HomeMy WebLinkAbout12 - PA2003-080 - Modification Permit Standards of ReviewCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
November 25, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patrick J. Alford, Senior Planner
(949) 644 -3235
palford(&city. newport-beach.ca.us
SUBJECT: Code Amendment No. 2003 -003 — Amendment to Chapter 20.93 to revise
the Modification Permit's standards of review. (PA 2003 -080)
ISSUES:
Should the City amend Title 20 of the Newport Beach Municipal Code to revise the
Modification Permit's standards of review?
RECOMMENDATION:
Conduct public hearing; introduce Ordinance No. 2003- (Exhibit A) approving Code
Amendment No. 2003 -003 and pass to second reading on December 9, 2003.
DISCUSSION:
Back - round:
During the April 22, 2003 City Council study session on the modification process, discussion
centered on the question of whether too much latitude is given in the processing of modification
permits. Some of the concerns expressed by Council members were that modification permits
are slowly re- shaping the character of neighborhoods and that setbacks are sometimes reduced
or eliminated without due regard to maintaining adequate public safety access. Some Council
members believe these standards are being abused when applicants take advantage of the
somewhat lenient nature of the modification permit requirements by requesting relief from the
City's development regulations although no hardship exists.
On June 24, 2003, the City Council initiated a code amendment that would revise the required
findings to incorporate three factors: 1) practical difficulties and hardships; 2) neighborhood
compatibility; and 3) public safety.
Modification Permit Amendment
November 25, 2003
Page 2
Analysis
Modification permits were established with the intent of providing relief when the strict literal
interpretation and enforcement of property development regulations would be inconsistent with
the general purpose of the Zoning Code. Currently, only one finding is required to approve 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 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.
If the proposed amendment is adopted, three findings would be required to approve a
modification permit:
The granting of the application is necessary due to the physical constraints of the
property, such as legal nonconforming structures, size, shape, topography or lot
orientation, and that the strict application of the Zoning Code results in hardships that
are inconsistent with the purpose and intent of the Zoning Code.
2. The requested modification will be compatible with existing development in the
neighborhood.
3. 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 practical difficulty finding (Finding No. 1) is intended to address the Council's concern of
abuse of the City's development standards pertaining to setback limitations and building
design /configuration. With this finding, the applicant would be required to clearly demonstrate
facts that create the need to deviate from the Code. The Modifications Committee would be
directed to consider the physical aspects of the property and/or location of existing structures
that do not generally apply to other properties in the immediate vicinity. The neighborhood
compatibility finding (Finding No. 2) is intended to address concerns regarding neighborhood
preservation. The review of modification permits would have to take into consideration the direct
impact of the proposed modification on the qualities that distinguish the neighborhood from
other areas within the City. However, the Modifications Committee may only consider such
characteristics as they relate to direct impact of the proposed modification on the
neighborhood's character and not development rights that would otherwise be enjoyed without
the Modification Permit. The public safety finding (Finding No. 3) is intended to address
concerns relating to public safety and impacts to adjacent property. The Modifications
Committee would be directed to consider factors such as the potential adverse impacts on
persons or property in the vicinity, access for public safety personnel, vehicular sight distances,
Modification Permit Amendment
November 25, 2003
Page 3
and impacts to privacy. Guidelines for addressing these findings are provided in proposed
Section 20.93.035 (B).
The proposed required findings would only be for those modifications assigned to the
Modifications Committee by proposed Section 20.93.015 (B). Applicable findings for lot line
adjustments, tentative parcel maps, condominium conversions, and similar applications
assigned to the Modifications Committee would not be changed.
Recommendation of the Planning Commission:
On November 6, 2003, the Planning Commission voted 4 -3 to recommend that the City
Council adopt the proposed code amendment. The commissioners voting in favor of the
proposed amendment cited the need to tighten up the modification permit process, to provide
a stronger basis for actions on modification permit applications, and to provide more direction
to staff. The commissioners voting against the proposed amendment stated that the
modification permit process has worked well since 1968 and that proposed changes would be
too restrictive and could result in unintended consequences.
Environmental Review:
The project has been reviewed pursuant to the California Environmental Quality Act and has
been determined to be categorically exempt under Class 5, minor alterations in land use
limitations.
Public Notice:
Public notice for the November 25, 2003 hearing was posted in the local Daily Pilot newspaper.
In addition, public hearing notices were mailed to approximately 200 individuals on the Building
Departments User Group mailing list, homeowners associations, and the chambers of
commerce. Public hearing notices were also posted at City Hall in various locations.
Prepared by:
Patrick J. Alford
Senior Planner
Attachments:
Submitted by:
POLM'n
Patricia L. Temple
Planning Director
1. Draft ordinance with proposed revisions to Chapter 20.93 (Exhibit A).
2. November 6, 2003 Planning Commission staff report.
3. Draft November 6, 2003 Planning Commission minutes.
4. Modifications Committee Review of Actions July — October 2003
ATTACHMENT
Draft Ordinance with proposed revisions to Chapter 20.93 (Exhibit A)
A
ORDINANCE 2003-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH APPROVING AN AMENDMENT TITLE
20 OF THE NEWPORT BEACH MUNICIPAL CODE
RELATING TO MODIFICATION PERMIT PROCEDURES
[CODE AMENDMENT 2003 -0031
WHEREAS, on June 24, 2003, the City Council of the City of Newport Beach
initiated an amendment to Title 20 of the Newport Beach Municipal Code to revise the
findings required to approve a modification permit; and
WHEREAS, on November 6, 2003, the Planning Commission of the City of Newport
Beach held a duly noticed public hearing regarding this code amendment; and
WHEREAS, the Planning Commission voted 4 to 3 to recommend approval of this
code amendment to the City Council; and
WHEREAS, on November 25, 2003, the City Council of the City of Newport Beach
held a duly noticed public hearing regarding this code amendment; and
WHEREAS, pursuant to the California Environmental Quality Act, it has been
determined that the proposed amendment is categorically exempt under Class 5, minor
alterations in land use limitations.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1: Title 20 of the Newport Beach Municipal Code shall be amended to
revise Chapter 20.93 as provided in Exhibit "A."
