HomeMy WebLinkAbout18 - Appeal of Denial of Lot Merger LM2011-002 to Merge 2808 and 2812 Ocean= CITY OF
NEWPORT BEACH
C9�M00.N`P City Council Staff Report Agenda Item No. 18
June 26, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandtCa�newportbeachca gov
PREPARED BY: Kay Sims, Assistant Planner
APPROVED:_
TITLE: Appeal of Denial of J Merger No. LM2011 -002
to Merge 2808 and 2812 Ocean Boulevard
(PA2011 -141)
ABSTRACT
An appeal of the Planning Commission's October 20, 2011, decision to deny Lot Merger No.
LM2011 -002, reversing the Zoning Administrator's approval to allow the merger of the following
property under common ownership: portions of Lots 4, 5, and 6 of Block 34 located in Corona del
Mar, and waive the requirement to file a parcel map.
At the May 8, 2012, City Council meeting, the Council voted to continue the appeal to provide an
opportunity for the applicant and owners of neighboring properties to meet to discuss the
applicant's voluntarily proposed alternative development standards. This report supplements the
staff report provided for the May 8, 2012, City Council meeting and provides information relating to
the applicant's proposal.
RECOMMENDATION:
1. Conduct a public hearing; and
2. Sustain or reverse the Planning Commission's decision by either:
a. Adopting the draft resolution to deny Lot Merger Application No. LM2011 -002
(Attachment CC 1); or
b. Adopting the draft resolution to approve Lot Merger Application No. LM2011 -002
(Attachment CC 2).
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
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Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 2
VICINITY MAP
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GENERAL PLAN
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LOCATION
GENERAL PLAN
ZONING
CURRENT USE
ON -SITE
Single -Unit Residential Detached
Single -Unit Residential
Single- family residence
RS -D
R -1
NORTH
Single -Unit Residential Detached
Single -Unit Residential
Single- family residence
RS -D
R -1
SOUTH
Parks and Recreation
Parks and Recreation
Park, beach, and public restrooms
PR
PR
EAST
Single -Unit Residential Detached
Single -Unit Residential
Single - family residence
(RS-D)
(R -1)
WEST
Single -Unit Residential Detached
Single -Unit Residential
Single- family residence
RS -D)
R -1
2
Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 3
INTRODUCTION:
Proiect Description and Settin
The applicant proposes to combine 2808 and 2812 Ocean Boulevard for the purpose of
developing a new single - family residence. Furthermore, the applicant proposes to limit
development of the merged property by applying alternative development standards for floor
area, side setbacks, and height, which are more restrictive than those required by the Zoning
Code. The applicant has provided a signed /executed restrictive covenant that details the self
imposed restrictions. If the lot merger is approved, the restrictive covenant will be recorded
requiring future development of the merged properties to comply with the alternative
development standards.
The subject properties are located in Corona del Mar adjacent to the northeasterly (inland) side
of Ocean Boulevard between Goldenrod and Heliotrope Avenues. The two properties consist of
portions of Lots 4, 5, and 6 of Block 34. They are generally rectangular in shape with skewed
front property lines and slope gently from the rear toward Ocean Boulevard. Vehicular access is
provided from Ocean Lane via a 20- foot -wide shared, private ingress and egress easement at
the rear of 2812 Ocean Boulevard. Each property is currently developed with a single story,
single - family residence. Lookout Point and Little Corona Beach Park are located directly across
Ocean Boulevard.
Background
City Council Meetings
At the May 8, 2012, meeting, the City Council heard the appeal. During the public comment
period, the applicant's representative, Cora Lee Newman, presented to Council a copy of the
restrictive covenant to be recorded against the merged properties that incorporated his
voluntarily proposed alternative development standards (see Attachment CC 3). Ms. Newman
also stated that applicant would like to amend the restrictive covenant to reflect the applicant's
decision to further reduce the allowed floor area limit (FAL) from 1.0 to 0.75, as recommended
to City Council by the Planning Commission at its March 22, 2012, meeting. The applicant's
architect presented updated plans for a residence that represented compliance with the
voluntary alternative development standards (see May 8, 2012, Resolution of Approval,
Attachment CC 4).
Members of the public spoke both in support and opposition of the proposed lot merger. Various
issues of concern related to the lot merger were raised during the public comment period and
submitted in writing prior to the meeting. These included issues such as: effects to public views,
the need for Coastal Commission review, the possible loss of use of the ingress and egress
access at the rear of 2812 Ocean Boulevard, and others. The City Council also discussed
various issues including: the method of calculating the established grade and alternative height
restrictions proposed by the applicant, size of the merged lot related to density and compliance
with the General Plan, Zoning Code, and Coastal Land Use Plan. After hearing again from the
applicant's representatives to clarify his proposal, the members of the City Council then voted to
continue the subject appeal to its June 26, 2012, meeting, in order to allow the City to facilitate
meetings between the applicant and surrounding neighbors to try to resolve issues related to
the applicant's voluntarily proposed alternative development standards and the lot merger.
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Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 4
June 5, 2012, Meeting of Applicant and Neighbors
On June 5, 2012, City staff members, the applicant and his representatives, and the neighbors
located at 2811 and 2821 Ocean Lane and their representatives met to discuss the concerns of
the neighbors relating to the proposed lot merger and the alternative development standards
voluntarily proposed by the applicant. A copy of a letter summarizing the meeting was written by
the applicant's representative and received by the City on June 7, 2012 (see Attachment CC 4).
Applicant's Revised Restrictive Covenant
On June 11, 2012, the applicant provided the City with a copy of a revised restrictive covenant
and letter summarizing the revisions made to the document provided to the City Council at the
May 8, 2012, City Council meeting (see Attachment CC 5).
Demolition of Existing Single- family Residences
Pursuant to the regulations of Categorical Exclusion Order (CEO) E -77 -5 for single -unit and
two -unit dwellings located within the Coastal Zone, CEO No. 23 -11 for the demolition of the
single - family residences located on the subject properties was issued September 27, 2011, and
became effective October 7, 2011. Demolition permit X2011 -2490 was issued by the City's
Building Division on October 11, 2011. On June 13, 2012, the applicant exercised the permit
and demolished the existing single - family residences.
Issuance of demolition permits are ministerial and are not subject to CEQA. The City's response
to the question raised regarding the previously existing residences as historically significant
resources follows on page 7 (Historically Significant Resources).
DISCUSSION
Comparison of Development Standards
Table 1: Comparison of Development Standards shows the alternative development standards
as recommended by the Planning Commission at its March 22, 2012, meeting, and as proposed
by the applicant to include in a restrictive covenant at the May 8, 2012, City Council meeting
and subsequently revised on June 11, 2012. Previous staff reports provided an analysis of the
City's required standards, the Planning Commission's recommendations, and the applicant's
initial proposal.
The applicant's most recent restrictive covenant reduces the maximum floor area limit further
from 1.0 (FAL) to 0.75 (FAL), which is consistent with the Planning Commission's
recommendation and lower than the 1.5 (FAL) allowed by the Zoning Code. The Zoning Code
requires side setbacks of four feet and the applicant proposes six feet, which is consistent with
the Planning Commission's recommendation. Zoning Code requirements would establish a
grade of 70.2' (NAVD88). The Planning Commission recommended lowering the established
grade by three feet to 67.2' (NAVD88), which would reduce the height. The applicant proposes
an established grade of 68.7' (NAVD88) and no longer incorporates percentages of
development at various maximum heights.
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Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 5
Table 1: Comparison of Development Standards
Development
Planning Commission
May 8, 2012
June 11, 2012
Standards
City
Recommendation
Applicant's Restrictive
Applicant's Revised
Covenant
Restrictive Covenant
Maximum Floor
1.5 x
0.75 x
1.0 x
0.75 x
Area Limit
(FAL)
buildable area*
buildable area*
buildable area*
buildable area*
Side Setbacks
4'
6'
6'
6'
34% up to 166"
34% up to 156"
14'
Maximum
(floor of roof deck) *++
**
(floor of roof deck)
to of roof or floor of roof
(top
Height Limit
24'
33% up to 15'
33% up to 15'
deck ") **
(flat roof /top of
(measured to top of roof)
(measured to top of roof)
railing/ parapet)
33% up to 14'
33% up to 14'
(measure to top of roof)
(measure to top of roof)
Measured from
Established
Grade of :
70.2' (NAVD88)
67.2' (NAVD88)
70.2' (NAVD88)
68.7' (NAVD88)
Subterranean basements not included in maximum FAIL (as per Newport Beach Zoning Code).
'r* Roof deck railings shall be transparent and may exceed the maximum height, but shall be no higher than the minimum
height required by the latest California Building Code
Issues and Concerns Raised
The discussion below addresses various issues of concern raised at public hearings and
received in writing by the City.
Coastal Commission Review and Approval
The question was raised whether Coastal Commission review is required for the lot
merger /future development of the property. The subject properties are located within the
Coastal Zone and are separated from coastal resources by the width of Ocean Boulevard.
Demolition and construction of a single - family residence on the existing properties or the
merged property is subject to review by the California Coastal Commission pursuant to
Categorical Exclusion Order E -77 -5 (CEO). The level of review is dependent on the total square
footage of new development (including basement square footage). If the total square footage
exceeds 1.5 times the buildable area, an AIC (Approval in Concept) application will be reviewed
by the Planning Division. An approved AIC application becomes a part of a Coastal Commission
application. If the total square footage does not exceed 1.5 times the buildable area of a lot, a
Categorical Exclusion Order (CEO) will be prepared by the planner assigned to the plan check.
A copy of the CEO will be mailed to the Coastal Commission and becomes effective after ten
days, if no response is received. At that point, demolition and construction permits can be
issued. As previously stated, CEO No. 23 -11 was prepared for demolition of the previously
existing homes.
The properties located at 200 Poppy Avenue and 204 -218 Hazel Drive are directly abutting
coastal resources and are not subject to Categorical Exclusion Order E -77 -5 (CEO). New
development projects on those properties, regardless of the total square footage, require prior
approval by the City of an AIC ( "Approval in Concept ") and previously discussed.
Coastal Land Use Plan Density
A question was raised concerning the Coastal Land Use Plan density range the as it relates to
approval of the lot merger. The subject properties are located within the area designated as
e
Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 6
Single -Unit Residential Detached with a density range of 6.0 — 9.9 dwelling units per acre (RSD -
B 6.0 — 9.9 DU /AC). This equates to a theoretical lot area range of 4,400 -7,260 square feet.
CLUP policy 2.2.1 -1 states:
Continue to allow redevelopment and infill development within and adjacent to the
existing developed areas in the coastal zone subject to the density and intensity limits
and resource protection policies of the Coastal Land Use Plan.
Section 2.2.3 Exclusion Areas (Residential Areas) of the CLUP includes the following statement:
The permitted residential unit type and maximum density of the Coastal Land Use Plan
reflect the predominant form of development in these areas.
The density ranges, polices and narrative of the Coastal Land Use Plan (CLUP) suggest that
the density range is representative of the predominant development of the entire area and that
the maximum density should be adhered to. The RSD -B area of old Corona del Mar is
comprised of 459 single family lots with an average lot size of 4,846 square feet. The proposed
lot merger would raise the average lot area to 4,857 square feet, still within the RSD -B density
range. It should be noted that many of the original lots in the RSD -B land use category have a
lot area of 3,540 square feet, which is below the 6. -9.9 density range.
Construction Issues
Various concerns were expressed related to future construction on the property. Also of concern
were activities related to construction in the subject location along Ocean Boulevard.
Construction of new single - family residences is a common occurrence within the City, including
along Ocean Boulevard. The City has regulations in place that address construction related
issues such as noise, hours during which construction is allowed, traffic control, haul routes for
construction vehicles, construction phasing, etc. Building plans are reviewed for compliance with
the Municipal Code and California State Building Codes. Issues related to specific plans for a
new single - family residence (i.e. geological stability of the site for construction of a basement) or
construction activities either on the proposed merged property, or the existing properties, if the
lot merger is not approved, would be addressed by the Public Works, Utilities and Building
Departments during plan check, prior to the issuance of building permits or, prior to completion
of construction.
Curb Cut on Ocean Boulevard
The question was raised that if vehicular access via Ocean Lane through a private ingress and
egress easement located at the rear of 2812 Ocean Boulevard is lost, is the City is required to
approve curb cuts along Ocean Boulevard to allow access to the properties and would this be
safe access. The Public Works Director has stated that a curb cut on Ocean Boulevard toward
the southerly side of the merged property could be designed to provide safe and viable
vehicular access. Furthermore, if vehicular access via Ocean Lane is lost and the lot merger is
not approved, redevelopment of one or both of the existing lots would require approval of either
a new curb cut on each of the properties or a shared driveway between the two lots.
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Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 7
Historically Significant Resources
As stated previously, the subject properties were each developed with a single - family residence.
The claim was made that they were either constructed by the mid - century developer, Joseph
Eichler, or were "Eichler like" and therefore significant historical resources. A search of the
City's permit history established that single- family residences were constructed between 1951
and 1953 by the J. Ray Construction Company. The permits do not indicate the name of a
developer or architect, and there are no related original construction plans. Furthermore, the
single - family residences are not listed on the City's Historic Resource Inventory list compiled by
the Ad Hoc Historic Preservation Advisory Committee and are not recognized as national, state,
or local historical resources in the City's Historical Resources Element of the General Plan.
Housing Density
The question was raised relating to Government Code Section 65863 (No- net - loss -in zoning
density law). In this case, this government code section does not apply. Section 65863(g)(1)(A)
clearly states that "lower residential density" refers to sites where residential zoning permits
residential use and (sites) that are indentified in the housing element inventory. This site is not
identified in the City's Housing Element inventory. Therefore, this law does not apply to the
proposed lot merger.
Public Views
Comments were made suggesting that approval of the lot merger would affect public views.
The General Plan and Coastal Land Use Plan have policies and regulations in place to preserve
public views from public view points and public view corridors. The subject properties are
located mid -block on the inland side of Ocean Boulevard, which is a designated scenic corridor
as identified on General Plan Figure NR 3 (Coastal Views). Development on the merged
property would not affect views of the Pacific Ocean from Ocean Boulevard. Views from the
properties located at the rear of the subject properties toward the Pacific Ocean are over private
property. Views from the alley located beyond Ocean Lane are over private property (private
easements) and not from a public view point or north -south street providing a public view
corridor. Additionally, any new development on the existing lot located at 2812 Ocean Boulevard
would be allowed to be located within three feet of the northerly side property line, which would
eliminate views from Ocean Lane.
Summary
The applicant has provided to the City Council a copy of a revised restrictive covenant that
incorporates voluntary alternative development standards that are more restrictive than the
Zoning Code requirements. The applicant proposes to record the restrictive covenant with the
Orange County Recorder's Office as a deed restriction against the merged property, if the lot
merger is approved.
The standards for setbacks and floor area limit are consistent with the development standards
recommended by the Planning Commission at the March 22, 2012, meeting to reconsider the
Planning Commission's denial of the lot merger application. At that time, the Planning
Commission also recommended that development be measured from an established grade of
67.2' (NAVD88), which would reduce the height of each of the applicant's proposed
percentages of development (as stated in Table 1: Comparison of Development Standards) by
rW,
Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 8
three feet. The applicant's revised restrictive covenant (June 11, 2012) incorporates a
development standard that limits the maximum height of the structure to 14 feet (top of roof or
floor of roof deck) and does not limit the percentage of development at that height, or
incorporate other height limits.
Alternatives
If the City Council finds the facts do not support the findings required to grant approval of
the lot merger application, the City Council should adopt the draft resolution (Attachment
No. CC 1) upholding the October 20, 2011, decision of the Planning Commission
reversing the decision of the Zoning Administrator and denying the proposed lot merger.
2. If the City Council finds the facts do support the findings required to grant approval of the
lot merger application, the City Council should adopt the draft resolution (Attachment No.
CC 2), reversing the October 20, 2011, decision of the Planning Commission and
upholding the decision of the Zoning Administrator approving the proposed lot merger.
ENVIRONMENTAL REVIEW:
Pursuant to Section 15270, the project is not subject to the California Environmental Quality
Act (CEQA) Guidelines, should City Council uphold the Planning Commission's decision on
October 20, 2011, and deny this project.
2. Should City Council reverse the decision of the Planning Commission on October 20, 2011,
and approve this project, staff recommends the City Council find this project exempt from
CEQA, pursuant to Section 15303 (Class 3 — New Construction or Conversion of Small
Structures), Section 15305 (Class 5 - Minor Alterations in Land Use Limitations), and
Section 15 (Class 15 — Minor Land Divisions) of the Implementing Guidelines of the
California Environmental Quality Act (CEQA), because it has no potential to have a
significant effect on the environment.
The proposed project involves the merger of two lots into one parcel and the lot is zoned
for single - family residential use. In this case, the following two exemptions are
applicable:
Class 5 (Minor Alterations in Land Use Limitations) 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) which provides for density
ranges from 6.0 -9.9 DU /AC. The density ranges, policies and narrrative of the
CLUP indicate that the desnity range is representatvie of the predominant
development of the entire RSD -B area in old Corona del Mar and that development
should not exceed the maximum density. The Zoning Code designation is Single -
Unit Residential (R -1), which is also intended for single - family residential
development.
N
Appeal — Lot Merger No. LM2011 -002 (PA2011 -141)
June 26, 2012
Page 9
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.
Class 15 (Minor Land Divisions, Section 15315) exempts divisions of property
zoned for residential use into four or fewer parcels when in conformance with the
General Plan and zoning, no variances or exceptions are required, and all services
and access are available. In this case, the parcel merger will combine the existing
lots into one parcel and the resulting lot complies with the General Plan and zoning.
Additionally, access is provided and all services are available.
Anticipated re- development on the merged lot would be limited to construction of a
single family home and typical accessory structures. This activity would qualify for a
Class 3 Exemption.
Class 3 (New Construction or Conversion of Small Structures, Section 15303)
exempts projects that consist of construction and location of limited numbers of
new, small facilities or structures and includes construction of one single - family
dwelling unit in a residential zone.
Submitted by:
Attachments:
CC 1 Draft Resolution to Deny
CC 2 Draft Resolution to Approve
CC 3 Correspondence Received at May 8, 2012, Meeting
CC 4 Letter Received Summarizing June 5, 2012, Meeting
CC 5 From Applicant:
Letters and Copy of Restrictive Covenant
I
10
City Council
Attachment 1
Draft Resolution to Deny
June 26, 2012
21
12
RESOLUTION NO. ####
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH, DENYING LOT MERGER APPLICATION 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 (PA2011 -141).
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. 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).
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.
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.
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.
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City Council Resolution No.
June 26, 2012
Page 2 of 5
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 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 Planning 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. The Planning
Commission also recommended that the condition of approval related to the applicant's
restrictive covenant be 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 restrictive 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
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.
Tmplt: 03/08111
14
City Council Resolution No.
June 26, 2012
Page 3 of 5
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:
• Floor Area Limit (FALL:
- 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)
• 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.
• Setbacks:
- Front — 20 feet
- Rear — 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
21. During the public comment period, the applicant also stated that the Restrictive Covenant
would be amended to further restrict the allowed floor area limit (FAL) from 1.0 to 0.75, as
recommended by the Planning Commission at its March 22, 2012, meeting.
22. After the public comment period and discussion of the issues, the City Council voted to
continue the appeal to the June 26, 2012, meeting in order to allow City staff to facilitate
meetings between the applicant and surrounding neighbors to try to resolve issues related to
the applicant's voluntarily proposed alternative development standards.
23. On June 18, 2012, the applicant provided the City with a copy of a document entitled
"Restrictive Covenant" that incorporated revisions to the original document provided to the City
Council at the May 8, 2012, City Council meeting. The applicant proposes to record the
restrictive covenant with the Orange County Recorder's Office as a deed restriction against the
merged property, if the lot merger is approved.
Tmplt: 03/08/11
15
City Council Resolution No.
June 26, 2012
Page 4 of 5
24. As stated in the revised "Restrictive Covenant ", the applicant proposes the following voluntary
alternative development standards:
• Floor Area Limit (FAL):
0.75 (0.75 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)
• Maximum height for flat roof or top of floor of roof deck:
- 14 feet
- "Established Grade" for the purpose of measuring height for the principal structure
shall be 68.7' (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.
