HomeMy WebLinkAboutPC2023-007 - APPROVING A VARIANCE, MAJOR SITE DEVELOPMENT REVIEW, AND COASTAL DEVELOPMENT PERMIT TO ALLOW THE DEMOLITION OF AN EXISTING DUPLEX AND THE CONSTRUCTION OF A NEW DUPLEX THAT EXCEEDS THE BASE HEIGHT STANDARDS AND ENCROACHES INTO A SIDE SETBACKRESOLUTION NO. PC2023-007 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA APPROVING A VARIANCE, MAJOR SITE DEVELOPMENT REVIEW, AND COASTAL DEVELOPMENT PERMIT TO ALLOW THE DEMOLITION OF AN EXISTING DUPLEX AND THE CONSTRUCTION OF A NEW DUPLEX THAT EXCEEDS THE BASE HEIGHT STANDARDS AND
ENCROACHES INTO A SIDE SETBACK FOR THE PROPERTY LOCATED AT 704 EAST OCEAN FRONT (PA2020-350) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Brett Detmers of Studio M of A, Inc. (“Applicant”), on behalf of Balboa Ocean Front, LLC (“Owner”), with respect to property located at 704 East Ocean
Front, and legally described as Lot 11 of Block 10 (“Property”), requesting approval of a
variance, major site development review, and coastal development permit. 2. The Applicant seeks a coastal development permit to demolish an existing duplex and construct a new 2,972-square-foot duplex with an attached 397-square-foot two(2)-car
garage and a two(2)-car carport (“Project”).
3. Additionally, the Applicant requests the following deviations from development standards of the Newport Beach Municipal Code (“NBMC”):
a. Variance: Request for an encroachment of three (3) feet into the required three(3)-
foot right-side yard setback area; and b. Major Site Development Review: Request to increase the allowed height from a base height limit of 24 feet for flat roofs and 29 feet for sloping roofs to a maximum
height limit of 28 feet for flat roofs and 33 feet for sloping roofs.
4. The Property is designated Two Unit Residential (RT) by the General Plan Land Use Element and is located within the Two-Unit Residential (R-2) Zoning District.
5. The Property is located within the coastal zone. The Coastal Land Use Plan designation
is Two Unit Residential Detached (RT-E) (30.0 – 39.9 DU/AC) and is located within the Two-Unit Residential (R-2) Coastal Zone District. 6. A public hearing was held on January 19, 2023, in the Council Chambers located at 100
Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the
hearing was given in accordance with California Government Code Section 54950 et
seq. (“Ralph M. Brown Act”) and Chapters 20.62 and 21.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This Project is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Sections 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3,
because it has no potential to have a significant effect on the environment.
2. Class 3 exempts the construction of limited numbers of new, small structures, including one duplex. The Project is a new duplex located within the Two-Unit Residential (R-2) Zoning District and Two-Unit Residential (R-2) Coastal Zone District.
3. The exceptions to this categorical exemption under Section 15300.2 of the CEQA Guidelines are not applicable. The Project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not
damage scenic resources within a state scenic highway, is not a hazardous waste site,
and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS.
Variance
In accordance with Subsection 20.52.090(F) (Variances – Findings and Decision) of the NBMC, the following findings and facts in support of such findings are set forth for the requested setback deviation:
Finding:
A. There are special or unique circumstances or conditions applicable to the Property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not
apply generally to other properties in the vicinity under an identical zoning classification.
Facts in Support of Finding: 1. The Property is located on the land side of East Ocean Front in a block of three
properties zoned Two-Unit Residential (R-2) with similar style duplex structures
constructed in 1973. The Property is the eastern most Two-Unit Residential (R-2) property of the block and is immediately adjacent to the historic Balboa Inn (circa 1930) which is located in the Commercial Visitor Serving (CV) zone. Across the alley to the north is an eating and drinking establishment at 705 Balboa Boulevard and the Balboa
Theatre at 707 Balboa Boulevard. While the Property is located on East Ocean Front, it
is separated from the beach by the Balboa Pier Municipal Parking Lot, which is approximately 400 feet deep. 2. Under normal circumstances, the required three-foot side setback requirements of a
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Two-Unit Residential (R-2) zoned lot would result in a cumulative six-foot setback area between properties that provides for adequate light and air. However, in this case, the
Balboa Inn was constructed without a side yard setback. Therefore, requiring the
Property to provide the minimum three-foot side setback would result in a narrow three-foot void space between the Property and the Balboa Inn, which is a condition that currently exists.