SECTION 2: The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. This Ordinance shall be published once in the official newspaper of the
City, and the same shall become effective thirty (30) days after the date of its adoption.
1
�J
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on November 25, 2003, and adopted on the 9th day of December
2003, by the following vote, to wit:
AYES, COUNCIL MEMBERS
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBERS
MAYOR
ATTEST:
CITY CLERK
Qi
CHAPTER 20.93
MODIFICATION PERMITS
Sections:
20.93.010 Purpose
20.93.N5 Medifieaieia PeRni, g eqi+isite !a Oche s
Page 20.93 -1
Modification Permits
Modifications Committee
Application for a Modification Permit
Notice and Public Hearings
Required Findings
Duties of the Modifications Committee
Conditions of Approval
Effective Date
Expiration, Time Extension, Violation, Discontinuance, and Revocation
Amendments and New Applications
Rights of Appeal and Review
20.93.010 Purpose
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v• • • • ••• -nitEee shall • v • onty te gtant, • ••••
Gaftt-ftissien under • n uuJ e6de, •a/ ••l 4 • •• .
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20.93.015 Modifications Committee
EXHIBIT A
I
Page 20.93 -2
Modification Permits
A. Composition. A Modifications Committee consisting of three members is hereby
established for the purpose of passing upon requests for reasonable use of property not
permissible under existing regulations. The Modifications Committee shall have
authority to grant, subject to appeal to the Planning Commission under provisions of
this code, modifications as provided herein. The Modifications Committee shall be
composed of the following members or their designated representatives:
1. The Planning Director, who shall act as Chair
2. The Public Works Director
The Building Director
The Modifications Committee shall include staff members assigned to aid the
Modifications Committee as necessary.
B r 'Fantti
1.
a. Required building setbacks in front, side or rear yards;
b. Heights of walls, hedges or fences;
C. Distances between buildings;
d. Area, number and height of signs not requiring an exception permit or
limited by Planned Community District regulations;
Roof signs and off -site signs in accordance with Chapter 20.67;
f. Structural appurtenances or projections which encroach into front,
side or rear yards;
g. Location of accessory buildings on a site; the construction or
installation of chimneys, vents, rooftop architectural features and solar
equipment in excess of permitted height limits;
h. Size or location of parking spaces or access to parking spaces;
EXMBrr A
Z
Z-
1.
a. Required building setbacks in front, side or rear yards;
b. Heights of walls, hedges or fences;
C. Distances between buildings;
d. Area, number and height of signs not requiring an exception permit or
limited by Planned Community District regulations;
Roof signs and off -site signs in accordance with Chapter 20.67;
f. Structural appurtenances or projections which encroach into front,
side or rear yards;
g. Location of accessory buildings on a site; the construction or
installation of chimneys, vents, rooftop architectural features and solar
equipment in excess of permitted height limits;
h. Size or location of parking spaces or access to parking spaces;
EXMBrr A
Pale 20.93 -3
Mod[fication Permits
i. Swimming pool and swimming pool equipment encroachments;
j. Roof parking of automobiles in nonresidential districts;
k. Minor modifications and improvements to nonconforming buildings;
a. Lot line adjustments, in accordance with Chapter 19.76 of Title 19
(Subdivision Code);
b. Tentative parcel maps, in accordance with Chapter 19.12 of Title 19
(Subdivision Code);
C. Condominium conversions involving four or less units, via approval
of a tentative parcel map in accordance with Chapter 20.83 and Title
19 (Subdivision Code); and
d. Such items as may be subsequently set forth by the Planning
Commission resolution, subject to a confirming resolution by the City
Council. The Modifications Committee shall also pass upon all re
quests to extend existing use permits which have been approved by
the Planning Commission and exercised by the applicant.
C. Meetings. The Modifications Committee shall hold one or more regular meetings
each month and may hold special meetings as necessary.
20.930' Application for a Modification Permit
A. Procedure. An application for a modification permit shall be filed in a
manner consistent with the requirements contained in Chapter 20.90: Application
Filing and Fees.
B. Required Plans and Materials. An application for a modification permit shall be
accompanied by the following:
Plot plans showing all property lines, structures, parking, driveways, other
major improvements or facilities and landscaped areas.
2. Elevations of all proposed structures.
EXHIBIT A
a
Page 20.93 -4
Modification Permits
3. Other plans such as floor plans as may be required by the Planning Director
to assure a proper consideration of the application.
4. In the case of a lot line adjustment, the materials described in Chapter 19.76
of Title 19 (Subdivision Code).
In the case of a tentative parcel map, the map and other materials described in
Title 19 (Subdivision Code).
20.93.035 Notice and Public Hearing
A. Tentative Parcel Maps. Notwithstanding other provisions of this Section, notice and
hearing procedures for tentative parcel maps shall be as specified in Chapter 19.08 of
Title 19 (Subdivision Code).
W
C. Required Notice.
Mailed or Delivered Notice.
a Residential Districts. At least 10 days prior to the hearing, notice shall
be mailed to the applicant and all owners of property Fa of
the boundaries of the site, as shown on the last equalized assessment
roll or, alternatively, from such other records as contain more recent
addresses. It shall be the responsibility of the applicant to obtain and
provide to the City the names and addresses of owners as required by
this section.
b. Nonresidential Districts. At least 10 days prior to the hearing, notice
shall be mailed to the applicant and all owners of property within 300
feet, excluding intervening rights -of -way and waterways, of the
boundaries of the site, as shown on the last equalized assessment roll
or, alternatively, from such other records as contain more recent
addresses. It shall be the responsibility of the applicant to obtain and
provide to the City the names and addresses of owners as required by
this section.
