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HomeMy WebLinkAbout2009-27 - Adding Chapter 10.64 to the City of Newport Beach Municipal Code Requiring a Permit for Construction and Maintenance Projects in Residential Districts and Amending Section 10.50.010 of the Newport Beach Municipal Code to Include Additional DefinORDINANCE NO. 2009-27 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, ADDING CHAPTER 10.64 TO THE CITY OF NEWPORT BEACH MUNICIPAL CODE REQUIRING A PERMIT FOR CONSTRUCTION AND MAINTENANCE PROJECTS IN RESIDENTIAL DISTRICTS AND AMENDING SECTION 10.50.010 OF THE NEWPORT BEACH MUNICIPAL CODE TO INCLUDE ADDITIONAL DEFINITIONS AND SECTION 10.50.020 OF THE NEWPORT BEACH MUNICIPAL CODE TO INCLUDE ADDITIONAL NUISANCES WHEREAS, the City of Newport Beach ( "City") is a charter city, governed by a charter adopted by the citizens of the City; and WHEREAS, Article XI, Section 5 of the Constitution of the State of California authorizes charter cities to enact ordinances in respect to their municipal affairs; and WHEREAS, the City finds and declares that conduct of large construction and maintenance projects and the parking or storage of certain vehicles and watercraft in the City on residentially zoned property is a municipal affair; and WHEREAS, the City finds and declares that large and indefinite construction and maintenance projects and the parking or storage of certain vehicles and watercraft in residential districts interferes with the property rights of the City's inhabitants, presents an appearance of blight, and negatively affects local property values; and WHEREAS, the City finds that adopting a clear policy limiting the time by which these construction and maintenance projects can exist and limiting the location of vehicles and watercraft which can be parked or stored will prevent interference with the property rights of the City's inhabitants, prevent the appearance of blight and promote increased property values; and WHEREAS, the City desires to reconcile one's right to participate in such activities with the need to ensure enjoyment of property, preventing the appearance of blight and promoting property values by placing limitations on construction or maintenance projects in residential districts. WHEREAS, the City desires finds that the proposed code amendment will not result in a direct or reasonably foreseeable indirect physical change in the environment (Section 15060(c)(2) of the California Environment Quality Act Guidelines). 656818.8 NOW THEREFORE, the City Council of the City of Newport Beach ordain as follows: SECTION 1: Chapter 10.64 of the Newport Beach Municipal Code is hereby added to read as follows: CHAPTER 10.64 CONSTRUCTION AND MAINTENANCE PROJECTS IN RESIDENTIAL DISTRICTS Sections: 10.64.010 Purpose and Intent 10.64.020 Definitions 10.64.030 Construction and Maintenance Projects — Regulations 10.64.040 Penalty 10.64.050 Construction /Maintenance Project Permits 10.64.060 Approval, Denial, Revocation of Construction /Maintenance Project Permits 10.64.070 Appeal of Denial or Revocation of Construction /Maintenance Project Permit 10.64.080 Amortization 10.64.010 Purpose and Intent. The City Council declares its purpose and intent in enacting this ordinance is as follows: A. Large and prolonged Construction and Maintenance Projects conducted within any portion of Required Setback Areas in Residential Districts cause the following: A reduction in the value of property; 2. An obstruction to the comfortable enjoyment of property adjacent to the construction or maintenance project; 3. Adverse impacts on the aesthetic quality of property, giving the appearance of blighted conditions and a deteriorated environment; and 4. A detriment to the public health, comfort, safety and general welfare, including, but not limited to, a dangerous attraction for children, impeded ingress and egress during emergencies, the potential for fire, an invitation to theft and other criminal conduct, and the peace and quiet of the City and its inhabitants. 2 656818.8 B. The necessity in the public interest for the provisions and prohibitions contained and enacted herein is declared as a matter of legislative determination and public policy. It is further declared that the provisions and prohibitions contained and enacted herein are in pursuance of and for the purpose of securing and promoting the public health, comfort, convenience, visual aesthetics, safety, general welfare and property values and the peace and quiet of the City and its inhabitants. 