3. The western wall of the Balboa Inn that is developed with a zero-foot setback runs the
entire length of the shared property line from the East Ocean Front alley to the boardwalk. The wall varies in height, from approximately 27 feet tall near the boardwalk to approximately 36 feet tall near the alley. The wall is void of any windows or articulation which exacerbates the unique void space that lies between these two properties.
4. The existing three-foot void space between the Property and the Balboa Inn results in trespassing and is used for illegal activities which has required attention from the Police Department. Since the Property is within a mixed-use area in close proximity to the beach and Newport Bay, the void space attracts transients and is a safety issue for the
Owner.
Finding:
B. Strict compliance with Title 20 (Planning and Zoning) of the NBMC requirements would
deprive the Property of privileges enjoyed by other properties in the vicinity and under
an identical zoning classification. Facts in Support of Finding:
1. 700 and 702 East Ocean Front enjoy a larger side yard setback due to their adjacency
to abutting properties that also require a three(3)-foot side yard setback. The net effect when combining each properties setback yields a minimum six-foot separation between each property’s structure, which creates the necessary light and air between structures.
2. Since the Balboa Inn was constructed on the side property line without a setback, the
three-foot separation provided by a compliant structure would provide less light and ventilation when compared to typical setback areas between residential structures. If an additional setback is provided to achieve more light and ventilation, the narrowing of the Project would deprive the Owner of floor area enjoyed by other Two-Unit Residential (R-
2) properties in the immediate vicinity. It would also present additional design constraints
since the Property is a narrow 27-foot wide lot. 3. Compliance with the three-foot side setback requirement would create a similar three-foot void space which currently exists. This does not achieve the purpose of the side
setback area, which is intended to provide adequate light and air. Instead, it is an area
which potentially attracts trespassing and illegal activity. 4. Since a three(3)-foot setback creates negative impacts to the Property and a wider setback would deprive the Property of comparable floor area, it is appropriate for the
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Project to be constructed without a right-side setback, especially since it uniquely abuts the Balboa Inn.
Finding:
C. Granting of the variance is necessary for the preservation and enjoyment of substantial property rights of the Applicant.
Facts in Support of Finding: 1. The encroachment into the right-side setback area abutting the Balboa Inn allows the Owner to improve the Property by eliminating an undesirable void space between
buildings.
2. Fact 4 in support of Finding A above is incorporated herein by reference. Finding:
D. Granting of the variance will not constitute a grant of special privilege inconsistent with
the limitations on other properties in the vicinity and in the same zoning district. Fact in Support of Finding:
1. The Property is located within a row of three (3) residential properties zoned as Two-Unit Residential (R-2). The adjacent Balboa Inn and the mixed-use 700 block of East Balboa Boulevard to the north are developed without side setbacks. Therefore, the requested variance for the Property will not be out of character with other properties in
the vicinity or represent a special privilege.
2. The Project does not benefit from additional floor area resulting from the setback encroachment. The Project is 3,369 square feet of gross floor area, which complies with the Code-required maximum of 3,570 square feet.
3. The requested setback deviation is necessary to permit a residence that is comparable to lots in the vicinity and eliminates an undesirable void space. While the Property abuts a zero-setback hotel immediately to the east, 700 and 702 East Ocean Front are more typical residences which abut residential properties. Therefore, the variance is for a
unique situation and does not constitute the granting of special privileges.
Finding:
E. Granting of the variance will not be detrimental to the harmonious and orderly growth of
the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public
convenience, health, interest, safety, or general welfare of persons residing or working
in the neighborhood.
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Facts in Support of Finding:
1. The proposed setback deviation would improve an existing health, safety and general
welfare situation for those residing or working in the neighborhood. Reducing the side yard setback would eliminate an undesirable void space that has a documented history of use by transients, including criminal activity. Additionally, the void space accumulates trash and is difficult to clean due to the narrow access.
2. The construction of a new duplex within the side setback area is not detrimental since the adjacent Balboa Inn is already constructed to the property line. The western wall of the Balboa Inn does not have any windows or access and has no need for the potential light and air a side setback area would provide.
