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HomeMy WebLinkAbout01_123 Marine Avenue_Abatement Extension_PA2016-133 CITY OF NEWPORT BEACH HEARING OFFICER STAFF REPORT October 17, 2016 Hearing Agenda Item 1 SUBJECT: Abatement Period Extension — 123 Marine Avenue - (PA2016-133) APPLICANT: Dan Miller, Operator, Village Inn PLANNER: Brenda Wisneski, Deputy Community Development Director (949) 644-3297, bwisneski@newportbeachca.gov PROJECT SUMMARY Request for extension of the required Abatement Period specified by Section 20.38.100 of the Newport Beach Municipal Code. A portion of the commercial structure located on 127 Marine Avenue extends onto the subject property which is zoned Two-Unit Residential, Balboa Island (R-BI). The applicant, who owns both properties, requests to allow the existing encroachment use to continue for an extended period of time without abatement. RECOMMENDATION Staff recommends the Hearing Officer conduct a public hearing, receive testimony from the applicant, the city staff, and members of the public. At the conclusion of the public hearing, it is recommended that the Hearing Officer: 1. Adopt the attached Resolution for the property located at 123 Marine Avenue, based on the findings and considerations discussed in this report, approving the Abatement Period Extension to ten years, November 1, 2026 (See Attachment No. 1). Abatement Extension —123 Marine Avenue October 17, 2016 Page 2 VICINITY MAP __ _ _ I_4 215 I� ��r214I 2441--[ �2 213112 -..� 21_3 ,`2,12 2i 3' •fir 9 2PY � 210 21.1 - � 21D ll: � 121t f 4 271E lei 209°112 �: s.. 209 � J208 Y� `y- 209 121- 08- .9 �� 209y �•_.. A , I 207 ■',205 . 207114. 206 IS � 207215 h J,203 � _ 2031!2 �I202'` 2 ` 0 1204 i 20112 1 �,X200 13OT7"" fi ,200 . _ 127 MARINE WITH s �� PARKAVE,.-.— a- STRUCTURE WHICH ENCROACHES 1305 1- 4 .125 2 R; 3 1221122 122^ 123 P 7 22 l :1231 i 1220 d I 121 1r. h•� 11.8 s119 1 I v Ta I 119112 SUBJECT PROPERTY � X15— 1_Di 117y112,� 1r 117 MIT 141U2 ' 1 4 e MI 11,5 114 y I F2112� GENERAL PLAN ZONING MUM2 R 61 .+ n. z �s RTw z� RT - RBI, - 1e -Bl" "RBI RT x � z�, - - MU-W2 z RBI" �,. RT RT,,; ,. .FRT ,e m ."R-BI RR PF RT'ILL o, . w '° n� MU W2M ., r ,l a - - T` jos - w RT2ul RTR-BI _ - PARK AVE ¢ PARK.AVE BI „ ,_, PF z,� 2 „ PF a. .. z,RT "R-BI r. ... ,« RT,2, �,,, - , �� RBI�^ _ -. RBI ' RT T a a RTRT '�' SUBJECT PROPERTY R-BI SUBJECT PROPERTY R-BI w. .„ RT"' _ _ RBI ��� R-BI . RT " m 8AYPy0N7 ALL�1'S m Of r[ S' m OS LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Residential —Two Unit Two Unit Residential, One Unit and encroachment of Balboa Island R-BI restaurant use NorthMixed Use Water Related Mixed Use Water Related Restaurant and One Unit on Upper Level East,West Two Unit Residential, and South Residential —Two Unit Balboa Island (R-131) Residential Abatement Extension —123 Marine Avenue October 17, 2016 Page 3 INTRODUCTION Project Setting The subject property is located on Balboa Island at 123 Marine Avenue and is improved with two-car garage and upper level residential unit. It is located south of Balboa Island's commercial district which is zoned Mixed Use. A restaurant, known as Village Inn, is directly north of the site. A fire station is located across the street, at the corner of Marine Avenue and Park Avenue. Single-family and two-unit residences are located south of the property, as well as to the east and west. Project Description The applicant requests an extension of the required abatement period specified by Section 20.38.100 of the Newport Beach Municipal Code. The residential unit is consistent with the Two-Unit Residential, Balboa Island (R-BI) zoning designation. A portion of restaurant structure at 127 Marine Avenue, which is utilized for kitchen operations, encroaches onto the residential property. Both properties are owned by Charles Kinstler who purchased this property in April 2012. The property owner states that it was a condition of the purchase to acquire both properties because of the encroachment. Background The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two-Unit Residential, Balboa Island (R-BI). A restaurant and second-floor residential unit is located on the adjacent property at 127 Marine Avenue which is zoned Mixed Use-Water Related (MU-W2). The properties are owned by the same entity. In fact, the current property owner states that he was required to purchase both the properties because of the encroachment. An addition to the restaurant was previously completed which encroaches onto 123 Marine, shown in Attachment No. 2. The City is unable to locate building permits for the building addition; however, aerial photos indicate the encroachment has been in place prior to 1989. Subdivision Code Section 19.04.035 was amended in 2008 to prohibit the construction of structures across a property line. Historically, if parcels were owned by the same entity, then the exterior property lines were recognized. Today, several structures in the city straddle property lines. In 2001, building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the subject area extending beyond the property line which indicates the city was aware of the condition in 2001. Historic building records are not always complete. For this reason, the inability to locate a building permit does not necessarily render an improvement unpermitted. The aerial photos support the property owners claim that the structure has been in existence for several decades. Because of the evidence provided in the aerial photos and the S Abatement Extension —123 Marine Avenue October 17, 2016 Page 4 permits which were issued to maintain the area in 2001, it is the Community Development Director's determination that the subject addition was lawfully established. The Community Development Director issued a Determination of Nonconforming Status on August 30, 2016, provided as Attachment 2. The restaurant addition is used for kitchen preparation and storage. As a non-residential use located on a residentially- zoned property, the use is considered nonconforming as defined in Zoning Code Section 20.38.030B, which states that the Director shall determine the nonconforming conditions of land uses. "B. Nonconforming Use. Any use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City, shall be deemed to be a nonconforming use." Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. The current owner, after purchasing the property in 2012, implemented upgrades to the restaurant interior and is currently seeking approval for an outdoor dining area. During this process, several approaches have been considered for addressing the encroachment area. Options discussed included removal of the encroachment area, merging the properties, and changing the land use of residential parcel. The property owner has demonstrated that this portion of the restaurant is a critical component of the restaurant's operation: therefore, the owner chose to pursue an extension of the abatement period. If the extension is granted, the owner may pursue any of the remedies mentioned above at a future date. The extension will also provide the owner additional time to amortize the investment of the current improvements on the property. DISCUSSION General Plan The Land Use Element of the General Plan generally guides the future development of the City and would generally allow the continuation of legally established structures and uses and does not specify requirements for abatement of nonconforming uses. The Zoning Code is the regulatory tool that implements and regulates the provisions of the General Plan. Zoning Code To make the subject property consistent with the Zoning Code the abatement of the nonresidential structure would be required. However, the Zoning Code allows for a 4 Abatement Extension —123 Marine Avenue October 17, 2016 Page 5 procedure to grant an extension of the abatement period for the continued use of the existing building and use. The approval authority for the extension lies with the Hearing Officer in accordance with the provisions of Section 20.38.100C 4b of the NBMC. The Hearing Officer is also required to conduct a public hearing on the request in compliance with Chapter 20.62 of the NBMC. Findings and Considerations: In accordance with the provisions of Chapter 20.38 of the NBMC, the Hearing Officer, by resolution, shall approve, conditionally approve, or deny the request for an extension to the abatement period. The resolution shall include: findings of fact; evidence presented of economic hardship arising from the abatement proceedings; the nonconformity's impact on the community; and other factors that may affect the length of the abatement period required to avoid an unconstitutional taking. In accordance with the provisions of Section 20.38.100 (C-4c), the Hearing Officer in reviewing an application for an extension to the abatement period shall consider the following: (1) Length of the abatement period in relation to the owner's investment in the use; (2) Length of time the use was operating prior to the date of nonconformity; (3) Suitability of the structure for an alternative use; (4) Harm to the public if the use remains beyond the abatement period; and (5) Cost and feasibility of relocating the use to another site. The applicant has submitted the attached letter in conjunction with the application for extension of the abatement period (Attachment No. 3). Staff has reviewed the information submitted by the applicant and, where applicable, has summarized it below to address the findings and considerations for the property involved, that the Hearing Officer may use in making his determination. (1) Length of the abatement period in relation to the owner's investment in the use. The applicant is requesting an abatement extension of ten years. In 2012, when the property owner purchased the restaurant at 127 Marine Avenue, he was also required to acquire the property at 123 Marine Avenue. He suggests this requirement was due to the encroachment. Since the purchase, several interior improvements have been implemented to the restaurant to update the older, outdated interior. The one year abatement period specified by the Municipal Code is not sufficient duration to allow the property owner to explore interior renovations to redesign the kitchen or other options. Therefore, an extension of 10 years for the abatement of the encroachment is necessary to avoid an unconstitutional taking of the applicant's 5 Abatement Extension —123 Marine Avenue October 17, 2016 Page 6 property; and to avoid the economic hardship that will result by the abatement of the encroachment which is a critical component of the restaurant operations. (2) Length of time the use was operating prior to the date of nonconformity. Historic aerial photos indicate the encroachment was in place prior to 1989, prior to the applicant's interest in the property, and prior to the 2008 Subdivision Code Section 19.04.035 amendment to prohibit the construction of structures across a property line. Building permits were issued in 2001, which indicates the City of Newport Beach was aware that the area extended beyond the property line. The City of Newport Beach adopted an ordinance in 2010 which requires nonresidential uses located on residential properties shall be discontinued within one year unless an extension is granted by the Hearing Officer. (3) Suitability of the structure for an alternative use. The subject encroachment is located within the setback area of the residential development. A 3-foot setback is required for the residential parcel. It would not be appropriate for this area of the structure to be used for an alternative use. (4) Harm to the public if the use remains beyond the abatement period. The subject encroachment has existed since the 1980s. It serves as storage and access for the restaurant from the alley. The property owner owns both affected properties and can remedy any future concerns to these parcels. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. It is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public. (5) Cost and feasibility of relocating the use to another site. The encroachment area is used for food preparation and storage for the restaurant. Relocation of this component of the kitchen operations would require a complete redesign of the kitchen, reduction in seating area, and change in access. RECOMMENDATIONS As discussed in Finding and Considerations section above for the property, the applicant has presented information and a request to extend the abatement period. Staff recommends an extension period of ten years for 123 Marine Avenue to November 1, 2026 is consistent with previously approved requests and is appropriate in this case. That the request for the extension for ten years be approved based on the following findings and considerations: Abatement Extension —123 Marine Avenue October 17, 2016 Page 7 1. That one year is not an adequate period of time to amortize the property owner's investment in the property. 2. That the encroachment has existed for 30 years and was not subject to abatement until 2010. 3. That the encroachment area cannot be modified to accommodate a residential use. 4. That the property is located in an area that is occupied by a mix of uses. It is anticipated that the continued use of the subject encroachment is compatible with the surrounding uses and will not have negative impact or pose harm on the neighboring residential and nonresidential uses in the vicinity. 5. That the restaurant encroachment has not posed negative impact on the neighboring uses. 6. Demolition of the encroachment is difficult since it is a critical component of the restaurant operations which cannot be easily relocated within the existing restaurant. The restaurant is unable to expand in other areas of 127 Marine Avenue as they have maximized the building footprint. Consequently, relocation of the existing uses would result in the additional costs and substantial loss of revenue to the property owner. 7. That the abatement extension of ten years (November 1, 2026) is appropriate in this case since it will afford the property owner the ability to consider redesigning the restaurant or considering other options. CONCLUSION Based on the information submitted by the applicant, adequate justification has been presented to extend the period of abatement. Therefore, in accordance with the provisions of Section 20.38.100 of the NBMC, the Hearing Officer may approve the request for extension of the abatement period based on the Findings and Consideration and testimony presented at the hearing. It is recommended that the Hearing Officer take the following action; Adopt the attached Resolution for the property located at 123 Marine Avenue, based on the findings and considerations discussed in this report, approving the Abatement Period Extension to ten years, November 1, 2026 (See Attachment No. 1). Environmental Review The project is categorically exempt under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). Public Notice Notice of this hearing was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this 7 Abatement Extension —123 Marine Avenue October 17, 2016 Page 8 hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting which was posted at City Hall and on the City website. Submitted by: Brenda Wisneski, ICP Deputy Communit Development Director ATTACHMENTS 1 Draft Resolution Approving the Abatement Extension Request 2 Director's Determination w/ Attachments A. Site Plan B. 2001 Building Permits and Plans C. Zoning Code Section 20.38.100 Abatement Periods D. Aerial Photograph 3 Applicant's Extension Request 12/21/11 g Attachment No. 1 Draft Resolution Approving the Abatement Request RESOLUTION NO. HO 2016-### A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH APPROVING THE ABATEMENT EXTENSION PERIOD FOR THE PROPERTY LOCATED AT 123 MARINEAVENUE (PA 2016-133) WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC) requires nonconforming nonresidential uses in residential zoning districts to be abated and terminated upon the expiration of time periods identified by the NBMC. Following the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner may request an extension of the abatement period in order, to amortize a property owner's investment in the property and avoid an unconstitutional taking of property; and WHEREAS, an application was filed by Dan Miller, on behalf of the property owner of 123 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15, requesting an extension of the abatement period specified by the NBMC Section 20.38.100. If granted, the extension will allow the continued operation of existing restaurant located at 127 Marine Avenue for ten years from the date of the Hearing Officer's approval (November 1, 2026). The property is located in the Two-Unit Residential, Balboa Island (R-BI) Zoning District, where such nonresidential uses are not permitted; and WHEREAS, a public hearing was held on October 17, 2016, in the Corona del Mar Conference Room (Bay E-1 st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the NBMC and other applicable laws. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Bill Connors, Hearing Officer for the City of Newport Beach; and WHEREAS, the findings and considerations of Section 20.38.100 (C.4(c)) of the NBMC and facts in support of the findings and considerations are as follows: 1. The length of the abatement period is not appropriate considering the owner's investment in the use; Facts in Support of Finding: The applicant is requesting an abatement extension of ten years. In 2012, when the property owner purchased the restaurant at 127 Marine Avenue, he was also required to acquire the property at 123 Marine Avenue. He suggests this requirement was due to the encroachment. Since the purchase has implemented several interior improvements to the restaurant to update the older, outdated interior. 10 City of Newport Beach Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 2 of 3 The one year abatement period specified by the Municipal Code is not sufficient duration to allow the property owner to explore interior renovations to redesign the kitchen or other options. Therefore, an extension of 10 years for the abatement of the encroachment is necessary to avoid an unconstitutional taking of the applicant's property; and to avoid the economic hardship that will result by the abatement of the encroachment which is a critical component of the restaurant operations. 2. The length of time the use was operating prior to the date of nonconformity justifies the extension of the abatement period beyond the code specified one year. Facts in Support of Finding: Historic aerial photos indicate the encroachment was in place prior to 1989, prior to the applicant's interest in the property, and prior to the 2008 Subdivision Code Section 19.04.035 amendment to prohibit the construction of structures across a property line. Building permits were issued in 2001, which indicates the City of Newport Beach was aware that the area extended beyond the property line. The City of Newport Beach adopted an ordinance in 2010 which requires nonresidential uses located on residential properties shall be discontinued within one year unless an extension is granted by the Hearing Officer. 3. The existing structure is not suitable for conversion to an alternate use. Facts in Support of Finding: The subject encroachment is located within the setback area of the residential development. A 3-foot setback is required for the residential parcel. It would not be appropriate for this area of the structure be used for an alternative use. 4. No harm to the public will result if the nonresidential uses remain beyond the one year abatement period. Facts in Support of Finding: The subject encroachment has existed since the 1980's. It serves as storage and access for the restaurant from the alley. The property owner owns both affected properties and can remedy any future concerns to these parcels. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. It is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public. 5. The cost and feasibility of relocating the uses to another site cannot be accommodated within the one-year abatement period. Facts in Support of Finding: The encroachment area is used for food preparation and storage for the restaurant. Relocation of this component of the kitchen operations F:AUsers\PLN\Shared\PA's\PAs-2016\PA2016-133\PA2016-133-Reso.docx City of Newport Beach Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 3 of 3 would require a complete redesign of the kitchen, reduction in seating area, and change in access. WHEREAS, this activity has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby approves the requested Abatement Period Extension (PA2016-133), subject to the findings and considerations set forth above. Section 2. The Abatement Period Extension for the property located at 123 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15, is hereby extended for ten years and will expire on November 1, 2026, at which time encroachment shall be demolished, unless an additional extension of the abatement period is granted; or an appropriate change in the Zoning District and the General Plan Land Use Designation are approved and adopted; or a change to the Zoning Regulations pertaining to nonconforming uses or their abatement are approved and adopted prior to that date. Section 3. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 17TH DAY OF OCTOBER 2016. William B. Connors Hearing Officer for the City of Newport Beach F:AUsers\PLN\Shared\PA's\PAs-2016\PA2016-133\PA2016-133-Reso.docx 12 Attachment No. 2 Director's Determination w/ Attachments is PO 100 Civic Center Drive Newport Beach,California 92660 [ 949 644-3200 newportbeachca.gov/communitydevelopment a� August 30, 2016 Carol McDermott, AICP Founder& Principal Entitlement Advisors 5000 Birch, Suite 400 East Tower Newport Beach, CA 92660 Re: Director's Determination of Nonconforming Status of Encroachment on 123 Marine Avenue- DD2016-004 Dear Ms. McDermott; The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two-Unit Residential, Balboa Island (R-BI). A restaurant and second-floor residential unit is located on the adjacent property at 127 Marine Avenue which is zoned Mixed Use-Water Related (MU-W2). The properties are owned by the same entity. In fact, the current property owner states that he was required to purchase both the properties because of the encroachment. An addition to the restaurant was previously completed which encroaches onto 123 Marine, shown in Attachment A. The City is unable to locate building permits for the building addition, however, aerial photos indicate the encroachment has been in place prior to 1989. Subdivision Code Section 19.04.035 was amended in 2008 to prohibit the construction of structures across a property line. Historically, if parcels were owned by the same entity, then the exterior property lines were recognized. Today, several structures in the city straddle property lines. In 2001, building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the subject area extending beyond the property line which indicates the city was aware of the condition in 2001. See Attachment B. Historic building records are not always complete. For this reason, the inability to locate a building permit does not necessarily render an improvement unpermitted. The aerial photos support the property owners claim that the structure has been in existence for several decades. Because of the evidence provided in the aerial photos and the permits which were issued to maintain the area in 2001, it is the Community Development Director's determination that the subject addition was lawfully established. The restaurant addition is used for kitchen preparation and storage. As a non-residential use located on a residentially-zoned property, the use is considered nonconforming as defined in Zoning Code Section 20.38.030B, which states that the Director shall determine the nonconforming conditions of land uses. "B. Nonconforming Use.Any use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located Community Development Department by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City,shall be deemed to be a nonconforming use." Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. It is our recommendation that the property owner apply for an extension of time as soon as possible. If the Hearing Officer grants an extension, the structure may continue in its current condition provided required life safety and structural issues can be addressed. At the end of the extension period, the portion of the non-conforming use and structure located on 123 Marine Avenue would be required to be removed, unless another extension is applied for and is granted. All decisions of the Community Development Director may be appealed to the Planning Commission pursuant to Zoning Code Chapter 20.64 (Appeals) within fourteen (14) days following the date of this decision, by any interested party. Sincerely, Kimberly Brandt, AICP Community Development Director Attachments: A. Site Plan B. 2001 Building Permit and Plans C. Zoning Code Section 20.38.100 Abatement Periods D. Aerial Photograph Z� Attachment A Site Plan 10 F A R K A V C x s rr, 12P ni h, IT7- 1 �Il i r , Q alp ` g rn r r T r O O A f §f DESIGN Village Inn FLOOR PLANS 127 Marine Ave. Balboa Island,CA 92626 Attachment B 2001 Building Permit and Plans 2� City of Newport Beach Building Department CIP Permit No: 132007-7972 U - PO Box 1768 Newport Beach,California 92658-8915 Permit Counter Telephone(849)444-3288 Inspection RequestsTelephone(949)644-3255 - Job Add-ess:127 MARINE AVE Floor: Suite:-.._ ... ..Bldg:i-. IQescription of Work: REMODEL REAR ENTRYWAYIDOORIDRYWALL - - 1618-2001 Inspector Area: _ . ._.. _ _ Legal Desc: Owner: TOLL,THRESA&GEORGE Contractor- ��pp Architect: Address: 1841 LERWER LN Address: Address: - SANTA ANA, CA 92705 _ Phone: 714!731-0423 Phone: Phone: State Lie: Applicant: TOLL,THRESA&GEORGE Con State Lie: Engineer: Address: 1841 LERWER LN Lic Expire: Address: SANTAANA, CA 92705 Bus Lie: Phone: 714!731-0423 Lie Exp Dale: Phone: State Lie-. Cade Edition: 0 Workers'Compensation Insurance Designer: Type of Construction: Carrier: Address; _ Occupancy Group: Policy No: Added/New sq.ft.Bldg: Expire: Phone. Added/New sq.ft.Garage: - - .... ..... - -- -- - --No of Stories: Building Setbacks Rear: ! Special Conditions: No of Units: Front: ! - - - - - -- Left: - -1 . . ... __ Issued: Right: ! Use Zone: RSC Receipt# Parking Spaces: FEES - Construction Valuation: $2,300,00 _ Building Permit l=ee;. $66-.95 ..- .- Microfilm; ..- $1:32 Hazardous Mat -_ -..._ __:_-__-- _$0,00 :__-.__ Department. Plan Plan Check Fee: $48.20 Excise Tax: $0.00 Add Fire Dep HMQ: $0.00 Plan Review Fee: $0.00 Supplemental: $0.00 Park Ded: $0.00 Other Fee: $0.00 Inspection Fee: $0.0.0 _Investigation.Fee:,. $tla}l}_:.-. - SJH-Trans: - $0.110 Clean Up Deposit: _$200.00 - - San Dist:. $0.00 Counter Review.:.. -- Energy Compliance: $6.00 Ca Seismic Safety: $0.00 Zoning Plan Check: $27.15 Fair Share: $0.(10 Disabled Review: $6.00 OverTime Plan Check Fee: $0.00 ..TOTAL FEE 343.62 TOTAL PAYMENT :L48.20 TOTAL DUE: $295.42 - PROCESSED BY: - OTHER DEPARTMENT: ZONING APPROVAL: ——_ PLAN CHECK BY: - FIRE APPROVAL: - _.. _ .. APPROVAL TO-ISSUE: __.....GRADING-APPROVAL: - -- ------- --_ - _ - - WORK1 US•T BF-STARTED WITH A PER100 OF-180 DAYS FROM THE DATE OF VALIDATION - OR THIS PERMIT BECOMES NULL ANU VOID. PUBLIC WORKS: q APPROVALS DATE $}' COMMENTS oWNeR.eulLoe�zDEcLaRArlOiu FOUNDATION,: � r_ ROUGH GRADE Y 4 c , Te LINE&GRADE.CERT SETBACKS rf r y r. I � 1 r4S QEGIli[tJlilOM OF COIIPE�AM4� �II�TN .--- DERAL REMAIJONS ERECTION PADS :. . , c,€.:f,IL`< .Mr i. .,l.11::1 r,... AND AM FOL)'ICES b r 9�QTTED ASKSTOS © C VVI.kr l AND r: .:r; Y r ,OFFEr SLAP ON GRADE V h 11r , > Tf. ... E't f rli, Ci I..-. l, C 2F_.7. ,.f. 1 1 t 1 t t 4-- F - f I -,f)h 1 HI�f '- <3 1 [:! i t '(� FRAMING: ASBESIC Ipll[ r t REGI{SLAB ?-r ,, r...FR0-1-.. n> -, ;.:Pli rFI., SUBFLQOR 0..r_. FtOC7F&BUILDING HTSid1Al11RE: EXT,SHE/\R'HOLI]DOWNS B1.rc reit:?I+.;.s,x: GENERAL FRAWNC FIREPLACES THROI3T - LICENSE€]CON'TRAMOKSDEC:'ARA TIOII4 -. . INTERIOR&EXTFRiOR INSULAI DRYWALL SUSPENCED Gl ti K' SHOWER LAFH WORKER 5'COMRENSATIONDECCARATION - EXTER!C)R LATH :e FNII il.} 1 f r SCRATCHfPLASI ER} (- DAYj s ryl.ASONRY PRE-GROU T !�91SC. INSPEC;IONS_ - - — - -- -. -_ .-- -- - - -- ----- - - - - VJIff.F:..'-_.,:hr..>,,.. -.� 'e.�i..i .....:.,`4iA. n.-'.'.- I...t .. :;i. A..,_....., -... PFRUIT EXTENSION ------- --- 1 ST EXP-LETTER 2Nr) EXP,LETTER BUILDING FINAL CON.rRUr-Tiari',FNDINGAGENCY CERTIFICATE;_,F OCCUPANCY IGNANT NA':'E REFUNDED - - - -2, ...Ili....`E ... l' :6. -. ....._ �.� (.4."--1,.: .- Tc 1 r43 DATE TYPE OF BUSINESS USE, - 1�[J b, j ttvs�+ �r City of Newport Beach Building Department ELECTRICAL Permit No: E2001-0961 IiILA PO Box 1768/3300 Newport Blvd, Newport Beach,California 92658-8915 Permit Counter Telephone(949)1644-3288 Inspection RequestsTeiephone(949)644-3255 Joh Addrqss:111 MARINE AVE I Bldg:1 Floor: Suite_ Description of Work: REMODEL REAR ENTRYWAYIDOOR/DRYWALL 82001-1972 /718 C Inspector Area: Code Edit:96 Legal Desc.: tQ INSPECTOR NOTES: Owner: TOLL,THRESA&GEORGE Contractor: Address: 1641 LERWER LN Address: SANTA ANA, CA 92705 Phone: 7141731-0423 Phone: Con.State Lic.: Receipt#: Lic Expire: Bus.Lic.: Processed By: Lic.Exp Date: FEE New Construction Receptacle/Switch/Outlets Motor-v Transformers HP/I(VA Temp Power Pole 0 $0.00 Residential ReceplOutlets 0 $0.00 0 to 1 HPIKW/KVA 0 $0.00 Temp Underground 0 $0.00 Multi-Family 0 $0.00 Fixtures 1 $0.93 1 to 10 HPIKW/KVA 0 $0.00 Sub Panel 0 $0.00 1-2 Family 0 $0.00 Sep Circuit 0 $0.00 10 to 50 HPIMIKVA 0 $0.00 0 $0.00 50 to 100 HP/KWIKVA 0 $0.00 0 $0.00 Service Signs over 100 HPIKW/KVA 0 $0.00 Record Managment Fee: $0.27 0 to 600V up to 200A 0 $0.00 Branch Circuit 0 $0.00 Investigation Fee $0.00 0 to 600V over 200A 0 $0.00 each Add Circuit 0 $0.00 Piggy Back/Temp Power 0 $0.00 Plan Check $0.23 Over 600A11,000A 0 $0.00 Time Clocks 0 $0.00 Issuance $19.70 Supplemental Fee $0.00 TOTAL: $21.13 PAYMENT: $0.23 BALANCE:$20.90 LICENSED CONTRACTORS DECLARATION I hereby affirm under penalty of perjury that I am licensed under provisions of Chapter 9(commencing with Section 7000)of Division 3 of the Business and Professions code, Aporcivals In�ctor/Date and my license is in fullforce and effect. license No: Class: Contractor: Grounding Electrode WORKERS'COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: Underground I have and will maintain a certificate of consent to self-insure for workers'comhensalion.as provided for by Section 3700 of the labor code.for the performance - - - - - of the work for which this permit is issued. Underslab/Floor _t have and wv94 maintain workers'corrlpensation insurance,as required by Section 3700 of the labor code,for the performance of the work far which this permil is issued. _ My workers'compensation insurance carrier and policy numbers is: Rough Conduit Walls Carrier: Policy number. Expire r This section need not be completed if the permit is for one hundred dollars($100)or less. Rough Wiring Ceilings I certify that in the performance of the work for wh-ch lht�pe-mit is issued.I shall not employ any person in any manner so as to become subject to the workers'compensation laws Rough Service of California,and agree that if I should`eeome sr Sjei:-i It..;:vfke(V compensation provisions of Section 3700 of the labor code,I shall fufhwith comply with those provisions. Temp Power Date:_ _ Appfcont Signature: warning:Failure to secure workers'compensation coverage is unlawful,and shall subject an employer to c moral penalties and civil fines up to one hundred Utility Co.Notified ($100,000),in additid,i to tho cost of m"rensaUon.dannges as-jro ide-1 fcr in SE-tion 3706 of the labor code,interest,and attorney's fees. Final . I hereby acknowledge hat I hav?read tni-apNicrtion;+hal"ie!ifor-mat'in ever d-correct;and that I am the owner,or duty authorized agent of the owner.1 agree to mn#y with city and sate h-v----gula`r3)onstfiction; a in do:.fig the v.ark authorized thereby.no person well be employed in violation of the labor code of the state of California relating to workmen's ob in�s7atian insurance. - Permittee Name(Poi t>f �t O r r��1(� _\ ,� \ Address : WORK Mif57 8E STARTED iNfflilN A PERIOD OF 180 DAYS FROM THE DATE OF VALIDATION OR THIS Signature of permitted �C}.�C'J p Q� PERMfrBECOMES NULL AND YGlFD - e L :CITT OF 1414TO" EACI�T S NOT • &RUEve +SANT OF 1.2011L ! -- - - -•- - -- - , - - - - - _. - r - _ CONDMOJU#,)a08361tV8C0Y1otiAPij+a <FS1•RICFION9 W1Nm ` _ n _n ,,] ,�}�� INROPORTY MAY 8$ llcn "CORDED AGAINST Till - 3 r, � 1+JOOfy` d� A� . -- l WPI V\"_ 1 A ORlro gTAINCDMMUNITy ST?RTUiD AL OF MANS.YOU II�OQAYIryR -AC•T YOUR COMMUNITY OF lRIOR To aoaluarcrsMl�Nr 1 e• �?AODf A Y W 0.11 1 -_: aWYCOx I1fliaRlzeD tI CmrOFtu�ORTSSacH ENCROACHMENT PERMIT SMLLBEOBTAIN�N� _ F+ORR[•!W WWTIM EASEMENTS&RIGHT'S OF u=: OF-NtW�OEACH:�� CITY F H P T i iW1AipOYAI of T>I it FLAX$ms NOT f101iS1rTGIE EXPRESS On WL11t TfMPr frfIL H1 PoTOiIOn XCfS.IW3JAOF00UC OFIKEEi�rtTO�PxEnPOR�1 1�?.MAR{NE AVE.. �+�j n� ` r i� ..�ti.! 1 r e i_�L Y - i IE1CM TMSN coo SI ct MOT coy. l kO G ALT ZO PrJ1Y!AFL1M A13 ��tR EDYPOA110ElflTfi CfrT,/GApiSG AiC IOMlYO OR01MA><tE/, AMD/Of1C1E/.r11E Etr1'OF atTrPORt gfllCH AESERRuEE/f NE R1CM1 r0 t1 nc /� ME. VI L.LA G E i lk N R�.S I a��C �. 110/.�f Q�; �;� ,� pT L.�lJol""► �ECd��� 'r�dG�l,,�, �..iLt.�� - � - - - _ OFrnEimr#/pll�OAr6E�{x ASO BA1 __ . APPUtit<fY ApGq�GDrEMr: NEWPORT BEAC14 CRAMS - - i �iCLGC_ ` r ,0. w�w4\NCO0•C i r -- -- - - - i - - - - ! - r _ - - € -r �y' - - Ap Tu101iS11E ► s + i = SM: DATE L • - --- _ �Qr � �o�z ��a \a 1 l �x►51"nr!- -�c�c��av+ LS � �ctvrte ct5 - - i - 4 'now, � Iqv% t ; Pia . V i 10 OV n t� a ' 1E {�/� t-q- wr-._ V O C t'� RF-PL� Ei'l E.iV l A-T ' i tllC�tto �T LIT: VI L.N IN - - - F _ _ _.-: _ - : �_� - _ • : _ Jur* z5, zoos: l Attachment C Zoning Code Section 20.38. 100 Abatement Periods 2S 20.38.100 Abatement Periods.C3SHARE M11121 A. Nonconforming uses shall be abated and terminated upon the expiration of the periods of time identified in this section. B. All Zoning Districts When No Structure Is Involved. Nonconforming uses of land located in any zoning district, Planned Community District, or specific plan district that do not involve the use of a structure shall be discontinued within one year of becoming nonconforming. C. Residential Zoning Districts Involving a Structure. In residential zoning districts or in an area where residential uses are allowed in Planned Community Districts or specific plan districts, a nonconforming use of land involving a structure shall be discontinued as follows: 1. Abatement Period.A nonconforming use of land involving a structure in a residential zoning district shall be discontinued on the earliest date as follows: a. Within one year; or b. Upon the expiration of the term of a lease on the property.Any lease shall be the last lease entered into for the subject property prior to December 7, 2007; or c. Upon the expiration of a current operating license that is required by State law. 2. Order of Abatement. Whenever the Director finds that any of the conditions exist that are identified in subsection (C)(1)of this section, the Director shall issue a written order of abatement to the property owners and all persons in possession of the property. The owner and/or person in possession shall comply within the time and in the manner stated in the order. 3. Exception. Multifamily and two-family residential uses located in residential zoning districts and in areas where residential uses are allowed in Planned Community Districts or specific plan districts that are nonconforming only in terms of their number of units or parking shall not be subject to abatement. 4. Extension of Abatement Period. Following the issuance of an abatement order by the Director, a property owner may request an extension of the abatement period in order to amortize the property owner's investment and to avoid a potential taking of property either under the procedure outlined in this subsection or under the procedure outlined in subsection (C)(5)of this section (Extension of Abatement Period for Residential Care Facility). 24 a. Application Requirements. An application for an extension of the abatement period shall be filed with the Department no later than ninety(90)days prior to the expiration of the abatement period as specified in this section. The application shall include the following information in addition to other information required by the Department: i. The length of the requested extension of the abatement period; and ii. Evidence in support of the findings included in subsection (C)(4)(c)of this section (Findings and Considerations). b. Hearing Officer Hearing and Action. i. The Hearing Officer, as provided in Section 20.60.040 (Hearing Officer), shall be the review authority for applications for requests of extensions to abatement periods for nonconforming uses in residential zoning districts and in Planned Community Districts or specific plan districts where residential uses are allowed. ii. The Hearing Officer shall conduct a public hearing on the request in compliance with Chapter 20.62 (Public Hearings). iii. The Hearing Officer, by resolution, shall approve, conditionally approve, or deny the request for an extension to the abatement period. The resolution shall include: findings of fact; evidence presented of economic hardship arising from the abatement proceedings; the nonconformity's impact on the community; and other factors that may affect the length of the abatement period required to avoid an unconstitutional taking. c. Findings and Considerations. In reviewing an application for an extension to the abatement period the Hearing Officer shall consider the following: i. Length of the abatement period in relation to the owner's investment in the use; ii. Length of time the use was operating prior to the date of nonconformity; iii. Suitability of the structure for an alternative use; iv. Harm to the public if the use remains beyond the abatement period; and v. Cost and feasibility of relocating the use to another site. 25 d. Notice to Owner. Following the hearing, the Department shall send a copy of the Hearing Officer's action to the owner of the property within ten (10)days following the date of the Commission's action. e. Appeals. Refer to subsection (F)of this section. 5. Extension of Abatement Period for Residential Care Facility. The abatement period for a residential care facility may be extended upon approval of an application by the Director under one or both of the circumstances outlined below.An application for an extension under this subsection is separate and apart from an application for an extension under subsection (C)(4)of this section. A residential care facility may apply for an extension under either or both procedures: a. When the owner or occupant has applied for a conditional use permit(Section 20.52.020)or reasonable accommodation (Section 20.52.070)in a timely manner and is diligently pursuing the applicable process, as determined by the Director; or b. When the business owner or occupant is contractually obligated to continue the provision of a program or service for one or more persons so long as any existing contract provides for a normal and customary term for the provision of those services. No term shall exceed sixty(60)days. D. Nonresidential Zoning Districts Involving a Structure. 1. Abatement Period. In nonresidential zoning districts, and in areas where residential uses are not allowed in Planned Community Districts or specific plan districts, a nonconforming use of land involving a structure shall be discontinued within ten (10)years after the Commission determines that the orderly termination of the nonconforming use is necessary to promote the health, safety, and general welfare and to comply with the provisions of the Zoning Code and goals and policies of the General Plan. 2. Order of Abatement. Whenever the Commission determines that the abatement of a nonconforming use is necessary in compliance with subsection (D)(1)of this section, the Director shall issue a written order of abatement to the property owners and all persons in possession of the property. The owners and/or persons in possession shall comply within the time and in the manner stated in the order. 3. Exceptions. The abatement period specified in subsection (D)(2)of this section shall not apply except in the following circumstances: 20 a. A different abatement period is specified in a Planned Community District or specific plan district; or b. The use is located in a landmark structure that is subject to the provisions of Section 20.38.070 (Landmark Structures), in which case there shall be no abatement period. 4. Extension of Abatement Period. Following the issuance of an abatement order by the Director, a property owner may request an extension of the abatement period in order to amortize the property owner's investment and to avoid a potential taking of property. a. Application Requirements. An application for an extension of the abatement period shall be filed with the Department no later than ninety(90)days prior to the expiration of the abatement period as specified in this section. The application shall include the following information in addition to other information required by the Department: i. The length of the requested extension of the abatement period; and ii. Evidence in support of the findings included in subsection (D)(4)(c)of this section (Findings and Considerations). b. Commission Hearing and Action. i. The Commission shall be the review authority for applications for requests of extensions to abatement periods for nonconforming uses in nonresidential zoning districts and in Planned Community Districts or specific plan districts where residential uses are not allowed. ii. The Commission shall conduct a public hearing in compliance with Chapter 20.62 (Public Hearings). iii. The Commission shall evaluate evidence presented of economic hardship arising from the abatement proceedings, the nonconformity's impact on the community, and other factors provided in subsection (D)(4)(c)of this section that may affect the length of the abatement period required to avoid an unconstitutional taking. iv. The Commission shall approve, conditionally approve, or deny the request for an extension to the abatement period only as required to avoid an unconstitutional taking of property. 27 c. Findings and Considerations. In reviewing an application for an extension to the abatement period the Commission shall consider the following: i. Length of the abatement period in relation to the owner's investment in the use; ii. Length of time the use was operating prior to the date of nonconformity; iii. Suitability of the structure for an alternative use; iv. Harm to the public if the use remains beyond the abatement period; v. Cost and feasibility of relocating the use to another site; and vi. Other evidence relevant to the determination of whether an extension of the abatement period is required to avoid an unconstitutional taking of property. d. Notice to Owner. Following the hearing, the Department shall send a copy of the Commission's action to the owner of the property within ten (10)days following the date of the Commission's action. E. Enforcement. The City shall enforce the provisions of this chapter by civil action, utilization of the procedures in Chapter 20.68 (Enforcement), or any other proceedings or methods permitted by law. F. Appeals. 1. Decisions of the Director, Zoning Administrator, Hearing Officer, or Commission may be appealed in compliance with the procedures established in Chapter 20.64 (Appeals). 