10.64.020 Definitions As used in this chapter: "Abandonment" means any period of inactivity such that the Construction or Maintenance Project will not be completed within the timeframe set forth in the Construction /Maintenance Project Permit or any evidence which objectively demonstrates that the Construction or Maintenance Project is not progressing at a sufficient pace to complete the project within the timeframe set forth in the Construction /Maintenance Project Permit. "Construction or Maintenance Project" means a structure, equipment, vehicle, or vessel that is being built, made, erected, remodeled, repaired, renovated, restored or improved that is neither permanently affixed nor intended to be permanently affixed to the land, foundation or structure at the subject location. "Construction and Maintenance Project" excludes fencing and screening erected in accordance with Newport Beach Municipal Code Chapter 15.60. "Construction and Maintenance Project' excludes those activities requiring permits pursuant Title 15 of the Newport Beach Municipal Code. "Not Fully Completed" means that additional work, materials, or any action remains to be done in order to properly complete the Construction or Maintenance Project as described in a Construction /Maintenance Project Permit issued pursuant this Chapter. "Required Setback Area" means an area within a lot that is established by Title 20 of the Newport Beach Municipal Code for the purpose of governing the location of structures on a lot. "Residential District" means a zoning district identified in Section 20.10.010 of the City of Newport Beach Municipal Code. 10.64.030 Construction and Maintenance Projects — Regulations A. Except when expressly allowed by a City- issued Construction /Maintenance Project Permit, no person shall maintain, permit or allow to exist in any portion of a Required Setback Area in a Residential District a Construction or Maintenance Project that is Not Fully Completed which is visible from any public right of way 3 656818.8 and that: (1) occupies more than 120 square feet of area of the property's lot area; or (2) has a height of more than 24 feet. B. Upon completion or Abandonment of a Construction or Maintenance Project, it shall be removed from the lot within fifteen (15) calendar days. C. Nothing in this Chapter shall prevent the enforcement of any other provision of the Newport Beach Municipal Code. In the event of any conflict between this Chapter and another provision in this Code, the provision establishing a more stringent restriction shall control. 10.64.040 Penalty A. Any violation of this Chapter is subject to those remedies provided for in Chapters 1.04 and 1.05 of this Code in addition to any other remedies allowed by State and Federal law. B. Any violation of this Chapter is hereby declared to be a public nuisance 10.64.050 Construction /Maintenance Project Permits A. Prior to the commencement of any Construction or Maintenance Project in any portion of a lot in a Residential District, which Construction or Maintenance Project will be visible from any public right of way and: (1) will occupy more than one hundred and twenty (120) square feet of area of the property's lot area; or (2) will have a height of more than twenty -four (24) feet, the property owner, tenant or occupier of the property upon which the Construction or Maintenance Project will be located shall apply for a Construction /Maintenance Project Permit. The application for the Construction /Maintenance Project Permit shall specify the precise nature, location, scope of work, and estimated completion date for the Construction or Maintenance Project. B. No property owner, tenant, occupier of property, contractor, subcontractor, or other person or entity shall commence a Construction or Maintenance Project subject to this Chapter until a valid Construction /Maintenance Project Permit for the Construction or Maintenance Project has been issued by the City. C. At no time shall more than one permit be in effect for any one lot. D. Property owners may apply for a permit not sooner than six months after the expiration date of any prior Construction /Maintenance Project Permit regardless of whether the project enumerated in the earlier Construction /Maintenance Project Permit was completed prior to the expiration date. E. No Construction /Maintenance Project Permit shall be issued for a period in excess of six (6) months. A permit may not be extended beyond the initial six (6) 4 656818.8 month period unless the Planning Director, or his designee, finds both that: (1) due to circumstances beyond the control of the Construction/Maintenance Project Pennittee, the Construction or Maintenance Project could not be fully completed within the time permitted by the initial Construction /Maintenance Project Permit; and (2) extension of the Construction /Maintenance Project Permit will not adversely affect the public views or the public health, safety or welfare. The Planning Director, or his designee, may limit the term of the Construction /Maintenance Project Permit to a period of less than six months upon a determination of any of the following: 1. That the full six month period is unnecessary given the anticipated scope of the Construction or Maintenance Project; 2. That any period of time in excess of that prescribed by the Planning Director, or his designee, would aversely affect the public views, or the public health, safety or welfare; or 3. That similar Construction or Maintenance Projects previously approved by the Planning Director, or his designee, were completed in a period of time less than the six month maximum. 