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HomeMy WebLinkAbout11 - Documents received after agenda preparationRESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, APPROVING LOT MERGER NO. LM2011 -002 TO MERGE THE FOLLOWING PROPERTIES, UNDER COMMON OWNERSHIP: PORTIONS OF LOTS 4, 5, AND 6 OF BLOCK 34 LOCATED IN CORONA DEL MAR, MORE COMMONLY KNOWN AS 2808 AND 2812 OCEAN BOULEVARD (PA2011 -141). THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. An application was filed by the John Guida Trust and the Julie Guida Trust, with respect to properties located at 2808 and 2812 Ocean Boulevard, and legally described as Portions of Lots 4, 5, and 6 of Block 34 of Corona del Mar requesting approval of a lot merger. 2. The applicants propose a lot merger for the following property under common ownership: portions of Lots 4, 5, and 6 of Block 34 located in Corona del Mar. Also included in the application is a request to waive the requirement to file a parcel map. 3. The subject property is located within the Single -Unit Residential (R -1) Zoning District and the General Plan Land Use Element category is Single -Unit Residential Detached (RS -D) and the subject property is not identified as a housinq opportunity site in the inventory contained in the Housing Element. 4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Single -Unit Residential Detached (RSD -B). 5. A public hearing was held by the Zoning Administrator on September 14, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this meeting. 6. Based on the facts of finding for approval and subject to the conditions of approval in the Zoning Administrator Action Letter, the Zoning Administrator approved the proposed lot merger application. 7. On September 23, 2011, the Zoning Administrator's decision to approve Lot Merger No. LM2011 -022 was appealed by Mr. Clifford Jones (2800 Ocean Boulevard), Ms. Joan Campbell (2811 Ocean Lane), and Mr. John Silva (2821 Ocean Lane). 8. A public hearing was held by the Planning Commission on October 20, 2011, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. The Planning Commission considered evidence, both written and oral presented at this meeting. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. City Council Resolution No. _ Page 2 of ­9 9. The Planning Commission determined that the required findings for approval could not be made and reversed the decision for approval of the Zoning Administrator thereby denying the application. 10. On October 27, 2011, Mr. John Guida filed an appeal of the Planning Commission's action. 11. A public hearing was held by the City Council on January 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. 12. The applicant requested that the City Council continue the appeal in order to allow him time to develop and present voluntary alternative development standards more restrictive than those required by the Zoning Code for development of the merged property. 13. The City Council voted unanimously to continue the hearing and refer the matter back to the Planning Commission for reconsideration, directing the Planning Commission to make a recommendation of approval or denial of the lot merger based on a review of the applicant's proposed alternative development standards. 14. A public hearing was held by the Pfanning Commission on March 22, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. 15. At the hearing, the applicant voluntarily proposed alternative development standards which are more restrictive than those required by the Zoning Code: 1.0 floor area limit (FAL), 6- foot -side setbacks, and maximum height - 15 feet 6 inches measured from an established grade of 70.2' (NAVD88), which is calculated pursuant to the Zoning Code requirements. The applicant proposed these alternative development standards with the goal of ensuring that the mass and scale of future development on the merged property would be compatible with the neighboring properties and surrounding area. 16. The Planning Commission recommended approval of the lot merger to the City Council with alternative development standards proposed by the applicant, plus additional restrictions that limit the floor area to 0.75 of the buildable area, and reduce the height limit proposed by the applicant by 3 feet by measuring from an established grade of 67.2' (NAVD88) rather than 70.2' (NAVD88) as required by the Zoning Code and proposed by the applicant, and subject to enforcement by the City and the property owners at 2811 and 2821 Ocean Lane. 17. A public hearing was held by the City Council on April 24, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. 18. A memorandum received from staff recommended continuation of the item to May 8, 2012, to allow the applicant sufficient time to prepare and execute a restricted covenant that would include development standards as voluntarily proposed by the applicant. The City Council approved a motion to continue the item to May 8, 2012. 19. A public hearing was held by the City Council on May 8, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the City Council Resolution No. _ Paqe 3 of 9_ meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. 20. For the public hearing, the applicant provided a signed document entitled "Restrictive Covenant." The document states that the applicant will comply with the following voluntarily proposed alternative development standards: U Floor Area Limit (FAL): 1.0 (1.0 x 9,488.02 square feet = 9,488.02 square feet) Subterranean basements shall not be included in maximum FAL (per Newport Beach Zoning Code) o Maximum height for flat roof: - 34 percent up to 15 feet 6 inches (floor of roof deck)* - 33 percent up to 15 feet (measured to top of roof) - 33 percent up to 14 feet (measured to top of roof) - "Established Grade" for the purpose of measuring height for the principal structure shall be 70.2' (NAVD88) *Roof deck railings shall be transparent. Roof deck railings may exceed the maximum height, but shall be no higher than the minimum height required by the latest California Building Code. o Setbacks: - Front — 20 feet - Rear — 10 feet - Right Side — 6 feet - Left Side — 6 feet 21. Based on the following facts of finding for approval and subject to the attached Conditions of Approval, the City Council approved the proposed lot merger application reversing the Planning Commission's decision of denial at its October 20, 2011, meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act Guidelines under Section 15305 (Class 5: Minor Alterations in Land Use Limitations), Section 15301 (Class 1: Existing Facilties), and Section 15303 (Class 3: New Construction or Conversion of Small Structures). because it has no potential to have a significant effect on the environment 2. Class 5 exempts projects which consist of minor alterations in land use limitations in areas with an average slope of less than twenty percent, which do not result in any changes in land use or in density, including but not limited to, minor lot line adjustments not resulting in the creation of any new parcel. The existing and proposed properties have a slope less than twenty percent. The Land Use Element of the General Plan designates the subject properties as Single -Unit Residential Detached (RS -D), which is intended to provide primarily for single - family residential units on a single legal lot and does not include condominiums or cooperative housing. The Coastal Land Use Plan designates the properties as Single -Unit Residential Detached (RSD -B) City Council Resolution No. _ Paqe 4 of 9 which provides for density ranges from 6.0 -9.9 DU /AC. The Zoning Code designation is Single - Unit Residential (R -1), which is also intended for single - family residential development. The existing development of single -unit dwellings on each property and the proposed development of a single -unit dwelling on the merged site are consistent with these designations. 