2. Council hearings on appeals of the Hearing Officer's decision shall not be de novo and the City Council shall determine whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing. The City Council, acting as the appellate body, may sustain, reverse, or modify the decision of the Hearing Officer or remand the matter for further consideration. The remand shall include specific issues to be considered or a direction for a de novo hearing. (Ord. 2010-21 § 1 (Exh. A)(part), 2010) 22 Attachment D Aerial Photographs 29 fV N WAR _ LU �. LU �iytt�� aa A � 121 112 Year 2014 N r s Jrr t, uj W Tk M r Year 2001 30 i Ir go. Ar M If d + r r Year 1989 31 Attachment No. 3 Applicant's Extension Request 32 WRITTEN STATEMENT REQUEST FOR EXTENSION OF ABATEMENT PERIOD FOR A NONCONFORMING USE IN A RESIDENTIAL ZONING DISTRICT 123 MARINE AVENUE, NEWPORT BEACH VILLAGE INN Summary Request for an extension of the abatement period for a nonconforming nonresidential use in an existing building located in a residential district. The subject property is located at 123 Marine Avenue, immediately adjacent to The Village Inn on Balboa Island. Existing uses at 123 Marine include: an apartment, a restaurant addition (storage/food preparation) and an open space area which is periodically used for special, community-sponsored events on Balboa Island. The property is designated RT, Two-Unit Residential, by the City's General Plan and is zoned R-BI (Balboa Island). The current owner was required to purchase both The Village Inn at 127 Marine Avenue and the property at 123 Marine Avenue in 2012 because of the restaurant encroachment. Based on historic aerial photos, it appears that the restaurant storage encroachment has been in place for over 30 years, since the 1980's, prior to the current owner's interest in the property. Both properties have been, and will continue to be, maintained under common ownership. Written statement responses A. What is the length of the requested extension of the abatement period? The applicant is requesting an abatement extension of ten years. In 2008, Subdivision Code Section 19.04.035 was amended to prohibit the construction of structures across a property line. Historically if parcels were owned by the same entity, the exterior property lines were recognized. The ten year abatement extension would allow the owner of the property to evaluate different options to address the non-conformity. B. What is the length of the abatement period in relation to the owner's investment in the use? The applicant has owned the property since 2012, and intends to own the property for several years. The length of the abatement period is necessary to: one, avoid economic hardship that would result if required to immediately abate the use of the property, and two, allow the owner to evaluate different options to address the non-conformity. 1 C. How long was the use operating prior to the date of nonconformity? Historic aerial photos indicate the encroachment was in place prior to 1989, prior to the applicant's interest in the property, and prior to the 2008 Subdivision Code Section 19.04.035 amendment to prohibit the construction of structures across a property line. D. What is the suitability of the structure for an alternative use? The structure was an addition to The Village Inn restaurant next door at 127 Marine. It is not suitable for a use other than to serve the restaurant. An alternative use at the site would require demolition of the restaurant addition and construction of new structure(s) to meet City codes. E. Will there be any harm to the public if the use remains beyond the abatement period? No, the structure has been there since the 1980's. It serves as storage and access for the restaurant from the alley. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. The restaurant addition has been in place for over 30 years, and it is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public. F. What is the cost and feasibility of relocating the use to another site? It would not only be cost prohibitive, but also infeasible, to relocate the use, since it is used for food preparation and storage for the adjacent restaurant, The Village Inn. G. Is there any other evidence relevant to the determination of whether an extension of the abatement period is required to avoid an unconstitutional taking of the property? If the owner were required to abate the property immediately, that deprivation of the restaurant storage/food preparation use at the property would result in not only the taking of this property but also significantly impact the viability of the restaurant adjacent. The food preparation and storage area is necessary for the on-going restaurant operation in order to meet the Planning Commission's condition to the existing Conditional Use Permit that the restaurant "...shall make a good faith effort towards the goal of increasing the percentage of food sales to 40% or more..." Note that the restaurant is currently achieving 42%food sales (and trending upwards), thereby meeting the goal of 40%food sales. 2 S4 The City has been aware of the restaurant addition since 2001, when building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the restaurant addition extending beyond the property line at that time. 3 S5 Hearing Officer-October 17, 2016 Item No. 1a: Additional Materials 123 Marine Avenue(PA2016-133) From: Wisneski, Brenda Sent: Friday, October 14, 2016 10:08 AM To: Garciamay, Ruby Subject: FW: Village Inn For distribution and the Hearing Officer and posting. From: Mike Sullivan [mailto:sullivanphoto@roadrunner.com] Sent: Friday, October 14, 2016 10:05 AM To: Wisneski, Brenda Cc: Brandt, Kim; Suzanne Savary; Peter Bergman Subject: Re: Village Inn Thank you. That would be helpful. Does he have an email address you can give us? Thanks, Mike On Oct 14, 2016, at 9:54 AM, Wisneski, Brenda<BWisneski(a,newportbeachca.gov>wrote: Mike, Thank you for your comments. If you wish your comments to be considered by the Hearing Officer, we will forward them on your behalf. Please let me know. Thank you, Brenda From: Mike Sullivan [mailto:sullivanphoto@roadrunner.com] Sent: Friday, October 14, 2016 9:36 AM To: Wisneski, Brenda; Brandt, Kim Cc: Suzanne Savary; Peter Bergman Subject: Village Inn Dear Brenda— Last I checked, your staff report has not been corrected. How is the hearing officer going to adaquately assess the the situation or our objections unless he is given correct information? The correct information needs to be supplied by you in your report. We don't want to squander our three minutes each, by correcting your report. Here are just some of what I mean. These items need to be fixed in the report before the hearing or the hearing needs to be postponed. Page 3. "In 2001, building permits were issued for maintenance issues such as drywall, replacing a door and lighting fixtures." Not exactly! One does not get a building permit for maintenance. Calling it "maintenance" might be a way to promote the narative that this structure was there for a very long time, such as the false claim that it was there since the "eighties." They called it a remodel. You called it "maintenance." i Hearing Officer-October 17,2016 Item No. 1 a: Additional Materials 123 Marine Avenue(PA2016-133) It is my recollection that the space between the residence and the restaurant was a covered breezeway, and the old door on the alley was a shoddy attempt to enclose the breezeway. Creating a real door and a wall spanning the two buildings completed the enclosure, making the breezeway an illegal four sided structure. It wasn't just a door, it was a door and a wall to span the entire width between buildings. The "maintenance" of drywall appears more like new instillation to cover the ceiling joists. Look at the price tag, $2300 in 2001. Someone is being snookered either back then or right now. In any case, this was more than just maintenance of an encroachment across a property line. Most importantly though, it was also the construction of an interior door connecting the commercial establishment with a residence for the obvious purpose of additional illegal use. And this was new, not maintenance, and not the eighties. This should have been red flagged as more than a mere encroachment, but illegal use, with code enforcement notified, and immediately corrected. This was malfeasance that can't be fixed now by doubling down on more damage to us. Page 3. "The aerial photos support the property owners claim that the structures have been in existance for decades." FALSE. The photo in staff's report shows nothing of the kind. This photo shows a continuous break between the two buildings from Marine Ave. all the way to the alley, with the single exception of a five foot roof to an open breezeway, which I had told you about over a year ago. It was the extension and enclosure of that breezeway, signed off by your inspector at the same time he noticed the shed having been built—that made it all illegal. And the city ignored it. If they were going to kiss it off, they would have been better not to mention the new shed. A breezeway between two buildings is not a structure. When you close it off at one end by building a shed, and at the alley on the other end with a wall and a door, then you have a four sided structure — an illegal one. And if you then connect the two buildings (one commercial and one residential) with an interior door you have further violated the city zoning laws. And none of this happened in the "eighties." I would gladly correct myself if there are meaningful photos that contradict my memory. I am currently looking for old photos of my own in case there is a stray shot of next door. My guess is late nineties for some of it, but obviously 2001 for the malfeasance mentioned. Page 3. "Because of the evidence provided in the aerial photos and the permits which were issued to maintain the area in 2001, it is the director's determination that the subject addition was lawfully established." FALSE. ERRONEOUS DETERMINATION based on false premises. The photo in staff's report "determined" the opposite. There is no structure that I could see in that photo. The "maintenance" appears not to be the repair of drywall but 2 Hearing Officer-October 17,2016 Item No. 1a: Additional Materials 123 Marine Avenue(PA2016-133) to install it in what had been a breezeway. And it was not just a door that was replaced but the entire wall and door that completed the enclosure. Since the director cited these unfounded conditions as reason to justify the recommendation, then it would be fair to say that the hearing officer should ignore that recommendation. Page 4. "The current owner, after purchasing the property in 2012, implemented upgrades to the restaurant interior." FALSE. These upgrades were to strip the place bare and dump all the broken equipment and furniture into the yard right next to my house for 4 months. The "upgrades" did include illegally tearing down the sound barrier behind the stage and enlarging the stage in violation of building codes and section 6 of their newly acquired entertainment permit, resulting in four years of torment for my family from their band music, which because of this illegal deconstruction can be heard in our house. And astoundingly, your own building inspector signed off on this illegality as well! And when code enforcement was notified, they also did absolutely nothing to enforce correction, and my family suffered. When code enforcement finally did order a correction a year and a half ago, still nothing happened, and you continued to advocate for them and make excuses to us about why there was no enforcement on this deconstructed sound barrier. Page 6. "The city of Newport Beach adopted an ordinance in 2010 which requires non residential uses located on residential properties shall be discontinued within one year unless an extension is granted by the hearing officer." NO EXTENSION WAS GRANTED. That was six years ago, even though the city knew about these illegal structures since 2001. Why not start the abatement period right then as the ordinance required? Or why not a year and a half ago when your office and you personally were made aware of these violations? You allowed them to stall for six years, and now recommend an extension for another ten years. That grants them a total gift of a 25 year extension beyond the date when the city should have taken some kind of action. An abatement extension of such magnitude amounts to a de facto variance. The city charter prohibits a variance for use. The charter also states that when there is a conflict between ordinances or statutes, the more strict will apply. We shall see if that happens. Page 34 section E. Will there be any harm to the public if the use remains beyond the abatement period? "No, the structure has been there since the 1980's. It serves as storage and access to the alley." No? How do you know that? Do you live next to it? First it has not been there since the 1980's. But it was once used for storage which made it tolerable. But these owners have demonstrated a disregard for the neighborhood. So now it's used as a food prepararion area, from which we hear the pounding (we think of meat or 3 Hearing Officer-October 17,2016 Item No. 1 a: Additional Materials 123 Marine Avenue(PA2016-133) something) and the chopping of something, maybe vegetables, plus the other various kitchen noises. It's very annoying right next door, especially when it was not that way until these owners. This is no longer the once beautiful and quiet yard next door that we once enjoyed. Please forward us the email address for the hearing officer so we can apprise him of these corrections before the hearing. Thank you. Mike Sullivan Begin forwarded message: From: Mike Sullivan<sullivanphoto&roadrunner.com> Subject: Re: Village Inn Date: October 12, 2016 at 9:15:20 AM PDT To: "Wisneski, Brenda" <BWisneskiknewportbeachca.gov> Cc: "Brandt, Kim" <KBrandtknewportbeachca.gov>, "Harp, Aaron" <ahgM&newportbeachca.gov>, "Torres, Michael" <mtorresknewportbeachca.goy>, PETER J BERGMAN<piber mg an4kgmail.com>, Suzanne Savary<drsue@aol.com> Brenda—I have read your staff report. It contains numerous false statements, too many to address here. Just one example I have lived next door to the property in question for thirty eight years. These encroaching structures have not been here since the 1980's. They were canopies for shade. Your own building inspector illegally signed off on the conversion of one of these into a structure in 2001, and noted the recent construction of the other. This malfeasance cannot be covered up now by the city pretending otherwise. No one "required" the current owner(as stated)to purchase a property with obvious illegal structures. And the illegal use of the residential garage started with these owners. The garage to the residence was often used by the previous residential tenant for his car, and was empty when the current owner took over. There is so much more that is inaccurate in your report that we don't have time to correct it before the hearing. You have made this information available to us five days before the hearing. We need more time than that to prepare. How do we formally request a postponement of this hearing? Thank you, Mike Sullivan 4 Hearing Officer-October 17, 2016 Item No. 1b: Additional Materials 123 Marine Avenue (PA2016-133) LUTA. & GLUSHON ATTORNEYS 16255 VENTURA BOULEVARD,SUITE 950 Century City Office ENCINO,CALIFORNIA 91436 1801 Century Park East,Suite 2400 TEL: 818907-8755 Los Angeles,CA 90067 FAX: 818-907-8760 October 14, 2016 VIA PERSONAL DELIVERY City of Newport Beach Hearing Officer 100 Civic Center Drive Newport Beach, CA 92662 Re: 123 Marine Avenue PA2016-133 Dear Hearing Officer: Our law firm represents Marine Avenue Neighbors, a coalition of residents in the immediate vicinity of the Village Inn who are most directly impacted by its request for extension of the required Abatement Period specified by section 20.38.100 of the Newport Beach Municipal Code ("Project"). As set forth below, the City does not have the„-authority to simply "declare" the encroachment between the 123 and 127 Marine Avenue to be legal non-conforming. By law, legal non-conforming status of a structure must be supported by validly issued building permits. See City and County of San Francisco v. Board of Perrnit Appeals (1989) 207 Cal.App.3d 1099, 1107. Without such legal non-conforming status, the Applicant is not and cannot be entitled to any extension of an Abatement Period, as provided for in Newport Beach Municipal Code ("NBMC"). See NBMC sec. 10.38.020.A ("[t]he provisions of this chapter shall apply to all legally established uses and structures that become nonconforming due to reclassification, ordinance changes, or annexations). Accordingly, any action on the part of the City to approve the requested extension of Abatement Period would be illi. Hearing Officer-October 17, 2016 Item No. 1b: Additional Materials 123 Marine Avenue (PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Two 1. The encroachment is not and cannot be "legal-nonconforming" Under the NBMC, sec. 20.16.020.B, permits "shall" be obtained before the proposed use is commenced or the project is constructed and any activities associated with the use are commenced, or otherwise established or put into operation. Under NBMC, sec. 20.16.030.A.1, all permitted uses are expressly subject to compliance with all applicable provisions of this Zoning Code, issuance of a zoning clearance, and any building permit or other permit required by the Municipal Code. Moreover, NMBC sec. 20.38.030.B.2 specifically provides that a "use shall not be considered to have been "lawfully established and maintained" and is an illegal use if it was established or operated without required permits and licenses, including permits and licenses required by any Federal, State, or local government agency."" Here, it is uncontested that there is no evidence whatsoever that a building permit was ever applied for or issued for an addition to the restaurant which encroaches onto 123 Marine. It is further uncontested that, since 2008, under NBMC sec. 19.04.035, structures which cross a property line are illegal. Thus, having_never__been legal__and con,Lorming to the NSMC, the encroachment cannot now acquire the status of "legal non-conforming." See NBMC sec. 20.38.030B (a non-conforming use is "[a]ny use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City, shall be deemed to be a nonconforming use); Countzj of Sonoania v. Rex (1991) 231 Cal.App.3d 1289, 1297 ("A nonconforming use is one which lawfully existed prior to the effective date of the zoning restriction and which continued thereafter in nonconformity with the ordinance"). 1 In fact, as set forth above, to be a legally conforming use, the encroachment must have become "non-conforming" by reason of adoption or amendment of this Zoning Code or by reason of armexation of territory to the City. See NBMC sec. 20.38.030.B. It is not contested that this criteria is not met here. Hearing Officer-October 17, 2016 Item No. 1b: Additional Materials 123 Marine Avenue (PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Three As this Hearing Officer is well-aware, City staff has absolutely no authority to make such illegal structure, administratively "legal," in violation of both the NBMC and caselaw authority. Notably, the burden of proof is on the party asserting a right to a non- conforming use to establish the lawful and continuing existence of the use at the time of the enactment of the ordinance. On this point, the Courts have been clear: where an owner's use of property is not lawfully established,but rather, from the beginning operated in violation thereof, the property owner is not entitled to the benefit of the doctrine of pre-existing non-conforming use. Melton v. City of San Pablo (1967) 252 Cal.App.2d 794, 805; City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1107 (Court rejected that a structure was entitled to the benefit of the doctrine of pre-existing non-conforming use and rejected claim that it was "unfair to expect a property owner to come up with documentation when so much time has elapsed and city records are incomplete"). Here, that burden has undoubtedly not been met. 2. The findings for an extension weigh against the„extension. a. The length of the abatement period in relation to the owner's investment in the use; When the applicant purchased the property in 2012, he did so with the clear knowledge that the encroachment was, in fact, illegal (the Applicant admits as much when he admits that he had to purchase both properties as a result of the encroachment). He now seeks a reward of 10 years (!) for his knowledgeable violation of the law. Having moved forward with full knowledge, the applicant cannot now claim hardship. This finding weighs heavily against the extension. b. Length of time the use was operating prior to the „date of nonconformity; Again, this finding does not and cannot weigh in favor of the applicant because, as set forth above, the encroachment is not and cannot be legal non- conforming. Hearing Officer-October 17, 2016 Item No. 1b: Additional Materials 123 Marine Avenue (PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Four c. Suitability of the structure for an alternative use.- Staffs se;Staff's comment that "it would not be appropriate" for the setback area where the encroachment is located to be used for an alternative use is absurd. It is always "appropriate" to use the setback area for its intended legal use as a setback area. In fact, next to residential development, a setback area from the restaurant is the most appropriate use. Therefore, this finding also weighs against the extension. d. Harm to the public if the use remains-beyond the abatement period; and Staff's comment that the encroachment is "compatible" with the surrounding land uses is not supported by any evidence, let alone substantial evidence. In fact, use of the restaurant, a commercial use, encroaching into the residential area has caused severe impacts onto the neighborhood, including severe and unabated noise impacts. It is the applicant's duty and responsibility to operate his business in a lawful and respectful manner - he has failed to do so. Therefore, this finding also weighs against the extension. e. Cost and feasibility of relocating the use to another site. The fact that the relocation of the encroachment would be at a cost does not in and of itself warrant this finding to weigh in favor of the extension. All business, improvements thereto and operations thereof require costs. Such costs need to be weighed against the impacts and harm to the surrounding residential neighborhood. Clearly it would be a lower cost for the applicant to abide by Code and remove the encroachment than it would for all surrounding neighbors to soundproof their homes and lose enjoyment of their backyards. This finding heavily weighs in favor of the neighbors. 3. A Categorical Exemption from the California Environmental {duality Act is not appropriate. In an attempt to comply with the California Environmental Quality Act ("CEQA"), staff recommends adoption of a Class 1 Categorical Exemption for Existing Facilities. This is in error. Hearing Officer-October 17, 2016 Item No. 1b: Additional Materials 123 Marine Avenue (PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Five As a preliminary manner, the exemption fails on its face because, for all of the reasons set forth above, the encroachment is illegal. An illegal structure cannot be considered an"existing" facility. Furthermore, CEQA prohibits use of a categorical exemption when "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)). The "unusual circumstances" exception is established without evidence of an environmental effect upon a showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 CalAth 1086. Here, the encroachment for which the applicant seeks extension of the required Abatement Period constitutes a commercial use on residentially zoned property. Such unusual circumstances cause adverse and disproportionate impacts, such as noise, onto the residential community, impacts which would not be as severe if the use was appropriately confined to commercially zoned land. Therefore, the existence of the commercial encroachment on residentially zoned property distinguishes the Project from others in the exempt class, and the use of the within Categorical Exemption is not appropriate. For all of the reasons set forth above, Marine Avenue Neighbors request that the Hearing Officer de gay the illegal re nest for extension of the required Abatement Period specified by section 20.38.100 for the proposed Project. Very truly yours, LUNA & GLUSHON ROBERT L. GLUSHON Hearing Officer-October 17, 2016 Item No. 1c: Additional Materials 123 Marine Avenue (PA2016-133) From: Wisneski, Brenda Sent: Tuesday, October 18, 2016 8:17 AM To: 'Mike Sullivan' Cc: Peter Bergman; Suzanne Savary; Garciamay, Ruby Subject: RE: Clarification on V.I. building permit Thank you. This will be forwarded to Mr. Connor and included in the public record. From: Mike Sullivan [ma ilto:suIIivanphoto@ road run ner.com] Sent: Tuesday, October 18, 2016 7:51 AM To: Wisneski, Brenda Cc: Peter Bergman; Suzanne Savary Subject: Clarification on V.I. building permit Hi Brenda would you please pass this along to Bill Connor. Hello, Bill. Thank you for yesterday. I was very impressed and learned a lot. I do want to clarify why the 2001 entries I brought up are so critical to the decision by the director to declare the bootlegs legally non conforming. Correcting the timeline from "the eighties" to 2001 was the least important part of my point. A reading of the timeline between March 2001 and June 2001 indicates that someone in the city was bamboozled or chose to look the other way. The first entry was a neighbor complaint about the construction. The inspector described it correctly—new unpermitted construction, but did nothing further, even though it went beyond structure codes and into zoning violations. About that, he did nothing. Code enforcement should have been notified. That did not happen. The subsequent entries appear to be attempts to get the city to sign off on "Remodel" permits, as if the building had been pre-existing, hoping maybe that would create the illusion of legality, or even better, a new building permit. But there never was one. I could find no evidence of a new building permit that would justify a ruling of legal non conforming. Thanks for reading this, Mike Sullivan i Hearina Officer - October 17 2016 Item No. 1d : Additional Materials Staff 123 Marine Avenue PA2016- 133 NO. REVISION DATE „+ (E)16'-5" THE VILLAGE INN o -� PROPOSED SITE IMPROVEMENT PLAN I I m z 6° (E)SI6N 127 MARINE AVENUE BALBOA ISLAND, CA 92626 I 1 I _------- ncc(E)51GN — > 0)Q Q� �O Ll 0 _ —-- _— 6 � �Q � - Q Fn06 ® co- 4 - - -t I ♦ — — r^ oco 50'-0"t - - 5'-O" N.T.S. - 04 Am5 �I - O ® 2 I L &ENS e 5r;� \\/ SJAL I ZA7 1 ®N 57AU AN7 O I 4 7 7 — ❑I (E) PROPERTY LINES �2 (E) 51 DEWALK � �J �3 EXISTING b' WOOD FENCE L � �4 REMOVE (E) WINDOWS AND ADD FULL HEIGHT BI-FOLD SOUND ATTENUATING B DOORS FOR NEW 4' PATIO ACCESS FOR 7 INDOOR/OUTDOOR TABLES 1 2 F- - NEW 56" HIGH METAL RAILING FOR DINING PATIO - A—�j (E) LANDSCAPECO i' U) co G W �J (E) SOUND ATTENUATININDOW _'- -' Z ELEY. r. W LLi rn I - (E) SOUND ATTENUATING EXIT DOOR (E) ADA ACCESS RAMP W0 s W ID NEW CONCRETE AREA FOR 10 BIKE RACKS, MIN. (TH15 EOUAL5 20 BIKES, MIN.) Z Z J Z z Q I I NEW LANDSCAPING FOR SCREENING BIKE RACKS J w a _j 00 O � Q I L > CC C\1 CC r O 8 0�, -2 5KE CAFAC,, 7� F C7 I :20 5H<E5 70 F5E m RESTAURANT — — — EXIT PATH OF TRAVEL _ _ ��® ® � (SEE FLAN) O J7®RA6E cim I 20 BIKES 9 p (SEE SPECIFICATIONS ON SHEEET A-3) F_ MINIMUM +' f J 5 -oil4I I 24-O north W i F � � PROPOSED 01-P SITE W 55'-011± b'-I"t r i BIKE RACK LOGA71ON5 Balboa Island UP (SEE SHT. A-4 i A-5) LU Uj LM CD > rx _ .-. I �, 00 ND N Y O (L '`�'��.,'� ► rip OIP�rlc'4�s �...: _.t �. ..� Av+e ,.,. �. .. r r 0 0 15 1 G L RGE p 0 = 0 0 0T ° uhf ggaykw - - - - - - - - - - - - - - - - - - 12� MARINE AVENUE � DATE: 8/29/16 500ft g26B6 A ISLAND, GA 100m DRAWN BY: TRUAX PROJECT NO. THE VILLAGE INN 5 I T FEAN SHEET SCALE: 0 JAY A.TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. Hearing Officer-October 17,2016 Item No. 1e: Additional Materials(Staff)-(PA2016-133) From: Wisneski, Brenda Sent: Wednesday, October 19, 2016 12:07 PM To: Ibslawstuff@yahoo.com' Cc: Garciamay, Ruby Subject: Village Inn Abatement Attachments: HO Memo.pdf Hello Mr. Conners, Attached is a memo from the Community Development Director confirming her determination that the subject property is legal nonconforming. As stated, she maintains this determination after reviewing the evidence submitted at the October 17, 2016 Hearing Officer hearing. This memo will be included in the public record and distributed to interested parties. Additional information is expected from the applicant, as you requested. Please let me know if you have questions. Brenda Wisneski,AICP Deputy Community Development Director (949) 644-3297 City of Newport Beach I Planning Division 1100 Civic Center Drive I Newport Beach,CA 92660 A responsive,knowledgeable team ofprofessionals guiding community developmentm the public interest 1 Hearing Officer-October 17,2016 Item No. le: Additional Materials(Staff)-(PA2016-133) PO CITY OF NEWPORT BFf O ��+ COMMUNITY DEVELOPMENT DEPAP � p h {�� 100 Civic Center Drive C} = Newport Beach,California 92660 949 644-3200 C) newportbeachca.gov/communityclevelopment Memorandum To: William Connors, City of Newport Beach Hearing Officer From: Kim Brandt, Community Development Director Date: October 19, 2016 Re: Village Inn Abatement Extension (PA2016-133) - 127 Marine Avenue It is my understanding that during the October 17, 2016 public hearing on the above application, a member of the public referenced the City's website which indicated on March 28, 2001 an entry was made regarding the subject property which stated the following: "Village Building breezeway attaching restaurant to the house next door and are enclosing. Also built a shed. Working at night also." (See Attachment 1) This entry, referenced as C2001-0187, documented a complaint received by the City. The City's internal notes in respect to this complaint, includes the following comment from the building inspector who visited the property on March 29, 2001: "Talked to proprietor re. complaint (currently stop work for door installation). He will obtain planning approval prior to further correspondence."(See Attachment 1) Both the complaint and corresponding follow-up City inspection in March 2001 were precursors to the City's July 30, 2001 building permit issuance for the remodel of the subject building area. (See Attachment 2) This information does not change my determination made on August 30, 2016, that the subject building area is legal non-conforming use. Attachments: 1. Complaint Entry (3/28/01) and Building Inspectors Comment (3/29/01) 2. Building Permit, June 26, 2001 Community Development Department Hearing Officer-October 17,2016 Item No. le: Additional Materials(Staff)- PA2016-133) 10/18/2016 Permits Online-Permit In ormation Requested permit number: C2001-0187 Permit Number C2001-0187 Status FINAL Work Description Village Built breezeway attaching resturaunt to the house next door and are enclosing. Also built a shed. Working at night also. Occupancy Class Code Sub Type No. of Bldgs. 0 Insp. Area 2 Entered Date 3/28/2001 Validated by SH Date Applied 3/28/2001 Inspection Area 2 Date Approved Assigned Inspector Don Taylor Date Final 3/29/2001 Inspector Phone 949-644-3263 Date Activity Expires C2001-0187: Entries for 1tem:1520 - NO PROBLEM FOUND 15:29 10/18/2016 Action Comments By Date Unique_ Key AP TALKED TO PROPIETOR RE:COMPLAINT PSOBEK 03 912 001 A0006875 (CURRENTLY ON STOP WORK FOR DOOR 96 INSTALLATION).HE WILL OBTAIN PLANNING APPROVAL PRIOR TO FURTHER CORISPONDANCE. Total Rows: 1 Hearing Officer-October 17,2016 Item No. le: Additional Materials(Staff)-(PA2016-133) F << a City of Newport Beach Building Department CIP Permit No: 132007-7972 U - PO Box 1768 Newport Beach,California 92658-8915 Permit Counter Telephone(849)444-3288 Inspection RequestsTelephone(949)644-3255 - Job Add-ess:127 MARINE AVE Floor: Suite:-.._ ... ..Bldg:i-. Qescription of Work: REMODEL REAR ENTRYWAYIDOORIDRYWALL - - 1618-2001 Inspector Area: _ . ._.. _ _ Legal Desc: Owner: TOLL,THRESA&GEORGE Contractor- ��pp Architect: Address: 1841 LERWER LN Address: Address: - SANTA ANA, CA 92705 _ Phone: 714!731-0423 Phone: Phone: State Lie: Applicant: TOLL,THRESA&GEORGE Con State Lie: Engineer: Address: 1841 LERWER LN Lic Expire: Address: SANTAANA, CA 92705 Bus Lie: Phone: 714!731-0423 Lie Exp Dale: Phone: State Lie-. Cade Edibon: 0 Workers'Compensation Insurance Designer: Type of Construction: Carrier: Address; _ Occupancy Group: Policy Nd: Added/New sq.ft.Bldg: Expire: Phone. Added/New sq.ft.Garage: - - .... ..... - -- -- - --No of Stories: Building Setbacks Rear: ! Special Conditions: No of Units: Front: ! - - - - - -- Left: - -1 . . ... __ Issued: Right: ! Use Zone: RSC Receipt# Parking Spaces: FEES - Construction Valuation: $2,300,00 _ Building Permit l=ee;. $66-.95 ..- .- Microfilm;- $1:32 Hazardous Mat -_ -..._ __:_-__-- _$0,00 :__-.__ -Fire_D_ep_artment:__ Plan Check Fee: $48.20 Excise Tax: $0.00 Add Fire Dep HMQ: $0.00 Plan Review Fee: $0.00 Supplemental: $0.00 Park Ded: $0.00 Other Fee: $0.00 Inspection Fee: $0.0.0 _Investigation.Fee:,. $tla}l}_:.-. - SJH-Trans: - _$0.110 Clean Up Deposit: _$200.00 - - San Dist:. $0.00 Counter Review.:.. -- Energy Compliance: $6.00 Ca Seismic Safety: $0.00 Zoning Plan Check: $27.15 Fair Share: $0.(10 Disabled Review: $6.00 OverTime Plan Check Fee: $0.00 ..TOTAL FEE 343.62 TOTAL PAYMENT :L48.20 TOTAL DUE: $295.42 - PROCESSED BY: - OTHER DEPARTMENT: ZONING APPROVAL: ——_ PLAN CHECK BY: - FIRE APPROVAL: - _.. _ .. APPROVAL TO-ISSUE: __.....GRADING-APPROVAL: - -- ------- --_ - _ - - WORK1 US•T BF-STARTED WITH A PERIOQ OF-180 DAYS FROM THE DATE OF VALIDATION - OR THIS PERMIT BECOMES NULL ANU VOID. _ PUBLIC WORKS: Hearing Officer-October 17,2016 - — Item No. le: Additional Materials(Staff)-(PA2016-133) APPROVALS DATE $}' COMMENTS oWNeR.eulLoeR DECLARATION FOUNDATION,: Y � ROUGH GRADE c , LINE&GRADE(,ERTJSETBAC,KS QEGIli[tJlilOM OF COIIPEIAMUE VfTN .EREDERAL REMAIJONS CTION PADS :M: , c,€.:f,..< .Mr r. .,L.,E FOOTINGS b ©r S� ED QTTAMRE30S 1 ,1_.k l .<� r ` 1- r: .:r; Y r , SLAB ON GRADE V h 11r , > Tr rli'.�Ci I..-. ,.f. a VA FRAMING: , ASBESIC I{OI[ r x E , f R r•f - t 1 -t- -F k DECK SLAB ?-r ,, r...raE...c.. n -, ;�7 F� r ,, SLIBFLOOR ....,yr•-.:.i5 ,- __..v ROOF&BUILDING HT SUMATURE: EXT,SHEAR'HOLD DOWNS -.;i- GENERAL FRAWNG FIREPLACE THROAT - LICENSE€]CON'TRAMOKSDEC:'ARATIOII4 -. . INTERIOR&EXTFRiOR 1 fNSULA310- DRYWALL SUSPENCED CEiLiNG SHOWER LAFH WORKER5'COMRENSATION DECLARATION — EXTERIOR LATH SCRATC i (PLI,SI ER} (2DAY, 4€ s I'vAASONRY PRE-GROUT :,; .,.;..•a.l „'r 01 !�91SC. IN;PEC'IONS_ - - — 711 - -- -. -_ .-- -- - - -- ----- - - - - .l^JIff.F:..'-_.,:hr..>,,.. -.� 'e.�i..i .....:., `'A.-',ti..,n. PERMIT EXTENSION ------- --- 1 ST EXP-LETTER 2NI) EXP.LETTER BUILDING FINAL CON.rRUr-Tiari',VINDINGAGENCY CERTIFICATE;.,F OCCUPANCY TE31ANT NALL.!E DATE .- Tc 1 r4� TYPE OF BUSINESS iJSE,. - 1�[J '!_ 1 1 - - --- TO Li O. b, Hearing Officer-October 17,2016 Item No. le: Additional Materials(Staff)-(PA2016-133) City of Newport Beach Building Department ELECTRICAL Permit No: E2001-0961 IiILA PO Box 1768/3300 Newport Blvd, Newport Beach,Caiifarnia 92658-8915 Permit Counter Telephone(949)1644-3288 Inspection RequestsTeiephone(949)644-3255 Joh Addrqss:111 MARINE AVE I Btdg:1 Floor: Suite_ Description of Work: REMODEL REAR ENTRYWAYIDOOR/DRYWALL 82001-1972 /718 C Inspector Area: Code Edit:96 Legal Desc.: tQ INSPECTOR NOTES: Owner: TOLL,THRESA&GEORGE Contractor: Address: 1641 LERWER LN Address: SANTA ANA, CA 92705 Phone: 7141731-0423 Phone: Con.State Lic.: Receipt#: Lic Expire: Bus.Lic.: Processed By: Lic.Exp Date: FEE New Construction Receptacle/Switch/Outlets Motor-v Transformers HP/I(VA Temp Power Pole 0 $0.00 Residential ReceplOutlets 0 $0.00 0 to 1 HPIKW/KVA 0 $0.00 Temp Underground 0 $0.00 Multi-Family 0 $0.00 Fixtures 1 $0.93 1 to 10 HP1KW/KVA 0 $0.00 Sub Panel 0 $0.00 1-2 Famity 0 $0.00 Sep Circuit 0 $0.00 10 to 50 HPIMIKVA 0 $0.00 0 $0.00 50 to 100 HP/KWIKVA 0 $0.00 0 $0.00 Service Signs over 100 HPIKW/KVA 0 $0.00 Record Managment Fee: $0.27 0 to 600V up to 200A 0 $0.00 Branch Circuit 0 $0.00 Investigation Fee $0.00 0 to 600V over 200A 0 $0.00 each Add Circuit 0 $0.00 Piggy Back/Temp Power 0 $0.00 Plan Check $0.23 Over 600A11,000A 0 $0.00 Time Clocks 0 $0.00 Issuance $19.70 Supplemental Fee $0.00 TOTAL: $21.13 PAYMENT: $0.23 BALANCE:$20.90 LICENSED CONTRACTORS DECLARATION I hereby affirm under penalty of perjury that I am licensed under provisions of Chapter 9(commencing with Section 7000)of Division 3 of the Business and Professions code, Aporovals Insuctor/Date and my license is in fullforce and efrect. license No: Class: Contractor: Grounding Electrode WORKERS'COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: Underground I have and will maintain a certificate of consent to self-insure for workers'comhensalion.as provided for by Section 3700 of the labor code.for the performance - - - - - of the work for which this permit is issued. Underslab/Floor _t have and wv94 maintain workers'corrlpensation insurance,as required by Section 3700 of the labor code,for the performance of the work far which this permil is issued. _ My workers'compensation insurance carrier and policy numbers is: Rough Conduit Walls Carrier: Policy number. Expire r This section need not be completed if the permit is for one hundred dollars($100)or less. Rough Wiring Ceilings I certify that in the performance of the work for wh-ch lht�pe-mit is issued.I shall not employ any person in any manner so as to become subject to the workers'compensation laws Rough Service of California,and agree that if I should`eeome sr Sjei:-i It..;:vfke(V compensation provisions of Section 3700 of the labor code,I shall fufhwith comply with those provisions. Temp Power Date:_ _ Applicont Signature: warning:Failure to secure workers'compensation coverage is unlawful,and shall subject an employer to c moral penalties and civil Arles up to one hundred Utility Co.Notified ($100,000),in addition to tho cost of m"rensaUon.dannges as-jto ide-1 for in Sr:=tion 3706 of the labor code,interest,and attorney's fees. Final . I hereby acknowledge hat I hav?read tni-apNicrtion;+hal"ie!ildr-mat'in ever d.correct;and that I am the owner,or duty authorized agent of the owner.1 agree to mn#y with city and sate h-v----gula`r3)onstfiction; a in do:.fig the v.ark authorized(hereby.no person well be employed in violation of the labor code of the state of California relating to workmen's ob in�s7atian insurance. - Permittee Name(Poi t>f �t O r r��1(� _\ ,� \ Address : WORK Mif57 8E STARTED iNfflilN A PERIOD OF 180 DAYS FROM THE DATE OF VALIDATION OR THIS Signature of permitted �C}.�C'J p ���� Q� PERMfrBECOMES NULL AND YGlFD Hearing Officer-October 17,2016 Item No. 1 e: Additional Materials(Staff)-(PA2016-133) L__. _: _ - - - - - - -- - - - - r- - - 4 - ----�- - I -- - - - - — - MARINE Avg_ ; JN0Tjfvv L :CITT OF 1414YOWEACI�T S NOT ' K".Q SC,d_ 9AA--N .�QO_Y; _; - _ &RUEVII 02VMANT OF 1.P.OAL ! - - - r _ 4ONDDWRM()l�q�'0836RV8COVENAPiZ$ tiFS1 RICTlON9 W1NM ` _ n MAY 8$ LDED AQAfNS7 Till 11CH - 3 r, � 1+JOOfy` d� A� �. -- l WPI � AlyOR OBTAINCDMMUNCfY S1f1OCiD A[.OIr PLANS.YOU A25OQA��ACT YOU COMMUNITY lRIOR ro aoz ,rsMl�Nr e• rEtw. tE>f:?AODf A Y %A1, 1tiS1S tmta�IZED t� CmrOFINEWPOATBEACH ENCROACHMENT PERMIT _ SHALLMOBTAINED FiORALL VAMMMOW EASEMENTS&RIGHTS OF u=: V[L�AGE ISN �RE.S:����GE Qr0l������:�� CITY F H P T i iWAOYAI of T>I it olut Ms NOT OOtiSIfTUtE E=fAEf3OA HII'liEt TfMIT fftIL I PoTdlOry�(�3�SA�ur s�0itx�Ei�rtTO�Fx�EnP�0A�1 a ����� �� , .--- I IEICM TMEAi/AOY/100E3M0T�Uli1U1TfE NS AWESF 1SO OP FLi CI Z 0019, fN EDYPWrCE1FlTii Atr.eGAOiAC�iC IOIf9i0 OAOtI1+U1tEs.POf1C1f/.iME Et11 OF atTFPORt/fJl[H AESERRuEE/fNE R1CM1 TO t1 nc /� ]�` �7 VIL.LAGE- ilkN R�.SI a��C �. T�/. f Q�; �;� ,�G pT L�lJol""► t �V�, �� r dGl �.iL��� OFnlI21cuspIlOAT6E�{x BA 1 __ . _ . F�APUtit<IY EMT: NE\4RORT BEAC14 CRAMS - - ---- - - i���iDaC_�` r ,aCft'' v,,/w,�(I� [�O°•(" - - � r ------ - -�- �--i - - - -- - - -- -! -- - r - _ - - •- € --r- -�y-'� - -- --- - A7 Yu101iSGE ► ' s + .� i = ' � SM: TUTS• � •� r -- - - - _ `f_ Yw LE • - --- - �Qr � �o� r�a \a 1l L ff 00roav% Aa. ks saw Ptah �,cz =tom.- ; PLAN &UE VAT CJ { � OV now �oac._is . nT� d•r. °w a .ew.. NOE tllC�t1to �'L�+rhG,-iec� -•�ralr� _ko�o�.f�p�++;� - - TLIT: V L.N_ G�. IN - F _ _ __-: _ - : �_� - :_ : _ • : _ _ Ju rig ZG, zoos: l Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) View toward 123 Marine and Village Inn showing residential front yard, restaurant, restaurant encroachment, and upstairs residential unit (Taken from across Marine Avenue looking toward properties) Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 1E_- FIRM r View of 123 Marine showing residential front yard, upstairs residential unit and restaurant encroachment (Taken from center of the property line at 123 Marine - mailbox in foreground) Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 1 N fi ' FjA 1 t:t P-, 1• Close up view onto 123 Marine showing residential front yard, upstairs residential unit and restaurant encroachment (Taken from southeast corner of Village Inn) Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) r View toward Village Inn showing restaurant and upstairs residential unit at 127 Marine (Taken from across Park Avenue looking toward property) Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) l I View of inner entry door into restaurant storage area encroachment (Taken from alley behind Village Inn and 123 Marine) Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) l ' View of entry door into restaurant storage area encroachment and garage and upstairs residential unit on 123 Marine (Taken from alley behind 123 Marine) Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) ............ .... ............. . PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS BETWEEN ELENA GRAMONTAND U.S. BANK, AS SUCCESSOR.CO-TRUSTEES OF THE THRESA ROBERTA TOLL REVOCABLE TRUST,DATED MARCH 16, 2007 , Seller and CHARLES V. KINSTLER II AND LYNDA KINSTLER, Buyer for the Purchase and Sale of 1.23 and 127 Marine Avenue,Newport Beach California November 3,2011 1�r:1Ciiidy\KinstlerlVillage 1nnlVillage Inn PSADOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) ' F SUMMARY STATEMENT R EMENT This Sununary Statement is attached to that certain Purchase Agreement and Escrow Instructions by and between Seller and Buyer referenced below and is for reference purposes only except for the addresses for notices set forth in items 9 through 12, which addresses are incorporated into the Purchase Agreement as if frilly set forth herein. If there is any conflict between this Summary Statement and the Purchase Agreement, the terms of the Purchase Agreement shall control. 1. Effective Date of Purchase November 3, 2011 Agreement: Elena Granlont and U.S. Bank, as Successor Co-Trustees 2. Seller: of the Thresa Roberta Toll Revocable Trust, dated March 17, 2007 3. Buyer: Charles V. Kinstler and Lynda Kinstler or assignee 4. Property Description: 123 and 127 Marine Avenue, Newport Beach, California Acreage: acres Improvements: square foot mixed use building square foot residence 5. Decision Date: Sixt (GO) days after the Effective Date 6. Deposits- First Deposit: W business days after the Opening of Escrow Second Deposit: the expiration of the Feasibility Period 7. Purchase Price: 8. Close of Escrow: Thirty (30) days after the expiration of the Feasibility Period 9. Buyer's Address for Notices: Charles V. Kinstler 11 I W:ICiitdylKinstlerWiliage InnWillage Jim PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) v , With a copy to: Ross Wersching &Manisco LLP 3151 Airway Ave. Building S-1 Costa Mesa, California 92626 Attention: Cynthia M. Wolcott Telephone: (714) 444-3908 Facsimile: (714) 444-3901 email: cwolcott ,'assllp.con-t 10. Seller's Address for Notices: Elena Gramont, Successor Co-Trustee 2841 Country Vista Thousand Oafs, California 91362Attention: Facsimile: With a copy to: Russo & Duckworth, LLP 9090 Irvine Center Drive, Second Floor Irvine, California 92618 Attention: J. Scott Russo Telephone: (949) 752-7106 Facsimile: (949)7520629 email: srusso russoandduckwor-th.corn 11. Escrow Holder's Address for Orange Coast Title Company Notices: Escrow Officer: Escrow No. Telephone: Facsimile: email: ( e 6,64'x'l 12. Title Company's Address for Orange Coast Title Company Notices: 40 N YJ.�� S - ! CLQ q `?16 Title Officer- " lf� er^ ado Title Order No: � (- t Telephone: Facsimile: '7 Q70 i»j f email: W:1CindylKins€ler\Village InnWillage Inn P5ADOC ------ Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS THIS PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of November 3, 2011 ("Effective Date"), by and between ELENA GRAMONT AS SUCCESSOR CO-TRUSTEE OF THE THRESA ROBERTA TOLL REVOCABLE TRUST,elated Mauch 16,2007 ("Seller"), and CHARLES V. KINSTLER II AND LYNDA KINSTLER OR ASSIGNEE ("Buyer"), with reference to the following: A. Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller the following: (i) fee simple title to that certain real property located in the City of Newport Beach("City"), County of Orange ("County"), State of California, and more particularly described in Exhibit "A" attached Hereto (collectively, the "Land"); (ii) all structures, improvements and fixtures affixed to or located on the Land including, without limitation: (a) the mixed use building (the "Village Inn Building") used in part by Balboa Island Village Inn, Inc. ("BIVI" or Village Inn Tenant") and being operated as the Village Inn restaurant and bar, (b)the single family residence (the "Residence") which is currently leased to Larry Wilson (the "Residential Tenant") (collectively, the "Improvements") (the Village Inn Building and the Residence shall be collectively referred to as the "Buildings (iii) any and all of Seller's right,title and interest in and to all rights of way, casements, privileges,rights, interests, claims, oil, gas, minerals and mineral rights, water and water rights, entitlements and development rights, in any way belonging or pertaining to the Land and the Improvements, and an),and all other rights appurtenant, adjacent or connected to the Land and the Improvements, and any and all of Seller's right, title and interest, if any, in and to all adjoining streets, alleys, private roads, parking areas, curbs, curb cuts, sidewalks, landscaping, sewers and public ways, if not part of the Land or the Improvements (collectively, the "Appurtenant Rights"); (iv) any and all of Seller's right,title and interest in and to all tangible and intangible personal property situated upon or related solely to the Land and/or the Improvements, including, without limitation, all furniture, fixtures, tools, equipment, appliances,machinery, inventory, computer programs and software, tenant improvements, all licenses, certificates of occupancy, variances, conditional use permits, approvals and the like from the City and any other governmental authority affecting the design, development, management,use, ownership or operation of the Land and/or the Improvements,the name "Village Inn," and any other intangible rights and properties affecting or relating solely to the design, development, management, use, ownership or operation of the Land and/or the Improvements, and all plans, specifications, engineering reports, soils reports and other technical descriptions and materials relating to the Land and the Improvements if in Seller's possession or control (collectively, "Personal Property"). Personal Property does not include any items of personal property which are owned by Tenant; \V:\CindyWinstler\Villa-p-lnnWillage[nn PSA.DOC == Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 3 (v) any and all of Seller's right, title and interest in and to any oral or written lease, if any,pertaining to the Property ("Leases") together with all rents due thereunder (Rents"); and (vi) any and all of Seller's right, title and interest in and to all contracts, agreements, guaranties and warranties affecting the ownership, operation, maintenance and management of the Land, the Improvements or the personal Property ("Contracts"), which Buyer has elected to assume by written notice to Seller no later than the Decision Date. The Land, lmproventents and Appurtenant Rights are sometimes referred to collectively herein as the "Real Property." The Real property, personal Property, Leases and Contracts are sometimes referred to collectively hereiti as the "Property." B. This Agreement shall also constitute escrow instructions of Buyer and Seller to Orange Coast Title Company ("Escrow Holder") for its escrow denominated in the Sun3111ary Statement ("E scrow"). NOW, THEREFORE,Buyer and Seller agree, and Escrow Holder is instructed, as follows: 1. Incorporation of Recitals. The above Recitals to this Agreement are hereby incorporated by reference into this Agreement. 2. Purchase and Sale. Upon all of the terms and conditions contained in this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, the Property. 3. Purchase Price. The purchase price for the roperty ("Purchase Price") shall be The Purchase Price shall be payable as follows: 3.1 First Deposit. Buyer shall deposit into Escrow the amount of go r other immediately available funds (the "First Deposit upon the Opening of Escrow. 3.2 Second De asit. Upon the expiration of the Feasibility Period and provided that Buyer does not elect to terminate this Agreement pursuant to Section 6.5 below, Buyer shall deposit into Escrow the additional amount of Seventy Thousand Dollars ($70,000.00) in cash or other immediately available funds (the "Seconal Deposit"). The First Deposit and the Second Deposit are collectively referred to as the"Deposits". 3.3 Investment and Application of Deposits. Escrow Holder shall place the Deposits and any other funds deposited by Buyer into Escrow in a money market account having no penalty for early withdrawal at a financial institution acceptable to Buyer. Interest earned in such account shall be credited to the account of Buyer. Provided that Buyer does not elect to terminate this Agreement pursuant to Section 6.5 below, the Deposits shall be nonrefundable to Buyer following the Decision Date (as defined in Section 6 below) except in the event of a failure of a condition to Close of Escrow or a default by Seller or as otherwise specifically -2- 1�l:ICindyllCinstlerlVilinge ImAVillage Iain PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) provided in this Agreement. The Deposits and all interest accrued thereon in Escrow shall be applied toward payment of the Purchase Price at the Closing. 3.4 Payne ent of Balance of Purchase Price, The balance of the Purchase Price shall be deposited in Escrow by Buyer in cash or other immediately available funds on or prior to the Close of Escrow. 4. Opening of Escrow. Within t1ree (3)business days after the execution of this Agreement by the parties, Buyer and Seller shall open the Escrow with Escrow Holder, Escrow Holder shall notify both parties in writing of the date of Opening of Escrow. As used in this Agreement,the term "Opening of Escrow" shall mean the date on which three (3) copies of this Agreement signed by both Buyer and Seller are delivered to Escrow Holder. Upon receipt of such items, Escrow Holder is hereby instructed to open the Escrow, to insert the date of the Opening of Escrow on the last page of each cop), of this Agreement, to sign the Joinder of Escrow Holder attached to this Agreement, and to deliver one (1) complete copy of this Agreement to Seller and one (1) conplete copy of this Agreement to Buyer. This Agreement together with Escrow Holder's general provisions shall constitute instructions to Escrow Holder. If there is any conflict between the provisions of this Agreement and Escrow Holder's general provisions, the provisions of this Agreement shall control. 5. Close of Escrow. Subject to the satisfaction or waiver of the conditions described in Section 7 below, the close of Escrow for the purchase and sale of the Property ("Closing") shall take place through Escrow on or prior to the date which is thirty (3 0) days after the expiration of the feasibility Period. Either Buyer or Seller may elect to extend the Closing for up to thirty (30) days, if necessary to satisfy the conditions to Closing. The Closing shall also be extended for the period of time the closing is extended pursuant to the Asset Purchase Agreement. As used in this Agreement, the terns "Closing," "Close of Escrow" and "Closing Date" shall refer to the date on which Seller's Grant Deed conveying the Real Property to Buyer, in the form attached hereto as Exhibit "D," is recorded through Escrow in the Official Records of the County. 6. Buyer's Investigation and Other Matters. On or prior to 5:00 p.m. P.S.T. on the date which is 60 days after the Effective Date ("Decision Date"), Buyer shall conduct the investigations of the Property described in Sections 6.1, 6.2, 6.3 and 6.4. Buyer's approval in its sole discretion of such investigations shall constitute a condition to the Closing. Such period of time is referred to as the "Feasibility Period." 6.1 Approval of Preliminary Report. Orange Coast Title Company ("'Title Company") shall provide Buyer with a recent title report (the "Title Report") covering the Real Property together with copies of all documents referred to therein. Within thirty (30) days after Buyer has received the Title Report, Buyer shall deliver written notice ("Title Notice")to Seller of Buyer's approval or disapproval of the exceptions in the Title Report. If Buyer does not timely deliver the Title Notice to Seller,than Buyer shall be deemed to have disapproved the Title Report in its entirety. Arty Title Notice disapproving any aspect of the Property's title shall identify the disapproved items. Seller shall remove or cure any disapproved items by delivering written notice thereto to Buyer within five (5) business days after Seller's receipt of Buyer's Title Notice, If Seller does not timely deliver a notice of election to remove or cure the disapproved -3- WJ\CinclylKins6evWillage lnnWillage Imi PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) items, then Seller shall be deemed to have elected not to remove or cure the disapproved items. If Seller elects not to remove or cure any disapproved items, Buyer may waive its prior disapproval or terminate this Agreement pursuant to Section 6.5 below. Any new exceptions or other supplemental nnatters that appear against title to the Property prion to the Close of Escrow shall be removed by Seller prior to or concurrently with the Close of Escrow. Buyer hereby objects to all mortgages, deeds of trust, fixture filings, mechanics' liens and other monetary liens and encumbrances of any kind against the Real Property (other than the lien for non-delinquent taxes and assessments not yet due and payable) (the "Monetary 1f neurnbraflees"), and Seller agrees to cause the Monetary Encumbrances to be rernloved of record at Seller's sole cost on or before the Close of Escrow. Any title approval given by Buyer shall be deemed conditioned upon the removal of the Monetary Encumbrances on or prior to the Closing. Seller shall deliver to the Title Company prior to the Closing (a) a standard Owner's Affidavit so that the Property shall be conveyed to Buyer free and clear of all unrecorded liens, encumbrances and possessory interests, and (b) a standard Mechanic's Lien indemnity so that the Property shall be conveyed to Buyer free and clear of any statutory liens for work performed prior to the Closing. Within five (5) business days after Buyer's approval (if given) of the'Title Report, the Title Company shall issue and deliver to Buyer an unconditional title commitment(the "Title Commitment") to issue the Title Policy required by Buyer on the Closing Date in form and content satisfactory to Buyer. During the term of this Agreement Seller shall not suffer or allow any further liens, encunnbrances or other exceptions to title without Buyer's prior written consent. 6.2 A royal of Phase I ALTA Surve and ADA Audit. Buyer shall have the right to engage one or more consultants to prepare a Please I Environmental Site Assessment of the Real Property ("Phase I"), an ALTAIACSM Survey of the Real Property ("Survey") and an ADA audit of the Property ("ADA Audit"). If Buyer completes the purchase of the Property, the cost of the Phase I, Survey and ADA Audit shall be shared equally between Buyer and Seller up to a maxirnuni of Four Thousand Dollars ($4,000.00) so that the maximum amount maid by Seller is Two Thousand Dollars ($2,000.00). Buyer's failure to approve or disapprove each of the Phase I , Survey or ADA Audit by delivery of written notice thereof to Seiler and Escrow Holder on or before the Decision Date shall be deemed Buyer's disapproval of such studies. 6.3 Feasibility Studies. Buyer shall approve on or before the Decision Date, the condition,use, development or suitability of the Property for Buyer's intended purposes, including, but not limited to, financial and market feasibility and the physical condition of the Property. Buyer's failure to approve or disapprove such investigations by delivery of written notice thereof to Seller and Escrow Holder on or before the Decision Date shall be deemed Buyer's disapproval. Seller hereby grants to Buyer, its agents, employees, engineers, attorneys and other consultants, a license to enter upon the Property at all reasonable times during normal business hours for the purpose of conducting feasibility studies and physical examinations of the Property. Buyer shall bear the cost of all such inspections,tests and studies. In conducting any inspections,tests or studies, Buyer and its authorized agents and representatives shall (a) not unreasonably interfere with the Village Inn Tenant's or the Residential Tenant's use of the Property, (b)not unreasonably interfere with the operation, use and maintenance of the Property, (c) not permit any liens to attach to the Property by reason of the exercise of the rights under this Section, (d) fully restore the Property to the condition in which the same was found before any such inspections, tests or studies were undertaken, (e)not reveal or disclose any information obtained as a result of such tests, inspections and studies concerning the Property except as may -4 1�J:1Cii dylICinstlerlVill �e InnWillage Ina PSA.DOC -- Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) otherwise be permitted in this Agreement or as inay be required by law, and (f) not conduct any invasive testing without the prior consent of Seller, which consent shall not be unreasonably withheld. Prior to any such entry by Buyer on the Real Property, Buyer shall obtain and maintain the following insurance coverages with respect to any loss, damage or injury which may occur as a result of Buyer's entry upon the Real Property: (a) workers' compensation insurance as required by law; and (b)commercial general liability insurance written on an occurrence basis, with aggregate limits and per occurrence limits of at least One Million Dollars ($1,000,000.00). In addition, Buyer hereby agrees to indemnify,protect, defend and hold Seller and the Property free and harmless from and against any and all damages, claims, losses, liabilities, causes of action, proceedings, costs and expenses of any kind whatsoever (including, without limitation, attorneys' fees and fees of expert witnesses) arising from any such activities of Buyer, its agents and employees upon or about the Property; provided, however, the foregoing indemnity shall not extend to liability arising from (i) the acts or omissions of Seller or its agents, or (ii) Buyer's discovery of preexisting physical conditions on the Real Property. 6.4 Property Documents. Seller shall deliver to Buyer within five(5) business days after the Effective Date the Leases, if any (or if there is no written lease a summary of the material terms and conditions of the occupancy agreement), any other leases, subleases or other occupancy agreements, the Contracts, all environni-ental reports, engineering plans, irnprovement plans, surveys, maps, entitlements, licenses and permits, studies, drawings, books acrd records; and all other similar documents or materials, if any, in the possession of, or under the control of, Seller, issued or prepared in connection with the ownership, operation, use, management and maintenance of the Property, including without limitation, the following (collectively, "Property Documents"): ® Copies of vendor contracts. ® Copies of contractors warranties, if applicable. ® Copy of ALTA Survey, if available. ® Tax Bills for 2009, 2010 and 2011. ® Phase I report, if available. + Building plans or as built plans, if available for the Buildings. ® Schedule of pending and current litigation. ® Copies of conditional use permit, entertainment license, liquor license and any other licenses or permits applicable to the use or operation of the Property. a Certificates of occupancy for the Buildings. ® List of Personal Property. w5- W:\0ndy\Kinstlerlvillase lanWillage lain PSA.i70C Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) d ® Outstanding code violations. Capital improvement history for the Buildings. Buyer's failure to approve or disapprove the Property Documents by delivery of written notice thereof to Seller and Escrow Halder on or before the Decision Date shall be deemed Buyer's disapproval. Upon the Close of Escrow and subject to any required third patty consents which Seller shall use commercially reasonable efforts to obtain prior to Closing, Seller shall assign to Buyer all of its right,title and interest in and to the Property Documents and other Personal Property by executing a General Assiglnnent and Bill of Sale in the form attached hereto as Exhibit "H." Buyer acknowledges that the Property Documents are proprietary and confidential in nature and have beets or will be made available to Buyer solely to assist Buyer in determining the feasibility of purchasing the Property. Buyer agrees not to disclose the Property Documents or any of the provisions, terms and conditions thereof, or any information contained therein to any person outside Buyer's organization except (a) to Buyer's attorneys, accountants, lenders, prospective lenders, investors and/or prospective investors, consultants, engineers, architects and any other third party who have a need to know any of such information in connection with Buyer's prospective purchase of the Property (collectively, the "Permitted Outside Parties") or (b) as tray be required by law. Buyer further agrees to notify all Permitted Outside Parties that the Property Documents and all the information contained therein are to be kept confidential and not disclosed to third persons. In permitting Buyer and the Permitted Outside Parties to review the Property Documents to assist Buyer in its purchase of the Property, Seller has not waived any privilege or claim of confidentiality with respect thereto and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Buyer. 6.5 Terrninatiort. If, on or prior to the Decision Date, Buyer fails to approve in writing the Title Report described in Section 6.1 above, or Buyer fails to approve the Phase 1, Survey or ADA Audit pursuant to Section 6.2 above, or Buyer fails to approve in writing its investigation of the Property pursuant to Section 6.3 above, or Buyer fails to approve in writing the Property Documents pursuant to Section 6.4 above,which approval or disapproval shall be in Buyer's sole and absolute discretion,then this Agreement shall automatically terminate, in which event: (i) Buyer and Seller shall execute and deliver to Escrow Holder cancellation instructions and all other documents that are reasonably required by Escrow Holder and/or Seller in order to cancel this Escrow and release any interest of Buyer in and to the Property; (ii)Escrow Holder shall return the First Deposit to Buyer; (iii)Escrow Holder shall return all documents and instruments to the parties who deposited the same into Escrow; (iv) Buyer shall return all Property Documents to Seller; and (v)this Agreement shall terminate and neither party hereto shall have any further obligation or responsibility hereunder or liability of any nature or amount whatsoever to the other party hereunder except as provided in Section 6.3. 7. Conditions to Closing. The following shall constitute conditions precedent to the Closing for the benefit of Buyer. Buyer may waive any such conditions in its sole and absolute discretion. -6- W:\Ciady\KinsticrlVillage InnWillage Inn PSADOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 7.1 Title_ e PolicX. The Title Company shall be unconditionally committed to issue to Buyer, an ALTA Extended Owner's Policy of title insurance in the form of the Title Commitment("Title Policy") in the total amount of the Purchase Price, dated as of the Closing, insuring Buyer as the fee simple owner of the Real Property, and showing title to the Real Property vested in Buyer subject only to: (1) The printed exceptions and exclusions contained in the Title Policy; (2) Nondelinquent general and special real property taxes, bonds and assessments, which shall be prorated as of the Closing; and (3) All Permitted Exceptions. "Permitted Exceptions" shall meats all matters shown on the Title COillmitnlCnt approved by Buyer pursuant to Section 6.1 of this Agreement. Nothing herein shall prohibit Buyer from requesting and obtaining endorsements to the Title Policy. Seller shall pay the premium cost of the base portion (without endorsements or extended coverage) of the Title Policy and the Survey. Buyer shall pay the premium attributable to any additional coverage and endorsements requested by Buyer to the Title Policy, 7.2 Closing of Asset Purchase Transaction, The Closing is conditioned upon the concurrent or prior closing of the transaction pursuant to that certain Asset Purchase Agreement, dated November 1„ 2011 between Balboa Island Village Inn,Inc., as seller, and CLIA Island Properties, LLC, as buyer(the "Asset Purchase Agreement") relating to the purchase and sale of the Village hm restaurant and bar business (the "Village Inn Asset Purchase Transaction"). 7.3 Termination of Residential Lease, The Closing is conditioned upon the termination of all Leases„ the vacation of the Residence by the Residential Tenant and any other occupants of the Property and the removal of all furniture and other personal property belonging to the Residential Tenant.. At the Closing the Residence shall be in broom clean condition, and Buyer shall have the right to conduct an inspection of the Residence no later than two (2) days prior to the Closing to confirm that the Residence is in the foregoing condition. 7.4 Estoppel Certificate. At least ten (10)business days prior to the Closing, Seller shall have caused BIVI to execute and deliver to Buyer an executed original tenant estoppel certificate in the form of Exhibit 'T" attached hereto (the "Estoppel Certificate") without exceptions or qualifications. 7.5 Seller's Representations and Warranties. Seller's representations and warranties described in Section S below shall be true and correct in all material respects as of the Closing Date. 7.6 Seller's Performance. Seller shall have performed in all material respects all of its obligations under this Agreement. -7- 11r:1CiFuiyll<instlerlVilla�e fi)n\V lla,-e Inn PSA.DOC - Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 7.7 Effect of Failure of a Condition. In the event the Closing does not occur because any of the conditions set forth in this Section 7 are not satisfied or waived by Buyer,and if the failure of such condition(s) is not caused by the default of either party, thee.this Agreement and the Escrow shall thereupon be terminated, and: (i) Buyer and Seller shall execute and deliver to Escrow Holder cancellation instructions and all other documents that are reasonably required by Escrow Holder and/or Seller in order to cancel this Escrow and evidence the release any interest of Buyer in and to the Property; (ii) Escrow Holder shall return the Deposits to Buyer; (iii) Escrow Holder shall return all documents and instruments to the parties together with all tests and other reports prepared by Buyer with respect to the Property who deposited the same into Escrow; (iv) Buyer shall return all Property Documents to Seller; and (v)this Agreement shall terminate and neither party hereto shall have any further obligation or responsibility hereunder or liability of any nature or amount whatsoever to the other party hereunder except as expressly provided otherwise in this Agreement. 8. Representatiolrs and Covenants of Seller. In addition to any express agreements of Seller contained elsewhere in this Agreement, Seller hereby represents and warrants to, and covenants with, Buyer as follows: 8.1 Power. Seller has the legal power, right and authority to enter into this Agreement and the instTun-rents referenced herein, and to consurnmate the transaction contemplated hereby. 8.2 Requisite Action. All requisite action has been taken by Seller in connection with the entering into of this Agreement, the execution and delivery of the instruments referenced herein, and the consummation of the transaction contemplated hereby. 8.3 Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. 8.4 Income Tax Information. Seller is not a non-resident alien, a foreign corporation, a foreign partnership, a foreign trust, or a foreign estate (as those terms are defined in the United States Internal Revenue Code and Income Tax Regulations) for purposes of United States income taxation. In connection therewith, Seller shall deliver to Escrow Holder for delivery to Buyer at the Closing the Seller affidavits ("Seller's Affidavits") described in Section 10.1 (f)below. 8.5 Title: Further Encumbrances. From and after the date of this Agreement, Seller shall not,by voluntary or intentional act, encumber the Real Property with any lien, encumbrance, easement or other title matter, including without limitation, any judgment lien arising from litigation involving Seller. Seller shall pay in full all contractors, subcontractors and other parties for work performed prior to the Closing. 8.6 Propedy PropertyDocuments. To Seller's actual lo-towledge, all Property Docurxlents required to be delivered to Buyer will fairly present the information set forth in a manner that is not misleading and will be true, complete and correct in all respects on the date of delivery and upon the Close of Escrow. W:\Cindy\Kinstler\VilIage iniiWillage lnn RSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 8.7 Govermnental Notices. Seller has not received any written notification frons any goverrunental authority imposing any special assessments on the Property or bringing any condemnation actions against the Property, or any part thereof Seller has not received any written notification from the Department of Building and Safety,Health Department or any other City, County or other governmental authority having,jurisdiction over the Property requiring any work to be done on or affecting the use or operation of the Property. 8.8 Compliance with Laws and CC&Rs. Seller has not received any written violations or notices of noncompliance of any statutes, ordinances, regulations, zoning, building codes, health and safety regulations, disability or handicapped accessibility laws (e.g. ADA), administrative or judicial orders or holdings, ,vhether or not appearing in the public records, or covenants, conditions, restrictions, declarations recorded against the Property affecting the use, operation, occupancy and enjoyment of the Property that has not previously been corrected. The Village Inn Tenant has received citations from the City of Newport Beach for allowing dancing (not allowed) and from the Alcoholic Beverage Control for service under-age persons; the citations were resolved. The Property is a legal nonconforming use with respect to the availability of parking. 8.9 Leases. Except for the oral Lease for the Residence there are no other leases, occupancy agreements, or other agreements relating to the use and occupancy of the Real Property executed by Seller or otherwise affecting the use or occupancy of the Real Property. No Tenant has any option or other right to purchase all or any part of the Real Property. 8.10 No Litigation. There is no litigation or legal proceeding pending or to Seller's actual knowledge,threatened in writing against Seller or the Property that could reasonably be expected to materially adversely affect Seller's or Buyer's ability to perform their respective obligations hereunder, or Buyer's ownership or use of the Property. 8.11 No Hazardous Substances. To Seller's actual knowledge, the Property has not been used for the storage or disposal of any Hazardous Substance, and thereare not present on or about the Property any Hazardous Substances in quantities in violation of Environmental Laws. Except as disclosed in the Property Documents, Seller has not received any written notice from any governmental authority concerning the removal of any Hazardous Substance from the Property, or concerning any restrictions on the use or development of the Property on account of the presence of any Hazardous Substance on the Property or on any other real property within the immediate vicinity of the Property. Seller has not used, generated, disposed of, or stored any Hazardous Substances on the Property. "Hazardous Substance" means (i) any chemical, compound,material, mixture or substance that is now defined or listed in, or otherwise classified pursuant to, any Environmental Law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic Substance," "toxic pollutant" or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or "EP toxicity" and(ii) petroleum, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas), ash produced by a resource recovery facility utilizing a nnunicipal solid waste stream, and drilling -9- W:%CindylKinItlerwill Lige InnWillage Ina PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas, or geotllerii-ial resources. "Environmental Laws" mearis any and all present federal, state and local laws (whether under common law, statute, rule, regulation or otherwise),permits, and other requirements of governmental authorities relating to the envirolunent or to any Hazardous Substance (including, without limitation, (i) the Toxic Substances Control Act, 15 U.S.C., Section 2601 et seq., (ii) the Clean Water Act, 33 U.S.C., Section 1251 et seq., (iii)the Resource and Conservation and Recovery Act, 42 U.S.C., Section 6901 et seq., (iv) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C., Section 9601 et seq., (v) the Hazardous Materials Transportation Act, 49 U.S.C., Section 1801 et seq., (vi) the California Hazardous Waste Control Act, Health and Safety Code, Section 25100 et seq., (vii) tlhe California Hazardous Substance Account Act, Health and Safety Code, Section 25249.5 et seq., (viii) the California Waste Management Act, Health and Safety Code, Section 25170.1 et seq., (ix) health and Safety Code, Section 2550, Hazardous Materials Release Response flans and Inventory, or (x) the California Porter-Cologne Water Quality Control Act, Water Code, Section 13000 et seq., all as amended). 8.12 Continued Operation. 8.12.1 Maintenance. Subject to Section 14, Seller shall maintain the Property in the condition in which it existed as of the date of this Agreement, normal wear and tear excepted, free from nhecharhics' liens or other claims for liens by reason of work performed by or at the request of Seller and not commit waste of or on the Property. 8.12.2 Ooeration. From and after the Effective Date until the Close of Escrow, Seller shall cause the business located on the Property to be conducted consistent with past business practices at the Property. 8.13 Indemnity. Seller hereby agrees to indemnify, protect, defend and hold Buyer, Buyer's partners and members, and their employees, officers, directors, shareholders, representatives, agents,attorneys, affiliates, parents and subsidiaries, successors and assigns harmless from and against any and all losses, damages, costs and expenses (including, without limitation, legal fees and disbursements)relating to the Property which accrue from acts, omissions, injuries or events occurring prior to the Close of Escrow,based upon or arising from (a) any claim by the Residential Tenant, BIVI or other occupant of the Property; (b) any claim relating to any of the Contracts; (c) for any labor performed on, or materials furnished to the Property at the request of Seller prior to Close of Escrow; (d) for any breach of the representations and warranties under this Agreement; and (e) for any other third party claim relating to the Property or the use or operation of the Property. 8.14 Survival of Representations. The representations and warranties of Seller and any other representations and warranties of Seller contained elsewhere in this Agreement are true and correct on and as of the date of this Agreement and shall survive the Closing without the necessity of a separate written certificate regarding the same. _lp_ W:1CiadylKirnstler\Village ImiWillage lan PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 9. Representations and Covenants of Buyer. In addition to any express agreements of Buyer contained elsewhere in this Agreement, Buyer hereby represents and warrants to, and covenants with, Seller as follows: 9.1 Power. Buyer has the legal power, right and authority to enter into this Agreernent and the instruments referenced herein, and to consumnrate the transactions contemplated.hereby. 9.2 Requisite Action. All requisite action (corporate, partnership or otherwise) has been taken by Buyer in connection with the entering into of this Agreement,the execution and del ivery of the instrunrents referenced herein, and the consummation-of the transactions contemplated hereby. 9.3 Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Buyer have the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. 9.4 Survival_. The representations and warranties of Buyer set forth in this Section 9 are true and correct on and as of the date of this Agreement, and shall be true and correct on and as of the date of the Closing, and shall survive the Closing without the necessity of a separate written certificate regarding the same. 9.5 Indemnity. Buyer hereby agrees to indemnify,protect, defend and hold Seller harmless from and against any and all losses, dainages, costs and expenses (including, without limitation, legal fees and disbursements) relating to the Property which accrue from acts, omissions, injuries or events occurring after the Close of Escrow, based upon or arising from (a) any claim relating to any of the Contracts; and(c) for any breach of the representations or warranties under this Agreement. 10. Escrow Closing Obligations. 10.1 Deliveries by Seller to Escrow Holder. Seller hereby covenants and agrees to deliver to Escrow Holder on or prior to the Closing Date,the following instruments and documents,the delivery of each of which shall be a condition to the Closing for the benefit of Buyer: (a) Grant Deed. Seller's Grant Deed ("Grant Deed"), duly executed and aelmowledged by Seller, conveying the Property to Buyer, in the form attached hereto as Exhibit "B." (b) Estoppel Certificate. The original Estoppel Certificate required by Section 7.4 to the extent not previously delivered to Buyer. (c) Intentionally Omitted (d) Assignment of Contracts. Two (2) originals of an Assignment of Contracts, duly executed by Seller, in the form attached hereto as Exhibit "D" ("Assignment -1]- W:1CindylKiustltAVillage Im1Village Inn PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) of Contracts"), pursuant.to which Seller shall assign to Buyer all of Seller's right, title and interest in and to the Contracts. (e) General Assignment. Two (2) originals of a General Assigm-nent and Bill of Sale, duly executed by Seller, in the form attached hereto as Exhibit "E" ("General Assignment"), pursuant to which Seller shall convey to Buyer the Personal Property. (f) Seller's Affidavits. An Affidavit of Nonforeign Status under the Foreign Investment in Real Property Act of 1980, duly executed by Seller, in the form attached hereto as Exhibit "C" and the reciprocal California Tax Certificate (collectively,the "Seller Affidavits"). (g) Closing Statement A Closing Statement acceptable to Seller executed by Seller. (11) Proof of Authority. Such proof of Seller's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, docutnents or certificates on behalf of Seller to act for and bind Seller as may be reasonably required by Title Company. (i) Other Doc-aritents. Seller shall deliver all other documents and instruments reasonably requested by Escrow Holder or Title Company necessary to consummate the transaction contemplated under this Agreement. 10.2 Deliveries by Buyer to Escrow Holder. Buyer hereby covenants and agrees to deliver to Escrow Holder on or prior to the Closing Date the following, the delivery of each of which shall be a condition the Closing for the benefit of Seller: (a) Funds. The cash balance of the Purchase Price, together with Buyer's share of any Escrow closing costs and prorations in the amount determined by Escrow Holder, shall be delivered to Escrow Holder by Buyer in cash or inunediately available funds not later than the Closing Date. (b) Intentionally Omitted (c) Assignment of Contracts. Two (2) originals of the Assignment of Contracts, duly executed by Buyer, in the form attached hereto as Exhibit "D,"pursuant to which Seller shall assign to Buyer all of Seller's right,title and interest in and to the Contracts. (d) General Assignment. Two (2) originals of the General Assignment and Bill of Sale, duly executed by Buyer, in the form attached hereto as Exhibit "E"' pursuant to which Seller shall convey to Buyer the Personal Property. (e) Closing Statement. A Closing Statement acceptable to Buyer executed by Buyer. -12- W:%CindylKinsticr\Village Innlvillage Inn PSA.DOC - -- Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) (f) Proof of Authority. Such proof of Buyer's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Buyer to act for and bind Buyer as may be reasonably required by Title Company. (g) Other Documents. Buyer shall deliver all other documents and instruments reasonably requested by Escrow Holder or Title Company necessary to consllinmate the transaction contemplated under this Agreement. 10.3 Deliveries Outside of Escrow. Seller hereby covenants and agrees to deliver to Buyer, on or prior to the Close of Escrow: 10.3.1 Possession of Real Property. Possession of the Property, subject to the Permitted Exceptions. 10.3.2 Contracts, Leases, Etc. The original Contracts and Property Documents, or a true and correct copy thereof if the original is not available. 10.3.3 Personal Pro pert . Possession of all of the Personal Property. 10.3.4 K.._-mss. To the extent in the possession of the Seller, all master keys or duplicate keys or combinations or other types of security passes or devices, for all locks in the Improvements shall be delivered by Seller to Buyer outside of Escrow. 10.4 Disbursements and Other Actions by Escrow Molder. Upon the Closing, and when all required funds and documents have been deposited into the Escrow, Escrow Holder shall promptly undertake all of the following: (a) Disburse all funds deposited with Escrow Holder by Buyer in payment of the Purchase Price and in payment of Buyer's share of any Escrow closing costs and prorations as follows: (1) Deduct from the funds deposited with Escrow Holder by Buyer in payment of Buyer's share of any Escrow closing costs and prorations the amount of all such items chargeable to the account of Buyer hereunder; (2) Deduct from the funds deposited with Escrow Holder by Buyer in payment of the Purchase Price all items chargeable to the account of Seller, including, without limitation, the Monetary Encumbrances and the Security Deposit and Seller's share of any other Escrow closing costs and prorations; (3) Disburse the remaining balance of the Purchase Price to Seller promptly upon the Closing. Any funds deposited by or on behalf of Buyer in excess of the sum of the Purchase Price and Buyer's share of any Escrow closing costs and prorations shall be returned to Buyer; and -13- W:1Ciod3lll'.instlerlVlllage hinWiltage lmm PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) (b) Cause Seller's Grant Deed for the Property to be recorded in the Official Records of the County, (c) Deliver the Seller's Affidavits to Buyer. (d) Cause the Title Policy described in Section 7.1 to be delivered to Buyer. (e) Assemble and deliver to each of Seller and Buyer one counterpart original the Assig>u-nent of Contracts and the General Assignment. 10.5 lnformation Req. The "Reporting Person" within the; meaning of Section 1.6045-4(e)(5) of the Regulations with respect to the transactions contemplated by this Agreement shall be Escrow Holder. It is agreed that Escrow Holder is an eligible person under Section. 1.6045-4(e)(5)(ii) of the Regulations. Escrow Holder hereby agrees to be responsible for complying with the reporting and other requirements of Section 6045(e) of the Code. Pursuant to the Regulations, the address for the transferor and transferee are as set:forth for Seller and Buyer in this Agreement, and the identifying information regarding the real estate transferred is the legal description for the Property set forth in this Agreement. Escrow Holder agrees to file the form required by the Regulations between the end of the calendar year in which the Closing Date occurs and February 28 of the following calendar year. Buyer and Seller agree (i)to cooperate with Escrow Holder and with each other in completing any report and/or other information required to be delivered to the Internal Revenue Service pursuant to Section 6045(e) of the Code regarding the real estate sales transaction conternplated by this Agreement, including without limitation, Internal Revenue Service Form 1099-S as such may be hereafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any Regulation now or hereafter promulgated by the Treasury Departrrrent with respect thereto; (ii)that Buyer and Seller, their respective employees and attorneys, and Escrow Bolder and its employees may disclose to the Internal Revenue Service, this Agreement or the transaction contemplated herein as such party reasonably deems to be required to be disclosed to the Internal Revenue Service by such party pursuant to 6045(e) of the Code; (iii)that neither Buyer nor Seller shall seek to hold any such party liable for the disclosure to the Internal Revenue Service of any such information; and(iv)to retain this Agreement for at least four (4)years following the end of the calendar year in which the Closing Date occurs. 10.6 Natural Hazards Disclosure. Seller and Buyer acknowledge that the Disclosure Statutes provide that a seller of real property must make certain disclosures regarding certain natural hazards potentially affecting such real property, as more particularly provided therein. Seller has ordered a Natural Hazard Disclosure Report(the "Disclosure Report") for the Real Property from the Escrow Holder and shall deliver the Disclosure Report to Buyer promptly upon Seller's receipt thereof,but in no event later than ten (10)days prior to the expiration of the Feasibility Period. Buyer hereby agrees as follows with respect to the Disclosure Statutes and the Disclosure Report. 10.6.1 The delivery of the Disclosure Report to Buyer as provided above shall be deemed to satisfy all obligations and requirements of Seller under the Disclosure Statutes. W:\0ndyNK!ns1lej-Willage Inu\VillaSe Inn PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 10.6.2 Seller shall not be liable for any error or inaccuracy in, or omission from., the information in the Disclosure Report. 10.6.3 The Disclosure Report is being provided by Seller for purposes of complying with the Disclosure Statutes and shall not be deemed to constitute a representation or warranty by Seller as to the presence or absence in, at or around the Project of the conditions that are the subject of the Disclosure Statutes. 10.6.4 The Disclosure Report is for Seller and Buyer only and is not for the benefit of, or be used for any purposes by, any other party, including, without limitation, insurance companies, lenders or the Authorities. 10.7. Transfer Disclosure Statement. Sellerand Buyer aclurowledge that the Disclosure Statutes provide that a seller of residential real property must make certain disclosures pursuant to Civil Code Section 1102, et. seq. Seller shall provide a Transfer Disclosure Statement regarding the Residence within 5 days of the Effective Date. 11. Escrow Cancellation. If either party defaults with respect to its obligations hereunder, or if Escrow is not in a condition to close by the Closing Date, Escrow Holder shall continue to comply with the instructions contained herein until a written denlarid has been made by a party entitled to do so for the cancellation of Escrow. Escrow Holder shall notify the other party of any such demand. 11.1 Charges. If the Closing fails to occur due to Seller's default, Seller shall pay all Escrow cancellation charges. If the Closing fails to occur due to Buyer's default, Buyer shall pay all Escrow cancellation charges. If the Closing fails to occur for any reason other than the foregoing: (a) Seller and Buyer shall share equally all Escrow cancellation charges, and (b) each party shall release the other party frown all liability hereunder for the failure of the Closing to occur. "Escrow cancellation charges" means all fees, charges and expenses charged by Escrow Holder as well as all charges related to the services of the Title Company in com-rection with title platters relating to this Escrow. 