• Setbacks:
- Front — 20 feet
- Rear — 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
25. Pursuant to the regulations of Categorical Exclusion Order (CEO) E -77 -5 for single -unit and
two -unit dwellings located within the Coastal Zone, CEO No. 23 -11 for the demolition of the
single - family residences located on the subject properties was issued September 27, 2011,
and became effective October 7, 2011. Demolition permit X2011 -2490 was issued by the
City's Building Division on October 11, 2011. On June 13, 2012, the applicant exercised the
permit and demolished the existing single - family residences.
26. A public hearing was held by the City Council on June 26, 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 City Council at this
meeting.
27. Based on the reasons stated below in Section 3. FINDINGS, the City Council voted to deny
Lot Merger Application No. LM2011 -002, upholding the Planning Commission's October 20,
2011, decision to deny the application.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
Pursuant to Section 15270 of the California Environmental Quality Act (CEQA) Guidelines, projects which
a public agency rejects or disapproves are not subject to CEQA review.
Tmplt: 03/08/11
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City Council Resolution No.
June 26, 2012
Page 5 of 5
SECTION 3. FINDINGS.
The City Council may approve a lot merger application only after making each of the required findings
set forth in Section 19.68.030.H of Title 19 (Subdivision Code: Lot Mergers, Required Findings). In
this case, the City Council denied the lot merger application for the following reasons:
A. The lot merger would allow development that is incompatible with the size and mass of
structures on neighboring properties within Block 34 and in the surrounding area. The removal
of the interior lot line would eliminate the interior side setback (three feet) on each property,
create a buildable area greater than currently exists on the two separate lots, and eliminate the
open space that the interior side setbacks currently provide.
B. The lot merger would create a lot size and configuration, which is inconsistent with the
development pattern of the subject properties and surrounding lots within Block 34 and in the
surrounding area.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The City Council of the City of Newport Beach hereby denies Lot Merger No. LM2011 -022
(PA2011 -141), which includes a request to waive the requirement to file a parcel map, and
upholds the decision of the Planning Commission made 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.
3. This decision was based on the particulars of the individual case and does not in and of itself
or in combination with other decisions in the vicinity or citywide constitute a precedent for
future 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 26th day of June, 2012.
u_ •C
ATTEST:
CITY CLERK
Tmplt: 03/08/11
17
12
City Council
Attachment 2
Draft Resolution to Approve
June 26, 2012
19
20
RESOLUTION 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 in the housing sites inventory contained in the City's adopted
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.
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City Council Resolution No.
June 26, 2012
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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 Planning 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. The Planning
Commission also recommended that the condition of approval related to the applicant's
restrictive covenant be 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 restrictive 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.
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City Council Resolution No.
June 26, 2012
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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
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 stated that the applicant will comply with the following voluntarily
proposed alternative development standards:
• Floor Area Limit (FALL:
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)
• 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.
• Setbacks:
- Front — 20 feet
- Rear — 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
21. During the public comment period, the applicant also stated that the Restrictive Covenant
would be amended to further restrict the allowed floor area limit (FAL) from 1.0 to 0.75, as
recommended by the Planning Commission at its March 22, 2012, meeting.
22. After the public comment period and discussion of the issues, the City Council voted to
continue the appeal to the June 26, 2012, meeting in order to allow City staff to facilitate
meetings between the applicant and surrounding neighbors to try to resolve issues related to
the applicant's voluntarily proposed alternative development standards.
23. On June 18, 2012, the applicant provided the City with a copy of a document entitled
"Restrictive Covenant" that incorporated revisions to the original document provided to the City
Council at the May 8, 2012, City Council meeting. The applicant proposes to record the
restrictive covenant with the Orange County Recorder's Office as a deed restriction against the
merged property, if the lot merger is approved.
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City Council Resolution No.
June 26, 2012
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24. As stated in the revised "Restrictive Covenant" provided to the City June 18, 2012, the
applicant proposes the following voluntary alternative development standards:
• Floor Area Limit (FAL):
- 0.75 (0.75 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)
• Maximum height for flat roof or top of floor of roof deck:
- 14 feet
- "Established Grade" for the purpose of measuring height for the principal structure
shall be 68.7' (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.
• Setbacks:
- Front — 20 feet
- Rear — 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
25. Pursuant to the regulations of Categorical Exclusion Order (CEO) E -77 -5 for single -unit and
two -unit dwellings located within the Coastal Zone, CEO No. 23 -11 for the demolition of the
single - family residences located on the subject properties was issued September 27, 2011,
and became effective October 7, 2011. Demolition permit X2011 -2490 was issued by the
City's Building Division on October 11, 2011. On June 13, 2012, the applicant exercised the
permit and demolished the existing single - family residences.
26. A public hearing was held by the City Council on June 26, 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 City Council at this
meeting.
27. 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.
The City Council find this project exempt from CEQA, pursuant to Section 15303 (Class 3 — New
Construction or Conversion of Small Structures), Section 15305 (Class 5 - Minor Alterations in
Land Use Limitations), and Section 15 (Class 15 — Minor Land Divisions) of the Implementing
Guidelines of the California Environmental Quality Act (CEQA), because it has no potential to
have a significant effect on the environment.
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City Council Resolution No.
June 26, 2012
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The proposed project involves the merger of two lots into one parcel and the lot is zoned for
single - family residential use. In this case, the following exemptions are applicable:
Class 5 (Minor Alterations in Land Use Limitations) 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) 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.
Class 15 (Minor Land Divisions, Section 15315) exempts divisions of property zoned for
residential use into four or fewer parcels when in conformance with the General Plan and
zoning, no variances or exceptions are required and all services and access are available.
In this case, the parcel merger will combine the existing lots into one parcel and the
resulting lot complies with the General Plan and zoning. Additionally, access is provided
and all services are available.
Anticipated re- development on the merged lot would be limited to construction of a single
family home and typical accessory structures. This activity would qualify for a Class 3
Exemption.
Class 3 (New Construction or Conversion of Small Structures, Section 15303) exempts
projects that consist of construction and location of limited numbers of new, small facilities
or structures and includes construction of one single - family dwelling unit in a 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.
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City Council Resolution No.
June 26, 2012
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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
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 have been 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
subject properties are not identified in the Housing Sites Inventory contained in the City's adopted
Housing Element. 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
density ranges, polices and narrative of the CLUP indicate that the density range is
representative of the predominant development of the entire RSD -B area in old Corona del
Mar and that development should not exceed the maximum density. The lot merger does not
cause the maximum density for the area to be exceeded. The Zoning Code designation is
Single -Unit Residential (R -1), which is also intended for single - family residential development.
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City Council Resolution No.
June 26, 2012
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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
E. 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 will not create an excessively large lot in comparison to many of the
existing lots in the surrounding area.
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 copy of a signed "Restrictive Covenant' setting forth
more restrictive alternative development standards for height, side setbacks, and maximum floor
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. In this case, pursuant to Title 19: Subdivision
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City Council Resolution No.
June 26, 2012
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Code, Section 19.08.030 ( Waiver of a Parcel Map Requirement), the requirement for approval of
a parcel map may be waived.
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
subject properties are not identified in the Housing Sites Inventory contained in the City's adopted
Housing Element.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
density ranges, polices and narrative of the CLUP indicate that the density range is
representative of the predominant development of the entire RSD -B area in old Corona del
Mar and that development should not exceed the maximum density. The lot merger does not
cause the maximum density for the area to be exceeded. 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 voluntarily
proposed by the applicant, and waive 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.
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 26th day of June, 2012.
MAYOR
ATTEST:
CITY CLERK
ON
City Council Resolution No.
June 26, 2012
Paae 9 of 10
EXHIBIT "A"
CONDITIONS OF APPROVAL
1. Pursuant to Chapter 19.68.030.E (Lot Mergers) and 19.08.030.E (Waiver of Parcel Map
Requirement), the applicant shall file a document, approved by the City in writing, specifying
the names of the record owners of the fee interest and particularly describing the real property
with a site map for recordation with the Orange County Recorder.
2. 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 and all other
actions to support the findings approving the lot merger shall be submitted to the Community
Development Director.
3. The lot merger and grant deeds reviewed and approved by the Public Works Department
should be filed concurrently with the Orange County Recorder and County Assessor's Offices.
4. 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 Orange 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.
5. All improvements shall be constructed as required by Ordinance and the Public Works
Department.
6. 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.
7. 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.
8. All on -site drainage shall comply with the latest City water quality requirements.
9. 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.
10. New sod or low groundcovers, as approved by the City, shall be installed within the parkway
fronting the development site along Ocean Boulevard.
11. An encroachment permit is required for all work activities within the public right -of -way.
12. All improvements shall comply with the City's sight distance requirement. See City Standard
110 -L.
13. 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.
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City Council Resolution No.
June 26, 2012
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14. All unused water services to be abandoned shall be capped at the corporation stop.
15. 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.
16. All applicable Public Works Department plan check fees shall be paid prior to review of the lot
merger and grant deeds.
17. No building permits may be issued until the appeal period has expired, unless otherwise
approved by the Planning Division.
18. 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.
19. 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.
30
June 26, 2012
City Council 3
Attachment
Correspondence Received at
May 8, 2012, Meeting
31
�2
Sims, Kay
From: Jeffrey DuFine fokcd @flash.net]
Sent: Tuesday, May 68, 2012 10:09 AM
To: Kiff. Dave; Brandt, Kim; Sims, Kay
Subject: • ^^ IMPORTANT FINAL DETAILS re: THE GUIDA LOT MERGER ••.
Attachments: New Risk of Curb Cut.pdf; Comment CDNI Today.pdf; Campbell Impact.jpg; Silva Impact.jpg;
SILVA SUNSET VIEW.jpg
Dear David, Kimberly and Kay,
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.
I truly respect the diHicultjob 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 pennitled. 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
comer) 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 be 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
33
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:
I. 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 riven.
Jeff DuFine
Lucy Campbell
2 !{
RISK & IMPACT of CURB CUT 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:
1. 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 egress 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 § 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......"
35
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 Citv. 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......
I. Will Mr. Guida be able to continue to use the current road behind his house as a driveway?
2. Is the City mandated to give a curb cut that will affect traffic flow, and the liability risk to the city
from the increased danger to motorists and pedestrians.
3. What are the ramifications to the public of a curb cut far Mr. Guida to install a drive way onto Ocean
Blvd. on a blind corner with one of the largest amounts of pedestrian traffic in the City?
4. Should there be an environmental impact study filed addressing a driveway before the Council takes
any action?
5. What is the impact of all the construction vehicles entering, leaving and parking on Ocean Blvd.
opposite Lookout Point during the height of the tourist season?
6. What is the impact of a 5,000 — 6,000 sgft. excavation at the base of the hill yards from the bluff at
Lookout Point?
7. Shouldn't Mr. Guida be required to provide a certificate from the applicable Landmark or Registry
Commission that his plan is in compliance with applicable standards as to demolition of a rare and
historic mid century modern house overlooking the ocean?
2
so
* TERMINATION OF PERMISSION 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. Guida'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 `1 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 11 deed restrictions and /or easements
6. Since this is a matter that must eventually be adjudicated in court (along with the 11 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.
S7
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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.
45
smiles@mileslawgroup.com
May 8, 2012
VIA HAND DELIVER YAND ELECTRONIC [LBrown(knewportbeach.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
40
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 §
47
21151." "'Approval' means the decision by a public agency which commits the agency to
a definite course of action in regard to a project intended to be carried out by any person."
(CEQA Guidelines § 15352(a).)
Postponing the preparation of environmental analysis until after the City has
committed to the Lot Merger undermines CEQA's goal of transparency in environmental
decisionmaking. Besides informing the decision makers themselves, the EIR is intended
"to demonstrate to an apprehensive citizenry that the agency has in fact analyzed and
considered the ecological implications of its action." (No Oil, Inc. v. City of Los Angeles
(1974) 13 Cal.3d 68, 86.)
Oddly enough, while several hearings have already been conducted, extensions have
been granted, and the factual components of the "project" at hand are obvious, the City has
neglected its obligations under CEQA to conduct timely and meaningful environmental
analysis. The City continues to rely, erroneously, on a Class 5 Categorical Exemption and
the record of proceeding remains devoid of any environmental analysis that must be
conducted prior to approval of any lot merger relative to the project at hand. Simply put,
an initial study must be conducted for the known components of the Guida project as
currently proposed.
In the seminal decision of Save Tara v. City of West Hollywood (2008) 45 Cal.4th
116, the California Supreme Court addressed the proper timing for CEQA compliance
within the context of a private project approval by a lead agency. Addressing an "earliest
commitment" standard for approval of a private project, the Supreme Court "emphasized
the practical over the formal in deciding whether CEQA review can be postponed, insisting
it be done early enough to serve, realistically, as a meaningful contribution to public
decisions."
The Supreme Court also looked to the CEQA Guidelines governing the time for
CEQA compliance, which provides:
"Choosing the precise time for CEQA compliance involves a balancing of
competing factors. EIRs and negative declarations should be prepared as
early as feasible in the planning process to enable environmental
considerations to influence project program and design and yet late enough
42
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
49
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.
II. 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." (Communities./or 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 determination may be made only if "[tjhere is no substantial
evidence in light of the whole record before the lead agency" that such an impact may
occur. (Id., § 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.AppAth 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).)
150
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.AppAth 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 § 21084.11; CEQA
Guidelines § 15064.5(a)(3),(4); Valley Advocates v. City of Fresno (2008) 160 Cal.AppAth
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 may be an historical resource for purposes of this section." (Emphasis
added.)
5-1
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.
III. The Lot Merger Violates California's No -Net -Loss in Housing 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." (Stars. 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
[Government 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
152
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 of Los Angeles (1974) 11 Cal.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.
153
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,
S • LAW GROUP,
By: St phen M. Miles
cc: Ms. Leoni Mulvihill, Deputy City Attorney (via email)
54
Comments on April 24, 2012 City Council Agenda
Comments by: Jim Mosher ( iimmosherevahoo.com ), 2210 Private Road, Newport Beach 92660 (949-
548 -6229)
Item 14. Appeal of Denial of Lot Merger No. LM2011 -002
• Staff Report
On handwritten page 13 (page 8 of the April 24, 2012 staff report), the statement that
CEQA Regulations Section 15305 provides an exemption for projects which "do not
result in ... increase in density' is incorrect.
o Section 15305 actually exempts projects which "do not result in any changes
in land use or density.
• "Density" is generally understood (including in the CNB Zoning Code) to
mean the number of dwelling units per acre.
• As the regulation observes, a minor lot line adjustment not resulting in the
creation of a new parcel will not normally change density since, if it alters
acreages at all, it increase the density on one parcel and add decrease that
on the other resulting in little or no change in the average.
• A lot merger is not a minor lot line adjustment, and results in the present
case, in a change from two units on a certain combined acreage to one unit
on the same acreage. That is a factor of two change in density, and even if it
is environmentally benign it does not meet the stated requirements of the
Section 15305 exemption.
• As a result, staff has not provided a convincing CEQA analysis.
On handwritten page 13 (page 9 of the April 24, 2012 staff report), Attachment CC 3
is described as containing the March 22, 2012 Planning Commission Minutes. This
was not initially the case, but appears to have been corrected.
• Attachment 1: Draft Resolution to Deny
o "Section 1. Statement of Facts."
Statement 5: the claim that notice "was given in accordance with the
Newport Beach Municipal Code" is questionable. The version published
in the Daily Pilot likely omitted much of the information required by
Municipal Code 20.62.020.A.
55
April 24, 2012 Council Agenda Item 14 - comments by Jim Mosher Page 2 of 3
• Statement 8: same comment regarding notice being in compliance with
Municipal Code as above
• The following two statements (similar to those on handwritten page 24 in
the Draft Resolution to Approve) appear to be missing:
• A statement 17 observing: 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."
• A statement 18 observing that after hearing and reviewing
testimony both verbal and written, the Council voted to deny the
appeal.
o "Section 4. Decision."
• Point 4. If the matter is continued, the date will need to be changed (and
the Statement of Facts corrected).
• Attachment 2: Draft Resolution to Approve
o "Section 1. Statement of Facts."
• Same comment as above regarding correctness of notice in Statements 5
and 8.
• Either Statement 17 or 18 would normally observe that at its April 24,
2012 meeting the City Council heard evidence, both written and verbal.
o "Section 2. CEQA Determination."
• Statement 2 that "This project is consistent with these requirements" is
questionable. Although there is no change in land use, the project is not
a minor lot line adjustment and it will result in a factor of two change in
density.
o "Section 3. Required Findings.
• Fact A -2 seems questionable. There are public views affected, although
not necessarily from locations starred in the general plan.
• Facts A -5 and F -3, to the extent they state there will be no change in
density, seem incorrect for the reason citied above.
o "Section 4. Decision."
50
April 24, 2012 Council Agenda Item 14 - comments by Jim Mosher Page 3 of 3
• Point 1. There reason for waiving the filing of a parcel map is not entirely
clear, nor do the conditions of approval seem to remind the applicant of
his obligation, in that event, to record a site map with the County
Recorder per Municipal Code 19.08.030.E.
• Point 4. If the matter is continued, the date will need to be changed (and
the Statement of Facts corrected).
o Conditions of Approval (Exhibit A)
• Condition 2: the reference to "Condition of Approval No. 3" would seem
like it should be to "Conditions of Approval No. 3 and 4."
• Condition 4: It is not clear from the Zoning Code that "established grade"
can be arbitrarily changed. Under Section 20.30.050.C, the director, at
least, appears to be restricted to choosing a value comparable to
adjoining lots. It is unclear from the staff report if 67.2' is such a value, or
3' lower than what would normally be regarded as the established grade.
Other comments:
• This may be standard for lot mergers, but the approval does not seem to give any
guidance as the surviving Assessor's Parcel Number or street address for the combined
lots.
In my view the merger requires a Coastal Development Permit (or waiver from the
California Coastal Commission). Even if the lot qualifies for inclusion in the Categorical
Exemption Zone -- which one might question, since like the comparable lots at 200
Poppy and 204 -218 Hazel it appears to be in the first row of residences adjacent to
coastal resources -- the 1977 Exclusion Order applies only to demolition and
reconstruction of single family residences, not to subdivision changes or any other kind
of development. The Coastal Commission may well find that this particular merger
raises no Coastal Act issues, but their review would still appear to be needed.
o Even if Exclusion Order E -77 -5 exempts the lot merger and subsequent
rebuilding from CCC review, the applicant is required to certify his qualification
for this exemption on a form submitted to the CCC as explained in Term and
Condition 5 of CNB Council Resolution 9190 — something it is not obvious the
applicant has been reminded of in the proposed conditions of approval.
W
June 26, 2012
City Council
Attachment 4
Letter Received Summarizing June 5, 2012, Meeting
`59
00
LINDELL L. MARSH
ATTORNEY
172 WESTPORT
NEWPORT BEACH, CA 92660 -4244
TELEPHONE: 949 -706 -7095
E -MAIL: lmarsh @lindellmarsh.com
June 7, 2012
Stephen Miles, Esq
Miles Law Group
3151 Airway Avenue, Suite R -1
Costa Mesa, CA 92626
United States of America
Re: Guida Lots Merger: Lune 5th meeting with our clients and the City Staff -
Outcomes.
Dear Steve,
On Tuesday, June 5, you and I met with our clients and the City staff to discuss your
clients' concerns regarding the proposed merger of the lots owned by the John and
Julie Guida Trusts at 2008 and 2012 Ocean Boulevard, Newport Beach. The Guidas,
Coralee and I appreciated the opportunity to further discuss the proposed merger
with you and them.
In order to, hopefully, resolve the matter and address the issue the City Council had
focused upon regarding the suggestion that the height of the residence be reduced
by 3 feet, I suggested that the Guidas propose to the Council the following revisions
in the draft private covenants and restrictions previously submitted:
1. Height. The height of the proposed residence would be lowered by 3 feet.
This would be accomplished by:
Revising the "Established Grade ", for the purpose of measuring height
for the principal structure, from 70.2 to 68.7 feet (a difference of 1.5
feet), and,
• Revising the maximum height of the residence from 15.5 feet above the
Established Grade to 14 feet (a difference of 1.5 feet), measured to the
01
floor of the highest roof deck, with the roof deck railings above that
elevation as previously provided.
2. Front Clear Railings. As previously agreed, the railings on the roof deck
along the front of the residence will be transparent.
3. F.A.L.: As stipulated in the Planning Commission's recommendations, the
F.A.L. will be .75.