2. Posted Notice. Notice shall be posted in not less than 2 conspicuous places
on or close to the property at least 10 days prior to the hearing.
EXHIBIT A
Paae 20.93 -5
Modification Permits
C. Contents of Notice. The notice of public hearing shall contain:
A description of the location of the project site and the purpose of the
application;
2. A statement of the time, place, and purpose of the public hearing;
A reference to application materials on file for detailed information;
4. A statement that any interested person or authorized agent may appear and be
heard.
D. Continuance. Upon the date set for a public hearing before the Modifications
Committee, the Modifications Committee may continue the hearing to another date
without giving further notice thereof if the date of the continued hearing is announced
in open meeting.
20.93.Q�0 Required Findings
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Page 20.93 -6
Modification Permits
20.93.035 Duties of the Modifications Committee
A. Investigation. The Modifications Committee shall cause to be made, by its own
members or its respective staffs, such investigation of facts bearing upon such
application as will serve to provide all information necessary to assure that the action
on each application is consistent with the intent of this section and sound planning
practices.
B. Rendering of Decision. After the conclusion of the hearing on any application for a
modification permit, the Modifications Committee shall render a decision within 15
days unless otherwise stipulated by the applicant and the Modifications Committee.
C. Referral to Planninn Commission. In the event the Modifications Committee
determines that an application should properly be heard by the Planning Commission,
it may refer the matter to the Planning Commission for hearing and original
determination on the merits. The procedure for notice and hearings held by the
Planning Commission on such applications shall be in accordance with the same
provisions as set forth in this chapter.
D. Administrative Act. The granting of any modification permit, when conforming to
the provisions of this code, is hereby declared to be an administrative function, the
authority and responsibility for performing which is imposed upon the Modifications
Committee. and ;he Dl.,...iing Direstar and im action thereon by the Modifications
Committee or NaEiiing Diree4ef shall be construed as administrative acts performed
EXHIBIT A
I C�
Page 20.93 -7
Modification Permit;
for the purpose of assuring that the intent and purpose of this code shall apply in
special cases, as provided in this section, and shall not be construed as amendments
to the provisions of this code or the districting map of the City.
20.93.0.49 Conditions of Approval
The Modifications Committee may impose such conditions in connection with the granting of a
modification permit as they deem necessary to secure the purposes of this code and may require
guarantees and evidence that such conditions are being or will be complied with.
20.93A45 Effective Date
No permit or license shall be issued for any use or property modification until the decision shall have
become final by reason of the expiration of time to make an appeal, which for purposes of
modification permits shall be within 14 calendar days after the date of the Modifications Committee's
decision. In the event an appeal is filed, the modification permit shall not become effective unless
and until a decision is made by the Planning Commission on such aooeal, o ons
20.93. Expiration, Time Extension, Violation, Discontinuance, and Revocation
A. Expiration. Any modification permit granted in accordance with the terms of this
code shall expire within 24 months from the effective date of approval or at an
alternative time specified as a condition of approval unless:
A grading permit has been issued and grading has been substantially
completed; or
2. A building permit has been issued and construction has commenced; or
3. A certificate of occupancy has been issued; or
4. The use is established; or
5. A time extension has been granted.
In cases where a coastal permit is required, the time period shall not begin until the
effective date of approval of the coastal permit.
B. Time Extension. The Planning Director may grant a time extension for a
modification permit for a period or periods not to exceed 3 years. An application for
EXHIBIT A
n
Pape 20.93 -5
Modification Permits
a time extension shall be made in writing to the Planning Director no less than 30
days or more than 90 days prior to the expiration date.
C. Violation of terms. Any modification permit granted in accordance with the terms of
this code may be revoked if any of the conditions or terms of such modification
permit are violated, or if any law or ordinance is violated in connection therewith.
D. Discontinuance. A modification permit shall lapse if the exercise of rights granted by
it is discontinued for 180 consecutive days.
E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96:
Enforcement.
20.93. Amendments and New Applications
A. Amendments. A request for changes in conditions of approval of a modification
permit, or a change to plans that would affect a condition of approval shall be treated
as a new application. The Planning Director may waive the requirement for a new
application if the changes are minor, do not involve substantial alterations or addition
to the plan or the conditions of approval, and are consistent with the intent of the
original approval.
B. New Ayplications. If an application for a modification permit is disapproved, no new
application for the same, or substantially the same, modification permit shall be filed
within one year of the date of denial of the initial application unless the denial is
made without prejudice.
20.93.M Rights of Appeal and Review
A. Rights of Anneal and Review. Decisions of the Modifications Committee may be
appealed by any interested parry to the Planning Commission.
B. Calls for Review. The Planning Commission may review any decision of the
Modifications Committee.
C. Procedures. Procedures for appeals and calls for review shall be as prescribed by
Chapter 20.95: Appeals and Calls for Review.
F. \USERS\PLN \ShaedTNs\PAs - 2003\PA2003- 080\ August_ sNtR20- 937jC_stike_out_09_03_03.DOC
ATTACHMENT 2
November 6, 2003 Planning Commission Staff Report
0
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
Agenda Item No. 5
November 6, 2003
TO: Planning Commission
FROM: Chandra Slaven, Assistant Planner
(949) 644 -3231 cslaven @city.newport- beach.ca.us
SUBJECT: Code Amendment No. 2003 -003 — Amend Chapter 20.93 to
revise the Modification Permit's standards of review. (PA2003-
080)
ISSUE:
Should the City amend Title 20 of the Newport Beach Municipal Code to revise the
Modification Permit's standards of review?
RECOMMENDATION:
Adopt Resolution No. recommending approval of Code Amendment No. 2003-
003 to the City Council.
