDINGS
1. The Land Use Element of the General Plan and the Local Coastal Program Land
Use Plan designate the site for "Single -Unit Residential Detached" use. The
existing residential structure is consistent with this designation. The existing hedge,
portion of entry gate, pilaster, existing and proposed sculptures, and existing
vehicle access gate are accessory structures to the primary use.
2. This project has been reviewed, and it has been determined that it is
categorically exempt from the requirements of the California Environmental
Quality Act under Class 1 (Existing Facilities),
p
3. The modification to the Zoning Code, as proposed, is consistent with the legislative
intent of Title 20 of the Newport Beach Municipal Code. It is a logical use of the
property that would be precluded by strict application of the zoning requirements
for this District for the following reasons:
• The subject property is a corner lot located at the intersection of Ebbtide
Road and Crown Drive. The building pad is generally level, with a slope
toward Ebbtide Road, and is elevated approximately 8 to 10 feet above
both streets measured at the sidewalk. The properties located across
Crown Drive are higher in elevation and in a direct line of sight to the front of
the residence located on the property. The northerly rear side of the
property is at street level and is located at the corner of Crown Drive North
and Crown Drive. The rear of the residence and pool area are exposed to
traffic noise and loss of privacy due to the close proximity of the intersection
of the two streets.
• The property is subject to a required 86 -foot front yard setback fronting
Ebbtide Road and a required 6 -foot side yard setback adjacent to Crown
Drive. Walls, gates, pilasters, hedges, and similar accessory structures are
allowed in required front yard setbacks to a maximum height of 3 feet and in
required side yard setbacks to a maximum 6 feet.
• A Modification Application (MD2509) was approved February 19, 1980
permitting the construction and replacement of an existing 6 to 7 -foot high
fence and driveway gate along the northeasterly side property line. Also a
new 8 -foot 6 -inch high entry archway (the archway was not constructed but
two 6 -foot tall pilasters were constructed in its place) and a 6 to 7 -foot high
fence encroachment, 38 feet into the required 86 -foot front yard setback
area along Crown Drive, was approved.
4. In accordance with the provisions of Chapter 20.93, the granting of this application
is necessary due to practical difficulties associated with the property. The strict
application of the Zoning Code results in physical hardships that are inconsistent
with the purpose and intent of the Zoning Code for the following reasons:
• The property has a required 86 -foot front yard setback which allows
accessory structures to a maximum height of 3 -feet. This required front yard
area is approximately one -half the length of the lot and is the view -side of
the property. Although the subject property is generally elevated above
street level, it is at the same elevation or lower than properties located
across Crown Drive. Exceeding the height of accessory structures allowed
within the required 6 -foot side yard setback along Crown Drive and within
the required 86 -foot front yard setback adjacent to Ebbtide Road and Crown
Drive is necessary to provide privacy for the existing residence which is in
the direct line of sight of the neighboring properties across Crown Drive.
The strict application of the Zoning Code would significantly impact the
privacy at the view -side area of the property.
August 20, 2007
F1Users\PLNIShared\PA'S\PAs - 20071PA2007- 1111MD2007 -050 appr.doc 3
Page 2
• The retention of the vehicle access gate at the rear of the property is
requested to provide noise mitigation for the residence and pool area from
the street traffic at the intersection of Crown Drive and Crown Drive North.
5. In accordance with the provisions of Chapter 20.93, the requested modification will
be compatible with existing development(s) in the neighborhood for the following
reasons:
• The proposed project will modify the previous action taken by Modification
Application No. 2509, approved February 19, 1980, which permitted a side
yard fence and front entry gate exceeding the 3 -foot height limit to encroach
38 feet within the required front yard setback area and a fence and
driveway gate exceeding the 6 -foot height limit within the required side yard
setback area. The revised request will extend the fence and pilaster
approximately 8 feet into the 86 -foot front yard setback and has been in
place for several years, as evidenced by photographs presented at the
hearing.
• Reducing and limiting the height and granting the request to exceed the
height limit for hedges, walls, gates and other accessory structures within
the required front and side yard setbacks is consistent with conditioned
approvals granted by the Modifications Committee and the Planning
Commission for similar structures in this neighborhood and Citywide. This
will also reduce the existing nonconforming status and bring the height
closer to conformance to the allowances authorized by the Community
Association.
• The encroachment of the hedge (as reduced and limited in height by this
approval), portion of entry gate, pilaster, vehicle access gate and sculptures
within the front and side yards is minor in nature and consistent with the
encroachment of similar structures within the front and side yards of corner
properties within the neighborhood.
• The Harbor View Hills Community Association has no objection to the
existing and proposed hedges, and by extension will have no objection to
the reduced and limited height of the hedge and screen plantings.
6. In accordance with the provisions of Chapter 20.93, the granting of this
Modification Permit will not adversely affect the health or safety of persons residing
or working in the neighborhood of the property and not be detrimental to the
general welfare or injurious to property or improvements in the neighborhood
based on the following:
• The existing hedge extending beyond the originally permitted 38 -foot front
yard encroachment will be lowered to match the height of the hedge
approved by Modification Permit No. 2509. The lowered height of the hedge
will continue to provide privacy for the front and side yards of the existing
residence, and will limit obstruction of views across the property by
neighboring properties.
August 20, 2007 qs
F: \Users \PLN \Shared \PA's \PAs - 2007 \PA2007 - 111 \MD2007 -050 appr.doc JJ
Page 3
• The encroachment of the existing hedge, portion of entry gate, pilaster, and
sculpture, and the proposed sculpture into the required front yard setback is
minor in nature and will limit the obstruction of views from the neighboring
properties.
• The vehicle access gate which exceeds the height allowed by Modification
Permit No. 2509 has not caused any sight distance problem along Crown
Drive and Crown Drive North, and there are no adverse impacts public
views across the property.
CONDITIONS
1. The development shall be in substantial conformance with the approved plot
plan, floor plans and elevations, except as noted in the following conditions.
2. Anything not specifically approved by this Modification Permit is prohibited and
must be addressed in a separate and subsequent Modification Permit review.
3. The existing hedge previously approved by Modification Permit No. 2509
allowing an encroachment into the required 86 -foot front yard setback will be
lowered to between 6 and 7 feet in height to comply with the original conditions
of approval of the Modification Permit.
4. The existing 6 -foot high pilaster, portion of entry gate and approximately 10 -foot
high sculpture encroaching 46 feet into the 86 -foot front yard setback shall be
retained at their present height. The existing hedge encroaching approximately
74 feet into the required 86 -foot front yard setback may be retained and shall be
regularly maintained in height to between 6 and 7 feet to match the hedge
previously approved by Modification Permit No. 2509, and in no case shall it
exceed a maximum height of 7 feet measured from the immediately adjacent
grade elevation of the interior front yard.
5. The placement of new trees (in accordance with the definition of the Municipal
Code) located within the 86 -foot front yard setback, along the northeasterly
property line shall be adequately spaced and shall not create a hedge or screen
planting, and shall receive review and approval by the Planning Department prior
to installation.
6. The proposed sculpture shall be a maximum of 11 feet in height (including its
base), and will be located to the interior side of the existing hedge. The sculpture
shall encroach no more than 65 feet into the required 86 -foot front yard setback,
unless otherwise approved by the Zoning Administrator.
7. The existing driveway access gate (approximately 11 feet in height measured
from the adjacent sidewalk) may be retained in its present configuration and shall
not exceed present height. Application and plans for building permit for the as-
built installation shall be submitted within 30 days of the effective date of this
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approval and a building permit shall be obtained within 60 days of the effective
date of this approval.
8. In order to provide adequate sight distance at the intersection of Ebbtide Road
and Crown Drive, the height of existing plantings shall be reduced to 24 inches
maximum within the sight distance triangle, per City Standard 110 -L, unless
otherwise approved by the Public Works Department. This reduction in height of
plantings within the sight distance triangle shall be subject to review and
approval prior to issuance of building permits, unless otherwise approved by the
Public Works Department.
9. Modification Permit No. 2059 approved a 6 to 7 foot fence along the
northeasterly property line encroaching 38 feet into the 86 foot front setback. The
existing hedge along the property line is limited from 11 to 12 feet in height and
will terminate 38 feet into the required 86 -foot front setback, shall be regularly
maintained in height to between 11 and 12 feet, and in no case shall it exceed a
maximum height of 12 feet measured from the immediately adjacent grade
elevation of the interior front yard.
10. If any of the existing public improvements surrounding the site is damaged by
private work, new concrete sidewalk, curb and gutter, street pavement, and other
public improvements will be required by the City at the time of completion of
private construction. Said determination and the extent of the. repair work shall
be made at the discretion of the Public Works inspector.
11. This approval was based on the particulars of the individual case and does not,
in and of itself or in combination with other approvals in the vicinity or Citywide,
constitute a precedent for future approvals or decisions.
12. Prior to issuance of building permits, the applicant shall submit to the Planning
Department an additional copy of the approved architectural plans for inclusion
in the Modification Permit file. The plans shall be identical to those approved by
all City departments for building permit issuance. The approved copy shall
include architectural sheets only and shall be reduced in size to 11- inches by 17-
inches. The plans shall accurately depict the elements approved by this
Modification Permit and shall highlight the approved elements such that they are
readily discernible from other elements of the plans.
13. A building permit shall be obtained for the as -built sculpture and the vehicle
access gate installation, prior to commencement of construction.
14.. A copy of this approval letter shall be incorporated into the Building Department
and field sets of plans prior to issuance of the building permits,
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15. All work performed within the public right -of -way shall be reviewed and approved
by the Public Works Department under an encroachment permit/agreement, if
required.
16. This approval shall expire unless exercised within 24 months from the approval
date, as specified in Section 20.93.055 of the Newport Beach Municipal Code.
Prior to the expiration date of this approval, an extension may be approved in
accordance with Section 20.93.055 (B) of the Newport Beach Municipal Code.
Requests for an extension must be in writing.
APPEAL PERIOD
The Zoning ,Administrator's decision may be appealed to the Planning Commission within
14 days of the action date. A $600.00 filing fee shall accompany any appeal filed. No
building permits may be issued until the appeal period has expired. A copy of the
approval letter shall be incorporated into the Buildina Department set of plans prior
to issuance of the building permits or issuance of revised plans.
Zoning Aiministrat r Javier S. Garcia, AICP
JSG:ks /rb
Attachments: iii�
' Q— S. Booty and G. Collins, 2739 Windover Drive
' „ ".._. i^ c .a@w "andstrom, Ebbtide Road
Harbor View Hills Community Association
Michael Strong, Windover Drive
Appeared in Opposition: G. Collins, Windover Drive
Appeared in Support: Simondi, MacArthur Court
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ATTACHMENT 6
10/18/07 Planning Commission
Minutes
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Planning Commission Minutes 10/18/2007
Page 1 of 13
HEARING ITEMS
SUBJECT: MINUTES of the regular meeting of October 4, 2007.
ITEM NO. 1
Motion was made by Commissioner Toerge and seconded by Commissioner Cole
Approved
to approve the minutes as corrected.
Ayes:
I Peoter, Cole, Hawkins, McDaniel and Toerge
Noes:
lNone
Abstains:
I Eaton and Hill ren
ITEM NO. 2
SUBJECT: Paul and Norma Fruchbom residence (PA2007 -111)
PA2007 -111
1132 Ebbtide
n appeal of the Zoning Administrator's decision to approve Modification Permit
Approved
No. 2007 -050, which authorized the applicant to exceed the 3 -foot height limit for
fences, hedges, and accessory structures within the required 86 -foot front yard
setback by allowing the retention of the following existing elements: 1) hedges; 2)
portion of an entry gate; 3) a pilaster; and 4) a sculpture. Also permitted was the
addition of. 5) a new 11- foot -high sculpture within the front yard setback; and 6)
retention of the existing 9.5- foot -high driveway gate located within the 6 -foot side
and setback.
Before considering this item, Assistant City Attorney Aaron Harp wanted to
address issues raised by Mr. Frank Battaile, attorney for Mr. Fruchbom, regarding
ue process concerns relating to Commissioner Toerge's participation as a
ecision maker, given he had.filed the appeal and knows Mr. Collins. The appeal
�s in the nature of a call for review, therefore Commissioner Toerge is not barred
rom participating as a decision maker in this proceeding. Commissioner Toerge
has no financial relationship with Mr. Collins so there is no conflict of interest no
as he prejudged this matter and is not biased for or against this project.
ssociate Planner Jaime Murillo gave an overview of the staff report.
Mr. Lepo addressed the issue on the sculptures. After further review, staff finds it
s not advisable to explicitly permit or prohibit the sculptures since they were no
he intended subject of the Zoning Ordinance. Should it become an issue later, we
ill deal with Code Enforcement.
hairman Hawkins asked Mr. Harp's opinion. Mr. Harp said from a policy
tandpoint, sculptures and artwork should not be approved as part of this process.
hairman Hawkins than asked if this would be an attempt to regulate sculpture
y excluding them.
Mr. Harp answered yes.
ommissioner Toerge asked if it was the staffs recommendation to be silent on
he existing sculpture and the proposed sculpture.
Mr. Harp answered that they are recommending that the existing or new sculpture
of be approved; they would then be in violation of the Municipal Code which
ould then be a Code Enforcement issue.
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irman Hawkins asked the appellant, Commissioner Toerge, for his statements.
imissioner Toerge noted the following for the basis of this appeal:, one of the
)onsibilities of a Planning Commissioner is to review all the modification
rovals that are generated in the City; to insure they are consistent with their
,pretation of the codes; it would have been irresponsible of him or any Planning
imissioner or City Council member not to call for review or appeal of any
lification they feel does not meet code.
imissioner Eaton asked staff about the deletion of Condition #6
Murillo answered as follows:
. Condition #6 was a carryover from the original modification approval by th
Zoning Administrator;
. To insure any trees planted behind the 6 to 7 foot hedge would not create
additional screen effect;
Staff is now recommending the hedge be reduced to a height of 3 feet
believe this condition is no longer necessary.
Dr Eaton asked what the height limit for this hedge was in the
approval and the prior Modification Permit in 1980.
Murillo explained in the subject Modification approval the hedge was apprc
6 feet, but to allow for growth, it was given a maximum height of 7 feet. In
it Modification Permit the hedge was not addressed.
Eaton asked if the Planning Commission upheld the Zo
decision on Hedge #1, how would staff deal with Condition #6?
Lepo answered that we have provisions in the codes of what constitutes
e versus a tree or a hedge. He suggested taking out Condition #6 instead
airing a special restriction; allow the standard municipal code provisions and,
:ssary, let Code Enforcement deal with the trees if they become a problem.
missioner Cole asked what was the intent of the 86 -foot setback and if
any evidence that the potential view impact of one association over ar
considered.
Murillo explained typical front -yard setbacks are imposed to create visual op(
t yards, maintain light, air, and open space. After some research the followh
found: these setbacks were part of the original 1960 approval of tl
iivision for this community; there is no reference to why the 86 -foot setba
chosen. Mr. Murillo pointed out that Harbor View Hills subdivision w;
roved prior to the Broadmoor Hills Community Association, had differe
Blopers and is unsure if any potential view impact was considered.
mmissioner Hillgren wasn't familiar with the tract names and wanted cla
if the subject site or the one across the street was approved first.
Murillo answered the subject site was approved first.
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sioner Toerge stated he would have questions on Condition #13 after
of the hearing.
Hawkins asked the applicant, Mr. Fruchbom, for his comments.
r. Fruchbom said he had no comments at this time on these last minute char
hich were a surprise, but would like a firm ruling on his proposed sculpture
cisting sculpture. Mr. Fruchbom proceeded with a presentation noting
. There has only been one complaint ever and that is on the hedge
#1) between the entry gate and Ebbtide;
. The hedges have always been 10 feet or higher;
. Mr. Fruchbom had agreed to cut the hedge to 6 feet prior to the Z
Administrator's hearing, which the complainant and staff agreed was
from the view standpoint;
. Staff has said the 86 -foot setback is a detriment to the property, res
privacy, increases noise and headlights impacts, and is inconsistent
the purpose and intent of the Code;
. Zoning Administrator had approved reducing Hedge #1 from 10 feet to 6
feet, reducing Hedge #2 to 11 feet, allowing the entry and driveway ge
and the sculptures;
. The height and construction of the driveway gate is for safety and noise;
. The main reason for the hedges is for privacy.
Fruchbom showed various pictures of his hedges and other properties in t
munity with similar height hedges. Mr. Fruchbom then submitted a petition
)Id the original decision that was signed by 51 of his surrounding neighbc
a with the President of the Broadmoor association next door.
following gave various statements in favor of Mr. Fruchbom and upholding
original decision: Mr. Harrison, an architect, and Mr. Simondi, attorney for Mr.
Frank Battaile, attorney for Mr. Fruchbom, wanted to restate his objecti
nitted in a letter to the Planning Commission, regarding the due process is
ving Commissioner Toerge to participate in the decision of this appeal.
had concerns on the following:
. Notice requirements in due process;
. The notice of appeal was nonspecific, addressed everything;
. Municipal Code states notice of appeal should be specific;
. Notice problem with new provision about the sculpture.
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Battaile stated Mr. Fruchbom requests expressed permission to keep the b
tioned sculptures or at least a clear indication on what is permitted or r
nitted regarding the sculptures. It has been sufficiently pointed out how tl
ierty is physically different from others in the community; many properties
community have street frontage not subject to front yard setbacks, but th
c yards are up against the street frontage allowing them 6- foot -tall hedg
ig them protection from street noise and general street environment. t
ftom is entitled to this same protection.
an Hawkins asked to hold the public comments in order for Cor
to address his comments and then will reopen public comments.
nmissioner Toerge deferred to hear all public comments before making hh
iments. He did state that this hearing wasn't to eliminate this Modification, bu
address the specific conditions of the Modification. Would also like Mr
chbom to describe how a 9 -foot gate provides more safety than a thicker 7 -foo
dic comment was opened
Greg Collins, resident at 2739 Windover Drive whose view is impacted, 1
following:
• Had Mr. Fruchbom cut Hedge #1 to 6 feet this hearing would not be t
place;
• Pictures of how his view is impacted were shown; had concerns if trees
planted along with a 6 -foot hedge view would still be impacted;
.