3. Class 1 exempts projects that consist of a proposed activity, which will involve negligible or no expansion of use existing at the time the exemption is granted and includes demolition and removal of up to three single - family residences in an urbanized area. residential zone. SECTION 3. REQUIRED FINDINGS. In accordance with Section 19.68.030.H of Title 19 (Subdivision Code: Lot Mergers, Required Findings) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding A. Approval of the merger will not, under the circumstances of this 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 lot merger is consistent with the legislative intent of Title 19. Facts in Support of the Finding: A -1. The future development on the proposed parcel will comply with the Zoning Code development standards. A -2. The proposed merger will not cause future development to impact public views of the ocean as no public view presently exists. A -3. The project site described in the proposal consists of legal building sites. A -4. The lot merger to combine the existing legal lots by removing the interior lot lines between them will not result in the creation of additional parcels. A -5. The project is in an area with an average slope less than 20 percent and no changes in land use or increase in density will occur as a result of the merger. Finding B. The lots to be merged are under common fee ownership at the time of the merger. Facts in Support of the Finding: B -1. The portions of lots 4, 5, and 6 to be merged are under common ownership, City Council Resolution No. _ Paoe 5 of 9 Finding C. The lots as merged will be consistent or will be more closely compatible with the applicable zoning regulations and will be consistent with other regulations relating to the subject property including, but not limited to, the General Plan and any applicable Coastal Plan or Specific Plan. Facts in Support of the Finding: C -1. The previously existing single -unit dwellings located on the subject sites will be demolished, and the proposed lot would be redeveloped with a new single -unit dwelling. Section 20.18.030 of the Zoning Code establishes minimum lot area and width requirements. Each of the two existing lots meet the minimum lot area required, but do not meet the minimum lot width required (50 feet). The proposed merger would create one lot, which would comply with the minimum lot width and lot area standards required by the Zoning Code. C -2. The Land Use Element of the General Plan designates the subject properties as Single -Unit Residential Detached (RS -D), which is intended to provide primarily for single - family residential units on a single legal lot and does not include condominiums or cooperative housing. The Housing Element does not identify the existing lots as a housing opportunity site in the residenital development inventory. The Coastal Land Use Plan designates the properties as Single -Unit Residential Detached (RSD -B) which provides for density ranges from 6.0 -9.9 DU /AC. The Zoning Code designation is Single -Unit Residential (R -1), which is also intended for single - family residential development. The existing development of single -unit dwellings on each property and the proposed development of a single -unit dwelling on the merged site are consistent with these designations. Finding D. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a result of the merger. Facts in Support of the Finding: D -1. Vehicular access to and from the subject site and adjacent properties is available via an ingress and egress easement at the rear of the site. Should the ingress and egress easement be terminated, vehicular access is possible from Ocean Boulevard at the front of the existing or merged parcels. Finding The lots as merged will be consistent with the surrounding pattern of development and will not create an excessively large lot that is not compatible with the surrounding development. Facts in Support of the Finding: E -1. Corona del Mar consists of lots of varying shapes and sizes. The subject lots, as merged, will result in a parcel with a width of 80 feet and area of 13,678 square feet. Other nearby lots on Ocean Boulevard have lot widths as wide as 73 feet and area as large as 13,325 square feet. The merger of the two lots it will not create an excessively large lot in comparison to many of the existing lots in the surrounding area. City Council Resolution No. _ Page6of9 E -2. Under the City's Zoning Ordinance, development within the R -1 (Single -Unit Residential) Zoning District within Corona del Mar can have a maximum floor area limit (FAL) 1.5 times the buildable area of the lot. The applicant has provided a signed "Restrictive Covenant" setting forth more restrictive alternative development standards for height, side setbacks, and maximum floor area, which will result in development consistent with properties in the surrounding area. Finding F. That the proposed division of land complies with requirements as to area, improvement and design, flood water drainage control, appropriate improved public roads and property access, sanitary disposal facilities, water supply availability, environmental protection, and other applicable requirements of this title, the Zoning Code, the General Plan, and any applicable Coastal Plan or Specific Plan. Facts in Support of the Finding: F -1. The existing lots do not meet the lot width standards of the Zoning Code. The proposed lot would comply with the design standards and improvements required by the Zoning Code, General Plan, and Coastal Land Use Plan. F -2. The proposed lot merger combines the lot portions into a single parcel of land and does not result in the elimination of more than three lot portions. F -3. Approval of the proposed lot merger would remove the existing interior lot lines, and allow the property to be redeveloped as a single site. The proposed lot would comply with all design standards and improvements required for new subdivisions by Title 19 and the Zoning Code. The Land Use Element of the General Plan designates the subject properties as Single -Unit Residential Detached (RS -D), which is intended to provide primarily for single - family residential units on a single legal lot and does not include condominiums or cooperative housing. The Housing Element does not identify the existing lots as a housing opportunity site in the residential development inventory. The Coastal Land Use Plan designates the properties as Single -Unit Residential Detached (RSD -B) which provides for density ranges from 6.0 -9.9 DU /AC. The Zoning Code designation is Single -Unit Residential (R -1), which is also intended for single - family residential development. The existing development of single -unit dwellings on each property and the proposed development of a single -unit dwelling on the merged site are consistent with these designations. SECTION 4. DECISION. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY RESOLVE TO: Approve Lot Merger No. LM2011 -002 with the alternative development standards as ;e mendedytvoluntarily proposed by the applicant ^ MaFAI; ", 244-2, and waive�ef the requirement to file a parcel map for property, under common ownership, consisting of portions of Lots 4, 5, and 6 of Block 34 located in Corona del Mar, and subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. This approval reverses the decision of denial of the Planning Commission on October 20, 2011. 2. This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. City Council Resolution No. _ Page 7 of 9 3. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 4. This resolution was approved, passed and adopted at a regular meeting of the City Council of the City of Newport Beach, held on the 8th day of May, 2012. MAYOR ATTEST: CITY CLERK City Council Resolution No. Pace 8of_ 9 EXHIBIT "A" CONDITIONS OF APPROVAL 1. Prior to recordation of the lot merger, the applicant shall provide a copy of a recorded instrument in the form provided to the City Council at the time of the hearing of this matter which is attached hereto, setting forth the voluntary alternative development standards proposed by the applicant, that will apply to all future development of the merged properties and be superior and not subordinate to anv mortgage or lien on the merged properties and the instrument shall remain in effect unless and until— terminated by written agreement by the Community Development Director of the City of Newport Beach. 2. Prior to recordation of the lot merger, at least one of the existing dwelling units shall be demolished. At no time shall there be more than one dwelling unit located on the merged parcel. 3. Prior to recordation of the lot merger, grant deeds indicating any changes in titles of ownership should be submitted to the Public Works Department for review and approval. 4. The lot merger and grant deeds reviewed and approved by the Public Works Department should be filed concurrently with the County Recorder and County Assessor's Offices. 5. Prior to issuance of the building permit for any new construction on the property, the Planning Division shall verify recordation of the lot merger with the County Recorder The design of the development shall not conflict with any easements acquired by the public at large for access through or use of property within the proposed development. 6. All improvements shall be constructed as required by Ordinance and the Public Works Department. 7. The existing broken and /or otherwise damaged concrete sidewalk panels along the Ocean Boulevard frontage shall be reconstructed. Limits of the reconstruction shall be determined by the City Public Works Inspector. 8. All existing drainage facilities in the public right -of -way, including the existing curb drains along Ocean Boulevard, shall be retrofitted to comply with the City's on -site, non -storm runoff retention requirements. 9. All on -site drainage shall comply with the latest City Water Quality requirements. 10. All existing private, non - standard improvements within the public right -of -way and /or extensions of private, non - standard improvements into the public right -of -way fronting the development site shall be removed. 11. New sod or low groundcovers, as approved by the City, shall be installed within the parkway fronting the development site along Ocean Boulevard. 12. An encroachment permit is required for all work activities within the public right -of -way. 13. All improvements shall comply with the City's sight distance requirement. See City Standard 11 0 -L. City Council Resolution No. _ Page 9 of 9 14. The existing sewer lateral to be used for the future dwelling unit shall have a sewer cleanout installed within the utilities easement per STD - 406 -L. All other laterals to be abandoned shall be capped at the property line. 15. All unused water services to be abandoned shall be capped at the corporation stop. 16. 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. 17. All applicable Public Works Department plan check fees shall be paid prior to review of the lot merger and grant deeds. 18. No building permits may be issued until the appeal period has expired, unless otherwise approved by the Planning Division. 19. This approval shall expire unless exercised within 24 months from the date of approval as specified in Section 20.93.050 of the Newport Beach Municipal Code. 20. 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 the 2808 and 2812 Ocean Boulevard Lot Merger including, but not limited to, Lot Merger No. LM2011 -002 (PA2011 -141). 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. RECORDING REQUESTED BY AND WHEN RECORDED PLEASE RETURN TO: CITY OF NEWPORT BEACH City Clerk 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 Exempt from recording fees pursuant to Government Code section 27383 THIS SPACE FOR RECORDER'S USE ONLY RESTRICTIVE COVENANT The undersigned hereby certify that we are the owners of the following described real property (the "Property ") located in the City of Newport Beach, County of Orange, State of California, commonly known as 2808 Ocean Boulevard and 2812 Ocean Boulevard, Newport Beach, CA, 92663; Assessor's Parcel Numbers: 052 061 26 and 052 061 25; more particularly described as follows: Portions of Lots 4, 5, and 6 of Block 34 of Corona del Mar Parties: John Guida as Trustee of the John Guida Trust dated September 17, 2010, and Julie Guida as Trustee of the Julie Guida Trust dated September 17, 2010, hereafter the "Owners." Mailing address: 8 Old Course Drive Newport Beach, CA 92660 City of Newport Beach, a Municipal Corporation, the "City." Mailing address Planning Department City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 Whereas, the Owners have applied to the City for merger of the two adjacent lots which comprise the Property; Whereas, in order for the City Council to make the findings to approve the Owners' application for merger of the two adjacent lots, the Owners have agreed to voluntarily place restrictions upon the merged lot to limit the maximum floor area of any structure to be built upon the merged lot; Whereas, so the City Council can make the findings to merge the lots, the Owners have agreed to place restrictions upon the merged lot to limit the maximum height of the new flat -roof single family dwelling to be built upon the merged lot; Now, therefore, for valuable consideration the receipt of which is hereby acknowledged, the Owners hereby promise, declare and agree as follows: 1. The height of the new flat -roof single family dwelling constructed upon the merged lot, property, measured from an Established Grade (per NAVD88) of 70.2 feet, shall not exceed: a) 15 feet, 6 inches (floor to roof deck) for 34 percent of the Floor Area Limit of the primary structure; b) 15 feet, measured to top of roof, for 33 percent of the Floor Area Limit of the primary structure; c) 14 feet, measured to top of roof for 33 percent of the Floor Area Limit of the primary structure; and d) Roof deck railings may exceed these maximum heights, but railings shall be transparent and shall be no higher than the higher of the minimum height required by the building code in effect at the time of construction or the minimum height required by the building code, as amended, after construction. 