DISCUSSION:
Introduction:
During the April 22, 2003 City Council study session on the modification process,
discussion centered on the question of whether too much latitude is given in the
processing of modification permits. Some of the concerns expressed by Council
members were that modification permits are slowly re- shaping the character of
neighborhoods and that setbacks are sometimes reduced or eliminated without due
regard to maintaining adequate public safety access. Some Council members believe
these standards are being abused when applicants take advantage of the somewhat
lenient nature of the modification permit requirements by requesting relief from the City's
development regulations although no hardship exists.
Following a discussion of the matter, the City Council then initiated a code amendment on
June 24, 2003 directing staff to revise the required findings to incorporate three factors: 1)
practical difficulties and unnecessary hardships; 2) neighborhood compatibility; and 3)
public safety. With revisions being suggested for the required findings, staff believes
several sections of the Chapter should also be modified accordingly.
J&
Revision to Required Finding:
As directed by the City Council, staff has proposed the following revised findings to
address issues of physical hardship upon property, neighborhood compatibility and public
safety. It is important to recognize the following findings are preliminary in nature and the
exact wordings can be revised through the code amendment process.
Practical Difficulties and Unnecessary Hardships Finding:
The granting of the application is necessary due to the physical constraints of the
property, such as legal nonconforming structures, size, shape, topography or lot
orientation, and that the strict application of the Zoning Code results in unnecessary
hardships that are inconsistent with the purpose and intent of the Zoning Code.
2. Neighborhood Compatibility and Preservation Finding:
The reouested modification will be compatible with existing development in the
neighborhood and respect neighborhood character.
Public Safety 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.
Current Modification Permit Process/Findings:
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. 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." Modification permits were created to give the City
a way to make "adjustments" from Zoning Code standards for the large number of non-
conforming lots. The current required finding is generalized in that it only requires that the
modification permit does not cause detriment to the surrounding neighborhood and to the
general welfare of the City.
The modification permit's standards of review can be revised to accomplish an efficient
process without causing potential harm to future development within the City. If adopted,
the standards of review would require a greater analysis of hardships upon property,
neighborhood compatibility and public safety. As a beneficial consequence, it is staffs
intention to afford the applicant an increased understanding of the City's procedures for
processing a modification permit application. These revisions will be to the benefit of
residents who are proposing to build a new home or a remodel to their existing home, as
well as to the staff administering these code provisions.
Code Amendment to Chapter 20.93 (PA2003 -080)
November 6, 2003
Page 2 of 5 1 1
The intent of the draft required findings (Section 20.93.030) is consistent with the original
intent of providing relief when the strict literal interpretation and enforcement of property
development regulations would be inconsistent with the general purpose of Zoning Code.
The first two findings are relatively innovative for the City's regulatory framework and
would provide a fresh perspective to the standards of review. The last draft finding
contains public health, safety and general welfare provisions that are similar to those
required to approve a Variance or Use Permit.
The practical difficulty finding addresses the Council's concern of abuse of the City's
development standards pertaining to setback limitations and building
design /configuration. With this finding, the applicant would be required to clearly
demonstrate facts that create the need to deviate from the Code. Specifically, the
applicant would need to show the modification is necessary due to physical limitations
present on a particular property as opposed to simply wanting the modification to
accommodate a particular design. The combination of requiring a practical difficulty and
an unnecessary physical hardship on the property is intended to encourage applicants to
design their projects to meet the established regulations within the Code as opposed to a
design that may only be approved through a Modification Permit. For example, the lot
size, shape or orientation relative to other lots may make the application of standard
setbacks impractical. Another example may be where the height of a fence exceeds the
maximum height for fences due to topography, i.e. grade changes between properties.
This finding may have the effect of decreasing the number of applications as many past
applications have not been based upon a physical constraint.
The neighborhood compatibility finding is beneficial because it addresses the City
Council's concern of neighborhood character preservation. The review of modification
permits must be processed in a manner that recognizes and respects the unique features
and characters of neighborhoods, thereby ensuring continued enjoyment of the City's
quality of life. Moreover, compatibility is achieved when a new home or addition to an
existing home is designed in a manner that blends in with the following general
characteristics of the immediate neighborhood:
x Scale, bulk and home orientation of the surrounding residences;
Front, side and rear yard setbacks; and
Existing streetscapes.
The Modifications Committee will be only considering such characteristics as they relate
to direct impact of the proposed modification on the neighborhood's character. This
finding is not intended to deny an applicant development rights that a property owner
would otherwise enjoy without the modification. For example if an owner of a single -story
residence chooses to build a second floor in his or her single -story neighborhood and the
development regulations allow for such a development; the requested modification permit
could not be used to prohibit the construction of a second floor to be consistent with the
rest of the neighborhood.
The public safety finding is valuable because it addresses the City Council's concern of
modification permits creating impediments to safety personnel. Additionally, the finding is
Code Amendment to Chapter 20.93 (PA2003 -080)
November 6, 2003 (/
Page 3 of 5 l rj
consistent with the existing modification permit's sole finding of ensuring a project does
not cause harm to adjacent property.
The three draft findings would place additional considerations within the standards of
review for a project and provide clear criteria to the Modifications Committee and other
bodies who have jurisdiction over the modification process. Together the findings will
encourage applicants to design their projects to meet the established regulations within
the Code as opposed to a design that may be approved through a Modification permit.
Supplementer Revisions:
The age and complexity of the City necessitates some form of administrative relief from
the zoning regulations. The modification permit's purpose (Section 20.93.010) will be
revised to clearly provide an administrative remedy to the development of property with a
physical hardship. However, it must be clear that the proposal would not cause detriment
to the surrounding neighborhood. This information should be in the introduction of the
Modification Permit chapter to address the reasoning for maintaining the modification
permit process as a viable option for applicants requiring relief. Additionally, the
Modification Committee's authority (Section 20.93.0156) should be revised to clarify their
role in determining which findings are applicable to the proposed application.