Finding:
F. Granting of the variance will not be in conflict with the intent and purpose of this section, Title 20 (Planning and Zoning) of the NBMC, the General Plan, or any applicable specific
plan.
Facts in Support of Finding: 1. Granting the variance request would not increase the density beyond what is planned
for the area, and will not result in additional traffic, parking, or demand for other services.
2. The variance request provides similar setbacks for the Property consistent with the existing development of the Balboa Inn.
3. The variance request provides a maximum floor area that is consistent with neighboring
lots of similar size, located within the same zoning designation. There is no deviation requested for floor area.
4. The Property is not located within a specific plan area.
Major Site Development Review In accordance with Subsection 20.52.080(F) (Findings and Decision) of the NBMC, the
following findings and facts in support of such findings are set forth for the requested increase
in maximum building height: Finding:
G. The proposed development is allowed within the subject zoning district.
Facts in Support of Finding: 1. The Property is zoned Two-Unit Residential (R-2), which is intended to provide for areas
appropriate for a maximum of two (2) residential dwelling units (i.e., duplexes) located
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on a single legal lot. Notwithstanding the setback exception requested through the Variance, the Project complies with the applicable standards of Title 20 (Planning and
Zoning) of the NBMC.
Finding: H. The proposed development is in compliance with all of the following applicable criteria:
i. Compliance with this section, the General Plan, Title 20 (Planning and Zoning) of
the NBMC, any applicable specific plan, and other applicable criteria and policies
related to the use or structure;
ii. The efficient arrangement of structures on the site and the harmonious relationship
of the structures to one another and to other adjacent developments; and whether
the relationship is based on standards of good design;
iii. The compatibility in terms of bulk, scale, and aesthetic treatment of structures on
the site and adjacent developments and public areas;
iv. The adequacy, efficiency, and safety of pedestrian and vehicular access, including
drive aisles, driveways, and parking and loading spaces;
v. The adequacy and efficiency of landscaping and open space areas and the use of
water efficient plant and irrigation materials; and
vi. The protection of significant views from public right(s)-of-way and compliance with Section 20.30.100 (Public View Protection) of the NBMC.
Facts in Support of Finding: 1. The Property is categorized as RT land use by the General Plan and is located in the Two-Unit Residential (R-2) zoning district, both of which applies to a range of two (2)
family residential dwelling units such as duplexes and townhomes. The Project
demolishes an existing duplex and constructs a new duplex, which is consistent with the General Plan and Zoning categories. 2. The Property is not located within a Specific Plan.
3. The Project is a duplex with an attached two-car garage and two-car carport located on a narrow 27-foot-wide lot. The duplex is proposed to be 33 feet high from established grade, where Title 20 (Planning and Zoning) of the NBMC allows a maximum height of 29 feet with a sloping ridge. The Property is adjacent to the Balboa Inn to the east, a
restaurant and the Balboa Theatre to the north, and two residential duplexes to the west
(700 and 702 East Ocean Front). Since there are commercial properties immediately east and north that are higher than typical residences, the proposed 33-foot-high duplex is compatible with the surrounding land uses and acts as a harmonious transition from the Balboa Inn to the residences at 700 and 702 East Ocean Front.
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4. The Project includes a third floor which is stepped back 20 feet from the front setback
line, where Title 20 (Planning and Zoning) of the NBMC only requires a 15-foot step
back. This further reduces the bulk and scale of the structure on the third level and improves the aesthetic for pedestrians on the boardwalk. 5. The Project complies with the required five (5)-foot front setback abutting the East
Ocean Front boardwalk, which attracts many pedestrians and bicyclists. The Project
does not negatively affect the pedestrian or bicycle access on the boardwalk. Additionally, garage access is provided through the existing East Ocean Front alley at the rear of the property consistent with City standards. There are no access issues expected with the Project.
6. As conditioned, a landscape plan shall be provided during plan check. Also conditioned is the requirement of drought-tolerant landscaping, and prohibition of invasive species. Prior to the issuance of building permits, the final landscape plans will be reviewed to verify invasive species are not planted.
