HomeMy WebLinkAboutSS2 - Modification Permit Standards of ReviewCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Study Session Agenda Item No. 2
April 22, 2003
TO: CITY COUNCIL
FROM: Chandra Slaven, Assistant Planner
(949) 644 -3231 cslaven @city.newport- beach.ca.us
SUBJECT: Modification Permit Standards of Review
ISSUE:
Should the City Council consider revisions to Chapter 20.93 (Modification Permits) of Title
20 to limit the level of relief allowed and /or to establish more definitive standards of
review?
RECOMMENDATION:
Provide guidance to staff on potential revisions to modification permit standards of review,
if any.
DISCUSSION:
Introduction:
There have been several instances where City Council members, staff, and the public
have voiced their concern over the perceived latitude which staff has in their review of
modification permit applications. These concerns have been expressed in a number of
ways including the recent General Plan visioning process, EQAC recommendations
regarding "mansionization" and City Council direction to monitor the mansionization issue.
The latest concern was expressed at the City Council hearing of March 11, 2003, where a
modification permit decision was called up for review. Some members of the City Council
thought that the Modification Committee was not critical or strict enough in their decision.
Some residents are concerned that too much relief from development regulations or too
many modifications are approved.
Background:
The modification permit process was established in 1968 "for the purpose of passing
upon requests for reasonable use of property not permissible under existing regulations."
The Modifications Committee, consisting of representatives of the Planning, Building, and
Public Works Departments, was given the authority to issue modification permits. From
1998 to 2002, the Modification Committee processed an average of 153 permits a year.
Analysis:
Numerical Limitations on Modification Permits:
Staff has come to believe that some of the public's concerns regarding mansionization
and the perception that the City approves many variances are related to the latitude in our
modification permit process. Modifications are not variances in the Newport Beach
zoning system, and do not require the same findings as variances. However, Newport
Beach's modifications do allow a level of relief from zoning standards (e.g., 100 percent
reduction in setback) that would require a variance in other cities. For example, the
City of Pasadena grants "minor variances," but requires a full variance when applications
for deviation from the development standard exceed 25 percent.
Modification permits were originally created to give the City a way to make "adjustments"
from Zoning Code standards for our large number of non - conforming lots. When the
Zoning Code was first established and updated thereafter, a large number of properties
within the older sections of the City became legally non - conforming by contempory
development standards. By allowing some flexibility within the Zoning Code's
implementation, the modification permit has allowed homeowners to make structural
improvements to their existing non - conforming buildings. The current trend toward
construction and renovations that maximize development has led to a slow and steady
transition in the type and magnitude of adjustments requested through the modification
process.
One way to respond to this situation is that the City could develop numerical or
percentage limitations on the amount of variation to development standards that may be
,granted through a modification permit, such as encroachment into required setbacks,
fence height limits, and location of accessory buildings on a site. This approach would
change some modification requests to variance applications, with more strict findings for
approval. It might also lead people to design houses that are more compliant with the
Zoning Code, especially if there aren't unusual physical characteristics of the property
that support the findings for variances.
However, the addition of numerical limitations introduces more rigidity and reduces the
intended flexibility given to the Modifications Committee through the Zoning Code.
Furthermore, there would be a reduction in the amount of adjustments that would be able
to occur as part of a negotiation process with the applicant. The numerical limitations
would not allow for a neighbor's concerns to be as easily addressed in reaching a middle
ground between the applicant and the adjoining neighbor. Also, an established level of
Modification Pennit Standards of Review (PA2003 -080)
April 22, 2003
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encroachment able to be approved at the Modification Committee level would still not
require that additional justification of the encroachment be present, unless changes to the
findings for approval are also made.
Additionally, the application of strict limits on setback relief may not be practical given the
many and unique provisions of our Zoning Code not typically found in other communities.
Some of these anomalies are:
• Front yard setbacks in many areas are established on Zoning Districting Maps as
opposed to in the Zoning Code text. This system establishes setbacks, which differ
from lot to lot, or block to block, even when the lots are in all other ways identical. This
results in greater or lesser flexibility of design based solely on the particular property in
question and not the typical condition in a neighborhood. Because of these differing
setbacks, the same proposed encroachment of 1 foot for an architectural feature
would be 20% when the front yard is 5 feet, and only 7% if the front yard is 15 feet
(this is a common occurrence in many areas like the Balboa Peninsula, Balboa Island
and Corona del Mar).
• Front yard setbacks (with their greater limitations on use) are also defined on the
Districting Maps for yards, which would otherwise be considered rear yards in the
Zoning Code. This is common for lots on the bayfront, and for lots with two street
frontages. This creates practical difficulties for property owners wishing to install
common rear yard amenities, such as pools, spas, barbeques, etc. Since the height
limit in the designated front yards is 3 feet, a minimum required pool security fence of
5 feet would require an adjustment of 67 %.