11.2 Buyer's Remedies. In the event Seller shall default under any of the terms and provisions of this Agreement, Buyer shall be entitled to pursue all remedies available at law or equity,including but not limited to, damages and specific performance. Seller acknowledges that the Property is unique, damages would be an inadequate remedy in the event of default and in such event specific performance of the contract would be property without limiting Buyer's right to any other remedy. -15- Nk7:1Cindy\t iiistlerlVilia-,e Innwillage inn PSADOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 11.3 Seller's Liquidated Damages if Buver Defaults. BUYER AND SELLER AGREE THAT IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER,IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX SELLER'S ACTUAL DAMAGES FOR, AMONG OTHER ITEMS, TAKING OR HAVING THE PROPERTY OFF THE MARKET, AND BUYER AND SELLER AGREE THAT THE AMOUNT OF THE DEPOSITSs IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO BUYER'S DEFAULT. IN ADDITION, BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT, AND SELLER DESIRES TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER WERE REQUIRED TO FILE A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT, THEREFORE, IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER, THEN UPON 'II:IE WRITTEN DEMAND OF SELLER THIS AGREEMENT AND THE ESCROW SHALL BE TERMINATED AND CANCELLED. IN SUCH EVENT, (A) ESCROW HOLDER SHALL RETURN ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WI-10 DEPOSITED SAME, (B) ALL TITLE AND ESCROW CANCELLATION CHARGES SHALL BE CHARGED TO BUYER, AND (C) ESCROW HOLDER SHALL RELEASE THE DEPOSITS TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY. SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF BUYER'S DEFAULT SHALL BE LIMITED TO THE RECEIPT OF THE DEPOSITS AND SELLER HEREBY WAIVES ALL OTHER CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY (INCLUDING, WITI-IOUT LIMITATION,ANY RIGHTS TO SPECIFIC PERFORMANCE THAT SELLER MAY HAVE); PROVIDED, HOWEVER, THAT THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT FOR OR RECOVER DAMAGES IN CONNECTION WITH BUYER'S INDEMNITY OF SELLER AND/OR BUYER'S DEFAULT OF ITS OBLIGATIONS UNDER SECTION 6.3 OR RECOVER ATTORNEYS' FEES AND COURT COSTS PURSUANT TO SECTION 19.2. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. Buyer's nitials Seller's Initials 12. Costs and Prorations. 12.1 Escrow and Other Costs. Subject to Section 11.1 above, Seller shall pay the Escrow Holder's escrow fees for the Escrow. Seller shall also bear the cost of all documentary transfer taxes and the premium cost of the base portion of the Title Policy. Buyer shall pay the premium cost attributable to any additional coverage or endorsements to the Title Policy and the Survey. Buyer and Seller (up to $2,000 if Buyer purchases the Property) shall each pay fifty percent(50%) of the costs of the Phase I, Survey and ADA Audit. Buyer and Seller shall each gear their own respective legal and accounting costs, if any, outside of Escrow. -16- W:1Cindy\KinsftrlVillaae hnnWillage hin 1'SA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 11.3 ,Seller's Liquidated Da>nages if Buyer Defaults. BUYER AND SELLER AGREE THAT IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX SELLER'S ACTUAL DAMAGES FOR, AMONG OTHER ITEMS, TAKING OR HAVING THE PROPERTY OFF THE MARKET, AND BUYER AND SELLER AGREE THAT THE AMOUNT OF THE DEPOSITSs IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO BUYER'S DEFAULT. IN ADDITION, BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT, AND SELLER DESIRES TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER WERE REQUIRED TO FILE A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER, THEN UPON THE WRITTEN DEMAND OF SELLER THIS AGREEMENT AND THE ESCROW SHALL BE TERMINATED AND CANCELLED. IN SUCH EVENT, (A) ESCROW HOLDER SHALL RETURN ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED SAME, (B) ALL TITLE AND ESCROW CANCELLATION CHARGES SHALL BE CHARGED TO BUYER, AND (C) ESCROW HOLDER SHALL RELEASE THE DEPOSITS TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S FAILURE TO COMPLETE THE .PURCHASE OF THE PROPERTY. SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF BUYER'S DEFAULT SHALL BE LIMITED TO THE RECEIPT OF THE DEPOSITS AND SELLER HEREBY WAIVES ALL OTHER CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY (INCLUDING,WITHOUT LIMITATION, ANY RIGHTS TO SPECIFIC PERFORMANCE THAT SELLER MAY HAVE);PROVIDED, HOWEVER, THAT THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT:FOR OR RECOVER DAMAGES IN CONNECTION WITH BUYER'S INDEMNITY OF SELLER AND/OR BUYER'S DEFAULT OF ITS OBLIGATIONS UNDER SECTION 6.3 OR RECOVER ATTORNEYS' FEES AND COURT COSTS PURSUANT TO SECTION 19.2. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. Buyer's Initials Seller's Initials 12. Costs and Prorations. 12.1 Escrow and Other Costs. Subject to Section 11.1 above, Seller shall pay the Escrow Holder's escrow fees for the Escrow. Seller shall also bear the cost of all documentary transfer taxes and the premium cost of the base portion of the Title Policy. Buyer shall pay the preiniuur cost attributable to any additional coverage or endorsements to the Title Policy and the Survey. Buyer and Seller (up to $2,000 if Buyer purchases the Property) shall each pay fifty percent (50%) of the costs of the Phase I, Survey and ADA Audit. Buyer and Seller shall each bear their own respective legal and accounting costs, if any, outside of Escrow. -16- W:1CindyliCisfstieilVillage ImiWilI-age lnfi PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) All recording costs or fees and all other costs or expenses not otherwise provided for in this Agreement shall be apportioned or allocated between Buyer and Seller in the manner customary in the County. 12.2 Real Property Taxes and Assessments. All non-delinquent general and special real property taxes,bonds and assessn-tints with respect to the Property shall be prorated through Escrow between Buyer and Seller as of the Closing based upon the latest available tax bills or tax information using customary escrow procedures. To the extent that the applicable tax assessor parcels, or any assessment district or other tax parcels, which-have been established as of the Closing include both the Property and other adjacent real property, then the applicable nondelinquent general and special real property taxes, bonds and assessments shall be allocated between the Property and such other adjacent real propert), based on such manner of allocation ►-nutually agreeable to Buyer and Seller. Finally, if the regular tax bill or bills for the Property for the fiscal year in which the Closing occurs are not available as of the Closing, Buyer and Seller shall re-prorate all such general and special real property taxes, bonds and assessments for the Property between themselves outside of Escrow based upon the then current fiscal year's regular tax bill or bills within thirty (30) days following the date such regular tax bill or bills are actually received by the parties. Any special assessments, district assessments or any other bonds and assessments with respect to the Property shall not be paid in full by Seller,but the Current installment of such bonds and assessments shall be prorated between Buyer and Seller as of the Closing as provided above. 12.3 Supplen-ental Real Property Taxes. With respect to any supplemental taxes assessed against the Property, Buyer and Seller hereby agree between themselves that Seller shall be obligated to pay all such supplemental taxes assessed against the Property for any period prior to the Closing, and Buyer shall be obligated to pay all such supplemental taxes assessed against the Property for any period from and after the Closing. Any supplemental properly tax bills received by Seller or Buyer after the Closing shall be prorated outside of Escrow by Seller and Buyer in accordance with the foregoing. 12.4 Property Income and Expenses. Except as otherwise set forth in this Agreement, all income and expenses of the Property shall be apportioned as of 12:01 a.m. on the Closing Date as if Buyer were vested with title to the Property during the entire day. Such prorated items include, without limitation,the following: 12.4.1 Rents. All Rents from the Residential Tenant received by Seller prior to the Closing shall be prorated between Buyer and Seller as of the Closing. Delinquent Rents shall not be prorated. 12.4.2 Utilities. Utility charges for gas, electric,water, sewer, cable and all other utility services shall be prorated at Closing on the basis of meter readings taken on the Closing Date or as soon prior to the Closing Date as possible. To the extent such meter readings are not available, the utility charges shall be prorated on the basis of the most recent actual (not estimated) bill for such utility and adjusted as necessary post-closing pursuant to Section 12.4.4 below. -17- VV;ICindylKinstlerlVillage innWillage lan PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 12.4.3 Other Operating and Maintenance Costs. All other costs and expenses with respect to the operation and maintenance of the Property, including, without limitation, under any Contracts and any charges and assessments due under any merchants' associations or covenants, conditions and restrictions shall be prorated as of the Closing Date. 12.4.4 Proration Statement. At least five (5) business days prior to the Closing, Seller shall submit to Buyer a proration statement("Proration Statement") which sets forth the foregoing prorated items together with reasonably detailed supporting documentation. Prior to the Close of Escrow, Buyer and its accountants shall be afforded the opportunity to review all underlying financial records and work papers relating to the preparation of the Proration Statement, and Seller shall permit Buyer and its accountants to have full access to the books and records in its possession or in the possession of any party to whorl such records have beets given custody. To the extent any of the foregoing items of income or expense for the period prior to the Close of Escrow are received by Buyer or billed to Buyer after the Closing Date, and except as otherwise provided herein, Buyer and Seller shall re-prorate such income and expense items between themselves outside of Escrow within thirty (30) days following the date on which such items are received by Buyer. 13. Broker's Commission. Seller and Buyer each represent to the other that no brokerage commission, finder's fee or other compensation of any kited is due or owing to any person or entity in conn ection with the transactions covered by this Agreement except that Seller shall pay a commission of$95,000 to Tire McMahon of CB Richard Ellis and a commission and finder's fee of$95,000 to Kevin McKenna of CB Richard Ellis and a finder. Each patty agrees to and does hereby indemnify and hold the other harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying party in connection with this transaction. 14. Condemnation and Destruction. 14.1 Condemnation. If all or any portion of the Property is taken prior to the Close of Escrow as a result of condemnation (including the filing of any notice of intended condemnation or proceedings in the nature of eminent domain), then Buyer shall have the right, by written notice delivered to Seller and Escrow Holder within ten (10) business days after Buyer receives written notice of such conden-nation,to terminate this Agreement and cancel Escrow. Otherwise, if Buyer does not so elect to terminate this Agreement and cancel Escrow by written notice delivered to Seller and Escrow Holder within such ten(10) business day period, then this Agreement shall remain in full force and effect, and the entire award from the condemning authority shall be the sole property of Buyer. If this Agreement and the Escrow are terminated pursuant to this Section,then Buyer hereby assigns to Seller all of Buyer's right,title and interest in and to such condemnation award and, notwithstanding the provisions of Section 11.1, Seller shall pay all Escrow cancellation charges,the Deposit and any other funds deposited by Buyer into Escrow, together with all interest earned thereon in Escrow, shall be returned to Buyer by Escrow Holder. 14.2 Fire or Other Casualty During Escrow. If there is a "material" damage to the Property or if the Property is destroyed by earthquake, flood, landslide, fire or other V,T:1CindyliCinstlerl\�iliage Inn1Vi!!2 e Inn PSA.DOC. Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) casualty prior to the Closing Date,then Buyer shall have the right,by written notice delivered to Seller and Escrow Halder within tell(10) business days after Buyer receives written notice of such damage or destruction,to terminate this Agreement and cancel Escrow, for purposes hereof, "material" shall be deemed to be any uninsured damage or destruction to the Real Property or any insured damage or destruction where the cost of repair or replacement is estimated to be One Hundred Thousand Dollars ($100,000.00) or more or shall tale more than one hundred twenty (12 0) days to repair, in Seller's good faith judgment. If Buyer does not so elect to terminate this Agreement and cancel Escrow by written notice delivered to Seller and Escrow Holder within such ten(10) business day period, or if Seller has insurance coverage reasonably satisfactory to Buyer, this Agreement shall remain in frill force and effect, and all insurance proceeds payable to Seller with respect to such damage or destruction, if any, shall be assigned and delivered by Seller to Buyer at the Close of Escrow hereunder, Seller shall pay to Buyer any deductible or self-insured retention applicable to such insurance coverage, and Buyer and Seller shall proceed to the Closing pursuant to the terms of this Agreement without modification of the terms of this Agreement and without any reduction in the Purchase Price. If this Agreement and the Escrow are terminated by Buyer by written notice delivered to Seller and Escrow Holder during such ten (10)business day period as provided above, then, notwithstanding the provisions of Section 11.1, Seller shall pay all Escrow cancellation charges, the Deposit and any other funds deposited by Buyer into Escrow, together with all interest earned thereon in Escrow, shall be returned to Buyer by Escrow Holder or Seller if previously released to Seller. 15. Waiver and Consent. Either party may specifically and expressly waive in writing any breach by the other party of any provision of this Agreement, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining, such consent for the same or any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. 16. Survivability. All covenants of Buyer or Seller which are intended hereunder to be performed in whole or in part after the Closing, and all representations, warranties and indemnities by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, executors, administrators, successors and assigns. 17. Further Documents and Acts. Each of the parties hereto agrees to cooperate in good faith with each other, and to execute and deliver such further documents and perform such other acts as may be reasonably necessary or appropriate to consummate and carry into effect the transactions contemplated under this Agreement. 18. 1031 Exchange. In the event either party so desires, the parties agree to cooperate with each other in completing the purchase and sale of the Property as part of a tax deferred exchange pursuant to the provisions of Section 1031 of the Internal Revenue Code of 1986, as at-nended. Seller and Buyer agree to execute any and all additional documents as may be -19- \A:1Ci idyliCinstlerlvillage mnnlviliage Inn PSA DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) reasonably required in connection with such exchange; provided, however, that(a)the successful completion of any such exchange shall not delay the date of the Close of Escrow as provided for herein, (b) neither party shall be required to expend additional consideration or incur additional liabilities to the other party or to third paa-ties as a result of any such exchange, (c) any documents to be executed in connection with any such exchange shall be delivered at least five (S) business days prior to the Close of Escrow, (d)the cooperating party shall not be required to take legal title to any other real property in com-rection with any such exchange, and(e) the exchanging party shall protect, defend, indenu-iify and hold the cooperating party free and harmless from and against any and all claims, damages, costs and liabilities (including, without limitation, attorneys' fees and costs) arising out of or relating to such exchange. 19. Miscellaneous, 19.1 Successors and Assigns. Neither Buyer nor Seller shall voluntarily or by operation of law assign or transfer any right, interest or obligation hereunder without the other party's prior written consent, which consent pray not be unreasonably withheld. Notwithstanding the foregoing, Buyer shall have the right, without Seller's consent,to transfer Buyer's rights and interests under this Agreement to a joint venture, limited liability company. partnership or other entity, so long as (a) Buyer or an affiliate of Buyer or its principals retains a substantial interest or a managing interest in such joint venture, partnership or other entity; (b) Buyer shall remain primarily liable for the performance of Buyer's obligations under this Agreement; (c)the assignee must expressly assume in writing all of Buyer's obligations under this Agreement; and (d) Buyer shall deliver to Seller a copy of the fully executed written assignment and assumption agreement between Buyer and such assignee at least three (3)business days prior to Closing. Subject to the foregoing, each and all of the covenants and conditions of this Agreement shall inure to the benefit of and shall be binding upon the respective heirs, executors, administrators, successors and assigns of Buyer and Seller. As used in this Section,the terra "successors" shall refer to the successors to all or substantially all of the assets of a party and to a party's successors by merger or consolidation. 19.2 Attorneys'Nees. If any legal action is instituted between Seller, Buyer or Escrow Holder in connection with this Agreement,then the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs and reasonable attorneys'fees. Buyer and Seller shall each bear their own attorney's frees for the preparation and negotiation of this Agreement. 19.3 Nqtces. All notices, requests, demands, and other communications required or pertnitted under this Agreement shall be in writing(including facsimile communications) and shall be (as elected by the person giving such notice) (i)hand delivered by messenger or courier service, (ii) sent via facsimile or email with confirming copy by mail, (iii) sent via overnight delivery service, or (iv) mailed by United States mail(postage prepaid), registered or certified,return receipt requested, addressed to the addresses set forth in the Summary Statement. Each notice shall be deeined delivered (1) on the date delivered if by personal delivery, (2) on the date of traiisniission with confirmed answer back if by facsimile or email during business hours at the recipient's address and at 9:00 a.m. on the next succeeding business day if not transmitted during business hours, (3) on the date delivered if by overnight delivery service, and (4) two (2) business days after deposit in the United States mail (postage -20- V1:1CindylKinstlerWiliage lnnlVillaffe lnn PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) prepaid)if by registered or certified mail. By giving to the other paries at least fifteen (15) days' written notice,the parties to this Agreement and their respective successors and assigns shall have the right from time to time and at arty time during the term of this Agreement to change their respective addresses and each. shall have the right to specify as its address any other address. 19. 1 Gender and Narne. In this Agreement (unless the context requires otherwise),the masculine, feminine and neuter genders and the singular and the plural shall be deemed to include one another, as appropriate. 19.5 Entire Ag cei- ent. This Agreement and its exhibits constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. All prior agreements, representations, negotiations and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein.... 19.6 Captions. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. 19.7 Time of Essence. Time is of the essence of every provision of this Agreement in which time is an element. 19.8 Governin Law. This Agreement and the exhibits attached hereto shall be governed by and construed in accordance with the laws of the State of California. 19.9 An-rendments. No addition to or nhodifrcation of any provision contained in this Agreement shall be effective unless fully set forth in writing by both Buyer and Seller. 19.10 Counterparts, This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. 19.11 Exhibits. All exhibits to this Agreement are incorporated herein by this reference as though fully set forth in the body hereof. 19.12 Time References. Any references in this Agreement to time for performance of obligations or elapsed time shall mean consecutive calendar days, months, or years, as applicable, unless otherwise explicitly indicated herein. In the event that the day on which Buyer or Seller is required to take any action under the terms of this Agreement is not a business day, such action shall be taken on the next succeeding business day. Whenever notice, approval or disapproval must be given to Escrow Holder and Escrow Holder is closed on the last day for taking such action, then the parties shall have until 5:00 p.m. on the first following day Escrow Holder is open to take such action. 19.13 Construction of AAmement. The agreements contained herein shall not be construed in favor of or against either party, but shall be construed as if both patties prepared this Agreement. -21- 1t Xiudyli<inst1u\Village lunlVillage lim PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) 19.14 No Recording Without Consent. Neither Buyer nor Seller shall, without the consent of the other party, record this Agreement or a short form or memorandum hereof, or take any other action that would materially and adversely affect the marketability of Seller's title to the Property. 19.15 Public Armouncements. Neither Buyer nor Seller shall issue a press release or other public announcement prior to the Closing regarding the transaction contemplated in this Agreement except as agreed to in writing by Seller and Buyer(in the exercise of their respective reasonable discretion). 19.16 Currencv. All dollar amounts are expressed in United States currency. 19.17 ASreement Binding_-Only Upon Execution. The delivery of this Agreement in unexecuted form by Buyer to Seller does not constitute either the agrecinent of Buyer or an offer by Buyer to purchase the Property upon the terms and conditions set forth herein, and this Agreement shall only be binding upon execution by both parties. The date on which the last of Buyer and Seller have executed this Agreement shall be referred to herein as the "Effective Date." _22_ VJ:1Ciiidy\KinsticrlVilla,,c InnWillage hnn PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) IN WITNESS WHEREOF, the paries have executed this Agreement as of the day and year first above written. har-los V .]�instle' I P L in la Kistler \. "BUYER" THRESA ROBERTA TOLL REVOCABLE TRUST, dated March 16, 2007 By: Elena Gratnont, Successor Co-Trustee "SELLER" -23-- I�1:1CinclylKinsilerlVilla�e lnnWiilage hin PSA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. Charles V. Kinstler It Lynda Kinstler TIIRESA ROBERTA TOLL REVOCABLE TRUST, dated March 16, 2007 By: _ — /� Gy1)� rl� Mena Grarnont, Successor Co=I nstee "SELLER" REE E i -23- W:\CiEidy\1UistlerlViliage InnWillage Inn i'SA.DOC Hearing Officer-October 17,2016 Item No. 1f: Additional Materials(Applicant) 123 Marine Avenue(PA2016-133) JOINDER OF ESCROW HOLDER R Orange Coast Title Coinpatiy, the Escrow Holder under this Agreement, hereby certifies that the date of Opening of Escrow pursuant to Section. 3 of this Agreement is t�, ;QV: I �A)d, 2011, and agrees to be bound by the instructions set forth herein.. ORANGE COA T;,ITI"T'LE COST " � By: - Its: ` �f�% "ESCROW HOLDER" I i W:1CInd),llCnstler\VilIage Innl\village Inn PSA DOC Hearing Officer - October 17, 2016 - Item No. 1f: Additional Materials (Applicant) - (PA2016-133) NO. REVISION DATE (E)FP / F -� - - �- J F- -� T] -1 F- -� 7F - -1 F- -� �- I�\\ (E)SI6N 7\\_1 F - -1 F - -1L -� �- J L -� �I JI L -� L] L -LL J � JL JL J +' REPLACE(E)FIREPLAGE 3-10 ° EN7ER7A1NMEN 5PKR �4REA _ _ I (E)V I LLAGE INN �' �>L _ _j L _ _ _ J _ _ J�' �> RESTAUR�4NT ENTERTAINMENT I AREAN F_ -1 ✓ �/ i� � i' �/ L - I J � I � � - _ ! I_ _� <� 5PKR > (� C: CD +, W NN N L1_ J iii i � � i i L – J L – J �< > �� – Iw 4'_q° Q > 6) C - - lo AICC �- y0 n> - J ��' z 1 I cc Q (d � � i � � i d 6-3 06 Q > < >< i > � <��'✓ �i` i ��i i ��i � L EVENIN6 ENTERTAINMENT ARRANGEMENT c U -m i i i �<� > < i >< � < � >< � � 3 — v) 6 I i / //\//\� <� o � � -0 coN� (E)WEST ISI NI NG L _- J F_ -1 ° ' <' ' > ', <� <� 8001 L - J �� NJ 0 < ' > < i'> < � >< � > < � >< ✓ > J N 0) co 1 >< 2 SEATS v �� F - -1 E 5AR < /> o J Z No L - -1 LU r m co 1 - - L – J <^ <^ > 1 1 I I 25 SEAS IF - � <; �> L - J +r II Q 0 1 LI- J J � �� 17 �� _�L _ _l� _ � _ A z 2 LU L - J �<,I I > ��� _ L – J L J — _ — — � — � — � <��'� ����� < /> ' L -1 -1 -7 _ J _ 1 - - 1 - - 1 I IL – J </ I �,., I I 1 - - �– J L – J < > > (E)EAST DI N ING — Q 1 W O -1 ROOM N 1 I I I < > '74'SEATS '� ` I PAS' I o � � 4'-O" 6�_��, L _ J `�� < � >< � < > > iol - < > I I < ;> ��i SEAS llI > < � >< � > -�// � -— I l� EXISTING BIKE RACKS (E)HALL I I I �E)BBE I 1 1 � MEN REMOVED I I I � :21 I 1 >< > I (ALSO, SEE SHEET A-1) STOR. E STO _ i F ❑ (E)D SHWASH NG <� �< > I I (E) PROPERTY LINES UP LI J ��� I � 2❑ (E) SIDEWALK Z L I J \ Q 3❑ ROOF OVERHANG ABOVE Z CO (E) J \ Z I ❑4 TABLES AND CHAIRS, TYP. ALL OUTDOOR PATIO AREA CO co 10Z � i AO N 1 I 1 ' �� ^`\ I o J I 5❑ PATH OF TRAVEL, 1:12 MAX. SLOPE W LLj > Q � STOR. - � v o I � � w _ <� > I Q o z zz �J i i� i> I g < Q 0 0 � � J w (E)K I TGHEN (E)n I5HWA5H NG E MEN I u I 0 Co o 1f E57AU ANT > N o a L :A I m a (E)RE5TAURANT 5061 S� W Q < i >< � I (E)KITGHEN 466 5i= = m v 1 0 I TRAS � COOLER > > (E)O�i`IGE Ila S� (E)STORAGE TOTAL 4352 5F (E)GOOKL NE EXIT DOOR Q W/50UND I\ NEW PATIO 200 5F (E)�OMEN GASKETS,ETC. I� I EXIT � II H _ SENT I AL _ (E)P0017 PREP. _ = m (E)STORAOE (E)APT A50VE REST. 124 57- m I � (E)HALLWAY - - - - - - - - - - - - - TOT 124�i s� (E)GOOLER I _ t L07 AREA 12'7 MARINE AVE. 4475 5F j 1 (E)FREEZER LL! Imoz F 5EA7IN 67 00 < I ° I 14'-1 2" 2qW6 WEST n 1 N I NG ROOM 42 5EA75 O E J J EAST P I N I NG ROOM '14 SEATS LL LL! 5AR 25 5EA75 NEW PATIO 16 5EA75 O TOTAL 15-7 SEATSO (E)GARAGE Jul/ 2NI7 CC LU J STORY APARTMENT LL Z LL A50VE I I UP DATE: 8/29/16 DRAWN BY: TRUAX PROJECT NO. ® � THE VILLAGE INN r— IRI ST R AN SHEET SCALE: 1/4"=I'-O" ° � A-2 ° ° ° ° ° O ° ° © JAY A.TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. Hearing Officer - October 17, 2016 - Item No. 1f: Additional Materials (Applicant) - (PA2016-133) NO. REVISION DATE 70, I 5 I 5 I (E)LIVING I LU � N Q UI N N C > 0) (Qzc(E)MASTER � a �o BEDROOM c Uuj °' cd X00-0 Z -0 CONW O O OI (E) PROPERTY LINES J 2 N N �0 (E) O FLAT ROOP J r p U `U t ❑ (E) ROOF OVERHANG ABOVE O co (E)f<I TGHEN co b I I m �4 (E) PARAPETQ O N m 11 I m 5❑ (E) FIREPLACE CHIMNEY U (E)HALL m (E) FIREPLACE J I SLOFE SLOFE \ L - I 11 I 3 ,,gy�pp 0 I (E)BEnROOM BATH E MSTR. ON BATH I TUB/SHWR. o I co coo z01 e LU CV � Uj Q U Q � w zZo I (1=)HIGH RO®F J L�jQ J SLOPE J � (n 57AU AN7 > CC N O IS Io CL (E)RE57AURANT 3061 SF W Q (E)KITCHEN 466 517 m \ I (E)OFF I GE 118 SF I (E)STORAGE 11011 SF 707AL 4x52 5F NEW FATIO 200 SF I - I EN7 1 AL 0 _ cr, (E)AFT ABOVE REST. I24e1 SF — — — — — — TOTAL 1241 i SF I � I (E)LOW ROOF +t L07 AREA FM 5' 12`7 MARINE AVE. 4475 SF 12'- 0 c/) ol O DN 5EA7IN 67J Q E BATH (E)K I TGHEN I LL J (E)BI�RM# 14'-I V2" 5_2" 2q'-CJY2" I WEST P I N I NG ROOM 42 SEATS Q Q E,45T DINING ROOM '14 SE�4T5 J I O - o� SAR 25 5EA75 z NEW FATIO 16 SEATS O Din I I 707,4L 157 SEATS 010 Wa) J 0) Q LL I I I I I I DATE: I 8/29/16 DRAWN BY: (E)B17RM#2I I � (E)L I Y I NG 6 I TRUAX PROJECT NO. THE VILLAGE INN SHEET I � LL- I I A-4 © JAY A.TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. Hearing Officer-October 17,2016 Item No. 1g: Additional Materials 123 Marine Avenue(PA2016-133) LUNA & GLUSHON ATTORNEYS 16255 VENTURA BOULEVARD,SUITE 950 Century City Office ENCINO,CALIFORNIA 91436 1801 Century Park East,Suite 2400 TEL:818-907-8755 Los Angeles,CA 90067 FAX:818-907-8760 October 31, 2016 VIA EMAIL City of Newport Beach William Connors, Hearing Officer 100 Civic Center Drive Newport Beach, CA 92662 Re: 123 Marine Avenue (PA2016-133 Dear Mr. Conners: As you are aware, our law firm represents Marine Avenue Neighbors ("Neighbors') who strongly oppose the Applicant's request for a 10 year extension of the Abatement Period specified by section 20.38.100 of the Newport Beach Municipal Code as to the non-conforming commercial use into the residential zone. This shall supplement our prior letter dated October 14, 2016 and is in response to the additional information provided to you by the Applicant and staff. 1. No Evidence that Non-Conforming Use was ever Lawful As noted by you at the public hearing, the foundational issue for you to decide is whether there is substantial evidence that the non-conforming use was lawful at the time of the issuance of the 2001 building permits. While the Director's prior determination that the use was legal non-conforming is evidence to be considered, it is nothing more than a conclusion based on an "assumption' without any evidence of a lawfully issued building permit or, even without a permit, that such non-conforming use was lawful. Neither the Director, nor staff, nor the Applicant has provided the Hearing Officer with any evidence (much less the legally required "substantial evidence") that the non-conforming use was lawful in 2001 or prior thereto. Without any evidence (i.e.: legal building permit, such use was lawful in any Hearing Officer-October 17,2016 Item No. 1g: Additional Materials 123 Marine Avenue(PA2016-133) City of Newport Beach William Connors, Hearing Officer October 31, 2016 Page Two event in 2001), there is no legal basis to grant any extension of time on the Abatement Order. By law, legal non-conforming status of a structure must be supported by validly issued building permits. City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1107; see also County of Sonoma v. Rex (1991) 231 Cal.App.3d 1289, 1297 ("A nonconforming use is one which lawfully existed prior to the effective date of the zoning restriction and which continued thereafter in nonconformity with the ordinance"); Melton v. City of San Pablo (1967) 252 Cal.App.2d 794, 805; City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1107 (Court rejected that a structure was entitled to the benefit of the doctrine of pre-existing non- conforming use and rejected claim that it was "unfair to expect a property owner to come up with documentation when so much time has elapsed and city records are incomplete"). The Applicant has completely failed to meet its burden of proof that the subject non-conforming use was ever lawful and the Courts have been clear that where an owner's use of property is not lawfully established, the property owner is not entitled to the benefit of the doctrine of pre-existing non-conforming use. 2. The Applicant has Failed to Provide any Evidence to Support its Request for an Extension of 10 Years. Reference is made to our prior letter which addressed how all of the legal findings for the requested extension cannot be made with supporting evidence. The Applicant has further failed to submit any further evidence to support its request for a 10 year extension. The sole reason for the request is to "weigh options." Even if the Hearing Officer disregarded the reality that the non- conforming use has never been lawful, there is zero evidence to support any lengthy extension. While the Neighbors reserve their rights to challenge any extension, to the extent that the Hearing Officer determines that the non- conforming use was lawfully established in the first place, any extension of time should not exceed one year. This period provides more than adequate time for the Applicant to "weigh options." Hearing Officer-October 17,2016 Item No. 1g: Additional Materials 123 Marine Avenue(PA2016-133) City of Newport Beach William Connors, Hearing Officer October 31, 2016 Page Three For all of the reasons set forth above and in our prior letter, the Neighbors request that the Hearing Officer deny the request for extension of the required Abatement Period specified by section 20.38.100 for the proposed Project. Very truly yours, LUNA &GLUSHON ROBERT L. GLUSHON Hearing Officer-October 17,2016 Item No. 1h: Additional Materials ENTITLEMENT 123 Marine Avenue(PA2016-133) RECORD - TEAM - : . aCADVIS©RSCC TY October 31, 2016 VIA EMAIL City of Newport Beach William Connors, Hearing Officer loo Civic Center Drive Newport Beach, CA 92662 Re: 123 Marine Avenue PA2o16-133 Village Inn Dear Mr. Conners: On behalf of my clients,the Village Inn (Dan Miller and Charlie Kinstler), I wish to offer the following additional justification for an extended abatement period for the restaurant kitchen encroachment as follows: 1. If we were required to abate the encroachment immediately, elimination of the restaurant storage/food preparation use of the encroachment would significantly impact the viability of the restaurant. 2. The food preparation/food storage area is necessary for the on-going restaurant operation to meet the Planning Commission's condition of the existing Conditional Use Permit which was granted without requiring removal of the food storage area. The Condition states that the restaurant"...shall make a good faith effort towards the goal of increasing the percentage of food sales to 40%or more..." We are currently achieving 42%food sales (and trending upwards),thereby meeting the goal of 40%food sales. But we can't do that without the portion of the kitchen under discussion. 3. The length of time the encroachment has been in existence without complaints shows that there have been no adverse impacts to the surrounding property owners. 4. A one-year abatement period is not sufficient,given the age of this building dating back over 8o years, to allow us to explore costly interior renovations to redesign the kitchen by possibly moving some dining upstairs,reduction of community gathering space in the rear of the dining room or exploration of other options,which may require time consuming and costly discretionary action by the city We respectfully request that you consider these points as we wish to honorably continue the enhance restaurant operations desired by most of Balboa Island and the Newport Beach community. Sincerely, CMUWT� Carol McDermott Cc: Brenda Wisneski Dan Miller 949.717.7939 offices 949.422-2303 cell 15000 Birch Street,East Tower,Suite 400,Newport Beach,CA,9266ol www.entitlementadvisors.com Hearing Officer- October 17, 2016 Item No. 1i: Additional Materials 123 Marine Avenue (PA2016-133) Subject: FW: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 From: Wisneski, Brenda Sent: Wednesday, November 02, 2016 9:43 AM To: bslawstuff@yahoo.com Cc: Garciamay, Ruby Subject: FW: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 For your consideration. From: Jim Mosher [mailto:jimmosher(a)yahoo.com] Sent: Wednesday, November 02, 2016 9:35 AM To: Wisneski, Brenda Subject: Re: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 Brenda, I have these additional comments for Hearing Officer Conners: 1. 1 notice the new Director's memo (Additional Materials 1e) is unsigned and refers to its subject as "127 Marine Avenue." My understanding is that the subject of the abatement proceeding is the residential property at 123 Marine Avenue, not the mixed use property at 127 Marine Avenue. 2. The new Director's memo does not address the question of whether the 2001 permit may have been issued in error. That is, did the development at 123 Marine Avenue become non-conforming as a result of a change in zoning regulations (as seems to be required as a basis for the hearing), or, despite the 2001 permit, did it never conform to the zoning? I personally do not know the answer. Evidently the rules for building across property lines have changed, but I do not know if the regulations for building commercial structures on non-commercial lots may have been different in the past or if the zoning of 123 Marine Avenue may have been different. For example, was 123 Marine Avenue once zoned for mixed use? 3. At the October hearing, I recall some possible confusion about what Mr. Sullivan lived "adjacent" to. I believe Mr. Sullivan's family lives at 121 Marine Avenue. It may help to clarify that while 121 Marine Avenue is not immediately adjacent to the Village Inn restaurant at 127 Marine Avenue, according to the City's maps 121 Marine Avenue does abut, and is immediately adjacent to the subject property at 123 Marine Avenue. Yours sincerely, Jim Mosher i Hearing Officer- October 17, 2016 Item No. 1i: Additional Materials 123 Marine Avenue (PA2016-133) From: "Wisneski, Brenda" <BWisneski(a�newportbeachca.gov> To: Sent: Monday, October 24, 2016 11:36 AM Subject: FW: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 Hearing Officer Meeting - October 17, 2016 Additional Materials Received Post Date: 10/24/2016 10:30 AM Planning Division News Splash: NOTICE OF ADDITIONAL MATERIALS RECEIVED NOTICE IS HEREBY GIVEN that additional materials were received, referenced as 1e and 1f, for the Hearing Officer meeting held on Monday, October 17, 2016. The complete agenda packet, including staff report and additional materials, can be accessed online. Please click here to view the complete Hearing Officer meeting packet . Written comments regarding this public hearing item should be submitted no later than 5:30 p.m., November 2, 2016, to Brenda Wisneski, Deputy Community Development Director, at bwisneski(a-)-newportbeachca.gov or 100 Civic Center Drive, Newport Beach, CA 92660. The Hearing Officer of the City of Newport Beach will consider the following application: Abatement Period Extension — 123 Marine Avenue - Request for extension of the required Abatement Period specified by Section 20.38.100 of the Newport Beach Municipal Code. A portion of the commercial structure located on 127 Marine Avenue extends onto the subject property which is zoned Two-Unit Residential, Balboa Island (R-BI). The applicant, who owns both properties, requests to allow the existing encroachment use to continue for an extended period of time without abatement. Please note: This is an automated message from the City of Newport Beach. Subscription preferences may be changed by accessing your News & Alerts account from the City website. Having trouble viewing this email? View on the website instead. Change your eNotification preference. Unsubscribe from all Newport Beach, CA eNotifications. ■ z Hearing Officer- October 17, 2016 Item No. 1j: Additional Materials 123 Marine Avenue (PA2016-133) Subject: FW: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 Attachments: 2011Jun - 123_Marine_Ave_-_Google_Maps_-_2016-11-02_13.44.52.jpg; 20140ct - 123 _Marine_Ave_-_Google_Maps_-_2016-11-02_13.46.42.jpg; 2015May - 123 M a r i n e_Ave_-_G o o g l e_M a p s_-_2 016-11-0 2_13.4 8.04.j p g From: Wisneski, Brenda Sent: Wednesday, November 02, 2016 2:22 PM To: bslawstuff@yahoo.com Cc: Garciamay, Ruby Subject: FW: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 One more correspondence for the record. From: Jim Mosher [mailto:jimmosher(a)yahoo.com] Sent: Wednesday, November 02, 2016 1:59 PM To: Wisneski, Brenda Subject: Re: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 Brenda, One more thing: I noticed Google Maps has pictures of the nonconforming structure from three recent years -- https://www.google.com/maps/Ca�33.6053619,- 117.8898128,3a,75y,270h,90t/data=!3m7!1 e1!3m5!1 s6Z gG4BksAW59kaVxXH4ZQ!2e0!5s2011060 1 T000000!7i13312!8i6656 https://www.google.com/maps/Ca�33.6053619,- 117.8898128,3a,75y,270h,90t/data=!3m7!1e1!3m5!1s6Z gG4BksAW59kaVxXH4ZQ!2e0!5s2011060 1 T000000!7i 13312!8i6656 https://www.google.com/maps/Ca�33.6053769,- 117.8898181,3a,75v,270h,90t/data=!3m6!1 e1!3m4!1 slRY2Rzvc8S7OJ 1 n8MLi3og!2e0!7i 13312!8i665 6 1 have attached screenshots. -- Jim i Hearing Officer- October 17, 2016 Item No. 1j: Additional Materials 123 Marine Avenue (PA2016-133) From: "Wisneski, Brenda" <BWisneskiCo)newportbeachca.gov> To: Sent: Monday, October 24, 2016 11:36 AM Subject: FW: Newport Beach, CA: Hearing Officer Meeting - October 17, 2016 Hearing Officer Meeting - October 17, 2016 Additional Materials Received Post Date: 10/24/2016 10:30 AM Planning Division News Splash: NOTICE OF ADDITIONAL MATERIALS RECEIVED NOTICE IS HEREBY GIVEN that additional materials were received, referenced as 1e and 1f, for the Hearing Officer meeting held on Monday, October 17, 2016. The complete agenda packet, including staff report and additional materials, can be accessed online. Please click here to view the complete Hearing Officer meeting packet . Written comments regarding this public hearing item should be submitted no later than 5:30 p.m., November 2, 2016, to Brenda Wisneski, Deputy Community Development Director, at bwisneski(a.newportbeachca.gov or 100 Civic Center Drive, Newport Beach, CA 92660. The Hearing Officer of the City of Newport Beach will consider the following application: Abatement Period Extension — 123 Marine Avenue - Request for extension of the required Abatement Period specified by Section 20.38.100 of the Newport Beach Municipal Code. A portion of the commercial structure located on 127 Marine Avenue extends onto the subject property which is zoned Two-Unit Residential, Balboa Island (R-BI). The applicant, who owns both properties, requests to allow the existing encroachment use to continue for an extended period of time without abatement. Please note: This is an automated message from the City of Newport Beach. Subscription preferences may be changed by accessing your News & Alerts account from the City website. Having trouble viewing this email? View on the website instead. Change your eNotification preference. Unsubscribe from all Newport Beach, CA eNotifications. ■ z 165 Marin Bea-ch �_� I _ � yM. • 1 ■- , bra � f. , Newport �- i7 1 �.1-111a 4 a„ a 4Bd Ol _ r '!s d 40V IF • •. i. ` 0� JJ ■ C." CIL. s _•• .l 1 *' M moil'" . •' bra 9 .J all get _ . ' +" r .,y'•` 7 .. + ��. ,� _ F•.. `moi ` 6 ir 40 ■i jp WA fb '0 e 4— - . 11 • _- - - tAN1 i f d +� r NO 5 _ -M- + r r 94 s u A •r _ -- — '■. • Za ass [ 9 ■ I •� � . � I I' I I I � in , _ - - Hide imate fM aL. 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M, VS a F4 it 4p 31 alz -IL e a Rs ' ! - - _ r ir - yam_= y '" a . ■ Nk 11 kh 46 r xq vt hk- IL , a R 1 a ae 4!!k 1 n .� 1w w I - y I - i F da" — � • Hie d mag — ()O1 - - 1 Ip age a.c. r� M 2015 2016 fe Turnel " RePort a problem Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) WILLIAM B. CANNERS AND ASSOCIATES, MUNICIPAL LEGAL CONSULTANTS P. 0. Box 1521 COMMUNITY Pebble Beach, CA 93953 831.655.4301 NOV 14 2016 bslaw5tuff@yahoo.com SBN 76106 DEVELOPMENT .- November 7, 2016 Brenda Wisneski, AICP, Deputy Community Development Director City of Newport Beach, Community Development Dept. 100 Civic Center Drive Newport Beach, CA 92660 Re: Abatement Period Extension Nearing; Resolution of Decision; Index of Record. Dear Brenda, Enclosed is the executed Resolution (Final Decision) along with an Index of the complete record of the proceedings. Please provide a copy to the applicants and retain the original in your file. I will maintain my copy of the Staff Report and information along with an electronic copy of the final decision/Resolution. Note that you have the official recording of the Hearing, which you should retain indefinitely. Should litigation ensue, it will be vital to include a copy in the record. I would not automatically submit one to the applicant or anyone else unless they request a copy. I will send along an invoice by email in the near future which is my usual procedure. Please let me know who to sent it to if other than you. Thanks again for all of your assistance and support. It was a pleasure working with you. Respectfully, William B. Conners Hearing Officer Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—index of Record 123 Marine Avenue(PA2016-133) INDEX OF RECORD HEARING RE ABATEMENT PERIOD EXTENSION 123 Marine Avenue—October 17, 2016 The following documents have been entered into the Record of the Hearing set forth above, and constitute the complete record utilized by the Hearing Officer in rendering a decision herein, unless amended: 1. Agenda of the Hearing of October 17, 2016. 2. City of Newport Beach Hearing Officer Staff Report, Abatement Period Extension-123 Marine Avenue—(PA2016-133), 8 pages + Attachments No.'s 1, 2, A, B, C, D, and 3, added Proposed Site Improvement Plan for Village Inn dated 8119116. 3. Emails from Mike Sullivan to Brenda Wisneski dated October 12, 2016, 9:15 am, October 14, 2016, 9:36 am and October 14, 2016, 10:05 am. 4. Letter brief from Robert Glushon, esq. dated October 14, 2016, 5. Hearing sign in sheets (2) signed by attendees. 6. Hearing draft minutes dated 1011712016. 7. Email from Mike Sullivan dated October 18, 2016, with additional information. 8. Memorandum from Community Development Director Kim Brandt confirming August 30, 2016 Abatement Order after reviewing additional information, dated October 19, 2016. 9. Information from Applicant requested by HO, including photos of encroachment area, floor plans, purchase agreement (redacted). 10. News Splash, Planning Division Newsletter,Notice of Additional Materials Received, with notice of time limit for additional submittals after the Hearing was closed, dated October 24, 2016. 