7. The Property is in a prominent location abutting the boardwalk and is very visible from boardwalk, municipal parking lot, and beach. However, there are no public views of the beach from Balboa Boulevard, as there are tall commercial buildings which abut the Property to the north. Additionally, there are no public views for pedestrians who are
viewing the Property from the beach or boardwalk. Although the additional height results
in additional massing, the Applicant has provided third floor step backs beyond what is required by Title 20 (Planning and Zoning) of the NBMC to reduce the visual impact of the Project. Finding: I. Not detrimental to the harmonious and orderly growth of the City, nor endangers,
jeopardizes, or otherwise constitutes a hazard to the public convenience, health,
interest, safety, or general welfare of persons residing or working in the neighborhood
of the proposed development. Facts in Support of Finding:
1. The additional four feet of building height is not detrimental as the portion that exceeds the height limit is designed to be stepped back beyond what Title 20 (Planning and Zoning) of the NBMC requires. The bulk and mass of the structure are greatly reduced on the third floor and does not disturb any existing or potential public views. The third
floor is designed with a 20-foot step back from the front property line and 15-foot step
back from the rear property line, which provides a gradual transition to the commercial buildings across the alley on East Balboa Boulevard. 2. Facts 3, 4, 5, and 7 of Finding H are hereby incorporated by reference.
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Site Development Review for Height Increase
In accordance with Subsection 20.30.060(C)(3) (Required Findings) of the NBMC, the Planning
Commission may approve a site development review to allow an increase in the height of a structure above the base height only after first making all of the following findings in addition to the findings required for the discretionary permit application:
Finding:
J. The Applicant is providing additional project amenities beyond those that are otherwise
required. Examples of project amenities include, but are not limited to: i. Additional landscaped open space;
ii. Increased setback and open areas;
iii. Enhancement and protection of public views. Facts in Support of Finding:
1. Facts 4 and 6 of Finding H are hereby incorporated by reference.
2. As conditioned, the Applicant is providing additional project amenities in the form of a $30,000 contribution to the City’s Public Art fund.
Finding:
K. The architectural design of the Project provides visual interest through the use of light
and shadow, recessed planes, vertical elements, and varied roof planes.
Facts in Support of Finding:
1. The Project includes a contemporary design with recessed planes and open areas which comply with the minimum open space requirement. The Project includes a stonewall siding on the first floor and chimney, and shiplap siding on the second and third floor.
The different finishes provide visual interest through design.
2. In addition to providing third floor step backs beyond what is required by Title 20 (Planning and Zoning) of the NBMC, the third floor has been designed with hip roofs which further reduce the roof massing. The hip roofs shed down towards the 702 East
Oceanfront to the west as well as the East Ocean Front boardwalk.
Finding: L. The increased height will not result in undesirable or abrupt scale changes or
relationships being created between the proposed structure(s) and existing adjacent
developments or public spaces. Where appropriate, the proposed structure(s) provides
a gradual transition to taller or shorter structures on abutting properties.
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Facts in Support of Finding:
1. The Balboa Inn, which is located east of the Property, includes multiple roof planes at
various heights. The portion of the hotel adjacent of the Property is approximately 26 feet four inches tall in the front of the lot adjacent to the boardwalk. The hotel increases in height to 36 feet 9 inches tall within the rear 30 feet of the lot. Additionally, there is a tower element which is approximately 75 feet tall located at the rear of the hotel.
2. The adjacent residence at 702 East Ocean Front is approximately 27 feet 3 inches tall at the highest peak of the roof. A large multi-family residential development across Washington Street at 600 East Ocean Front is approximately 38 feet tall. The Balboa Theatre, located across the alley at 707 East Balboa Boulevard, is approximately 33 feet
tall.
3. Although the Project is proposed to be 33 feet in high at the tallest point, the front 20 feet of the building is an open roof deck that is approximately 25 feet tall. The Project has a building height that is between the taller hotel to the east and a lower residence
immediately to the west and serves as a gradual transition of height and scale between
adjacent structures. Finding:
M. The structure will have no more floor area than could have been achieved without the
approval of the height increase. Facts in Support of Finding:
1. Fact 3 of Finding F is hereby incorporated by reference.
2. The height increase allows for additional ceiling height on the third floor. However, the additional height does not allow additional floor area than could have been achieved without the approval of the height increase.