2. For any structure constructed upon the merged lot, property, the Floor Area Limit (FAL), as defined in the City's Zoning Code in effect on the date this Covenant is recorded, shall not exceed 1.0, provided that the square footage of the structure's subterranean level shall not be included in calculating the FAL. 3. For any structure constructed upon the merged lot, property, the setbacks shall comply with the following: a) Front — no less than twenty (20) feet; b) Rear — no less than ten (10) feet; c) Right side — no less than six (6) feet; and d) Left side - no less than six (6) feet. 4. In all other respects, the property and any structure constructed thereon shall comply with all development standards required by the City's Zoning Code for R -1 (Single Unit Residential) in effect at the time of construction. 5. This Restrictive Covenant shall run with the merged lot, property, and shall - be binding upon the Owners, and any and all future owners, encumbrances, successors in interest, heirs, and assignees who acquire, in any way, all or any portion of the title to the real property described above, and shall continue in effect until such time as the Community Development Director of the City of Newport Beach terminates this Covenant via written instruments. 6. The Owners affirmatively represent and warrant that this is voluntary and that the persons executing this agreement have authority to execute the agreement and bind the owners hereto. DATED: S ' F ^/ ;�_ OWNERS: John Guida, Trustee J lie Guida, Trustee John Guida Trust Julie Guida Trust u /d /t September 17, 2010 u /d /t September 17, 2010 CERTIFICATE OF ACKNOWLEDGEMENT State of California ) County of ORANGE) On before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) CERTIFICATE OF ACKNOWLEDGEMENT State of California ) County of ORANGE) On before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature (Seal) Brown, Leilani From: Harp, Aaron Sent: Tuesday, May 08, 2012 10:39 AM etCElU ,. E Gia� To: Brown, Leilani PRi":i6D: "tt'" Cc: Brandt, Kim; Mulvihill, Leonie Subject: FW: ••• IMPORTANT FINAL DETAILS re: THE GUIDA LOT MERGER ••• Attachments: New Risk of Curb Cut.pdf; Comment CDM Today.pdf; Campbell Impact.jpg; Silva Impact.jpg; SILVA SUNSET VIEW.jpg FYI From: Jeffrey DuFine jmailto:okcd(alflash.net1 Sent: Tuesday, May 08, 2012 10:07 AM To: Harp, Aaron; Mulvihill, Leonie Subject: ••a IMPORTANT FINAL DETAILS re: THE GUIDA LOT MERGER ••• Dear Aaron and Leoni, I am the son in law of the Robin & Joan Campbell. Because, in his conversation with you, Cliff Jones has told you that we would not spring any surprises on you, please read the following pertinent risks associated with this merger. Also, I am sure you are now aware that Mr. Stephen Miles is representing us. I truly respect the difficult job the entire city staff does to judge each project on it's own merits. I have to believe you will see that this project has too many real risks associated with it. It is not a merger in a vacuum. I hope you grasp the positively negative impacts that accompany this merger. This is a project that clearly does not conform with the protections that the Lot Merger Ordinance offers. The fact is that the following are insurmountable problems that Mr. Guida's lobbyist, Ms. Coralee Newman of Government Solutions, did not foresee and cannot address. Because this matter is before the City Council tonight, please consider the following: (Please take a quick look at the enclosures regarding risk sure to flow from this merger.) This is not simply a Lot Merger anymore. The City has asked for and received building plans and deed restrictions in an effort to work this out. There are definite negative impacts with risky ramifications that will result from granting this merger. These will clearly result in many foreseeable problems for the city, public and tourists alike. In addition, if Mr. Guida loses the right to use the road to the rear of his property, and the safety impacts of a curb cut are too great, he will have a merged lot with no access. You can't put the cart before the horse. As we know what Mr. Guida intends to build, with it's enormous 5,000 — 6,000 sq.ft. basement and no certain access, there are still many hurdles for Mr. Guida to cross (covenants, access, CEQA, Coastal Commission, Traffic Safety) before this most problematical merger can even be considered. Also to be considered is that there are no commercial or private vehicles associated with construction allowed on a road where personal ingress and egress is all that is permitted. Now you have the specter of cranes, dump trucks (to haul away 6,000 feet of excavated dirt) entering on Ocean Boulevard at Lookout Point (a blind corner) during the height of the tourist season to deal with. As you know, each merger must be looked at on an individual basis with it's associated benefits and risks. It should be clear by now that we oppose the merger because of the lot's size and the size of the structure to be built. Now, the burden has been shifted to the City, it's staff, traffic engineers to explain how a curb cut at that point on Ocean Blvd. won't have real and potential detrimental impact to the public health, safety and welfare. It would he unwise at best and perhaps negligent to overlook this and other impacts sure to occur if the merger is approved. Also, an excavation of that size at that point The bottom of the hill directly above Lookout Point and the bluff) for Mr. Guida's bowling alleys will not sit well with the Coastal Commission. The results stemming from this merger are staggering. It will affect more than just the Campbells and the Silvas. It will severely impact: 1. Tourism 2. Traffic Flow 3. Pedestrian Safety 4. Motorist Safety 5. Could compromise the hill above and the bluff below Lookout Point 6. City Treasury and Insurance would be affected from the increased risks. Thanks so much for the time and consideration all the Council Members have given. Jeff DuFine Lucy Campbell RISK & IMPACT of CURB CURT on OCEAN BLVD: Since, the City is neither mandated or compelled to grant a curb cut on Ocean Boulevard, the Lot Merger Ordinance findings are not satisfied and must result in denial: "Neither the lots as merged nor adjoining parcels will be deprived of legal access as a result of the merger." Granting of a curb cut would be fraught with much potential cost and harm to the city, it's residents, and the many tourists who flock to that area. The curb cut in question would be on Ocean Boulevard across from Lookout Point. It is a blind corner leading to a major Corona Del Mar street. It is a point where unfettered foot traffic across Ocean Blvd. is at it's greatest. In order to accommodate one man and one merged lot the following would have to occur for the safety of pedestrians and motorists alike. 1. A stop sign or traffic light at that corner would have to be installed. 2. A crosswalk for the protection pedestrians in the face of motorists dealing with driveway outflow. 3. When the rear access is removed, all construction vehicles must enter and/or park from Ocean Blvd. 4. An evaluation and risk analysis must be undertaken (at great expense) by an independent expert to guarantee the safety of pedestrians & motorists put at increased risk by this curb cut. 5. Potential lawsuits and hike in insurance premiums would be immense if the curb cut resulted in any accidents due to the increased risks stemming from their approval and installation. 