Re- adoption of 300 -foot Radius for Public Notification:
According to Government California Code, Section 65091, the public notice radius for all
properties must be within 300 feet of the exterior boundary of the property; however the
City of Newport Beach is a Charter City, thereby allowing the City to establish its own
radius parameters for public noticing. The City Council has indicated a desire to change
the public notice radius from its current 100 feet to an expanded 300 -foot radius to
provide greater opportunity for public input.
It should be noted that the required notice text in Chapter 20.93.025 currently reads 300
feet. This was an inadvertent change that occurred through the adoption of a series of
minor amendments associated with the Subdivision Code update. Staff recognized this as
a scrivener's error and continued to require a 100 -foot radius for public notices. With the
proposed code amendment to the Modification Permit standards, the text will be re-
adopted so that all future Modification Permits will utilize the 300 -foot radius standard
when notifying the public.
Conclusion:
The proposed code amendment will address the City Council and staffs concern with the
long term establishment and subsequent administration of lot- specific zoning. The revised
required findings will aid in staffs administration of remedies while ensuring neighborhood
comoatibilibi and public safety. Furthermore, by unifiring several of the Chapter's sections,
the applicant will have clear criteria of whether their application would qualify for
administrative relief.
Code Amendment to Chapter 20.93 (PA2003 -080)
November 6, 2003 I
Page 4 of 5
Environmental Review:
The project has been reviewed pursuant to the California Environmental Quality Act and
has been determined to be categorically exempt under Class 5, minor alterations in land
use limitations. Minor alterations include variances and use permits on land with a slope
of less than 20% that do not result in changes in land use or density.
Public Notice:
Public notice for the November 6, 2003 hearing was posted in the local Daily Pilot
newspaper.
Prepared by:
/ �
Chandra Slaven
Assistant Planner
Submitted by:
Patricia L. Temple 7
Planning Director
Exhibits:
1. Resolution No. _
2. Draft of revised Chapter 20.93 (Modification Permits)
3. Minutes from City Council study session April 22, 2003
4. Minutes from City Council hearing June 24, 2003
FAUSERS\PLN\Shared\PA's\PAs - 2003\PA2003- 080W ugust_ Stuffl2003- 080_PC2nd_version.doc
Code Amendment to Chapter 20.93 (PA2003 -080)
November 6, 2003
Page 5of5 nK
ATTACHMENT
Draft November 6, 2003 Planning Commission Minutes
�1
Planning Commission Minutes 11/06/2003 Page 7 of 18
IJECT: Amendment to Chapter 20.93 (Modification Permits) ITEM NO.6
2003 -080) PA2003 -080
Initiated by the City of Newport Beach
Recommended
amendment to Chapter 20.93 (Modification Permits) to revise the for Approval
uired Findings Section and other associated revisions for processing a
ification Permit.
s. Temple stated that in 2002, the Planning Commission considered an
peal of a modification and at the conclusion of that meeting, at th
Guest of Commissioner Kiser, an item was added to staffs work list to
riew and consider strengthening the findings to approve modification
rmits. Through the course of this year, there have been at least tw
3dification permits called for review by the City Council and there is one D
their agenda this week. The Council has specifically asked staff to
celerate this project and bring forward to the Commission potential
anges to the Modifications Chapter. Members of the Modification
immittee have indicated that it is becoming more and more difficult to
minister the Modifications Chapter because there was so little guidance
to what should or should not be approved. This has become an issue
cause staff has been getting rather a significant amount of modification
Guests on brand new development on lots that were not constrained by
y traditional factors that we see such as reversal of ordinary orientation
unusual or small lot size.
airperson McDaniel affirmed that the scope of what the Commission
cussing tonight is the list that has been presented tonight to us for revi
well as the three issues listed in the staff report.
Is. Temple noted that this is the first presentation on the three suggest
ridings. The Planning Commission can take testimony and deliberate a
iscuss and ask for more information if they wish and /or they can ma
hanges, or provide staff with new direction for alternatives to consider a
ave staff go back and work on those. At Commission inquiry, she not
iat if this was voted on, the Planning Commission would not see this itf
gain unless the City Council decided to send it back to the Commission.
Slaven noted the following :
. The goal of the three proposed findings is to address concerns of t
City Council, staff and members of the public regarding propert i
containing practical difficulties which create unnecessary hardshil
the preservation of neighborhood compatibility; and the assurance
public safety.
. Practical difficulties - this finding would limit those applications
properties containing physical constraints such as size, shape, a
topography or lot orientation. With this finding, the applicant would
V-
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Planning Commission Minutes 11/06/2003
required to clearly demonstrate facts that would create the actu
need to deviate from the Code. Such applications would incluc
those whose lot size, shape, or orientation relative to oth
neighboring lots may make the application of standard setbacl
impractical. In those cases, a Modification Permit would be granted.
Page 8 of 18
. The neighborhood compatibility finding - would require the review o
modification permits to be processed in a manner that recognizes and
respects the unique features and characteristics of that neighborhood,
thereby assuring the continued enjoyment of the City's quality of life.
This finding is more subjective and can be utilized in cases such as D,\
setbacks and streetscapes.
. The public safety finding - this is beneficial because it addresses 1
City Council's concern of Modifications Permits creating impedimei
to safety personnel. It is important to maintain a certain amount
setback for public safety access and staging. This finding
consistent with the existing modification finding that ensures that 1
project does not cause harm to adjacent property.
. The additional guidance provided under the section of 'Duties of
Modifications Committee' is important to aid the members in 1
review of each application in terms of what the Modification Pe
does and does not apply to. For example, under the neighborh
compatibility finding, the Modifications Committee may only cons
such characteristics as they relate to the direct impacts of
proposed modification on the neighborhood character and not
development rights that would otherwise be enjoyed without
Modification Permit.
. As requested by Commissioner Selich, Jay Garcia has provided
summary before you to supplement your understanding as to
these three proposed findings could potentially alter
determination of similar applications based upon a review of 1
Modification Permit determinations. The sample of applicat
presented range from encroachments to various architecl
features.