4. Access Easement. In support of a reduction in the height of the residence,
the Guidas hope and trust that they will be able to rely on the offers of
cooperation put forward by the neighbors at the last Council meeting to
allow the Guidas to lower the surface of the easement (including the
replacement of the portion of walls affected) as was described by the Guidas'
architect and engineer in Tuesday's meeting.
I was concerned by your suggestion that the neighbors would expect to be
compensated for that cooperation (mentioned below). My clients would
view such a demand as both unfair and unreasonable. However, the Guidas
desire, as I am sure the City does, to bring this process to an end.
Accordingly, in the event the neighbors are not willing to cooperate, the
Guidas will continue to make the modifications to the restrictive covenant
described above and will find a way to modify their plans to accommodate
this unwelcomed result.
Other Concerns Raised: You and your clients mentioned other concerns and
requests, e.g.: that the residence be lowered an additional 21 inches beyond the 3
feet suggested above; the height of chimneys; and monetary compensation for loss
of view and impacts to the easement. The Guidas feel that they have been
reasonable and fair in responding to the past requests of the neighbors and feel that
these further requests, beyond addressing the 3 foot reduction in height, are neither
fair nor a reasonable accommodation among neighbors and are not willing to
include them in their proposal to the City Council.
Finally, your clients indicated that from the photographs it was difficult for them to
fully visualize whether the 14 foot height above an Established Grade of 78.7 would
be satisfactory, without an on -site visual marker.
Moving Forward. At the conclusion of the meeting, as a way to move forward, l
suggested that the engineers erect a pole on -site that would show the proposed
height of the residence under the Guidas' proposal, as well as a mark 21 inches
lower (indicating your clients' desire). Your clients can then visually judge whether
the Guida's proposal of 3 feet is fair and whether to support the proposal above as to
the height of the residence and cooperate in the lowering of the elevation of the
access easement. There was agreement on this approach and process.
02
As we discussed in the meeting, the Guidas are using their best efforts to put in place
on Friday one (or perhaps two or three) poles showing these elevations (at any
point when it appears that they will not be able to get the pole in place on Friday, I
will advise you). By Saturday or Sunday, I would appreciate your response, and that
of your clients, as to their willingness to support our proposal. I appreciate how
short the time is, but it is the result of a delayed meeting date and our agreement at
the meeting, and will require them only to judge and have a sense of the effects of
the residence on their view. This will allow us to finalize and provide a revised
proposed restrictive covenant to the City Staff by Monday, June 11 in order to keep
with the City staffs schedule in support of the City Council meeting on June 26. On
Monday, I will also concurrently provide you with a copy of our proposal to the City.
My intent, as well as that of Cora and our clients, is to resolve this matter amicably --
neighbors are neighbors, and be considerate as well of the time and efforts of the
City Staff and Council.
Best regards,
_
Lindell L. Marsh
Cc. John and Julie Guida
Coralee Newman, Government Solutions
Kim Brandt, Community Development Director
Leonie Mulvihill, Assistant City Attorney
Robert Sinclair Associates Architects
Caleb Rios, Toel Engineering
03
04
June 26, 2012
City Council
Attachment 5
From Applicant:
Letters and Copy of Signed Restrictive Covenant
05
00
i 1
JUNE 11, 2012
60 0,4W By
,uN 1120'2
Kimberly Brandt, AICP, VVXv. N'Sto
Community Development Director 01.1 �t
City of Newport Beach Y OF NVO
3300 Newport Blvd.
Newport Beach, California 92663
Re: Lot Merger No. LM2011 -002 to Merge 2808 and 2812 Ocean Boulevard
fPA2011 -1421.
Dear Ms. Brandt,
On behalf of our clients, the owners of the lots proposed to be merged (the
"Guidas "), and in anticipation of the hearing by the City Council on this matter
scheduled for June 26, 2012, please be advised as follows:
Following the meeting of the Council on May B, 2012, with the encouragement of the
Council my clients and I (and their attorney) met on June 5th with the owners of the
two residences immediately inland to the lots proposed to be merged, and their
counsel, Steve Miles (copied on this letter, who stated that he represented, as well,
other landowners in the area and an unincorporated association of those owners)
and both you and Leonie Mulvihill (Assistant City Attorney) to see if we could come
to a resolution regarding the proposed height of any new residence to be
constructed on the resulting merged lot. The Planning Commission had suggested a
reduction in height of 3 feet and the Council asked us to focus on this issue.
Based on the comments of the City Council and the June 51h meeting, the Guidas
propose that the Restrictive Covenant being offered by them be revised in
accordance with the spirit of the earlier Planning Commission proposal, reducing
the height of the residence by 3 feet and proving a F.A.L. ratio of .75 (attached is a
Restrictive Covenant that incorporates these revisions), as follows:
1. Heigh . The height of the proposed residence would be lowered by 3 feet.
This would be accomplished by:
881 Dover Drive. Suite 285 • Newport Beach, CA 92663
Mailing Address: 1048 Irvine Avenue. #618 • Newport Beach, CA 92660 1 of 3
949717 -7943 main • www.goysol.com 07
® Revising the "Established Grade', for the purpose of measuring height
for the principal structure, from 70.2 to 68.7 feet (a difference of 1.5
feet), and,
Revising the maximum height of the residence from 15.5 feet above the
Established Grade to 14 feet (a difference of 1.5 feet), measured to the
Floor of the highest roof deck, with the roof deck railings above that
elevation as previously provided.
2. Front Clear Railings. As previously agreed, the railings on the roof deck
along the front of the residence will be transparent.
3. E A.1..: As stipulated in the Planning Commission's recommendations, the
F.A.L. will be .75.
In support of a reduction in the height of the residence, the Guidas hope and trust
that they will be able to rely on the offers of cooperation put forward by the
neighbors at the last Council meeting to allow the Guidas to lower the surface of the
easement (including the replacement of the portion of walls affected, as was
described by the Guidas' architect and engineer in the meeting on June 5th).
In the June 51h meeting, the adjacent landowners indicated that from the
photographs it was difficult for them to fully visualize whether the 3 foot adjustment
would be satisfactory without an on -site visual marker. And so the Guidas arranged
with the structural engineer (Toal Engineers, who participated in the meeting) to
put a site pole in place with the hope that the adjacent landowners would be
satisfied with the 3 feet reduction and cooperate in the lowering of the elevation of
the access easement. There was agreement on this approach and process.
Having said that, we were concerned by the suggestion of counsel in and, more
forcefully, following the meeting that the adjacent landowners would expect to be
compensated for that cooperation and the loss of view shed and expected to
negotiate further reductions in the height of the residence. The Guidas desire, as I
am sure the City does, to bring this process to an end. Accordingly, even if the
neighbors are not willing to cooperate in reducing the surface of the access road, the
Guidas will continue to make the modifications to the restrictive covenant described
above and will find a way to modify the plans for any new residence to
accommodate this unwelcomed result.
They simply came to the conclusion they must move ahead without any hope of
further cooperation from adjacent landowners - as one would expect from
neighbors -- and with the growing concern that the existing residences are vacant
and in disrepair, with increased risk (their insurance company has cancelled their
2of3
02
insurance on these residences). As they make concessions, the neighbors make
further demands.
On June 7th, we followed up with counsel for the adjacent landowners urging them
to view the sight poles and respond by Sunday to our proposal (made in the meeting
and then on June 7th), so that we could meet the City staff schedule. To this time, we
have heard nothing further from them. Our intent- mine, as well as the Guidas and
their attorney, is to resolve this matter amicably, and be considerate as well of the
time and efforts of the City Staff and Council.
Respectfully submitted,
Coralee Newman
cc by email:
Leonie Mulvihill, Assistant City Attorney
Gregg Ramirez, Senior City Planner
John and Julie Guida
Lindell Marsh, Attorney
Steve Miles, Attorney
3 of 3
09
June 18, 2012
G O V E R N M E N T
SOLUTIONS
��petvED Br
COMMUNITY
JUN 18 2012
n DEVELOPMENT CZ-
OP
0P
Ms. Kimberly Brandt, AICP,
Community Development Director
City of Newport Beach
3300 Newport Blvd.
Newport Beach, California, 92663
Hand Delivered
COPY
u.�.. r u l II r u•,.. :I: ,,� � ., :r r
Dear Ms. Brandt,
On behalf of our clients, the owners of the lots proposed to be merged (the
"Guidas "), pursuant to the request in your email of June 14, 2012, in anticipation of
the hearing by the City Council on this matter scheduled for June 26, 2012, enclosed
is a signed and notarized copy of the proposed restrictive covenant.
As we discussed with you and Leonie Mulvihill: we are providing the copy of the
proposed restrictive covenant with the understanding that the restrictive covenant
is being provided to the City for consideration in connection with the proposed
approval of the lot merger and, upon approval, for review by the City, together with
other documents, prior to its recordation. Upon the approval of the form of these
documents, they will all, including the restrictive covenant, be released to applicant
for recordation in the official records of the County of Orange. Upon their
recordation, including the recordation of the restrictive covenant, the lot merger
will concurrently take effect. Of course, in the event that the lot merger is not
approved by the City or there is a failure to record these documents within the time
allowed, the restrictive covenant will not take effect and will be retained by or
returned to the Guidas.
881 Dover Drive. suite 285 • Newport Beach, CA 92663
Mailing Address: 1048 Irvine Avenue. WS • Newport Beach. CA 92660
949 -717 -7943 main • www.govsol.com
70
go
OPY
Thank you again for all your kind and good assistance on this matter. I, and the
Guidas, appreciate that, for what is considered a fairly straightforward process, it
has not been easy for any of us.
Sincerely,
Coralee S. Newman
cc: via Email.
Leonie Mulvihill, Assistant City Attorney
Gregg Ramirez, Senior City Planner
John and Julie Guida
Lindell Marsh, Attorney
71
RECORDING REQUESTED
BY AND WHEN RECORDED
PLEASE RETURN TO:
John Guida Trust/Julie Guida Trust
8 Old Course Drive
Newport Beach, CA 92660
WITH COPY TO:
CITY OF NEWPORT BEACH
Community Development Department
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
RECEl%
Llpr„_ �l
✓Uy �,
T So
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 ("City "), 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
Whereas, the Owners have applied to the City for merger of the two adjacent lots
that comprise the Property;
Whereas, for the benefit of the two adjacent lots that comprise the Property, and
to provide for the orderly development of a new single - family dwelling unit on the
merged Property, the Owners have agreed to voluntarily place restrictions upon the
merged Property to limit the height of the new single - family dwelling unit; limit the
maximum floor area of any structure to be built upon the merged lot; to impose setback
requirements that are more restrictive than applicable City ordinances, rules and
regulations.
72
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 68.7 feet,
shall not exceed:
a) 14 feet (top of roof or floor of roof deck); and
b) 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 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 0.75, 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 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 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 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.
73
COPY
7. This Covenant shall be recorded in the County Records concurrently with
the recordation of the merger of the Property.
DATED:
OWNERS:
By: `-
John Guida, Trustee
John Guida Trust
u /d/t September 17, 2010
By:
Julie Guida, Trustee
Julie Guida Trust
u /d /t September 17, 2010
74
CERTIFICATE OF ACKNOWLEDGEMENT
State of California )
County of ORANGE)
COPY
On_ .k, _t 2.c before me, i'?ty`;�Y,- 4+,1 +r .kjty& - , Notary Public,
personally appeared ab„ L, ;,d._ 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 /sjNe /tkey executed the same in his /her /ftir
authorized capacity(i *, and that by his/her/their signature on the instrument the
person, or the entity upon behalf of which the pemon(t) 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. Masco K HILLESHEIM
Commission dt 1958510
Signature Notary Public • Cagfornta
Orange oolly
� M i Comm. Expires Oct 28, 2015
(Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of California )
County of ORANGE)
On before me, tV,,.l , 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 /9*y executed the same in bis /her/their
authorized capacity(ies), and that by bWher /theiir signature on the instrument the
person, or the entity upon behalf of which the person* 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)
MYKO K. HILLESHEIM
Commission / 1858510
Notary Public - California
Orange County
M Expires Oct 28, 2015
75
Juanefia Band of Mis .ti iar- kn- cd` i ff F-1-1
Aclachemen Nation
"'F'EINAVED A 7HER A,
Kiinberly i3mildt, MCP J llj: P, g
-T Con-Imunity Develommien' Director
City of Nevvport Beach
V_! C
3300 Newport Beach
Nevvpor Beach, Ca 02663
P, E: L, ot Nli e r g e No. �. P4 201 f, to IVE e r- Ct 9 - 2's ; 2 ocean. FAL v d 1, P.,
Dear Ms. Brandt,
On behafflofthe juameno Band (A'KI'Ission 'ndians, Aciachemen Nation we
like to take this opportunity to coniment on the above proposed merger alr: 1
As vou vnav be aware, archeological evidenCedOCUMC1111CS our ancestor s
Citv of Newport Beach for over 10,000 years. ' "he !BM.-I are strong aevocea-,:•
preservatium and protection oflour and C.alil-ornia's history. We are G01JCeril that abc..,-
proposed lot merger is an attempt to hide the real pian at hand- demolition
excamation. Excavation of a 6,000 square. foot walk out basement, vVill warr2nt n'INI
Monitoring conditions where prior grOLInet disturbing activities occurred in i ,vlien
environmental F
n,. ironmental and cultural protection la were not in place.
Based on our 10 year experience in monitoring our homeland; the location of the
Proposed project is in a "prime location" for ancestors and their belongin'(7s 1:' 1 oe
unearthed. Therefore, we are strongly urging the City of Newport to put uards i;
-- k SaTe-'; I -
place by having Archeological and 'Native American Monitoring present dunn o Eli
0 0
(,round diStUrbinu activities.
We thank YOU for your consideration.
Oho'van
Respect,
J
71
(e4
2;
Jovce Stanfield Perry
Cultural Resource Director, JBMI
co FTI
Cc: Tribal Council �-n
1 co
32161 Avenida Los Amigos, SJC, California 92675 � Office (949) 493-4933 : Fa-A (94911193-160" na i i:
Correction to # 24, SECTION 1: STATEMENT OF FACTS in the draft resolutions
24. As stated in the revised "Restrictive Covenant', the applicant proposes the following
voluntary alternative development standards:
Q Floor Area Limit (FAQ:
- 0.75 (0.75 x 9,488.02 square feet = °,^� x-92-7 116 square feet)
- Subterranean basements shall not be included in maximum FAL (per
Newport Beach Zoning Code)
G Maximum height for flat roof or top of floor of roof deck:
- 14 feet
- "Established Grade" for the purpose of measuring height for the principal
structure shall be 68.7' (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
1 40
• •
11 S e Airvay Avem,e• Suue R•1 • Cotta b1em,CA 97676
Phone 714 304 O! i 3 • Fax 714 596:3905 t
smiles@milesla%vgroup.com
June 26, 2012
fib- b 4(12
A PROFESSIONAL CORPORATION
8 V1F0POE';! • E N!1i Li SL!I
VIA HAND DELIVER YAND ELECTRONIC /LBrown@newportbeacb. cit. 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
CONTINUED PUBLIC HEARING
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, collectively referred to as the Lookout Point Alliance
( "LPA ") with regard to the aforementioned Lot Merger (the "Lot Merger "). The following
commentary is hereby submitted in conjunction with the May 8, 2012, commentary
previously lodged with this City Council and the June 25, 2012 email transmitted to Ms.
Kimberly Brandt with an attached report from Archaeos. That report concluded that the
residence at 2808 Ocean Boulevard met the CEQA Guidelines criteria for historical
significance (Criterion Q.
I. DEMOLITION OF THE 2808 AND 2812 OCEAN BOULEVARD
RESIDENCE VIOLATED THE CITY'S MUNICIPAL CODE
The 2808 Ocean Boulevard residence was demolished by Mr. Guida and his agents
during the pendency of this continued public hearing and following clear direction from the
City Council to maintain the status quo of the properties while the applicant and LPA
engaged in a good faith negotiation process. The demolition of the 2808 and 2812
residences, without notice to the City or the negotiating parties, and during the pendency of
a discretionary review process, is illustrative of the bad faith, morbid, negotiation process
\ Y =' MILES LA,w GROUP
3151 Auway Avenue, Sune P -i • Cus:n Mesa,CA 97676 A PROFESSIONAL CORPORATION
Phone 714 784 0173 • Fax 714 556 3805 It A P 0 17 S f N Y I F 0 5 M I M 1 - [ N I I I I F M i N i
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
June 26, 2012
Page 2
that Mr. Guida, his counsel, and consultants subscribe to. While the City Attorney
expressed in writing that he was unaware of Mr. Guida's intention (see, Attachment One
hereto), the City has done nothing to respond to Mr. Guida's illegal activity conducted
prior to this City Council's discretionary review of the Lot Merger. Mr. Guida's tactics are
making a mockery of the City's public review process and is anathema to the Planning
Commission's DENIAL of the Lot Merger. For City Staff and this City Council to stand
by idle is an abuse of discretion. We respectfully request that the City Council replace its
complacency with affirmative action that addresses the destruction of historical resources
and the abuse of public process that has occurred.
The applicant allegedly relied on a demolition permit that, for the first time is now
referenced in the amended Staff Report. The amended Staff Report asserts that the
demolition permit was active in October 2011. That demolition permit is abandoned as a
matter of law once Mr. Guida subsequently engaged the City in a discretionary review
process for the: (1) development of a proposed oversized structure; (2) demolition of
existing residences, and; (3) merger of the 2808 and 2812 Ocean Boulevard properties.
Further illustrating the abandonment of any demolition permit, more than 180 days passed
since the issuance of a permit in October 2011 and the demolition of historical resources in
June 2012. (See, NBMC Section 15.02.110 and 15.02.120.) No extension of time was
sought or obtained by the applicant. (1d.) Our understanding is that Mr. Guida's actors
demolished the existing residences without notifying the City. This further violates the
City's Municipal Code and precluded the City from taking appropriate measures at that
time to inform Mr. Guida that he had no right to demolish the residences during the
pendency of a discretionary review process. (See, e.g., City Ordinance 2007 -19 [24 to 72
hour notice required]; see also, City Demolition Notification Form, set forth as Attachment
Two, hereto.)
II. THE DENIED LOT MERGER IS INCONSISTENT WITH THE
COASTAL LAND USE PLAN AND THEREFORE THE GENERAL PLAN
The existing Coastal Land Use Plan ( "CLUP ") land use designation for the
properties is Single -Unit Residential Detached (RS -D) with a residential density of 6.0 -9.9
dwelling units per acre. The denied Lot Merger would result in a residential density of
approximately 3 dwelling units per acre — a significant deviation from the lowest permitted
residential density. This resulting density is inconsistent with the CLUP and the City's
MILES LAw GROUP
7151 Ainv4y Avenue, Sune R-1- • Cosca Mesa, CA 97676
Phone 714 34 0173 -Fax Tin 5563905 L A w 0 u S E
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
June 26, 2012
Page 3
A PROFESSIONAL CORPORATION
RCI, 0 "IitF i II T 1 1 1 E a E 111
General Plan and the City Council should therefore affirm the Planning Commission's sage
denial of the Lot Merger. The Planning Commission's review of the Lot Merger and
determination that specific lot merger findings could not be made (because the resulting lot
and development proposal is simply too large) is consistent with the range of density set
forth in the CLUP and consistent with the General Plan.
The City Council should heed the organic law of the General Plan and the density
range established by the CLUP in understanding what is reasonable as opposed to an abuse
of discretion when considering the denied Lot Merger. (See, e.g., Galatea Terrace Lot Line
Adjustment No. LA2009 -003 [denied), Action Letters set forth as Attachment Three
hereto.) The amended Staff Report attempts to render the CLUP density range of 6.0 -9.9
meaningless by adopting a mathematical averaging of additional lots. This is not
appropriate. Reference to existing lots that have "a lot area of 3,540 square feet, which is
below the 6. -9.9 density range" is not only misguided' but misplaced. The legal,
nonconforming lots existed prior to the CLUP's adoption plays not role in the current and
present density range permitted by the CLUP. Likewise, CLUP policy 2.2.1 -1 and Section
2.2.3 of the CLUP (cited by the supplemental Staff Report) merely reflect the predominant
development in the area that supports the 6.0 -9.9 density range established by the CLUP.
These references do not support a form of variance or exception from these ranges.
At a minimum, the consideration of a CLUP Amendment and General Plan
Amendment would be required for the City Council to consider the denied Lot Merger.