11. Email from Entitlement Advisors, Carol McDermott, outlining additional justifications for grant of Extension of Abatement Period for applicants, dated 1013112016. 12. Additional letter brief from Robert Glushon, esq. dated October 31, 2016. 13. Emails from Jim Mosher dated November 2, 2016, 9:35 am and 1:59 pm with additional information and photos of encroachment area from different years. 14. Tape recording of Hearing (in Planning Division files). 15. Resolution of Hearing Officer Approving Abatement Extension Conditionally, dated November 2, 2016. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) CITY OF NEWPORT BEACH } HEARING OFFICER AGENDA cq<,FOR�`P 100 Civic Center Drive, CDM Conference Room (Bay E-1st Floor) Monday, October 17, 2016 -2:00 PM Hearing Officer Members: Bill Conners, Hearing Officer The Hearing Officer meeting is subject to the Ralph M. Brown Act. Among other things, the Brown Act requires that the Hearing Officer's agenda be posted at least seventy-two (72) hours in advance of each regular hearing and that the public be allowed to comment on agenda items before the Hearing Officer and items not on the agenda but are within the subject matter jurisdiction of the Hearing Officer. The Hearing Officer may limit public comments to a reasonable amount of time, generally three (3) minutes per person. It is the intention of the City of Newport Beach to comply with the Americans with Disabilities Act ("ADA") in all respects. If, as an attendee or a participant at this hearing, you will need special assistance beyond what is normally provided, the City of Newport Beach will attempt to accommodate you in every reasonable manner. Please contact the Community Development Department at least forty-eight (48) hours prior to the hearing to inform us of your particular needs and to determine if accommodation is feasible at 949-644-3200. If in the future, you wish to challenge in court any of the matters on this agenda for which a public hearing is to be conducted, you may be limited to raising only those issues which you (or someone else) raised orally at the public hearing or in written correspondence received by the City at or before the hearing. The agendas, minutes, and staff reports are available on the City's web site at: www.newportbeachca.gov/hearingofficer and for public inspection in the Community Development Department, Planning Division located at 100 Civic Center Drive, during normal business hours. If you have any questions or require copies of any of the staff reports or other documentation, please contact the Community Development Department,Planning Division staff at(949)644-3200. APPEAL PERIOD: An appeal may be filed with the Director of Community Development or City Clerk, as applicable, within fourteen (14) days following the date the action or decision was rendered unless a different period of time is specified by the Municipal Code (e.g., Title 19 allows ten (10) day appeal period for tentative parcel and tract maps, lot line adjustments, or lot mergers).For additional information on filing an appeal,contact the Planning Division at 949 644-3200. I. CALL MEETING TO ORDER II. PUBLIC HEARING ITEM(S) 1. Abatement Period Extension - 123 Marine Avenue (PA2016-133) Site Location: 123 Marine Avenue Project Summary Request for extension of the required Abatement Period specified by Section 20.38.100 of the Newport Beach Municipal Code. A portion of the commercial structure located on 127 Marine Avenue extends onto the subject property which is zoned Two-Unit Residential, Balboa Island (R-BI). The applicant, who owns both properties, requests to allow the existing encroachment use to continue for an extended period of time without abatement. CEQA Compliance The project is categorically exempt under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). Recommended Action 1. Adopt draft resolution approving Abatement Period Extension to ten years, November 1, 2026. Hearing Officer-October 17,2016 Item No.1k: Additional Materials Hearing Officer—Index of Record 123 Marine Avenue(PA Realri nAg Officer Meeting October 17, 2016 Page 2 III. PUBLIC COMMENTS ON NON-AGENDA ITEMS Public comments are invited on agenda and non-agenda items generally considered to be within the subject matter jurisdiction of the Hearing Officer. Speakers must limit comments to three (3) minutes. Before speaking, we invite, but do not require, you to state your name for the record. The Hearing Officer has the discretion to extend or shorten the speakers' time limit on agenda or non-agenda items, provided the time limit adjustment is applied equally to all speakers. As a courtesy, please turn cell phones off or set them in the silent mode. IV. ADJOURNMENT Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) CITY OF NEWPORT BEACH HEARING OFFICER STAFF REPORT October 17, 2016 Hearing Agenda Item 1 SUBJECT: Abatement Period Extension — 123 Marine Avenue - (PA2016-133) APPLICANT: Dan Miller, Operator, Village Inn PLANNER: Brenda Wisneski, Deputy Community Development Director (949) 644-3297, bwisneski@newportbeachca.gov PROJECT SUMMARY Request for extension of the required Abatement Period specified by Section 20.38.100 of the Newport Beach Municipal Code. A portion of the commercial structure located on 127 Marine Avenue extends onto the subject property which is zoned Two-Unit Residential, Balboa Island (R-BI). The applicant, who owns both properties, requests to allow the existing encroachment use to continue for an extended period of time without abatement. RECOMMENDATION Staff recommends the Hearing Officer conduct a public hearing, receive testimony from the applicant, the city staff, and members of the public. At the conclusion of the public hearing, it is recommended that the Hearing Officer: 1. Adopt the attached Resolution for the property located at 123 Marine Avenue, based on the findings and considerations discussed in this report, approving the Abatement Period Extension to ten years, November 1, 2026 (See Attachment No. 1). Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 2 VICINITY MAP I_4 215 I� 4 1 `2-05 2i 4{-�[ 1�;2. 213112 i� q, 1C 21_3 ,� ,`2,12 2i 3' •fir - F; 2,13 -- to , 9 2PY 210 21.1 A 210 291 f if, 4 271 L lei 209°1'12 s.. 209 � J208 Y� `y- 209 12!- 08 .9 �� 209y _.. , 1116 I ■',205 . 207 ^' �� 207 6 207 IS 2@ � h F 4 �Q 204 r 204 205112 I �f ::203 i _ 2031!2 !202'` 0 1204 i 201 12 1 ,X200 130&E4 fi ,200 . "201 lo. t 127 MARINE WITH s PARKAVE, a- STRUCTURE WHICH ENCROACHES 1305 127 125 124 A 125 2 R; 1221122 122^ 123 P 7 22 l -123 V i .;^ 1220 d I 121 11.8 s119 v��� I 119_112 FS UBJECT PROPERTY I ' 118 t nylii,7 1I r 117 I �' 1141U2 ' G 4 e 11,5 � 14 115, " F11 2112 193 01 113 112' y 1.1'3., GENERAL PLAN ZONING MU-1l 2 R-BI„ - RT RT a R-BI " RBI,. RBI RT MU-W2 z R-BI", .,- f�. RT �. RT,I `RT ,. �,. ,� `R B1 .,PF RTI- 01 yE MU-W2m PF R Bh T` jos ' RT2ul „RT _ RBI - PARK AVE ¢ PARR.AVE BI ,_, PF z,� �� 2 „ PF a. .. z,RT R-BI r. ... ,« RT,2, �,,, - , �, �, RBI�^ _ -. RBI R&tw ' RT T „a „f �w - BI �E a a RT'�' SUBJECT PROPERTY ""R-BI „ RT SUBJECT PROPERTY �� ��� R-BI 1, ,�, r. w, .„ RT:. _ _ ,oa RBI R-BI . RT " m eArc.,orirnurv� m S' m OS LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Residential —Two Unit Two Unit Residential, One Unit and encroachment of Balboa Island R-BI restaurant use North Mixed Use Water Related Mixed Use Water Related Restaurant and One Unit on Upper Level East,West Two Unit Residential, and South Residential —Two Unit Balboa Island R-BI Residential Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 3 INTRODUCTION Project Setting The subject property is located on Balboa Island at 123 Marine Avenue and is improved with two-car garage and upper level residential unit. It is located south of Balboa Island's commercial district which is zoned Mixed Use. A restaurant, known as Village Inn, is directly north of the site. A fire station is located across the street, at the corner of Marine Avenue and Park Avenue. Single-family and two-unit residences are located south of the property, as well as to the east and west. Project Description The applicant requests an extension of the required abatement period specified by Section 20.38.100 of the Newport Beach Municipal Code. The residential unit is consistent with the Two-Unit Residential, Balboa Island (R-BI) zoning designation. A portion of restaurant structure at 127 Marine Avenue, which is utilized for kitchen operations, encroaches onto the residential property. Both properties are owned by Charles Kinstler who purchased this property in April 2012. The property owner states that it was a condition of the purchase to acquire both properties because of the encroachment. Background The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two-Unit Residential, Balboa Island (R-BI). A restaurant and second-floor residential unit is located on the adjacent property at 127 Marine Avenue which is zoned Mixed Use-Water Related (MU-W2). The properties are owned by the same entity. In fact, the current property owner states that he was required to purchase both the properties because of the encroachment. An addition to the restaurant was previously completed which encroaches onto 123 Marine, shown in Attachment No. 2. The City is unable to locate building permits for the building addition; however, aerial photos indicate the encroachment has been in place prior to 1989. Subdivision Code Section 19.04.035 was amended in 2008 to prohibit the construction of structures across a property line. Historically, if parcels were owned by the same entity, then the exterior property lines were recognized. Today, several structures in the city straddle property lines. In 2001, building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the subject area extending beyond the property line which indicates the city was aware of the condition in 2001. Historic building records are not always complete. For this reason, the inability to locate a building permit does not necessarily render an improvement unpermitted. The aerial photos support the property owners claim that the structure has been in existence for several decades. Because of the evidence provided in the aerial photos and the Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 4 permits which were issued to maintain the area in 2001, it is the Community Development Director's determination that the subject addition was lawfully established. The Community Development Director issued a Determination of Nonconforming Status on August 30, 2016, provided as Attachment 2. The restaurant addition is used for kitchen preparation and storage. As a non-residential use located on a residentially- zoned property, the use is considered nonconforming as defined in Zoning Code Section 20.38.030B, which states that the Director shall determine the nonconforming conditions of land uses. "B. Nonconforming Use. Any use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City, shall be deemed to be a nonconforming use." Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. The current owner, after purchasing the property in 2012, implemented upgrades to the restaurant interior and is currently seeking approval for an outdoor dining area. During this process, several approaches have been considered for addressing the encroachment area. Options discussed included removal of the encroachment area, merging the properties, and changing the land use of residential parcel. The property owner has demonstrated that this portion of the restaurant is a critical component of the restaurant's operation: therefore, the owner chose to pursue an extension of the abatement period. If the extension is granted, the owner may pursue any of the remedies mentioned above at a future date. The extension will also provide the owner additional time to amortize the investment of the current improvements on the property. DISCUSSION General Plan The Land Use Element of the General Plan generally guides the future development of the City and would generally allow the continuation of legally established structures and uses and does not specify requirements for abatement of nonconforming uses. The Zoning Code is the regulatory tool that implements and regulates the provisions of the General Plan. Zoning Code To make the subject property consistent with the Zoning Code the abatement of the nonresidential structure would be required. However, the Zoning Code allows for a Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 5 procedure to grant an extension of the abatement period for the continued use of the existing building and use. The approval authority for the extension lies with the Hearing Officer in accordance with the provisions of Section 20.38.100C 4b of the NBMC. The Hearing Officer is also required to conduct a public hearing on the request in compliance with Chapter 20.62 of the NBMC. Findings and Considerations: In accordance with the provisions of Chapter 20.38 of the NBMC, the Hearing Officer, by resolution, shall approve, conditionally approve, or deny the request for an extension to the abatement period. The resolution shall include: findings of fact; evidence presented of economic hardship arising from the abatement proceedings; the nonconformity's impact on the community; and other factors that may affect the length of the abatement period required to avoid an unconstitutional taking. In accordance with the provisions of Section 20.38.100 (C-4c), the Hearing Officer in reviewing an application for an extension to the abatement period shall consider the following: (1) Length of the abatement period in relation to the owner's investment in the use; (2) Length of time the use was operating prior to the date of nonconformity; (3) Suitability of the structure for an alternative use; (4) Harm to the public if the use remains beyond the abatement period; and (5) Cost and feasibility of relocating the use to another site. The applicant has submitted the attached letter in conjunction with the application for extension of the abatement period (Attachment No. 3). Staff has reviewed the information submitted by the applicant and, where applicable, has summarized it below to address the findings and considerations for the property involved, that the Hearing Officer may use in making his determination. (1) Length of the abatement period in relation to the owner's investment in the use. The applicant is requesting an abatement extension of ten years. In 2012, when the property owner purchased the restaurant at 127 Marine Avenue, he was also required to acquire the property at 123 Marine Avenue. He suggests this requirement was due to the encroachment. Since the purchase, several interior improvements have been implemented to the restaurant to update the older, outdated interior. The one year abatement period specified by the Municipal Code is not sufficient duration to allow the property owner to explore interior renovations to redesign the kitchen or other options. Therefore, an extension of 10 years for the abatement of the encroachment is necessary to avoid an unconstitutional taking of the applicant's Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 6 property; and to avoid the economic hardship that will result by the abatement of the encroachment which is a critical component of the restaurant operations. (2) Length of time the use was operating prior to the date of nonconformity. Historic aerial photos indicate the encroachment was in place prior to 1989, prior to the applicant's interest in the property, and prior to the 2008 Subdivision Code Section 19.04.035 amendment to prohibit the construction of structures across a property line. Building permits were issued in 2001, which indicates the City of Newport Beach was aware that the area extended beyond the property line. The City of Newport Beach adopted an ordinance in 2010 which requires nonresidential uses located on residential properties shall be discontinued within one year unless an extension is granted by the Hearing Officer. (3) Suitability of the structure for an alternative use. The subject encroachment is located within the setback area of the residential development. A 3-foot setback is required for the residential parcel. It would not be appropriate for this area of the structure to be used for an alternative use. (4) Harm to the public if the use remains beyond the abatement period. The subject encroachment has existed since the 1980s. It serves as storage and access for the restaurant from the alley. The property owner owns both affected properties and can remedy any future concerns to these parcels. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. It is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public. (5) Cost and feasibility of relocating the use to another site. The encroachment area is used for food preparation and storage for the restaurant. Relocation of this component of the kitchen operations would require a complete redesign of the kitchen, reduction in seating area, and change in access. RECOMMENDATIONS As discussed in Finding and Considerations section above for the property, the applicant has presented information and a request to extend the abatement period. Staff recommends an extension period of ten years for 123 Marine Avenue to November 1, 2026 is consistent with previously approved requests and is appropriate in this case. That the request for the extension for ten years be approved based on the following findings and considerations: Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 7 1. That one year is not an adequate period of time to amortize the property owner's investment in the property. 2. That the encroachment has existed for 30 years and was not subject to abatement until 2010. 3. That the encroachment area cannot be modified to accommodate a residential use. 4. That the property is located in an area that is occupied by a mix of uses. It is anticipated that the continued use of the subject encroachment is compatible with the surrounding uses and will not have negative impact or pose harm on the neighboring residential and nonresidential uses in the vicinity. 5. That the restaurant encroachment has not posed negative impact on the neighboring uses. 6. Demolition of the encroachment is difficult since it is a critical component of the restaurant operations which cannot be easily relocated within the existing restaurant. The restaurant is unable to expand in other areas of 127 Marine Avenue as they have maximized the building footprint. Consequently, relocation of the existing uses would result in the additional costs and substantial loss of revenue to the property owner. 7. That the abatement extension of ten years (November 1, 2026) is appropriate in this case since it will afford the property owner the ability to consider redesigning the restaurant or considering other options. CONCLUSION Based on the information submitted by the applicant, adequate justification has been presented to extend the period of abatement. Therefore, in accordance with the provisions of Section 20.38.100 of the NBMC, the Hearing Officer may approve the request for extension of the abatement period based on the Findings and Consideration and testimony presented at the hearing. It is recommended that the Hearing Officer take the following action; Adopt the attached Resolution for the property located at 123 Marine Avenue, based on the findings and considerations discussed in this report, approving the Abatement Period Extension to ten years, November 1, 2026 (See Attachment No. 1). Environmental Review The project is categorically exempt under Section 15301, of the California Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). Public Notice Notice of this hearing was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) Abatement Extension —123 Marine Avenue October 17, 2016 Page 8 hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting which was posted at City Hall and on the City website. Submitted by: Brenda Wisneski, ICP Deputy Communit Development Director ATTACHMENTS 1 Draft Resolution Approving the Abatement Extension Request 2 Director's Determination w/ Attachments A. Site Plan B. 2001 Building Permits and Plans C. Zoning Code Section 20.38.100 Abatement Periods D. Aerial Photograph 3 Applicant's Extension Request 12/21/11 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment No. 1 Draft Resolution Approving the Abatement Request Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) RESOLUTION NO. HO 2016-### A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH APPROVING THE ABATEMENT EXTENSION PERIOD FOR THE PROPERTY LOCATED AT 123 MARINEAVENUE (PA 2016-133) WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC) requires nonconforming nonresidential uses in residential zoning districts to be abated and terminated upon the expiration of time periods identified by the NBMC. Following the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner may request an extension of the abatement period in order, to amortize a property owner's investment in the property and avoid an unconstitutional taking of property; and WHEREAS, an application was filed by Dan Miller, on behalf of the property owner of 123 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15, requesting an extension of the abatement period specified by the NBMC Section 20.38.100. If granted, the extension will allow the continued operation of existing restaurant located at 127 Marine Avenue for ten years from the date of the Hearing Officer's approval (November 1, 2026). The property is located in the Two-Unit Residential, Balboa Island (R-BI) Zoning District, where such nonresidential uses are not permitted; and WHEREAS, a public hearing was held on October 17, 2016, in the Corona del Mar Conference Room (Bay E-1 st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the meeting was given in accordance with the NBMC and other applicable laws. Evidence, both written and oral, was presented and considered at this meeting; and WHEREAS, the hearing was presided over by Bill Connors, Hearing Officer for the City of Newport Beach; and WHEREAS, the findings and considerations of Section 20.38.100 (C.4(c)) of the NBMC and facts in support of the findings and considerations are as follows: 1. The length of the abatement period is not appropriate considering the owner's investment in the use; Facts in Support of Finding: The applicant is requesting an abatement extension of ten years. In 2012, when the property owner purchased the restaurant at 127 Marine Avenue, he was also required to acquire the property at 123 Marine Avenue. He suggests this requirement was due to the encroachment. Since the purchase has implemented several interior improvements to the restaurant to update the older, outdated interior. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 2 of 3 The one year abatement period specified by the Municipal Code is not sufficient duration to allow the property owner to explore interior renovations to redesign the kitchen or other options. Therefore, an extension of 10 years for the abatement of the encroachment is necessary to avoid an unconstitutional taking of the applicant's property; and to avoid the economic hardship that will result by the abatement of the encroachment which is a critical component of the restaurant operations. 2. The length of time the use was operating prior to the date of nonconformity justifies the extension of the abatement period beyond the code specified one year. Facts in Support of Finding: Historic aerial photos indicate the encroachment was in place prior to 1989, prior to the applicant's interest in the property, and prior to the 2008 Subdivision Code Section 19.04.035 amendment to prohibit the construction of structures across a property line. Building permits were issued in 2001, which indicates the City of Newport Beach was aware that the area extended beyond the property line. The City of Newport Beach adopted an ordinance in 2010 which requires nonresidential uses located on residential properties shall be discontinued within one year unless an extension is granted by the Hearing Officer. 3. The existing structure is not suitable for conversion to an alternate use. Facts in Support of Finding: The subject encroachment is located within the setback area of the residential development. A 3-foot setback is required for the residential parcel. It would not be appropriate for this area of the structure be used for an alternative use. 4. No harm to the public will result if the nonresidential uses remain beyond the one year abatement period. Facts in Support of Finding: The subject encroachment has existed since the 1980's. It serves as storage and access for the restaurant from the alley. The property owner owns both affected properties and can remedy any future concerns to these parcels. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. It is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public. 5. The cost and feasibility of relocating the uses to another site cannot be accommodated within the one-year abatement period. Facts in Support of Finding: The encroachment area is used for food preparation and storage for the restaurant. Relocation of this component of the kitchen operations F:AUsers\PLN\Shared\PA's\PAs-2016\PA2016-133\PA2016-133-Reso.docx Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach Hearing Officer Resolution Abatement Extension (123 Marine Avenue) Page 3 of 3 would require a complete redesign of the kitchen, reduction in seating area, and change in access. WHEREAS, this activity has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. NOW THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby approves the requested Abatement Period Extension (PA2016-133), subject to the findings and considerations set forth above. Section 2. The Abatement Period Extension for the property located at 123 Marine Avenue, and legally described as Balboa Island Sec 4 Lot 15 Blk & Lot 16 Blk 1 Ex E 10 Ft Lots 15, is hereby extended for ten years and will expire on November 1, 2026, at which time encroachment shall be demolished, unless an additional extension of the abatement period is granted; or an appropriate change in the Zoning District and the General Plan Land Use Designation are approved and adopted; or a change to the Zoning Regulations pertaining to nonconforming uses or their abatement are approved and adopted prior to that date. Section 3. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 17TH DAY OF OCTOBER 2016. William B. Connors Hearing Officer for the City of Newport Beach F:AUsers\PLN\Shared\PA's\PAs-2016\PA2016-133\PA2016-133-Reso.docx Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment No. 2 Director's Determination w/ Attachments Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) WP©A� 100 Civic Center Drive 0� •f e Newport Beach,California 92660 949 644-3200 newportbeachca.gov/communitydevelopment �c r'9C11�flRN� P= - August 30, 2016 Carol McDermott, AICP Founder& Principal Entitlement Advisors 5000 Birch, Suite 400 East Tower Newport Beach, CA 92660 Re: Director's Determination of Nonconforming Status of Encroachment on 123 Marine Avenue- DD2016-004 Dear Ms. McDermott; The property at 123 Marine Avenue is developed with a two-story, single-family residence and is zoned Two-Unit Residential, Balboa Island (R-BI). A restaurant and second-floor residential unit is located on the adjacent property at 127 Marine Avenue which is zoned Mixed Use-Water Related (MU-W2). The properties are owned by the same entity. In fact, the current property owner states that he was required to purchase both the properties because of the encroachment. An addition to the restaurant was previously completed which encroaches onto 123 Marine, shown in Attachment A. The City is unable to locate building permits for the building addition, however, aerial photos indicate the encroachment has been in place prior to 1989. Subdivision Code Section 19.04.035 was amended in 2008 to prohibit the construction of structures across a property line. Historically, if parcels were owned by the same entity, then the exterior property lines were recognized. Today, several structures in the city straddle property lines. In 2001, building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the subject area extending beyond the property line which indicates the city was aware of the condition in 2001. See Attachment B. Historic building records are not always complete. For this reason, the inability to locate a building permit does not necessarily render an improvement unpermitted. The aerial photos support the property owners claim that the structure has been in existence for several decades. Because of the evidence provided in the aerial photos and the permits which were issued to maintain the area in 2001, it is the Community Development Director's determination that the subject addition was lawfully established. The restaurant addition is used for kitchen preparation and storage. As a non-residential use located on a residentially-zoned property, the use is considered nonconforming as defined in Zoning Code Section 20.38.030B, which states that the Director shall determine the nonconforming conditions of land uses. "B. Nonconforming Use.Any use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located Community Development Department Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City,shall be deemed to be a nonconforming use." Nonconforming uses are subject to the abatement procedures detailed in Zoning Code Section 20.38.100 and shall be discontinued within one year unless an extension is granted by the Hearing Officer. Abatement extensions have been granted for as long as 10 years. It is our recommendation that the property owner apply for an extension of time as soon as possible. If the Hearing Officer grants an extension, the structure may continue in its current condition provided required life safety and structural issues can be addressed. At the end of the extension period, the portion of the non-conforming use and structure located on 123 Marine Avenue would be required to be removed, unless another extension is applied for and is granted. All decisions of the Community Development Director may be appealed to the Planning Commission pursuant to Zoning Code Chapter 20.64 (Appeals) within fourteen (14) days following the date of this decision, by any interested party. Sincerely, Kimberly Brandt, AICP Community Development Director Attachments: A. Site Plan B. 2001 Building Permit and Plans C. Zoning Code Section 20.38.100 Abatement Periods D. Aerial Photograph Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment A Site Plan HeffiRg Officer-(Deteber 17,2016 — Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) P A R K A V C VI � 0 1) DD C fry n ro dyk Q F g A S ' r A DESIGN Village Inn FLOOR PLANS 127 Marine Ave. Balboa Island,CA 92626 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment B 2001 Building Permit and Plans Hearing Officer-October 17,2016 Item No.1k: Additional Materials Hearing Officer_Index of Record 3 arine Av n PA2 City of Newport Beach Building Department CIS 0ermi N�: ` 07-'l9T2 U PO Box 1768 Newport Beach,California 92658-8915 Permit Counter Telephone(849)444-3288 Inspection RequestsTelephone(949)644-3255 - Job Add-ess:127 MARINE AVE Floor: Suite:-.._ ... ..Bldg:i-. ...- ... IQescription of Work: REMODEL REAR ENTRYWAYIDOORIDRYWALL - - 1618-2001 Inspector Area: _ . ._.. _ _ Legal Desc: Owner: TOLL,THRESA&GEORGE Contractor- ��pp Architect: Address: 1841 LERWER LN Address: Address: - �* SANTA ANA, CA 92705 _ Phone: 714!731-0423 Phone: Phone: State Lie: Applicant: TOLL,THRESA&GEORGE Con State Lie: Engineer: Address: 1841 LERWER LN Lic Expire: Address: SANTAANA, CA 92705 Bus Lie: Phone: 714!731-0423 Lie Exp Dale: Phone: State Lie-. Cade Edibon: 0 Workers'Compensation Insurance Designer: Type of Construction: Carrier: Address; _ Occupancy Group: Policy No: Added/New sq.ft.Bldg: Expire: Phone. Added/New sq.ft.Garage: - - .... ..... - -- -- - --No of Stories: Building Setbacks Rear: ! Special Conditions: No of Units: Front: ! - - - - - -- Left: - -1 . . ... __ Issued: Right: ! Use Zone: RSC Receipt# Parking Spaces: FEES - Construction Valuation: $2,300,00 _ Building Permit l=ee;. $66-.95 ..- .- Microfilm; ..- $1:32 Hazardous Mat -_ -..._ __:_-__-- _$0,00 -.-..--Fire Plan Check Fee: $48.20 Excise Tax: $0.00 Add Fire Dep HMQ: $0.00 Plan Review Fee: $0.00 Supplemental: $0.00 Park Ded: $0.00 Other Fee: $0.00 Inspection Fee: $0.0.0 .._Investigation.Fee:,. $tla}l}_:.-. - SJH-Trans: - $0.110 Clean Up Deposit: _$200.00 - - San Dist:. $0.00 Counter Review.:.. -- -$0.00-- Energy Compliance: $6.00 Ca Seismic Safety: $0.00 Zoning Plan Check: $27.15 Fair Share: $0.1110 Disabled Review- $6.00 OverTime Plan Check Fee: $6.00 ..TOTAL FEE 343.62 TOTAL PAYMENT :L48.20 TOTAL DUE: $295.42 - PROCESSED BY: - OTHER DEPARTMENT: ZONING APPROVAL. ——_ PLAN CHECK BY: - FIRE APPROVAL: - _.. _ .. APPROVAL TO-ISSUE: __.....GRADING-APPROVAL: - -- ------- --_ - _ - - WORK1 US•T BF-STARTED WITH A PER100 OF-180 DAYS FROM THE DATE OF VALIDATION - OR THIS PERMIT BECOMES NULL ANU VOID. _ PUBLIC WORKS: Hearing Officer-October 17,2016 Item No.1k: Additional Materials Hearing Officer-Index of Record APPROVALS DATE $}' COMMENTS OWNER�CUILOER DECLARATION FOUNDATION,: � r_ ROUGH GRADE Y � c , LINE er GRADE.CERT SETBACKSrc r QEGIli[tJlilOM OF COIIPEIAMUE �II�TN .--- ONS ERECTION PADS :. ,. , c,€.:f,..< .Mr is ..L.d::1 ,�r,... 1 ..1 FOOTINGS Not b r S� ED QTTAMR$= © 1 ,1_.1 l .< , r AN 1 SLAB ON GRADE V h 11r Tf. ... E't f rli'. I..-.a VA FRAIVIIiVG: ASBESIC9 I{OI[ r t E�. REGI{SLAB r,. . :?-r ,. .i,. r...FRO'1-.. .,. n -, ;�7 F'jr ,,,,r: c.. -1-. SUBFLOOR ROOF&BUILDING HT SUMATURE: EXT,SHEAR'HOLD DOWNS -.;i- GENERAL FRAMING FIREPLACES THROAT - � ..�� n� f;,, - LICENSED CON'TRAMOKSDECLARATIOt4 -. . INTERIOR&EXTFRiOR 1 INSULAI_10-N DRYWALL SUSPENCED CEiLiNG SHOWER LAFH WORKERS'COMRENSATION DECLARATION — EXTERIOR LATH :e IF .-3 .} 14 r SCRATCH 'PLASTER} (_ DAY, s I'vAASONRY PRE-GROUT :,; .,.;..•a.l „'r .. !�91SC. IN EC;IONS_ -- -. -_ .-- -- - - -- ----- - - - - .v"J(ff.F:..'-_.,:hr PERMIT EXTENSION ------- --- 1 ST EXP-LETTER 2NI) EXP.LETTER BUILDING FINAL CON.rRUr-Tiari',VINDINGAGENCY CPRTIFICATE;.,F OCCUPANCY TE31ANT NALL.!E REFUNDED :1 -7:4 DATE .- TYPE OF BUSINESS iJSE,. - 1�[J '!_ 701 b, Hearing Officer-October 17,2016 ase+ Item No.1k: Additional Materials—Hearing Officer—Index of Record t a� n e a(PA2Q16-1 3) City of Newport Beach Building Department ELEC � ►Z �ermit l�o: E2001-0961 IiILA11e-- PO Box 1768/3300 Newport Blvd, Newport Beach,California 92658-8915 Permit Counter Telephone(949)1644-3288 Inspection RequestsTeiephone(949)644-3255 Joh Addrqss:111 MARINE AVE I Btdg:1 Floor: Suite_ Description of Work: REMODEL REAR ENTRYWAYIDOOR/DRYWALL 82001-1972 /718 C Inspector Area: Code Edit:96 Legal Desc.: tQ INSPECTOR NOTES: Owner: TOLL,THRESA&GEORGE Contractor: Address: 1641 LERWER LN Address: SANTA ANA, CA 92705 Phone: 7141731-0423 Phone: Con.State Lic.: Receipt#: Lic Expire: Bus.Lic.: Processed By: Lic.Exp Date: FEE New Construction Receptacle/Switch/Outlets Motor-v Transformers HP/I(VA Temp Power Pole 0 $0.00 Residential ReceplOutlets 0 $0.00 0 to 1 HPIKW/KVA 0 $0.00 Temp Underground 0 $0.00 Multi-Family 0 $0.00 Fixtures 1 $0.93 1 to 10 HPIKW/KVA 0 $0.00 Sub Panel 0 $0.00 1-2 Famity 0 $0.00 Sep Circuit 0 $0.00 10 to 50 HPIMIKVA 0 $0.00 0 $0.00 50 to 100 HP/KWIKVA 0 $0.00 0 $0.00 Service Signs over 100 HPIKW/KVA 0 $0.00 Record Managment Fee: $0.27 0 to 600V up to 200A 0 $0.00 Branch Circuit 0 $0.00 Investigation Fee $0.00 0 to 600V over 200A 0 $0.00 each Add Circuit 0 $0.00 Piggy Back/Temp Power 0 $0.00 Plan Check $0.23 Over 600A11,000A 0 $0.00 Time Clocks 0 $0.00 Issuance $19.70 Supplemental Fee $0.00 TOTAL: $21.13 PAYMENT: $0.23 BALANCE:$20.90 LICENSED CONTRACTORS DECLARATION I hereby affirm under penalty of perjury that I am licensed under provisions of Chapter 9(commencing with Section 7000)of Division 3 of the Business and Professions code, Aporovals In�ctor/Date and my license is in fullforce and effect. license No: Class: Contractor: Grounding Electrode WORKERS'COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: Underground I have and will maintain a certificate of consent to self-insure for workers'comhensafion.as provided for by Section 3700 of the labor code.V the performance - - - - - of the work for which this permit is issued. Underslab/Floor _f have and wv94 maintain workers'compensation insurance,as required by Section 3700 of the labor code,for the performance of the work far which this permil is issued. _ My workers'compensation insurance carrier and policy numbers is: Rough Conduit Walls Carrier: Policy number. Expire r This section need not be completed if the permit is for one hundred dollars($100)or less. Rough Wiring Ceilings I certify that in the performance of the work for wh-ch lht�pe-mit is issued.I shall not employ any person in any manner so as to become subject to the workers'compensation laws Rough Service of California,and agree that if I should`eeome st,Sjei:-i tf..;:vfke(V compensation provisions of Section 3700 of the labor code,I shall fadhwith comply with those provisions. Temp Power Date:_ _ Applicant Signoture: Warning:Failure to secure workers'compensation coverage is unlawful,and shall subject an employer to criminal penalties and dvil fines up to one hundred Utility Co.Notified ($100,000),in additid,i to tho cost of rrnrrensaUon.dannges as-jro ide-1 fcr in SE-tion 3706 of the labor code,interest,and attorney's fees. Final . I hereby acknowledge hat I hav?read tni-apNicrtion;+hal"ie!ifor-mat'in ever d-correct;and that I am the owner,or duty authorized agent of the owner.1 agree to comply with city and sate h-v----gula`r3)onstfiction; a in do:.fig the v.ark authorized(hereby.no person wets be employed in violation of the labor code of the state of California relating to workmen's ob in�s7atian insurance. - Permittee Name(Poi t>f �t Address : WORK Mtt57 8E STARTED iNfflilN A PERIOD OF 180 DAYS FROM THE DATE OF VALIDATION OR THIS Signature of permitted �C}.�C'J p ���� 0� PERMfrBECOMES NULL AND YGIFD Hearing Officer-October 17,2016 Item No.1k: Additional Materials-Hearing Officer_lndex of Recor 123 Marine Avenue(PA2016-133) Mee JN0TjfVp , Cr" OF �'aM?MTTiACI�r 8YKO7 • `�• K".Q �a�LQ� _ S !2$L[$V$ +�1E/CAMT OF LPti11L nOND�1TIp1�A13�p8361tV$COYIotiROXL <FS1 RICFlON9 ANM `` __ nal� MAY 8$ 210MIDED AQAINS7 Till ICH - 3 - 1('o ` w_ 1.+JO ok_Vo . ON . -- l W9I A IlrRly OR�lp�AIN O0MMU1ilTY S�?RTCiD AL OF MANS.YOU - ----- - -' Il1OQAYIryRACT YOU COMMUNITY C C b dC�G�. o -_- jWOR To aoz�,rsMiki e• �?AODf A Y W 0.11 a�12.�'. ��� C�\11Y1� �L.S 1 aWYCOx tlT=jUzeD tl CRYOFNEWPORT BEACH ENCROACHMENT PERMIT StW1BEOBTAINED _ F+ORALLWOWW"MOW EASEMENTS&WOKS OF u,, V[L�AGE ISN �RE.S:����GE Qr0l������:�� CITY F H P T i iWAOYAI of T>I it FLUI IDES NOT f�0USWUTE CORES$On f LIIC ' I : TfMIT fftON, PoTdlOn��3�S�ur s�Oitx�Ei�rtTO�Fx�EnP�OR�1 NM NI AVE,. - - a ����� �� , .--- I IEICM TMSAi/ROYSl OCE WUCUlilUlTfE rIUT SNESF 1SO OP XUOE13 Z �i�fN EOYPWrCE1FlTii Atr,eGAOiAO�iC IOIf9i0 OROrI1+U1tEs. Y POUC1f/.iME Etf1'OF atTFPORt gfllCH AESERRuEE/fNE R1CM1 TO t1 nc /� ]�` �7 v�.��A G ilk RES I a E N C �. T /.2f Q ; WI;( ,�G pT L�lJol""► t �V�, �� rdGl �.iL��� OFniEimr#SpIlOAT6Fit{�t -1 BA 1 __ . _ . _ _ APFUtit<fY AC�gijEDGD1EMT: NF-\AJPORT BEACH Z/z ;�4 ------4- ' . .-7 FM GUMS - H&V i �iDaC_ ` r ,aCft' v,,/w,�(I� [ O°•( - i r -- -- - - - i - - - - ! - r _ - - € -r i y-' - - ir A7 YATOISAIE ► s + i = $M: DATE. -- — - - _ `f_ • - --- - �Qr � �o� r�a \a 1l eL ff ms.40,, -900r fav► LS � ct vrte ct5 4 'now, � yah ,� PLAN &L VAT 1n � OV nIf t-7- n . Q.P_t�ulo�t DOC Q �QL 1Ei'lI.iV l AvT ' � tllC�t1t - �o j e4A F _ _ __-: _ - : �_� - :_ : _ • : _ _ u� ZG, zoos: l Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment C Zoning Code Section 20.38. 100 Abatement Periods Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 20.38.100 Abatement Periods.O SHARE M11121 A. Nonconforming uses shall be abated and terminated upon the expiration of the periods of time identified in this section. B. All Zoning Districts When No Structure Is Involved. Nonconforming uses of land located in any zoning district, Planned Community District, or specific plan district that do not involve the use of a structure shall be discontinued within one year of becoming nonconforming. C. Residential Zoning Districts Involving a Structure. In residential zoning districts or in an area where residential uses are allowed in Planned Community Districts or specific plan districts, a nonconforming use of land involving a structure shall be discontinued as follows: 1. Abatement Period.A nonconforming use of land involving a structure in a residential zoning district shall be discontinued on the earliest date as follows: a. Within one year; or b. Upon the expiration of the term of a lease on the property.Any lease shall be the last lease entered into for the subject property prior to December 7, 2007; or c. Upon the expiration of a current operating license that is required by State law. 2. Order of Abatement. Whenever the Director finds that any of the conditions exist that are identified in subsection (C)(1)of this section, the Director shall issue a written order of abatement to the property owners and all persons in possession of the property. The owner and/or person in possession shall comply within the time and in the manner stated in the order. 3. Exception. Multifamily and two-family residential uses located in residential zoning districts and in areas where residential uses are allowed in Planned Community Districts or specific plan districts that are nonconforming only in terms of their number of units or parking shall not be subject to abatement. 4. Extension of Abatement Period. Following the issuance of an abatement order by the Director, a property owner may request an extension of the abatement period in order to amortize the property owner's investment and to avoid a potential taking of property either under the procedure outlined in this subsection or under the procedure outlined in subsection (C)(5)of this section (Extension of Abatement Period for Residential Care Facility). Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) a. Application Requirements. An application for an extension of the abatement period shall be filed with the Department no later than ninety(90)days prior to the expiration of the abatement period as specified in this section. The application shall include the following information in addition to other information required by the Department: i. The length of the requested extension of the abatement period; and ii. Evidence in support of the findings included in subsection (C)(4)(c)of this section (Findings and Considerations). b. Hearing Officer Hearing and Action. i. The Hearing Officer, as provided in Section 20.60.040 (Hearing Officer), shall be the review authority for applications for requests of extensions to abatement periods for nonconforming uses in residential zoning districts and in Planned Community Districts or specific plan districts where residential uses are allowed. ii. The Hearing Officer shall conduct a public hearing on the request in compliance with Chapter 20.62 (Public Hearings). iii. The Hearing Officer, by resolution, shall approve, conditionally approve, or deny the request for an extension to the abatement period. The resolution shall include: findings of fact; evidence presented of economic hardship arising from the abatement proceedings; the nonconformity's impact on the community; and other factors that may affect the length of the abatement period required to avoid an unconstitutional taking. c. Findings and Considerations. In reviewing an application for an extension to the abatement period the Hearing Officer shall consider the following: i. Length of the abatement period in relation to the owner's investment in the use; ii. Length of time the use was operating prior to the date of nonconformity; iii. Suitability of the structure for an alternative use; iv. Harm to the public if the use remains beyond the abatement period; and v. Cost and feasibility of relocating the use to another site. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) d. Notice to Owner. Following the hearing, the Department shall send a copy of the Hearing Officer's action to the owner of the property within ten (10)days following the date of the Commission's action. e. Appeals. Refer to subsection (F)of this section. 5. Extension of Abatement Period for Residential Care Facility. The abatement period for a residential care facility may be extended upon approval of an application by the Director under one or both of the circumstances outlined below.An application for an extension under this subsection is separate and apart from an application for an extension under subsection (C)(4)of this section. A residential care facility may apply for an extension under either or both procedures: a. When the owner or occupant has applied for a conditional use permit(Section 20.52.020)or reasonable accommodation (Section 20.52.070)in a timely manner and is diligently pursuing the applicable process, as determined by the Director; or b. When the business owner or occupant is contractually obligated to continue the provision of a program or service for one or more persons so long as any existing contract provides for a normal and customary term for the provision of those services. No term shall exceed sixty(60)days. D. Nonresidential Zoning Districts Involving a Structure. 