10.64.060 Approval, Denial, Revocation of Construction/Maintenance Project Permits A. The Planning Director or his designee shall be responsible for the review and approval, denial or revocation of Construction/Maintenance Project Permits pursuant to this chapter. B. No Construction /Maintenance Project Permit shall be issued for any construction or maintenance project where: 1. The activity to be conducted under the Construction /Maintenance Project Permit violates any provision of the Newport Beach Municipal Code, state or federal law; 2. The Planning Director, or his designee, determines that the activity described in the permit would adversely affect the public views, or the public health, safety ore welfare. C. The Planning Director, or his designee, may deny or revoke Construction /Maintenance Project Permit, or the application for the same, if he determines any of the following: 1. Continued activity under the Construction /Maintenance Project Permit will violate Federal, State or local law; 5 65681&8 2. Activity under the Construction /Maintenance Project Permit constitutes a violation of any other provision of this Code. 3. Abandonment of the Construction or Maintenance Project has occurred; 4. There has been any material deviation from the precise nature, location, scope of work or estimated date for completion as described on the Construction /Maintenance Project Permit application during the tenure of the Construction /Maintenance Project Permit; or 5. The permittee has made any misrepresentation regarding the precise nature, location, scope of work or estimated date of completion on the Construction/Maintenance Project Permit application. E. The procedure for revocation of a Construction /Maintenance Project Permit shall require that the Planning Director or his designee conduct an investigation of the facts surrounding the alleged violation of any portion of this Chapter and notify the permittee in writing of his intent to revoke any Construction /Maintenance Project Permit issued pursuant to this Chapter. The notice of intent to revoke shall become effective, and the Construction /Maintenance Project Permit shall be revoked, fifteen (15) days after the date of the notice of intent to revoke unless the permittee elects an administrative hearing as set forth in this Chapter. 10.64.070 Appeal of Denial or Revocation of Construction /Maintenance Project Permit A. Any person whose application is denied or who receives notice of intent to revoke a Construction /Maintenance Project Permit may appeal that decision by requesting a hearing in writing to the City Clerk, including payment of any applicable fee(s), within fifteen (15) days from the date of denial or date of the notice of intent to revoke the permit. Failure to timely appeal the denial or intent to revoke a permit by the Planning Director, or his designee, shall render that decision final. B. The Newport Beach City Manager shall designate the Hearing Officer for the Construction /Maintenance Project Permit denial or Construction /Maintenance Project Permit revocation appeal hearing. The Hearing Officer shall not be a Newport Beach City employee. The employment, performance evaluation, compensation and benefits of the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the result of the hearing as determined by the Hearing Officer. C. No hearing to contest denial of a Construction /Maintenance Project Permit application or revocation of a Construction /Maintenance Project Permit before a Hearing Officer shall be held unless and until a written request for hearing has been timely submitted to the City Clerk. 6 656818.8 D. A hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the request for hearing is received by the City Clerk in accordance with the provisions of this Chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. E. The Hearing Officer shall only consider evidence that is relevant to whether the Planning Director or his designee has properly denied or that the intent to revoke the Construction /Maintenance Project Permit pursuant to this Chapter. F. The written notice from the Planning Director or his designee denying or intending to revoke a Construction /Maintenance Project Permit shall constitute prima facia evidence of the respective facts contained in those documents supporting the basis for denial of the Construction /Maintenance Project Permit application or intended revocation of the Construction /Maintenance Project Permit. G. At least ten days prior to the hearing, the appellant shall be provided with copies of any documents submitted or relied upon by the Planning Director or his designee in his determination to deny the Construction /Maintenance Project Permit application or revoke the permit. No other discovery is permitted. Formal rules of evidence shall not apply. H. The permit