Coastal Development Permit In accordance with Subsection 21.52.015(F) (Coastal Development Permits - Findings and Decision) of the NBMC, the following findings and facts in support of such findings as set forth:
Finding:
M. Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1. The deviations to the right-side setback and building height allows for a development that is compatible in design, bulk, and scale of the surrounding mixture of development,
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which includes the Balboa Inn, commercial uses on East Balboa Boulevard, and a large multi-family residential development at 600 East Ocean Front.
2. The deviations comply with Subsection 21.52.090(2) (Relief from Implementation Plan Development Standards, Variances) of the NBMC, which allows for waiver or modification of certain standards of Title 21 (Local Coastal Program Implementation Plan) because of special circumstances including location. The requested
encroachment into the right-side setback is appropriate as the Property is adjacent to a
large hotel in a busy commercial area near the beach, which attracts transients into the existing setback area. The requested building height is not an abrupt change in scale between adjacent structures, but instead serves as a gradual decrease between the taller hotel to the east and the lower residences to the west.
3. Coastal hazards are not expected to affect the Property, as it is approximately 580 feet from the mean high tide line. Additionally, the Property is separated from the beach from the Balboa Pier Municipal Parking Lot, which is approximately 400 feet deep. The proposed finished floor of the Project is 14.81 feet North American Vertical Datum 1988
(NAVD 88), which exceeds the required minimum of 9 feet NAVD 88. Since there is a
large distance from hazard areas and the Project is built to a relatively high elevation, it is reasonably safe for the economic life of the structure. 4. With the exception of the variance request, the Project complies with applicable
residential development standards including, but not limited to, front and rear setbacks,
floor area, third floor step backs, flat roof height and open space: a. A three-foot setback is required from both side property lines and a five-foot setback is required from the front and rear property line. The Project provides a
three-foot side setback along the left side property line, as well as five-foot
setbacks along both the front and rear property lines. b. The maximum floor area for the residence, including the garage, is 3,570 square feet. The Project is 2,972 square feet with an attached 397-square-foot garage,
which results in a total floor area of 3,369 square feet.
c. A minimum third floor additional step back of 15 feet from the front and rear setback lines are required and the Project provides a 20-foot step back from the front and a 15-foot step back in the rear.
d. A minimum of 268 square feet of open volume area is required and the Project provides 404 square feet of open volume area. 5. The Property is located in an area known for the potential of seismic activity and
liquefaction and is required to comply with the California Building Code (“CBC”) and
City’s Building Division standards and policies. Geotechnical investigations specifically addressing liquefaction are required to be reviewed and approved prior to the issuance of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for
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compliance with approved investigations and CBC prior to building permit issuance.
6. The project site is located approximately 400 feet north of a public beach. Additionally,
the site is approximately 650 feet from the Balboa Pier and 475 feet from Peninsula Park, which are designated by the CLUP as public view points. The site is visible from various locations along the public boardwalk and from the beach, but does not further disrupt public views of the ocean from East Balboa Boulevard since there is existing
development in front of the beach. There are no existing public views through the site to
Peninsula Park, the Balboa Pier, or the beach. Existing development on the south side of East Balboa Boulevard blocks views from the street and alley. The nearest elevated viewpoint is from Promontory Point, which is over 4,000 feet away from the subject property. When viewed from distant viewing areas such as this, the additional height and
setbacks of the proposed duplex has an insignificant impact to the visual quality of the
Coastal Zone, as it is located adjacent to structures which are taller or of similar height and is not out of character from the overall urban development found on the Balboa Peninsula. Aside from the requested setback deviation and height increase, the project complies with all applicable LCP development standards and maintains a building envelope
consistent with the existing neighborhood pattern of development. Therefore, the project
does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to public views. Finding:
N. Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea or
shoreline of any body of water located within the coastal zone.
Fact in Support of Finding:
The Property does not currently provide nor inhibit public coastal access. The Property is located in close proximity to public beach access points, as designated by the CLUP, at the street ends of Adams Street, Palm Street, Washington Street, and the pedestrian
access area from the parking lot to Peninsula Park. The Property also abuts the Ocean
Front boardwalk, which is identified as lateral access by the CLUP. The Project does not encroach onto the boardwalk and complies with the required five (5)-foot front setback. The Project consists of the demolition of an existing duplex and the construction of a new duplex. Access to the beach remains available through the multiple street ends
and municipal parking lot. Therefore, the Project will not impact public access to local
coastal resources. Local Coastal Program Findings for Height Increase
In accordance with Section 21.30.60 (Height Limits and Exceptions) of the NBMC, the Planning
Commission may approve a coastal development permit to allow an increase in the height of a structure above the base height limit only after making all of the following findings:
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Finding:
O. The Project is sited and designed to protect public views to and along the ocean and
scenic coastal areas. Facts in Support of Finding:
1. Facts 3, 4, and 5 in support of Finding H above is incorporated herein by reference.
2. Fact 1 in support of Finding I above is incorporated herein by reference. 3. Fact 6 of Finding M above is incorporated herein by reference.