Supported the findings of the staff report; and doesn't feel there is
justification for the Modification in respect to Hedge #1 or Hedge #2.
Cole asked Mr. Collins the following:
. If his concems were with Hedge #1;
. That at one time he was comfortable he would have a view if the
were 6 feet in height;
. If the driveway gate was a concern;
. If he had any comments on the sculptures.
Collins answered yes in regards to the hedge provided that trees were
ted, as code allows, which would basically create the same impact as the t
3e. The gate and sculptures were not a concem.
following residents gave various statements in favor of Mr. Fruchbom
Iding the original decision: Dan Trevino, John Banker, Jan Landstrom,
her, Rod McDonald, and Leo Fracalosy.
Booty, resident at 2739 Windover Drive whose view is impacted, stated
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Ages have been lower in height in the past. Also she doesn't believe that Mr
ick Hunter, the President of her community association, signed the petition tha
r. Fruchbom presented.
,nmissioner McDaniel asked Ms. Booty if the hedge was cut to 6 feet would
satisfied and that the other issues were not a concern.
Booty answered yes in regards to the hedge, and no problems with the
blic comment was closed.
Toerge noted the following:
. Readdressed that the hearing is not to eliminate the Modification but
consider the conditions;
. The prior Modification granted in the 1980 addressed the difficulty of an
foot front yard setback by allowing a 6 to 7 -foot high hedge, where the C
only allows a 3- foot -high hedge;
. The 3 -foot height limitation should be applied to Hedge #1 and the
covered fence along the front yard; supports City Attorn
recommendation not to approve the sculptures;
. Driveway gate should have reflectors for safety purposes; 9.5- foot -high g,,
is out of code; code limits maximum height to 6 feet, prior Modificati
allowed 7 feet; approving any illegal construction, performed without
permit and designed inconsistent with City codes is not a message to
sent out to the community for future property development;
. City Council recently modified Council Policy K9, which now encou
Code Enforcement officers to aggressively pursue Building Code viol
like illegal construction;
. Condition #1 needs to reference the date of the plans being reviewed;
. Condition #5 needs to read as follows: The existing 10 -foot high had
located west of the entry gate and the ivy covered fence located parallel
Ebbtide and 12 feet from the property line shall be trimmed to a maxims
height of 3 feet measured from the immediately adjacent grade elevation
the interior front yard within 30 days from the date of this action;
. Condition #7 should be deleted;
. Condition #13 needs to be reworded to accomplish the intended goals
the Planning Commission will work with the City Attorney to address this.
irman Hawkins asked if Mr. Fruchbom would like to make any add
ments.
r. Fruchbom responded as follows:
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. The driveway gate could have been built stronger, but then could be
in a car impact;
. The height and reflective blue background makes it safer because it is
visible;
. Prior to this hearing he wasn't aware his front fence was an issue;
. Doesn't feel K9 is applicable to his issues;
. The picture of his neighbor's view didn't clearly show Catalina.
ssioner McDaniel posed the following question to Mr. Fruchbom: if
is cut to 6 feet and he plants trees, how is that helping to preserve
x's view?
r. Fruchbom responded that he and the City have always had trees there.
dy wants to plant 1 or 2 trees and his goal is not to block any view.
Eaton asked Mr. Harp the following:
. If the original Modification granted in 1980 and the most recent
both permitted Hedge #1 to be 6 to 7 feet in height?
. Does the applicant have any vested right in the original Modification
utilized it all this time?
Or. Harp answered if the existing Modification is denied the applicant has the ric
o maintain the property in conformance with the original approved Modification
1980.
Murillo clarified that the original Modification permit in 1980 primarily dealt
Ige #2 and the entry gate and not Hedge #1.
McDaniel noted the following:
. He has no objections to the driveway gate or the entry gate;
. The hedge at a 6 -foot height is agreeable.
then directed his comments to Mr. Harp regarding the sculpture in the f
J and that the Commission be able to vote to affirm the applicant can keep
Ipture.
Harp responded this matter can be decided on this evening.
irman Hawkins thought it was Mr. Harp's recommendation to defer on
I. Harp said it was his recommendation not to permit the sculpture in the
rd setback; art is a very subjective item; if a sculpture is approved it runs
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land, therefore any future owner could put whatever type of sculpture
Cole asked staff:
. If trees were planted along the hedge area, can the height be restricted?
. If we allow the gate to remain, can we request a condition that any
replacement will require a building permit?
Harp stated the law is drafted to prohibit vegetation to create fences
les; will look into height limit on trees.
responded to the gate issue and was reluctant to recommend this to
on; no assurance it will be enforced.
Harp agreed with Mr. Lepo that would not be an appropriate condition.
ssioner Peotter asked if appeal was denied, the original conditions of
Administrator would prevail?
Murillo answered that was correct.
Eaton noted:
. He thinks the existing Modification is correct in terms of addressing
original complaints;
. The driveway gate is aesthetically pleasing and has a safety function;
. Applicant should have gotten permits for the gate and Hedge #1;
appropriate to build first, get permitted later;
. Is leaning towards denying the appeal and affirm the Zoning
decision.
i was made by Commissioner Peotter and seconded by Coi
to deny the appeal and affirm the Zoning Administrators decision.
issioner Hillgren noted:
. The 86 -foot front yard setback doesn't seem to be a hardship;
. The height of hedges are not a real noise deterrent, but relates more
protection from headlights;
. Has no problem with the driveway gate, but has concerns with
made related to liability issues;
. If the appeal is approved, recommends applicantlowner accepts liability
having the this driveway gate;
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. No problems with entry gate;
. Suggests height of Hedge #1 be kept at 3 feet and Hedge #2 be kept at
feet.
nan Hawkins asked Mr. Harp about the potential liability comments and
a way to put in a condition that would protect the City.
r. Harp wanted to clarify the question if the gate was allowed to remain, appl
ould indemnify and defend the City if anyone was hurt in relation to the gate;
ould be an appropriate condition.
ubstitute Motion was made by Commissioner Toerge to uphold the appeal
ie following conditions:
. Hedge #2 be as per staff recommendation of 6 feet in height.
. Entry gate is acceptable as installed and designed.
. Hedge #1 be as per staff recommendation of 3 feet in height
with the addition of the ivy covered fence being limited to 3 feet
in height.
. Eliminate any reference to the sculptures as being approved by
the Planning Commission.
. Permitting the driveway gate as it currently exists with the
condition the applicant will submit plans and satisfy the Building
Department's conditions for a building permit.
rman Hawkins asked for a second to the motion.
,,ion continued pointing out the differences between this motion and the
Administrator decision.
McDaniel was in support of the original motion.
Motion failed due to lack of a second.
;ommissioner Hillgren noted the 1980 Modification was explicit there be
mpacts to views. Was comfortable with the 6 -foot high hedge as long as 0
vere no future plantings to impact the view.
an Hawkins pointed out Condition #5 in the existing Modification
,loner Cole was in support of a consistent 6- foot -high hedge around
and keeping the original Condition #5.
iairman Hawkins noted that Commissioner Toerge had suggested the change
front fence height and the Zoning Administrator had not addressed that porti
the fence; therefore, if we deny the appeal and affirm the Zoning Administratc
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, this is a moot point.
Murillo confirmed.
nan Hawkins asked for a vote on the original motion to deny the appeal
the Zoning Administrator's decision.
�cond substitute Motion was made by Commissioner Cole and seconded
immissioner Hillgren to sustain the appeal, affirm in part the Zor
Iministretor's decision by amending Condition #3 to continue to allow the hei
the ivy covered fence to 6 feet and deleted any reference to the artwork.
discussion continued.
ssioner Toerge is opposed to allowing the ivy covered fence to be 6 feet
it was never an issue in the Zoning Administrator's decision.
r. Fruchbom was agreeable to the ivy covered fence to be limited to 5 feet
issioner Eaton questioned does the noticing of this hearing allow
ng Commission to go beyond the subject of the staff report to include the
�d fence.
Lepo responded that under "de novo" any issue could be raised whether
in the previous modification hearing or not.
Murillo pointed out the noticing refers to the retention of an over - height
in the front yard setback; not detailed to enough to describe where it
:inue around the front.
Harp said that there was no limitation because the notice was broad enough.
Lepo asked if the indemnification was to be added.
Hawkins answered no.
ommissioner Peotter noted that if the fence remained at 6 feet in height, the c
fference between the substitute motion and a denial of the appeal would
imination of allowing the artwork.
sioner Toerge stated that wasn't the case; the Zoning Administrat
was silent on the ivy covered fence and therefore it is limited to 3 feet.
nmissioner Cole said he agreed with Commissioner Toerge and would cha
substitute motion to eliminate the 6- foot -high hedge along Ebbtide.
discussion noted the following:
. Condition #9 relates to Hedge #2 being a maximum of 12 feet.
. Condition #3 contradicts Condition #9 and should be eliminated.
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. Condition #4 relates to Hedge #1 to be restricted to 6 -7 feet.
Cole agreed to Condition #9 remaining and delete Condition #3.
Hillgren agreed to deleting Condition #3.
mmissioner Cole changed his second substitute Motion to affirm the s
rm the Zoning Administrator's decision with the following modifications to
ndition #3 and delete any reference to the sculptures.
missioner Hillgren seconded the Motion. Chairman Hawkins asked if Mr
ibom accepted the proposed conditions.
Fruchbom stated he was still unclear on what could or couldn't be done
sculptures.
irman Hawkins explained that any reference to the sculptures was to
oted from the proposed conditions and Mr. Fruchbom would need to adds
issue on the sculptures with Code Enforcement.
Battaile, attorney for Mr. Fruchbom, said that Mr. Fruchbom would
sable to specify that the current and new piece of sculpture are the
-s being approved.
Cole said this did not change his substitute Motion.
Harp clarified further that the current sculpture is illegal and needs to
wed from the front yard setback. The new sculpture is okay, but cannot
ad in the front yard.
i Hawkins noted the determination is not to approve or prohibit
The current motion is, the approval and conditions are silent on
of the artwork.
Lepo noted the ivy covered fence is not legal with proposed motion and if
Js to be allowed in the current conditions.
Cole said no.
on second substitute Motion:
uoie, nawKms, mcuamei a
Eaton, Peotter and Toerge
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ATTACHMENT 7
10/18/07 Planning Commission
Staff Report
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CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
October 18, 2007
Agenda Item 2
SUBJECT: Appeal of Modification Permit No. 2007 -050 (PA 2007 -111)
1132 Ebbtide Road
APPLICANT: Paul and Norma Fruchbom
APPELLANT: Planning Commissioner Michael Toerge
PLANNER: Jaime Murillo, Associate Planner
(949) 644 -3209, imurilloCcDcity.newport- beach.ca.us
PROJECT SUMMARY
Appeal of the Zoning Administrator's decision to approve Modification Permit No. 2007-
050, which authorized the applicant to exceed the 3 -foot height limit for fences, hedges,
and accessory structures within the required 86 -foot front yard setback by allowing the
retention of the following existing elements: 1) hedges; 2) a portion of an entry gate; 3) a
pilaster; and 4) a sculpture. Also permitted was the addition of: 5) a new 11 -foot -high
sculpture within the front yard setback; and 6) retention of the existing 9.5- foot -high
driveway gate located within the 6 -foot side yard setback.
The Planning Commission must, after considering all of the evidence presented, either,
approve, modify, or disapprove, in whole or in part, Modification Permit No. 2007 -050.
Staff recommends that the Planning Commission modify the approval of Modification
Permit No. 2007 -050 as follows: 1) authorize the retention of the existing entry gate and
pilaster encroachment; 2) authorize the retention of the existing sculpture; 3) approve
the proposed sculpture encroachment; 4) deny the applicant's request to retain Hedge 1
at any height above 3 feet; 5) modify the encroachment of Hedge 2 to maintain a
maximum height of 7 feet; and 6) deny the applicant's request to retain the existing 9.5-
foot high driveway gate.
53
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 2
LOCATION
GENERAL PLAN _
ZONING
CURRENT USE
ON -SITE
Single -Unit Residential
Single - Family
Single- Family Dwelling
Detached
Residential /B Overlay
NORTH
Single -Unit Residential
Single - Family
Single - Family Dwelling
Detached
Residential /B Overlay
SOUTH
Single -Unit Residential
Single - Family
Single - Family Dwelling
Detached
Residential /B Overlay
EAST
Open Space
Jasmine Creek Planned
Jasmine Creek Open Space
Community
WEST
Single -Unit Residential
Single - Family
Single - Family Dwelling
Detached
Residential /B Overlay
5q
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 3
Project Setting
The subject property is a 17,165 square -foot lot that is developed with a single - family,
detached dwelling unit. It is located at the southeast intersection of Crown Drive and
Ebbtide Road in the Harbor View Hills Community Association. The community consists
of a terraced subdivision, with the subject property located on the highest pad elevation
at the northeasterly boundary of the subdivision. North of the subject property, across
Crown Drive, is the Harbor View Broadmoor Community Association, a similar single -
family detached subdivision. East of the subject property is the Jasmine Creek
Community Association, a single - family attached subdivision.
Protect Description
The applicant requested a modification permit to exceed the 3 -foot height limitation for
fences, hedges, and accessory structures within the required 86 -foot front yard setback
to allow the retention of the following existing elements:
1) Hedge 1- An existing 10- foot -high hedge (as measured from interior grade),
which the applicant proposes to trim down to a maximum height of 7 feet. The
hedge encroaches 74 feet into the required 86 -foot front yard setback area as a
continuation of the fence approved by Modification Permit No. 2509 in 1980 (see
Background discussion below).
2) Hedge 2- An existing 12- foot -high hedge (14.5 feet measured from sidewalk
grade) located between the front of the house and the entry gate element, which
is a height of 5 feet above the 7 -foot fence /hedge height (as measured from
interior grade) permitted by Modification Permit No. 2509.
3) Entry Gate- A 6- foot -high entry gate and pilaster that encroaches 8 feet beyond
the 38 -foot encroachment authorized by Modification Permit No. 2509, for a total
encroachment of 46 feet into the required 86 -foot front yard setback. A 1980
building permit is on file for the construction of a fence that references
Modification Permit No. 2509; however, plans were not archived and staff is
unable to verify whether the improvements were incorrectly constructed in the
field. The original wrought iron entry gate was replaced by the current property
owner with the gate that exists today.
4) Sculpture 1- An existing 10- foot -high sculpture that encroaches 46 feet into the
front yard setback.
5�)
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 4
The applicant is also requesting the approval of:
5) Sculpture 2- A new 11- foot -high sculpture, which is proposed to encroach 65 feet
into the front yard setback area; and
6) Driveway Gate- The retention of an existing 9.5- foot -high driveway gate
(Modification Permit No. 2007 -050 approval letter states 11 feet) located within
the 6 -foot side yard setback. The gate was replaced 3 years ago by the owner
after a vehicle crashed through the previous existing gate.
Exhibit 2 (Project Plans) and Exhibit 3 (Site Photographs) illustrates each of the
requested elements.
Back., rq ound
The subject dwelling was originally constructed in 1960. In 1980, Modification Permit
No. 2509 was approved allowing: 1) the construction and replacement of an existing 6-
to 7- foot -high fence and driveway gate (variable height to account for terraced grade)
along the northeasterly side property line; and 2) a new 8.5- foot -high entry gate and a 6
to 7- foot -high fence that encroaches 38 feet into the required 86 -foot front yard setback
area. Facts used to support the findings were:
1) That the proposed fence and entry development in the front 86 -foot front yard
setback will not obstruct views from adjoining residential property and will not be
detrimental to the neighborhood,
2) That the minor encroachments of the fence height along Crown Drive occur at
terraced locations caused by the terrain of the site, and
3) That the natural grade of the site is approximately 8 feet above street height and
access to the front of the house requires modifications to fence height
requirements (Exhibit 4; Modification Permit No. 2509).
It should be noted that the only finding required to be made to support a modification
request in 1980 was that the request would not be detrimental to the health, safety,
peace, comfort and general welfare of persons residing or working in the neighborhood.
The current property owner and applicant purchased the home in 1984. According to
the applicant, the current walls, hedges, pilasters and gates have remained unchanged
since he purchased the home, with the exception of the entry gate and the driveway
gate. According to a neighboring property owner (2739 Windover Drive), the hedges
historically measured approximately 6 feet in height, but have grown to a height greater
than 6 feet within the last 4 years prompting a complaint to the City.
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Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 5
On March 14, 2007, the Code & Water Quality Enforcement Division issued a notice of
the violation to the applicant related to the height of the hedge located along the
northerly side of the front yard setback area.
On May 23, 2007, the applicant submitted an application request for a modification
permit to allow the existing 10- foot -high hedge, reduced to a height of 6 to 7 feet, to
remain in the front yard setback area. In reviewing the submitted application request,
additional existing over - height improvements were discovered and added to the
modification request.
On August 20, 2007, the Zoning Administrator approved the applicant's request
(Modification Permit No. 2007 -050) with conditions restricting the height of Hedge 1 to a
maximum height of 7 feet and Hedge 2 to a maximum height of 12 feet (Exhibit 5;
Approval Letter).
On August 27, 2007, Planning Commissioner Michael Toerge initiated an appeal of the
Zoning Administrator's approval of Modification Permit No. 2007 -050 on the grounds
that the proposed modification fails to meet all three of the required findings necessary
to approve the request.
DISCUSSION
The Appeal
Commissioner Toerge is requesting that the Planning Commission reconsider the
modification request and contends that the findings required to approve the modification
cannot be made. The following reasons were provided in support of the appeal:
• The granting of the application is not necessary due to practical difficulties
associated with the property.
• Strict application of the Zoning Code does not result in physical hardships that
are inconsistent with the purpose and intent of the Zoning Code.
• The requested modification is not compatible with the existing development in the
neighborhood.