.Referencing the summary, she then noted that there were
Approved projects that would have continued to remain in
Approved category using these revised findings and 10 Apprc
projects could have been denied with these revised findings.
. In the opinion of the Modifications Committee, the proposed
would have an effect on their ability to make stronger detern
of denial.
Commissioner inquiry, staff noted that an outreach meeting was held
public and that about 5 or 6 people attended.
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Planning Commission Minutes 11/06/2003
Tucker asked:
What does an 'unnecessary' physical hardship mean: Is the
'unnecessary' needed?
The finding that the modification be compatible with exi,
development in the neighborhood and respect the neighborl
character. What is the difference between being compatible
respecting the neighborhood character? If these words do not
anything, should they be included?
s. Temple suggested that some modification to the organization of i
xds would be beneficial. We are trying to get to the issue of when the
a practical difficulty of the property that creates an unnecessary hardsl
r the property if the Code was strictly applied. If it is a practical difBCL
at creates a physical hardship that doesn't serve a particular purpose
intent of the Code.
imissioner Tucker then referred to the summary that was distributed.
noted his concern is that this issue is not a solution looking for a
Clem. Is it staffs perception that the trend concerning the number o
ifications is such that it's become problematic now with too man)
ification requests and circumstances that there shouldn't be?
r. Garcia noted:
Referencing the summary - the first finding on a cursory look at
these projects are reviewed to be made would need more del
analysis of the project asking the applicant for more reasor
justification to meet that first finding. Some of these properties I
may have some other justification that was not brought out to
this specific finding. It would be difficult in most cases to meet.
A lot of issues that the Modifications Committee has been dealing w
in conjunction with new construction, is the way the Code is writt
gives the perception that if you want an encroachment, all you need
a modification permit to get it. As we start to deny some of the
projects and the complexion is reflected to regular architects wl
basically bring projects over and over again or are dealing with ne
projects. They must make the decision whether they want to build 1
to the building they have now and preserve some of those nc
conformities, or tear it all down and start from scratch.
missioner Tucker asked if without some changed or added langus
does not feel that they have the ability to deny those requests that
:ally 'designed in' modifications. You don't believe you have
>rity under the existing Code?
r. Garcia answered that with more stringent findings, we would
scourage more people from applying. At this point, we try to d
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Page 9 of 18
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Planning Commission Minutes 11/06/2003
ople from making applications for things that really have no merit, and
r most part people will accept that direction, or they have the opportun
apply anyway. You can meet with them as many times as you want a
I them the same thing, but if they want something, they are going to try
rsue it.
imissioner Tucker noted the terminology, 'health, safety, peace, con
general welfare', that means to me that the committee members h
latitude. You indicate that more applications would be denied with
language than you would deny now.
Garcia answered we would be discouraging more applications ra
denying them. The application form would list the findings and ask
!cant to list the merits to justify their request.
irperson McDaniel stated that this sounds like giving the Modificatii
imittee more of an opportunity to have more information provided
they could make a decision of yes or no. It also sounds like you nc
information to make these decisions. He was answered, yes.
missioner Tucker asked if it could be possible to leave the finding
the Code presently reads and change the application so that the
for information that makes it clear that the applicant has to come
something that shows why they have to design a project a cerl
Ir. Garcia answered that when a person comes back and asks, 'where
iat in the CodeT, it becomes difficult to direct them. We fall back on wh
the justification for an encroachment, or, why can't it conform? Especia
it is a new building. If you want these architectural features, then sco
our building back so that you can accommodate them. There are a lot
ifferent ways to answer that question. With the addition of these propos(
ndings, on new structures these requests could be discouraged. When v
re dealing with non - conforming structures and they are trying to make
ilk purse out of a sow's ear by dressing it up, you might need some type
rtitude as far as architectural features that are not already written in tl
practical difficulty of trying to dress up a building that is built like a bo)
back line to set back line, there is no place to put architectural features.
only way to dress it up is to encroach into some setback. The practica
oulty or unnecessary hardship you are trying to avoid is tearing it dowr
rebuilding it. They only want to dress it up, why should they have tc
ck it down to accommodate these architectural features?
person McDaniel noted that staff has done a lot of work on
itials to give the Modifications Committee the tools needed to
decisions. You believe you can do it with these changes?
Garcia answered yes. The findings required will increase the level
Page 10 of 18
DRAFT
11
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Planning Commission Minutes 11/06/2003 Page 11 of 18
Os that will have to be done on the project and make the
up with more factual objective criteria or justifications.
sioner Eaton asked about the third finding noted on the summary o DR
of actions and how the probable result under the proposed
;e is different.
Garcia noted that this application was unique to Newport Crest wh
project is located. The condominium project has been there since
s and the encroachments that have been proposed and approved in t
a were balconies and stairs in an area between a building and
)erty line. Public safety would be impacted by the extension of a di
basically goes from building to property line that will restrict access
irgency personnel to go around the building. That was the reason
no indication on that finding.
nissioner Kiser asked about Finding C, 'the health, safety and g
re finding', isn't that one that today the Modifications Committee
to be operating under with each decision?
s. Temple answered the wording is different. The existing Code says th
ie granting of the application will not be detrimental to surroundii
operties and the neighborhood'. The re- working of it was to specifica
irk in that the concept of the health and safety in concert with the n
?trimental. It is similar to what we have, some of the words are differe
it are what we thought would assist us in bringing in a more clear fashir
e concept of what one of the things the Council is concerned with, whir
the actual physical access of safety personnel to the property.