4. The Project is located on the landward side of the East Ocean Front boardwalk and does not disturb public views for pedestrians when standing on the boardwalk. Finding:
P. The Project is sited and designed to minimize visual impacts and be visually compatible
with the character of surrounding areas. Facts in Support of Finding:
1. Fact 4 of Finding H above is incorporated herein by reference. 2. Fact 1 of Finding I above is incorporated herein by reference.
3. Fact 3 of Finding L above is incorporated herein by reference.
4. Facts 2 and 4 of Finding M above is incorporated herein by reference. Finding:
Q. Where feasible, the Project will restore and enhance visual quality in visually degraded
areas. Facts in Support of Finding:
The Property is not in a visually degraded area. However, the Project is an improvement to the existing residence which was constructed in 1973. Additionally, the Project will remove a three-foot void space between the existing residence and the abutting hotel which attracts transients and documented illegal activity. The elimination of the void
space and construction of the Project, which serves as a gradual transition from the
hotel to the adjacent residences, will improve the overall aesthetics of the area for visitors on the boardwalk.
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Coastal Variance
In accordance with Section 21.52.090 (Relief from Implementation Plan Development
Standard) of the NBMC, the Planning Commission may approve a waiver to a development standard (setback encroachment) of the Implementation Plan only after making all of the following findings:
Finding:
R. The Planning Commission has considered the following:
i. Whether or not the development is consistent with the certified Local Coastal
Program to the maximum extent feasible; and
ii. Whether or not there are feasible alternatives that would provide greater consistency
with the certified Local Coastal Program and/or that are more protective of coastal resources.
Facts in Support of Finding: 1. Facts 3 and 4 in support of Finding A above are incorporated herein by reference.
2. Facts in support of Finding B above are incorporated herein by reference.
3. Fact in support of Finding C above is incorporated herein by reference. 4. An alternative would be to construct the residence with a compliant three-foot right-
side setback. However, the Property is adjacent to a hotel that is constructed on the
property line that is void of any windows or articulation, which exacerbates a unique void space that lies between the two properties. Since there is no opportunity to create a setback configuration that is typical between two residential properties, a three-foot setback abutting the hotel structure creates a narrow void space without
achieving the intended light and air between structures.
5. Another alternative would be to construct the residence with a larger right-side setback in order to provide the appropriate light and air between the Project and the adjacent hotel. However, the lot is 27 feet wide, which is even more narrow than the
typical 30-foot wide lots located throughout the Balboa Peninsula. An increased side
setback would decrease the Project’s buildable area and make it difficult to create practical living spaces. Finding:
S. The granting of the variance is necessary due to special circumstances applicable to the
property, including location, shape, size, surroundings, topography, and/or other
physical features, the strict application of the development standards otherwise applicable to the property denies the property owner privileges enjoyed by other property
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owners in the vicinity and in the same coastal zoning district.
Facts in Support of Finding:
Facts in Support of Finding A above are incorporated herein by reference. Finding:
T. The variance complies with the findings required to approve a coastal development
permit in Section 21.52.015(F) (Coastal Development Permits) of the NBMC. Fact in Support of Finding:
Facts in Support of Findings M and N above are incorporated herein by reference. Finding:
U. The variance will not result in development that blocks or significantly impedes public
access to and along the sea or shoreline and to coastal parks, trails, or coastal bluffs. Fact in Support of Finding:
1. The Property does not currently provide access to the sea or shoreline, nor does it
provide access to any coastal parks, trails, or coastal bluffs. 2. Fact in support of Finding N above is incorporated herein by reference.
Finding:
V. The variance will not result in development that blocks or significantly impairs public
views to and along the sea or shoreline or to coastal bluffs and other scenic coastal areas.
Facts in Support of Finding: Fact 6 in support of Finding M above is incorporated herein by reference.