Chapter 20.95 of the Municipal Code establishes the procedures for the appeal process.
Pursuant to Section 20.95.060 C, a public hearing on an appeal is conducted "de novo ",
meaning that it is a new hearing and the decision being appealed has no force or effect
as of the date the appeal was filed. The appellate body is not bound by the decision
being appealed or limited to the issues raised on appeal.
51
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 6
Analysis
Chapter 20.93 (Modification Permits) of the Newport Beach Municipal Code provides for
administrative relief for certain development proposals where there is a practical
difficulty or physical hardship, including relief from the required building setbacks and
from the maximum height limitations for walls, fences, and hedges. In order to approve
a modification permit, the following three findings must be made:
A. The granting of the application is necessary due to practical difficulties associated
with the property and that the strict application of the Zoning Code results in
physical hardships that are inconsistent with the purpose and intent of the Zoning
Code.
B. The requested modification will be compatible with existing development in the
neighborhood.
C. The granting of such an application will not adversely affect the health or safety of
persons residing or working in the neighborhood of the property and will not be
detrimental to the general welfare or injurious to property or improvements in the
neighborhood.
Practical Difficulties Finding
A. The granting of the application is necessary due to practical difficulties associated
with the property and that the strict application of the Zoning Code results in
physical hardships that are inconsistent with the purpose and intent of the Zoning
Code.
To make this finding, it must be shown that the property has some practical difficulty or
constraint that, when combined with the strict application of the setbacks and height
limitations, creates a physical hardship that is inconsistent with the purpose of the code.
Typically, setback modifications are permitted for exceptionally small or irregularly
shaped lots that do not meet current lot standards or for lots where topography severely
limits proposed development. Fence and hedge height modifications are typically
permitted for properties that require pool protection fencing, properties where the
topography of the lot creates difficulty in maintaining a consistent fence height, or for
properties adjacent to heavily traveled streets (i.e. Jamboree Road) and need increased
noise attenuation.
In determining whether or not this finding can be supported, the Planning Commission
should consider the following factors:
Practical Difficulties:
• In this case, the subject lot is actually one of the larger lots in the
community and consists of gradual sloping topography, with the exception
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Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 7
of steeper slopes towards the front and side property lines. However, the
property is significantly impacted by an 86 -foot front yard setback
requirement, which is disproportionately larger than any other front yard
setback in the community and equates to approximately 46 percent of the
total lot area. Front yard setbacks for the Harbor View Hills Community
Association range from 6 feet to 86 feet, with no apparent consistency in
their application with respect to lot size or lot orientation. The application of
an 86 -foot front yard setback on this property disproportionately impacts this
property owner, not only by limiting the percentage of the lot area the
applicant can build on, but also resulting in a front yard area significantly
greater than that of other properties (Exhibit 6; Front Yard Setback
Comparison).
• The subject lot is located between the intersections of Ebbtide Road /Crown
Drive and Crown Drive North /Crown Drive, with the entire northerly property
line exposed to Crown Drive. Similar to many other lots in the community
that are located adjacent to Crown Drive or similar streets, the subject lot is
exposed to increased light impacts from vehicle headlights and noise from
vehicles traveling along the street. Typically, a 6 -foot wall /fence along side
yards is considered an appropriate height to mitigate against such impacts;
however, the other lots adjacent to Crown Drive in the community are not
required to provide front yard setbacks larger than 20 feet, allowing a greater
portion of those lots to be protected and screened with a 6 -foot -high fence,
wall, or hedge. Although the applicant is proposing hedges in excess of 6
feet within the front yard setback, it can be argued that the subject property
has a disproportionate length of his lot that is exposed to vehicle noise and
headlight impacts due to the 86 -foot front yard setback.
• Given the location at the southwest comer of the intersection of Crown Drive
and Crown Drive North, the applicant contends that the lot is not only subject
to the increased traffic impacts described above, but is also subject to an
increased risk of vehicles colliding into his property. The applicant states that
there have been 3 collisions into previous driveway gates and several near
misses in the past.
Purpose and Intent:
• The purpose and intent of requiring properties to maintain setbacks and
height limitations is to ensure adequate light, air, privacy, and open space is
provided for each dwelling unit, as well as to protect residents from harmful
effects of excessive noise, population density, traffic congestion, and other
adverse environmental effects. Additionally, these development standards
are intended to achieve compatibility with the surrounding neighborhoods.
• Typically, front yard setbacks are larger than side and rear setbacks to
promote open, visually pleasing front yards. However, it should be noted that
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Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 8
the development pattern of this particular terraced subdivision is not typical
in that lots located on the west side of Ebbtide Road, Goldenrod Avenue,
and White Sails Way are reversed with their front yard setbacks located on
the view side and their 6 -foot rear yard setbacks fronting the street. This
configuration permits these lots the ability to entirely screen their rear yards
from the street with 6 -foot -high walls, fences, and hedges.
• The Zoning Code establishes a 6 -foot height allowance for fences, walls,
and hedges within the side and rear yard setbacks areas and a 3 -foot height
allowance within the front yard setback areas. These height limitations are
standard throughout the City and are considered to provide adequate
privacy and protection for most properties. It should be noted that areas of
the City with sub - standard subdivisions, such as Old Corona del Mar and the
Balboa Peninsula, are permitted fence and wall heights of 5 feet within the
front yard setbacks (the upper 3 feet must be 40 percent open). This
exception was created to afford these properties increased privacy due to
the small lots and minimal front yard setbacks to the street.
Physical Hardship:
• Given the subject lot's large front yard setback and the 3 -foot height
limitation for fences, walls and hedges within this setback, the applicant is
significantly limited to the types of improvements that can be constructed on
the property, including a protective wall, fence or screen hedge. As a result,
the lot is afforded less privacy and subject to increased noise and headlight
impacts from vehicles then the other properties similarly situated adjacent to
Crown Drive or similar roadways. This is inconsistent with the purpose and
intent of the Zoning Code.
• The applicant added a 10- foot -high sculpture (Sculpture 1) and is proposing
an 11- foot -high sculpture (Sculpture 2) for the stated purpose of enhancing
the visual appearance of the large front yard area. The setback creates a
physical . hardship in locating these structures within the front yard due to the
height limitation of 3 feet. The sculptures cannot be located behind the front
yard setback since the house is located at the setback line due to the limited
buildable area of the lot. These encroachments are minor in nature and
similar to other accessory outdoor garden improvements, such as a patio
umbrella, heater, orfountain.
• Given the location of the lot in relationship to the intersection of Crown Drive
and Crown Drive North, and in order to provide increased protection from
vehicular impacts, the applicant contends that a larger driveway gate is
required to increase visibility of the gate and alert on- coming vehicles to the
turning roadway, and to help shield the property from vehicular headlights.
The new 9.5- foot -high gate was constructed of reflective stainless steel and
increased height to make the gate more visible to drivers at night.
E
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 9
It is staffs belief that the property is severely impacted by the disproportionately large 86-
foot front yard setback, which in combination with the 3 -foot height limitation within the
setback and location adjacent to Crown Drive, arguably affords the property less privacy
and exposes a greater percentage of the property to vehicle noise and headlight impacts .
This also creates difficulty for the applicant to enhance the front yard with minor
architectural features, such as the sculptures; however, the applicant's request for total
privacy by maintaining hedges up to 12 feet high is excessive and can been considered
granting a special privilege over that of what other property owners in the area are entitled.
Staff believes the applicant's concerns regarding vehicular safety and the desire to provide
a visible and protective driveway gate are warranted; however, a 7- foot -high gate as
previously permitted by Modification Permit No. 2509 is adequate to meet these concerns.
Staff does not believe sufficient facts are evident to support the finding for the entire
modification request as proposed; however, staff believes facts are evident to support the
findings for the following improvements:
• Entry Gate & Pilaster- The existing 6- foot -high entry gate and pilaster encroach 46
feet into the 86 -foot front yard setback, maintaining a 40 -foot setback to the front
property line. Allowing the this encroachment affords the property owner equitable
privacy and protection from the vehicle noise and headlight impacts on Crown
Drive, consistent with other properties in the neighborhood, while still providing a
reasonably open front yard area, consistent with the purpose and intent of the
Zoning Code.
• Hedge 1- Allowing Hedge 1 to encroach a maximum of 66 feet into the 86 -foot
front yard setback, with a hedge height not to exceed 6 feet, maintains a 20 -foot
setback to the front property line consistent with the largest front yard setback of
the other lots located adjacent to Crown Drive. This encroachment affords the
property owner equitable privacy and protection from vehicle noise and headlight
impacts on Crown Drive, consistent with the development limitations other
properties abutting Crown Drive in the neighborhood are afforded.
• Sculptures- The existing and proposed sculptures are minor architectural
encroachments, similar to other accessory outdoor garden improvements such as
a patio umbrella, heater, or fountain, and allow the applicant to enhance the visual
appearance of the large front yard area. Modification requests for similar sculpture
and fountain encroachments have been approved in the past for various properties
throughout the City.
Neighborhood Compatibility Finding
B. The requested modification will be compatible with existing development in the
neighborhood.
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Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 10
The purpose of this finding is to ensure that the granting of the modification will not
result in development that is out of character with existing development in the
neighborhood. In determining whether or not this finding can be supported, the Planning
Commission should consider the following:
• Entry Gate & Pilaster- The existing entry gate and pilaster have been in place for
several years and maintain a 40 -foot setback to the front property line, more than
what a majority of the other properties in the neighborhood are required to
provide, and can be found compatible with the existing development.
• Hedge 1- Encroaching within 12 feet of the front property line with the proposed
hedge exceeds what other similarly situated lots are permitted to develop and
results in development that is out of character with existing development within
the community. If the hedge is pulled back to maintain a 20 -foot setback to the
front property line, one could consider a 6 -foot hedge compatible with the
development of the lots similarly situated adjacent to Crown Drive; however, such
a reduced setback would then be incompatible with the 68 -foot setback of the lot
immediately south of the applicant at 1126 Ebbtide Road.
• Hedge 2- Hedge 2 at a height of 12 feet exceeds the standard 6- foot -high fences,
walls, and hedges that other properties in the neighborhood are permitted to
provide and results in development that is out of character with the development
limitations in the neighborhood. Although hedge heights are difficult to maintain
and several properties throughout the community do provide hedges and screen
planting in excess of the height limits required by the Zoning Code, these hedges
are in violation and should not be used for addressing compatibility in the
neighborhood.
• Driveway Gate- The existing 9.5- foot -high driveway gate exceeds the standard 6-
foot -high fences and walls that other properties in the neighborhood are permitted
to provide and results in development that may be considered out of character
with the existing development pattern in the neighborhood. It should be noted
however, that the wrought iron vehicular access gate constructed by the Jasmine
Creek Community Association on the property immediately east of the subject lot
is 7.5 feet high. The applicant's as -built driveway gate is an average height of
7.75 feet (9.5 feet max) and can arguably be found consistent character with the
adjacent gate.
• Sculptures- The sculptures are minor architectural features that result in negligible
visual impacts, similar to other accessory outdoor improvements, such as patio
umbrellas, heaters, and fountains. These improvements enhance the applicant's
front yard landscaping and will not result in development that is out of character
with the existing neighborhood.
• The Harbor View Hills Community Association reviews proposed developments
within the community to ensure compatibility with the character of the
O,
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 11
neighborhood, and have submitted a letter stating they have no objection to the
hedges so long as they do not impede Association views or traffic safety. It should
be noted that the neighbor whose views are impacted by the hedges is located
north of Crown Drive in another association (Harbor View Broadmoor).
• The front yard landscaping improvements can be found consistent with General
Plan Land Use Policy LU 5.1.6 (Character and Quality of Residential Properties)
which requires that residential front yard setbacks and other areas visible from the
public street be attractively landscaped.
• As previously stated, the lots on the west side of Ebbtide Road, across the street
from the applicant, are reversed frontage lots with the front yard setbacks on the
view side and the 6 -foot rear yard setbacks fronting Ebbtide Road. This
configuration pen-nits screening of rear yards from the street with 6 -foot walls,
fences, and hedges, similar to what the applicant is proposing.
Health and Safety Finding
C. The granting of such an application will not adversely affect the health or safety of
persons residing or working in the neighborhood of the property and will not be
detrimental to the general welfare or injurious to property or improvements in the
neighborhood.
Staff believes the extension of the entry gate and pilaster into the front yard setback, the
over - height sculptures, and the over - height driveway gate, will not be detrimental to the
general welfare or injurious to property or improvements in the neighborhood. The entry
gate and pilaster have existed in that location since 1980 without proving to be
detrimental. The sculptures are minor architectural features that do not impact views
and should not negatively impact persons residing in the neighborhood. The driveway
gate provides the applicant increased protection from vehicular impacts at the
intersection and increases visibility and safety for on- coming vehicular traffic
approaching the intersection.
The hedges are several years old and have not proven detrimental to most surrounding
property owners or contributed to vehicle site distance problems. Several surrounding
property owners have actually submitted letters in support of the hedges, as they
provide increased privacy for their properties also; however, the neighboring property
owner that is opposed to the hedges is negatively impacted by the hedges. According to
the neighbor at 2739 Windover Drive, the hedges have grown taller over the years,
slowly eliminating views of Catalina Island and sunset views of the ocean. It is important
to note that the City does not have private view protection policies or regulations;
however, when a height deviation is requested from what is normally permitted by
Zoning Code, it is reasonable to take into consideration the resulting private view
impacts the deviation creates. The neighbor states, and it is evident from the
photographs in Exhibit 7, that private views of Catalina Island and sunset views of the
ocean are completely screened by any hedge that measure 6 feet or higher. These view
0
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 12
impacts could, therefore, be considered detrimental, and the finding cannot be made for
any portion of the over - height hedges that significantly impacts the private view.
Summary
Based on the above analysis of the 3 necessary findings to approve the subject
modification request, staff is recommending approval of the entry gate, pilaster, and
sculpture encroachments as requested. Due to the view impacts to the neighboring
property owner north of Crown Drive, and taking into account the front yard setbacks of
the adjacent lot and other similarly situated lots in the community, staff believes that the
46 -foot encroachment into the 86 -foot front setback area (maintaining a 40 -foot setback)
with the existing entry gate and pilaster provides the applicant equitable privacy and
protection and that Hedge 1 should be limited to a height of 3 feet. Hedge 2 is
recommended to be trimmed down to a maximum height of 7 feet, consistent with the
previous modification approval. Due to the lack of facts to support the need for an 11-
foot -high driveway gate and to the incompatibility with other improvements in the
community, staff is recommending that the gate be replaced with a 7— foot -high gate, as
previously approved, which should be sufficient to protect the residence from potential
vehicle impacts.
Alternatives
1. Should the Planning Commission concur with the Zoning Administrator's findings for
approval of Modification Permit No. 2007 -050, the Planning Commission should
deny the appeal and uphold the Zoning Administrator's approval.
2. Should the Planning Commission determine that not all the findings can be made,
the Planning Commission should direct staff to prepare findings and a resolution of
denial for the requests and return at the next Planning Commission meeting date
with such resolution for adoption.
3. Should the Planning Commission determine that the 86 -foot front yard setback
arbitrarily and disproportionately impacts the subject lot, but find that the applicant's
modification request is more appropriately addressed through amending the front
yard setback, the Planning Commission should initiate a code amendment.
Environmental Review
The project qualifies for a Categorical Exemption pursuant to Section 15301 (Existing
Facilities) of the Implementing Guidelines of the California Environmental Quality Act
(CEQA). The exemption includes the addition of accessory structures to an existing
structure.
6. i
Appeal of Modification Permit No. 2007 -050
October 18, 2007
Page 13
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to property owners within
300 feet of the property and posted at the site a minimum of 10 days in advance of this
hearing consistent with the Municipal Code. Additionally, the item appeared upon the
agenda for this meeting, which was posted at City Hall and on the City website.
Prepared by:
Jaime Murillo, Associate Planner
EXHIBITS:
Submitted by:
• • Plohing
F lUSERSIPLMSharedlPA'SIPAS - 20071PA2007 -111 WD2007- 050PCrp1.doc
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ATTACHMENT 9
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ATTACHMENT 10
Applicant's Letters and Presentation
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LAW OFFICE OF FRANK W. BATTAILE
i 10 Newport Center Drive, Suite 200
Newport Beech, California 92660
October 15, 2007
Members of the Planning Commission
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
(949)719.1120
Fax(949)719 -1326
Email: bhlaw@earthlink.net
Re.: 1132 Ebbtide; Modification Permit No. MD2007 -050 (PA2007- l l 1)
Dear Members of the Planning Commission:
I am writing on behalf Mr. Paul Fruchbom regarding the appeal of the decision by Mr. Jay
Garcia to approve the referenced Modification Permit. First of all, Mr. Fruchbom and I both
want to thank David Lepo and Jaime Murrillo for the time and effort they have spent on this
matter, and especially for meeting with us at Mr. Lepo's office last week. We understand the
position staff is taking with respect to the justification Mr. Garcia found for granting the permit.
However, for the reasons set forth below, we deeply disagree with staffs determination that no
such justification exists. On the contrary, we believe that the justification is clear and
compelling, particularly with regard to the safety issue in connection with Mr. Fruchbom's
driveway gate.
The Commission should understand that the application at issue was not generated
initially by Mr. Fruchbom. This appeal arises from a complaint made by the neighbor living at
2739 Windover Drive, across Crown Drive from the subject property. That neighbor, Ms. Sarah
Booty, complained to the City that Mr. Fruchbom's hedges were blocking her view of Catalina.
In fact, as is clearly seen from numerous photographs taken over 20 years ago, the hedges have
always been as high as they are now, if not higher. It is also obvious that with or without the
hedges there is no view of Catalina from Ms. Booty's property.
Ms. Booty's spokesman and contact point is Mr. Greg Collins. Mr. Collins appeared at
the administrative hearing below and has been, so far as is known to this office, the sole point of
contact between staff and Ms. Booty. I am informed that Mr. Collins is a personal friend of
Commissioner Toerge, who is the appellant.