6. All the above would come at great cost to the Newport City treasury and would surely be opposed by the constituents who would see no benefit from this merger and curb cut. CURB CUTS & OTHER ALTERATIONS TO PUBLIC STREETS Chapter 13.06.050: Standards for Issuance of Permit. The Public Works Director shall issue a permit hereunder when he finds: That the work will conform to the requirements set forth in the driveway approach policy adopted by the City Council, as well as the Standard Specifications of the City for public work of like character; * 2. That the project as proposed will not unreasonably interfere with vehicular and pedestrian traffic, the demand and necessity for parking spaces and the means of ingress and caress to and from the property affected and adjacent properties: "` 3. That the health, welfare and safety of the public will not be unreasonably impaired (Ord. 1320 ti 1 (part): December 8, 1969) Finally, what is being proposed is a 13,699 sq.ft. lot with a 22' tall (top of roof railings) "one story house" with two nonfunctional chimneys rising above the railing an additional 4 feet. Additionally, the 5,000 sq.ft. basement (not considered in Mr. Guida's 1.0 self imposed FAR) is extremely problematical. It would be one of the largest subterranean excavations in Corona Del Mar. It is at the base of the slope, on the North side of Ocean Blvd., and mere yards above the "Lookout Point" bluff. I believe that it could severely undermine the entire hill and that the Coastal Commission would have to address this. I believe that the public and politicians alike can see the wisdom reflected in this quote from former President Ronald Reagan; `Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing......" 19.04.020 Purpose 1. The creation of subdivisions which are consistent with and serve to implement the policies and provisions of the General Plan; 2. The conservation of open space in the City; 3. The protection of landowners, lot purchasers and surrounding residents; 4. The provision of orderly and controlled growth within the City; 5. The provision of adequate traffic circulation, utilities and other services; 6. The protection and stabilization of property values; and 7. The preservation of the public health, safety and general welfare. Lot Merger An application for a Lot Merger may be accepted when it can be determined that the proposal complies with the following specifications: (Chapter 19.68) } 1. Approval of the merger will not, under the circumstances of this 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 lot merger is consistent with the legislative intent of this title. 2. The lots to be merged are under common fee ownership at the time of the merger. 3. The lots as merged will be consistent or will be more closely compatible with the applicable zoning regulations and will be consistent with other regulations relating to the subject property including but not limited to. the General Plan and any applicable Coastal Plan or Specific Plan 4. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a result of the merger. 5. The lots as merged will be consistent with the surrounding pattern of development and will not create an excessively large lot that is not compatible with the surrounding development The Guida project cannot be approved and is not able to be voted on because there are too many open questions as to it's detrimental impact to public health, welfare and safety...... 1. Will Mr. Guida be able to continue to use the current road behind his house as a driveway? 2. 1s the City mandated to give a curb cut that will affect traffic flow, and the liability risk to the city front the increased danger to motorists and pedestrians. 3. What are the ramifications to the public of a curb cut for Mr. Guida to install a drive way onto Ocean Blvd. on a blind corner with one of the largest anion is of pedestrian traffic in the Cih'? 4. Should there be all environmental impact study filed addressing a driveway before the Council takes anV action? 5. What is the impact of all the construction vehicles entering, leaving and parking on Ocean Blvd. opposite Lookout Point daring the height of the tourist season? 6. What is the impact of a 5,000 — 6,000 s9;ff. excavation at the base of the hill yards fi-om the bluff at Lookout Pont? 7. Shouldn't Mr. Guida be required to provide a certificate finny the applicable Landmark or Registry Commission that his plan is in compliance with applicable standards as to demolition of a rare and historic raid century modern house overlooking the ocean? TERMINATI ®N OF PERMISSI ®N TO USE ROAD: 1. The parcels subject to the merge are 2 parcels of a 5 parcel re- subdivision that occurred in the 1950s. These 5 lots at that time were 4 lots. In order to make each of the lots more developable, they were reconfigured into 5 lots, resulting in 5 lots that are inherently tied together through their configuration, access easements and restrictive height covenant. The merging of these two lots exacts an extreme hardship for the remaining three lots and other nearby lots. 2. if the Lot Merger is approved Mr. Cuida's permission to use the 96' road running through the Campbell and Silva properties to the rear of his property will be terminated. 3. A view covenant, preventing anyone from blocking the view of the easement owners and relating to the size of the structure, limits it to what was a standard 'I story' house of that type in 1951. 4. As to the intention of a 'I story' house, we have the actual houses built by the original subdivider at the time the 1951 covenant came into existence. 5. In order to maximize the value of the properties, the original owners put a ' I story' limit on the 3 front properties in order to preserve the views of the rear properties. Also an easement and/ or permission to use the 96' road to the front properties was granted quid pro quo for the preservation of said views. As a part of this there were a total of I l deed restrictions and /or easements 6. Since this is a matter that must eventually be adjudicated in court (along with the I l other covenants covering these 5 properties) no decision regarding access may be made until such time as all these matters are resolved. 