III. THE DENIED LOT MERGER VIOLATES CEQA
The City's "post hoc rationalization" and proposal of additional categorical
exemptions further illustrates how defective the environmental analysis is for this
development project. Our May 8, 2012, correspondence details the fundamental errors
committed by the City in failing to assess the "whole of the project" and to meaningfully
assess potential environmental impacts. The continued public hearing and supplemental
Staff Report parrot LPA's position: the development proposal before the City Council is
I One acre is 43,560 square feet. The dwelling unit density therefore permits development of between 4,400 and
7,260 square foot lots. While it is an artificial distinction to compare legal nonconforming lots to proposed
development. lots, 3,540 square fool lots deviate from the 9.9 du /acre standard by approximately 20 percent while
the denied Lot Merger would result in a lot size that is double the size permitted by the 6.0 du /acrestandard.
MILES LAw GROUP
?151 Airway AVPnUe,Swle R•7 • Co :a Mesa, CA 97136 A PROFESS20NAL CORPORATION
Phone 1j4 384 0173 • Fax 714 556 3905 L A N) O i E E R 7 1= 0 Ail 1 1! T • E R I I I! i H E N S
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
June 26, 2012
Page 4
not merely a Lot Merger and the City Council will commit an abuse of discretion if it
reverses the sound decision of the Planning Commission to deny the Lot Merger. The City
Council cannot make the requisite findings to approve a lot merger resulting in a parcel that
is a third of an acre in size and no evidence exists to support a categorical exemption for
the project at hand — including the interim demolition that occurred pending this continued
public hearing. As previously shown, and as further supported by the historical assessment
submitted by Archaeos, this "Lot Merger" has resulted in, and will continue to result in,
historical resource impacts and loss. Accordingly, the "exception to the exemption"
applies. (CEQA Guidelines § 15300.2(f) [ "A categorical exemption shall not be used for a
project which may cause a substantial adverse change in the significance of a historical
resource. "]; see also, CEQA Guidelines § 15064.5(a)(3), (4) and (b), Cal. Pub. Resources
Code § 21084.12, and 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
determination of historical significance for an unlisted historical resource].)
Further, unique circumstances exist by nature of the City's folly in segmenting the
development project and allowing interim harm to occur during a continued public hearing
and prior to final deliberation and determination. The City has yet to assess the air, traffic,
hazardous waste, water quality, climate, historical resource, cultural resource, public
safety, land use, or aesthetic impacts associated with the demolition that occurred or the
development project that is proposed.
7 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 sub division (g) of Section 5024.1 shall not preclude a lead a gency
from determining whether the resource may be an historical resource for purposes of this section." (Emphasis
added.)
MILES LAW GROUP
1151 Airway Avenue, Suite R4 • Costa Mesa, CA 91616 A PROFESSIONAL. CORPORATION
Phone- 714 384 0173 • Fax ?14 356 3905 L :.:4 3 U S E E N± I i 0 5 It E it L • E N I I 1 L E td E N T
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
June 26, 2012
Page 5
IV. THE LOT MERGER VIOLATES THE COASTAL ACT
The demolition of two single family historical residences (constructed in 1951)
and the application for a lot merger for the development of a new single family dwelling
adjacent to Ocean Boulevard and Lookout Point (a coastal bluff) is not the subject matter
for a Categorical Exclusion. Accordingly, the project before you requires a Coastal
Development Permit ( "CDP "). However, even assuming an appropriate application of a
Categorical Exclusion to this development project, the two residences were demolished
during the pendency of the continued public hearing. Condition 5 (Implementation) to
Categorical Exclusion Order E -77 -5 requires the South Coast Region to be notified by
approved form 5 working days prior to the commencement of development pursuant to
the exclusion. (See, Attachment Four.)
The South Coast Region did not receive notice of the development activity —
namely the demolition of the two residences that occurred on June 13, 2012.
Further, Condition 4 (Applicable Zoning) states that "development pursuant to this
exclusion" shall conform to the zoning in effect at the time of the Order (to wit, zoning in
place in 1977). The demolition of two residences pending an application for a lot merger
is not development pursuant to the exclusion. The General Plan land use designation is
residential single family detached (RS -D) with a 6 -9 dwelling unit per acre density. The
resulting lot merger violates the General Plan (and therefore zoning) as it results in a 3
dwelling unit per acre density. No exclusion applies and therefore the City Council
should affirm the denied Lot Merger and instruct the applicant to process a CDP for any
future development of 2808 and 2812 Ocean Boulevard.
V. THE RESTRICTIVE COVENANT PROPOSED BY GUIDA IS A FARSE
The restrictive covenant proposed by Guida is irrelevant to this discretionary
review process. Moreover, the Restrictive Covenant does not reflect any "restriction."
Mr. Guida is attempting to receive tacit approval for the ultimate design and construction
of a structure spanning the 2808 and 2812 Ocean Boulevard properties. The future
discretionary approval of this segmented project is still unknown. Therefore the
Restrictive Covenant restricts nothing and serves little more than an illusory measure to
L., MILES Law GROUP
1151 Anway Avenue. Sure R -i • Costa Mesa. CA 92676 A PROFESSIONAL. CORPORATION
Phone 714 30A 0173 • Fax 714 556.3905 L A V D U S E [ n P I F 0 8 U E n i • c
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
June 26, 2012
Page 6
misguide this City Council. Finally, the Restrictive Covenant itself is less than artfully
drafted — unless the intent of the document is ambiguity. Paragraphs 5 and 6 of the
Restrictive Covenant attempt to devise a binding restriction that "shall run with the
merged Property" while the restriction can be terminated at any time by the Community
Development Director. The Restrictive Covenant contains no standards governing the
Community Development Director's ability to terminate the covenant; it is nothing more
than a pretext to garner approval. Confirming that any restriction can be unilaterally
extinguished (and is therefore an unenforceable restriction), Paragraph 6 confirms the
voluntary nature of the self - serving Restrictive Covenant.
VI. THE AGENDA VIOLATES THE RALPH M. BROWN ACT
As stated in public commentary on May 8, 2012, the agenda fails to provide a
brief general description of the of each item of business to be transacted or discussed at
the meeting — which in turn prohibits the legislative body from undertaking any action or
any discussion on any item that does not appear on a posted agenda. (See, Cal. Gov.
Code section 54954.2(a).)
The lion's share of deliberation in this proceeding has been about the development
proposal of the applicant where the agenda merely references a lot merger. The agenda
fails to mention any action pursuant to CEQA or the Coastal Act and therefore deprives
the public of meaningful notice of the legislative body's consideration of both a
Categorical Exemption under CEQA and the reliance on a Categorical Exclusion under
the Coastal Act in response to demolition activity occurring during the pendency of the
continued public hearing. The agenda further omits any reference to demolition or
construction activity.
//
`Y MILES LAW GROUP
1151 Airway Avenue. Suite R•i -Costa Mesa, C,4 92626 A PROFESSIONAL CORPORATION
Phone 714 - 384 0173 • Fax 7i4 556 3905 L A N D ^.1 5 E t H V I: 0 5 0 E ^, i - E F T I I I E N i If i
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
June 26, 2012
Page 7
VII. CONCLUSION
The City Council must affirm the Planning Commission's DENIAL of the Lot
Merger. To do otherwise will be an abuse of discretion. LPA will exercise all of its
rights under the law and will seek a Writ of Mandate from the Superior Court rescinding
any approval of the denied Lot Merger. LPA further requests that this City Council set a
formal agenda item to consider the illegal demolition of the 2808 and 2812 Ocean
Boulevard residences (in direct contravention of this Council's direction) and to further
consider mitigation of that loss.
Thank you for consideration of this letter. Please do not hesitate to contact us if
you have any questions.
Very truly yours,
MILES • LAW GROUP. P.C.
/ /s //
By: Stephen M. Miles
cc: Ms. Leoni Mulvihill, Deputy City Attorney (via email)
r " IEUIVEr EER AG..
Agenda Item #18 — Ocean Boulevard Lot Merger Appeal
ADDITIONAL CONDITION
Based on a letter received June 26, 2012, from the Juaneno Band of Mission
Indians, staff recommends, for Council's consideration, that the following
condition be added to the Conditions of Approval in the draft Resolution of
Approval:
Prior to the issuance of a grading permit, the applicant shall submit written
evidence to the satisfaction of the Director of Community Development that a
certified archaeologist, paleontologist, and representative(s) of interested cultural
organization(s) have been retained to observe grading activities and salvage and
catalogue fossils and artifacts as necessary. They shall be present at the pre -
grade conference, shall establish procedures for archaeological, paleontological,
and cultural resource surveillance and shall establish, in cooperation with the
City, procedures for temporarily halting or redirecting work to permit sampling,
identification, and evaluation of the findings. If major archaeological,
paleontological, and /or cultural resources are discovered, which require long-
term halting or redirecting of grading, such findings shall be reported to the City
and the applicant. The archaeologist, paleontologist, and /or representative(s) of
interested cultural organization(s) shall determine appropriate actions, in
cooperation with the applicant, which ensure proper exploration and /or salvage.
Excavated finds shall be offered to the City, or its designee, on a first - refusal
basis. The applicant may retain said finds if written assurance is provided that
they will be properly preserved in Orange County, unless said finds are of a
special significance, or a museum in Orange County indicates a desire to study
and /or display them at the time, in which case items shall be donated to the City,
or designee.
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John H. Cummings, Jr. r ., I\�� r
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2600 Ocean Boulevard REi-)
Corona Del Mar, CA 92526
20I2 JR 25 P'r1 37 32
TO: The City Council of Newport Beach CIF
RE: The Lot Merger of 2808 & 2812 Ocean Boulevard
(Support Resolution No. 1857)
DATE: June 25, 2012
'RECEIVE ER ^3ENYN
-�r ;�: :•p
Enclosed you will find photographs of what my neighbor, Clifford Jones,
calls `being incompatible with the plan proposed by John Guida' for his
property at 2808 and 2812 Ocean Boulevard. As you can see from the
photographs, these existing structures are far below the standard of Mr.
Guida's fantastic new home, which is completely compatible with the
beautiful homes being built in the 3200 - 3300 -3400 blocks of Ocean
Boulevard. John Guida's proposed home will indeed increase land values
and be within the "Controlled Growth" provision which is one of the
concerns of Mr. Jones.
John Guida's home includes six (6) set backs that are twice as much as the
other properties on Block 34. John Guida has also agreed to numerous
concessions in an effort to appease his neighbors who continue to `Through
Stones.'
I plan to speak again at the upcoming City Council meeting and present the
example of other lot mergers approved by the City of Newport Beach.
Thank you for your consideration. I sincerely hope you will approve Mr.
Guida's pending application for the development of his property at 2808 and
2812 Ocean Boulevard.
dI. Cummings, Jr.
,rtv Owner on Ocean
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"RECEIVED AFTER A"uENTM
Community Deveio ;ne! .Director .2 7 - --
City of Newport -Beach
X300 Nev/port Beach -
Nea /jio i Beach, Ca 92661
RE: :got Merger No. L-M 20 € t to Merge 2S0g -2.1312 Oman Blvd (F!L 2i
Dear Ms. Brandt,
On behal'i Of the .(uaneno tialld Ol'Iv ;fission ?ild 12:'15, ACjachemen Nation (.iEM. the 1i'oul±d
like to fake this opportunity to coninient on the above proposed merger and Gi psec .
.mss you inav tie aware, archeological evidence 6ocuments our ancestors C.` =:i9; ^:i-:;;' �:i fl.,
Ch--v of Newport Beacli 'or over 10,000 years. ';'he JBM1 are strong advoc,•et oi•
presentation and protection of our and California's history. We are Coilcei "il:'.: llat abG\
protx)sed lot merger is an attempt to hide the real plan at hand- demolition air:
excavation. Excavation of a 6,000 square. "bot walk out basement vvill vvarra!!t n""ba!
mOnitoring cCnL•Iilo!1S where prior �rrounCe dl5tlirbin aci.!\ %IhCS QGGUrI'Cd Itl i :" :Vilen
e:1-, ironmental and cultural protection laws were not in place.
Based on our 30 year experience in monitoring Our homeland; the location O: he
proposed project is in a "prime location" for ancestors and their belongings in be
unearthed. Therefore, we are strongly ur-mi; the City of Newport to put sare4_.:a ds in
place by Navin, Archeological and Native American Monitoring present dur:a' ail
Uround disturbing activities.
We thank you for your consideration.
Oho'van
Respect,
ea
o
Joyce Stanfield Perry
Cultural Resource Director, 3BM1
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3216', Avenida Los Amigos, SJC, Ca!! ornia 92675 . Office (949) 493 -4933 - Fax (949; 493-1,6011
Harris, Lillian =,R\f i U
From: Brandt, Kim
Sent: Monday, June 25, 2012 1:05 PM 2012 JIM 25 PH 2: 36
To: Brown, Leilani
Cc: Kiff, Dave; Smith, Dana
Subject: FW: Guida Lot Merger ` C`
Attachments: Archaeos.Criterion C.Assessment.062512.pdf T. r c'
CITY
JI
Leilani,
Please distribute the following email and attachment to the City Council for tomorrow night's meeting.
I<.4'M
"REPEIVED TR AGENDA
From: Stephen Miles rmailto :smilesCalmileslawgrouo.coml
Sent: Monday, June 25, 2012 11:12 AM
To: Brandt, Kim
Cc: 'Cora Newman'; Mulvihill, Leonie; Ramirez, Gregg; Imarsh(a)lindellmarsh.com; Harp, Aaron; 'Jeffrey DuFine'; 'Ruth
Gautereaux'
Subject: Guida Lot Merger
Ms. Brandt,
Attached for distribution to the City Council and inclusion in the administrative record of proceedings for the Guida Lot
Merger, please find an opinion letter and analysis conducted by Archaeos concluding that: (1) the City's proposed
exemption processing of the Guida lot merger violates CEQA and further that; (2) "the 2808 Ocean Boulevard house
satisfies [CEQA Guidelines] Criterion C and thus would qualify as a significant historical resource."
Due to the illegal, unfathomable, and downright disgusting actions of Mr. Guida and his consultant team that
led to the demolition of the 2808 and 2812 Ocean Boulevard historical residences, the Lookout Point Alliance
was forced to turn away from their collaborative efforts. In light of the bad faith settlement efforts of Mr.
Guida and his counsel, Lookout Point Alliance has been diligently preparing documentation for City Council
consideration. A great deal of information has been omitted from the administrative record of proceeding
and has not yet been considered by the City Council in the context of this discretionary action and continued
public hearing. We respectfully demand that the City Staff produce all City documents related to the lot
merger and the City Council's ongoing deliberation on the Guida project which includes the proposed
development of 2808 and 2812 Ocean Boulevard (e.g., all files related to any building permit application or
other application submitted on behalf of Mr. Guida for the development of 2808 and /or 2812 Ocean
Boulevard).
Additional information and correspondence will be forthcoming.
Please contact us if you have any questions.
Take care,
- -Steve
Stephen M. Miles, Esq., MSEL
3151 Airway Avenue, Suite R -1 I Costa Mesa, CA 92626 1 (714) 393 -3389
t MILES o LAw GROUP
iProfessiu a;Corpilion
ARC H A E O S
11209 Golden Birch Way, San Diego, California 92131
Telephone and fax: (858) 549 -2181 E -mail: archaeos @msn.com
June 22, 2012
Stephen M. Miles, Esq., MSEL
3151 Airway Avenue, Suite R -I
Costa Mesa, CA 92626
RE: OPINION LETTER/CEQAFRAMEWORK AND HISTORICAL RESOURCES
CONTEXT FOR 2808 AND 2812 OCEAN BOULEVARD, CORONA DEL MAR, CA.
INTRODUCTION
This letter summarizes the California Environmental Quality Act (CEQA) implications and po-
tential constraints associated with the historical resources at 2808 and 2812 Ocean Boulevard, in
Carona Del Mar. The adjoining properties are located on the east side of Ocean Boulevard, on
the edge of a promontory overlooking the Pacific Ocean.
Two single - family residences were associated with the properties. Attorney Randall B. Christi -
son and Archaeos Principal Ruth C. Alter viewed the subject resources at the request of Attorney
Stephen M. Miles on June 2, 2012. The results and observations of that site visit are provided
below.
As you know, CEQA applies when a project requires public agency approval and is not subject to
a statutory or categorical exemption, and is not subject to the "common sense exemption " —no
possibility of significant environmental effect. That this is a project requiring public approval
seems self - evident. As for statutory exemptions, none are arguably relevant (emergency actions,
ministerial acts, fee administration, etc.), save the infill housing exemption. Pub. Res. C. §
21159.24 (A useful listing of the disparate statutory exemptions is in Kosta & Zischke, California
Environmental Quality Act (CEB 20t2, §§ 5.5- 5.67.) The infill exemption fails for several rea-
sons, not the least of which is the absence of low or moderate income housing.
Nor do any of the categorical exemptions apply. The closest ones would be Classes 1, 2, or 32.
Class I governs minor repair or additions to existing structures. 14 CCR § 15301. Class 2 gov-
erns replacement or reconstruction of existing strictures or facilities, where the replacement
structure has substantially the same capacity as the replaced structure. 14 CCR § 15302. Obvi-
ously, neither applies to the project the owner proposes. Finally, Class 32, governing infill de-
velopment projects, is inapplicable to this project as it is not an infill but rather a proposed modi-
fication of an already developed property.
If no categorical or statutory exemptions apply, then the agency must determine whether the pro-
ject "may have a significant effect on the environment." If so, the agency must prepare an Envi-
ronmental Impact Report. The agency determines this threshold question by conducting an Ini-
tial Study. 14 CCR § 15063.
Included in the list of potential environmental effects is a project "that may cause a substantial
adverse change in the significance of a historical resource." PRC § 21084. Whether the resource
is historically significant may be shown in one of several ways: recognized in a federal, state, or
local listing or historical survey (PRC § 5024.1 (g), (h)), or by determining as historically sig-
nificant under PRC § 51024.1 (g) or (h). The procedure for this determination is set out in 14
CCR § 4850 et seq., and in particular, by considering the four alternative criteria in 14 CCR
§ 4852 (b).
In the current case, as set out below, the 2808 Ocean Boulevard house satisfies Criterion C and
thus would qualify as a significant historical resource. Needless to say, the proposed project
more than satisfies the "substantial adverse change" standard of PRC § 21084.
As an aside, we understand that on June 13, the owner demolished the property without the
authority of appropriate permitting. Under the principle that a party may not benefit form his
own wrongful conduct, the owner's act will not change our conclusions.
SUBJECT HISTORICAL RESOURCES
The resource at 2808 Ocean Boulevard was an example of Mid - Century Post and Beam architec-
ture; the resource at 2812 Ocean Boulevard was an example of Modern Ranch architecture. Both
resources appeared to be approximately 60 years of age, and were well- constructed. The former,
however, represented a stellar example of its genre while the latter was less important.
Further, the architecture of the 2808 Ocean Boulevard was especially appropriate to its setting.
This resource was well -sited on its lot, and its minimal wall construction and its large expanses
of plate glass windows allowed it to take advantage of the spectacular views afforded by the lo-
cation. The use of redwood in its framing made it particularly well - suited to the coastal damp-
ness. The balance and detail of the design were likely the work of a quality designer or architect.
POST AND BEAM ARCHITECTURE
Post and Beam architecture, popular from about 1950 to 1970, is based on a method of construc-
tion whereby the structural framing consists of load bearing beams supported by columns rather
than by solid bearing walls. While an ancient technique, in Modem design this method allows
for the expansive use of floor -to- ceiling glass along the perimeter of the building, where solid
walls otherwise would be located. Simplified elements of International, Japanese, and Ranch
architecture are sometimes incorporated in Post and Beam design, the latter two stressing the
horizontality of line.
Used in both residential and commercial design, Post and Beam buildings are generally custom
designed and involve a high degree of individualization. Residences are typically rectilinear
with open floor plans that are grid -like in layout subject to a consistent beam length.
Primary character defining features include direct expression of the underlying structural system
(usually steel or wood frames), horizontal massing, flat or shallow pitched roofs with deep over-
hangs and no parapets, and walls of floor -to- ceiling glass. Secondary features include repetitive
facade geometry, minimal use of solid load bearing walls, absence of applied decoration, strong
connections between interior and exterior spaces, open interior floor plans, and wood, steel, and
glass exterior finish materials.