applicant or permittee contesting the denial or revocation of a Construction /Maintenance Project Permit shall be given the opportunity to testify and present witnesses and evidence in support of issuance or non - revocation of the Construction /Maintenance Project Permit. I. The failure of any person requesting an appeal to appear at the administrative hearing shall constitute a failure to exhaust their administrative remedies and render the decision of the Planning Director or his designee final. J. The Hearing Officer may continue the hearing and request additional information from either the Planning Director or his designee or the appellant, or both, prior to issuing a written decision. K. Any person aggrieved by an administrative decision of a Hearing Officer at a hearing under this Chapter may obtain review of the administrative decision by filing a petition for review with the Orange County Superior Court - Harbor Judicial District in accordance with the timelines and provisions as set forth in California Government Code section 53069.4. 10.64.080 Amortization Any Construction or Maintenance Project otherwise subject to this Chapter but 7 656818.8 that is commenced prior to the enactment of this Chapter shall not be exempted from the Construction /Maintenance Project Permit requirement of this Chapter. However, any Construction or Maintenance Project which was commenced prior to the enactment of this Chapter shall be exempt from enforcement for a period of six (6) months following the effective date of this chapter. SECTION 2: Sections 10.50.010 and 10.50.020 of the Newport Beach Municipal Code are hereby amended to read as follows: CHAPTER 10.50 PUBLIC NUISANCE ABATEMENT 10.50.010 Definitions 10.50.020 Nuisance 10.50.010 Definitions "Abate" means to repair, replace, remove, destroy, or otherwise remedy the condition in question by such means and in such manner and to such an extent as the enforcement officer in his or her judgment shall determine, is necessary in the interest of the general health, safety and welfare of the community. "Appeals Board" means the City Council of the City of Newport Beach. "City Clerk" means the City Clerk of the City of Newport Beach or his or her designee. "City Manager" means the City Manager of the City of Newport Beach or his/her designee, including, without limitation, a hearing officer designated by the City Manager to conduct proceedings pursuant to this chapter. "Enforcement Officer" means a Newport Beach Code Enforcement Officer or Newport Beach Municipal Compliance Officer or such other City positions as may be designated in writing by the City Manager. "Owner" means the owner of the property that is the subject of the nuisance as shown on the last equalized assessment roll and any person who occupies the property pursuant to a written or oral agreement conferring the right to occupy. "Property' means any building, lot, parcel, real estate, or land or portion of land, whether improved or unimproved, including adjacent sidewalks, parkways and parking strips. M 656818.8 'Watercraft" means a type of recreational vehicle designed to be used for water - related activities, including, but not limited to, sailboats, powerboats, canoes, kayaks and other personal watercraft. ' Whitegoods" means major household appliances, such as washers, stoves, refrigerators and freezers, that are typically, but not necessarily, finished in white enamel. 10.50.020 Nuisance It is unlawful and a public nuisance for any person owning, leasing, occupying or having charge or possession of any property in the City, to maintain, permit, cause or allow to exist on such premises, any of the following conditions: A. A fire hazard including but not limited to, any cut or uncut shrub, tree, grass, weeds, vines or other vegetation; combustible refuse or waste; or other flammable material which by reason of its size, manner of growth or location, constitutes a fire hazard to any structure, improvement or landscaping; B. Any swimming pool, spa, pond, fountain or other body of water which is allowed to become stagnant, unsanitary or unsafe or does not comply with the provisions of Chapter 15.09 of Newport Beach Municipal Code; C. The accumulation or storage of automobile parts, rubbish, trash, debris, rubble, broken -up asphalt, lumber, concrete, plaster, tile, rocks, bricks, building materials, crates, cartons, containers, boxes, scrap metal, trimmings from plants and trees, cans, bottles and barrels; D. Vegetation, including but not limited to, trees, shrubbery, grass and plants which is overgrown, dead, decayed or diseased such that it may: 1. Impede or present a danger to pedestrian or vehicular traffic, 2. Interfere with visibility on, or free use of, or access to, any portion of any public sidewalk, street, alley or right -of -way, or 3. Harbor rats, vermin, insects and other situations likely to cause a hazard to the public safety; E. Unsafe, unsightly, or poorly maintained property including but not limited to: 