Aside from the past history of the hedges, Mr. Collins and Ms. Booty offer descriptions of
the physical layout of the community that simply defy first -hand observation. Mr. Collins insists
that there are no properties along Crown Drive above street level. Buti simply standing on -site it
is obvious that there are such properties and, as Mr. Garcia determined, that fact is part of the
reason it is necessary for Mr. Fruchbom to have hedges higher than 3 feet. Mr. Collins insists
that the rear of Mr. Fruchbom's property is not at street level when in fact it is. Mr. Collins
'1�)
Page 2 of 6
insists that without Mr. Fruchbom's hedges he would have a view of Catalina from Ms. Booty's
property. But, if you walk along the sidewalk adjacent to Crown Drive, it is obvious that there is
no such view.
THE ADMINISTRATIVE HEARING BELOW
After Ms. Booty's complaint, City officials inspected the site and determined that there
are a number of non - conforming conditions. Mr. Garcia took up the issues and, in response to
Mr. Garcia's suggestion, Mr. Fruchbom made the application that is now at issue. The important
points are these:
Noone has ever, to this day, complained about any aspect of the underlying
approval except for the height of the hedges; and
2. Mr. Garcia determined that Hedge I must be trimmed to SIX feet, not seven feet,
and that whenever the hedge grows to seven feet it must be trimmed back down to
six feet; and
Mr. Fruchbom accepted that condition.
Subsequently, there were no complaints from anybody at all. In particular, neither Ms.
Booty nor Mr. Collins appealed Mr. Garcia's decision. Instead, Commissioner Toerge appealed
the decision and has placed into issue a number of conditions about which there has never been
any complaint from anybody.
The Staff Report as well as the findings Mr. Garcia made include a host of special
conditions that, under State law as well as the Municipal Code, demonstrate that Mr. Fruchbom
is entitled to the requested modifications.
THE DRIVEWAY GATE
Special Conditions Require a Higher Drivewav Gate
Mr. Fruchbom's driveway is unique, and dangerously so, in that it faces directly on
Crown Drive at a point where it makes a 90 degree downhill turn. That physical condition
results in cars speeding downhill around the corner creating noise, headlight intrusion and the
potential for deadly crashes. The statement about potential crashes is not mere lawyer hyperbole.
There have been 2 crashes in the oast - both of them when there was a 7 -1/2 foot Rate in Place.
The most recent crash resulted in the rear gate being knocked all the way into Mr. Fruchbom's
pool and total destruction of the rear wall. If anyone had been in Mr. Fruchbom's spa, that
person would certainly have been killed. Mr. Fruchbom has many photographs of the event. Mr.
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Page 3 of 6
Collins himself was present at the time and tried to help. That crash is an undeniable fact. It is
not simply something that "the applicant states" as it is referenced in the Staff Report.
In response to those 2 crashes Mr. Fruchbom recognized that a 7 -1/2 foot gate was not
sufficient. Not knowing that he needed a special permit to do so, he commissioned - at great
expense - an artistically appealing gate with a rounded top that has a maximum height of 9-1/2
feet and an average height of only 7.75 feet.
There is no other property in the vicinity that suffers from this dangerous condition. It is
a physical reality that deprives Mr. Fruchbom of the ability to use his backyard without fear of
being killed in his own hot tub. The inadequacy of a 7 -1/2 foot gate is demonstrated by the fact
that there have been 2 crashes, one of them potentially fatal, with a 7 -1/2 foot gate. It cannot
have been the intent of the Zoning Code to mandate the continued existence of such a dangerous
condition.
Comyatibility of the Driyewa —Gate
As for compatibility, the Staff Report notes that "[t]he applicant's as -built driveway gate.
is an average height of 7.75 feet (9.5 feet max) and can arguably be found consistent [in]
character with the adjacent gate." Also, the Harbor View Hills Community Association provided
a letter to Mr. Garcia that states that the HOA has no concerns about any aspect of Mr.
Fruchbom's application, including the gate. Noone to this day has complained about the gate. It
is not overly large. It is not garish. It is aesthetically appealing and serves an extremely
important safety purpose.
Health and Safetv
There is no conceivable health or safety issue arising from the gate. Indeed, the gate
substantially contributes to the safety of the whole neighborhood. The Fruchboms are the
principal beneficiaries of the increased safety provided by the gate, but the whole community
also benefits from anything that prevents potentially fatal crashes.
THE HEDGES
The View Issue
Despite Ms. Booty's and Mr. Collins' statement to the contrary, the hedges at issue have
been as high as they are now since at least 1984. Mr. Fruchbom has photographs to prove it. Ms.
Booty's property is below the level of the sidewalk along her side of Crown Drive. Walking
/11
Page 4 of 6
along that sidewalk it is obvious that there is no view of Catalina from Ms. Booty's property. In
any event, whatever view she has now is the same view she has had for over 20 years. It has to
be emphasized that Mr. Fruchbom has already agreed to abide by Mr. Garcia's condition that the
hedges will be trimmed down to 6 feet. With that reduction in height Ms. Booty will enjoy more
blue sky than she has had in over 20 years. She may also have some view of the roofs of homes
farther down Ebbtide, but she has never had a view of Catalina. Even if the hedges were
eliminated altogether, she still would not have a view of Catalina.
Special Conditions
The entire surrounding community is set out in peculiar ways that result in an
unacceptable intrusion on Mr. Fruchbom's privacy from the street frontage of both Crown Drive
and Ebbtide Road. First of all, Mr. Fruchbom's front yard setback of 86 feet is quite possibly the
largest setback in Newport Beach. The Staff Report agrees that this setback creates substantial
difficulties for maintaining the same privacy enjoyed by other owners in Harbor View Hills with
setbacks ranging down to 6 feet. Also, nearby residences are, in fact, elevated above street level.
Without a hedge taller than 3 feet they would have a view into Mr. Fruchbom's bedroom. Those
neighbors have written in support of maintaining the hedges at at least 6 feet to protect their own
privacy.
The Staff Report correctly states that "Given the subject lot's large front yard setback and
the 3 -foot height limitation ... the lot is afforded less privacy and subject to increased noise and
headlight impacts from vehicles then [sic] the other properties similarly situated adjacent to
Crown Drive or similar roadways. This is inconsistent with the purpose and intent of the Zoning
Code."
The Staff Report emphasizes the point by repeating it.
"It is staffs belief that the property is severely impacted by the disproportionately large
86 -foot front yard setback, which in combination with the 3 -foot height limitation ... arguably
affords the property less privacy and exposes a greater percentage of the property to vehicle noise
and headlight impacts."
However, the Staff Report then concludes that "the applicant's request for total privacy
by maintaining hedges up to 12 feet high is excessive." This is a critical point. Mr. Fruchbom is
NOT requesting hedges up to 12 feet hi eh, Mr. Garcia limited Hedge 1 to 6 feet - and Mr.
Fruchbom accepts that condition. If the Commission denies the appeal and sustains Mr. Garcia's
decision, the height of Hedge 1 will be 6 feet. not 12 feet.
■Y
Page 5 of 6
ComUatibility
The setback and height requirements are intended to "protect residents from harmful
effects of excessive noise, population density, traffic congestion, and other adverse
environmental effects." (Staff Report.) It is obvious that the harmful effects do not result from
front yards per se, but from street facing yards. As the Staff Reports notes, the surrounding
community is laid out differently than most communities. The homes immediately across
Ebbtide have their rear yards facing the street. Their front yards are away from the street, facing
the ocean. Because their street frontage is technically the back yard, those homeowners can and
do have 6 -foot hedges to insulate them from the harmful effects of the street frontage. If Mr.
Fruchbom cannot also have at least 6 -foot hedges, he will be deprived of the same enjoyment of
his property as his neighbors across Ebbtide. In fact, if Mr. Fruchbom's street -front hedges are
reduced to 3 feet, that would cause Mr. Fruchbom's property to be out of character.
LEGAL AUTHORITY SUPPORTS THE GRANTING OF THE APPLICATION
AND DENIAL OF THE APPEAL
The Commission should be guided, through the City Attorney of course, by Craik v.
County of Santa Cruz (2000) 81 Cal.AppAth 880, where the court upheld the granting of height
and setback variances on ocean view residential property. The court confirmed the basic rule that
"we require the findings to 'bridge the analytic gap between the raw evidence and ultimate
decision or order. "' (Ld.; at 884, citing Tovanga Ass. v. County of Los Angeles (1974) 11 Cal.3d
506.) Here, the findings in the Staff Report itself, with respect to impacts on privacy arising
from the 86 foot setback and the elevation of surrounding properties, and the fact that nearby
properties have their rear setback as the street frontage, simply do not logically connect with the
staff's ultimate conclusion that the hedges should be limited to 3 feet. The only logical finding to
be drawn from the Staff Report is that Mr. Fruchbom is entitled to have at least a 6 -foot hedge in
order to enjoy the same benefit of the Zoning Code as nearby property owners.
Craik also makes clear that non - physical impacts of the Zoning Code justify the grant of a
variance. "There is no authority to support that a 'physical' disparity is a precondition for a
variance. Government Code section 65906 requires variances to be granted 'because of special
circumstances applicable to the property. "' (Ld., at 890, emphasis in original.) Thereforc, with
respect to county regulations at issue in that case, "though the FEMA [County Ordinance] and
related county regulations may abstractly apply to everyone (contraindicating a disparity), in
reality, the regulations only impact the land of real parties and a few other vacant parcels." (Id.)
Here, the unusual setback and the fact that neighbors across Ebbtide have the benefit of 6-
foot hedges in the rear setback that is their street frontage, create "special circumstances" that
make a variance necessary.
J'1
Page 6 of 6
DUE PROCESS
This appeal has been taken by a Planning Commissioner. Our understanding is that the
appealing Commissioner will sit on the dais and, in addition to speaking out in favor of his own
appeal, will participate in voting on his own appeal. In addition, the appealing Commissioner
will have an opportunity to question Mr. Fruchbom and anyone else speaking out on his behalf.
After the close of public comment, the appealing Commissioner will be able to speak at length
and argue his case to the remaining Commissioners, far beyond the right of any other appellant to
speak in favor of his own appeal. While the Commissioners are certainly entitled under the
Constitution to appeal decisions and be heard as citizens, they are not entitled to act in the dual
capacity of citizen- appellant and decision maker. The appealing Commissioner should step
down from the dais, participate as an ordinary citizen - appellant, and after public comment has
been closed he should leave any further discussion and the final voting to the other members of
the Planning Commission.
One of the key cases on this point is Breakzone Billiards v. City of Torrance (2000) 81
Cal.AppAth 1205. In that case the court found that a land use applicant was not denied due
process when a council member acted both as appellant and as a voting council member.
However, that determination was based on the fact that the council vote was unanimous and that
the appealing council member did not exercise undue influence over the proceedings. Therefore,
even if the appealing council member had not participated, the result would have been the same.
What is clearly implied is that if the vote here is 4 to 3, and if Commissioner Toerge does
influence the proceedings in some way, then the result will be a judicial finding that Mr.
Fruchbom was denied his due process right to an impartial decision maker. (See also, Cohan v.
City of Thousand Oaks (1994) 30 Cal.AppAth 547.) It is in the best interest of everyone
concerned to avoid that potential and have Commissioner Toerge step down and participate as an
interested citizen and, apparently, as an advocate for Mr. Collins and Ms. Booty. Doing so will
avoid even the appearance of impropriety and will preserve the credibility of the Planning
Commission and its processes.
cc: Clients
ow
One complaint initially and now
• One hedge between entry gate and Ebbtide grew
up to block a Catalina/sunset View
• Evidence shows this complaint is untrue
• Complainant has lived there 40 years
• Hedges have been over 10' since before 1984
• There is no view even if hedge is removed
• Staff did not visit complainant site; photo staff
relied on shows no view
• We had agreed to cut hedge to size that staff and
complainant agree will not curb view
My home
All issues on Crown frontage
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My home
All issues on Crown frontage
3
Crown Driveway Gate From Car
City Setback Analysis
Largest in Community for no Apparent Reason
86 feet from sidewalk to house = no legal side yard
Appeal was uneccessary
• "we would appreciate your Crown
Bougainvillea trimmed to the height of your
1iedge along Ebbtide"
• "Trees to left and right are not a problen,
nor is the balance of your hedge further up
Crown
• "bougainvillea growing on top of your
hedge ... takes out so much of the view we
have enjoyed for the last 40 years"
Crown Hedges and Entry
Right side hedge is source of complaint
Crown Driveway Gate From Car
Crown Hedges and Entry
Right side hedge is source of complaint
w
Zoning administrator added issues to
conform entire Ebbtide frontage
• Trim other hedge to 12'
• entry gate misplaced 4' in 1980 prior to my
purchase
• existing and proposed sculpture needed
approval
• driveway gate 2.5' too high at center (9" too
high on average)
Approved all items with some
hedge reductions -OK with us
• Reduce one hedge from 10' to 6 -7'
• reduce other hedge to ] l '
• entry and drive way gate OK as built
• sculptures are OK
This appeal now threatens
existing gates and structures
where no one complained and
there are no good reasons to
remove them
Cost of replacing gates and
sculptures > $275,000
• Sculptures $45,000
• driveway gate $80,000 (original cost was
$60,000; $80,000 to replace)
• entry gate and new front stairs, new
walkways to house, new entry stairs, and
new garden plot balustrades $150,000
Existing sculpture by entry gate
Proposed Paley Sculpture
No changes on Crown frontage since
my 1984 purchase
• Hedges have always been at 10' or more
• Entry gate re- designed 10 years ago -size
unchanged
• Driveway gate increased in height to > 8' and
constructed of steel 10 years ago after car
accident damaged wood gate
• Driveway gate increased 18" at high point and
made more reflective 3 years ago after
destruction in car accident. Average height
reduced
Listing Ad March 1984
:ORN9R ESTATE IN CORONA 0E MAR —A rer• 11n6
atgB private corner p.OpPrty. PenOramiCn¢w of oC
v b itie- at n oht. The r>Rrtnct home Mr ¢IlSpent .into. rain:
fmoa.�- ].aboorooms. poormet FllCxan YttU5.o0ofcc.l3 vp -s£
roperty Management
400 315 Marine Ave. 673 -69000
Balboa Island
Reasons for tall gate and hedges
• Safety for driveway gate (visibility to cars)
• Noise for driveway gate and hedges (Crown is
busy and uphill generates extra noise)
• Headlights will shine directly into house if
hedge cut to 3' due to slope on both sides of
corner
• hedges provide privacy for us and also for 1126
Ebbtide from 4 houses with direct views into
our BR, LR and DR
• No other physical technique works
No public costs to leave gates,
larger hedge and sculptures as is
• No complaints ever about gates or
sculptures -many compliments on art
beautifying neighborhood
• no complaints ever about the larger hedge
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Gate Crash 2004
Gate Crash 2004
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Gate taller and more reflective
• Need height for visibility as street is lower
and offset slightly to oncoming path of cars
• Prior gate height of 8' proved inadequate
• Used shiny stainless steel for reflectivity
• Used more reflective steel overall
• Height stops headlights
• Height reduces sound as cars drive uphill
• Only increased highest point 18" from 8'
and did not increase average height (7.5')
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some staff comments are unsupported
opinions
• "hedge 2 at 6' provides adequate noise and
headlight protection"
• Crown is a busy street
• due to Crown uphill, cutting hedge 1 to 3'
will allow headlights directly into my LR,
DR and BR
• hedge 2 at 6'will allow headlights directly
into my LR (there is no complaint)
Strong Neighborhood support
• 44 neighbors have sent letters of support or
signed a petition to uphold original decision
• HOA supports us
• next door neighbors support us
• Crown Dr. homeowners want hedges for
privacy
M
some staff comments are unsupported
opinions
• "photos show Catalina view impacted by
hedge 1 over 6 feet"
• Just not correct- photos show no view of
Catalina or ocean
• staff didn't visit complainant's lot to see for
himself which we had requested
• we agreed to cut hedge to 6 feet
some staff comments are unsupported
opinions
• "allowing a 20' setback to allow hedge 1 to
be 6' is incompatible with the 68' setback
next door"
• my next door neighbor Dan Trevino
supports having these hedges
Affirm Zoning Administrator
• We agreed to reduce hedge on Ebbtide side
of entry gate to 6'to 7'
• We agreed to reduce hedge on Jasmine side
of entry gate to 12'
• Allow existing and new sculpture
• Entry and driveway gate to remain as is
j
Petition
The undersigned represent neighbors of the Fruchbom's concerning the appeal of
The Zoning Administrator's decision of August 20'" with respect to this property.
We respectfully request that you uphold The Zoning Administrator's decision in all
respects.
We see no reason why The Commission would force our neighbor to re do their
Crown Drive gates, fencing and hedges at a potential cost of hundreds of thousands
of dollars when all these amenities have been at this site for at least 23 years, and
before the Fruchbom's purchased the property. The only material change in all
these years was the increase in height of their driveway gate for safety reasons. Not
only do these amenities harm no one, they beautify our neighborhood, especially
their gates which are expensive works of art.
Neighbor Support
WE Supporters
Complainant
My House
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m
ATTACHMENT 11
Letters of Support
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r
Petition to the Newport Beach Planning Commission
1132 Ebbtide Zoning Modification
October 18th
6:30PM, City Hall
Dear Commissioners;
The undersigned represent neighbors of the Fruchbom's concerning the appeal of The
Zoning Administrator's decision of August 20`h with respect to this property. We
respectfully request that you uphold The Zoning Administrator's decision in all respects.
We see no reason why The Commission would force our neighbor to re do their Crown Drive gates,
fencing and hedges at a potential cost of hundreds of thousands of dollars when all these amenities have
been at this site for at least 23 years, and before the Fruchbom's purchased the properly. The only
material change in all these years was the increase in height of their driveway gate for safety reasons.
Not only do these amenities harm no one, they beautify our neighborhood, especially their gates which
are expensive works of art.