Significant examples of Post and Beam architecture are extremely rare and any extant building
should be considered for historic designation. Integrity, with regards to the expression of the
structural system through expansive floor -to- ceiling glass and wood or steel framing, is critical in
evaluating this style.
JURISDICTION
Corona Del Mar falls under the jurisdiction of the City of Newport Beach. Newport Beach is not
a Certified Local Government and does not have an active historical resources program. As
such, it defaults legally to CEQA for matters of significance determination.
CEQA ELIGIBILITY CRITERIA
Under CEQA, a significant historic resource is one that is eligible for listing in the California
Register of Historical Resources/National Register of Historic Places or other local historic regis-
ter, or is deemed significant in a historical resource survey (Section 5024.1(g) of the Public Re-
sources Code).
In order to be eligible for listing under the California Register/National Register (the standards of
which are both very similar), a resource must be significant within a historic context and must
also meet oue or more of the following criteria:
Criterion A: Be associated with an event, or series of events, that have made a signifi-
cant contribution to the broad pattern of history.
Criterion B: Have an unequivocal association with the lives of people significant in the
past.
Criterion C: Embody the distinctive characteristics of a type, period, or method of con-
struction, or represents the work of a master, or possesses high artistic val-
ues, or represents a significant, distinguishable entity whose components
lack individual distinction.
Criterion D: Have yielded or may be likely to yield information important in local,
state or national prehistory or history.
Additionally, under both the California Register and the National Register, a resource must not
only meet at least one of the above criteria, but must also possess integrity, the various aspects of
which include location, design, setting, materials, workmanship, feeling, and association (Na-
tional Register Bulletin 15, 1991: 11,44). Typically, resources 45 or more years of age are eligi-
ble for historical evaluation, although under special circumstances, more recent examples exhib-
iting merit can be considered.
CALIFORNIA REGISTER CRITERIA
When evaluated within its historic context, under CEQA a property must be shown to be signifi-
cant for one or more of the four Criteria for Evaluation — A, B, C, or D. The Criteria describe
how properties are significant for their association with important events or persons, for their
importance in design or construction, or for their information potential. In addition, a property
must not only be shown to be significant under the California Register criteria, but it also must
have integrity (14 CCR j 4852 (b).
Criterion A: Event. To be considered for listing under Criterion A, a property must be associ-
ated with one or more events important in the defined historic context. The event or trends must
clearly be important within the associated context. Mere association with historic events or
trends is not enough, in and of itself, to qualify under Criterion A, the property's specific associa-
tion must be considered important as well.
Criterion B: Person. Criterion B applies to properties associated with individuals whose spe-
cific contributions to history can be identified and documented. Persons "significant in our past"
refers to individuals whose activities are demonstrably important within a local, state, or national
0
historic context. The criterion is generally restricted to those properties that illustrate (rather than
commemorate) a person's important achievements. The persons associated with the property
must be individually significant within a historic context. Significant individuals must be di-
rectly associated with the nominated property. Properties eligible under Criterion B are usually
those associated with a person's productive life, reflecting the time period when he or she
achieved significance. Speculative associations are not acceptable. Documentation must make
clear how the nominated property represents an individual's significant contributions. A property
must retain integrity from the period of its significant historic associations. Architects are often
represented by their works; which are eligible under Criterion C. Their homes, however, can be
eligible for consideration under Criterion B, if these properties were personally associated with
the individual.
Criterion C: Design /Construction. Properties may be eligible under Criterion C if they em-
body the distinctive characteristics of a type, period, or method of construction, or that represent
the work of a master, or that possess high artistic values, or that represent a significant and dis-
tinguishable entity whose components may lack individual distinction. Properties which embody
the distinctive characteristics of a type, period, or method of construction refer to the way in
which a property was conceived, designed, or fabricated by a people or culture in past periods of
history. Distinctive characteristics are the physical features or traits that commonly recur in in-
dividual types, periods, or methods of construction. To be eligible, a property must clearly con-
tain enough of those characteristics to be considered a true representative of a particular type,
period, or method of construction.
A master is a figure of generally recognized greatness in a field, a known craftsman of consum-
mate skill, or an anonymous craftsman whose work is distinguishable from others by its charac-
teristic style and quality. The property must express a particular phase in the development of the
master's career, an aspect of his or her work, or a particular theme in his or her craft.
Criterion D: Information Potential. Properties may be eligible under Criterion D if they have
yielded, or may be likely to yield, information important in prehistory or history.
Integrity. Integrity is the ability of a property to convey and maintain its significance. A prop-
erty must not only be shown to be significant under the California Register criteria, but it also
must have integrity. To retain historic integrity, a property will always possess several, and usu-
ally most, of the aspects. The seven key aspects of integrity include: location, design, setting,
materials, workmanship, feeling, and association.
CONCLUSIONS AND RECOMMENDATIONS
Based on initial observations, both resources met the minimal age requirements for evaluation.
The resource at 2808 Ocean Boulevard, however, was clearly the more important of the two re-
sources in terms of design, CEQA Criterion C. This resource was likely the work of a quality
designer or architect, but without extensive research, its attribution to a specific individual can-
not be ascertained. Similarly, research associated with a full historic survey is necessary to de-
termine potential significant associations between resources and individuals, CEQA Criterion B.
Despite their destruction, it is strongly recommended that reconstructive historical surveys be
conducted for both properties to determine their significance and the impact of their loss to his -
torical resources.
It is also possible that other related environmental issues, including archaeological and paleonto-
logical resources, may be applicable. An Initial Study should be prepared to identify any other
environmental impacts associated with any projects involving the subject properties.
Should you have any questions regarding these observations, please contact Archacos, at 858-
549 -2181.
Sincerely,
_06e� C.
Ruth C. Alter, M.A.
Owncr and Principal
0
Wkillm
EDUCATION
San Diego State University, M.A., Anthropology
San Diego State University, B.A., Anthropology
PROFESSIONAL HISTORY
Archaeos. Owner and Principal. 1996 to present.
Affinis. Director, Historical Studies. 2000 to 2002.
Affinis. Senior Interpreter/Senior Archaeologist/Senior Analyst. 1991 to 2000.
Evergreen Community College. Instructor, Anthropology (Part- time). 1983 to 1984.
San Jose City College. Instructor, Anthropology (Part- time). 1982 to 1983.
Manpower, Incorporated. Division Manager. 1981 to 1991.
San Diego Museum of Man. Education Coordinator. 1975 to 1981.
San Diego State University. Graduate Assistant. 1975.
San Diego Museum of Man. Curatorial Assistant. 1974 to 1975.
San Diego State University Foundation. Contract Archaeologist (Part- time). 1973 to 1975.
San Diego State University Foundation. Coordinator, Public Archaeology Program. 1973 to 1974.
EXPERIENCE
Ms. Alter is the owner and principal of Archaeos, a cultural resources consulting Firm founded in 1996.
She has conducted assessment studies involving well over a thousand historical resources for public as
well as private clients since 1991. Her experience has been perforated under both CEQA and NHPA/
National Register and includes constraints studies, inventories, historical building evaluations, designa-
tion presentations, Initial Studies, and Environmental Impact Reports.
Ms. Alter has presented resources For designation to the City of San Diego Historical Resources Board
and helped to create a similar board for the City of Murrieta; she is currently assisting Murrieta in attain-
ing Certified Local Government status with the California Office of Historic Preservation, and serves as
extension of staff for cultural resource issues. She prepared the Cultural Resources Preservation Element
for the City of Colton and is the author of the Historic Ordinance for the City of Murrieta. Ms. Alter has
worked in the City of San Diego, County of San Diego, and cities of Carlsbad, Chula Vista, Encinitas,
Escondido, Murrieta, Colton, Vista, and Oceanside.
Studies in and for the City of Escondido have been conducted since 2000. City projects include the In
addition, Ms. Alter has provided historical and architectural studies for more than 50 cultural resources
within the City's jurisdiction since 2002.
Major projects include the Eastside Neighborhood CLG Intensive Survey for the City of Oceanside, the
Historic Resources Survey of South Santa Fe Avenue for the County of San Diego, the Historic Resources
Inventory of the Downtown Lakeside Redevelopment Plan Area for the County of San Diego, the Murri-
eta Historical Resources Inventory update, the Chula Vista Urban Core Historic Resources Study, histori-
cal evaluation of the Escondido Woman's Club, the Felicita /Juniper Street Widening project in Escondido,
and analyses of other Escondido properties located at 1220 N. Ash Street, 542 W. Third Avenue, 123 N.
Second Avenue and 1140 S. Citrus Street, and the multi- phased Quieter Home Program Historic Re-
sources Survey for the Federal Aviation Administration.
RANDALL B. CIIRISTISON
CtIRis isoS L.aw F1Rm 707 Broadway, Wh Floor San Diego, California 92101 Tel: 619.233.3200 Fax: 855.777.5547
ran chr'ctieoiig)yahoncnm
EXPERIENCE
Attorney at Law and Mediator, The Christison Law Firm, 2004 - present.
Consultant for Wolf Management Consultants, Inc., and the Christison Group, 2004 -
present. Counsel to the Attorney General of California, 2000 -2004.
Supervising Deputy Attorney General, Natural Resources and Tort & Condemnation
Sections, 1 987 -91, 1993 -2000; Deputy Attorney General, 1974 -1987.
Member, Jennings, Engstrand & Henricksen, 1991 -1992
Admitted to practice, California, United States Supreme Court, and relevant federal
courts. Extensive trial and appellate experience.
A V rated (1986- present).
PUBLICATIONS
Civil Procedure During Trial, Continuing Education of the Bar, Updates 1989 -1995.
California Government Tort Liability, Continuing Education of the Bar, 1992 (Co- Author).
California Trial Practice, Continuing Education of the Bar 1995 (Co-Author).
California Trial Practice, Continuing Education of the Bar, Updates 1996 -2001 (Co- Author).
Professional Development Quarterly: Succession Planning and Knowledge Transfer (2003); Adult Learning for
Lawyers; Defining Learning Objectives; Expanding Training Techniques (2004); Needs Assessment; From Theory
to Practice; Training the Trainers (2005); Burnout: A Necessary Part of Lawyers' Lives? (2007) Trial Bar News:
Writing Your Trial Court Motions to Win Friends and Influence Judges (2008).
SDDL Update: Burnout and Trial Lawyers; Writing Winning Trial Court Motions (2009).
EDUCATION
Undergraduate: University of Southern California, B.A. cum laude.
Legal: University of Santa Clara, J.D. Cum laude, Associate Editor, Santa Clara Law Review.
MILITARY
Lieutenant, U.S. Navy, Submarine Service.
COMMUNITY AND PROFESSIONAL ACTIVITIES
Faculty, Center for Judicial Education and Research, National Association of Attorneys General.
Judge pro tem, Mediator, and Arbitrator, San Diego Superior Court. Mediator Credential, National
Conflict Resolution Center.
Arbitrator for Financial Industry Regulatory Authority, State and County Bar Associations, Better Business Bureau.
San Diego County Bar Association, Co- Chairman Law Practice Management Committee (2007 - 2010); Attorney
Mentor (2006 - present).
Consultant, California Government Tort Liability, and Civil Procedure Before Trial, and Moderator, How to Handle
a Government Tel Claim, Continuing Education of the Bar.
Instructor in Writing, Argumentation, Trial Practice, Civil Procedure, Time Management, and others.
Adjunct Professor of Law, Thomas Jefferson School of Law, 2006 - present.
Speaker, American Meteorological Society, Association for Continuing Legal Education, Professional
Development Consortium, San Diego County Bar, San Diego Consumer Attorneys; and others.
Member, Association for Continuing Legal Education, Professional Development Consortium, Mensa.
University of California at San Diego, certificate in adult education.
READ San Diego Literacy Tutor; Cubmaster, Pack 4; Committee Chairman and Assistant Scoutmaster, Troop 506;
Little League Baseball and YMCA Basketball Coach, 46- gallon blood donor. Aug 2011
D � 3
R
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Historicol Resources Element
!I III!! ljq�
IN iq 101 11
�f
Valued Landmarks, Sites, and Structures
Introduction
This Element addresses the protection and sustainability of Newport Beach's historic and
paleontological resources. Goals and policies presented within this Chapter are intended to recognize,
maintain, and protect the community's unique historical, cultural, and archeological sites and
structures. Preserving and maintaining these resources helps to create an awareness and appreciation
of the City's rich history.
For many years, Newport Beach's scenic location, attractive neighborhoods, and active commercial
areas have continued to place many of the City's original buildings, paleontological resources, and
historical sites under extreme development pressures. Nfam, of the community's early structures and
archeological sites have since been demolished or altered. I4owever, a significant number of historical
sites and buildings have been preserved that are representative of the community and the region.
\Zany of these historical resources have been recognized as being of statewide or nat onal importance.
The preset -ation of these sites has been the result of active efforts by residents, community groups,
private organizations and the City of Newport Beach.
It is important to continue to protect Newport Beach's heritage and to identify and safeguard
historical resources worthy of protection and ensure that new development enhances rather than
alters or eliminates reminders of Newport Beach rich heritage.
®Newport Beach General Plan
Historical Resources Element
Context— Early History
The cornmunity of Newport Beach has a rich and diverse history. The picturesque coastline of the
community and its close proximity to the water have played a large role in the development of the
City. Early inhabitants thousands of pears ago were aboriginal hunters and gatherers who were fast
drawn to this area by the rich bounty of the bap and ocean. The most recent native people Nvere the
T ongva (Gabriehnos) and the Acjachemem Quanenos), who lived in small villages around the bap.
In Jule of 1769, the expedition led by the Spaniard Gaspar de Portola reached the boundaries of
present -day Orange County. Father Junipero Serra, a member of the expedition, dedicated the
Mission of San Juan Capistrano, Orange Count),'s first permanent settlement, on November 1, 1.776.
The Mission's chapel and adjoining structure were the first signs of civilization erected upon the Santa
1 00
1M LOMMES
�J I
That Are Historically Significant
Ana Region. Decades later in the 1800s, land holdings of the Capistrano Mission were parceled out as
Spanish and Mexican land grants to war heroes and aristocratic families. Later, many Spanish and
Mexican landowners were forced to sell large tracts of their land. The most prominent landowners of
the area, Don Sepulveda and Don Bernardo Yorba, men whose combined holdings comprised
Newport Beach's upper bay and lower bap, sold their tracts to American entrepreneurs by the names
of Flint, Bixby, Irvine and McFadden. The first stirring of commerce began in the community of
Newport Beach in 1870, when a small stern wheeler from San Diego named "The Vaquero" made its
first trip to a marshy lagoon to exchange lumber for hides, tallow, livestock and grain. James
McFadden and ranch owner James Irvine named the landing on the bay "Newport." The McFadden
brothers brought in lumber from Northern California and shipped out produce from local farmers on
a shallow draft steam schooner named Newport.
In 1888, James McFadden, due to the treacherous harbor entrance, moved the isolated settlement to
the peninsula and built a wharf that extended to deep water where large steamers could dock. In 1891
the McFadden brothers completed a railway connection to Santa Ana. Shipping activity increased
dramatically and for the next eight years, the McFadden Wharf area was a booming commercial and
shipping center and a company town began to grow. However, in 1899, the federal government
Allocated funds for major improvements to a new harbor at San Pedro, which was served by the
Southern Pacific Railroad and would become Southern California's major seaport. The McFadden
Wharf and railroad was sold to a beet -sugar producer in Los Alamitos who six months- later sold to
the Southern Pacific Railroad signaling the end of Newport as a commercial shipping center.
In 1902, James McFadden sold his Newport town site and about half of the Peninsula to William S.
Collins, who sa-,v Newport Bas's resort and recreation potential. Collins took on Henry F. Huntington
Newport Beach General Plan
Historical Resources Element
as a partner in the Newport Beach Company. Huntington had acquired the Pacific Electric railway
system and used it to promote new communities outside of Los Angeles.
As recently as 1941, lands surround Newport's Upper Bay were developed tenant terms. Newport Beach 15. A Diamond Jubilee History, James P. Felton.
Photo courtesy of the Irvine Company
Soon after, the Pacific Electric Railroad established itself in Newport Beach in 1905, connecting the
City of Los Angeles by rail. Rapid transit "Red Cars" brought new visitors to the waterfront, 2nd small
hotels and beach cottages were developed that catered to the tourist industry. Between 1902 and 1907,
many of Newport Beaches' waterfront communities were subdivided, including West Newport, East
Newport, Bay Island, Balboa, Corona del Mar, Balboa Island and Port Orange (at old Newport
Landing), and in august 1906, residents in the booming bay town voted to incorporate. On
September 1, 1906, Newport Beach became the fifth city to incorporate in Orange County. Newport
Heights and Corona del Mar were annexed in 1917. In the 1920s, the City and County began work to
improve the harbor entrance and create navigable channels in the bay. Between 1934 and 1936, the
federal government and the County Harbor District undertook work around the harbor. They
Newport Beach General Plan
Historical Resources Element
dredged the Lower Bay, extended jetties, and created the present dap contour of Newport Harbor. In
1936, community members dedicated the City's main harbor. During World War II, the harbor
became a vital hub as naval ships were built and repaired in its coastal waters. Servicemen stationed at
the Santa Ana Army Air Base came to Balboa to visit the entertainment hot spots. After the war,
many of these men returned to build their homes in Newport Beach and the surrounding area.
The Santa Ana freeway, built in the 1950s, triggered further growth. During this time, housing
development began to spread north and eastward from the waterfront to the hills and mesa areas. The
community's economic industiv changed, as the fishing industry, once the backbone of Newport
Beach's economy, gradually declined to be replaced with new businesses and commercial centers.
Beginning in 1967 and through the 1970s and 1980s, the building of shopping centers such as Fashion
Island, hotels, high -scale restaurants, offices, and many new homes led to the creation of the active
employment, retail, and residential areas that characterize much of Newport Beach today' While
Newport Beach is no longer a small resort community, the bay and beach continue to play an
important role in the community's character and economy and the City continues to be a destination
for visitors.
Relevant and Related Programs
FEDERAL PROGRAMS
The National Hittaic Pretenwlion z1a (NHII -J) o% 1966 is a federal law that establishes the legal and
adnnnistrativc context to encourage preservation of historic resources associated with the country's
history and heritage. The NHPA establishes criteria for inclusion into the National Register of
Historic Places (NRHP) which is nn inventory of the United States' historic resources maintained by
the National Park Service. Structures- and features must usually be at least 50 years old to be
considered for listing on the NRHP, barring exceptional circumstances.
Properties listed in the NRIIP, or determined ebgibte for listing, must meet certain criteria for
historical significance and possess integrity of form, location, and setting.
STATE PROGRAMS
The California Register of Historical Resources (CRIIR) was created to identify resources deemed
worthy of preservation on a state level and was modeled closely after the NRHP. The criteria are
nearly identical to those of the NRHP but focus upon resources of statewide, rather than national,
significance. The CRHR automatically includes resources listed on the NRHP as are State Landmarks
and Points of Interest.
s Histon' of Newport Beach. Newport Beach Real Rstare. Webpage:
htrp:/ jwww: relies tarenewportbeach .corn/relocation /his romp hp
Newport Beach General Plan
Historical Resources Element
California Health and Safety Code (Sections 7050.5,
7051, and 7054)
These sections collectively address the illegality of interference with human burial remains (except as
allowed under applicable sections of the Public Resources Code), as well as the disposition of Native
American burials in archaeological sites- and protects such remains from disturbance, vandalism, or
inadvertent destruction; establishes procedures to be implemented if Native American skeletal
remains are discovered during construction of a project, treatment of the remains prior to, during and
after evaluation, and reburial procedures.
California Senate Bill 297 (1982)
This bill addresses the disposition of Native American burials in archaeological sites and protects such
remains from disturbance, vandalism, or inadvertent destruction; establishes procedures to be
implemented if Native American skeletal remains are discovered during construction of a project; and
establishes the Native American Heritage Commission to resolve disputes regarding the disposition of
such remains.
LOCAL REGULATIONS — NEWPORT BEACH CITY COUNCIL
POLICY MANUAL
Historical Resources
Reflective of Newport's unique history, several properties in the City- exhibit significant heritage
distinction. Twelve sites have been fisted or designated eligible for listing on the National Register of
Historic Places or California Register of Historical Resources, or otherwise listed as historic or
potentially historic in the California Historic Resources information System (CHRIS) maintained by
the Office of Historic Preservation (Figure HRl).