1. Abatement Period. In nonresidential zoning districts, and in areas where residential uses are not allowed in Planned Community Districts or specific plan districts, a nonconforming use of land involving a structure shall be discontinued within ten (10)years after the Commission determines that the orderly termination of the nonconforming use is necessary to promote the health, safety, and general welfare and to comply with the provisions of the Zoning Code and goals and policies of the General Plan. 2. Order of Abatement. Whenever the Commission determines that the abatement of a nonconforming use is necessary in compliance with subsection (D)(1)of this section, the Director shall issue a written order of abatement to the property owners and all persons in possession of the property. The owners and/or persons in possession shall comply within the time and in the manner stated in the order. 3. Exceptions. The abatement period specified in subsection (D)(2)of this section shall not apply except in the following circumstances: Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) a. A different abatement period is specified in a Planned Community District or specific plan district; or b. The use is located in a landmark structure that is subject to the provisions of Section 20.38.070 (Landmark Structures), in which case there shall be no abatement period. 4. Extension of Abatement Period. Following the issuance of an abatement order by the Director, a property owner may request an extension of the abatement period in order to amortize the property owner's investment and to avoid a potential taking of property. a. Application Requirements. An application for an extension of the abatement period shall be filed with the Department no later than ninety(90)days prior to the expiration of the abatement period as specified in this section. The application shall include the following information in addition to other information required by the Department: i. The length of the requested extension of the abatement period; and ii. Evidence in support of the findings included in subsection (D)(4)(c)of this section (Findings and Considerations). b. Commission Hearing and Action. i. The Commission shall be the review authority for applications for requests of extensions to abatement periods for nonconforming uses in nonresidential zoning districts and in Planned Community Districts or specific plan districts where residential uses are not allowed. ii. The Commission shall conduct a public hearing in compliance with Chapter 20.62 (Public Hearings). iii. The Commission shall evaluate evidence presented of economic hardship arising from the abatement proceedings, the nonconformity's impact on the community, and other factors provided in subsection (D)(4)(c)of this section that may affect the length of the abatement period required to avoid an unconstitutional taking. iv. The Commission shall approve, conditionally approve, or deny the request for an extension to the abatement period only as required to avoid an unconstitutional taking of property. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) c. Findings and Considerations. In reviewing an application for an extension to the abatement period the Commission shall consider the following: i. Length of the abatement period in relation to the owner's investment in the use; ii. Length of time the use was operating prior to the date of nonconformity; iii. Suitability of the structure for an alternative use; iv. Harm to the public if the use remains beyond the abatement period; v. Cost and feasibility of relocating the use to another site; and vi. Other evidence relevant to the determination of whether an extension of the abatement period is required to avoid an unconstitutional taking of property. d. Notice to Owner. Following the hearing, the Department shall send a copy of the Commission's action to the owner of the property within ten (10)days following the date of the Commission's action. E. Enforcement. The City shall enforce the provisions of this chapter by civil action, utilization of the procedures in Chapter 20.68 (Enforcement), or any other proceedings or methods permitted by law. F. Appeals. 1. Decisions of the Director, Zoning Administrator, Hearing Officer, or Commission may be appealed in compliance with the procedures established in Chapter 20.64 (Appeals). 2. Council hearings on appeals of the Hearing Officer's decision shall not be de novo and the City Council shall determine whether the findings made by the Hearing Officer are supported by substantial evidence presented during the evidentiary hearing. The City Council, acting as the appellate body, may sustain, reverse, or modify the decision of the Hearing Officer or remand the matter for further consideration. The remand shall include specific issues to be considered or a direction for a de novo hearing. (Ord. 2010-21 § 1 (Exh. A)(part), 2010) Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment D Aerial Photographs Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) z _ LU LU - - r Z - Year 2014 r dft Jrr i TkCr - i A � I 1 r ... 121 112 Year 2001 Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 1 AW M If d + r Year 1989 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) Attachment No. 3 Applicant's Extension Request Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) WRITTEN STATEMENT REQUEST FOR EXTENSION OF ABATEMENT PERIOD FOR A NONCONFORMING USE IN A RESIDENTIAL ZONING DISTRICT 123 MARINE AVENUE, NEWPORT BEACH VILLAGE INN Summary Request for an extension of the abatement period for a nonconforming nonresidential use in an existing building located in a residential district. The subject property is located at 123 Marine Avenue, immediately adjacent to The Village Inn on Balboa Island. Existing uses at 123 Marine include: an apartment, a restaurant addition (storage/food preparation) and an open space area which is periodically used for special, community-sponsored events on Balboa Island. The property is designated RT, Two-Unit Residential, by the City's General Plan and is zoned R-BI (Balboa Island). The current owner was required to purchase both The Village Inn at 127 Marine Avenue and the property at 123 Marine Avenue in 2012 because of the restaurant encroachment. Based on historic aerial photos, it appears that the restaurant storage encroachment has been in place for over 30 years, since the 1980's, prior to the current owner's interest in the property. Both properties have been, and will continue to be, maintained under common ownership. Written statement responses A. What is the length of the requested extension of the abatement period? The applicant is requesting an abatement extension of ten years. In 2008, Subdivision Code Section 19.04.035 was amended to prohibit the construction of structures across a property line. Historically if parcels were owned by the same entity, the exterior property lines were recognized. The ten year abatement extension would allow the owner of the property to evaluate different options to address the non-conformity. B. What is the length of the abatement period in relation to the owner's investment in the use? The applicant has owned the property since 2012, and intends to own the property for several years. The length of the abatement period is necessary to: one, avoid economic hardship that would result if required to immediately abate the use of the property, and two, allow the owner to evaluate different options to address the non-conformity. 1 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) C. How long was the use operating prior to the date of nonconformity? Historic aerial photos indicate the encroachment was in place prior to 1989, prior to the applicant's interest in the property, and prior to the 2008 Subdivision Code Section 19.04.035 amendment to prohibit the construction of structures across a property line. D. What is the suitability of the structure for an alternative use? The structure was an addition to The Village Inn restaurant next door at 127 Marine. It is not suitable for a use other than to serve the restaurant. An alternative use at the site would require demolition of the restaurant addition and construction of new structure(s) to meet City codes. E. Will there be any harm to the public if the use remains beyond the abatement period? No, the structure has been there since the 1980's. It serves as storage and access for the restaurant from the alley. There are mixed uses along Marine Avenue to the north of the property and a fire station across the street. The restaurant addition has been in place for over 30 years, and it is anticipated that the continued use of the site will remain compatible with the surrounding land uses and will not create a negative impact to the adjacent residential uses or cause harm to the general public. F. What is the cost and feasibility of relocating the use to another site? It would not only be cost prohibitive, but also infeasible, to relocate the use, since it is used for food preparation and storage for the adjacent restaurant, The Village Inn. G. Is there any other evidence relevant to the determination of whether an extension of the abatement period is required to avoid an unconstitutional taking of the property? If the owner were required to abate the property immediately, that deprivation of the restaurant storage/food preparation use at the property would result in not only the taking of this property but also significantly impact the viability of the restaurant adjacent. The food preparation and storage area is necessary for the on-going restaurant operation in order to meet the Planning Commission's condition to the existing Conditional Use Permit that the restaurant "...shall make a good faith effort towards the goal of increasing the percentage of food sales to 40% or more..." Note that the restaurant is currently achieving 42%food sales (and trending upwards), thereby meeting the goal of 40%food sales. 2 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) The City has been aware of the restaurant addition since 2001, when building permits were issued for maintenance issues such as installing drywall, and replacing a door and lighting fixtures. The plans for the project depict the restaurant addition extending beyond the property line at that time. 3 � i C • � _ 1 .y � � r.+.='a^ F it 4 r.', �� .r t ,.•_'{' 1 '.'2� ..,Y ,,,r ,-. � �...; .,t.. l Z' t„�T3^rn"`TT'sT -�{- ax .w r. .✓. .Jr-'h..:kt. �. a Y ..< z .r.., d.._ - k 5- - <� L- ^�. �3:���.�: ...�, ,aim. '�..�.:•' Yg F.,_. „ �':S..;t _..._, .,, � ,.},fit.: '� .v,-, .i r ,;., ^,'h?. ""Y4 ti:.. A=..F,.r r=z ..'T`..; :.ra.--r„ m✓a i..� 3-._„�:... .,.:_ i3:. -. -_ b .'3 i .+c }' .vn �'}:_..J.' 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'>F��,r �,: a t. • � Q - UJ 81 sz - �. 5'`' ,.t !.1�5-.h��t .;�f Via'-s•_:..r k,Sy �f�;=f dtr,,� 7" 7 "� .V,.; �� -.C � � S�� �r� �`s' � x.q Fx'�..�., �s..;rd„ O _ � __rt f t _ € - x x: t: � r:a -t�4 Y` 1-, F< _. � ; N _. r d •,- - - r - s�',ti. $�� s+ -.. -za�`r?•,�r=.� 5 ,ei,� sS Ya--,-a � ��< akrr n a,,a �a-.. •f x,Y�;1`' �.,w ,�usY ark k t +, ,,5+s..-. �`wK Y[ �Fk1'�.:' a *�. ?a.,r,4 tt+`1"`fi�ry� ' y'•r k t� + '-"Fc, r.C. •' `dr .€a-'� { K !'-�- y ro :. k -.. - - 1 ED UJ Ng rr 1 � :.}.r.'�.,+4 h �;� * n x��I�r� � uy� �r r .ads��, 2�r ��1 ".�"�� r'r��rt�r' �..,�5 ry ��t`.� 4r�'*r'r �-„i"%' 41 • ' w a. �' ^ .c r N *' -' '" d {ti:,Jr; L r '^ty3,N. `. Axl ,r m q s a` d 'h, ix ,:.Crr ' i'�a1' t �' _ . • ,tk= � 7�'�.3. �a� r•�I.r���� � ����'� ��.r�a`'F-mss,_ r �� �:� R� � 's'"• �c'F���3Y�3.F �� � � :rFa„`< 7��`sF,� r�� F'4 `§ ,a#, aa 3.y r r.: r �I� 4 rk7t Y ! ,8 nn,,,ss, � t x� rr _" '�! -:' •�. �., �a r„t t ti a°r xu�� '�7s-,y,k't N k� a. 2.: i a q :. �. 'a ei";�.,� c �� �3 p€r ' .,a�n .�-- 3� 3'F:• tc � � � � .� -� U., .�ytaxa�tesjYa` �Eh.>'as,•"ss.7�- u''' �� '� Lu gill UJ Lu 00 igg r F � i iS�z ' ra ' `a'� a 'aF tr ?,k�. ����� yet.li�i,r�.•.i�c.�,�.�..�t.�•�+� sari .�_+----�--�.s�.L��—�-�—�—__,_� ♦ � sae• Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) From: Wisneski, Brenda Sent: Friday, October 14, 2016 10:08 AM To: Garciamay, Ruby Subject: FW: Village Inn For distribution and the Hearing Officer and posting. From: Mike Sullivan [mailto:sullivanphoto@roadrunner.com] Sent: Friday, October 14, 2016 10:05 AM To: Wisneski, Brenda Cc: Brandt, Kim; Suzanne Savary; Peter Bergman Subject: Re: Village Inn Thank you. That would be helpful. Does he have an email address you can give us? Thanks, Mike On Oct 14, 2016, at 9:54 AM, Wisneski, Brenda<BWisnesk'gnewportbeachca.gov>wrote: Mike, Thank you for your comments. If you wish your comments to be considered by the Hearing Officer, we will forward them on your behalf. Please let me know. Thank you, Brenda From: Mike Sullivan [mailto:sullivanphoto@roadrunner.com] Sent: Friday, October 14, 2016 9:36 AM To: Wisneski, Brenda; Brandt, Kim Cc: Suzanne Savary; Peter Bergman Subject: Village Inn Dear Brenda— Last I checked, your staff report has not been corrected. How is the hearing officer going to adaquately assess the the situation or our objections unless he is given correct information? The correct information needs to be supplied by you in your report. We don't want to squander our three minutes each, by correcting your report. Here are just some of what I mean. These items need to be fixed in the report before the hearing or the hearing needs to be postponed. Page 3. "In 2001, building permits were issued for maintenance issues such as drywall, replacing a door and lighting fixtures." Not exactly! One does not get a building permit for maintenance. Calling it "maintenance" might be a way to promote the narative that this structure was there for a very long time, such as the false claim that it was there since the "eighties." They called it a remodel. You called it "maintenance." Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) It is my recollection that the space between the residence and the restaurant was a covered breezeway, and the old door on the alley was a shoddy attempt to enclose the breezeway. Creating a real door and a wall spanning the two buildings completed the enclosure, making the breezeway an illegal four sided structure. It wasn't just a door, it was a door and a wall to span the entire width between buildings. The "maintenance" of drywall appears more like new instillation to cover the ceiling joists. Look at the price tag, $2300 in 2001. Someone is being snookered either back then or right now. In any case, this was more than just maintenance of an encroachment across a property line. Most importantly though, it was also the construction of an interior door connecting the commercial establishment with a residence for the obvious purpose of additional illegal use. And this was new, not maintenance, and not the eighties. This should have been red flagged as more than a mere encroachment, but illegal use, with code enforcement notified, and immediately corrected. This was malfeasance that can't be fixed now by doubling down on more damage to us. Page 3. "The aerial photos support the property owners claim that the structures have been in existance for decades." FALSE. The photo in staff's report shows nothing of the kind. This photo shows a continuous break between the two buildings from Marine Ave. all the way to the alley, with the single exception of a five foot roof to an open breezeway, which I had told you about over a year ago. It was the extension and enclosure of that breezeway, signed off by your inspector at the same time he noticed the shed having been built—that made it all illegal. And the city ignored it. If they were going to kiss it off, they would have been better not to mention the new shed. A breezeway between two buildings is not a structure. When you close it off at one end by building a shed, and at the alley on the other end with a wall and a door, then you have a four sided structure — an illegal one. And if you then connect the two buildings (one commercial and one residential) with an interior door you have further violated the city zoning laws. And none of this happened in the "eighties." I would gladly correct myself if there are meaningful photos that contradict my memory. I am currently looking for old photos of my own in case there is a stray shot of next door. My guess is late nineties for some of it, but obviously 2001 for the malfeasance mentioned. Page 3. "Because of the evidence provided in the aerial photos and the permits which were issued to maintain the area in 2001, it is the director's determination that the subject addition was lawfully established." FALSE. ERRONEOUS DETERMINATION based on false premises. The photo in staff's report "determined" the opposite. There is no structure that I could see in that photo. The "maintenance" appears not to be the repair of drywall but 2 Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) to install it in what had been a breezeway. And it was not just a door that was replaced but the entire wall and door that completed the enclosure. Since the director cited these unfounded conditions as reason to justify the recommendation, then it would be fair to say that the hearing officer should ignore that recommendation. Page 4. "The current owner, after purchasing the property in 2012, implemented upgrades to the restaurant interior." FALSE. These upgrades were to strip the place bare and dump all the broken equipment and furniture into the yard right next to my house for 4 months. The "upgrades" did include illegally tearing down the sound barrier behind the stage and enlarging the stage in violation of building codes and section 6 of their newly acquired entertainment permit, resulting in four years of torment for my family from their band music, which because of this illegal deconstruction can be heard in our house. And astoundingly, your own building inspector signed off on this illegality as well! And when code enforcement was notified, they also did absolutely nothing to enforce correction, and my family suffered. When code enforcement finally did order a correction a year and a half ago, still nothing happened, and you continued to advocate for them and make excuses to us about why there was no enforcement on this deconstructed sound barrier. Page 6. "The city of Newport Beach adopted an ordinance in 2010 which requires non residential uses located on residential properties shall be discontinued within one year unless an extension is granted by the hearing officer." NO EXTENSION WAS GRANTED. That was six years ago, even though the city knew about these illegal structures since 2001. Why not start the abatement period right then as the ordinance required? Or why not a year and a half ago when your office and you personally were made aware of these violations? You allowed them to stall for six years, and now recommend an extension for another ten years. That grants them a total gift of a 25 year extension beyond the date when the city should have taken some kind of action. An abatement extension of such magnitude amounts to a de facto variance. The city charter prohibits a variance for use. The charter also states that when there is a conflict between ordinances or statutes, the more strict will apply. We shall see if that happens. Page 34 section E. Will there be any harm to the public if the use remains beyond the abatement period? "No, the structure has been there since the 1980's. It serves as storage and access to the alley." No? How do you know that? Do you live next to it? First it has not been there since the 1980's. But it was once used for storage which made it tolerable. But these owners have demonstrated a disregard for the neighborhood. So now it's used as a food prepararion area, from which we hear the pounding (we think of meat or 3 Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) something) and the chopping of something, maybe vegetables, plus the other various kitchen noises. It's very annoying right next door, especially when it was not that way until these owners. This is no longer the once beautiful and quiet yard next door that we once enjoyed. Please forward us the email address for the hearing officer so we can apprise him of these corrections before the hearing. Thank you. Mike Sullivan Begin forwarded message: From: Mike Sullivan<sullivanphoto&roadrunner.com> Subject: Re: Village Inn Date: October 12, 2016 at 9:15:20 AM PDT To: "Wisneski, Brenda" <BWisneskiknewportbeachca.gov> Cc: "Brandt, Kim" <KBrandtknewportbeachca.gov>, "Harp, Aaron" <ahgM&newportbeachca.gov>, "Torres, Michael" <mtorresknewportbeachca.goy>, PETER J BERGMAN<piber mg an4kgmail.com>, Suzanne Savary<drsue@aol.com> Brenda—I have read your staff report. It contains numerous false statements, too many to address here. Just one example I have lived next door to the property in question for thirty eight years. These encroaching structures have not been here since the 1980's. They were canopies for shade. Your own building inspector illegally signed off on the conversion of one of these into a structure in 2001, and noted the recent construction of the other. This malfeasance cannot be covered up now by the city pretending otherwise. No one "required" the current owner(as stated)to purchase a property with obvious illegal structures. And the illegal use of the residential garage started with these owners. The garage to the residence was often used by the previous residential tenant for his car, and was empty when the current owner took over. There is so much more that is inaccurate in your report that we don't have time to correct it before the hearing. You have made this information available to us five days before the hearing. We need more time than that to prepare. How do we formally request a postponement of this hearing? Thank you, Mike Sullivan 4 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) LUTA. & GLUSHON ATTORNEYS 16255 VENTURA BOULEVARD,SUITE 950 Century City Office ENCINO,CALIFORNIA 91436 1801 Century Park East,Suite 2400 TEL: 818907-8755 Los Angeles,CA 90067 FAX: 818-907-8760 October 14, 2016 VIA PERSONAL DELIVERY City of Newport Beach Hearing Officer 100 Civic Center Drive Newport Beach, CA 92662 Re: 123 Marine Avenue PA2016-133 Dear Hearing Officer: Our law firm represents Marine Avenue Neighbors, a coalition of residents in the immediate vicinity of the Village Inn who are most directly impacted by its request for extension of the required Abatement Period specified by section 20.38.100 of the Newport Beach Municipal Code ("Project"). As set forth below, the City does not have the„-authority to simply "declare" the encroachment between the 123 and 127 Marine Avenue to be legal non-conforming. By law, legal non-conforming status of a structure must be supported by validly issued building permits. See City and County of San Francisco v. Board of Perrnit Appeals (1989) 207 Cal.App.3d 1099, 1107. Without such legal non-conforming status, the Applicant is not and cannot be entitled to any extension of an Abatement Period, as provided for in Newport Beach Municipal Code ("NBMC"). See NBMC sec. 10.38.020.A ("[t]he provisions of this chapter shall apply to all legally established uses and structures that become nonconforming due to reclassification, ordinance changes, or annexations). Accordingly, any action on the part of the City to approve the requested extension of Abatement Period would be illi. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Two 1. The encroachment is not and cannot be "legal-nonconforming" Under the NBMC, sec. 20.16.020.B, permits "shall" be obtained before the proposed use is commenced or the project is constructed and any activities associated with the use are commenced, or otherwise established or put into operation. Under NBMC, sec. 20,16.030.A.1, all permitted uses are expressly subject to compliance with all applicable provisions of this Zoning Code, issuance of a zoning clearance, and any building permit or other permit required by the Municipal Code. Moreover, NMBC sec. 20.38.030.B.2 specifically provides that a "use shall not be considered to have been "lawfully established and maintained" and is an illegal use if it was established or operated without required permits and licenses, including permits and licenses required by any Federal, State, or local government agency."" Here, it is uncontested that there is no evidence whatsoever that a building permit was ever applied for or issued for an addition to the restaurant which encroaches onto 123 Marine. It is further uncontested that, since 2008, under NBMC sec, 19.04.035, structures which cross a property line are illegal. Thus, having_never__been legal__and con,Lorming to the NSMC, the encroachment cannot now acquire the status of "legal non-conforming." See NBMC sec. 20.38.030B (a non-conforming use is "[a]ny use determined to have been lawfully established and maintained, but that does not conform to the use regulations or required conditions for the zoning district in which it is located by reason of adoption or amendment of this Zoning Code or by reason of annexation of territory to the City, shall be deemed to be a nonconforming use); Countzj of Sonoania v. Rex (1991) 231 Cal.App.3d 1289, 1297 ("A nonconforming use is one which lawfully existed prior to the effective date of the zoning restriction and which continued thereafter in nonconformity with the ordinance"). 1 In fact, as set forth above, to be a legally conforming use, the encroachment must have become "non-conforming" by reason of adoption or amendment of this Zoning Code or by reason of armexation of territory to the City. See NBMC sec. 20.38.030.B. It is not contested that this criteria is not met here. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Three As this Hearing Officer is well-aware, City staff has absolutely no authority to make such illegal structure, administratively "legal," in violation of both the NBMC and caselaw authority. Notably, the burden of proof is on the party asserting a right to a non- conforming use to establish the lawful and continuing existence of the use at the time of the enactment of the ordinance. On this point, the Courts have been clear: where an owner's use of property is not lawfully established,but rather, from the beginning operated in violation thereof, the property owner is not entitled to the benefit of the doctrine of pre-existing non-conforming use. Melton v. City of San Pablo (1967) 252 Cal.App.2d 794, 805; City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1107 (Court rejected that a structure was entitled to the benefit of the doctrine of pre-existing non-conforming use and rejected claim that it was "unfair to expect a property owner to come up with documentation when so much time has elapsed and city records are incomplete"). Here, that burden has undoubtedly not been met. 2. The findings for an extension weigh against the„extension. a. The length of the abatement period in relation to the owner's investment in the use; When the applicant purchased the property in 2012, he did so with the clear knowledge that the encroachment was, in fact, illegal (the Applicant admits as much when he admits that he had to purchase both properties as a result of the encroachment). He now seeks a reward of 10 years (!) for his knowledgeable violation of the law. Having moved forward with full knowledge, the applicant cannot now claim hardship. This finding weighs heavily against the extension. b. Length of time the use was operating prior to the „date of nonconformity; Again, this finding does not and cannot weigh in favor of the applicant because, as set forth above, the encroachment is not and cannot be legal non- conforming. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Four c. Suitability of the structure for an alternative use.- Staffs se;Staff's comment that "it would not be appropriate" for the setback area where the encroachment is located to be used for an alternative use is absurd. It is always "appropriate" to use the setback area for its intended legal use as a setback area. In fact, next to residential development, a setback area from the restaurant is the most appropriate use. Therefore, this finding also weighs against the extension. d. Harm to the public if the use remains-beyond the abatement period; and Staff's comment that the encroachment is "compatible" with the surrounding land uses is not supported by any evidence, let alone substantial evidence. In fact, use of the restaurant, a commercial use, encroaching into the residential area has caused severe impacts onto the neighborhood, including severe and unabated noise impacts. It is the applicant's duty and responsibility to operate his business in a lawful and respectful manner - he has failed to do so. Therefore, this finding also weighs against the extension. e. Cost and feasibility of relocating the use to another site. The fact that the relocation of the encroachment would be at a cost does not in and of itself warrant this finding to weigh in favor of the extension. All business, improvements thereto and operations thereof require costs. Such costs need to be weighed against the impacts and harm to the surrounding residential neighborhood. Clearly it would be a lower cost for the applicant to abide by Code and remove the encroachment than it would for all surrounding neighbors to soundproof their homes and lose enjoyment of their backyards. This finding heavily weighs in favor of the neighbors. 3. A Categorical Exemption from the California Environmental {duality Act is not appropriate. In an attempt to comply with the California Environmental Quality Act ("CEQA"), staff recommends adoption of a Class 1 Categorical Exemption for Existing Facilities, This is in error. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach Hearing Officer October 14, 2016 Page Five As a preliminary manner, the exemption fails on its face because, for all of the reasons set forth above, the encroachment is illegal. An illegal structure cannot be considered an"existing" facility. Furthermore, CEQA prohibits use of a categorical exemption when "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)). The "unusual circumstances" exception is established without evidence of an environmental effect upon a showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 CalAth 1086. Here, the encroachment for which the applicant seeks extension of the required Abatement Period constitutes a commercial use on residentially zoned property. Such unusual circumstances cause adverse and disproportionate impacts, such as noise, onto the residential community, impacts which would not be as severe if the use was appropriately confined to commercially zoned land. Therefore, the existence of the commercial encroachment on residentially zoned property distinguishes the Project from others in the exempt class, and the use of the within Categorical Exemption is not appropriate. For all of the reasons set forth above, Marine Avenue Neighbors request that the Hearing Officer de gay the illegal re nest for extension of the required Abatement Period specified by section 20.38.100 for the proposed Project. Very truly yours, LUNA & GLUSHON ROBERT L. GLUSHON Hearing Officer-October 17,2016 Item No.1k: Additional Material s_Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) c HEARING OFFICER C�c � `� HEARING DATE: October 17, 2016 Application No.: Project Address: Please Print NAME ADDRESS EMAIL Optional SUPPORT OPPOSED E] 1:1! on l` C'Ske� 2 (U t�r,`� Gam' (� �Q �i� 5 �(,+ a�R cep TJ L� (/e,�cv,e,4 -t, c/� i o r ❑� l Y" �Sh�"" `�rrna vS"ka x_ Ca m _ 1 r ElAx / El L1 S rM N bJ m El tl0GAU3,-��" 11 IX E su L L l vA 1J ( -Z / MMI tJe 5ZANP SuZLIVANPAoTo @,Po A'RuN . El CoM F:IUsers\CDDISharedlAdmin\Planning_l)ivision\Hearing—Officer\HO Sign_ln Sheet Tmplt:11-30-11 Hearing Officer-October 17,2016 Item No.1k: Additional Material s_Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) aSwPORE a. p HEARING OFFICER r) HEARING DATE: October 17, 20116 Application No.: Project Address: Please Print NAME ADDRESS EMAIL Optional SUPPORT OPPOSED ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ E El ❑ ❑ F:\Users\GDD\Shared\Adm in\Planning_Division\Hearing_OfficeAHO_Sign_ln_Sheet Tmpit:11-30-11 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 NEWPORT BEACH HEARING OFFICER MINUTES 100 Civic Center Drive, Newport Beach Corona del Mar Conference Room (Bay E-1St Floor) Monday, October 17, 2016 REGULAR HEARING 2:00 p.m. I. CALL TO ORDER—The meeting was called to order at 2:01 p.m. Present William B. Conners, Municipal Law Consultant, Hearing Officer Staff Present: Brenda Wisneski,AICP Deputy Community Development Director II. PUBLIC HEARING ITEM(S) ITEM NO. 1 Abatement Period Extension (PA2016-133) 123 Marine Avenue Council District 5 Hearing Officer Conners introduced himself and provided a brief personal background. The public hearing concerned a request to extend the required abatement period as set forth in Newport Beach Municipal Code Section 20.38.100. A commercial structure located at 127 Marine Avenue extended onto the adjacent residential property located at 123 Marine Avenue. Because the structure crossed the property line, it was considered to be an existing, nonconforming use. As specified in the Code, in order to remain beyond the one-year abatement period the applicant must be granted an extension to bring the property into compliance. The Zoning Code set forth issues to be considered in deciding whether or not to grant an extension. While he had been appointed by the City of Newport Beach to act as Hearing Officer, he would not favor the City. The decision would be based only on the evidence presented at the hearing. He opened the public hearing and provided an overview of his procedures and expectations for the hearing. Brenda Wisneski, Deputy Community Development Director, provided a brief project description stating that the City had been working with the property owner to resolve the nonconforming, nonresidential element located at 123 Marine Avenue. Deputy Director Wisneski identified it as a legal, nonconforming use. The property owner was required to eliminate the use within one year unless an extension of ten years was approved by the Hearing Officer. The applicant requested a ten-year extension, and staff supported the request. The current property owner obtained the property in 2012. The structure appeared to have been in place for several decades. In 2001, the City issued building permits for the encroachment area. The City's issuance of the permits indicated the City understood the use was in existence at that time. In 2008, the updated Subdivision Code precluded buildings from crossing property lines, which changed the circumstances of the existing structure. When the current property owner purchased the property in 2012, they were under the assumption that they had to purchase both properties because of the existing encroachment. Staff felt the property owner's significant investments justified the ten-year extension. At the end of the ten-year extension period, the property owner could request another extension; remove the improvements; or request a change in the land use for 123 Marine Avenue and merge the properties. Staff did not feel retaining the current situation would be detrimental to the neighborhood. Mike Sullivan noted Ms. Wisneski stated the City issued a permit for building maintenance. A permit for maintenance did not make the property permittable. There was never a building permit to allow the structure to exist. In response to Hearing Officer Conners' inquiry, Mr. Sullivan indicated he had read the building permit contained in the record. Hearing Officer Conners inquired whether the permit referred to a certain structure located half on one property and half on the other. Mr. Sullivan stated they needed to define whether the permit was to build the structure or to conduct maintenance. Page 1 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 Deputy Director Wisneski clarified that the 2001 permit was for improvements to the existing structure. From aerial photographs, it was apparent the structure was in place prior to that. The Director's Determination indicated the lack of permits did not mean a structure was an unpermitted development because of incomplete records. Mr. Sullivan felt that was erroneous because there was never a building permit that allowed construction of the structure. Staff made an assumption based on a faulty aerial photograph. He had lived next door to the property for 38 years, and the structure was not there in 1989. Hearing Officer Conners instructed Mr. Sullivan to ask questions rather than state his opinion. Peter Bergman requested clarification of staffs assumption that permits for maintenance of the existing structure meant permits for the building had probably been issued at some time. The fact that the City issued permits for maintenance meant permits were issued for the structure. Deputy Director Wisneski read the Director's Determination letter of August 30, 2016, regarding the inability to locate a building permit. Hearing Officer Conners explained that permits had not always existed for development. The 2001 permit described the work to be performed as remodel the rear entryway/door and drywall. In 2001, the building official reviewing the permit believed it to be correct. The 2001 building permit was entered in the record as a statement that something existed at that location prior to issuance of the 2001 building permit. Jim Mosher noted the staff report defined nonconforming use. The structure was nonconforming now because it was a commercial use on residential property. He inquired whether there was a time in Newport Beach when it was legal to build a commercial structure on a residential property. The staff presentation implied the extension was for ten years; however, he could not find ten years in the Code. He inquired whether the Hearing Officer had discretion to determine the length of an extension. Hearing Officer Conners reported the Deputy Director could recommend a time period for an extension. In response to Mr. Mosher's question of when did the Code change allow commercial uses on residential property, Deputy Director Wisneski stated the 2000 amendment to the Subdivision Code determined buildings could not cross property lines. In 2010, the Zoning Code was amended to require abatement of nonconforming commercial uses on residentially zoned properties. The Code specifically stated nonresidential uses located on residential properties shall be abated within one year. Suzanne Savary asked if legal approval of the shack had been made at any point prior to the recent renovations. Hearing Officer Conners reported there was no exact date. The Director's Determination provided dates at which time the Director believed requirements were met. He explained the purpose of the Director's August 30, 2016 letter. Robert Glushon, legal counsel for Marine Avenue neighbors, stated that in order to qualify as a legal, nonconforming use, there had to have been a point in time at which the use was legal. He asked at what point in time did staff believe the use was legal. Hearing Officer Conners read paragraph 3 of the Director's letter regarding permits issued and aerial photographs. To him, paragraph 3 meant it was a legal use at least in 2001, subject to proof to the contrary. Mr. Sullivan remarked that the area between the two buildings originated as a breezeway. The Hearing Officer had quoted the Director as saying the subject encroachment had been in place for several decades. Under the ordinance, the Director could make the determination. Applicant Dan Miller on behalf of the Owner, Charles Kinstler, agreed with staffs presentation. He was not aware of the encroachment at the time of purchase. He was told he had to purchase both properties in order to maintain the restaurant. He agreed that the use had existed for more than three decades. The food preparation and storage area was necessary for ongoing restaurant operations. He had to meet the City's condition of increasing food sales to 40 percent, and he had done so. The area for food preparation was a key component to the operation of the restaurant. Eliminating that area would not allow him to increase food sales. He requested an extension of ten years in order to evaluate the design. In addition, he recognized the challenges inherent in redesigning a building on Balboa Island. Page 2 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 Hearing Officer Conners inquired regarding the use of the residential property. Mr. Miller advised that a tenant occupied the second floor, and the ground floor was used for parking and storage. The front setback of approximately 60 feet from Marine Avenue was landscaped. In response to Hearing Officer Conners' questions, Mr. Miller and Charles Kinstler, property owner, provided the following information. The applicant clarified the floor plan shown on page 17 of the staff report. The property line extends through the structure, with three feet of the structure on each side of the property line. Doors are located on the left side and the middle of the right side. The door on the right, on the restaurant side, opens to a closet, which was probably a restroom at one time. The area to the left is used for cold storage currently. Two doors, on the left, open into the garage area, underneath the residential unit. That area is used for storage of dry goods. Restaurant storage was located on the residential property beyond the addition. A small closet on the alley side is not shown on the drawing. The closet was in existence when the applicant purchased the property. One door, not shown on the drawing, opens from the storage area directly into the restaurant kitchen. The large, unlabeled area on the drawing was the kitchen. The lines in the middle of the restaurant area represent a two-sided bar. Hearing Officer Conners believed, based on the drawing, the structure in question was located half on one property and half on the other property, but served the restaurant addition. Mr. Miller and Deputy Director Wisneski concurred. In response to Hearing Officer Conners' questions, Mr. Miller and Mr. Kinstler shared the following information. The area called the restaurant addition was used for cold storage, basic storage, recycling and standup refrigeration. Of the total 43-foot length, 15-17 feet was used for food preparation and the remainder for storage. The cold storage was crucial to the operation. The two doors at the bottom of the drawing opened to the parking area underneath the residence. The garage area was enclosed. No one parked in the garage area; the tenant, who parked on the street, used it for storage. A door to the far left opened into a pre-developed space used as a staff break area and for storage of linens. The area was not noted, but was part of the restaurant operation. In response to Hearing Officer Conners' inquiry, Mr. Miller agreed that the drawing found on page 17 depicted the area between the two properties, but did not depict anything else that would be on the residential property such as the closet or storage. In response to Ms. Savary's question, Hearing Officer Conners explained that the Director made the determination if a use was legal, nonconforming. A property owner had one year to abate a legal, nonconforming use unless he received an extension. The applicant had asked for an extension. Mr. Miller stated that he agreed with the staff report. The Hearing Officer offered the public to provide testimony. One member of the public, Mike Sullivan, spoke and stated that the garage was an illegal use of a residential property for commercial purposes. Using the garage for restaurant purposes was illegal, a violation of the Zoning Code and was not mentioned in the staff report. He found information on the City website indicating the City building inspector said there was a breezeway there. He remembered it as a breezeway to provide shade. In 2001, a building inspector visited the site and noticed they were enclosing the breezeway and had built a shed. In his opinion, it was malfeasance. Hearing Officer Conners advised that a lawyer could testify that in his legal opinion if there was malfeasance. Mr. Sullivan continued that a building inspector used the word "enclosing," noticed they had built a shed, and let it go. In response to Hearing Officer Conners' question, Mr. Sullivan could not provide the name of the building official. The Hearing Officer requested Mr. Sullivan provide evidence rather than opinions. One