SIGNATURE
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Petition to the Newport Beach Planning Commission
1132 Ebbtide Zoning Modification
October 18th
6:30PM, City Hall
Dear Commissioners;
The undersigned represent neighbors of the Fruchbom's concerning the appeal of The
Zoning Administrator's decision of August 201h with respect to this property. We
respectfully request that you uphold The Zoning Administrator's decision in all respects.
We see no reason why The Commission would force our neighbor to re do their Crown Drive gates,
fencing and hedges at a potential cost of hundreds of thousands of dollars when all these amenities have
been at this site for at least 23 years, and before the Fruchbom's purchased the property. The only
material change in all these years was the increase in height of their driveway gate for safety reasons.
Not only do these amenities harm no one, they beautify our neighborhood, especially their gates which
are expensive works of art.
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10
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Petition to the Newport Beach Planning Commission
1132 Ebbtide Zoning Modification
October 180
6:30PM, City Hall
Dear Commissioners;
The undersigned represent neighbors of the Fruchbom's concerning the appeal of The
Zoning Administrator's decision of August 201h with respect to this property. We
respectfully request that you uphold The Zoning Administrator's decision in all respects.
We see no reason why The Commission would force our neighbor to re do their Crown Drive gates,
fencing and hedges at a potential cost of hundreds of thousands of dollars when all these amenities have
been at this site for at least 23 years, and before the Fruchbom's purchased the property. The only
material change in all these years was the increase in height of their driveway gate for safety reasons.
Not only do these amenities harm no one, they beautify our neighborhood, especially their gates which
are expensive works of art.
s.
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7.
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9.
10.
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Gentlemen;
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Modification Request Hearing
1132 Ebbtide
Corona del Mar, CA. 92625
Attached are 3 letters in support of my request for modification to allow a higher hedge at
my residence.
The first is from the President of my homeowners association, Harbor View Hills
Community Association, stating that my association has no issues with my hedge. Please
note that the neighbor who complained about my hedge is in another HOA.
The other two letters are from long time neighbors across the street who feel the hedge is
a benefit as it provides privacy to both parties. These are the only neighbors I asked for
opinions but could provide more if needed.
?ul Y uchbom
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1301 Do,, Slreel I Suite 7;?0 1 Newport Bear.h I CA 92660 1 P: 919 622 1883 1 F 949 xb1 1819
1133 EBBTIDE ROAD
RECEIft PLA NG 0 pE AP7UEW . (949)640-4707 R, CA 92625
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EMAILJmlpr000l.com
JUL x J 2007
June 20, 2007 crr r OF NE ftp r BEACH
To: The City of Newport Beach
Re: Modification request hearing June 9"', 2007 pertaining to the
Fruchbom residence at 1132 Ebbtide Road, Corona del Mar
We have lived directly across the street from the Fruchbom's for over 15
years. Their landscaping is, by far, some of the most beautiful in Harbor
View Hills. It does not create any problems for us as neighbors; in fact, it's
just the contrary. The hedges in question (that have been in excess of ten
feet for many years) help to maintain the privacy from the houses across
from us.
Th for conside ' our opinion.
"l' ��9t✓¢�U
John and Jan Landstrom
1133 Ebbtide Road, CdM
�E)�
2727 Windover Drive, Corona del Mar, CA 92625
Paul Fruchbom
1132 Ebbtide
Corona del Mar, CA 92625
June 16, 2007
Paul,
C /JyO�,
Apparently you have received a complaint regarding the hedge containing a
bourgainvilea between your house and Crown Drive. As far as 1 am concerned this hedge
does not in any way obstruct our view, and furthermore is not only attractive but also at
its current height affords a welcome degree of privacy between our two properties.
Regards
Michael Strong
10
HARBOR VIEW HILLS COMMUNITY ASSOCIATION
c/o Walters Management
17340 Redhill Avenue; Site 210
Irvine, CA 92624
Ph. (949) 752 -2226 Fax 7044367
City of Newport Beach (1 . ✓UC 11 ���°
OA ?Opp
Reference: Modification request hearing June 90', 2007 ®�fa
1132 Ebbtide Wcy
Gentlemen;
We understand that the homeowners at 1132 Ebbtide (the Fruchbom's) have been
ticketed for having a hedge height in excess of 3 feet along their side yard on Crown
Drive, and have asked for a modification allowing them to maintain their hedge at 6 to 7
feet in height. This is to inform you that this Association generally has no problems with
such hedges if they enhance privacy and do not adversely affect any of our Harbor View
Hills Community Association homeowners.
We have no objection to these types of plantings where they do not impede Association
views or traffic safety.
Thank you for considering our opinion.
Sincerely, /^
Bud Volberding, President
Harbor View Hills Community Association
cc: Board of Directors
0
ATTACHMENT 12
Letters of Opposition
�0
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`Ob
Message
Murillo, Jaime
Page 1 of 7
From: Robert C. Hawkins [rhawkins @earthlink.net]
Sent: Monday, November 05, 2007 10:33 AM
To: 'Greg Collins`, Gardner, Nancy; Daigle, Leslie; Rosansky, Steven; Curry. Keith; Selich, Edward;
Webb, Don; Henn, Michael
Cc: eaton727 @earthlink.net; bhillgren @cox.net; emcdaniel @fullertoncb.com; jeff.cole @cushwake.com;
scott.peotter @taxfighter.com;'Michael Lee Toerge; Lepo, David; Murillo, Jaime;
bhlaw @earthlink.net
Subject: RE: Modification Permit No. 2007 -050 (PA2007 -111)
Greetings,
Thanks for your comments. By this email, I am forwarding your comments to the Planning
Department for inclusion in the administrative record on this important dispute. RCH
Robert C. Hawkins, Esq. (SBN 144906)
Law Offices of Robert C. Hawkins
110 Newport Center Dr., Ste. 200
Newport Beach, California 92660
ph: 949 650 5550
fax: 949 650 1181
mobile: 949 500 1232
e -mail: rhawkins@earthlink.net
This e-mail message and any attachments are confidential and may be attorney - client privileged. If you
are not the intended recipient, please notify the Law Offices of Robert C. Hawkins by telephone (949)
650 5550 or by e-mail at rhawkins @earthlink net, and destroy the original and all copies and/or versions
of this message and any attachments.
- -- Original Message---- -
From: Greg Collins [mailto:gmcollin @ earthlink.net]
Sent: Monday, November 05, 2007 10:31 AM
To: 'Robert C. Hawkins'; gardnerncy @aol.com; lesliejdaigle @aol.com; parandigm @aol.com;
curryk @pfm.com; edselich @roadrunner.com; dwebb @city.newport- beach.ca.us; mhenn527 @hotmail.com
Cc: eaton727 @earthlink.net; bhillgren @cox.net; emcdaniel @fullertoncb.com; jeff.cole @cushwake.com;
scoff .peotter@taxfighter.com;'Michael Lee Toerge'; dlepo @city.newport- beach.ca.us;
jmurillo @city.newport- beach.ca.us; bhlaw @earthlink.net
Subject: RE: Modification Permit No. 2007 -050 (PA2007 -111)
Robert
I do not understand your comment regarding the "sharp contrast" in emails. My earlier email was not
intended as an endorsement of the findings of the Planning Commission. I simply wanted to thank you and
the other PC members who took their time to visit our home and meet with us. Not all Commissioners took
the time to meet with us. I understand that your time is valuable, that your position on the Planning
Commission is a volunteer position, that it may be a thankless job, and whether we agree on the dispute or
not. I felt it was appropriate and courteous to acknowledge that you took the time to meet with us and thank
you for your time.
Greg Collins
12/06/2007 kA
Message
Page 2 of 7
From: Robert C. Hawkins [mailto:rhawkins @earthlink.net]
Sent: Monday, November 05, 2007 10:05 AM
To: gmcollin @earthlink.net; gardnerncy @aol.com; lesliejdaigle @aol.com; parandigm @aol.com;
curryk @pfm.com; edselich @roadrunner.com; dwebb @city.newport- beach.ca.us; mhenn527 @hotmail.com
Cc: eaton727 @earthlink.net; bhillgren @cox.net; emcdaniel @fullertoncb.com; jeff.cole @cushwake.com;
scott. peotter @taxrighter.com;'Michael Lee Toerge'; dlepo @city.newport- beach.ca.us;
jmurillo @city.newport- beach.ca.us; bhlaw @earthlink.net
Subject: RE: Modification Permit No. 2007 -050 (PA2007 -111)
Greetings,
Thank you for your comments. This email stands in sharp contrast to your earlier email sent
after the hearing. By this email, I am forwarding your comments on this important dispute to the
Planning Department for inclusion in the administrative record. Thanks for your comments.
RCH
Robert C. Hawkins, Esq. (SBN 144906)
Law Offices of Robert C. Hawkins
110 Newport Center Dr., Ste. 200
Newport Beach, California 92660
ph: 949 650 5550
fax: 949 650 1181
mobile: 949 500 1232
e -mail: rhawkins@earthlinknet
This e-mail message and any attachments are confidential and may be attorney - client privileged.
If you are not the intended recipient, please notify the Law Offices of Robert C. Hawkins by
telephone (949) 650 5550 or by e-mail at rhawkinskearthlink.net, and destroy the original and all
copies and/or versions of this message and any attachments.
- - - -- Original Message---- -
From: Greg Collins [mailto:gmcollin @ earthlink.net]
Sent: Sunday, November 04, 2007 8:05 PM
To: gardnemcy @aol.com; lesliejdaigle @aol.com; parandigm @aol.com; curryk @pfm.com;
edselich @roadrunner.com; dwebb @city.newport- beach.ca.us; mhenn527 @hotmail.com
Cc: eaton727 @earthlink.net; bhillgren @cox.net; emcdaniel @fullertoncb.com;
jeff.cole @cushwake.com; rhawkins @earthlink. net; scott.peotter@taxrighter.com; 'Michael Lee
Toerge'; dlepo @city.newport- beach.ca.us; jmurillo @ city.newport- beach.ca.us
Subject: RE: Modification Permit No. 2007 -050 (PA2007 -111)
Sara and I live across Crown Drive from the subject property at 1132 Ebbtide Road and are the
"complaining property owner" referenced in commissioner Hawkins' below email. For some
historical perspective and additional background on this modification permit, please read the
attached copy of the email we sent to Nancy Gardner requesting that the modification be called up
by the City Council.
Commissioner Hawkins is mistaken if he believes that we agreed with the Planning Commission
decision. To be clear, we do not agree with the Planning Commission decision, and
Commissioner Hawkins' statement to the contrary illustrates the problems with the Planning
Commission and their unwillingness or inability to understand and address the issues. We did not
agree with the modification granted by the Zoning Administrator and that is why we requested that
Commissioner Toerge review the Zoning Administrator's decision (which ultimately resulted in the
12/06/2007 ,��-
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appeal to the Planning Commission). Since the Planning Commission upheld the Zoning
Administrator's decision in all aspects except approval of the artwork (the artwork was not approved
based upon the advice of the City Attorney), why would Commissioner Hawkins believe that we
agreed with their decision? We never would have asked that it be appealed to the Commission if we
had agreed with the original decision.
During the Planning Commission hearing, we were asked whether we would be willing to accept, as
a compromise, Hedge 1 at a height of 6 feet. It was clear that this was very important to the
applicant, and the Commission was looking for a compromise that would appease the applicant. I
stated that Hedge 1 at a height of 6 feet would only be acceptable if the applicant was restricted
from planting trees the length of Hedge 1 (within the first 40 feet of his setback). As I explained, if
the hedge is restricted to 3 feet in height (per current code), and the applicant plants trees (as the
code allows), we may be left with a limited view above the 3 foot hedge and under the canopy of any
new trees (whose canopies would start at 6 feet). However, if the hedge was allowed at a height of
6 feet, and the applicant was allowed to plant trees (as code allows), our view would remain
completely blocked (they would be replacing the existing 10 foot high hedge with a combination
hedge /trees). Any plantings above 6 feet (whether hedge or tree) block our view of Catalina.
Commissioner Hawkins then asked the applicant if he would plant trees, and the applicant stated
that he will want to plant a couple of trees. The Planning Commission then approved Hedge 1 at a
height of 7 feet, and placed no restrictions on the planting of trees (other than requiring the applicant
apply for a permit). In an effort to appease the applicant, our concerns and issues were simply
dismissed by the Commission.
We do not understand why the City (at the Zoning Administrator level as well as at Planning
Commission) is so unwavering in their determination to accommodate this individual at our and the
community's expense. The Planning Commission's decision was in complete disagreement with the
recommendations of the Staff Report. The staff prepared an objective report addressing each of the
applicant's concerns. The staff understands the code and the issues. However for reasons unknown
to us, the Commission felt compelled to ignore the Staff Report, and (in my opinion) demonstrated
their lack of understanding of the issues.
• As supported by the Staff report, there are no practical difficulties or physical
hardships that justify approval of this modification with respect to either Hedge 1 or
Hedge 2.
• Per the Staff Report, "the applicant's request for total privacy by maintaining hedges
up to 12 feet high is excessive and can be considered granting a special privilege ".
• The applicant has already received a previous modification allowing them to encroach
46 feet into the 86 foot setback with a 7 foot hedge. Per the Staff Report, restricting the
balance of the hedges within the remaining 40 feet of front yard setback is "consistent
with similar properties in the neighborhood," is "consistent with the purpose and
intent of the Zoning Code," and affords them "equitable privacy and protection from
vehicle noise and headlight impacts ".
• Per the Staff Report, "maintaining a 40 foot setback to the front property line, can be
found compatible with the existing development ". But allowing Hedge 1 to remain at a
height of 6 feet and thereby reducing the setback to 20 feet, "such a reduced setback
would then be incompatible with the 68 -foot setback of the lot immediately south of the
applicant at 1126 Ebbtide ".
• Per the Staff Report, "the City does not have private view protection policies or
regulation; however, when a height deviation is requested from what is normally
permitted by Zoning Code, it is reasonable to take into consideration the resulting
private view impacts the deviation creates. The neighbor states, and it is evident from
the photographs in Exhibit 7, that private views of Catalina Island and sunset views of
the ocean are completely screened by any hedge that measure 6 feet or higher.'
• Crown Drive is not a heavily traveled street like Jamboree Road and therefore does not
require increased noise attenuation.
While I understand that the City may be reluctant to "protect" views, we have never asked that the
City do anything more than simply enforce the existing codes. Rather than enforce the existing
codes, the ZA and PC have gone out of their way to work with the applicant to prepare and process
a modification that allows them to keep all their illegal hedges, gates and structures. We do not feel
12/06/2007 \0
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Page 4 of 7
that the applicant should gain privacy at the expense of our view.
The applicant has not been asked to compromise on any of the issues with respect to the height
and location of their illegal hedges, gates and structures, yet we are expected to compromise all or
portions of our view by allowing Hedge 2 to be increased in height from what was approved by
previous modification, and allowing Hedge 1 to be increased in height from existing codes. In
numerous previous attempts to resolve this dispute between neighbors, we have offered to
compromise. However, it begs the question, why are we the only party expected to
compromise?
I feel that we are handicapped by our principles and integrity, because we will not misstate or
misrepresent the facts in order to further our agenda. The applicant and their legal representative
are not similarly inhibited. They have stated that we do not have a view — this is false, we have a
view. They have stated that we cannot see over our own hedges — this is false. They have stated
that Hedge 1 was trimmed to a height of 6 feet when we first approached them with our request last
year — this is false (had they simply trimmed Hedge 1 to a height of 6 feet and not threatened to
plant trees to totally block our view, this matter would not be before you today). The applicant has
changed their justification for the excessively high hedges (first to gain privacy from homes across
Crown Drive, then to prevent headlight glare and traffic noise, and now to provide a backdrop for
their artwork) as their arguments were proven unsound. The applicant has threatened lawsuits. The
applicant has chosen to attack our credibility as well as that of Commissioner Toerge in an effort to
distract attention from the required findings.
I would not ask that you rely upon our statements over the applicant's, but I would ask that you read
the Staff Report and visit the site to see for yourself.
• If you visit our home you will see that our living room is orientated toward the ocean for a
view of Catalina over the applicant's property and neighbor's rooftops and that view has been
slowly eliminated over the years by the growth of their 10 to 14 foot high hedges (sorry, it will
need to be a clear day — the fog and smoke from the fires aren't helping). The view we have
always had, and would like to protect, is from our living room slab on grade, not from the
sidewalk along Crown drive. The view from the adjacent Crown Drive sidewalk does not
accurately represent our view because of the grade differential.
• If you drive the neighborhood, you will see that there are other hedges in violation of the code
(as the applicant has pointed out), but none of these hedges block other property owner's
views. These hedges exist because neighbors have worked out compromises and/or are
unaffected (but these illegal hedges have not been validated by the granting of modifications
after the fact as this current modification would).
• If you drive down North Crown Drive from San Joaquin Road toward the applicant's driveway
gate, as you turn right at the corner (toward MacArthur) you will see that if Hedge 2 is cut
down to 7 feet as required in the first modification, you would be able to enjoy a public view of
Newport Bay from the street.
• If you drive up Crown Drive (from MacArthur) toward the applicant's home at night, you will
see that your headlights will not shine into their home if the hedges are cut to the heights
required by the previous modification and existing codes (Hedge 2 at 7 feet and Hedge 1 and
the Ebbtide the hedge at 3 feet).
Please also speak with David Lepo regarding the process for approval of, and the applicant's ability
to plant trees within the setback which can further impact our views. Certain Commissioners are
under the false impression that by requiring the applicant to obtain approval from Planning before
planting trees within the setback our view will be protected. Planning can not prevent the applicant
from planting trees in such a manner that would block our view over a 6 foot hedge.