Clauson added that from a court review of a decision point of view, 1
tional findings help staff to bring out information to support 1
!rmination, approval or denial. Also, it provides a court some basis
sw by. A use permit has the general health, safety and welfare find
is pretty wide open and there is a lot of discretion, but it still has to
sd upon substantial evidence.
lifications are different. It is not considered that they have just a gener
Ith, safety and welfare standard for an encroachment into a setba(
ause the purposes and intent of setbacks and encroachments into tt
lack is a different process. For instance, we have a court reviewing
B now and when the finding is, " a reasonable use of the property" ar
property owner is saying, well it is reasonable what I am proposing,
:es it harder to have a record that shows the reason why you denied it.
r. Edmonston added that one of his staff members sits on the Modificat
)mmittee. The reality is that most of the items heard are primarily zon
fated encroachments. In discussing the proposed change to the pol
th him, he feels comfortable that this will help the people that aren't
miliar with the detail of zoning issues as Mr. Garcia is and is a clear sl
the right direction to have this change to the process.
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Planning Commission Minutes 11/06/2003 Page 12 of 18
imissioner Toerge stated he has trouble understanding the verbiage of
essary/unnecessary hardship'. That wording should be looked at. H
i asked for clarification as to the subjective language to respect the
hborhood character. For instance, in some cases where there is a five
side yard setback and someone has a kitchen window and wants to
i an 18 inch popped out bay window over the kitchen area that will
-oach into the setback. Is that something that falls under the scrutiny of
DRAFT
Modifications Committee and secondly, if all the neighbors had one
would that be considered?
Garcia answered that over the years changes have been made to the
ing Code to accommodate certain types of architectural features, bal
lows, cornices, things of that nature that people can do by right now.
se are written into Chapter 20.60 of the Municipal Code. There are
ays situations where people want bay windows wider or taller or on the
end floor where the Code does not already allow them, or an increase(
fiber. Those are the types of things the committee would be dealinc
. Changes that occur in the Zoning Code where some things required <
lification say five years ago and now you want to do something and th(
e does not allow it. People have difficulty with that rational and say why,
t I have the same thing my neighbor has? There are always those
m of issues that come up. New structures are the hardest to deal witl
are often times denied.
Temple added that the modification process has proven extren
uable to identify areas where some modification to the Code may
sirable and appropriate. If we start to see certain types of features 1
oome commonly requested and expected, and we find that
nmittee finds that over time they are very easy to approve, then that t
to change the Code.
Selich noted the following:
. Good job on the survey. During that period of time during
through October, how many total modification permits
processed? How were these selected?
Garcia answered from the list that was put together we probal
ped about ten. I went through all the agendas from July, put them
a list and from that pared down those which were what the committ
fibers did not have a recollection of the project, because it was hard
✓er the questions on the findings without having to pull the file and
through the history. We only dropped a few. This list is about 90%
we dealt with just on modifications, and does not include lot Ii
stments, parcel maps and other things we review on agenda.
mmissioner Cole noted that some of the council members were un(
misconception that the Modifications Committee was making decisic
things such as height and size and FAR requirements. Has there be
r concern from the community or people where a current situation
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Planning Commission Minutes 11/06/2003 Page 13 of 18
sing some kind of problem in the community? The 'mansion ization' idea
Idn't follow under what we are talking about today. We are talking
it encroachment issues, setbacks, architectural features and signs. I
wondering, looking at this summary, maybe half of them approved
Id have been denied. Is that benefiting the community in any way that
e people could not have gone ahead with their plans? Is that
ething that will necessarily be helpful to the community? Is this
ething that is really needed, or can we make minor changes to the
ling language. Will this create something we don't need for applicant
have desirable or appropriate changes? I DRAFT
Slaven answered that in her review it would be beneficial to the pub
ruse it would make a better application. The public would have a belt
nstanding of what they need to do in preparation for a modificati(
iit or even if they could be granted one. It is more detailed and cleat
en. Any form of education for the general public when we meet wi
i at the counter is a good thing and beneficial to the community as
s. Temple added that staff wants consistent application of the granting
)difications over time so that people are treated equally pursuant to c
gulations. When there is a strong clear path and good guidance in c
3ulations, then as staff assignments change and actual staff chang
thin the function of the various departments, then we believe it will res
a more consistent application of these provisions over time.
comment was opened.
an Harrison, architect noted that the modification is there so that there
lexibility with the Code. I wonder if that is going to be a problem. Tt
iealth and safety issue is nebulous, how is that going to be approached?
hink the existing problems in a community like West Newport if everyboc
ias a bootleg apartment does that mean that you should approve a bootle
apartment because it is existing and everyone has one?
nmissioner Kiser asked if the speaker had reviewed the propos
luage for the new findings. Finding A in 20.93.030 about the physi
straints and hardships is a requirement for the applicant to give me
rmation and says that the physical constraints such as nonconformi
ctures, size, shape, etc. are all things the Modifications Committee Ie
What we see in the decisions over the years in comparison appears
comprehensive. Does it give comfort that this list is in there for t
iifications Committee to look at?
Harrison answered that whatever you do to help define our jot
iitects) and make it easier, if there is consistency. That is a problem
has been inconsistency. I think you will be seeing more tear downs.
iissioner Selich noted that he came from a strict 'constructionali:
round in Zone Codes both in education and professional standpoint.
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Planning Commission Minutes 11/06/2003 Page 14 of 18
a hard time getting used to this modification process. As I have seen it
rate over the past 8 years for Newport Beach; I think it works good. I
�s us the ability through our Zoning Code to address a lot of uniqu
3tions in this city versus a city like Irvine that is all new development
er modern zoning and planned communities. I am not inclined to
nge the Code, I am concerned that with a change like this you end u
i an unintended consequence. I don't see where things need to be fixed
are not broken. I think there is a misconception in the community as
as what is going on with the modification process. It seems to me it
ks very good. I had asked for this survey because I read this Code and
shocked that so many projects would be denied under this Cod DRAFT
FT
ause my thought was that the survey would show that there wouldn't be
^ 1
:h of a change. Maybe for some of these things we should make Cod
nge, for example a subterranean garage or part of a subterranean
cture encroaching into the setback area. A lot of times that is a
irable situation and may be something that can be dealt with a zoning
nge, not a modification change. This survey shows that this has a to
-e impact than I thought it would have and I wonder if we adopt
iething like this that we choke off some creativity and ability to come up
i designs that do not harm properties in the neighborhood and allow
ling with subdivision problems we have in some of the older parts of the
r. I think that what we see now is that a lot of the older structures are
ig remodeled and /or torn down with a lot of new construction going in. I
't see we are accomplishing much by doing this, and if the Modification
nmittee feels that under the existing Code they do not have enough
ction to deal with certain issues, they can certainly go to the City
rncil and get some policy direction. My inclination is to leave this alone.