7. Lastly, under no circumstances can the road be used for commercial or private vehicles relating to any and all construction to be done on Mr. Guida's property. Permission to use the road is only for ingress or egress of the individual owners and is not intended for commercial vehicle use. COMMENT IN CDM TODAY January 19th, 2012 The size and /or configuration of a proposed house to be built on the combined parcels is not the issue before the city. There were no building plans submitted to the planning commission when it made its ruling to overturn the approval of the lot merge. The issue is whether or not a lot merge in this particular location is appropriate and compatible with the surrounding development. Pursuant to the zoning code, the approval of the lot merge must not be detrimental to the health, safety, peace, comfort and general welfare of persons residing in the neighborhood or be detrimental to property and improvements in the neighborhood. While lot mergers within the city and more particularly in CdM have been approved without significant opposition, they were approved based upon their individual merits. As Jamie points out, lot mergers are not a bad thing, however, one must dig deeper into the specifics of this case in order to make a judgment that is consistent with our zoning code. The reason lot mergers require a hearing is because each and every case is different and each case must be reviewed based upon its own unique merits. Lot mergers are not uniformly acceptable in all cases. Sometimes the impacts are too great to approve, otherwise, lot mergers would be allowable without discretionary review. Pre - merge, these two lots, at 7,217 and 6,483 square feet, are significantly larger than the 3,600 square foot typical lot size in CdM. Combined, these lots will total 13,699 square feet allowing for a home of over 15,000 square feet to be built. While there are parcels of this size in CdM along Ocean Boulevard, they are the exception and not the rule. Unlike lots created at the time of the original subdivision of CdM, the subject lots were created more recently via a re- subdivision of the original CdM lot subdivision. The parcels subject to the merge are 2 parcels of a 5 parcel re- subdivision that occurred in the 1950s. These 5 lots at that time were 4 lots. In order to make each of the lots more developable, they were reconfigured into 5 lots, resulting in 5 lots that are inherently tied together through their configuration, access easements and restrictive height covenant. The merging of these two lots exacts an extreme hardship for the remaining three lots and other nearby lots. On a general note, lot mergers are not without impacts. When 2 lots are merged, sideyard setbacks along the common or merged lot line disappear. After a merge, the elimination of these sideyard setbacks renders the combined lot with more buildable area than the sum of the buildable area of the lots before they were merged. This allows greater building mass and density than if the lots were not merged. Further, open space is lost in the area of these disappearing sideyard setbacks. While this impact in many cases can be negligible, in this case it is significant. We should not chastise applicants from making bold applications, nor should we chastise imbedded residents from trying to protect what they have. We should simply employ consistency in applying the codes that govern our community. In this case, as evidenced by the planning commission's diligent review and the support of several hundred residents signing a petition affirming their support for the planning commission's decision, the city council should deny the applicant's appeal and reject the lot merge. � d 1 �l + P A'I � x 7A t t v ; .f?f a1 � R� t y y a Y 'y, 4 ' rte. t� t�a�ti l p x it l If P� �J r. Ll i I. CAI °y q ' I�ti }, } a� .�r m Harris, Lillian From: Brown, Leilani Sent: Tuesday, May 08, 2012 4:23 PM "RECEIVED AFTER AGENDA To: Harris, Lillian PRINTED:" FW: 2808 and 2812 Ocean Boulevard Lot Merger (Item 11) Attachments: Lot Merger Opposition Letter.MLG.050812.pdf J From: Stephen Miles [mailto :smiles @mileslawgroup.coml Sent: Tuesday, May 08, 2012 4:25 PM To: Brown, Leilani Cc: Mulvihill, Leonie Subject: FW: 2808 and 2812 Ocean Boulevard Lot Merger (Item 11) From: Stephen Miles j_ mailto :smiles@mileslawgroup.coml Sent: Tuesday, May 08, 2012 4:05 PM To: 'LBrown @newportbeach.ca.gov' Cc: 'LMulvihill @newportbeach.ca.gov' Subject: 2808 and 2812 Ocean Boulevard Lot Merger (Item 11) Ms. Brown, Attached for distribution to the City Council is written commentary concerning the aforementioned Agenda Item on this evening's agenda. Please email this document to all members of the City Council and have copies made for their review prior. Thank you for your professional courtesy and assistance. We do apologize for the late transmittal. Take care, - -Steve Stephen M. Miles, Esq., MSEL 3151 A;rwcy Avenue, Suite R -1 I Cosia Mesa, CA 92626 1 (71) 393 -3389 MILES • LAW GROUP A Profess armor Corporoton IMILES L-Aw GROUP 3151 Almay Avenue, Suite R -1 • Cesta Mcsa, CA 926.26 Phone: 714 364 0113 • Fax 714,556 3905 L A 0 5 E smiles@mileslawgroup.com May 8, 2012 A PROFESSIONAL CORPORATION E 11919090,E N ' • E 9F0 ?LEIAE %! VIA HAND DELIVERYAND ELECTRONIC [LBrown i aewportbeacb.ca.gov] Honorable Mayor- Nancy Gardner & Members of the Newport Beach City Council c/o Leilani Brown, City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Re: 2808 and 2812 Ocean Boulevard Lot Merger Appeal of Planning Commission Denial of Lot Merger No. LM 2011 -002 (Guida) Honorable Mayor Gardner and Members of the Newport Beach City Council: This Office respectfully writes on behalf of several stakeholders — including environmental interests, historic preservationists, and community activists that include Corona Del Mar property owners ( "Stakeholders ") with regard to the aforementioned Lot Merger (the "Lot Merger "). These stakeholders, many that are residents in the immediate area for several generations, will be directly impacted should the City Council sway from the legally appropriate denial of the Lot Merger by the Planning Commission and recommend any merger of two long- standing parcels that currently host historically significant residences constructed in or about 1951. Notably, the residence at 2808 Ocean Boulevard was constructed in the Eichler style and is believed to be a residence designed by A. Quincy Jones, a noted architect and partner of Joseph Eichler. Approval of the Lot Merger by way of a Class 5 Categorical Exemption would result in an approval without a hard look at the mandatory requirements of the California Environmental Quality Act (Cal. Pub. Res. Code § 21000 et seq.; "CEQA ") that apply to the City of Newport Beach before committing to a "project" under CEQA. Moreover, Stakeholders have several legal concerns with regard to California Planning & Zoning Law ( "CP &ZL ") and the City's local, municipal law and regulation. These concerns include those written comments submitted to the City by "Mr. Clifford Jones and neighbors opposed to the approval of the subject lot merger." (January 18, 2012 Memorandum to MILES L-Aw GROUP 3151 Airway Avenue, Suite R -1 • Costa Mesa, CA 9)676 Fhone 714.364.0173 • Fax 714.556 3905 t A N 0 4 i E Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 2 A PROFESSIONAL CORPORATION f N 4 1 A 0 4 Y, E N 1 • F N i P r! E it E 4 1 City Council from Ms. Kay Sims, Assistant Planner.) Notably, the 16 page written commentary submitted by Melinda Luthin, Esq. on behalf of several residents and citizens of Newport Beach (including our stakeholder clients), is incorporated herein by this reference. No circumstances have changed since the Planning Commission's denial of the Lot Merger and substantial evidence continues to support the Planning Commission's determination that mandatory findings pursuant to Title 19 of the Newport Beach Code Chapter 19.68 (Lot Merger Ordinance) could not be made. An approval of the Lot Merger will violate CEQA and CP &ZL. Before taking any such action, the City Council must study the obvious components of the "project" being proposed by Guida, prepare the necessary environmental analysis that will address the health and safety, traffic, land use, aesthetic and historic resource concerns raised by the public, and