member of the public, Ellis Morcos, spoke and stated that the Director's Determination indicated the aerial photos supported the property owner's claim that the structure had been in existence for several decades. He had lived at 122 Marine for 4 1/2 decades, and that building did not exist. Hearing Officer Page 3 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 Conners remarked that photos from 2001 and 2014 allegedly depicted something that looked like a structure in that space. Mr. Morcos reiterated that there was no structure when he moved to Marine Avenue in 1969. The only encroachment was up to the property line; there was no shack beyond the property line. Mr. Morcos agreed with the Hearing Officer that a structure was located on the property now, at the beginning of 2016 and in 2011, and that in 2001 it was possible the owner filled in the two ends. Hearing Officer Conners reported he would not make a determination if a structure was there 30 or 20 years ago. Twenty or 30 years ago was not relevant because the current property owners did not own the property 30 years ago or 20 years ago. According to City records, it was possible or probable that something was put in that breezeway in 2001 and allowed to exist going forward. He was not making a decision today that it was legal or not. The Community Development Director stated in her opinion the structure was legal since 2001. The earliest record in the file, a photograph, appeared to show the structure was enclosed in 1989, but he was focusing on 2001. Mr. Morcos referred to an ordinance that a property had to be inspected upon transfer of ownership. Anything that was not conforming or permitted had to be removed. He questioned why the City did not enforce removal of the structure in 2012 when the property changed owners. Deputy Director Wisneski reported an inspection associated with residential building report could be waived by the property owner. To her knowledge, inspection of the property was not performed in 2012. Mr. Morcos believed the City had to inspect the property and anything constructed without a permit had to be removed or the owner had to apply for a variance. Hearing Officer Conners gave Mr. Morcos until the end of the hearing to provide a citation for his belief. The Deputy Director had stated on the record that the inspection was voluntary. One member of the public, Robert Glushon, spoke and stated that he represented the Marine Avenue neighbors. He provided a letter that set forth in detail the neighbors' position as to why the requested relief should not be granted. His letter included very specific California case law on the issue of what constituted a legal, nonconforming use. The burden was on the applicant to establish that the nonconforming use was ever legal. The applicant had not presented any evidence to show that the use was ever legal. The applicant was relying on an opinion or determination cited by Planning staff. The Hearing Officer was correct to focus on the 2001 aerial photograph. The law in 2001 did not make this use legal. The City could not have issued a legal building permit for the use shown on page 17 in the staff report. The use was not legal at that time. The City could not have issued a legal permit for the use in 1989. The use was not only crossing boundary lines but was also a commercial use on a residential lot. It was not legal in 2001 or 1989 or 1979 or 1969. No evidence had been presented as to when the use would have been legal. In order to be a legal, nonconforming use, the use had to be legal at some point in time. His letter cited case law that a legal, nonconforming status must be supported by validly issued building permits. In the absence of building permits, he would concede that the burden of making findings had to be supported by substantial evidence. He questioned whether the use was ever established in a manner that was legal, even without a building permit. The applicant had failed to show that the use when established was legal. The Hearing Officer could not rely on the 2001 building permit as to legal use if there was no evidence that the use was legal. Assuming there was a prior legal use, the extension being requested was not warranted. The floor plan on page 17 of the staff report was not adequate in that it was not dated; provided no detail, no doors, no features; and the property line did not extend all the way down. The applicant had not shown he could meet the finding as to cost and feasibility. The applicant had not established that the food preparation and storage area could not be moved within the restaurant property. Significant investment was mentioned many times in the staff report. Members of the public were concerned that staff was acting as a promoter of the request. Mr. Glushon reported that the Deputy Director stated staff had been working with the applicant to resolve the issue. The significant investment made by the applicant after 2012 was irrelevant with respect to legal, nonconforming use. Mr. Glushon stated that the owners knew of the encroachment at the time of purchase in 2012. Mr. Glushon hoped the Hearing Officer would find no substantial evidence to support a finding that there was ever a legal, nonconforming use. On that basis alone, the request should be denied. Hearing Officer Conners entered Mr. Glushon's letter into the record. Page 4 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 Mr. Sullivan stated in 2001 the building inspector went to the Village Inn. Hearing Officer Conners requested Mr. Sullivan identify the source of his information. Mr. Sullivan advised that he was viewing the City of Newport Beach's website, where he had searched permits by the address of the property. A building inspector went to the site in March 2001 and reported "the Village Inn built a breezeway attaching the restaurant to the house next door and are enclosing," present tense. "Also built a shed, working at night also." Mr. Sullivan felt the building inspector meant they were trying to complete construction prior to the building inspector's visit. Two months later, the remodeling report was submitted to complete the construction of a four-sided, illegal structure to connect a commercial establishment with a residential establishment including the shed. In response to Hearing Officer Conners' questions, Mr. Sullivan indicated two sides existed, and they closed both ends as stated in the building permit. The breezeway had two sides and a top but no ends. He did not believe the owners obtained a permit to enclose the ends, because the building inspector said they did it. There was a complaint when the owners did it the first time. Two months later, the owners decided to remodel the breezeway and applied for a building permit to make it legal. Mr. Sullivan believed the website information supported his opinion. Hearing Officer Conners clarified that Mr. Sullivan was offering his opinion of what happened based on what he read. Mr. Sullivan did not apply for the permit or inspect the work. Hearing Officer Connors stated that it sounded as though unpermitted work was discovered in March 2001. Two months later,the owners received a permit. Mr. Sullivan felt this was important because the Director concluded in the staff report that this was a legal, nonconforming use based on a 1989 aerial photograph. Hearing Officer Conners stated Mr. Sullivan had provided information that would cause him to request the Deputy Director to review the information, present it to the Director, and ask the Director if the information would have changed her opinion if she had had it at the time of her opinion. Nothing in the record mentioned the information Mr. Sullivan had presented. Mr. Sullivan stated that the Director stated in her declaration that she based her decision on information, which they now knew was erroneous. Hearing Officer Conners reiterated that the Director must determine whether the information presented by Mr. Sullivan would have changed her determination and he would not make a determination until he received that opinion from the Director. One member of the public, Suzanne Savary, spoke and stated that the 1989 photograph would have to be validated in some form in order to create an absolute choice to ignore Zoning laws. Neighbors felt the applicant was receiving unfair support from the City on the situation. They assumed the prior decision to give one year was to allow the owner to dismantle the property. Ms. Savary could not conceive of giving the applicant ten years unless it was an affirmation of the City to a resident who had shown a clear willingness to violate repeatedly and a pattern of what could be considered illegal behavior. Residents had issues with other behavior on the part of the applicant. She asked the Hearing Officer to follow the appropriate procedure, but question the photographs. She opined there was not a bit of evidence to support the legitimacy of the photographs, except possibly the 2014 photograph. A breezeway being turned into a structure was completely illegitimate when one was a commercial property. This was an illegal encroachment on a residential property to enhance the commercial property. Hearing Officer Conners reported the attorney made legal arguments that he would review. He would not take the attorney's arguments as truth just because the attorney said they were truth. It was disingenuous to say staff did something wrong in supporting their point of view. The aerial photographs showed the roof. Before and after 1989, there was a roof. The only evidence stating the ends were added was a 2001 building permit to construct the ends. The staff made a judgment call based on the evidence before them at the time. Mr. Sullivan advised that in 1989 there was no connection between the two properties from the front of the property to the alley, except for a 5-foot-square beginning of a breezeway. Mr. Sullivan clarified that the top was added in 2001, not 1989. Page 5 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 Hearing Officer Conners reported the relevant date was 2001. One member of the public, Peter Berman, spoke and inquired about the process for obtaining a Director's Determination for a legal, nonconforming use. After some discussion, Hearing Officer Conners determined Mr. Bergman wanted to know the events that precipitated the issuance of the August 30th letter. Deputy Director Wisneski explained that the area had been identified as encroaching onto residential property. Staff considered different approaches to resolve the encroachment. Because the structure was defined as a legal, nonconforming use subject to the abatement process, staff could identify a path that would allow the property owner to evaluate different options if an extension was granted. The Director's determination was addressed to Carol McDermott because she was the contact person for the pending application related to the property. The Director's Determination was included in a weekly staff action report, which was posted on the City's website and distributed to entities that requested the weekly reports. This specific Determination would have been included in the public correspondence on Friday of the week of August 30th. The public would have been notified of the appeal period at that time. Mr. Bergman asked if he would have received that report. Deputy Director Wisneski indicated individuals had to register for automatic email alerts and reports from the City. In response to a question from the public, Deputy Director Wisneski advised that this specific process did not require public notification. Hearing Officer Conners added that the legal requirement for notification typically was a notice posted in a common area at City Hall. Mr. Sullivan asked why the Director's Determination was not made on March 30th, when Staff knew the use was nonconforming, or in 2010 when the Code was updated. In response to the Hearing Officer's questions, Deputy Director Wisneski stated no action was taken in 2010, 2012 or 2014. Mr. Sullivan believed staff was notified. Hearing Officer Conners explained that there was no penalty for staff not exercising their discretion. The relevant fact was the Director's Determination that the use was legal, nonconforming. Ms. Savary requested the source of the three images be identified. There was no evidence the three images were accurate or legitimate depictions. In response to Hearing Officer Conners' inquiry, Deputy Director Wisneski reported the three aerial maps were created by the City. The City had hard copies of the 1989 and 2001 aerial photos. The photos were not modified. One member of the public, Jim Mosher, spoke and stated the Hearing Officer had been referring to the 2001 building permit. The staff report would have been enhanced had it shown some pictures from ground level. The picture in the upper-left corner on page 22 gave the impression that the structure was a breezeway between a residence and the Village Inn. The October 20, 2016 Planning Commission staff report contained a better rendition of the addition, in which a large part of the addition was not located between the residence and the Village Inn. It was more of a freestanding structure referred to as a shed. The 2001 building permit appeared to depict something slightly different. Hearing Officer Conners referred to page 22 which showed the roof and said, "new drywall over existing ceiling joists". Mr. Sullivan had indicated his belief that the ceiling joists were probably installed in March. The building permit was dated June 25, 2001. Somewhere it stated there were doors on the two ends. "Plan and Elevation of Door Replacement at the Village Inn" was the title. According to the June 25 permit, that was the drawing the building inspector at the time accepted and used. The drawing on page 17 was submitted by the owner/applicants. Mr. Mosher wanted to offer that the structure in question was not entirely between the residence and the Village Inn. It had a much bigger horizontal extent according to the site plan on page 109 of the October 20, 2016 Planning Commission staff report. Hearing Officer Conners felt the structure from page 109 was very similar to the one in recent photos. Page 6 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 Mr. Mosher recalled the Deputy Director previously indicated the applicant could request a second extension, such that abatements could extend in perpetuity. He questioned whether ten years was necessary to evaluate options for redesigning the structure. In response to Hearing Officer Conners' questions, Mr. Miller advised that the storage area on the residential property had not changed in size since he purchased the property and the tenant has stored items in the area formerly occupied by the tenant's car. The tenant's rental payment covered both the first and second floors. There was no written rental agreement with the tenant. In response to Hearing Officer Conners' inquiry, Deputy Director Wisneski reported storing commercial property on a residential lot would be legal if it did not infringe upon the typical use of the residence and that no commercial business was occurring on the property. Such storage did not require a permit. Mr. Sullivan advised the current owners used the space as a workstation. He could hear noises from the area in his home. Hearing Officer Conners recalled the applicant stated they were using the space for food preparation. Hearing Officer Conners questioned whether the current use led to harm of the public. One member of the public, Lynne O'Brien, spoke and stated that some noisy construction occurred in the structure in the spring. The Village Inn's original address was 1309 Park Avenue, but records for the address no longer existed. The current business was a nuisance and needed additional space to expand. The commercial property was listed as residential. The owners could develop the residential unit as part of their business. Another report listed the 200 and 300 blocks as commercial. The 100 block was listed as residential. Someone should decide if it was a residential or commercial property. Hearing Officer Conners reported 127 Marine Avenue was zoned commercial. 123 Marine Avenue, where the encroachment occurred,was zoned residential. One member of the public, Richard Salmonson, spoke and stated in July 2001 an electrical and building permit was submitted. On page 22, a stamp from the plan checker stated City of Newport Beach encroachment permit shall be obtained for all work within City easements and right-of-way. The Hearing Officer clarified that this was not a City easement. Mr. Salmonson asked if ingress and egress through the public alleyway was relevant. Hearing Officer Conners felt everyone had some kind of exit onto an alleyway. Mr. Salmonson inquired about the application of fire standards to only one entrance/exit. The Hearing Officer indicated the Uniform Building Code in existence when the structure was built would be applicable. Mr. Salmonson questioned whether the attachment to the commercial building and the 2001 permit would affect the standards applied to the building. Mr. Salmonson stated that Mr. Sullivan had raised the valid issue of what occurred in 2001. The attorney for the residents had raised the issue of whether the use was legal or not legal in 2001. The answer to that question would determine the direction for the abatement issue. One member of the public, Tom O'Brien, spoke and stated that the applicant wanted time to mitigate or fix the issue. He asked who would decide the amount of time the applicant would be granted and on what grounds would they do so. Hearing Officer Conners explained that the hearing would end in a decision. That decision would lead the process in a certain direction. Someone could appeal the decision to the City Council. Ultimately, the City Council would decide the issue if appealed. If Mr. Sullivan's point did not impact the Community Development Director's decision, then the process would proceed with the facts in evidence. The decision would be supported by the facts. As the Hearing Officer, he would review the law and facts in making a decision. Carol McDermott stated she had been working with the Village Inn to identify solutions to the issues that had been raised. As part of the process, the community indicated it did not want mixed use on the 123 Marine Avenue parcel. A lot line adjustment did not resolve the problem. Moving the kitchen to the second floor was not feasible. During a ten-year extension, the applicant could attempt to identify ways to modify the kitchen; determine whether a zone change, General Plan amendment and LCP amendment were logical; or identify other factors that were feasible and acceptable to residents. If detailed drawings would aid the Hearing Officer, they could prepare them. The Hearing Officer indicated he had entered the floor plan referenced Page 7 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 from the October 20, 2016 Planning Commission report into the record. The plans did not show a second floor on the building. The drawing that was part of the 2001 permit provided little detail. Ms. McDermott suggested the second floor was not shown on the building permit because the permit was not related to the second story. In response to Hearing Officer Conners' questions, Mr. Miller reported the second floor over the restaurant contained a two-bedroom apartment. The restaurant offered live music. The applicant's family members stayed in the apartment. The apartment also contained office space. The live entertainment could not be heard in the apartment. Live entertainment consisted of three-piece bands and acoustic guitarists. The bands did not include drums. Hearing Officer Conners requested the applicant submit a complete floor plan of the business side including all floors and dimensions of the existing space; photos showing all sides of the breezeway taken from the street and from the alleyway; a copy of the 2012 purchase agreement(s) for 123 and 127 Marine Avenue; and copies of real estate flyers and/or multiple listing descriptions for both properties. If members of the public wanted copies of that information, they should request them from the Community Development Department. The hearing would remain open until such time as he received all the requested information, including information from the Community Development Director. Mr. Glushon asked if members of the public could provide supplemental information. The Hearing Officer suggested a ten-day period for the community to respond once he had received the requested information. Ms. O'Brien clarified her comments that the kitchen could be moved to the ground floor and the second floor could be opened for dining. Hearing Officer Conners stated Ms. O'Brien raised the issue of the second floor. Ms. Savary remarked that in 2009 the City told her she had to maintain a 5-foot setback between her property and the neighbor's property. The Hearing Officer recalled the Deputy Director's comments that at one point in time encroachment over the property line was allowed. Ms. Savary expected the building would be brought into compliance with the current Code when it was sold. This situation would make neighboring properties less desirable as residential rentals. Mr. Mosher noted page 110 of the staff report for Thursday's Planning Commission meeting contained a detailed floor plan of the shaded area. Staff might want to enter that into the record. Hearing Officer Conner advised that Mr. Mosher's reference of floor plan be entered into the record. Deputy Director Wisneski clarified that, once the Hearing Officer received the requested materials, he would allow ten days for public comments to be submitted. Hearing Officer Conners reiterated that the ten-day period for public comment began when the Deputy Director sent information to anyone who requested it. The additional information would be helpful for everyone. Hearing Officer Conners mentioned various reasons for the lack of records. Digitizing records was good. Not everyone would agree on all facts of the case, but everyone would likely agree on most of the facts. His decision would be well reasoned. People at the hearing provided many helpful comments. Ms. Savary asked if the Fire Code had to be considered in the decision. The Hearing Officer explained that the Fire Code in existence at the time the building was constructed would be applicable. The drawing showed three exits from the building. The Uniform Fire Code would not affect his decision. There were no other public comments. Action: None taken. III. PUBLIC COMMENTS ON NON-AGENDA ITEMS Page 8 of 9 Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NEWPORT BEACH HEARING OFFICER MINUTES DRAFT 10/17/2016 None. IV. ADJOURNMENT The hearing was adjourned at 4:33 p.m. The agenda for the Hearing Officer was posted on October 11, 2016, at 3:22 p.m. in the Chambers binder and on the digital display board located inside the vestibule of the Council Chambers at 100 Civic Center Drive and on the City's website on October 11, 2016, at 4:30 p.m. Brenda Wisneski,AICP Deputy Community Development Director Page 9 of 9 Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) From: Wisneski, Brenda Sent: Tuesday, October 18, 2016 8:17 AM To: 'Mike Sullivan' Cc: Peter Bergman; Suzanne Savary; Garciamay, Ruby Subject: RE: Clarification on V.I. building permit Thank you. This will be forwarded to Mr. Connor and included in the public record. From: Mike Sullivan [ma ilto:suIIivanphotoO)road run ner.com] Sent: Tuesday, October 18, 2016 7:51 AM To: Wisneski, Brenda Cc: Peter Bergman; Suzanne Savary Subject: Clarification on V.I. building permit Hi Brenda would you please pass this along to Bill Connor. Hello, Bill. Thank you for yesterday. I was very impressed and learned a lot. I do want to clarify why the 2001 entries I brought up are so critical to the decision by the director to declare the bootlegs legally non conforming. Correcting the timeline from "the eighties" to 2001 was the least important part of my point. A reading of the timeline between March 2001 and June 2001 indicates that someone in the city was bamboozled or chose to look the other way. The first entry was a neighbor complaint about the construction. The inspector described it correctly—new unpermitted construction, but did nothing further, even though it went beyond structure codes and into zoning violations. About that, he did nothing. Code enforcement should have been notified. That did not happen. The subsequent entries appear to be attempts to get the city to sign off on "Remodel" permits, as if the building had been pre-existing, hoping maybe that would create the illusion of legality, or even better, a new building permit. But there never was one. I could find no evidence of a new building permit that would justify a ruling of legal non conforming. Thanks for reading this, Mike Sullivan i Hearing Officer-October 17,2016 Item No.1 k: Additional Materials_Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) O� Pp�� CITY OF NEWPOPT IAF' COMMUNITY DEVELOPMENT DEI � p h {�� 100 Civic Center Drive C} = Newport Beach,California 92660 949 644-3200 Cq<.1F0��\P newportbeachca.gov/communitydevelopment Memorandum To: William Connors, City of Newport Beach Hearing Officer From: Kim Brandt, Community Development Director Date: October 19, 2016 Re: Village Inn Abatement Extension (PA2016-133) - 127 Marine Avenue It is my understanding that during the October 17, 2016 public hearing on the above application, a member of the public referenced the City's website which indicated on March 28, 2001 an entry was made regarding the subject property which stated the following: "Village Building breezeway attaching restaurant to the house next door and are enclosing. Also built a shed. Working at night also." (See Attachment 1) This entry, referenced as C2001-0187, documented a complaint received by the City. The City's internal notes in respect to this complaint, includes the following comment from the building inspector who visited the property on March 29, 2001: "Talked to proprietor re. complaint (currently stop work for door installation). He will obtain planning approval prior to further correspondence."(See Attachment 1) Both the complaint and corresponding follow-up City inspection in March 2001 were precursors to the City's July 30, 2001 building permit issuance for the remodel of the subject building area. (See Attachment 2) This information does not change my determination made on August 30, 2016, that the subject building area is legal non-conforming use. Attachments: 1. Complaint Entry (3/28/01) and Building Inspectors Comment (3/29/01) 2. Building Permit, June 26, 2001 Community Development Department Hearing Officer-October 17,2016 Item No.1k: Additional Materials Hearing Officer—index of Record 10/18/2016 Permits Online-Permit IntonSltWine Avenue(PA2016-133) Requested permit number: C2001-0187 Permit Number C2001-0187 Status FINAL Work Description Village Built breezeway attaching resturaunt to the house next door and are enclosing. Also built a shed. Working at night also. Occupancy Class Code Sub Type No. of Bldgs. 0 Insp. Area 2 Entered Date 3/28/2001 Validated by SH Date Applied 3/28/2001 Inspection Area 2 Date Approved Assigned Inspector Don Taylor Date Final 3/29/2001 Inspector Phone 949-644-3263 Date Activity Expires C2001-0187: Entries for 1tem:1520 - NO PROBLEM FOUND 15:29 10/18/2016 Action Comments By Date Unique_ Key AP TALKED TO PROPIETOR RE:COMPLAINT PSOBEK 03 912 001 A0006875 (CURRENTLY ON STOP WORK FOR DOOR 96 INSTALLATION).HE WILL OBTAIN PLANNING APPROVAL PRIOR TO FURTHER CORISPONDANCE. Total Rows: 1 Hearing Officer-October 17,2016 Item No.1k: Additional Materials Hearing Officer_Index of Record 3 arine Av n PA2 City of Newport Beach Building Department CIS 0ermi N�: ` 07-'l9T2 U PO Box 1768 Newport Beach,California 92658-8915 Permit Counter Telephone(849)444-3288 Inspection RequestsTelephone(949)644-3255 - Job Add-ess:127 MARINE AVE Floor: Suite:-.._ ... ..Bldg:i-. ...- ... IQescription of Work: REMODEL REAR ENTRYWAYIDOORIDRYWALL - - 1618-2001 Inspector Area: _ . ._.. _ _ Legal Desc: Owner: TOLL,THRESA&GEORGE Contractor- ��pp Architect: Address: 1841 LERWER LN Address: Address: - �* SANTA ANA, CA 92705 _ Phone: 714!731-0423 Phone: Phone: State Lie: Applicant: TOLL,THRESA&GEORGE Con State Lie: Engineer: Address: 1841 LERWER LN Lic Expire: Address: SANTAANA, CA 92705 Bus Lie: Phone: 714!731-0423 Lie Exp Dale: Phone: State Lie-. Cade Edibon: 0 Workers'Compensation Insurance Designer: Type of Construction: Carrier: Address; _ Occupancy Group: Policy No: Added/New sq.ft.Bldg: Expire: Phone. Added/New sq.ft.Garage: - - .... ..... - -- -- - --No of Stories: Building Setbacks Rear: ! Special Conditions: No of Units: Front: ! - - - - - -- Left: - -1 . . ... __ Issued: Right: ! Use Zone: RSC Receipt# Parking Spaces: FEES - Construction Valuation: $2,300,00 _ Building Permit l=ee;. $66-.95 ..- .- Microfilm; ..- $1:32 Hazardous Mat -_ -..._ __:_-__-- _$0,00 :__-.__ -Fire_D_ep_artment:__ Plan Check Fee: $48.20 Excise Tax: $0.00 Add Fire Dep HMQ: $0.00 Plan Review Fee: $0.00 Supplemental: $0.00 Park Ded: $0.00 Other Fee: $0.00 Inspection Fee: $0.0.0 .._Investigation.Fee:,. $tla}l}_:.-. - SJH-Trans: - $0.110 Clean Up Deposit: _$200.00 - - San Dist:. $0.00 Counter Review.:.. -- -$0.00-- Energy Compliance: $6.00 Ca Seismic Safety: $0.00 Zoning Plan Check: $27.15 Fair Share: $0.1110 Disabled Review- $6.00 OverTime Plan Check Fee: $6.00 ..TOTAL FEE 343.62 TOTAL PAYMENT :L48.20 TOTAL DUE: $295.42 - PROCESSED BY: - OTHER DEPARTMENT: ZONING APPROVAL. ——_ PLAN CHECK BY: - FIRE APPROVAL: - _.. _ .. APPROVAL TO-ISSUE: __.....GRADING-APPROVAL: - -- ------- --_ - _ - - WORK1 US•T BF-STARTED WITH A PER100 OF-180 DAYS FROM THE DATE OF VALIDATION - OR THIS PERMIT BECOMES NULL ANU VOID. _ PUBLIC WORKS: Hearing Officer-October 17,2016 Item No.1k: Additional Materials Hearing Officer-Index of Record APPROVALS DATE $}' COMMENTS OWNER�CUILOER DECLARATION FOUNDATION,: � r_ ROUGH GRADE Y � c , LINE er GRADE.CERT SETBACKSrc r QEGIli[tJlilOM OF COIIPEIAMUE �II�TN .--- ONS ERECTION PADS :. ,. , c,€.:f,..< .Mr is ..L.d::1 ,�r,... 1 ..1 FOOTINGS Not b r S� ED QTTAMR$= © 1 ,1_.1 l .< , r AN 1 SLAB ON GRADE V h 11r Tf. ... E't f rli'. I..-.a VA FRAIVIIiVG: ASBESIC9 I{OI[ r t E�. REGI{SLAB r,. . :?-r ,. .i,. r...FRO'1-.. .,. n -, ;�7 F'jr ,,,,r: c.. -1-. SUBFLOOR ROOF&BUILDING HT SUMATURE: EXT,SHEAR'HOLD DOWNS -.;i- GENERAL FRAMING FIREPLACES THROAT - � ..�� n� f;,, - LICENSED CON'TRAMOKSDECLARATIOt4 -. . INTERIOR&EXTFRiOR 1 INSULAI_10-N DRYWALL SUSPENCED CEiLiNG SHOWER LAFH WORKERS'COMRENSATION DECLARATION — EXTERIOR LATH :e IF .-3 .} 14 r SCRATCH 'PLASTER} (_ DAY, s I'vAASONRY PRE-GROUT :,; .,.;..•a.l „'r .. !�91SC. IN EC;IONS_ -- -. -_ .-- -- - - -- ----- - - - - .v"J(ff.F:..'-_.,:hr PERMIT EXTENSION ------- --- 1 ST EXP-LETTER 2NI) EXP.LETTER BUILDING FINAL CON.rRUr-Tiari',VINDINGAGENCY CPRTIFICATE;.,F OCCUPANCY TE31ANT NALL.!E REFUNDED :1 -7:4 DATE .- TYPE OF BUSINESS iJSE,. - 1�[J '!_ 701 b, Hearing Officer-October 17,2016 ase+ Item No.1k: Additional Materials—Hearing Officer—Index of Record t a� n e a(PA2Q16-1 3) City of Newport Beach Building Department ELEC � ►Z �ermit l�o: E2001-0961 IiILA11e-- PO Box 1768/3300 Newport Blvd, Newport Beach,California 92658-8915 Permit Counter Telephone(949)1644-3288 Inspection RequestsTeiephone(949)644-3255 Joh Addrqss:111 MARINE AVE I Btdg:1 Floor: Suite_ Description of Work: REMODEL REAR ENTRYWAYIDOOR/DRYWALL 82001-1972 /718 C Inspector Area: Code Edit:96 Legal Desc.: tQ INSPECTOR NOTES: Owner: TOLL,THRESA&GEORGE Contractor: Address: 1641 LERWER LN Address: SANTA ANA, CA 92705 Phone: 7141731-0423 Phone: Con.State Lic.: Receipt#: Lic Expire: Bus.Lic.: Processed By: Lic.Exp Date: FEE New Construction Receptacle/Switch/Outlets Motor-v Transformers HP/I(VA Temp Power Pole 0 $0.00 Residential ReceplOutlets 0 $0.00 0 to 1 HPIKW/KVA 0 $0.00 Temp Underground 0 $0.00 Multi-Family 0 $0.00 Fixtures 1 $0.93 1 to 10 HPIKW/KVA 0 $0.00 Sub Panel 0 $0.00 1-2 Famity 0 $0.00 Sep Circuit 0 $0.00 10 to 50 HPIMIKVA 0 $0.00 0 $0.00 50 to 100 HP/KWIKVA 0 $0.00 0 $0.00 Service Signs over 100 HPIKW/KVA 0 $0.00 Record Managment Fee: $0.27 0 to 600V up to 200A 0 $0.00 Branch Circuit 0 $0.00 Investigation Fee $0.00 0 to 600V over 200A 0 $0.00 each Add Circuit 0 $0.00 Piggy Back/Temp Power 0 $0.00 Plan Check $0.23 Over 600A11,000A 0 $0.00 Time Clocks 0 $0.00 Issuance $19.70 Supplemental Fee $0.00 TOTAL: $21.13 PAYMENT: $0.23 BALANCE:$20.90 LICENSED CONTRACTORS DECLARATION I hereby affirm under penalty of perjury that I am licensed under provisions of Chapter 9(commencing with Section 7000)of Division 3 of the Business and Professions code, Aporovals In�ctor/Date and my license is in fullforce and effect. license No: Class: Contractor: Grounding Electrode WORKERS'COMPENSATION DECLARATION I hereby affirm under penalty of perjury one of the following declarations: Underground I have and will maintain a certificate of consent to self-insure for workers'comhensafion.as provided for by Section 3700 of the labor code.V the performance - - - - - of the work for which this permit is issued. Underslab/Floor _f have and wv94 maintain workers'compensation insurance,as required by Section 3700 of the labor code,for the performance of the work far which this permil is issued. _ My workers'compensation insurance carrier and policy numbers is: Rough Conduit Walls Carrier: Policy number. Expire r This section need not be completed if the permit is for one hundred dollars($100)or less. Rough Wiring Ceilings I certify that in the performance of the work for wh-ch lht�pe-mit is issued.I shall not employ any person in any manner so as to become subject to the workers'compensation laws Rough Service of California,and agree that if I should`eeome st,Sjei:-i tf..;:vfke(V compensation provisions of Section 3700 of the labor code,I shall fadhwith comply with those provisions. Temp Power Date:_ _ Applicant Signoture: Warning:Failure to secure workers'compensation coverage is unlawful,and shall subject an employer to criminal penalties and dvil fines up to one hundred Utility Co.Notified ($100,000),in additid,i to tho cost of rrnrrensaUon.dannges as-jro ide-1 fcr in SE-tion 3706 of the labor code,interest,and attorney's fees. Final . I hereby acknowledge hat I hav?read tni-apNicrtion;+hal"ie!ifor-mat'in ever d-correct;and that I am the owner,or duty authorized agent of the owner.1 agree to comply with city and sate h-v----gula`r3)onstfiction; a in do:.fig the v.ark authorized(hereby.no person wets be employed in violation of the labor code of the state of California relating to workmen's ob in�s7atian insurance. - Permittee Name(Poi t>f �t Address : WORK Mtt57 8E STARTED iNfflilN A PERIOD OF 180 DAYS FROM THE DATE OF VALIDATION OR THIS Signature of permitted �C}.�C'J p ���� 0� PERMfrBECOMES NULL AND YGIFD Hearing Officer-October 17,2016 Item No.1k: Additional Materials-Hearing Officer_lndex of Recor 123 Marine Avenue(PA2016-133) Mee JN0TjfVp , Cr" OF �'aM?MTTiACI�r 8YKO7 • `�• K".Q �a�LQ� _ S !2$L[$V$ +�1E/CAMT OF LPti11L nOND�1TIp1�A13�p8361tV$COYIotiROXL <FS1 RICFlON9 ANM `` __ nal� MAY 8$ 210MIDED AQAINS7 Till ICH - 3 - 1('o ` w_ 1.+JO ok_Vo . 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T /.2f Q ; WI;( ,�G pT L�lJol""► t �V�, �� rdGl �.iL��� OFniEimr#SpIlOAT6Fit{�t -1 BA 1 __ . _ . _ _ APFUtit<fY AC�gijEDGD1EMT: NF-\AJPORT BEACH Z/z ;�4 ------4- ' . .-7 FM GUMS - H&V i �iDaC_ ` r ,aCft' v,,/w,�(I� [ O°•( - i r -- -- - - - i - - - - ! - r _ - - € -r i y-' - - ir A7 YATOISAIE ► s + i = $M: DATE. -- — - - _ `f_ • - --- - �Qr � �o� r�a \a 1l eL ff ms.40,, -900r fav► LS � ct vrte ct5 4 'now, � yah ,� PLAN &L VAT 1n � OV nIf t-7- n . Q.P_t�ulo�t DOC Q �QL 1Ei'lI.iV l AvT ' � tllC�t1t - �o j e4A F _ _ __-: _ - : �_� - :_ : _ • : _ _ u� ZG, zoos: l Hearing pfficer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) ............ .... ............. . PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS BETWEEN ELENA GRAMONTAND U.S. BANK, AS SUCCESSOR.CO-TRUSTEES OF THE THRESA ROBERTA TOLL REVOCABLE TRUST,DATED MARCH 16, 2007 , Seller and CHARLES V. KINSTLER II AND LYNDA KINSTLER, Buyer for the Purchase and Sale of 1.23 and 127 Marine Avenue,Newport Beach California November 3,2011 \�l:1Ciiidy\KinstlerlVillage 1nnWillage Inn PSADOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) ' F SUMMARY STATEMENT R EMENT This Sununary Statement is attached to that certain Purchase Agreement and Escrow Instructions by and between Seller and Buyer referenced below and is for reference purposes only except for the addresses for notices set forth in items 9 through 12, which addresses are incorporated into the Purchase Agreement as if frilly set forth herein. If there is any conflict between this Summary Statement and the Purchase Agreement, the terms of the Purchase Agreement shall control. 1. Effective Date of Purchase November 3, 2011 Agreement: Elena Granlont and U.S. Bank, as Successor Co-Trustees 2. Seller: of the Thresa Roberta Toll Revocable Trust, dated March 17, 2007 3. Buyer: Charles V. Kinstler and Lynda Kinstler or assignee 4. Property Description: 123 and 127 Marine Avenue, Newport Beach, California Acreage: acres Improvements: square foot mixed use building square foot residence 5. Decision Date: Sixt (GO) days after the Effective Date 6. Deposits- First Deposit: W business days after the Opening of Escrow Second Deposit: the expiration of the Feasibility Period 7. Purchase Price: 8. Close of Escrow: Thirty (30) days after the expiration of the Feasibility Period 9. Buyer's Address for Notices: Charles V. Kinstler 11 I W:ICiitd),lKinstlerWiliage InnWillage Jim PSA.DOC _ Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) v , With a copy to: Ross Wersching &Manisco LLP 3151 Airway Ave. Building S-1 Costa Mesa, California 92626 Attention: Cynthia M. Wolcott Telephone: (714) 444-3908 Facsimile: (714) 444-3901 email: cwolcott ,'ossllp.com 10. Seller's Address for Notices: Elena Gramont, Successor Co-Trustee 2841 Country Vista Thousand Oafs, California 91362Attention: Facsimile: With a copy to: Russo & Duckworth, LLP 9090 Irvine Center Drive, Second Floor Irvine, California 92618 Attention: J. Scott Russo Telephone: (949) 752-7106 Facsimile: (949)7520629 email: srusso russoandduckwor-th.corn 11. Escrow Holder's Address for Orange Coast Title Company Notices: Escrow Officer: Escrow No. Telephone: Facsimile: r3 j f ' ( •1�?d email: ,(,G e 6,64 - 1 12. Title Company's Address for Orange Coast Title Company Notices: 40 N • 1�L!�'�1 YJ.�� Title Officer- " lf� er^ ado Title Order No: � (- t Telephone: Facsimile: Q70 i»G f email: W:1CindylKins€lerWillage InnWillage Inn P5ADOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS THIS PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of November 3, 2011 ("Effective Date"), by and between ELENA GRAMONT AS SUCCESSOR CO-TRUSTEE OF THE THRESA ROBERTA TOLL REVOCABLE TRUST,elated Mauch 16,2007 ("Seller"), and CHARLES V. KINSTLER II AND LYNDA KINSTLER OR ASSIGNEE ("Buyer"), with reference to the following: A. Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller the following: (i) fee simple title to that certain real property located in the City of Newport Beach("City"), County of Orange ("County"), State of California, and more particularly described in Exhibit "A" attached Hereto (collectively, the "Land"); (ii) all structures, improvements and fixtures affixed to or located on the Land including, without limitation: (a) the mixed use building (the "Village Inn Building") used in part by Balboa Island Village Inn, Inc. ("BIVI" or Village Inn Tenant") and being operated as the Village Inn restaurant and bar, (b)the single family residence (the "Residence") which is currently leased to Larry Wilson (the "Residential Tenant") (collectively, the "Improvements") (the Village Inn Building and the Residence shall be collectively referred to as the "Buildings (iii) any and all of Seller's right,title and interest in and to all rights of way, casements, privileges,rights, interests, claims, oil, gas, minerals and mineral rights, water and water rights, entitlements and development rights, in any way belonging or pertaining to the Land and the Improvements, and an),and all other rights appurtenant, adjacent or connected to the Land and the Improvements, and any and all of Seller's right, title and interest, if any, in and to all adjoining streets, alleys, private roads, parking areas, curbs, curb crus, sidewalks, landscaping, sewers and public ways, if not part of the Land or the Improvements (collectively, the "Appurtenant Rights"); (iv) any and all of Seller's right,title and interest in and to all tangible and intangible personal property situated upon or related solely to the Land and/or the Improvements, including, without limitation, all furniture, fixtures, tools, equipment, appliances,machinery, inventory, computer programs and software, tenant improvements, all licenses, certificates of occupancy, variances, conditional use permits, approvals and the like from the City and any other governmental authority affecting the design, development, management,use, ownership or operation of the Land and/or the Improvements,the name "Village Inn," and any other intangible rights and properties affecting or relating solely to the design, development, management, use, ownership or operation of the Land and/or the Improvements, and all plans, specifications, engineering reports, soils reports and other technical descriptions and materials relating to the Land and the Improvements if in Seller's possession or control (collectively, "Personal Property"). Personal Property does not include any items of personal property which are owned by Tenant; \VACindyWinstIcr\Villa-pe[m iWillage[nn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 3 (v) any and all of Seller's right, title and interest in and to any oral or written lease, if any,pertaining to the Property ("Leases") together with all rents due thereunder (Rents"); and (vi) any and all of Seller's right, title and interest in and to all contracts, agreements, guaranties and warranties affecting the ownership, operation, maintenance and management of the Land, the Improvements or the personal Property ("Contracts"), which Buyer has elected to assume by written notice to Seller no later than the Decision Date. The Land, lmproventents and Appurtenant Rights are sometimes referred to collectively herein as the "Real Property." The Real property, personal Property, Leases and Contracts are sometimes referred to collectively hereiti as the "Property." B. This Agreement shall also constitute escrow instructions of Buyer and Seller to Orange Coast Title Company ("Escrow Halder") for its escrow denominated in the Sun3111ary Statement ("E scrow"). NOW, THEREFORE,Buyer and Seller agree, and Escrow Holder is instructed, as follows: 1. Incorporation of Recitals. The above Recitals to this Agreement are hereby incorporated by reference into this Agreement. 2. Purchase and Sale. Upon all of the terms and conditions contained in this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, the Property. 3. Purchase Price. The purchase price for the roperty ("Purchase Price") shall be The Purchase Price shall be payable as follows: 3.1 First Deposit. Buyer shall deposit into Escrow the amount of go r other immediately available funds (the "First Deposit upon the Opening of Escrow. 3.2 Second De osit. Upon the expiration of the Feasibility Period and provided that Buyer does not elect to terminate this Agreement pursuant to Section 6.5 below, Buyer shall deposit into Escrow the additional amount of Seventy Thousand Dollars ($70,000.00) in cash or other immediately available funds (the "Seconal Deposit"). The First Deposit and the Second Deposit are collectively referred to as the"Deposits". 3.3 Investment and Application of Deposits. Escrow Holder shall place the Deposits and any other funds deposited by Buyer into Escrow in a money market account having no penalty for early withdrawal at a financial institution acceptable to Buyer. Interest earned in such account shall be credited to the account of Buyer. Provided that Buyer does not elect to terminate this Agreement pursuant to Section 6.5 below, the Deposits shall be nonrefundable to Buyer following the Decision Date (as defined in Section 6 below) except in the event of a failure of a condition to Close of Escrow or a default by Seller or as otherwise specifically -2- 1�l:ICindyllCinstlerlVilinge h1rAVillage Inn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) provided in this Agreement. The Deposits and all interest accrued thereon in Escrow shall be applied toward payment of the Purchase Price at the Closing. 3.4 Payne ent of Balance of Purchase Price, The balance of the Purchase Price shall be deposited in Escrow by Buyer in cash or other immediately available funds on or prior to the Close of Escrow. 