Finding:
W. The variance will not result in development that has an adverse effect, either individually
or cumulatively, on coastal resources, including wetlands, sensitive habitat, vegetation or wildlife species.
Fact in Support of Finding: The Property is located approximately 400 feet from the beach and is separated from the beach by a large parking lot. The Project consists of the demolition of an existing
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duplex and construction of a new duplex. There are no other coastal resources on the property nor are there any in the immediate area that could be affected by its
redevelopment.
Finding: X. The granting of the variance will not be contrary to, or in conflict with, the purpose of this
Implementation Plan, nor to the applicable policies of the Local Coastal Program.
Fact in Support of Finding: Facts in Support of Finding M above are incorporated herein by reference.
SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has
no potential to have a significant effect on the environment.
2. The Planning Commission of the City of Newport Beach hereby approves a Variance, Site Development Review, and Coastal Development Permit, subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated herein by reference.
3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 (Planning and Zoning) and Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code. Final action taken by the
City may be appealed to the Coastal Commission in compliance with Section 21.64.035
(Appeal to the Coastal Commission) of the NBMC and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the California Public Resources Code.
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PASSED, APPROVED, AND ADOPTED THIS 19TH DAY OF JANUARY, 2023.
AYES: Ellmore, Harris, Klaustermeier, and Lowrey
NOES: Rosene ABSTAIN: None
ABSENT: None
BY:_________________________
Curtis Ellmore, Chairman BY:_________________________
Sarah Klaustermeier, Secretary
Attachment(s): Exhibit A – Conditions of Approval
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EXHIBIT “A”
CONDITIONS OF APPROVAL
(Project-specific conditions are in italics)
Planning Division
1. The development shall be in substantial conformance with the approved site plan, floor
plans building elevations, and renderings stamped and dated with the date of this approval
(except as modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval.
3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit.
4. The Variance, Major Site Development Review, and Coastal Development Permit shall
expire unless exercised within 24 months from the date of approval as specified in Sections
20.54.060 and 21.54.060 of the Newport Beach Municipal Code, unless an extension is
otherwise granted by the Community Development Director.
5. This Variance, Major Site Development Review, and Coastal Development Permit may
be modified or revoked by the Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the Property is operated or maintained so as to
constitute a public nuisance.
6. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits.
7. Prior to the issuance of a building permit, the Owner shall make a payment to the
Newport Beach Arts Foundation fund in the amount of $30,000.
8. Prior to the issuance of a building permit, the Applicant shall submit a landscape and
irrigation plan prepared by a licensed landscape architect. These plans shall incorporate
drought tolerant and noninvasive plantings and water efficient irrigation practices, and
the plans shall be approved by the Planning Division. 9. The Applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA).
In compliance with the MBTA, grading, brush removal, building demolition, tree
trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak
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nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds pursuant to MBTA:
A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no
longer observed. When the nest is no longer active, construction activity can continue
in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and
to determine when it is safe to commence construction activities. If an active nest is
found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 10. Best Management Practices (BMPs) and Good Housekeeping Practices (GHPs) shall
be implemented prior to and throughout the duration of construction activity as
designated in the Construction Erosion Control Plan. 11. The discharge of any hazardous materials into storm sewer systems or receiving waters shall be prohibited. Machinery and equipment shall be maintained and washed in
confined areas specifically designed to control runoff. A designated fueling and vehicle
maintenance area with appropriate berms and protection to prevent spillage shall be provided as far away from storm drain systems or receiving waters as possible. 12. Debris from demolition shall be removed from work areas each day and removed from
the project site within 24 hours of the completion of the Project. Stock piles and
construction materials shall be covered, enclosed on all sites, not stored in contact with the soil, and located as far away as possible from drain inlets and any waterway. 13. Trash and debris shall be disposed in proper trash and recycling receptacles at the end
of each construction day. Solid waste, including excess concrete, shall be disposed in
adequate disposal facilities at a legal disposal site or recycled at a recycling facility. 14. Revisions to the approved plans may require an amendment to this Coastal Development Permit or the processing of a new coastal development permit.
15. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 16. The Applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Coastal
Development Permit. 17. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and
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growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be
kept operable, including adjustments, replacements, repairs, and cleaning as part of
regular maintenance. 18. Prior to the issuance of a building permit, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning
Division.
19. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the Director of Community Development, the illumination creates an unacceptable negative
impact on surrounding land uses or environmental resources. The Director may order
the dimming of light sources or other remediation upon finding that the site is excessively illuminated. 20. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 and other applicable noise control requirements of the Newport Beach Municipal
Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher:
Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM
Location Interior Exterior Interior Exterior
Residential Property 45dBA 55dBA 40dBA 50dBA
Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA
Mixed Use Property 45dBA 60dBA 45dBA 50dBA
Commercial Property N/A 65dBA N/A 60dBA
21. To the fullest extent permitted by law, Applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Day Residence including, but not limited to, a Variance, Site Development Review, and Coastal Development Permit (PA2020-350). This indemnification shall
include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Applicant, City, and/or the parties initiating or bringing such proceeding. The Applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions
set forth in this condition. The Applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.
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Fire Department
22. Dwelling units shall be protected by a fire sprinkler system (NFPA 13D).
23. A minimum of one three-foot wide accessway shall be provided from the boardwalk to the rear of the property.
24. Single or multiple-station smoke alarms shall be installed and maintained in Groups R-
3 regardless of occupant load at all of the following locations: a. On the ceiling or wall outside of each separate sleeping area in the immediate vicinity of bedrooms.
b. In each room used for sleeping purposes.
c. In each story within a dwelling unit, including basements but not including crawl spaces and uninhabitable attics. In dwellings or dwelling units with split levels and without an intervening door between the adjacent levels, a smoke alarm installed on the upper level shall suffice for the adjacent lower level provided that the lower
level is less than one full story below the upper level. Building Division 25. The Applicant is required to obtain all applicable permits from the City’s Building Division
and Fire Department. The construction plans must comply with the most recent, City-
adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. 26. The Applicant shall employ the following best available control measures (“BACMs”) to
reduce construction-related air quality impacts:
Dust Control • Water all active construction areas at least twice daily. • Cover all haul trucks or maintain at least two feet of freeboard.
• Pave or apply water four times daily to all unpaved parking or staging areas.
• Sweep or wash any site access points within two hours of any visible dirt deposits on any public roadway. • Cover or water twice daily any on-site stockpiles of debris, dirt or other dusty material.
• Suspend all operations on any unpaved surface if winds exceed 25 mph.
Emissions • Require 90 day low-NOx tune-ups for off road equipment. • Limit allowable idling to 30 minutes for trucks and heavy equipment.
Off-Site Impacts • Encourage carpooling for construction workers. • Limit lane closures to off-peak travel periods. • Park construction vehicles off traveled roadways.
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• Wet down or cover dirt hauled off-site. • Sweep access points daily.
• Encourage receipt of materials during non-peak traffic hours.
• Sandbag construction sites for erosion control. Fill Placement • The number and type of equipment for dirt pushing will be limited on any day to
ensure that SCAQMD significance thresholds are not exceeded.
• Maintain and utilize a continuous water application system during earth placement and compaction to achieve a 10 percent soil moisture content in the top six (6) inch surface layer, subject to review/discretion of the geotechnical engineer.
27. Rooms used for sleeping shall have emergency egress open into the courtyard. 28. Mechanical equipment shall be accessed through the unit they serve.
29. A fire-rated wall at the property line shall go from the foundation to the roof sheathing
and project to the furthest portion of the building from along the property line. 30. Any chimney shall be a minimum of two feet clear from the adjacent property line.
Public Works Department
32. All improvements shall be constructed as required by Ordinance and the Public Works Department.
33. Each unit shall be served by its individual water meter and sewer lateral and cleanout.
Each water meter and sewer cleanout shall be installed with a traffic-grade box and cover. 34. No above ground improvements shall be permitted within the 5-foot alley setback area.
35. There shall be a minimum six (6) inches of rise from the alley flow line to the carport
area closest to the alley.
36. Any damage to the decorative East Ocean Front walkway shall require extensive
reconstruction of the walkway area. The extent of the reconstruction is at the discretion
of the Public Works Inspector. 37. An encroachment permit shall be required for all work activities within the public right-of-way.
38. In case of damage done to public improvements surrounding the development site by the private construction, additional reconstruction within the public right-of-way could be required at the discretion of the Public Works Inspector.
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