1. Storage or accumulation of household items, except furniture designed for outdoor use, barbecues and plants, on patios, roofs, balconies, and in yards in such a manner as to be visible from a public street, alley, sidewalk or other public right - of -way, 9 656618.8 2. Private driveways or walkways maintained in an unsafe condition which create a hazard to pedestrians, 3. Outside storage of any whitegoods, whether operable or not, in any area accessible to children who are not under the care and supervision of the owner or person in charge of the property, 4. Broken windows, or doors, 5. The failure to secure and maintain from public access all doorways, or other openings into vacant or abandoned buildings or structures, 6. Buildings or structures which are partially destroyed, partially repaired, abandoned or which remain in the state of partial construction or disrepair for more than three months, unless the construction and repairs are being accomplished pursuant to an active, open building permit. 7. Buildings, walls, fences or structures upon which the condition of the paint or exterior finish has become so deteriorated as to permit decay, excessive cracking, peeling, chalking, dry rot, warping or termite infestation, 8. Any front yard or landscaped setback area which, due to the lack of turf, other planted material, decorative rock, bark or planted groundcover or covering causes excessive dust or allows the accumulation of debris, 9. Landscaping, grounds, walls, fences, driveways, parking lots, irrigation systems, or sidewalks which are maintained in such a condition so as to become defective, unsightly or unsafe, 10. Deteriorated parking lots, including those containing potholes, cracks, ponds or ridges, 11. Accumulations of grease, oil or other hazardous material on paved or unpaved surfaces, driveways, buildings, walls, or fences, or from which any such material flows or seeps onto any public street, sidewalk, alleyway, or other public or private right -of -way, and 12. The use of materials other than glass (or other rigid transparent or semitransparent material designed for permanent installation in a structure) as a replacement or covering of window panes; F. The existence of any unlawful encroachment including signs, play equipment, trash or vegetation, which obstructs or interferes with the free passage or use by the public, of any public sidewalk, street, alley, beach, or other public right -of -way, or which may impede emergency access; 10 656818.8 G. The use of any machinery or equipment which because of noise, odor, vibration, fumes or discharge constitutes a health or safety hazard; H. A violation of any of the terms or conditions of a use permit granted by the City of Newport Beach; I. A violation of any provision of the Newport Beach Municipal Code; J. The parking or storage of any vehicle in the required front yard setback on private property other than in a garage, carport or paved driveway leading to the garage or carport; K. Repetitive, boisterous or unruly conduct by the owner or occupants of the property that occurs on the property when that conduct: (1) is offensive to a person of ordinary sensibility; (2) continues after a written or oral request to terminate the conduct; (3) is offensive to a considerable number of people; and (4) in the opinion of the Enforcement Officer, results in any of the impacts described in Section 10.50.010 of this chapter. L. The parking or storage of any Watercraft in excess of thirty-five (35) feet on any property in any residential district as established by Title 20 of this Code. Length shall be the distance from the forward most point of the Watercraft to the rear most point of the Watercraft, including any attachments thereupon. SECTION 3: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. 11 656816.6 SECTION 5: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 24th day of November, 2009, and adopted on the 8th day of December, 2009, by the following vote, to wit: AYES, COUNCILMEMBERS Henn, Rosansky, Curry, Webb, Gardner, NOES, COUNCILMEMBERS None ABSENT COUNCILMEMBERS ATTE : Leilani Brown, Ciq Clerk City of Newport Beach '14S TQ FORM: Davi R. unt, City Attorney For th City of Newport Beach 12 656818.8 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2009 -27 was duly and regularly introduced on the 24th day of November, 2009, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day of December, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Curry, Webb, Gardner, Daigle, Mayor Selich Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 9th day of December, 2009. City Clerk City of Newport Beach, Californ���. (Seal) B CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2009 -27 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: 2009. Introduced Ordinance: November 28, 2009 Adopted Ordinance: December 12, 2009 �Q( �p In witness whereof, I have hereunto subscribed my name this ) " {� day of W4ZM° K O�L - Vu'V' City Clerk City of Newport Beach, California