make appropriate findings to support the Council's discretionary action. To construe this action as simply a lot merger where a boundary line is removed would be an egregious abuse of discretion. As noted by Guida's Representative, Ms. Coralee S. Newman, Principal, Government Solutions, Inc., the appeal by Guida of the denial of the Lot Merger was based on the Guida's residence and, in fact, architectural plans for the Guida's residence were submitted to the City Council as a component of the Lot Merger proceeding. The detail of what has been submitted is obvious by Ms. Newman's conclusion that "the proposed home meets all of the city's zoning, planning, and building standards," where the Guidas "redesigned their home several times to lower the roof line... removed the rear roof deck and removed the associated solid guardrail and eliminated the interior stairs and the elevator to the roof." The fact that the "project" before you includes the proposed demolition of two historically- significant structures and the detailed plans to construct one new residential structure cannot be ignored. I. Approval of the Lot Merger Violates CEQA as a Precommitment to a Project Without Conducting Environmental Analysis Stakeholders believe that if the City Council approves the Lot Merger, the Administrative Record and City Council Staff Report illustrate a precommitment to a project prior to conducting any environmental analysis that is required by CEQA. CEQA requires the City to prepare and "certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment." (Cal. Pub. Res. Code § 21100(a); see also Pub. Res. Code § MILES wV GROUP 3151 At. way Avenue. suite It -: -costa Mesa, CA 92626 A PROFESSIONAL CORPORATION hone; 714.384.0173 • Fax 714.556 3905 t A N D U S E • E N P I R O N M E 8 T R T I T L E M E N T Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 4 to provide meaningful information for environmental assessment. (1) With public projects, at the earliest feasible time, project sponsors shall incorporate environmental considerations into project conceptualization, design, and planning. CEQA compliance should be completed prior to acquisition of a site for a public project. (2) To implement the above principles, public agencies shall not undertake actions concerning the proposed public project that would have a significant adverse effect or limit the choice of alternatives or mitigation measures, before completion of CEQA compliance. For example, agencies shall not:... (B) Otherwise take any action which gives impetus to a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project." (CEQA Guidelines § 15004(b), Emphasis added; See, also, Cedar Fair LLP v. City of Santa Clara (2011) 194 Cal. App. 4th 1150, 1162 -63.) The facts reflected in the Administrative Record before the Planning Commission and this City Council are clear – the City is being asked to commit to a Lot Merger that includes foreseeable demolition and development consequences prior to conducting environmental analysis for this project. Proposed factual findings even go so far as to establish a contingent access for the merger without any consideration of whether the access on Ocean Boulevard is feasible —and if so —at what environmental cost to the public. This out -of- sequence decision - making process, conducted without a scintilla of environmental analysis, is a blatant violation of CEQA where projects require the incorporation of environmental considerations at the earliest feasible time —not after -the- fact. (CEQA Guidelines § 15004(b).) "A fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project, not to inform them of the environmental effects of projects that they have already approved. "].) (Save Tara, 45 Cal.4th at 134; emphasis in original.) No information has been provided to the decision makers (or the public) that can be used to decide whether to approve a project including the merger of parcels, the demolition of historically - significant structures, and that results in potentially unmitigated land use, traffic, and aesthetic impacts. The City Council Staff Report does nothing more than show the City's potential commitment to a preordained IMILES LAW GROUP 3151 Airway Avenue, Suite R 1 • Costa Mesa, CA 92626 A PROFESSIONAL CORPORATION Phone: 714 384 01.73 • Fax 714 556 3905 L A N D U S E E N 4 1 n 0 8 •A E N 1 • E II 1 1 r L E V F N i Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 5 outcome and fails to address potential environmental effects associated with the Lot Merger. On a related topic, the City cannot ignore easements and restrictive covenants that relate to the Guida project and the Lot Merger. The City's own draft resolution exemplifies this "practical over the formal" approach. The draft City Resolution recommending approval of the Lot Merger references a "recorded ingress and egress easement" and further notes that if the easement is terminated "vehicular access is possible from Ocean Boulevard at the front of the existing or merged parcels." (Draft City Resolution at Page 4 of 9.) While the City fails to conduct any feasibility analysis of the Ocean Boulevard access or the resulting environmental impacts associated with a curb cut, the City resolution does reflect how easements and restrictive covenants are addressed in the context of a discretionary approval. Ill. A Class 5 Categorical Exemption for the Lot Merger Violates CEQA — An Exception to the Exemption Exists "The `foremost principle' in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Conunanaities for a Better Environment v. Calif Resources Agency (2002) 103 Cal. App. 4th 98, 109.) The EIR is the "heart" of CEQA. (Dunn- Edwards v. BAAQMD (1992) 9 Cal.AppAth 644, 652.) CEQA requires that an agency analyze the potential environmental impacts of its proposed actions in an environmental impact report ( "EIR ") except in certain very limited circumstances. A negative declaration may be prepared instead of an EIR only when a lead agency determines that a project "would not have a significant effect on the environment." (Id., § 21080(c).) Such a detennination may be made only if "[t]here is no substantial evidence in light of the whole record before the lead agency" that such an impact may occur. (M., § 21080(c)(1).) A negative declaration is improper, and an EIR is required, whenever substantial evidence in the record supports a "fair argument" that significant impacts may occur, even if other substantial evidence supports the opposite conclusion. (Mejia v. Los Angeles (2005) 130 Cal.App.4th 322; Pocket Protectors v. Sacramento (2005) 124 Cal.AppAth 903.) "Substantial evidence includes ... expert opinion." (Pub. Res. Code § 21080(e)(1); CEQA Guidelines § 15064(f)(5).) IMILES LAw GROUP 3151 Airway Avenue, Suite R•1 • COSte Mesc, :A 92626 A PROFESSIONAL CORPORATION Phone: 714.384.0173 • Fax 714.556 3905 t 8 N D U S E • E N V C 8 0 N M E N T • E it F I T 1 E it E R 1 Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 6 Here, the City didn't chose a CEQA shortcut, it chose to sidestep the requirements of CEQA altogether by asserting that the Lot Merger qualifies for a Class 5 Categorical Exemption. The Lot Merger and, more aptly, the Guida project, do not qualify for a Categorical Exemption. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. (CEQA Guidelines § 15300.2 (c); Banker's Hill v. City of San Diego (2006) 139 Cal.App.4th 249.) The "unusual circumstances" of the proposed Lot Merger are very evident in the Administrative Record. This is not your garden variety merger of two parcels of vacant land. The Lot Merger is of two long- standing residential parcels that host two homes constructed in 1951 in the California vernacular and Eichler style. The parcels were likewise restricted by easement and covenant that reflects the common development in the neighborhood that occurred over 60 years ago and that currently exists today. The Lot Merger will impact historically - significant resources and result in the loss of a dwelling unit in the coastal zone. Under these circumstances alone, a Class 5 Categorical Exemption is wholly misplaced. The CEQA Guidelines confirm this position: "A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource." (CEQA Guidelines § 15300.2(f); see also, CEQA Guidelines § 15064.5(a)(3), (4) and (b).) Where the City has not addressed the historical significance of the two Eichler -style residences constructed in 1951, the magnitude of impact associated with the demolition of these resources remains in question. (See, Cal. Pub. Resources Code § 21084.1'; CEQA Guidelines § 15064.5(a)(3),(4); Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1045, 1061 -64 [City abused its discretion in failing to address its discretionary Section 21084.1 of the Public Resources Code provides in full that: "A project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment. For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources. Historical resources included in a local register of historical resources, as defined in subdivision (k) of Section 5020. 1, or deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024. 1, are presumed to be historically or culturally significant for purposes of this section, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally significant. The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, . or not deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1 shall not preclude a lead agency from determining whether the resource maybe an historical resource for purposes of this section." (Emphasis added.) ,i!N , RMILES A. • P 31.51 Airway Avenue,Suite R -1 • Costa Nleaa, CA 92626 A PROF .55iONAL CORPORATION Phone 714384.0173 - Fa1(714.5563905 E n it 0 U S E e! 11 1 9 0 N M i N S • E N T! T t E M E ii T Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 7 determination of historical significance for an unlisted historical resource].) This is an abuse of discretion under CEQA that verifies why the Lot Merger is not entitled to a Class 5 Categorical Exemption. Ill. The Lot Merger Violates California's No- Net -Loss in Dousing Density Law Preempting the exercise of local police power over residential land use, in 2002 the Legislature enacted the "No- Net - Loss -in- Zoning Density Law" for the purpose of "limiting downzonings and density reductions." (Stats. 2002, c. 706 [A.B. 2292], § 1; Gov't Code § 65582.1(i).) Written in extremely broad terms, it imposes the following constraint on lowering the density of any parcel of land designated for residential development: "No city, county, or city and county shall, by administrative, quasi-judicial, legislative, or other action, reduce, or require or permit the reduction of, the residential density for any parcel to, or allow development of any parcel at, a lower residential density, ... unless the city, county, or city and county makes written findings supported by substantial evidence of both of the following: (1) The reduction is consistent with the adopted general plan, including the housing element. (2) The remaining sites identified in the housing element are adequate to accommodate the jurisdiction's share of the regional housing need pursuant to [Governrnent Code] Section 65584." (Gov't Code § 65863(b); emphasis added.) "Lower residential density" is defined as either "a density below the density used in the [housing element] inventory to determine the total housing unit capacity" or "a density that is lower than 80 percent of the maximum allowable residential density of that parcel." (Govt. Code § 65863(h).) The No- Net - Loss -in Zoning Density Law is clear and unequivocal: any action to reduce the density of "any parcel" to a "lower residential density" requires a city or county to make two "written findings supported by substantial evidence." (Gov't Code § 65863(b).) The Lot Merger will result in a density that is 50 percent of the maximum allowable residential density prior to the merger. The City has failed to make any mandatory finding under the No- Net - Loss -in- Zoning Density Law in conjunction with the Lot Merger. This is an abuse of discretion that will not be excused by a reviewing Court. "An administrative agency must "render findings sufficient both to kl�W MILES LAw GROUP 3151 Airway Avenue. Suite R.4 • Costa Mesa, CA 92626 A PROFE55 #ONAL CORPORATION Phone: 714 384.0173 • Pau "14.556 3905 t A Y P 9 S E E N V, R 0 N Al E N 1 • E N 1 1 1 t E Ai E N T Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 8 enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board's action." (Topanga Assn. For a Scenic Community v. County ofLos Angeles (1974) 11 Ca1.3d 506, 514.) "A findings requirement `serves to conduce the administrative body to draw legally relevant sub - conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing court to trace and examine the agency's mode of analysis. [Citations.]' (Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 516, fn. omitted.)" (Southern. Pacific Transportation Co. v. State Bd. of Equalization (1981) 191 Cal.App.3d 938, 954.) IV. Mailing List Request This Office hereby respectfully requests that the City send by mail and electronic mail to the address above notice of any and all actions or hearings or related to activities undertaken, authorized, approved, permitted, licensed, or certified by the City Council or Planning Commission related to the Guida project or Lot Merger. This request is for notices of CEQA actions and notices of any approvals or public hearings to be held under any provision of Title 7 of the California Government Code governing California Planning and Zoning Law, as well as the City of Newport Beach Charter or Municipal Code. This request is filed pursuant to Pub. Res. Code §§ 21092.2, and 21167(f) and Government Code § 65092, which require local agencies to mail such notices to any person who has filed a written request for them with the clerk of the agency's governing body. IMILES 3151 Airway Avenuc, Suite F -1 • Costa Mesa, CA 92625 A PROs ESSIONAL CORPORATION Phone:: 14.384.0173 • Fax 714.556 3905 1. A N 0 USE • E `, V 's A. 6 8 51 c M T • E ii T i T E E hi E" T Honorable Mayor Nancy Gardner & Members of the Newport Beach City Council May 8, 2012 Page 9 V. CONCLUSION In sum, for all these reasons, if the City Council acts to precommit to the Lot Merger prior to complying with CEQA and additional State and local mandates, my clients will have no choice but to pursue all available legal remedies against the City and its abuse of discretion. Thank you for consideration of this letter. Please do not hesitate to contact us if you have any questions. Very truly yours, Il $S ^LAW GR. OUP, ,C. % � li By: St phen M. Miles cc: Ms. Leoni Mulvihill, Deputy City Attorney (via email) Z. OC" le,