Nationally Recognized Resources
Four properties within the City have been fisted on the National Register of Historic Places.
m Balboa Inn —Built in 1929, the
Balboa Inn is representative of
Spanish Colonial Revival
architecture and beachftont tourist
development.
m Balboa Pavilion — Constructed in
1905, the Balboa Pavilion has been
the site of numerous social and
cultural activities over the turn of
the centun-. It is one the state's last
surviving examples of great
waterfront recreational pavilions.
�� >rt sl. _ i "t¶1 • �
One of the City's first landmarks was the Balboa Pavilion constructed in 1905. Today it
is listed on the National and State Historic Registers. (Newport Beach 75: A Diamond
Jubilee History. Photo coudesv of Phil Tozer)
Newport Beach General Plan
Figure HR1 Historical Resources
Pg 1- 8.5111 color
Historical Resources Element
Newport Beach General Plan
Historical Resources Element
Pg 2- 8.5x11 color
FKaNewport Beach General Plan
Historical Resources Element
o Crystal Cove Historic District —The Crystal Cove Historic District is a 12.3 -acre coastal
portion of the 2,791 -acre Crystal Cove State Park. The federally listed Historic District is an
enclave of 46 vintage rustic coastal cottages originally built in the 1920s and 1930's that are
nestled around the mouth of Los Trances Creek. It is one of the last remaining examples of
earl- twentieth centun, Southern California coastal development.
o Lovell Beach House —Built in 1926, the Lovell Beach House was designed by Rudolf
Schindler and is considered the first pure International Style house built in America.
State- Recognized Resources
In addition, four properties within the City have been listed as California Historical Landmarks.
• Old Landing — Established by Captain Dumiells in the 1870s, it was the site of the first
shipping business in Newport Bap.
• Site of First Water -to -Water Flight— Commemorates the May 10, 1912, flight of pioneer
pilot Glenn L. Martin who flew from the waters of the Pacific Ocean at Balboa to Catalina
Island; on a primitive hydroplane; the first -,vater -to -water flight. Today a plaque at the foot of
the Balboa Pier honors the memory of Glenn Martin.
• McFadden Wharf —The site of the original wharf built in 1888 by the McFadden brothers.
e Balboa Pavilion — described above
Pour additional properties are also listed in the CHRIS database:
in B.K. Stone Building —one of the oldest commercial structures in Newport Beach.
0 Balboa Island Firehouse No. 4— early police and fire station for the Balboa Peninsula
• Bank of Balboa /Bank of America Bank of Balboa, Bank of America, provided services
from 1928 to 1984 (now demolished)
• Our Lady of Mount Carmel Church
Locally Recognized Resources
Properties that are not listed on the NRI IP or CRI -IR may also be considered historical resources. The
City of Newport Beach has established the Newport Beach Register of Historical Property ( "Cit
Register ") to recognize structures or properties of local historical or architectural significance. The
Cit%, has listed seven properties in the Cin Register in recognition of their local historical or
architectural significance, as described above. In addition to the Balboa Pavilion and the Balboa Inn,
which are also listed in the NRI-IP and CRHR, the City Register includes the following:
• Rendezvous Ballroom Site —A popular Balboa Dance Hall that featured numerous famous
Big Bands of the 1930s and 1940s. It was destroyed by fire in 1966.
• Wilma's Patio (formally Pepper's Restaurant) — Located on Balboa Island, the exposed
structural components of Wilma's Patio are timbers used in the original Balboa Island Bridge
and McFadden Wharf.
o Balboa Theater —Built in 1928, the Balboa Theater is a former vaudeville theater that at one
time housed an infamous speakeasy during the prohibition period. Currently, the theater is
under renovation.
Newport Beach General Plan
Historical Resources Element
In 1953, the International Boy Scout Jamboree was held where Newport Center and Fashion Island are now located. Thousands of tents were pitched in
the area reachable only by a two -lane muddy trail.
• Balboa Saloon —The 1924 building is
representative of the nautical history and
Alain Street commercial masonry stvle of
Newport Beach.
• Dory Fishing Fleet— The Doty Fishing
Fleet is located adjacent to Newport Pier.
The fleet and open -air fish market have
operated at this location since the founding
of the fleet in 1591 by Portuguese
Fishermen. The last remaining fleet of its
type, it is a historical landmark designated
by the Newport Beach Flistorical Society.
It is a City Council policy that an area
immediateh° west of the Newport Pier be
reserved for the Newport Dote Fishing
Fleet.
Additionally, in 1991, Ciao Council established an
Ad Hoc Historic Preservation Advismy
Committee (AH1IPAC) to investigate the
historic resources of the community and make
recommendations regarding preservation. 'Che
AHF113AC completed its assignment on May 12,
1992, and reported its findings, which included a
m Newport Beach General Plan
A memorial plaque located at what is now Fashion Island commemorates
the event
Historical Resources Element
Historic Resource Inventory of 61 properties, to City Council June 8, 1992. The inventory categorized
the properties surveyed in five hierarchical "classes" of significance:
• Class 1 —Major Historic Landmark
• Class 2— Historic Landmark
• Class 3 —Local Historic Site
• Class 4— Structure of Historic Interest
• Class 5 —Point of Historic Interest
Under this s'vstem, Class 1 to Class 3 would be eligible to use the State Historic Building Code; Class 4
and Class 5 properties would be fisted for recognition purposes only. The inventory was never
officially adopted by the City, and the structures were never placed on the City Register, but the
inventory still serves as a useful guide to potentially historic properties chat may have historic or
cultural significance to the City.
Goals and Policies
Goal
HR 1
Recognize and protect historically significant landmarks, sites, and structures.
Policies
HR 1.1 Historical Resources Inventory
Maintain and periodically update the Newport Beach Register of Historical
Property' for buildings, objects, structures, and monuments having importance
to the history or architecture of Newport Beach and require photo
documentation of inventoried historic structures prior to demolition. (Inip 9.1,
10.1, 29.2)
HR 1.2 Preservation or Re -Use of Historical Structures
I- ncourage the preservation of structures listed on the National Register of
Iistoric Places and /or the list of California Historical Landmarks, and /or the
Newport Beach Register of Historical Property Provide incentives, such as
grading reductions or waivers of application fees, permit fees, and /or any liens
placed by the City to properties listed in the National or State Register or the
Newport Beach Register of Historical Property in exchange for preservation
easements. (Inip 8.2. 2P.2)
HR 1.3 Historical Landmarks
Encourage the placement of historical landmarks, photographs, markers, or
plaques at areas of historical interest or value. Create a Landmark Plan that.vill
recognize and designate culturally important heritage sites that are eligible for
Newport Beach General Plan 8799
Historical Resources Element
the placement of historical landmarks or plaques. The Plan will also identify
funding opportunities to support the program such as development fees,
corporate or civic sponsorships, donations, or utilizing General Funds. (Gnp 8.2,
9. 1, 10J, 29.2)
HR 1.4 Adaptive Re -use
Encourage alternatives to demolition of historical sites or structures by
promoting architecturally compatible rehabilitation or adaptive re -use. Provide
incentives- such as permit and application fee waivers, flexible building
requirements and free technical advice by person(s) qualified in historical
preservation. (Imp 8.2, 29.2)
HR 1.5 Historical Elements within New Projects
Requite that proposed development that is located on a historical site or
structure incorporate a physical link to the past within the site or structural
design, if preservation or adaptive reuse is not a feasible option. For example,
incorporate historical photographs or artifacts within the proposed project or
preserve the location and structures of existing pathways, gathering places,
seating areas, rail lines, roadways, or vieoing vantage points within the proposed
site design. (Imp 29.2)
HR 1.6 Documentation
Require that, prior to the issuance of a demolition or grading permit, developers
of a property that contains an historic structure as defined by CEQA retain a
qualified consultant to record the structure in accordance with U.S. Secretary of
Interior guidelines (which includes drawings, photographs, and written data) and
submit this information to the Newport Beach Historical Socicty, Orange
County Public Library, and City Planning Department. (Imp 8.2)
HR 1.7 Offer for Relocation of Historic Structure
Require that, prior to the demolition of a historic structure, developers offer the
structure for relocation by interested parties. (Gnp 8.2)
Goal
HR2
Identification and protection of important archeological and paleontological resources within the City.
Policies
HR 2.1 New Development Activities
Require that, in accordance with CI:QA, new development protect and preserve
paleontological and archaeological resources from destruction, and avoid and
mitigate impacts to such resources. Through planning policies and permit
conditions, ensure the preservation of significant archeological and
C--m— Newport Beach General Plan
Historical Resources Element
paleontological resources and require that the impact caused by any
development be mitigated in accordance with CEQA. (Inip i1.1)
HR 2.2 Grading and Excavation Activities
lllaintain sources of information regarding paleontological and archeological
sites and the names and addresses of responsible organizations and qualified
individuals, who can analyze, classify, record, and presen-e paleontological or
archeological findings.
Require a qualified paleontologist /archeologist to monitor all grading and /or
excavation where there is a potential to affect cultural, archeological or
paleontological resources. If these resources are found, the applicant shall
implement the recommendations of the paleontologist /archeologist, subject to
the approval of the City Planning Department. (Imp 11.1)
HR 2.3 Cultural Organizations
Notify cultural organizations, including'Native American organizations, of
proposed developments that have the potential to adversely impact cultural
resources. Allow representatives of such groups to monitor grading and /or
excavation of development sites. (Inip 11.1)
HR 2.4 Paleontological or Archaeological Materials
Requure new development to donate scientifically valuable paleontological or
archaeological materials to a responsible public or private institution with a
suitable repository, located within Newport Beach, or Orange County, whenever
possible. (bnp 11.1)
Newport Beach General Plan Ck+lla
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Adopted March 7, 2008
RULE 445. WOOD BURNING DEVICES
(a) Purpose
The.purpose of this rule is to reduce the emission of particulate matter from wood
burning devices.
(b) Applicability
The provisions of this rule shall apply to specified persons or businesses within
the South Coast Air Basin portion of the South Coast Air Quality Management
District:
(1) Any person that manufacturers, sells, or offers for sale, or installs a wood
burning device;
(2) Any commercial firewood facility that sells, offers for sale, or supplies
wood intended for burning in a wood burning device or portable outdoor
wood burning device; and
(3) Any land owner or land occupier that operates a wood burning device or
portable outdoor wood burning device.
(c) Definitions
(1) COMMERCIAL FIREWOOD FACILITY means any operation that has a
business license that sells, or offers for sale, bulk firewood.
(2) COOKSTOVE means any wood -fired device used primarily for cooking
food as defined in Title 40 of the Code of Federal Regulations Section
60.531, February 28, 1988, or subsequently revised.
(3) DEDICATED GASEOUS - FUELED FIREPLACE means. a fireplace,
including, but not limited to, a gas log fireplace, either constructed on -site,
or factory built, fueled exclusively with a gaseous fuel such that the burner
pan and associated equipment are affixed to the masonry or metal base of
the fireplace.
(4) FIREPLACE means any permanently installed masonry or factory -built
device used for aesthetic or space - heating purposes and designed to
operate with an air -to -fuel ratio greater than or equal to 35 -to -1.
445 -1
Rule 445 (cont)
(Adopted March 7, 2008)
(5) LOW INCOME HOUSEHOLD means any household that receives
financial assistance through reduced electric or gas bills from an electric
or natural gas utility based on household income levels.
(6) MANDATORY WOOD BURNING CURTAILMENT DAY means any
calendar day so declared to the public by the Executive Officer when
levels of particulate matter of 2.5 microns in size or less (PM2.5) is
forecast to exceed 35 µg/m3.
(7) MANUFACTURED FIRELOG means a commercial product expressly
manufactured for use to simulate a wood burning fire in a wood burning
device.
(8) MASONRY HEATER means any permanently installed device that meets
the definition of a masonry heater in ASTM E 1602 -03.
(9) NEW DEVELOPMENT means residential or commercial, single or multi-
building unit, which begins construction on or after March 9, 2009. For
the purposes of this definition, construction has begun when the building
permit has been approved or when the foundation for the structure is
started, whichever occurs first.
(10) PELLET - FUELED WOOD BURNING HEATER means any wood
burning heater that is operated on any pellet -fuel, and is either U.S. EPA
Phase II- certified or exempted under U.S. EPA requirements as defined in
Title 40 Code of Federal Regulations, Part 60, Subpart AAA, February 28,
1988, or subsequent revisions.
(11) PERMANENTLY INSTALLED means any device built or installed in
such a manner that the device is attached to the ground, floor, or wall, and
is not readily moveable. A free standing stove that is attached to an
exhaust system that is built into or through a wall is considered
permanently installed.
(12) PORTABLE OUTDOOR WOOD BURNING DEVICE means any
portable outdoor device burning any solid fuel for aesthetic or space
heating purposes including, but not limited to, fireplaces, burn bowls, and
chimineas located on property zoned for residential uses.
(13) SEASONED WOOD means wood of any species that has been
sufficiently dried so as to contain 20 percent or less moisture content by
weight as determined by ASTM Test Method D 4442 -92 or a hand -held
moisture meter operated in accordance with ASTM Test Method D 4444-
92, Standard Test Methods for Use and Calibration of Hand -Held
445 -2
Rule 445 (cont)
(Adopted March 7, 2008)
Moisture Meters or an alternative method approved by the Executive
Officer, the California Air Resources Board, and the U.S. Environmental
Protection Agency.
(14) SOLE SOURCE OF HEAT means the only permanent source of heat that
is capable of meeting the space heating needs of a household.
(15) SOUTH COAST AIR BASIN means the non -desert portions of Los
Angeles, Riverside, and San Bernardino counties and all of Orange
County as defined in California Code of Regulations, Title 17, Section
60104.
(16) TREATED WOOD means wood of any species that has been chemically
impregnated, painted, coated or similarly modified to improve resistance
to insects or weathering,
(17) U.S. EPA PHASE II- CERTIFIED WOOD BURNING HEATER means
any device certified by the U.S. EPA to meet the performance and
emission standards as defined in Title 40 Code of Federal Regulations,
Part 60, Subpart AAA, February 28, 1988, or subsequent revisions.
(18) WOOD BURNING DEVICE means any fireplace, wood burning heater,
or pellet fueled wood heater, or any similarly enclosed, permanently
installed, indoor or outdoor device burning any solid fuel for aesthetic or
space- heating purposes, which has a heat input of less than one million
British thermal units per hour (Bm/hr).
(19) WOOD BURNING HEATER means an enclosed, wood burning device
capable of space heating that meets all the criteria defined in Title 40
Code of Federal Regulations Section 60.531, February 28, 1988, or
subsequent revisions including, but not limited to, wood stoves and wood
burning fireplace inserts.
(20) WOOD BURNING SEASON means the consecutive entire months of
November, December, January, and February.
(d) Requirements
(1) No person shall install a permanently installed wood burning device into
any new development.
(2) Notwithstanding the requirements of paragraph (d)(1), effective
September 8, 2008, no person shall sell, offer for sale, supply, or install, a
new or used permanently installed indoor or outdoor wood burning device
or gaseous - fueled device unless it is one of the following:
445 -3
Rule 445 (cont) (Adopted March 7, 2008)
(A) A U.S. EPA Phase 11- Certified wood burning heater; or
(B) A pellet - fueled wood burning heater; or
(C) A masonry heater; or
(D) A wood burning device or fireplace determined to meet the U.S.
EPA particulate matter emission standard established by Title 40
Code of Federal Regulations, Part 60, Subpart AAA, February 28,
1988 or subsequent revisions; or
(E) A dedicated gaseous - fueled fireplace.
(3) No person shall burn any product not intended for use as fuel in a wood
burning device including, but not limited to, garbage, treated wood,
particle board, plastic products, rubber products, waste petroleum
products, paints, coatings or solvents, or coal.
(4) A commercial firewood facility shall only sell seasoned wood from July 1'
through the end of February the following year. Any commercial
firewood facility may sell seasoned as well as non - seasoned wood during
the remaining months.
(e) Wood Burning Curtailment Program (effective during the months of November,
December, January, and February)
Effective beginning November 1, 2011, no person shall operate an indoor or
outdoor wood burning device or portable outdoor wood burning device when a
mandatory wood burning curtailment day is forecast for their specific region
within the South Coast Air Basin.
(f) Exemptions
(1) The provisions of this rule shall not apply to cookstoves.
(2) The provisions of paragraph (d)(1) shall not apply to new developments
where there is no existing infrastructure for natural gas service within 150
feet of the property line or those 3,000 or more feet above mean sea level.
(3) The provisions of paragraph (d)(2) shall not apply to an indoor or outdoor
wood burning device that is permanently installed and included in the sale
or transfer of any existing development.
(4) The provisions of (d)(2) shall not apply to properties that are registered as
a historical site; or are contributing structures located in a Historic
Preservation Overlay Zone, as determined by the applicable, federal,
State, or local agency. Contributing structures are those buildings which
445 -4
Rule 445 (cont)
(Adopted March 7, 2008)
are examples of the predominate styles of the area, built during the time
period when the bulk of the structures were built in the Historic
Preservation Overlay Zone.
(5) The provisions of (d)(3) shall not apply to manufactured firelogs.
(6) The provisions of subdivision (e) shall not apply under the following
circumstances:
(A) Residential or commercial properties where a wood burning device
is the sole source of heat; or
(B) A low income household; or
(C) Residential or commercial properties where there is no existing
infrastructure for natural gas service within 150 feet of the
property line; or
(D) Residential or commercial properties located 3,000 or more feet
above mean sea level; or
(E) Ceremonial fires exempted under Rule 444 - Open Burning.
(g) Administrative Requirements
The Executive Officer will provide public notice of a mandatory wood burning
curtailment through one or more of the following methods:
(1) A recorded telephone message;
(2) Messages posted on the South Coast Air Quality Management District
web site;
(3) Electronic mail messages to persons or entities that have requested
electronic notice;
(4) Notifying broadcast and print media operating within the boundaries of
the South Coast Air Basin; and
(5) Any additional method that the Executive Officer determines is
appropriate.
(h) Penalties
Any person that violates the provisions of subdivision (e) is subject to the
following:
(1) For first time violators during each wood burning season, attendance at a
wood smoke awareness course that has been approved by the Executive
Officer or payment of a penalty of $50;
445 -5
Rule 445 (cont)
(Adopted March 7, 2008)
(2) For second time violators during each wood burning season, payment of a
penalty of $150 or submission of proof of installation of a dedicated
gaseous - fueled fireplace within 90 days after receiving the notice of
violation; and
(3) For third time violators during each wood burning season, payment of a
penalty of $500 or implementation of an environmentally beneficial
project as derived through the mutual settlement process.
445 -6
AQMD Rule 445 Summary
AQMD's Rule 445 -Wood Burning Devices is applicable to the South Coast Air Basin portion of the South
Coast Air Quality Management District and is not applicable to the Coachella Valley.
AQMD Rule 445 was adopted on March 7, 2008 and includes the following key components:
On or after March 9, 2009:
✓ no permanently installed indoor or outdoor wood burning device can be installed in n"i developments
(open hearth fireplaces with a gas log set or other design feature that precludes wood binning are
acceptable).
On or after September 8, 2008:
✓ a permanently installed indoor or outdoor wood burning device can only be sold or installed in existing
homes or businesses if it is one of these cleaner burning options:
U.S. EPA Phase II- certified fireplace insert or stove;
a Pellet - fueled wood burning heater;
• Masonry heater (not an open hearth wood burning fireplace); or
• Dedicated gaseous - fueled fireplace.
Currently:
✓ residents cannot burn anything not intended as fuel (e.g., trash) in a wood burning device.
✓ commercial firewood facilities may only sell seasoned (less than 20 percent moisture content) firewood
from July 1 through the end of February each year.
Beginning in November 1, 2011 (if necessary to meet air quality goals):
✓ establishes a mandatory wood burning curtailment program on high pollution days during November
through February. Would apply to specific areas where PM2.5 levels are forecast to exceed 35
micrograms per cubic meter (federal 24 -hour standard). Based on current air quality conditions, there
may be 10 to 25 mandatory curtailment days in specific areas, but as air quality improves there may be
fewer or no curtailment days.
Exemptions to Rule 445
• Wood burning cook stoves are exempt from this regulation.
• New developments above 3,000 feet in elevation may install a wood burning device if it is a cleaner
unit as listed in the rule for existing developments [refer to paragraph (d)(2) in Rule 445 — Wood
Burning Devices].