3irperson McDaniel asked if you had this information when these issue:
the survey were reviewed, some of these may not have been denied.
�y were denied based on the information that the Committee had bu
lht have been approved if you had more information. Am I wrong it
t?
Garcia answered yes, that is true. Some of these would have require(
litional analysis and maybe the first finding could be made. In th(
arse of new construction it would be difficult to make that finding so the.,
bably would have been denied on the first finding.
Commission inquiry, Ms. Temple noted that the first group that asked
nsideration of this matter was the Planning Commission, the sect
)up was the City Council on an official basis. Through the course of t
ie, the Modification Committee was articulating internally that tt
night considering the changes was a good idea from their perspective.
mmissioner Eaton noted that if this was a general law City th
Aifrcations would have to be considered minor variances and would h
require a variance procedure and criteria to be followed. Because
a charter City we have more flexibility. My sense of the Cot
action is there is too much flexibility and being applied too widely to
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Planning Commission Minutes 11/06/2003 Page 15 of 18
instruction and newer areas. I agree with that. The findings for the
in of town can be made in item 1 and I would strike the i
necessary. In the newer parts of town there ought to be more unifoi
cause the average person sees a Code requirement and ought to co
th it. There are others who want to get around it and if the Modifica
)mmittee does not have a little more to base their decisions on then
what happens. I think this is a good idea.
rmissioner Kiser noted that with the new findings and the minutes of
Council deliberations, they would like to see this tightened up. The
difications Committee would like to have 'some more teeth', or support
those cases when they would like to deny applications. It is appropriate
both those reasons to do something like we are looking at tonight. The DRAFT
st important thing is we need to have more direction, otherwise, the
ling Code is completely amorphous. With the number of modification
t I see being given, I have a sense that there is very little justification
uired today in the City to get a modification, and that leads to poor
nning and bad development. In view of that I would vote to pass this
ng. The comments made on the specific language, removing the word
necessary" from Required Finding A would help and from Required
ding B remove ...., "and respect neighborhood character".
immissioner Tucker noted this is a significant policy issue that
iuncil will need to decide where they want to head. While my inclin
not to make a recommendation to them to go ahead and adopt 11
anges, we do need to look at the language and make changes we
ould be in there if the Council were to decide this is something they,
do.
irperson McDaniel stated he recognizes that the City Council has se
to us for a purpose. Staff knows what they need and have done a lot
< on this to present what they felt would tighten up the Modificath
e. The comments we have had are to help us with court follow u
,h I think is a significant aspect of what this will do for us. I think this rn
-t new construction more than it does anything else in the City, whi
rly the old construction needs to be modified and adjusted over time.
< this would be very helpful and I think our recommendation tonig
Id be that, a recommendation to pass on. It is appropriate to do tt
the City Council will look at it and make their decisions if there are to I
changes.
ommissioner Cole stated he would like to have further discussion as it
ace a greater burden on the resident who wishes to make remodels
ranges. I have not heard the result of the increase of modifications t
sems to be a concern for some, but I am not sure just because of
crease in number of approved Modification Permits necessarily me,
at is a bad thing. If there is something resulting out of the incres
lodification Permits either the Council or Commissioners find objectiona
think the way to address it might be in the Zoning Code itself and
ranging the modification approval process in the Code. This has woo
file : //H:\Plancomm\2003PC \l106.htm 11/18/2003 S�
Planning Commission Minutes 11/06/2003
35 plus years and there might be some minor language changes to g
ff the ability to deny, but I am not sure we need to create a level sim
a variance. I think we need to review this item and bring it back
ether meeting.
missioner Toerge stated he would like to pass something along to th
icil. I have not had the opportunity to study in detail this summary the
presented tonight, I have some questions about the resolution. I think
�rstand it, but things need to be clarified in paragraph 1.
Clauson stated that the ordinance states all the findings need to
and this ends up in the Code. The resolution adopts the ordina
iissioner Toerge asked about paragraph 2 in Section 3 of
lion. Ms. Temple noted the reference should be to Sect
0158 regarding extent of authority. There wasn't a reference
s date in the resolution. Ms. Temple noted the date change.
nissioner Toerge stated he would support a continuance to make
clear and more accurate to satisfy the Council's wishes.
Alon was made by Commissioner Kiser to recommend to City Council
lendment to Chapter 20.93 to revise the Modification Permit's standa
review. Code Amendment No. 203 -003 as revised in our meeting toni
:h the resolution revised with removal of word 'unnecessary' in Find
and words '....and respect of neighborhood character in requii
iding B 20.93.030, and in the Purpose 20.93.010.
immissioner Selich noted he would not support the motion.
edification process has been in place since 1968 and works well the
is. It deals with the problems of Newport Beach. Adopting a
lendment such as this can have some unintended and unfore
nsequences. If the City Council does feel there is a need and staff
?re is a need for further direction, then the Council can do that thr
licy direction to staff as opposed to a code amendment.
Eaton, Toerge, McDaniel, Kiser
Cole, Selich and Tucker
None
None
a. City Council Follow -up - Mr`s ^Wood- rePorted that at the last Council
meeting of October 28th, the Council set the hearing for the Taba
residence appeal for November 12th; initiated a Code Arrsend merit for
Height Limitations for Landmark buildings; and on the agenda there
was some ideas with regard to a city position on the Santa Ana Rive
Page 16 of 18
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