• Many lots in the older parts of town were "realigned" decades ago through the
recordation of deeds with the County Recorder. These were done without any
approval of the City, or the alteration of setbacks on the Districting Maps. For these
lots, setbacks then revert to those in the text of the Zoning Code. Because of this, we
have many cases where a typical front setback in a neighborhood might be 5 or 10
feet, but the realigned lot would have a 20 -foot front setback, as that is the "default"
contained in the Zoning Code text. Once again, a proposed encroachment might be a
very high percentage of 50 or 75% just to allow for equity with the conditions in the
neighborhood.
Required Findings within the Standards of Review:
Only one finding is required for a modification permit:
In order to grant relief to an applicant through a modification permit, the
Modifications Committee shall find that the establishment, maintenance or
operation of the use of the property or building will not, under the
circumstances of the particular case, be detrimental to the health, safety,
peace, comfort and general welfare of persons residing or working in the
Modification Permit Standards of Review (PA2003 -080)
April 22, 2003
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neighborhood of such proposed use or be detrimental or injurious to
property and improvements in the neighborhood or the general welfare of
the City, and further that the proposed modification is consistent with the
legislative intent of this code.
In applying this finding, the Modification Committee looks for evidence that harm will
occur from the modification. Without such evidence, it is difficult for the Modifications
Committee to find grounds to deny the permit.
In some communities that allow minor variances /modifications, the findings required to
grant a minor variance are the same as those for a regular variance. In these
communities, the only advantage is that the variance /modification is usually processed at
a level below the Planning Commission, such as a Zoning Administrator or other Board of
Adjustment. In order to approve a variance, state law requires the following findings:
1. That because of special circumstances applicable to the property, including size,
shape, topography, location or surroundings, the strict application of this Code
deprives such property of privileges enjoyed by other properties in the vicinity and
under identical zoning classification.
2. That the granting of the application is necessary for the preservation and
enjoyment of substantial property rights of the applicant.
3. That the granting of the application is consistent with the purposes of this Code
and will not constitute a grant of special privilege inconsistent with the limitations
on other properties in the vicinity and in the same zoning district.
4. That the granting of such application will not, under the circumstances of the
particular case, materially affect adversely the health or safety of persons residing
or working in the neighborhood of the property of the applicant and will not under
the circumstances of the particular case be materially detrimental to the public
welfare or injurious to property or improvements in the neighborhood.
However, some communities establish findings or criteria that are less stringent than
those for a variance. The City of Redondo Beach, for example, grants modifications
subject to the following criteria:
1. The location of buildings and structures shall respect the natural terrain of the
site in order to minimize grading and to preserve existing mature trees, where
feasible.
2. The building or structures shall be harmonious and consistent within the
proposed architectural style regarding roofing, materials, windows, doors,
openings, textures, colors, and exterior treatment.
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April 22, 2003
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3. The overall design of the building or structures shall be integrated and
compatible with the scale of the overall neighborhood and shall strive to be
balanced and in harmony with the scale and bulk of surrounding properties.
If Newport Beach were to establish stricter findings for approval of a Modification, the
burden of proof to justify approval of a Modification would require the applicant to produce
the evidence that the application has met the findings, rather than the current practice of
neighbors or the Modification Committee establishing that approval would be harmful to
the neighborhood. As with adding numerical limits, more strict findings could result in
fewer modification requests and more houses designed to meet code requirements.
Staff believes that findings can be developed that require the applicant to make the case
that the modification is necessary to resolve a minor property development problem while
at the same time maintaining a process that grants relief from the strict literal
interpretation and enforcement of Zoning Code regulations. These can be founded on the
presence of practical difficulties, unnecessary hardships or results inconsistent with the
general purpose of Zoning Code. It is the opinion of staff that this would be the more
effective approach to resolve the currently expressed concerns related to the Modification
process, while still maintaining the original intent to allow for reasonable use of property,
including reasonable continued use of non - conforming buildings.
Environmental Review:
Feasibility or planning studies by staff are statutorily exempt pursuant to Section 15262
of the Implementing Guidelines for the California Environmental Quality Act.
Public Notice:
Notice is not required for a request to discuss a potential Zoning Code Amendment.
Should an amendment be initiated, it will require noticed public hearings at the Planning
Commission and City Council.
CONCLUSION:
Should the Council conclude that revisions to the Modification Permit procedures are
desirable, staff will return at a later date with a detailed report and specific
recommendations, along with a Resolution of Intent to amend Chapter 20.93 of the
Newport Beach Municipal Code.
Submitted by:
PATRICIA L. TEMPLE
PPlanning Director —
�' /�e/L -L � ,,f�12 0_j
Prepared by:
CHANDRA SLAVEN
% Asssistant Planner
Modification Permit Standards of Review (PA2003 -080)
Apd122,2003
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