Hedge 1 blocks our view at any height above 6 feet, yet the ZA and PC's approval allows it to grow
to 7 feet before it must be trimmed. Who is going to measure Hedge 1 when its height approaches 7
feet and requires trimming? Because any height above 6 feet blocks our view, we will be more than
interested to have it trimmed as soon as it reaches exactly 7 feet. Further, if Hedge 1 is ever
trimmed, who is going to assure that it is trimmed down to the 6 foot level? Remember, any height
above 6 feet blocks our view of the ocean and Catalina. It is clear the applicant will not allow us on
his property to perform such measurement. We will be forced to contact the city's code enforcement
12/06/2007 1�A
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Page 5 of 7
(which is what we did after we got no cooperation form the applicant over a year ago) and hope that
the process works. This is not a very promising thought considering the hoops we, the city staff,
Planning Commissioners and now City Councilmember's have had to go through to enforce the
current code. Whatever is finally decided by the CC, please do not assume that the applicant will
voluntarily comply. Please assure that there is a method to enforce whatever modifications are
approved so that we are not forced into this process again. Given the disrespect the applicant has
shown Sara and I, we are concerned with the approval of any modification that exceeds the
provisions of the first modification granted in 1980 and ask that you hold the line on further
modifications.
It was clear at the Planning Commission hearing that some of the Commissioners did not
understand the issues and would have greatly benefited from a visit to our property. We would
greatly appreciate the opportunity to discuss this with you further and would welcome an opportunity
to have you visit our home.
I may be reached at any of the numbers below.
Thank you,
Greg Collins & Sara Booty
2739 Windover Drive
Corona del Mar, CA 92625
9491644 -7435 home
94916794000 ext. 15 work
7141323-3209 cell
From: Michael Lee Toerge [ mailto:strataland@earthlink.net]
Sent: Friday, November 02, 2007 11:57 AM
To: 'Robert C. Hawkins'
Subject: RE: Forward E -Mail
Hey Bob — I understand your concern with the email I sent to the council members. I totally agree
that reasonable minds can and often do disagree. My real goal here is not to create conflict, but to
share my concerns openly with the council so that we can grow and learn as a planning commission
and as planning commissioners. I do not recall any time in my 5 years on the Planning Commission
where so many actions of the PC have either been overturned by the CC or called up for further
review.
As to your assertion that the complaining property owner is in agreement with the actions taken by
the PC, that is simply not the truth. If the record reflects that he is in agreement, then the record is
wrong. Call him and ask him if he is in agreement. Considering the circumstances, I would think you
would do so before representing to the CC that he is in agreement. Further, while the complaining
property owner's concerns brought the situation to the fore, my actions on the matter take on a
larger cause in support of applicable codes, as our planning staff indicated in their staff report, and
not solely focused on the interests of a single complaining property owner. More importantly now,
however, is that the CC will review the recent PC actions (Panini and Ebbtide) and we will be able to
learn from their deliberations.
Michael Lee Toerge
Strata Land Company, Inc.
3810 E. Coast Hwy., Suite 4
Corona del Mar, CA 92625
(949) 723 -1075 Tel
(949) 723 -1550 Fax
stratala nd(&ea rthli n k. net
From: Robert C. Hawkins [mailto:rhawkins @earthlink.net]
Sent: Friday, November 02, 2007 9:33 AM
12/06/2007 0
Message
Page 6 of 7
To: 'Rosansky, Steven'; 'Selich, Edward'; 'Webb, Don'; 'Daigle, Leslie'; 'Gardner, Nancy'; 'Henn,
Michael'; 'Curry, Keith'
Cc: eaton727 @earthlink.net; bhillgren @cox.net; emcdaniel @fullertoncb.com;
jeff.cole @cushwake.com; rhawkins @earthlink. net; scott.peotter @taxfighter.com;
strataland @earthlink.net;'Lepo, David'; 'Wood, Sharon'; 'Murillo, Jaime'
Subject: FW: Forward E -Mail
Greetings,
I understand that you have received the attached email from Commissioner Toerge
regarding the Ebbtide hedge dispute. Obviously, reasonable minds may disagree.
However, the email contains many factual inaccuracies and incomplete characterizations.
I encourage you to review the minutes of this meeting for a full and true picture of the
Planning Commission's deliberations.
The Planning Commission including Mr. Toerge fully analyzed, discussed, and
understood the relevant issues and code requirements. After more than two hours of
hearings, the Planning Commission came to a decision with which the complaining property
owner agreed, which accommodated the majority of the Commission's concerns, and
which applied relevant City requirements. Any characterization to the contrary is wrong.
Robert C. Hawkins, Esq. (SBN 144906)
Law Offices of Robert C. Hawkins
110 Newport Center Dr., Ste. 200
Newport Beach, California 92660
ph: 949 650 5550
fax: 949 650 1181
mobile: 949 500 1232
e -mail: rhawkins%r),earthlink.net
This e-mail message and any attachments are confidential and may be attorney - client
privileged. If you are not the intended recipient, please notify the Law Offices of Robert C.
Hawkins by telephone (949) 650 5550 or by e-mail at rhawkins@earthlink.net, and destroy
the original and all copies and/or versions of this message and any attachments.
- - - -- Original Message---- -
From: Lepo, David [ mailto :DLepo @city.newport- beach.ca.us]
Sent: Wednesday, October 31, 2007 1:08 PM
To: Robert C. Hawkins; Scott Peotter; emcdaniel27 @myway.com; eaton727 @earthlink.net; Cole,
Jeff; Hillgren, Brad
Subject: Forward E -Mail
Good afternoon
I am forwarding an e-mail sent by Commissioner Toerge to members of City Council.
David Lepo, Director
Planning Department
City of Newport Beach
(949) 644 -3228 w (949) 644 -3229 f
12/06/2007 110
Page 1 of 5
Murillo, Jaime
From: Michael Lee Toerge [strataland@earthlink.net]
Sent: Wednesday, October 24, 2007 2:58 PM
To: Lepo, David
Cc: Murillo, Jaime
Subject: Modification Appeal -1132 Ebbtide Road
Hello David — I wanted you and Jaime to see the note I sent to each City Council member regarding 1132
Ebbtide. Thanks for the conversation this morning.
I understand that Councilmember Daigle has called the 1132 Ebbtide modification permit for
review by the City Council. I wanted to share my observations and thoughts with you as you
consider the action. If you would like to meet at the site, I am available at your convenience.
The staff report is fairly detailed and complete, but, nothing will give you better knowledge of
the situation than driving by the site and witnessing first hand the violations in place at the site.
After months of failed efforts to get cooperation from a neighbor to trim their hedges to restore
an ocean view, the complainant (affected property owner) contacted the city to review the
hedge growth that exceeds code allowed height at 1132 Ebbtide (the applicant). This resulted
in Code Enforcement personnel visiting the property and the discovery that there are several
code violations including excessive height on a number of hedges, the placement of a 10 foot
tall sculpture in the front yard setback, the installation of a 9.5 foot tall driveway gate (without
getting a building permit) that exceeds the height limit. Code enforcement cited the applicant
for these violations. Rather than correct the violations, the applicant applied for a second
modification permit to gain "after- the - fact" approval of these violations through a modification
permit. Despite the fact that the proposed modification would result in the blockage of the
ocean view of the affected property owner and the lack of adequate findings to support the
"after- the - fact" modification request, the ZA approved the height of the illegally constructed
gate and allowed two hedges to remain, one at 11 to 12 feet tall and the other at 6 to 7 feet tall.
The heights of these hedges impair and in some cases completely block the ocean view of the
adjacent property owner. Specifically, the 11 foot hedge completely blocks the ocean view of
the affected property owner at all times (a property owner, that due to his property being in a
different home owners association than the applicant, is afforded no protection from these
setback encroachments by the applicants HOA) and the 6 foot hedge allows for a partial view
of the ocean from the affected property, however, the hedge is allowed to grow to 7 feet before
it must be trimmed. At 7 feet tall it totally blocks the ocean view of the affected property owner.
Keep in mind that our code requires these hedges to be a maximum of 3 feet in height not 7
feet or 11 feet. Further, the subject property's front yard grade is positioned from 1 to 6 feet
above the grade of Crown Street. The measurement of the hedge height is made from this
elevated front yard grade. As a result, approval of this second modification permit allows both
hedges to be over 12 feet above the grade for almost the entire frontage along Crown Drive. In
an earlier modification permit issued in 1980 (first modification), the easterly hedge, (11 footer
referred to as Hedge 2 in the staff report) was allowed to exceed the 3 foot height restriction
and grow to a limit of 7 feet, this in an attempt to give the applicant some relief from the
specific impacts that arise at the site (corner location, headlight suppressions, noise, etc.).
This first modification contains a specific finding that the improvements contemplated
in the 1980 modification will not obstruct views of adjoining properties. It is important to
point out, that the heights approved in the first modification do not obstruct the view of the
12/06/2007 111
Page 2 of 5
adjacent property owner. Due to the practical difficulty associated with the large front yard
setback of this site and because the height approved in this first modification does not obstruct
views from adjoining properties, I have no objection to and support the provisions of the first
modification permit. But the 6 to 7 foot hedge that impairs the affected property owner's view
is, by code, limited to 3 feet in height just as all other improvements in a front yard setback. It
was not allowed to exceed 3 feet in height in the first modification nor should it be allowed to
exceed 3 feet in this second modification. Allowing Hedge 2 to exceed the previous modified
height of 7 by an additional 4 feet obstructs a portion of the ocean view of the affected property
owner. Why are we allowing a modification to be granted on top of another modification
when doing so blocks the ocean view of another property owner, especially considering
that in the first modification a crucial finding in support of the first modification was the
fact that the proposed improvements would not obstruct views from adjoining
properties?
The city has a policy of not protecting views of private property when development or
landscape fits within code required limitations. However, when an application for modification
or variance is requested, the view impact of the proposed modification has always been
considered when taking discretionary action. The findings in the first modification confirm this
and this point is also documented by staff in the October 18, 2007 staff report.
Recognizing, in my opinion, that the findings required to allow these setback encroachments
and illegal construction cannot be met, I appealed the decision of the ZA. After several hours
of staff time and detailed evaluation of the specifics of the case, the planning staff agreed that
the ZA had erred in his review and approval of the second modification and recommended that
the illegal construction (the 9.5 foot tall driveway gate which exceeds the 7 foot height
allowance granted in a previous modification permit) the 11 foot hedge (which exceeds the 7
foot height granted in the previous modification permit) and the 6 to 7 foot hedge (which was
never granted any modification over the 3 foot height limitation), all must be made to comply
with city code. I was encouraged by staffs opinion and support their findings.
The applicant has substantial resources and motivation (personal benefit and economic) to
maintain the current conditions and has gone to great expense to justify his illegal construction
and setback height violations. The applicant engaged two attorneys, an architect and several
homeowners to support his position. The negatively affected property owner is not in a position
to hire such expensive consultants to fight their cause, nor should they be required to. Even
though the affected property is adjacent to the applicant's property, it is located within a
separate homeowners association and is not protected by the applicant's homeowner
association provisions which would disallow such a blockage of a neighbor's view. They
are relying on fair - minded city government to enforce its codes just as the code enforcement
and city planning staff have opined. Instead, they are forced to argue their case in front of the
ZA, the PC and now the CC where the applicant has a hired team of experts to argue their
case. Further, the applicant has used misrepresentations to bolster his position. The applicant
claims the affected property owners have no ocean view. This is an outright misrepresentation,
a misrepresentation the applicant has used to gain support for the second modification. There
was public testimony from neighbors in support of the second modification and the beauty of
the landscaped corner, however, the ocean view of these supporters is not obstructed by the
excessive height of the hedges.
The applicant justifies his need for these excessively high hedges for reasons of noise
attenuation, headlight suppression and views into his bedroom from other properties. These
are reasonable concerns, concerns that I would work hard to solve for any property owner.
12/06/2007 `6
Page 3 of 5
However, the applicant already received a modification in consideration of these impacts. It
also begs the question, are we to allow the applicant such protection from these impacts by
allowing setback modifications that block a neighbor's view to the ocean and Catalina? Its one
thing to ask for relief from site specific impacts when such relief does not have a detrimental
affect on another property owner, but an entirely different request when the proposed
modifications negatively affect another property owner, a property owner who expects the city
to protect their interest by enforcing the code. The desire to mitigate impacts such as noise,
headlight spread and views into one's property is largely site specific. There are many
locations in our city where one street dead -ends into another at the front door of a resident
where headlight spread could be a bother. There are hundreds of corner locations where
similar impacts such as headlights and residential collector street traffic noise occur. There are
countless sites where a property owner can see into another property owner's home from an
elevated terraced location or across the bay. Are we to allow every one of these situations to
be solved with hedges or other view blocking measures that exceed city code when such
hedges negatively impact others? I think not! There are other ways to achieve personal privacy
without negatively affecting others.
The PC vote on this issue was 4 to 3 against the staff recommendation and in favor of making
a very slight change to the ZA's approval. The city attorney advised the PC to disallow the
sculptures in the front yard setback. Other than that small change, the PC supported the ZA's
recommendation that allows the illegal gate and the tall hedges that block the affected property
owner's ocean view to remain. What's more bothersome to me is that the other two
commissioners that voted in opposition with me did so because they actually favored the even
less restrictive ZA recommendation without disallowing the sculptures. I couldn't and still can't
believe it. I have been on the short end of a few 6 to 1 votes on the PC, most of which have
been reviewed by the CC and reversed in support of my position (919 Bayside Drive and the
location of the lateral public access along the bay, Aerie and the predominate line of existing
development, to name two). I am a principled person who expects others to abide by our city
code. If the code is unfair, then change it, but, if the code is fair, enforce it. There is simply no
reason why the affected property owner should be forced to lose any-part_of their ocean view
in order for the applicant to gain protection from impacts that are inherent in the site location of
the home they chose to purchase, especially when there are other ways for the applicant to
achieve the privacy protection they desire without negatively impacting others. Further, the
applicant already benefits from the provisions of the first modification permit that took into
consideration these very same impacts. I have shown my willingness to do the "heavy lifting"
for the benefit of the community and city council when faced with controversial planning issues.
In some cases I have challenged the city staff position. In this case, however, I am in complete
agreement with staffs review and recommendations, yet all of the other planning
commissioners see it otherwise. This is a threshold issue for me. I am a dedicated volunteer
for this city and one that has consistently tried to do the "right thing" for the greater good of the
community even when doing so pits me against close friends and neighbors. I'm glad that you
will be reviewing the merits of this application and applying your judgment. Our citizens and I,
as a dedicated second - senior planning commissioner, need to know your opinion of this type
of situation. If I am out of step with the CC, I will do what is necessary to correct that, however,
if the PC's actions are out of step with the CC then the PC needs to know.
To summarize, your planning staff and I agree that the applicant should comply with the code,
however, the other six planning commissioners believe it is okay to grant a modification on top
of another modification even when the components of the second modification unfairly and
negatively impact another property owner by blocking his view to the ocean and Catalina.
12/06/2007 10
Page 4 of 5
There have been allegations by the attorneys representing the applicant that I am a personal
friend of the affected property owner and I am somehow influenced to act unreasonably. That
is simply not the case anywhere where I have had authority to act in my capacity as a Planning
Commissioner. If we, as city volunteers, must recuse ourselves simply because we know
somebody, then our city will be forced to appoint citizens to our various commissions and
committees who are not actively involved in our city. Knowing someone does not constitute a
conflict and our city attorney's office agrees. It is simply ridiculous to suggest that merely
knowing somebody involved on one side or another of an action rises to the point of a conflict
of interest. Rick Julian, the developer of Aerie, is a friend of mine. I am sponsoring him to be a
member of Balboa Yacht Club. My actions on the PC have clearly not worked to his benefit?
Please do not be persuaded by such arguments and please dismiss them as self - serving
tactics to conceal the violations that your city code enforcement and planning staff have
revealed.
You will also hear that, during the PC hearing, after much public testimony and after hearing
the preliminary position of a majority of the planning commission members, I withdrew my
opposition to the height of the driveway gate. This was done because I could see that there
was no support from the commission to hold the violator accountable for the illegal
construction of the gate. I was hopeful that withdrawing my opposition to the driveway gate
component of the application would generate support from the other commissioners to enforce
the codes pertaining to setbacks and reducing the height of the hedges so that the affected
homeowner might have his ocean view restored. No support was forthcoming and I made a
mistake withdrawing my opposition to the illegally constructed, 9.5 foot tall, $60,000 dollar,
3,000 pound motor driven gate.
Approving illegal construction, performed without a permit and designed inconsistent with city
code, is not a message I want to send to the community, especially when the findings required
to approve such a modification cannot be met. The message the public can glean from this
type of after - the -fact approval of illegal construction is, "If you don't like the code, ignore it,
build what you want and hope it goes unnoticed, then, when you are cited for it, ask for
approval by applying for a modification permit." For the applicant to suggest that the he was
not aware that the driveway gate required a permit is not plausible as the enormous gate
required structural engineering and the installation of motors and electrical supply to make it
operable. If he was unaware of the need to get a permit, the gate installer and electrical
contractor certainly should have known that city permits were required for this type of
construction. Before the applicant authorized the design, construction and installation of a
$60,000 driveway gate he certainly should have known the provisions of the first modification
permit wherein the height of the gate was permitted to exceed the 6 foot height limit to a
maximum height of 7 feet.
In reviewing the merits of the driveway gate height, please look at the driveway gate as if it
were a new application and not yet built. If, in our deliberations, we compromise our judgment
because the gate is already built and reason that it is expensive to correct, then we reward the
violator for illegal construction without a permit. Just this summer the CC opined on the topic of
Code Enforcement when you amended Council policy K -9 in July and added a new paragraph
"F" which specifically discusses how illegal building construction and code violations diminish
the quality of life of the residents of our city and how Code Enforcement should pursue them
aggressively. Where is the consistency? How is this application different?
The solution is simple, support your staff, support your Council Policy K -9 and support
planning commissioners who respect the city's codes by requiring this applicant to comply with
12/06/2007 , 11
Page 5 of 5
the recommendations of staff as they were presented in the October 18, 2007 staff report.