• New developments, above or below 3,000 feet in elevation that do not have access to natural gas
within 150 feet of the property line may install a wood burning device if it is a cleaner unit as listed
in the rule [refer to paragraph (d)(2) in Rule 445 — Wood Burning Devices].
• If mandatory wood burning curtailments are issued on high pollution days in 2011 , households
where wood is the sole source of heat, or low income households, or households with no natural
gas service will be exempt, as will the use of ceremonial fires.
AQ
Rude 445 — Wood Burning Devices
Local Government, Builder, Contractor, Architect
Answers to Frequently Asked Questions (FAQs)
(August 2011)
The following information has been prepared to assist in answering questions on AQMD
Rule 445 — Wood Burning Devices. It should be noted that compliance deterniinations
will be based on the specific Rule 445 language that can be viewed or downloaded at the
following web site:
http://www.aqmd.gov/rules/reg/reg04/r445.pd f
REQUIREMENTS FOR NEW DEVELOPMENTS
When do the standards for new developments become effective?
The requirement to only install gaseous - fueled fireplaces and stoves is applicable to any
new residential or commercial development that begins construction on or after March
9, 2009.
The date that construction has begun is when the building permit is approved or when
the foundation for the structure is started, whichever is first.
What kind of fireplace or stove can be installed in new developments?
Any gaseous- fueled fireplace, fireplace insert or stove can be installed in new
developments. This includes any fireplace that is either factory -built or constructed on-
site that is fueled exclusively with a gaseous fuel such that the burner pan and associated
equipment are affixed to the metal or masonry base of the fireplace.
Gaseous - fueled devices include those fueled by either natural gas or propane (i.e.,
liquefied petroleum gas).
Do these new development requirements apply to both indoor and
outdoor fireplaces?
The requirements are applicable to any permanently installed device.
Permanently installed is defined as built or installed such that it is attached to the
ground, floor or wall and is not readily moveable. A free standing stove attached to an
exhaust system that is built into or through a wall is considered permanently installed.
I�
AQ
Rule 445 — Wood burning Devices
Local Government, Builder, Contractor, Architect
Answers to ]Frequently Asked Questions (FAQs)
(August 2011)
Are there any exemptions to the requirements for new developments?
There are two separate conditions where a cleaner wood burning device can be installed
in a new development:
1. properties 3,000 or more feet in elevation;
and
2. properties where there is no existing infrastructure for natural gas service within
150 feet of the property line.
The cleaner wood burning devices that could be installed under either of these two
conditions include:
✓ U.S. EPA Phase II- certified wood heaters or equivalent devices;
✓ pellet - fueled heaters; and
✓ masonry heaters (not masonry fireplaces).
If you would like additional details on the hearth products defined as cleaner wood
burning devices under Rule 445, please refer to the discussion under the heading,
.Requirements for Existing Developments"
AQM
Rule 445 — Wood Burning Devices
]Local Government, Builder, Contractor, Architect
Answers to ]Frequently Asked Questions (IFAQs)
(August 2011)
REO UIREMEN TS FOR EXISTING DEVELOPMENTS
When do the standards for existing developments become effective and
what can be built in existing developments?
Beginning September 8, 2008, the devices in three cleaner wood burning categories listed
below and any gaseous - fueled device can be sold, offered for sale, or installed in existing
developments.
1. U.S. EPA Phase II- certified wood heater (fireplace inserts or stoves)
U.S EPA Phase II- certified devices have an identification label on the unit and the
model name and number are also listed on the following web site:
http:/ /www. epa. gov /Compliance /resources/ publications /monitoring/caa /woodstoves /c
ertifredwood.pdf
2. Pellet- fueled heater
Pellet- fueled heaters can be operated on any pellet fuel including, but not limited to,
ground, dried wood and other biomass wastes compressed into pellets and corn.
Additional information on pellet heaters can be obtained from the U.S. EPA at the
following web site:
http://www.epa.gov/woodstoves/basic.html#pellet
3. Masonry heater (not an open hearth fireplace)
Technically listed as any device that meets the definition included in ASTM E 1602-
03, a masonry heater is a site -built or site- assembled solid - fueled heating device,
consisting of a firebox, a large masonry mass, and a maze of heat exchange channels.
These devices are rare in warm climates such as Southern California but additional
information can be obtained from the following U.S. EPA web site:
http://www.ep gov /woodstovesibasic.litnil #mason
Rule 445 — Wood Burning Devices
Local Government, Builder, Contractor, Architect
Answers to Frequently Asked Questions (FAQs)
(August 2011)
Do the requirements for existing developments apply to both indoor and
outdoor fireplaces?
The requirements apply to any permanently installed device.
Permanently installed is defined as built or installed such that it is attached to the
ground, floor or wall and is not readily moveable. A free standing stove attached to an
exhaust system that is built into or through a wall is considered permanently installed.
What if I need to repair my existing fireplace?
An existing wood - burning fireplace can be repaired or replaced and would not be subject
to the Rule 445 requirements for existing developments provided that the repair or
replacement occurs within the same footprint as the existing wood - burning fireplace. If a
home or chimney inspection documents the need for replacement of an existing wood-
burning fireplace, however, installation of a gaseous - fueled hearth device is encouraged
and may be required by a local government or other regulation.
Are there any exemptions to the requirements for existing
developments?
The requirements for existing developments do not apply under the following conditions
1. Fireplaces and stoves included in a property sale. For example, there are no
retrofit or replacement requirements under Rule 445 when buying or selling a
home with an existing wood binning fireplace or stove.
2. Properties that are registered as a historical site, or are contributing structures
located in a Historic Preservation Overlay Zone. Refer to your local city or
county agency to determine if your property is within a Historic Protection
Overlay Zone.
DRIVEWAY APPROACHES
GENERAL
L-2
A. A permit will be required prior to any driveway construction within the street
right -of -way. All construction shall conform with the Standard Plans and
Specifications of the City of Newport Beach. Brick, textured concrete or flat stone
surfacing may be used subject to Public Works Department approval. Such
brick, textured concrete or flat stone surfacing may not be used on Bayside Drive.
B. The number of driveway openings shall be kept to a minimum so as to preserve
on- street parking and to reduce the points of traffic conflict.
C. The term "Curb Opening" shall mean the total width of the approach including
the slope distances on the curb. The term "Approach Bottom" shall mean the
total width of the approach less the slope distances on the curbs.
D. Curb openings shall not be constructed closer than S feet to the beginning of the
curvature of a curb return, fire hydrant, traffic signal /pedestrian street light,
utility pole /anchor /pedestal, trees or vent pipe, unless approved by the Public
Works Department.
E. The entire curb opening shall be within the prolongation of the property lines
except when cross easements provide for a common driveway along the mutual
property line.
F. No permit shall be issued for driveways on Clubhouse Drive, Glen Drive, Balboa
Island or on the ocean side of Ocean Boulevard without City Council approval.
No curb openings will be permitted on Ocean Boulevard when access is available
from an existing alley, street or improved private roadway.
G. No permit shall be issued if the driveway construction requires the removal of a
street tree until such removal has been approved by the General Services
Director.
H. No permit shall be issued if the driveway encroaches on a crosswalk area.
I. No permit shall be issued if the driveway construction requires the relocation of
any public facility such as fire hydrants utility pole /anchor /pedestal, tree, vault,
vent pipes, or street lights until approved by the Public Works Department and a
L-2
deposit has been made to cover the cost of relocation. Property owner shall pay
all costs for the relocation of any public facilities.
J. No permit shall be issued unless the applicant agrees that at no cost to the City
he will remove any driveway opening that is or will be abandoned, and
reconstruct curb, gutter and sidewalk (if applicable) to City Standards.
K. Where practical, difficulties or hardships may result from the strict application of
this policy, minor dimensional variances may be granted with written approval
of the Public Works Director.
L. Nothing herein shall be construed as preventing any person from appealing to
the City Council for relief from the applications of this policy.
M. No building permit shall be issued on a parcel whose access requires City
Council review for an encroachment permit on public property, until said
encroachment permit has been issued.
RESIDENTIAL ZONES AND RESIDENTIAL USES - SPECIAL REQUIREMENTS
A. The width of the driveway approach bottom shall not exceed 20 feet except when
the driveway is to serve an enclosed three or four car garage, in which case the
driveway approach bottom may be increased to 25 feet or 32 feet, respectively.
B. One additional curb opening will be permitted to a single parcel subject to the
following conditions:
1. The total width for all openings shall not exceed 50% of the total frontage
of the parcel.
2. The openings shall be separated by at least 20 feet to retain maximum
street parking.
2
IPYJ
C. Street curb openings shall not be permitted to residential property which abuts
an alley.
An exception may be made in the case of corner lots where the street on which
the curb cut is proposed is not an arterial street and street frontage is available
for the full depth of the lot, subject to the following conditions:
1. Access from the street will be permitted where existing structures prevent
full alley access, or additional covered off -street parking is being
provided.
2. The width of the curb opening shall be limited to one -half of the Iot depth.
3. In the case of duplexes, condominiums and condominium conversions, an
additional driveway curb cut shall be permitted if the units are separated
by a continuous vertical plane, from the ground to the rooftop, with one
common wall and /or physically separated by open space. The resultant
building product shall have the appearance of two distinct and separate
units with a rear unit that has vehicle access from the alley and the front
unit with vehicle access from the side street. No overlapping of between
the front unit and rear unit floorplans shall be permitted.
D. Driveway grades must not exceed the listed applicable maximum slope
depending on application. Driveways to lowered or subterranean parking must
rise above the flood level or a minimum of six inches above the flow line of the
street or alley, whichever is greater, before transitioning to a downward slope.
Slope transitions shall be a minimum of five feet in length and the change of
slope cannot exceed eleven percent.
Driveways providing only parking access - Fifteen - percent maximum slope.
Must have access directly from garage into residence.
Driveways vroviding vehicle and pedestrian access - Eight - percent maximum
slope.
Driveways providing required parking spaces on the driveway itself - Five -
percent maximum slope.
Minor variations from the listed maximum slopes and slope changes may be
granted by the Traffic Engineer when unusual site conditions are encountered.
3
1,2
PRIVATE STREETS - SPECIAL REQUIREMENTS
A. A grading permit will be required prior to the construction of any driveway
apron, sidewalk, curb, gutter or wall within the private street rights -of -way. The
design parameters shall be in accordance with the City of Newport Beach Design
Criteria and Standards for Public Works Construction.
Also, the Public Works Department shall perform a brief review of plans prior to
permit issuance.
B. A Public Works encroachment permit will be required if improvements are to be
constructed within 5 feet of a fire hydrant, street light or other public utility
system appurtenance (i.e., valve boxes or manholes).
C. A Public Works encroachment permit will be required when connecting to or
relocating public utilities.
COMMERCIAL USES
A. The width of the driveway approach bottom shall not exceed 35 feet.
B. The total width of all driveways shall not exceed 50% of the frontage of the
parcel.
C. Commercial driveway approaches may use a curb return design with a
maximum curb radius of 25 feet and a driveway approach bottom of greater than
35 feet if the following conditions are satisfied:
1. The driveway serves as an entrance to a parking area or structure for 200
or more vehicles.
2. The number of driveways serving the parcel are at a minimum.
D. The curb return commercial driveway approach may incorporate a divided exit
and entrance if the separation structure (median island) is continued on -site in
such a manner as to provide proper traffic design.
n
L-2
CLOSURE OF ABANDONED DRIVEWAY APPROACHES BY CITY
The City may close abandoned driveway approaches at high priority locations where
two or more of the following criteria may exist.
A. The abandoned driveway approach is adjacent to a parcel of property where
redevelopment and possible subsequent closure of the approach is not believed
imminent;
B. The driveway approach is at a location where there is a shortage of available'
on- street parking;
C. The removal of the driveway approach is needed for safe pedestrian and /or
bicycle passage;
D. The closure of the abandoned driveway approach benefits not so much to the
property owner as pedestrian and vehicular traffic in the area.
When in the opinion of the General Services Department and /or the Public Works
Department, a curb cut or abandoned driveway approach should be closed, and the
adjoining property owner protests the closing, the protester shall be notified that he will
have two weeks to appeal the staff decision to the City Council. That appeal must be in
writing and may be filed through the mail. If an appeal is not made, the City shall
proceed with the closure. , If an appeal is made, a hearing shall be held by the City
Council, and the decision of the Council shall be final.
Nothing in this section shall be construed as relieving adjoining property owners from
the responsibility for closure of abandoned curb cuts as a condition of permit approval
for new construction or for obtaining a curb cut permit for an alternative driveway
location on the same parcel.
Adopted - January 24,1966
Amended - February 26,1968
Amended - July 24,1972
Amended - November 14,1977
Amended - October 25,1982
Amended -July 13,1987
Amended - November 27,1989
Amended - December 14,1992
Reaffirmed - January 24,1994
Amended - February 26,1996
Amended - May 8, 2001
Amended - October 10, 2006
TIMELINE FOR DEMOLITION
09/17/2010 John & Julie Guida Trust purchase houses (2808 / 2812 Ocean Blvd.)
07/20/2011 Application - SUBMITTED
08/11/2011 Project Review Request - sent to Building, Public Works, Utilities, Fire
08/11/2011 Letter Sent - Deemed complete letter sent.
09/1412011 Zoning Administrator Hearing - Approved
09/23/2011 Appeal Filed - Planning Commission - FILED APPEAL
10/11/2011 Demolition Permit Filed
10/20/2011 Planning Commission - Decision Reverse, Lot Merger Denied
01/24/2012 City Council - returned to PC for recommendation (Order to maintain property
03/22/2012 Planning Commission - only recommends approval contingent on conditions
04/24/2012 City Council - Continued to May 8, 2012 (merger remains denied)
05/08/2012 City Council - Continued to June 26, 2012
06/26/2012 City Council - Hearing of Appeal
1/24/2012
Citizens express concerns over houses falling into disrepair
City Council orders Mr. Guida to maintain the properties during proceedings
1/29/2012
Mr. Guida Code Violation Hedge Height
5/08/2012
Continued by City Council for Mr. Guida to comply with Planning Commission's
recommendations and for negotiations between parties
Raised issue of possible "Historic Resource" of 2808 Ocean Blvd.
5/11/2012
Tight Quarters Hauling Company notified of upcoming demolition
Required 14 day Notification of AQMD by hauling company on 5/23
6/05/2012
Preliminary Negotiation Meeting between parties with City staff attendance
Re- mention of "Historical Resources" relevance of 2808 and of our experts forthcoming
report regarding it
No mention of demolition to staff or people in attendance
6/08/2012
Friday late afternoon, puts up height markers on 2808 as per agreement
Letter from Lindell Marsh with a deadline of Sunday (2 days) for our response to height
6/11/2012
Coralee letter to city re: preliminary meeting and our further requests.
Informs city of the sudden cancellation of their insurance on the properties due to their
vacancy and state of disrepair (as a result of his neglect to maintain them)
6/13/2012
Demolition of both houses begins at 8AM without warning
City Staff and Attorney Aaron Harp were unaware of his intentions
Out Out MUSIC
it 1:11 I JEFF Du FINE
TEL:626.458.0347
EMAIL: DUFINECaQUFINE.COM
June 18, 2012
Re: Lot Merger of 2808 & 2812 Ocean Blvd.
Dear COUnellmember Daigle,
During these administrative hearings, Mr. Guida was directed to "maintain the property" after complaints
about overgrown hedges, and resident's concerns about the homes falling into disrepair. No subsequent city
or staff meetings with Mr. Guida ever included any discussions or forewarning of demolition.
On June 5, 2012, we again (first introduced at the May 5th Council meeting) conveyed possible historical
significance of the 2808 home. We are outraged that the home was destroyed just a few clays later.
Everything Mr. Guida is doing is to try to subvert the public process. The instruction's to maintain the
properties status quo during these proceedings were clear. Sudden demolition, during negotiations, a few
days after being apprised of our experts forthcoming historical report, is an affront to the whole process.
Ms. Newman stated that the Guidas' insurance company cancelled coverage for the homes, and that Mr.
Guida was concerned about leaving the homes empty and in disrepair while summer beach visitors crowded
the area. "I'm sure they (the opponents) are upset," she said. `But it was something that had to be done."
The explanation of the "sudden cancellation" of insurance and "forced demolition," just a mere 1212 day
before the council meeting, is outlandish. What it really appears to be is a coverup for disregard of a City
directive and the destruction of a potential historical resource.
I am sure Mr. Guida, himself, notified the insurance company about the deteriorating state of his properties.
The policy was ultimately cancelled due to his actions of letting the houses fall into disrepair. Several
Newport Beach insurance company agents say it is most irresponsible for a homeowner to let this happen.
Mr. Guida is attempting to extort the City Council into a quick decision of approval by presenting them with
one huge empty lot, surrounded by a chain link fence, directly across from Lookout Point.
Please don't allow yourselves to be swayed by his transparent tactics.
What the demolition reveals is the massive size of the lot. I believe now more than ever the threshold for
making the following findings cannot be met.
(a) The lot is excessive in size and not consistent with the surrounding pattern of development.
(b) It is disproportionately large at 13,699 sq.ft. — ALMOST "1/3 ACRE."
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This is not a simple Lot Merger anymore. It has been expanded to include building plans, self.imposed deed
restrictions, environmental impact, grading of roadways, and curb cuts. The City Council should reject Mr.
Guidas' insincere efforts of accommodation and look more closely at the multiple impacts of this merger. He
has dissembled, manipulated and continually pushed the limits of the Council by; a) letting the houses fall
into disrepair b) submitting plans at the last minute c) ignoring the intent of the PC's recommendations. Now,
after disregarding the instructions to maintain the properties, he "demolished" the houses. In their wake is a
cavernous empty lot with a temporary green wire fence across from Lookout Point. This merger should be
denied because it cannot meet the findings of the Lot Merger Ordinance (adopted in 2009).
Ms. Newman and Mr. Guida's self serving interpretation of any restriction or directive placed upon him is
always skewed by completely taking everything out of context. No matter what the restriction is, or who it
comes from, Mr. Guida has consistently attempted to subvert any attempts to reign him in
From day one until present day negotiations Mr Guida has done nothing to address the concerns of his
neighbors. Any changes he has ever made, he was forced to do because of the Planning Commission's denial
on October 20, 2011. Mr. Guida initially refused to make their recommended changes at the last City Council
meeting on May 8. 2012. Only at the Council's emphatic urging has he agreed to do so (although he has
reinterpreted some of their recommendations). Mr. Guida only makes changes when compelled to, and
certainly has never done so to accommodate his neighbors.
Ms. Newman's protestations on behalf of the Guidas are without merit. She continues her effort to portray
the Campbells and Silvas as uncooperative, greedy obstructionists. All these families have done is attempt to
get him to honor the deed restrictions. Their position has never changed, they have certainly not added any
new demands. Mr. Guida is attempting to appropriate views guaranteed to them by the 1951 covenant. If
permitted to do so, he will be raiding the Campbells and Silvas bank accounts for hundreds of thousands of
dollars they have built up in equity. They are just trying to protect their rights to their private property (view
shed). We again made this point clear at the last negotiation meeting. Unfortunately, any further attempt to
negotiate a workable solution, with Mr. Guida, was brought to a screeching halt by the demolition.
The Campbells and Silvas remain committed, unwavering, and unbending in protecting what's theirs and
theirs alone. Ms. Newman's representation of them as bad neighbors is simply false. Both families have lived
in Corona Del Mar for over 50 years. Besides being good neighbors, they are respected by all who know
them. They are the fabric of the best part of the city. They attempted to negotiate in good faith.
Mr. Guida is not the victim here. His proposal is disingenuous. The massive amount of brickwork and
chimneys rising above his structures negates any of the required changes. The Campbells and Silvas ocean
views (jetty, harbor entry, wedge and beach), protected by the covenant, and addressed by the Planning
Commission's recommendations, will be wiped out (with only a view of the horizon remaining).
"Campbell Panorama"
Much of the volue of any property within la coastline development with an ocean view/ depends on the quality of the
view. To significanrlr obstruct any horneouoner:s viers of the Pacific Ocean is to depreciate the economic north of their
Property -often bey several hundred thousand dollars -as well as drantaticallr reduce their enjoyment of the home they
boughs and live in." - in FOX r. CORNICHE SUR MF.R HOMEOWNERS ASSOCIATION, 2008
These photos (taken from Ms. Newman's proposal) Mr. Guida's lack of good faith effort in negotiations.