I wouldn't have written such a long note if I did not feel strongly about this situation. I take my
appointment to the PC seriously and this is a serious matter. The PC's recent actions on a
number of applications have made me question my resolve to cant' out my duties as a
planning commissioner for the greater good of our community. I'm conflicted by the actions of
the PC and my recent unsuccessful attempts to enforce the codes I am sworn to uphold. I
appreciated your support and code orientated opinions on the Aerie project and I am looking
forward to your opinions on the Panini appeal. I'm again sorry that you must review another PC
decision, but, I am looking forward to your deliberations. I can be reached at my home number
(949) 675 -9312 or cell phone at (714) 742 -8114.
Michael Lee Toerge
Strata Land Company, Inc.
3810 E. Coast Hwy., Suite 4
Corona del Mar, CA 92625
(949) 723 -1075 Tel
(949) 723 -1550 Fax
strataland�@earthlink. net
12/06/2007 1 l
March 27, 20(
Mr. Shane Burckle
City of Newport Beach
Code and Water Quality Enforcement
3300 Newport Boulevard
Newport Beach, CA 92663 -3384
RE: 1132 Ebbtide, Corona del Mar
Dear Mr. Burckle:
.kw ,wy OO.76c
RECEIVED BY
PLANNING DEPARTMENT
JUN 05 2007
CITY OF NEWPORT BEACH
As per our telephone conversation, we are requesting that the City of Newport Beach enforce the
Site Regulations (Municipal Code 20.60.030) limiting the height and open construction
requirements of the fences, walls and hedges at the Fruchbom residence located at 1.132 Ebbtide.
We also request that we be formally notified should an application for any modification or
variance to the Site Regulations be submitted to the City for the above residence.
We regret having to involve the City in this matter but we are left with no other recourse. The
hedges have grown to a height that has almost completely blocked our Sunset and Catalina Island
view from our living room, and the Fruchboms have made it clear that they are not concerned
with our view and have no intention of trimming their hedges to a height that would restore our
view.
We are very respectful of the property rights and privacy concerns of others and therefore were
reticent to even approach the Fruchboms. However, given the height of the hedges and that the
Fruchboms had no apparent intention of ever limiting the height, we initially approached them in
May of 2005 and verbally requested that they trim their hedges. As our view continued to be
eroded by the growth of the hedges, we sent a letter in November of 2006, requesting that they
consider trimming at least a portion of the hedges that have cut out so much of the view that we
have enjoyed for the last 40 years. We enclosed a copy of the attached photograph that
demonstrates the impact of their wall, fence and hedges upon our view (that's Catalina Island you
see between the hedges).
Over the course of the last couple of months, we have discussed our concerns with the Fruchboms
but they are unwilling to voluntarily trim even a portion of their Crown Drive hedges to the
height of their Ebbtide hedges over which they enjoy their view. They have expressed a concern
that if any portion of their Crown Drive hedges are cut to a height of less that 10 feet, one of our
neighbors down and across Crown Drive might be able 1p see into their bedroom from a second
story window. They are unwilling to even consider installing shades or blinds on their bedroom
windows, or constructing any other screening that might in any way, restrict their views. While we
can understand their desire to gain privacy, we do not believe that it should be at our expense. We
only wish that we could resolve this is a cooperative neighborly manner.
Thank you for your consideration,
ara Booty and Greg Collins
2739. W' verDrive
Corona del Mar, CA 92625
949/644 -7435
a-
1
p
Page 1 of 2
Muriilo, Jaime
From: Greg Collins [gmcollin@earthlink.net]
Sent: Monday, September 24, 2007 7:58 PM
To: Murillo, Jaime
Subject: FW: Fruchbom 1132 Ebbtide, Corona del Mar - Original Letter
Jaime:
Thank you for your phone call last week regarding 1132 Ebbtide.
Per our conversation, I've attached the original letter we sent to Code Enforcement back in March, and then to
Planning in June. Even though you have a hard copy of the photos from the file, I though it would be best to email
these photos to you so that you could see more clearly, zoom -in, etc. It's hard to photograph the waterline and
Catalina with my camera during the day (glare, fog, etc), so we included the evening photos where the waterline
and Catalina are easier to distinguish. The day photo #3240001 and evening photo #1010003 are essentially the
same view from out our living room ( #1010003 is slightly closer). In the evening photo #1010003, you can see
Catalina through the gate between the hedges, and again to the right of the hedges before the tree. Further to
the right you can see the waterline left of the rooftop /chimney. Photo #1010005 is a close -up of the gate with
Catalina in the background between the hedges. The light you see is on the pilaster on the gate at about a height
of 5'.
As we discussed on the phone, we are concerned with the applicant's stated intention to plant trees above the
hedges to gain their privacy. If the hedges are limited in height, and trees are planted above (as code allows), we
should be able to see Catalina and our winter sunsets under the canopies and thru the trees. However, if the
hedges are allowed to be as high as the bottom of the tree canopies, our view would be completely blocked.
Photo #1010005 demonstrates this point. The gate in the middle is "open" and the view is thereby preserved
because we can see under the tree and thru the gate (the tree in this photo happens to be a City tree in the
parkway, but it illustrates my point). Otherwise, if the hedge is allowed to be as high as the bottom of the tree
canopy (as the current modification allows), it would create a solid obstruction like the existing hedge to the right
of the gate and we would have no view.
There are a number of photos in that I can supply (they should still be in the City's file) showing the applicant's
property. I'll send a couple by separate email (so this email doesn't get too large).
I will send you by separate email 1) my notes prepared for the original August 201 hearing, and 2) my comments
on the staff report approving the request for modification.
Once you have had an opportunity to review, please call me with any questions.
Thank you for your time,
Greg Collins
2739 Windover Drive
Corona del Mar, California 92625
(714) 323 -3209 cell
(949) 679 -4000 ext. 15 work
(949) 644 -7435 home
From: Greg Collins [mailto:gmcollin @earthlink.net]
Sent: Tuesday, June 05, 2007 9:51 PM
To: esteffen @city.newport- beach.ca.us
Subject: FW: Fruchbom 1132 Ebbtide, Corona del Mar
09/25/2007 pA
Page 2 of 2
Erin:
Attached is the original letter we sent to Shane Burckle regarding our concerns with the Fruchbom's
wall /fence /hedge at 1132 Ebbtide. Asper our telephone conversation today, please put this letter in the file for
the Modification, and let us know when it would be appropriate for us to speak with Jay Garcia regarding our
concerns prior to the July 9th hearing date.
Thank you,
Greg Collins
2739 Windover Drive
Corona del Mar, CA 92625
9491644 -7435
9491644 -7303 fax
7141323 -3209 cell
From: Greg Collins [mailto:gmcollin @earthlink.net]
Sent: Wednesday, March 28, 2007 8:47 PM
To: Shane Burckle
Subject: Fruchbom 1132 Ebbtide, Corona del Mar
Shane:
Sorry I didn't get this to you sooner, I've been out of town.
Per our conversation, I've attached a letter expressing our concerns with the Fruchbom's wall/fence/hedge at 1 132
Ebbtide, and requesting that we be notified if there are any hearings associated with their application for
modification or variance. I will drop the original letter in the mail to you tomorrow.
I've also attached a couple of photos that may help illustrate the problem.
Sara Booty & Greg Collins
2739 Windover Drive
Corona del Mar, CA 92625
949/644 -7435
949/644 -7303 fax
714/323 -3209 cell
09/25/2007
1
Page I of 2
Murillo, Jaime
From: Greg Collins [gmoollin@earthlink.net]
Sent: Monday, September 24, 2007 8:00 PM
To: Murillo, Jaime
Subject: FW: 1132 Ebbtide - notes for hearing
Jamie - below are my notes that I prepared for the hearing:
Sara has lived since 1967, Greg since '84
Brief summary of our March 27, 2007 letter
• Our home is orientated towards Catalina, our living room and other (courtyard & kitchen) views look over
their front yard and above the homes across Ebbtide
• Noticed the view of Catalina we have enjoyed for 40 years (Sara) began to disappear 3 or 4 years ago as
their untrimmed hedges grew
• During winter months, when the air is clear and the sun sets behind Catalina, we enjoy not just Catalina
itself, but the sunsets above and around.
• Tried to work out a compromise (asked only right side down to 6') to avoid this very situation
• but unable because according to applicant, unless their hedge/wall is at least 10' high it will not provide
them the privacy they desire (applicant informed me that they would not cut lower than 10')
• Complaint based enforcement as opposed to proactive enforcement per desires of Council
Issue is a result of applicants desire to gain privacy from 4 homes across and down Crown Drive
• Applicant's desire to gain privacy should not be at the expense of our existing view —we should not have to
loose our existing views in order for the applicant to gain privacy
• The applicant never had the privacy they are now trying to gain
• A 3' hedge shields their home from the street and sidewalks (everything but the 4 homes)
• The applicant has stated (to me and Shane Burckle w/ code enforcement) that a 5 or 6 foot hedge will not
provide the privacy they desire and that they will plant trees (as code allows) in addition to the hedge to
block any view into their home from the across Crown Drive (thus blocking our view)
• In other words, their intent is to replace the existing 13 to 18 foot tall hedges with a combination of hedges
and trees.
• When they plant their trees (as code allows) we would only be able to see under the trees of this
modification is denied.
Reliance upon existing Code
• 1 believe that the intent of the code is to protect and preserve the private and public views and the open
space of what was once a small beach community.
• This request for modification is not appropriate for this location and would set a dangerous precedent
throughout the community - I have to assume that if the applicant is granted this modification because of
their desire for privacy, that this would apply to any other home on Balboa Island, down Margerette in CdM,
along the oceanfront in Newport or CdM. Imagine walking around Balboa Island if all the waterfront homes
raised their front walls to a height of 5 or 6 feet — it would destroy the openness, the public view corridors,
and their neighbor's views.
o Crown Drive is not a heavily traveled street
• This is their front yard
• This is not an urban environment where homes are hidden behind walls
• They have not provided justification to meet the three required findings
• A. the strict application of the Zoning Code does not result in physical hardships (they already got
relief of the setback in the original modification),
• B. the requested modification is not compatible with the existing developments in the neighborhood
09/2512007 1 la4
Page 2 of 2
(affects our view and is out of scale with pedestrian traffic on the adjacent streets).
• Our home is typical of a majority of homes in Newport/CdM in that the views are not only perpendicular to
the streetfront, but across and over adjacent properties.
• Its my understanding that with the current code, because the grade between their yard and the adjacent
sidewalk is greater than 2' (front yard is greater than 5' above the public sidewalk at their gate), the
walls/hedges at the top of the slope can not exceed 3 feet in height and must be 40% open.
• We believe the code was designed so that when trees are planted adjacent to any walls/fences/hedges, it
would not create a solid obstruction but would maintain the openness originally intended by the code. If
the modification is granted and the applicant is allowed a solid 6' high wall/fence/hedge, when the trees are
planted, you will not be able to see under the trees.
• We believe we should be able to rely upon the existing code to protect our view and the openness that this
code was intended to preserve.
went by the City July 20 and read the Fruchbaum's application. Paraphrasing the application they are stating
(my comments in Red italics):
• 4 homes across Crown Drive (down the hill from us in our development) have a view into their living room,
bedroom, etc. and the only way to prevent that is to allow the hedge to remain at 6' in height. - Per my
previous discussions with Mr. Fruchbaum, the hedge must be at least 10' high to protect their privacy (that
is why he would not cut the hedge down to 6' as we had originally requested).
• He can't plant trees to protect his privacy because with only a 3' hedge below, the 4 homes could see
under the trees.
• Blinds are not an option because it will impact the Fruchbaum's view
• None of the homes' views are impacted by the hedge - except ours?
• The hedges have been above 3' in height for years (they have a photo of the hedge taken from their
interior yard hand written date on the back 1984). - It is true the hedge was previously between 5 and 6
feet in height (not 12 feet like it is now) — we could see over it. The "old" hedge at 6 feet in height did not
give them the privacy they now want from the 4 homes across Crown Drive. If you look at that photo, the
hedge they look over (along Ebbtide) is lower so that they do not impact their own view.
• States existing hedges are 12' - actually they vary between 20' and 14'.
• This modification should be approved because it's a continuation of the previously approved 1980
modification processed by the previous Owners - not true
• The previously approved modification allowed an encroachment for a 6' to 7' high fence /hedge 38' into
their 86' setback ending with an entry gate.
• The entry gate improvements (by the previous Owners ?) were built further into the setback than the 1980
modification allowed, but this was an "oversight" and this current modification should be approved to
remedy that "oversight ". - The design of the entry gate that encroaches further into the setback that was
modified in 1980 was not a simple "oversight ", but that what was built is an entirely different design.
09/25/2007 `a1
Modifications Staff Action Report for August 20, 2007
Murillo, Jaime
From:
Greg Collins [gmcollin @earthlink.net]
Sent:
Monday, September 24, 2007 8:08 PM
To:
Murillo, Jaime
Subject: FW: 1132 Ebbtide - Modifications Staff Action Report for August 20, 2007
Page 1 of 2
Jaime:
Below are the comments I had when I read the August 20th staff report approving the request for modification at
1132 Ebbtide. When you have an opportunity, I would like to discuss with you.
Finding 3 —1st paragraph
• The properties located across Crown Drive are not higher in elevation than subject property. The subject
property building pad is higher than our building pad, and all 4 of the properties located across Crown Drive
with "direct line of sight" are level with or lower than our property.
• The subject property front yard is lower than their building pad, but not lower than our yard or other 4
properties across Crown.
• The northerly rear side of the subject property is not at street level, it's actually below.
• The rear of the residence is not exposed to "noise and loss of privacy due to close proximity of the
intersection of the two streets" because there is no intersection — Crown drive simply bends around the
comer.
• Not sure what is meant by the direct line of site from properties across Crown into front of residence. They
can see directly in, but they are not directly in front of the residence (they are off to the side).
Finding 4 —1 st paragraph
• Again, the subject property is not lower than properties located across Crown.
• This raises the central issue — is the right to privacy from 4 homes a valid physical hardship.
• a 6' to 7' hedge is not required to maintain privacy from any public streets or sidewalks (they have
this privacy with as little as a 3' hedge)
• a 6' to 7' hedge does not provide the desired privacy from the 4 homes, the hedge would have to be
a minimum of 10' (this is as stated by the applicant to myself and code enforcement). Trees will
have to be planted (as the code allows) "above" the 6' to 7' hedge to provide the desired screening
for privacy.
• Is everyone's right of privacy (in this particular case the right to gain privacy) more important than anyone's
existing right to an existing view?
• We can see waterline /Catalina over a 5' hedge, but not a 7' hedge.
• We will not see anything over a 5' hedge and trees.
• The existing code must have been developed with the understanding of, and in anticipation of tree
plantings adjacent to and in conjunction with hedges. There has to be a reason that the code limits
the heights of hedges and requires that the upper portions of all hedges must be 40% open and I
can't believe that they expected any homeowner wanting more privacy to be granted a modification.
The authors of the code must have understood that this would limit privacy and made a conscience
decision that the openness was more important than privacy.
• These findings do not acknowledge that the applicant already received relief (approximately 46') from the
86 -foot front yard setback (assuming the argument that it is excessive has merit) with their originally
approved modification.
Finding 5 — 2nd and 31d paragraphs
• Don't know if this is consistent with similar structures Citywide, but it is not consistent with similar structures
(with similar size front yards) in the neighborhood.
• Interesting that this brings it "closer to conformance to the allowances authorized by the community
association ". This illustrates that it is not in conformance of the community association allowances
(although they wrote a letter of support). If a neighbor in the same association (we are not) attempted to
09/25/2007 0
Modifications Staff Action Report for August 20, 2007
Page 2 of 2
gain approval of a hedge that would block a view, it would clearly be denied by the association.
• Having said that, is what the association allows on other corner properties in their neighborhood relevant?
This speaks to the complaint enforcement issue. If an association chooses not to enforce a City code
issue is it then ok?
Finding 6 — 2nd paragraph
• It states (in a positive tone) that the encroachment will limit the obstruction of views from the neighboring
properties. Doesn't acknowledge that the enforcement of the existing code without modification would
eliminate the obstruction of views.
Conditions 3 and 9 conflict
• Condition 3 states the hedge to the left is to be lowered to 6' to 7' per the original modification, but
condition 9 allows 11' to 12'.
Condition 5
• Can this me modified to prohibit planting of any additional trees within the setback from Ebbtide to the
gate? As currently written, and with the applicant's stated intention to gain privacy from the 4 homes
across Crown, there will be a problem. By definition, if the applicant plants trees to screen the views of the
4 Crown homes, he will be creating "screen planting" and based upon code enforcement's past
unwillingness to enforce the 3' screen wall height restrictions, we'll be back at Planning Commission
arguing over the trees.
Condition 9
• As discussed this is arbitrary — why 11' to 12'? Why wasn't original 6' limit per original modification
adequate? Again, the applicant never had privacy from the 4 homes across Crown, and has to increase
the screening to gain it.
• As you may already be aware, because of the grade changes, this will result in a plus 16' hedge height
measured from the sidewalk. Totally out of pedestrian scale, inconsistent and inappropriate.
Condition 11
• Is this a standard paragraph and does this really avoid setting a precedent.
09/25/2007 0
"RECEIVED AFTER AGENDA
LAW OFFICE OF FRANK W. BATTAIL]ftRIN i ED:" R l - 12-111. 0
110 Newport Center Drive, Suite 200 (949) 719 -1120
Newport Beach, California 92660 Fax (949) 719 -1326
Email: bhlaw@earthlinknet
December 10, 2007
Members of the City Council
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
Re.: 1132 EbbtitimModification Permit No. MD2007 -050 (PA2007 -111)
Dear Members of the City Council:
I am writing on behalf Mr. Paul Fruchbom regarding the appeal of the decision by the
Planning Commission to approve the referenced Modification Permit. Attached hereto is my
letter to the Planning Commission dated October 15, 2007. It is my understanding that the letter
will be included in your agenda packet, but I want to make sure you have the opportunity to read
it. It is my understanding that the modification as amended to the satisfaction of all interested
parties will be approved without extensive discussion. If my understanding is not correct then I
refer you to the attached letter and to the entire planning file including Mr. Fruchbom's power
point presentation from the Planning Commission hearing.
Mr. Fruchbom and I have been in frequent contact with David Lepo regarding a
compromise that will be acceptable both to Mr. Fruchbom and to Ms. Sarah Booty and Mr. Greg
Collins who are the only neighbors opposing the modification. Working through Mr. Lepo, we
have reached a compromise that Mr. Lepo informs me is acceptable to Ms. Booty and Mr.
Collins. Mr. Lepo has informed me and Mr. Fruchbom that the City Council does not want to
spend valuable time at the City Council meeting with a long presentation of the respective
positions of the interested parties. Specifically, Mr. Lepo informed Mr. Fruchbom and me that a
lengthy presentation would be counter - productive, that no presentation is necessary, and that the
City Council will approved the modification as agreed to by Mr. Fruchbom, Ms. Booty and Mr.
Collins.
Mr. Fruchbom and I are prepared to present a substantial body of factual evidence
including numerous photographs of the past and present condition of the property and the
statements of many residents of the area to support Mr. Fruchbom's requested modification.
However, in express and sole reliance on representations made to us by City officials of the lack
of any need to put on that presentation and the further representation by City officials that any
such presentation would be counter - productive, Mr. Fruchbom and I will make a brief statement
and will not secure the presence of neighbors who support Mr. Fruchbom.
Page 2 of 2
If my and Mr. Fruchbom's understanding is not correct, and if the City Council chooses
not to adopt the staff recommendation to approve the modification as amended to the satisfaction
of Mr. Fruchbom, Ms. Booty and Mr. Collins, then Mr. Fruchbom is entitled by constitutional
due process and an ordinary sense of fair play to have a continuance so that he can properly
present the evidence he has been led to believe is unnecessary. By this letter Mr. Fruchbom
demands such a continuance if the City Council chooses not to adopt the staff recommendation
to approve the modification as currently amended.
Mr. Fruchbom and I both appreciate your attention to this matter. We believe that it has
been blown vastly out of proportion and that it should be resolved on the terms agreed to by Ms.
Booty and Mr. Collins.
ai e
cc: Mr. Fruchbom
Mr. David Lepo
LAW OFFICE OF FRANK W. BATTAILE
110 Newport Center Drive, Suite 200
Newport Beach, Cali£omia 92660
October 15, 2007
Members of the Planning Commission
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
(949 1 7 19-1124)
Fax(949)719 -1326
Email: bhlawr@J rthlink.net
Re.: 1132 Ebbtide: Modification Permit No. MD2007 -050 (PA2007 -11 1)
Dear Members of the Planning Commission:
I am writing on behalf Mr. Paul Fruchbom regarding the appeal of the decision by Mr. Jay
Garcia to approve the referenced Modification Permit. First of all, Mr. Fruchbom and I both
want to thank David Lepo and Jaime Murrillo for the time and effort they have spent on this
matter, and especially for meeting with us at Mr. Lepo's office last week. We understand the
position staff is taking with respect to the justification Mr. Garcia found for granting the permit.
However, for the reasons set forth below, we deeply disagree with staffs determination that no
such justification exists. On the contrary, we believe that the justification is clear and
compelling, particularly with regard to the safety issue in connection with Mr. Fruchbom's
driveway gate.
The Commission should understand that the application at issue was not generated
initially by Mr. Fruchbom. This appeal arises from a complaint made by the neighbor living at
2739 Windover Drive, across Crown Drive from the subject property. That neighbor, Ms. Sarah
Booty, complained to the City that Mr. Fruchbom's hedges were blocking her view of Catalina.
In fact, as is clearly seen from numerous photographs taken over 20 years ago, the hedges have
always been as high as they are now, if not higher. It is also obvious that with or without the
hedges there is no view of Catalina from Ms. Booty's property.
Ms. Booty's spokesman and contact point is Mr. Greg Collins. Mr. Collins appeared at
the administrative hearing below and has been, so far as is known to this office, the sole point of
contact between staff and Ms. Booty. I am informed that Mr. Collins is a personal friend of
Commissioner Toerge, who is the appellant.
Aside from the past history of the hedges, Mr. Collins and Ms. Booty offer descriptions of
the physical layout of the community that simply defy first -hand observation. Mr. Collins insists
that there are no properties along Crown Drive above street level. But, simply standing on -site it
is obvious that there are such properties and, as Mr. Garcia determined, that fact is part of the
reason it is necessary for Mr. Fruchbom to have hedges higher than 3 feet. Mr. Collins insists
that the rear of Mr. Fruchbom's property is not at street level when in fact it is. Mr. Collins
Page 2 of 6
insists that without Mr. Fmchbom's hedges he would have a view of Catalina from Ms. Booty's
property. But, if you walk along the sidewalk adjacent to Crown Drive, it is obvious that there is
no such view.
THE ADMINISTRATIVE HEARING BELOW
After Ms. Booty's complaint, City officials inspected the site and determined that there
are a number of non - conforming conditions. Mr. Garcia took up the issues and, in response to
Mr. Garcia's suggestion, Mr. Fmchbom made the application that is now at issue. The important
points are these:
Noone has ever, to this day, complained about any aspect of the underlying
approval except for the height of the hedges; and
2. Mr. Garcia determined that Hedge I must be trimmed to SIX feet, not seven feet,
and that whenever the hedge grows to seven feet it must be trimmed back down to
six feet; and
3. Mr. Fmchbom accepted that condition.
Subsequently, there were no complaints from anybody at all. In particular, neither Ms.
Booty nor Mr. Collins appealed Mr. Garcia's decision. Instead, Commissioner Toerge appealed
the decision and has placed into issue a number of conditions about which there has never been
any complaint from anybody.
The Staff Report as well as the findings Mr. Garcia made include a host of special
conditions that, under State law as well as the Municipal Code, demonstrate that Mr. Fmchbom
is entitled to the requested modifications.
THE DRIVEWAY GATE
Special Conditions Require a Hieher Driveway Gate
Mr. Fmchbom's driveway is unique, and dangerously so, in that it faces directly on
Crown Drive at a point where it makes a 90 degree downhill turn. That physical condition
results in cars speeding downhill around the comer creating noise, headlight intrusion and the
potential for deadly crashes. The statement about potential crashes is not mere lawyer hyperbole.
There have been 2 crashes in the past - both of them when there was a 7-1/2 foot Pate in place.
The most recent crash resulted in the rear gate being knocked all the way into Mr. Fmchbom's
pool and total destruction of the rear wall. If anyone had been in Mr. Fmchbom's spa, that
person would certainly have been killed. Mr. Fmchbom has many photographs of the event. Mr.
Page 3 of 6
Collins himself was present at the time and tried to help. That crash is an undeniable fact. It is
not simply something that "the applicant states" as it is referenced in the Staff Report.
In response to those 2 crashes Mr. Fruchbom recognized that a 7 -1/2 foot gate was not
sufficient. Not knowing that he needed a special permit to do so, he commissioned - at great
expense - an artistically appealing gate with a rounded top that has a maximum height of 9 -1/2
feet and an average height of only 7.75 feet.
There is no other property in the vicinity that suffers from this dangerous condition. It is
a physical reality that deprives Mr. Fruchbom of the ability to use his backyard without fear of
being killed in his own hot tub. The inadequacy of 7 -1/2 foot gate is demonstrated by the fact
that there have been 2 crashes, one of them potentially fatal, with a 7-1/2 foot gate. It cannot
have been the intent of the Zoning Code to mandate the continued existence of such a dangerous
condition.
Compatibilitv of the Driveway Gate
As for compatibility, the Staff Report notes that "[tjhe applicant's as -built driveway gate
is an average height of 7.75 feet (9.5 feet max) and can arguably be found consistent [in]
character with the adjacent gate." Also, the Harbor View Hills Community Association provided
a letter to Mr. Garcia that states that the HOA has no concerns about any aspect of Mr.
Fruchbom's application, including the gate. Noone to this day has complained about the gate. It
is not overly large. It is not garish. It is aesthetically appealing and serves an extremely
important safety purpose.
Health and Safety
There is no conceivable health or safety issue arising from the gate. Indeed, the gate
substantially contributes to the safety of the whole neighborhood. The Fruchbom's are the
principal beneficiaries of the increased safety provided by the gate, but the whole community
also benefits from anything that prevents potentially fatal crashes.
THE HEDGES
The View Issue
Despite Ms. Booty's and Mr. Collins' statement to the contrary, the hedges at issue have
been as high as they are now since at least 1984. Mr. Fruchbom has photographs to prove it. Ms.
Booty's property is below the level of the sidewalk along her side of Crown Drive. Walking
Page 4 of 6
along that sidewalk it is obvious that there is no view of Catalina from Ms. Booty's property. In
any event, whatever view she has now is the same view she has had for over 20 years. It has to
be emphasized that Mr. Fruchbom has already agreed to abide by Mr. Garcia's condition that the
hedges will be trimmed down to 6 feet. With that reduction in height Ms. Booty will enjoy more
blue sky than she has had in over 20 years. She may also have some view of the roofs of homes
farther down Ebbtide, but she has never had a view of Catalina. Even if the hedges were
eliminated altogether, she still would not have a view of Catalina.
Special Conditions
The entire surrounding community is set out in peculiar ways that result in an
unacceptable intrusion on Mr. Fruchbom's privacy from the street frontage of both Crown Drive
and EbbtideRoad. First of all, Mr. Fruchbom's front yard setback of 86 feet is quite possibly the
largest setback in Newport Beach. The Staff Report agrees that this setback creates substantial
difficulties for maintaining the same privacy enjoyed by other owners in Harbor View Hills with
setbacks ranging down to 6 feet. Also, nearby residences are, in fact, elevated above street level.
Without a hedge taller than 3 feet they would have a view into Mr. Fruchbom's bedroom. Those
neighbors have written in support of maintaining the hedges at at least 6 feet to protect their own
privacy.
The Staff Report correctly states that "Given the subject lot's large front yard setback and
the 3 -foot height Iimitation ... the lot is afforded less privacy and subject to increased noise and
headlight impacts from vehicles then [sic] the other properties similarly situated adjacent to
Crown Drive or similar roadways. This is inconsistent with the purpose and intent of the Zoning
ode "
The Staff Report emphasizes the point by repeating it.
"It is staffs belief that the property is severely impacted by the disproportionately large
86 -foot front yard setback, which in combination with the 3 -foot height limitation ... arguably
affords the property less privacy and exposes a greater percentage of the property to vehicle noise
and headlight impacts."
However, the Staff Report then concludes that "the applicant's request for total privacy
by maintaining hedges up to 12 feet high is excessive." This is a critical point. Mr. Fruchbom is
NOT requesting hedges un to 12 feet high. Mr. Garcia limited Hedge 1 to 6 feet - and Mr.
Fruchbom accepts that condition. If the Commission denies the appeal and stains Mr. Garcia's
decision the height of Hedge 1 will be 6 feet not 12 feet.
Page 5 of 6
Comoatibi lity
The setback and height requirements are intended to "protect residents from harmful
effects of excessive noise, population density, traffic congestion, and other adverse
environmental effects." (Staff Report.) It is obvious that the harmful effects do not result from
front yards per se, but from street facing; yards. As the Staff Reports notes, the surrounding
community is laid out differently than most communities. The homes immediately across
Ebbtide have their rear yards facing the street. Their front yards are away from the street, facing
the ocean. Because their street frontage is technically the back yard, those homeowners can and
do have 6 -foot hedges to insulate them from the harmful effects of the street frontage. If Mr.
Fruchbom cannot also have at least 6 -foot hedges, he will be deprived of the same enjoyment of
his property as his neighbors across Ebbtide. In fact, if Mr. Fruchbom's street -front hedges are
reduced to 3 feet, that would cause Mr. Fruchbom's property to be out of character.
LEGAL AUTHORITY SUPPORTS THE GRANTING OF THE APPLICATION
AND DENIAL OF THE APPEAL
The Commission should be guided, through the City Attorney of course, by Craik v.
County of Santa Cruz (2000) 81 Ca1.AppAth 880, where the court upheld the granting of height
and setback variances on ocean view residential property. The court confirmed the basic rule that
"we require the findings to `bridge the analytic gap between the raw evidence and ultimate
decision or order. "' (Id., at 884, citing Tomanga Ass. v. County of Los Angeles (1974) 11 Cal.3d
506.) Here, the findings in the Staff Report itself, with respect to impacts on privacy arising
from the 86 foot setback and the elevation of surrounding properties, and the fact that nearby
properties have their rear setback as the street frontage, simply do not logically connect with the
staff's ultimate conclusion that the hedges should be limited to 3 feet. The only logical finding to
be drawn from the Staff Report is that Mr. Fruchbom is entitled to have at least a 6 -foot hedge in
order to enjoy the same benefit of the Zoning Code as nearby property owners.
Craik also makes clear that non - physical impacts of the Zoning Code justify the grant of a
variance. "There is not authority to support that a `physical' disparity is a precondition for a
variance. Government Code section 65906 requires variances to be granted `because of special
circumstances applicable to the property." (Id., at 890, emphasis in original.) Therefore, with
respect to county regulations at issue in that case, `though the FEMA [County Ordinance) and
related county regulations may abstractly apply to everyone (contraindicating a disparity), in
reality, the regulations only impact the land of real parties and a few other vacant parcels." (id.)
Here, the unusual setback and the fact that neighbors across Ebbtide have the benefit of 6-
foot hedges in the rear setback that is their street frontage, create "special circumstances" that
make a variance necessary.
Page 6 of 6
DUE PROCESS
This appeal has been taken by a Planning Commissioner. Our understanding is that the
appealing Commissioner will sit on the dais and, in addition to speaking out in favor of his own
appeal, will participate in voting on his own appeal. In addition, the appealing Commissioner
will have an opportunity to question Mr. Fruchbom and anyone else speaking out on his behalf.
After the close of public comment, the appealing Commissioner will be able to speak at length
and argue his case to the remaining Commissioners, far beyond the right of any other appellant to
speak in favor of his own appeal. While the Commissioners are certainly entitled under the
Constitution to appeal decisions and be heard as citizens, they are not entitled to act in the dual
capacity of citizen- appellant and decision maker. The appealing Commissioner should step
down from the dais, participate as an ordinary citizen - appellant, and after public comment has
been closed he should leave any further discussion and the final voting to the other members of
the Planning Commission.
One of the key cases on this point is Breakzone Billiards v. City of Torrance (2000) 81
Cal.App.4th 1205. In that case the court found that a land use applicant was not denied due
process when a councilmember acted both as appellant and as a voting councilmember.
However, that determination was based on the fact that the council vote was unanimous and that
the appealing council member did not exercise undue influence over the proceedings. Thcrcforc,
even if the appealing councilmember had not participated, the result would have been the same.
What is clearly implied is that if the vote here is 4 to 3, and if Councilmember Toerge does
influence the proceedings in some way, then the result will be a judicial finding that Mr.
Fruchbom was denied his due process right to an impartial decision maker. (See also, Cohan v.
City of Thousand Oaks (1994) 30 Cal.App.4th 547.) It is in the best interest of everyone
concerned to avoid that potential and have Commissioner Toerge step down and participate as an
interested citizen and, apparently, as an advocate for Mr. Collins and Ms. Booty. Doing so will
avoid even the appearance of impropriety and will preserve the credibility of the Planning
Commission and its processes.
cc: Clients
Authorized to Publish Advertisements of all kinds including public flgtices by
Decree of the Superior Court of Orange County, California. Number -A -6214,
September 29, 1961, and A -24831 June 11, 1963.
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
I am a Citizen of the United States and a
resident of the County aforesaid; I am
over the age of eighteen years, and not a
party to or interested in the below entitled
matter. I am a principal clerk of the
NEWPORT BEACH - COSTA MESA
DAILY PILOT, a newspaper of general
circulation, printed and published in the
City of Costa Mesa, County of Orange,
State of California, and that attached
Notice is a true and complete copy as
was printed and published on the
following dates:
December 1, 2007
I declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on December 5, 2007 at
Costa Mesa, California.
•
NOTICE OF PUBUC HEARING
1132 Ebbtide Road
Appeal at Modification
Permit Na. 2007 -050
(PA2007 -111)
NOTICE IS HEREBY GIV-
EN that the City Council
of the City of Newport
Beach will hold a public
hearing on the following
item:
An appeal of the Plan-
ning Commission's de-
cision to modify the Zon-
ing Administrator's
approval of Modification
Permit No. 2007 -050 on
property located in the
R -I -B District at 1132
Ebbtide Read.
Modification Permit No.
2007 -050, as modified by
the planning Commis-
sion, allowed hedges, a
portion of an entry gate,
and a pilaster to exceed
the 3 -foot height limit
within the required 86-
foot front yard setback.
2007050, as modified by
the Planning Commis-
sion, also allowed an
existing 9 -5- foot -high ve-
hicle access gate to exi
reed the 6 -foot height
limit within the required
640ot side yard setback.
The Planning Commis-
sion did not take action
on the applicant's
original request for re-
tention of an existing
10- toot -high sculpture
and the addition of a
new 11- foot -high
sculpture located in the
front yard setback.
The Modification Permit
has been reviewed and
determined to be cate-
gorically exempt under
the requirements of the
California Environmental
Quality Act under Class
1 (Existing Facilities)
NOTICE IS HEREBY FUR-
THER GIVEN that said
held on l e
Decarinber 1 l
e d on
2007, at the hour of
7d10 P.M. in the Council
Chambers of the New-
port Beach City .Hall,
3300 Newport Boulevard,
Newport Beach, Califor-
nia, at which time and
place any and all per-
sons interested may ap-
pear and be heard
thereon. If you challenge
this project in court, you
may be limited to raising
only those issues you or
someone else raised at
the public hearing de-
scribed in this notice or
in written corre
spondence delivered to
the City at, or prior to,
the public hearing. For
information call (949)
644 -3200.
LaVonne M. Harkless.
City Clerk
Published Newport
Beach /Costa Mesa Daily
Pilot December 1, 2007
WED