Chimneys, brickwork, and raised skylight take up almost 2/3 of the Silvas views over the roof deck. It
renders the Planning Commission's recommendation of transparent railings around the perimeter deck or
three foot reduction of height meaningless.
a) In the June 5th negotiation re: structures on the roof, Mr. Guida's architect fabricated both the
need for, and pre - approval of, chimneys on the roof for wood burning fireplaces. It is common
knowledge and known by Mr. Sinclair that AQMD RULE 445 enacted in 2009 banned their use.
Mr. Guida has now presented the Council with one "enormous" empty lot, surrounded by a green chain link
fence, across from Lookout Point, in time for the upcoming tourist season. In the end, instead of succeeding
at pressuring or extorting a quick decision for approval, Mr. Guida has revealed the true nature of his
disregard for the Council, the neighbors and anyone but himself.
Without dwellings, the actual size of these two properties are now revealed. Please take the time to come and
see the now vacant lots. Their size dwarfs those in the general vicinity. This reinforces our assertion that a lot
that is "1/3 of an acre" is disproportionally large for the surrounding neighborhood
LOT MERGER ORDINANCE — Finding #5 — The lots as merged are not consistent with the surrounding
pattern of development and will create an excessively large lot that is not compatible with the surrounding
development).
Respectfully submitted,
Jeff DuFine
CITY OF NEWPORT BEACH Amount:
MUNICIPAL OPERATIONS DEPARTMENT
3300 Newport Blvd
PO Boo 1768 $
Newport Beach, CA 92658.6915
(949) 644 -3055
�i•f�t'V"Iti311([t13S1 ' r�° a11i '�'v�"'7?�r9r14ii;'aI11CVfl �il� �4��G:�V �'i�)ifTi
Owner Nam:
Property Address:
Permittee Name:
Permit Number:
Franchised Hauler:
Phone:
1'
FemriIIee 1 hereby certify that lxwe contracted wlth the above- mentloned City Franchised
moat Solid Waste or Demolition Contractor. 1 also certify that I understand 1 must contact
the Municipal Operations Department at (049) 644 -8084 no Less than 24 hours or
mm ama 72 h®urra prior to my h tont Q® comrmenca dtemptlIon astvi@®e.
Munldpal Opsmdm staff uA hspact domolittan sit¢ end_ver$y usage of f m=hfwd
hauler.
Permmas
must atgn
and date
por bldg
Dept Staff
tae
For MW
areal Use
City of N=W Beach Municipal Cede section 12.02.035 states' . °A demolition psrmtt deposit. as deter-
mined by the MunhApal Openftna Director, shall be paid at the time of submitting the demolition permit.
Said deposit shell be tstumad to the psrrnitt a. minus appllmblo f3w, ¢I the eoncludon of the domo9-
Von project assuming pwmitbae follows applicable laws."
Address:
CitY, State, zip:
1, (Permutes) to tby owlify that I understand Brut a City Franohi W Hauler must
For Finafte U60 Only
be used to tnmspod all oonatnudian and demofibn debris germaW as a rpaM
of the demolition ndwarmed abom. I agree that the time poflim(0184.00) Is
non - refundable. I fu 6w Wrow that the r> rider of the deposf9 YA be farfagad 9
1) a M frarichimd hmAr is not uwd to had cansdruelian and dal mom debris
from this proAd and 2) 1 fall to natty the Murlh*t Operodona Depolmard al
( 949) 644 -3084 no lase than 24 hours or more than 72 hours in advanoe of my
atterd to commerm dernaMon trativifiea.
Dete
Issued By: Date
NoWcation Date: Demo Date:
Hauler. ❑ Release Deposit ❑ Forfeit Deposit
Afsai§ution: whim. m wepd op meaty Yatomv: RCW Qaidaaad: Finm= Padr: Ann nt
e.
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t5
MIKE TOERGE COMMENT 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.
MIKE TOERGE
FaUe '17 Protect Charac •e-riaitcs
Frog =ry
Total Area
(� roxitnatsly)
VVIC-Fuh
tat vnde;t d)
R -1 Zontng Distnct
Interior Lot Stanci::rct::
5,000 sy. tt-
50 Beet
2608 (.loan Boulc:,earci
7,2117 s . 21"21_
1 40 test
2812 Ocean B00e1VaKJ
6,413 sq. ii
1 10, o t
Proeased ivlei ed Lot
i3.6a9.56 it_
00'se1
Comparable Properties r-.d}'a cent
to Ocean Boulevard
2900 Ocean Botu'e and
13, 326 s . P1.
66 feet
29GS o -e an 8ouNav lr'd
10.019 s - it.
73 lest
3222 Oceort Boulevard
14.57 =J a F...
'911 lesi
3 properties were used as evidence of comparable lot sizes. But none are in
Block 34. As you can see there is a sharp drop off after the first three 14,5579,
13,699, 13,326 and then a drop of 3,277 sq.ft to 10,049. His merged lot would
be second largest in Old Corona Gael (War. They are in in no way compatible or
consistent to other properties in the surrounding neighorhood. In fact these
lots are anomalies and they were merged prior to the Lot Merger Amendment
!2009 -301 which came into effect in 2009
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LOT MERGER LAW
tail conditions ewmst o Tide 19 o Lot MerjgLt
be in order to = ............. ............................... .,.....,
e met approve merger c (Ordinance 2009 — 30)
19.0 }.020 PurRose
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;
S. 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.
19.68 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 tot 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.
8. 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.
0 008 ic`1,1 t °r X1551 1171111 F
� Iut�t�l�Bi „lira �° �'�a ^tgils�'r•a1I ,
1. The creation of subdivisions which are consistent with and serve to
Implement the policies and provisions of the General Alan;
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;
S. 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.
Loot HeQsee (Pare 2009)
(Ordinance 2001 -10)
An application for a Lot Merger may be
accepted when it can be determined that the
proposal complies with the following
specifications:
1. The lots to be merged are under commons
ownership at the time of the merger.
2. The lots as merged will be consistent with
or will be more closely compatible with the
applicable zone district regulations and other
regulations relating to the subject property.
3. Neither the lots as merged nor adjoining
parcels will be deprived of legal access as a
result of the merger
cte -wPOk
y T
C
�'r'rr o&ti�c
Lot Haygeir (Post 2009)
( Ordinance 2009 — 30)
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 rot, under
the circumstances of this particular case,
be detrimental to the health, safety, peace,
comfort and general welfare of persons
residing orworking in the neighborhood cf
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.
* S. 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.
^1
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LIF4�
City Council Meeting
May 8, 2012
Appeal of Planning Commission Denial, October 20, 2011
2808 and 2812 Ocean Boulevard Lot Merger (PA2011 -141)
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Development
City
Commission
Applicant's Proposed
Standards
Recommendation
Recommendation
Alternatives
Maximum
Maximum Floor
lour
1.5 x
0.75 x
1.0 x buildable
Area Limit
buildable area*
buildable area*
area*
(15,069 sq ft)
(7,116 sq ft)
(9,488 sq ft)
Side Setbacks
4'
6'
6'
34% to 15'6"
34% up to 15'6"
24'
(floor of roof deck) **
(floor of roof deck) **
Maximum
(flat roof/
33% to 15' - top of roof
33% to 15' - top of roof
Height Limit
top of railing/
33% to 14'- top of roof
33% to 14'- top of roof
parapet)
Measured from:
Measured from:
Established Grade of
Established Grade of
67.2' (NAV ®88)
70.2' (NAV ®88)
9
0�
y.,a Buildable Area
o" 10,046 SF
)r City Standard ,;
Floor Area Limit (1.5) ; ey
15,069, SF /o4`
^T
Pot Sejbaek� ,
6a
ct
aAuildable Area
9.488 SF
Proposed Alternative
}� w16 -Foot. Sides,f
Floor Area Llmit(1:0)`�¢�
,;.zr.;, -" 9,488SF
2p Pot F 9
..root Setaack - _ p� A
$ i%Y `�OOiiP
{i Pd "s
/ efb.
fay Buildable Area
9,488 SF
•tl PC Recommended �
Alternative 'Floor Area,
�ye`�
Limit (0.75) ma
71116 SF
Op
t %v(
20 Fo0tFr /ii
Katerials Rec
-=em No. 3b
2803 .i -d 2812
P -- 1
Boulevard Lot Vsrge=
1! d
I
PA2011 -141
R -1 and R -2 lot sizes
U < 4,000 sf
4,000 - 6,000 sf
6.000 - 8,000 sf
- 8,000 - '10,000 St
10,000 - 12.000 sf
- 12.000 - 14,000 St
® > 14,000 sf
Not Included in analysis
Comparis ®n ®f L ®t Sizes
Property
Total Area
(approximately)
Width
(at widest point)
R -1 Zoning District
Interior Lot Standards:
5,000 sq. ft.
50 feet
2808 Ocean Blvd.
7,217 sq. ft.
40 feet
2812 Ocean Blvd.
6,483 sq. ft
40 feet
Proposed Merged Lot
13,699.58 sq. ft.
80 feet
Comparable Properties Adjacent to
the inland side of Ocean Blvd.
2900 Ocean Blvd.
13, 326 sq. ft.
66 feet
2908 Ocean Blvd.
10,049 sq. ft.
78 feet
3222 Ocean Blvd.
14,579 sq. ft.
111 feet
-IAL
M
<
o 0
p
01 AV
.i= nm
G= 94'2..'56' '
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Jam. n � Y •. ..sue yWI
t CFC F -
i'
`41� �,
2808 Ocean
2812 Ocean
Total
Blvd
Blvd
( "A" + "B ")
Merged Property
Property "A"
Pro ert
7,194 sq ft
6,499 sq ft
13,693 sq ft
13,693 sq ft
13,693 sq ft
Lot Area
Proposed
Development
Alternative
Standards
Development
Setbacks:
20 ft
20 ft
20 ft
20 ft
20 ft
Front
loft
loft
loft
loft
loft
Rear
Sides
3 ft per side
3 ft per side
3 ft per side
4 ft per side
6 ft per side
Total Buildable
4,762 sq ft
4,167 sq ft
8,929 sq ft
10,046 sq ft
9, 488 sq ft
Area
7,143 sq ft
6,251 sq ft
13,394 sq ft
15,069 sq ft
9,488 sq ft
Floor Area Limit
(1.5 FAL)*
(1.5 FAL)*
(1.5 FAL)*
(1.5 FAL)'
(1.0 FAL)*
FAL
Floor Area Ratio
99
96
1.10
(FAR)
.98
.69
Height
34% up to 156"
(flat roof /sloped
(floor of roof
**
roof)
decks)
Measured from:
24 ft/29 ft
24 ft/29 ft
24 ft/29 ft
24 ft/29 ft
33% up to 15'
Established Grade
(top of flat roof)
of 70.2' (NAVD88)
33% up to 14'
(top of flat roof
PROPERTY
LOT AREA
Typical Lot in Corona del
Mar
3,540 sq. ft.
(30 ft. x 118 ft.)
Lot Width
(facing street)
2808 Ocean Blvd.
6,499 sq. ft.
40 ft.
2812 Ocean Blvd.
7,194 sq. ft
40 ft.
Proposed property
(as merged)
13,693 sq. ft.
80 ft.
Lots within Block 34
Largest (subject property)
7,194 sq. ft.
Smallest (211 Heliotrope)
3,965 sq. ft.
Average Lot Area
5,683 sq. ft.
2800 Ocean Blvd.
6,240 sq. ft.
96 ft.
2804 Ocean Blvd.
5,830 sq. ft.
190.50 ft.
2818 Ocean Blvd.
5,703 sq. ft.
2824 Ocean Blvd.
5,513 sq. ft.
2828 Ocean Blvd.
4,359 sq. ft.
2811 Ocean Lane (alley)
5, 761 sq. ft.
none
2821 Ocean Lane (alley)
5,761 sq. ft.
none
211 Heliotrope
3,965 sq. ft.
Neighboring Lots
(inland side of Ocean Blvd.)
2900 Ocean Blvd.
13,326 sq. ft.
2908 Ocean Blvd.
10,049 sq. ft.
3222 Ocean Blvd.
14,579 sq. ft.
111 ft.
THE
WEDGE
I
I
RESOLUTION 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.
1. An application was filed by the John Guide Trust and the Julie Guide 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 in the housing sites inventory contained in the City's adopted
Housing Element.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is
Single -Unit Residential Detached (RSD -8).
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
lime, 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. _
June 26, 262
Page 2 of 10
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 Planning 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. Al the hearing, the applicant voluntarily proposed alternative development standards which are
more restrictive than thuse 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. The Planning
Commission also recommended that the condition of approval related to the applicant's
restrictive covenant be 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 restrictive 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.
City Council Resolution No. _
June 26, 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
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 staled that the applicant will comply with the following voluntarily
proposed alternative development standards:
• Floor Area Limit(FAU:
- 1.0 (1.0 x 9,488.02 square feet = 9,488.02 square feet)
- Subterranean basements shall not be included in maximum FAIL (per Newport
Beach Zoning Code)
• 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.
• Setbacks:
- Front — 20 feet
- Rear — 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
21. During the public comment t, period, the applicant also stated that the Restrictive Covenant
would be amended to further restrict the allowed floor area limit (FAL) from 1.0 to 0.75, as
recommended by the Planning Commission at its March 22, 2012, meeting.
22. After the public comment period and discussion of the issues, the City Council voted to
continue the appeal to the June 26, 2012, . meeting in order to allow City staff to facilitate
meetings between the applicant and surrounding neighbors to try to resolve issues related to
the applicant's voluntarily proposed alternative development standards.
23. On June 18, 2012, the applicant provided the City with a copy of a document entitled
"Restrictive Covenant" that incorporated revisions to the original document provided to the City
Council at the May 8, 2012, City Council meeting. The applicant proposes to record the
restrictive covenant with the Orange County Recorder's Office as a deed restriction against the
merged property, if the lot merger is approved.
City Council Resolution No. _
June 26,2012
Peas, 4 of 10
24. As stated in the revised "Restrictive Covenant" provided to the City June 18, 2012, the
applicant proposes the following voluntary alternative development standards:
• Floor Area Limit (FAL):
- 0.75 (0.75 x 9,488.02 square feet = 9, 489.0277116 square feet)
- Subterranean basements shall not be included in maximum FAL (per Newport
Beach Zoning Code)
• Maximum height for Flat roof or too of floor of roof deck:
- 14 feet
- "Established Grade" for the purpose of measuring height for the principal structure
shall be 68.7' (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.
• Setbacks:
- Front — 20 feet
- Rear— 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
25. Pursuant to the regulations of Categorical. Exclusion Order (CEO) E -77 -5 for single -unit and
two -unit dwellings located within the Coastal Zone, CEO No. 23 -11 for the demolition of the
single - family .residences located on the subject properties was issued September 27, 2011,
and became effective October 7, 2011. Demolition permit X2011 -2490 was issued by the
City's Building Division on October 11.. 2011. On June 13, 2012, the applicant exercised the
permit and demolished the existing single - family residences.
26. A public hearing was held by the City Council on June 26, 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 City Council at this
meeting.
27. 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.
1. The City Council find this project exempt from CEQA, pursuant to Section 15303 (Class 3 — New
Construction or Conversion of Small Structures), Section 15305 (Class 5 - Minor Alterations in
Land Use Limitations), and Section 15 (Class 15 — Minor Land Divisions) of the Implementing
Guidelines of the California Environmental Quality Act (CEQA), because it has no potential to
have a significant effect on the environment.
City Council Resolution No. _
June 26, 2(T12
The proposed project involves the merger of two lots into one parcel and the lot is zoned for
single - family residential use. In this case, the following exemptions are applicable:
Class 5 (Minor Alterations in Land Use Limitations) 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) 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.
Class 15 (Minor Land Divisions, Section 15315) exempts divisions of property zoned for
residential use into four or fewer parcels when in conformance with the General Plan and
zoning, no variances or exceptions are required and all services and access are available.
In this case, the parcel merger will combine the existing lots into one parcel and the
resulting lot complies with the General Plan and zoning. Additionally, access is provided
and all services are available.
Anticipated re- development on the merged lot would be limited to construction of a single
family home and typical accessory structures. This activity would qualify for a Class 3
Exemption.
Class 3 (New Constriction or Conversion of Small Structures, Section 15303) exempts
projects that consist of construction and location of limited numbers of new, small facilities
or structures and includes construction of one single - family dwelling unit in a residential
zone.
SECTION 3. REQUIRED FINDINGS
In accordance with Section I9.68.030.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.
City Council Resolution No.
June 26,2012
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 t be merged are under common ownership
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 have been 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
subject properties are not identified in the Housing Sites Inventory contained in the City's adopted
Housing Element. The Coastal Land Use Plan designates the properties as Single -Unit
Residential Detached (RSD -8) which provides for density ranges from 6.0 -9.9 DU /AC. The
density ranges, polices and narrative of the CLUP indicate that the density range is
representative of the predominant development of the entire RSD -B area in old Corona del
Mar and that development should not exceed the maximum density. The lot merger does not
cause the maximum density for the area to be exceeded. The Zoning Code designation is
Single -Unit Residential (R -1), which is also intended for single - family residential development.
City Council Resolution No. _
June 26, 2012
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
E. 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 will not create an excessively large lot in comparison to many of the
existing lots in the surrounding area.
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 copy of a signed "Restrictive Covenant" setting forth
more restrictive alternative development standards for height, side setbacks, and maximum floor
area.
Finding
F. Thai the proposed division of land complies with requirements as to area, improvement and
design, . flood wafer 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. In this case, pursuant to Title 19: Subdivision
City Council Resolution No.
June 26, 2(T1_2
Code, Section 19.08.030 ( Waiver of a Parcel Map Requirement), the requirement for approval of
a parcel map may be waived.
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
subject properties are not identified in the Housing Sites Inventor; contained in the City's adopted
Housing Element.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
density ranges, policies and narrative of the CLUP indicate that the density range is
representative of the predominant development of the entire RSD -B area in old Corona del
Mar and that development should not exceed the maximum density. The lot merger does not
cause the maximum density for the area to be exceeded. 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:
1. Approve Lot Merger No. LM2011 -002 with the alternative development standards as voluntarily
proposed by the applicant, and waive 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.
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 26th day of June, 2012.
MAYOR
ATTEST:
CITY CLERK
City Council Resolution No. _
June 26, 2(T12
EXHIBIT "A"
CONDITIONS OF APPROVAL
Pursuant to Chapter 19.68.030.E (Lot Mergers) and 19.08.030.E (Waiver of Parcel Map
Requirement), the applicant shall file a document, approved by the City in writing, specifying
the names of the record owners of the fee interest and particularly describing the real property
with a site map for recordation with the Orange County Recorder.
2. 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 and all other
actions to support the findings approving the lot merger shall be submitted to the Community
Development Director.
3. The lot merger and grant deeds reviewed and approved by the Public Works Department
should be filed concurrently with the Orange County Recorder and County Assessor's Offices.
4. 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 Orange 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.
shall be donated to the City, or designee.
14-6_
6,7_AII improvements shall be constructed as required by Ordinance and the Public Works
Department.
6-.8. 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.
:7-.9. 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.
City Council Resolution No. _
June 26, 2612
Page. 10 of 10
@:10_ All on -site drainage shall comply with the latest City water quality requirements.
9-L1. 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.
40 -12. New sod or low groundcovers, as approved by the City, shall be installed within the parkway
fronting the development site along Ocean Boulevard.
413. An encroachment permit is required for all work activities within the public right -of -way.
42-14. All improvements shall comply with the City's sight distance requirement. See City Standard
110 -L.
43.15. 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.
}4.16. All unused water services to be abandoned shall be capped at the corporation stop.
4_& 7. 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.
445-18. All applicable Public Works Department plan check fees shall be paid prior to review of the lot
merger and grant deeds.
4-19. No building .permits may be issued until the appeal period has expired, unless otherwise
approved by the Planning Division.
420. 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.
4 &2S 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 lo, 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.
Self Imposed
Restrictions
Presented to
Planning
Commission
E:3.IIJ
82.70
`I
Established Grade 1.51
New Established Grade
Self Imposed
Restrictions
Presented to City
Council June
26,2012
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2808/2812 Ocean Blvd
2818 Ocean Blvd
OA O7
2818 Ocean Blvd.
70.20