4. Opening of Escrow. Within t1ree (3)business days after the execution of this Agreement by the parties, Buyer and Seller shall open the Escrow with Escrow Holder, Escrow Holder shall notify both parties in writing of the date of Opening of Escrow. As used in this Agreement,the term "Opening of Escrow" shall mean the date on which three (3) copies of this Agreement signed by both Buyer and Seller are delivered to Escrow Holder. Upon receipt of such items, Escrow Holder is hereby instructed to open the Escrow, to insert the date of the Opening of Escrow on the last page of each cop), of this Agreement, to sign the Joinder of Escrow Holder attached to this Agreement, and to deliver one (1) complete copy of this Agreement to Seller and one (1) conplete copy of this Agreement to Buyer. This Agreement together with Escrow Holder's general provisions shall constitute instructions to Escrow Holder. If there is any conflict between the provisions of this Agreement and Escrow Holder's general provisions, the provisions of this Agreement shall control. 5. Close of Escrow. Subject to the satisfaction or waiver of the conditions described in Section 7 below, the close of Escrow for the purchase and sale of the Property ("Closing") shall take place through Escrow on or prior to the date which is thirty (3 0) days after the expiration of the feasibility Period. Either Buyer or Seller may elect to extend the Closing for up to thirty (30) days, if necessary to satisfy the conditions to Closing. The Closing shall also be extended for the period of time the closing is extended pursuant to the Asset Purchase Agreement. As used in this Agreement, the terns "Closing," "Close of Escrow" and "Closing Date" shall refer to the date on which Seller's Grant Deed conveying the Real Property to Buyer, in the form attached hereto as Exhibit "D," is recorded through Escrow in the Official Records of the County. 6. Buyer's Investigation and Other Matters. On or prior to 5:00 p.m. P.S.T. on the date which is 60 days after the Effective Date ("Decision Date"), Buyer shall conduct the investigations of the Property described in Sections 6.1, 6.2, 6.3 and 6.4. Buyer's approval in its sole discretion of such investigations shall constitute a condition to the Closing. Such period of time is referred to as the "Feasibility Period." 6.1 Approval of Preliminary Report. Orange Coast Title Company ("'Title Company") shall provide Buyer with a recent title report (the "Title Report") covering the Real Property together with copies of all documents referred to therein. Within thirty (30) days after Buyer has received the Title Report, Buyer shall deliver written notice ("Title Notice")to Seller of Buyer's approval or disapproval of the exceptions in the Title Report. If Buyer does not timely deliver the Title Notice to Seller,than Buyer shall be deemed to have disapproved the Title Report in its entirety. Arty Title Notice disapproving any aspect of the Property's title shall identify the disapproved items. Seller shall remove or cure any disapproved items by delivering written notice thereto to Buyer within five (5) business days after Seller's receipt of Buyer's Title Notice, If Seller does not timely deliver a notice of election to remove or cure the disapproved -3- WACinclylKins6ev\Village InnWillage Inn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) items, then Seller shall be deemed to have elected not to remove or cure the disapproved items. If Seller elects not to remove or cure any disapproved items, Buyer may waive its prior disapproval or terminate this Agreement pursuant to Section 6.5 below. Any new exceptions or other supplemental nnatters that appear against title to the Property prion to the Close of Escrow shall be removed by Seller prior to or concurrently with the Close of Escrow. Buyer hereby objects to all mortgages, deeds of trust, fixture filings, mechanics' liens and other monetary liens and encumbrances of any kind against the Real Property (other than the lien for non-delinquent taxes and assessments not yet due and payable) (the "Monetary 1f neurnbralrrees"), and Seller agrees to cause the Monetary Encumbrances to be rernoved of record at Seller's sole cost on or before the Close of Escrow. Any title approval given by Buyer shall be deemed conditioned upon the removal of the Monetary Encumbrances on or prior to the Closing. Seller shall deliver to the Title Company prior to the Closing (a) a standard Owner's Affidavit so that the Property shall be conveyed to Buyer free and clear of all unrecorded liens, encumbrances and possessory interests, and (b) a standard Mechanic's Lien indemnity so that the Property shall be conveyed to Buyer free and clear of any statutory liens for work performed prior to the Closing. Within five (5) business days after Buyer's approval (if given) of the'Title Report, the Title Company shall issue and deliver to Buyer an unconditional title commitment(the "Title Commitment") to issue the Title Policy required by Buyer on the Closing Date in form and content satisfactory to Buyer. During the term of this Agreement Seller shall not suffer or allow any further liens, encunnbrances or other exceptions to title without Buyer's prior written consent. 6,2 A royal of Phase I ALTA Surve and ADA Audit. Buyer shall have the right to engage one or more consultants to prepare a Please I Environmental Site Assessment of the Real Property ("Phase I"), an ALTAIACSM Survey of the Real Property ("Survey") and an ADA audit of the Property ("ADA Audit"). If Buyer completes the purchase of the Property, the cost of the Phase I, Survey and ADA Audit shall be shared equally between Buyer and Seller up to a maxirnuni of Four Thousand Dollars ($4,000.00) so that the maximum amount maid by Seller is Two Thousand Dollars ($2,000.00). Buyer's failure to approve or disapprove each of the Phase I , Survey or ADA Audit by delivery of written notice thereof to Seiler and Escrow Holder on or before the Decision Date shall be deemed Buyer's disapproval of such studies. 6.3 Feasibility Studies. Buyer shall approve on or before the Decision Date, the condition,use, development or suitability of the Property for Buyer's intended purposes, including, but not limited to, financial and market feasibility and the physical condition of the Property. Buyer's failure to approve or disapprove such investigations by delivery of written notice thereof to Seller and Escrow Holder on or before the Decision Date shall be deemed Buyer's disapproval. Seller hereby grants to Buyer, its agents, employees, engineers, attorneys and other consultants, a license to enter upon the Property at all reasonable times during normal business hours for the purpose of conducting feasibility studies and physical examinations of the Property. Buyer shall bear the cost of all such inspections,tests and studies. In conducting any inspections,tests or studies, Buyer and its authorized agents and representatives shall (a) not unreasonably interfere with the Village Inn Tenant's or the Residential Tenant's use of the Property, (b)not unreasonably interfere with the operation, use and maintenance of the Property, (c) not permit any liens to attach to the Property by reason of the exercise of the rights under this Section, (d) fully restore the Property to the condition in which the same was found before any such inspections, tests or studies were undertaken, (e)not reveal or disclose any information obtained as a result of such tests, inspections and studies concerning the Property except as may -4 1�J:1Cii dylICinstlerlVilla�e InnWillage Ina PSA.DOC Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) otherwise be permitted in this Agreement or as inay be required by law, and (f) not conduct any invasive testing without the prior consent of Seller, which consent shall not be unreasonably withheld. Prior to any such entry by Buyer on the Real Property, Buyer shall obtain and maintain the following insurance coverages with respect to any loss, damage or injury which may occur as a result of Buyer's entry upon the Real Property: (a) workers' compensation insurance as required by law; and (b)commercial general liability insurance written on an occurrence basis, with aggregate limits and per occurrence limits of at least One Million Dollars ($1,000,000.00). In addition, Buyer hereby agrees to indemnify,protect, defend and hold Seller and the Property free and harmless from and against any and all damages, claims, losses, liabilities, causes of action, proceedings, costs and expenses of any kind whatsoever (including, without limitation, attorneys' fees and fees of expert witnesses) arising from any such activities of Buyer, its agents and employees upon or about the Property; provided, however, the foregoing indemnity shall not extend to liability arising from (i) the acts or omissions of Seller or its agents, or (ii) Buyer's discovery of preexisting physical conditions on the Real Property. 6.4 Property Documents. Seller shall deliver to Buyer within five(5) business days after the Effective Date the Leases, if any (or if there is no written lease a summary of the material terms and conditions of the occupancy agreement), any other leases, subleases or other occupancy agreements, the Contracts, all environni-ental reports, engineering plans, irnprovement plans, surveys, maps, entitlements, licenses and permits, studies, drawings, books mid records; and all other similar documents or materials, if any, in the possession of, or under the control of, Seller, issued or prepared in connection with the ownership, operation, use, management and maintenance of the Property, including without limitation, the following (collectively, "Property Documents"): ® Copies of vendor contracts. ® Copies of contractors warranties, if applicable. ® Copy of ALTA Survey, if available. ® Tax Bills for 2009, 2010 and 2011. ® Phase I report, if available. + Building plans or as built plans, if available for the Buildings. ® Schedule of pending and current litigation. ® Copies of conditional use permit, entertainment license, liquor license and any other licenses or permits applicable to the use or operation of the Property. ® Certificates of occupancy for the Buildings. ® List of Personal Property. w5- WA0ndy\Kinstlerlvillase InnWillage lain PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) r ® Outstanding code violations. Capital improvement history for the Buildings. Buyer's failure to approve or disapprove the Property Documents by delivery of written notice thereof to Seller and Escrow Halder on or before the Decision Date shall be deemed Buyer's disapproval. Upon the Close of Escrow and subject to any required third patty consents which Seller shall use commercially reasonable efforts to obtain prior to Closing, Seller shall assign to Buyer all of its right,title and interest in and to the Property Documents and other Personal Property by executing a General Assiglnnent and Bill of Sale in the form attached hereto as Exhibit "H." Buyer acknowledges that the Property Documents are proprietary and confidential in nature and have beets or will be made available to Buyer solely to assist Buyer in determining the feasibility of purchasing the Property. Buyer agrees not to disclose the Property Documents or any of the provisions, terms and conditions thereof, or any information contained therein to any person outside Buyer's organization except (a) to Buyer's attorneys, accountants, lenders, prospective lenders, investors and/or prospective investors, consultants, engineers, architects and any other third party who have a need to know any of such information in connection with Buyer's prospective purchase of the Property (collectively, the "Permitted Outside Parties") or (b) as inay be required by law. Buyer further agrees to notify all Permitted Outside Parties that the Property Documents and all the information contained therein are to be kept confidential and not disclosed to third persons. In permitting Buyer and the Permitted Outside Parties to review the Property Documents to assist Buyer in its purchase of the Property, Seller has not waived any privilege or claim of confidentiality with respect thereto and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Buyer. 6.5 Terrninatiort. If, on or prior to the Decision Date, Buyer fails to approve in writing the Title Report described in Section 6.1 above, or Buyer fails to approve the Phase 1, Survey or ADA Audit pursuant to Section 6.2 above, or Buyer fails to approve in writing its investigation of the Property pursuant to Section 6.3 above, or Buyer fails to approve in writing the Property Documents pursuant to Section 6.4 above,which approval or disapproval shall be in Buyer's sole and absolute discretion,then this Agreement shall automatically terminate, in which event: (i) Buyer and Seller shall execute and deliver to Escrow Holder cancellation instructions and all other documents that are reasonably required by Escrow Holder and/or Seller in order to cancel this Escrow and release any interest of Buyer in and to the Property; (ii)Escrow Holder shall return the First Deposit to Buyer; (iii)Escrow Holder shall return all documents and instruments to the parties who deposited the same into Escrow; (iv) Buyer shall return all Property Documents to Seller; and (v)this Agreement shall terminate and neither party hereto shall have any further obligation or responsibility hereunder or liability of any nature or amount whatsoever to the other patty hereunder except as provided in Section 6.3. 7. Conditions to Closing. The following shall constitute conditions precedent to the Closing for the benefit of Buyer. Buyer may waive any such conditions in its sole and absolute discretion. -6- W:\Ciady\KinsticrlViilage InnWilla.-c Inn PSADOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 7.1 Title_ e PolicX. The Title Company shall be unconditionally committed to issue to Buyer, an ALTA Extended Owner's Policy of title insurance in the form of the Title Commitment("Title Policy") in the total amount of the Purchase Price, dated as of the Closing, insuring Buyer as the fee simple owner of the Real Property, and showing title to the Real Property vested in Buyer subject only to: (1) The printed exceptions and exclusions contained in the Title Policy; (2) Nondelinquent general and special real property taxes, bonds and assessments, which shall be prorated as of the Closing; and (3) All Permitted Exceptions. "Permitted Exceptions" shall meats all matters shown on the Title COillmitnlCnt approved by Buyer pursuant to Section 6.1 of this Agreement. Nothing herein shall prohibit Buyer from requesting and obtaining endorsements to the Title Policy. Seller shall pay the premium cost of the base portion (without endorsements or extended coverage) of the Title Policy and the Survey. Buyer shall pay the premium attributable to any additional coverage and endorsements requested by Buyer to the Title Policy, 7.2 Closing of Asset Purchase Transaction, The Closing is conditioned upon the concurrent or prior closing of the transaction pursuant to that certain Asset Purchase Agreement, dated November 1„ 2011 between Balboa Island Village Inn,Inc., as seller, and CLIA Island Properties, LLC, as buyer(the "Asset Purchase Agreement") relating to the purchase and sale of the Village Itm restaurant and bar business (the "Village Inn Asset Purchase Transaction"). 7.3 Termination of Residential Lease, The Closing is conditioned upon the termination of all Leases„ the vacation of the Residence by the Residential Tenant and any other occupants of the Property and the removal of all furniture and other personal property belonging to the Residential Tenant.. At the Closing the Residence shall be in broom clean condition, and Buyer shall have the right to conduct an inspection of the Residence no later than two (2) days prior to the Closing to confirm that the Residence is in the foregoing condition. 7.4 Estoppel Certificate. At least ten (10)business days prior to the Closing, Seller shall have caused BIVI to execute and deliver to Buyer an executed original tenant estoppel certificate in the form of Exhibit 'T" attached hereto (the "Estoppel Certificate") without exceptions or qualifications. 7.5 Seller's Representations and Warranties. Seller's representations and warranties described in Section S below shall be true and correct in all material respects as of the Closing Date. 7.6 Seller's Performance. Seller shall have performed in all material respects all of its obligations under this Agreement. -7- 11r:1CiFuiyll<instlerlVilla�e ImiWiilage Inn PSA.DOC Hearing Officer-October 17,2016 - Item No.1k: Additional Materials_Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 7.7 Effect of Failure of a Condition. In the event the Closing does not occur because any of the conditions set forth in this Section 7 are not satisfied or waived by Buyer,and if the failure of such condition(s) is not caused by the default of either party, thee.this Agreement and the Escrow shall thereupon be terminated, and: (i) Buyer and Seller shall execute and deliver to Escrow Holder cancellation instructions and all other documents that are reasonably required by Escrow Holder and/or Seller in order to cancel this Escrow and evidence the release any interest of Buyer in and to the Property; (ii) Escrow Holder shall return the Deposits to Buyer; (iii) Escrow Holder shall return all documents and instruments to the parties together with all tests and other reports prepared by Buyer with respect to the Property who deposited the same into Escrow; (iv) Buyer shall return all Property Documents to Seller; and (v)this Agreement shall terminate and neither party hereto shall have any further obligation or responsibility hereunder or liability of any nature or amount whatsoever to the other party hereunder except as expressly provided otherwise in this Agreement. 8. Representatiolrs and Covenants of Seller. In addition to any express agreements of Seller contained elsewhere in this Agreement, Seller hereby represents and warrants to, and covenants with, Buyer as follows: 8.1 Power. Seller has the legal power, right and authority to enter into this Agreement and the instTun-rents referenced herein, and to consurnmate the transaction contemplated hereby. 8.2 Requisite Action. All requisite action has been taken by Seller in connection with the entering into of this Agreement, the execution and delivery of the instruments referenced herein, and the consummation of the transaction contemplated hereby. 8.3 Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. 8.4 Income Tax Information. Seller is not a non-resident alien, a foreign corporation, a foreign partnership, a foreign trust, or a foreign estate (as those terms are defined in the United States Internal Revenue Code and Income Tax Regulations) for purposes of United States income taxation. In connection therewith, Seller shall deliver to Escrow Holder for delivery to Buyer at the Closing the Seller affidavits ("Seller's Affidavits") described in Section 10.1 (f)below. 8.5 Title: Further Encumbrances. From and after the date of this Agreement, Seller shall not,by voluntary or intentional act, encumber the Real Property with any lien, encumbrance, easement or other title matter, including without limitation, any judgment lien arising from litigation involving Seller. Seller shall pay in full all contractors, subcontractors and other parties for work performed prior to the Closing. 8.6 Propedy PropertyDocuments. To Seller's actual lo-towledge, all Property Docurxlents required to be delivered to Buyer will fairly present the information set forth in a manner that is not misleading and will be true, complete and correct in all respects on the date of delivery and upon the Close of Escrow. WACindy\K instlerMl I age 1nnWillage lon RSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 8.7 Govermnental Notices. Seller has not received any written notification frons any goverrunental authority imposing any special assessments on the Property or bringing any condemnation actions against the Property, or any part thereof Seller has not received any written notification from the Department of Building and Safety,Health Department or any other City, County or other governmental authority having,jurisdiction over the Property requiring any work to be done on or affecting the use or operation of the Property. 8.8 Compliance with Laws and CC&Rs. Seller has not received any written violations or notices of noncompliance of any statutes, ordinances, regulations, zoning, building codes, health and safety regulations, disability or handicapped accessibility laws (e.g. ADA), administrative or judicial orders or holdings, ,vhether or not appearing in the public records, or covenants, conditions, restrictions, declarations recorded against the Property affecting the use, operation, occupancy and enjoyment of the Property that has not previously been corrected. The Village Inn Tenant has received citations from the City of Newport Beach for allowing dancing (not allowed) and from the Alcoholic Beverage Control for service under-age persons; the citations were resolved. The Property is a legal nonconforming use with respect to the availability of parking. 8.9 Leases. Except for the oral Lease for the Residence there are no other leases, occupancy agreements, or other agreements relating to the use and occupancy of the Real Property executed by Seller or otherwise affecting the use or occupancy of the Real Property. No Tenant has any option or other right to purchase all or any part of the Real Property. 8.10 No Litigation. There is no litigation or legal proceeding pending or to Seller's actual knowledge,threatened in writing against Seller or the Property that could reasonably be expected to materially adversely affect Seller's or Buyer's ability to perform their respective obligations hereunder, or Buyer's ownership or use of the Property. 8.11 No Hazardous Substances. To Seller's actual knowledge, the Property has not been used for the storage or disposal of any Hazardous Substance, and thereare not present on or about the Property any Hazardous Substances in quantities in violation of Environmental Laws. Except as disclosed in the Property Documents, Seller has not received any written notice from any governmental authority concerning the removal of any Hazardous Substance from the Property, or concerning any restrictions on the use or development of the Property on account of the presence of any Hazardous Substance on the Property or on any other real property within the immediate vicinity of the Property. Seller has not used, generated, disposed of, or stored any Hazardous Substances on the Property. "Hazardous Substance" means (i) any chemical, compound,material, mixture or substance that is now defined or listed in, or otherwise classified pursuant to, any Environmental Law as a "hazardous substance," "hazardous material," "hazardous waste," "extremely hazardous waste," "infectious waste," "toxic Substance," "toxic pollutant" or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or "EP toxicity" and(ii) petroleum, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas), ash produced by a resource recovery facility utilizing a nnunicipal solid waste stream, and drilling -9- WACindylKinItlerwill age InnWillage snit PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas, or geotllerii-ial resources. "Environmental Laws" mearis any and all present federal, state and local laws (whether under common law, statute, rule, regulation or otherwise),permits, and other requirements of governmental authorities relating to the envirolunent or to any Hazardous Substance (including, without limitation, (i) the Toxic Substances Control Act, 15 U.S.C., Section 2601 et seq., (ii) the Clean Water Act, 33 U.S.C., Section 1251 et seq., (iii)the Resource and Conservation and Recovery Act, 42 U.S.C., Section 6901 et seq., (iv) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C., Section 9601 et seq., (v) the Hazardous Materials Transportation Act, 49 U.S.C., Section 1801 et seq., (vi) the California Hazardous Waste Control Act, Health and Safety Code, Section 25100 et seq., (vii) tlhe California Hazardous Substance Account Act, Health and Safety Code, Section 25249.5 et seq., (viii) the California Waste Management Act, Health and Safety Code, Section 25170.1 et seq., (ix) health and Safety Code, Section 2550, Hazardous Materials Release Response flans and Inventory, or (x) the California Porter-Cologne Water Quality Control Act, Water Code, Section 13000 et seq., all as amended). 8.12 Continued Operation. 8.12.1 Maintenance. Subject to Section 14, Seller shall maintain the Property in the condition in which it existed as of the date of this Agreement, normal wear and tear excepted, free from nhecharhics' liens or other claims for liens by reason of work performed by or at the request of Seller and not commit waste of or on the Property. 8.12.2 Ooeration. From and after the Effective Date until the Close of Escrow, Seller shall cause the business located on the Property to be conducted consistent with past business practices at the Property. 8.13 Indemnity. Seller hereby agrees to indemnify, protect, defend and hold Buyer, Buyer's partners and members, and their employees, officers, directors, shareholders, representatives, agents,attorneys, affiliates, parents and subsidiaries, successors and assigns harmless from and against any and all losses, damages, costs and expenses (including, without limitation, legal fees and disbursements)relating to the Property which accrue from acts, omissions, injuries or events occurring prior to the Close of Escrow,based upon or arising from (a) any claim by the Residential Tenant, BIVI or other occupant of the Property; (b) any claim relating to any of the Contracts; (c) for any labor performed on, or materials furnished to the Property at the request of Seller prior to Close of Escrow; (d) for any breach of the representations and warranties under this Agreement; and (e) for any other third party claim relating to the Property or the use or operation of the Property. 8.14 Survival of Representations. The representations and warranties of Seller and any other representations and warranties of Seller contained elsewhere in this Agreement are true and correct on and as of the date of this Agreement and shall survive the Closing without the necessity of a separate written certificate regarding the same. _lp_ W:1CiadylKirnstler\Village ImiWillage lan 1'SA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 9. Representations and Covenants of Buyer. In addition to any express agreements of Buyer contained elsewhere in this Agreement, Buyer hereby represents and warrants to, and covenants with, Seller as follows: 9.1 Power. Buyer has the legal power, right and authority to enter into this Agreernent and the instruments referenced herein, and to consumnrate the transactions contemplated.hereby. 9.2 Requisite Action. All requisite action (corporate, partnership or otherwise) has been taken by Buyer in connection with the entering into of this Agreement,the execution and del ivery of the instrunrents referenced herein, and the consummation-of the transactions contemplated hereby. 9.3 Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Buyer have the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. 9.4 Survival_. The representations and warranties of Buyer set forth in this Section 9 are true and correct on and as of the date of this Agreement, and shall be true and correct on and as of the date of the Closing, and shall survive the Closing without the necessity of a separate written certificate regarding the same. 9.5 Indemnity. Buyer hereby agrees to indemnify,protect, defend and hold Seller harmless from and against any and all losses, dainages, costs and expenses (including, without limitation, legal fees and disbursements) relating to the Property which accrue from acts, omissions, injuries or events occurring after the Close of Escrow, based upon or arising from (a) any claim relating to any of the Contracts; and(c) for any breach of the representations or warranties under this Agreement. 10. Escrow Closing Obligations. 10.1 Deliveries by Seller to Escrow Holder. Seller hereby covenants and agrees to deliver to Escrow Holder on or prior to the Closing Date,the following instruments and documents,the delivery of each of which shall be a condition to the Closing for the benefit of Buyer: (a) Grant Deed. Seller's Grant Deed ("Grant Deed"), duly executed and acknowledged by Seller, conveying the Property to Buyer, in the form attached hereto as Exhibit "B." (b) Estoppel Certificate. The original Estoppel Certificate required by Section 7.4 to the extent not previously delivered to Buyer. (c) Intentionally Omitted (d) Assignment of Contracts. Two (2) originals of an Assignment of Contracts, duly executed by Seller, in the form attached hereto as Exhibit "D" ("Assignment -1]- W:1CindylKiustItAVillage Im\Village Inn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer Index of Record 123 Marine Avenue(PA2016-133) of Contracts"), pursuant to which Seller shall assign to Buyer all of Seller's right, title and interest in and to the Contracts. (e) General Assignment. Two (2) originals of a General Assigni-nent and Bill of Sale, duly executed by Seller, in the form attached hereto as Exhibit "E" ("General Assignment"), pufsuant to which Seller shall convey to Buyer the Personal Property. (f) Seller's Affidavits. An Affidavit of Nonforeign Status under the Foreign Investment in Real Property Act of 1980, duly executed by Seller, in the form attached hereto as Exhibit "C" and the reciprocal California Tax Certificate (collectively,the "Seller Affidavits"). (g) Closing Stateinent. A Closing Statement acceptable to Seller executed by Seller. (11) Proof of Authority. Such proof of Seller's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Seller to act for• and bind Seller as may be reasonably required by Title Company. (i) Other Doc-urilents. Seller shall deliver all other documents and instruments reasonably requested by Escrow Holder or Title Company necessary to consummate the transaction contemplated under this Agreement. 10.2 Deliveries by Buyer to Escrow Holder. Buyer hereby covenants and agrees to deliver to Escrow Holder on or prion to the Closing Date the following, the delivery of each of which shall be a condition the Closing for the benefit of Seller: (a) Funds. The cash balance of the Purchase Price, together with Buyer's share of any Escrow closing costs and prorations in the amount determined by Escrow Holder, shall be delivered to Escrow Holder by Buyer in cash or inunediately available funds not later than the Closing Date. (b) Intentionally Omitted (c) Assignment of Contracts. Two (2) originals of the Assignment of Contracts, duly executed by Buyer, in the form attached hereto as Exhibit "D,"pursuant to which Seller shall assign to Buyer all of Seller's right,title and interest in and to the Contracts. (d) General Assignment. Two (2) originals of the General Assignment and Bill of Sale, duly executed by Buyer, in the form attached hereto as Exhibit "E"' pursuant to which Seller shall convey to Buyer the Personal Property. (e) Closing Statement. A Closing Statement acceptable to Buyer executed by Buyer. -12- W:%CindylKinsticr\Village InnWillage Inn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) (f) Proof of Authority. Such proof of Buyer's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf of Buyer to act for and bind Buyer as may be reasonably required by Title Company. (g) Other Docunnents. Buyer shall deliver all other documents and instruments reasonably requested by Escrow Holder or Title Company necessary to consllinmate the transaction contemplated under this Agreement. 10.3 Deliveries Outside of Escrow. Seller hereby covenants and agrees to deliver to Buyer, on or prior to the Close of Escrow: 10.3.1 Possession of Real Property. Possession of the Property, subject to the Permitted Exceptions. 10.3.2 Contracts, Leases, Etc. The original Contracts and Property Documents, or a true and correct copy thereof if the original is not available. 10.3.3 Personal Pro pert . Possession of all of the Personal Property. 10.3.4 K..__�s. To the extent in the possession of the Seller, all master keys or duplicate keys or combinations or other types of security passes or devices, for all locks in the Improvements shall be delivered by Seller to Buyer outside of Escrow. 10.4 Disbursements and Other Actions by Escrow Molder. Upon the Closing, and when all required funds and documents have been deposited into the Escrow, Escrow Holder shall promptly undertake all of the following: (a) Disburse all funds deposited with Escrow Holder by Buyer in payment of the Purchase Price and in payment of Buyer's share of any Escrow closing costs and prorations as follows: (1) Deduct from the funds deposited with Escrow Holder by Buyer in payment of Buyer's share of any Escrow closing costs and prorations the amount of all such items chargeable to the account of Buyer hereunder; (2) Deduct from the funds deposited with Escrow Holder by Buyer in payment of the Purchase Price all items chargeable to the account of Seller, including, without limitation, the Monetary Encumbrances and the Security Deposit and Seller's share of any other Escrow closing costs and prorations; (3) Disburse the remaining balance of the Purchase Price to Seller promptly upon the Closing. Any funds deposited by or on behalf of Buyer in excess of the sum of the Purchase Price and Buyer's share of any Escrow closing costs and prorations shall be returned to Buyer; and -13- W:1Ciod),lt'.instlerlVlllage InnWiltage lmm PSA.I)OC Hearing Officer-October 17,2016 .... Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) (b) Cause Seller's Grant Deed for the Property to be recorded in the Official Records of the County, (c) Deliver the Seller's Affidavits to Buyer. (d) Cause the Title Policy described in Section 7.1 to be delivered to Buyer. (e) Assemble and deliver to each of Seller and Buyer one counterpart original the Assig>u-nent of Contracts and the General Assignment. 10.5 lnformation Req. The "Reporting Person" within the; meaning of Section I.6045-4(e)(5) of the Regulations with respect to the transactions contemplated by this Agreement shall be Escrow Holder. It is agreed that Escrow Holder is an eligible person under Section. 1.6045-4(e)(5)(ii) of the Regulations. Escrow Holder hereby agrees to be responsible for complying with the reporting and other requirements of Section 6045(e) of the Code. Pursuant to the Regulations, the address for the transferor and transferee are as set:forth for Seller and Buyer in this Agreement, and the identifying information regarding the real estate transferred is the legal description for the Property set forth in this Agreement. Escrow Holder agrees to file the form required by the Regulations between the end of the calendar year in which the Closing Date occurs and February 28 of the following calendar year. Buyer and Seller agree (i)to cooperate with Escrow Holder and with each other in completing any report and/or other information required to be delivered to the Internal Revenue Service pursuant to Section 6045(e) of the Code regarding the real estate sales transaction conternplated by this Agreement, including without limitation, Internal Revenue Service Form 1099-S as such may be hereafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any Regulation now or hereafter promulgated by the Treasury Departrrrent with respect thereto; (ii)that Buyer and Seller, their respective employees and attorneys, and Escrow Bolder and its employees may disclose to the Internal Revenue Service, this Agreement or the transaction contemplated herein as such party reasonably deems to be required to be disclosed to the Internal Revenue Service by such party pursuant to 6045(e) of the Code; (iii)that neither Buyer nor Seller shall seek to hold any such party liable for the disclosure to the Internal Revenue Service of any such infornnation; and(iv)to retain this Agreement for at least four (4)years following the end of the calendar year in which the Closing Date occurs. 10.6 Natural Hazards Disclosure. Seller and Buyer acknowledge that the Disclosure Statutes provide that a seller of real property must make certain disclosures regarding certain natural hazards potentially affecting such real property, as more particularly provided therein. Seller has ordered a Natural Hazard Disclosure Report(the "Disclosure Report") for the Real Property from the Escrow Holder and shall deliver the Disclosure Report to Buyer promptly upon Seller's receipt thereof,but in no event later than ten (10)days prior to the expiration of the Feasibility Period. Buyer hereby agrees as follows with respect to the Disclosure Statutes and the Disclosure Report. 10.6.1 The delivery of the Disclosure Report to Buyer as provided above shall be deemed to satisfy all obligations and requirements of Seller under the Disclosure Statutes. W:\0ndyNK!ns1lej-Wil1agc ImiWillage Inn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 10.6.2 Seller shall not be liable for any error or inaccuracy in, or omission from., the information in the Disclosure Report. 10.6.3 The Disclosure Report is being provided by Seller for purposes of complying with the Disclosure Statutes and shall not be deemed to constitute a representation or warranty by Seller as to the presence or absence in, at or around the Project of the conditions that are the subject of the Disclosure Statutes. 10.6.4 The Disclosure Report is for Seller and Buyer only and is not for the benefit of, or be used for any purposes by, any other party, including, without limitation, insurance companies, lenders or the Authorities. 10.7. Transfer Disclosure Statement. Sellerand Buyer aclurowledge that the Disclosure Statutes provide that a seller of residential real property must make certain disclosures pursuant to Civil Code Section 1102, et. seq. Seller shall provide a Transfer Disclosure Statement regarding the Residence within 5 days of the Effective Date. 11, Escrow Cancellation. If either party defaults with respect to its obligations hereunder, or if Escrow is not in a condition to close by the Closing Date, Escrow Holder shall continue to comply with the instructions contained herein until a written denlarid has been made by a party entitled to do so for the cancellation of Escrow. Escrow Holder shall notify the other party of any such demand. 11.1 Charges. If the Closing fails to occur due to Seller's default, Seller shall pay all Escrow cancellation charges. If the Closing fails to occur due to Buyer's default, Buyer shall pay all Escrow cancellation charges. If the Closing fails to occur for any reason other than the foregoing: (a) Seller and Buyer shall share equally all Escrow cancellation charges, and (b) each party shall release the other party frown all liability hereunder for the failure of the Closing to occur. "Escrow cancellation charges" means all fees, charges and expenses charged by Escrow Holder as well as all charges related to the services of the Title Company in com-rection with title platters relating to this Escrow. 11.2 Buyer's Remedies. In the event Seller shall default under any of the terms and provisions of this Agreement, Buyer shall be entitled to pursue all remedies available at law or equity,including but not limited to, damages and specific performance. Seller acknowledges that the Property is unique, damages would be an inadequate remedy in the event of default and in such event specific performance of the contract would be property without limiting Buyer's right to any other remedy. -15- Nk7:1Cindy\t iiistlerlViliage InnWillage Inn PSADOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 11.3 Seller's Liquidated Damages if Buver Defaults. BUYER AND SELLER AGREE THAT IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER,IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX SELLER'S ACTUAL DAMAGES FOR, AMONG OTHER ITEMS, TAKING OR HAVING THE PROPERTY OFF THE MARKET, AND BUYER AND SELLER AGREE THAT THE AMOUNT OF THE DEPOSITSs IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO BUYER'S DEFAULT. IN ADDITION, BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT, AND SELLER DESIRES TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER WERE REQUIRED TO FILE A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT, THEREFORE, IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER, THEN UPON 'II:IE WRITTEN DEMAND OF SELLER THIS AGREEMENT AND THE ESCROW SHALL BE TERMINATED AND CANCELLED. IN SUCH EVENT, (A) ESCROW HOLDER SHALL RETURN ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WI-10 DEPOSITED SAME, (B) ALL TITLE AND ESCROW CANCELLATION CHARGES SHALL BE CHARGED TO BUYER, AND (C) ESCROW HOLDER SHALL RELEASE THE DEPOSITS TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY. SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF BUYER'S DEFAULT SHALL BE LIMITED TO THE RECEIPT OF THE DEPOSITS AND SELLER HEREBY WAIVES ALL OTHER CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY (INCLUDING, WITI-IOUT LIMITATION,ANY RIGHTS TO SPECIFIC PERFORMANCE THAT SELLER MAY HAVE); PROVIDED, HOWEVER, THAT THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT FOR OR RECOVER DAMAGES IN CONNECTION WITH BUYER'S INDEMNITY OF SELLER AND/OR BUYER'S DEFAULT OF ITS OBLIGATIONS UNDER SECTION 6.3 OR RECOVER ATTORNEYS' FEES AND COURT COSTS PURSUANT TO SECTION 19.2. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. Buyer's nitials Seller's Initials 12. Costs and Prorations. 12.1 Escrow and Other Costs. Subject to Section 11.1 above, Seller shall pay the Escrow Holder's escrow fees for the Escrow. Seller shall also bear the cost of all documentary transfer taxes and the premium cost of the base portion of the Title Policy. Buyer shall pay the premium cost attributable to any additional coverage or endorsements to the Title Policy and the Survey. Buyer and Seller (up to $2,000 if Buyer purchases the Property) shall each pay fifty percent(50%) of the costs of the Phase I, Survey and ADA Audit. Buyer and Seller shall each gear their own respective legal and accounting costs, if any, outside of Escrow. -16- W:1Cindy\KinsftrlVillaae hnnWillage hip;1'SA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 11.3 ,Seller's Liquidated Da>nages if Buyer Defaults. BUYER AND SELLER AGREE THAT IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX SELLER'S ACTUAL DAMAGES FOR, AMONG OTHER ITEMS, TAKING OR HAVING THE PROPERTY OFF THE MARKET, AND BUYER AND SELLER AGREE THAT THE AMOUNT OF THE DEPOSITSs IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO BUYER'S DEFAULT. IN ADDITION, BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT, AND SELLER DESIRES TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER WERE REQUIRED TO FILE A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, IF THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO THE MATERIAL DEFAULT OF BUYER, THEN UPON THE WRITTEN DEMAND OF SELLER THIS AGREEMENT AND THE ESCROW SHALL BE TERMINATED AND CANCELLED. IN SUCH EVENT, (A) ESCROW HOLDER SHALL RETURN ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED SAME, (B) ALL TITLE AND ESCROW CANCELLATION CHARGES SHALL BE CHARGED TO BUYER, AND (C) ESCROW HOLDER SHALL RELEASE THE DEPOSITS TO SELLER AS LIQUIDATED DAMAGES FOR BUYER'S FAILURE TO COMPLETE THE .PURCHASE OF THE PROPERTY. SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF BUYER'S DEFAULT SHALL BE LIMITED TO THE RECEIPT OF THE DEPOSITS AND SELLER HEREBY WAIVES ALL OTHER CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY (INCLUDING,WITHOUT LIMITATION, ANY RIGHTS TO SPECIFIC PERFORMANCE THAT SELLER MAY HAVE);PROVIDED, HOWEVER, THAT THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT:FOR OR RECOVER DAMAGES IN CONNECTION WITH BUYER'S INDEMNITY OF SELLER AND/OR BUYER'S DEFAULT OF ITS OBLIGATIONS UNDER SECTION 6.3 OR RECOVER ATTORNEYS' FEES AND COURT COSTS PURSUANT TO SECTION 19.2. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. Buyer's Initials Seller's Initials 12. Costs and Prorations. 12.1 Escrow and Other Costs. Subject to Section 11.1 above, Seller shall pay the Escrow Holder's escrow fees for the Escrow. Seller shall also bear the cost of all documentary transfer taxes and the premium cost of the base portion of the Title Policy. Buyer shall pay the pretniuur cost attributable to any additional coverage or endorsements to the Title Policy and the Survey. Buyer and Seller (up to $2,000 if Buyer purchases the Property) shall each pay fifty percent (50%) of the costs of the Phase I, Survey and ADA Audit. Buyer and Seller shall each bear their own respective legal and accounting costs, if any, outside of Escrow. -16- W:1CindyltCisfstleilVillage ImiWilI-agc hin PSA.DOC Hearing Officer-October 17,2016 -- - Item No.1 k: Additional Materials-Hearing Officer-Index of Record 123 Marine Avenue(PA2016-133) All recording costs or fees and all other costs or expenses not otherwise provided for in this Agreement shall be apportioned or allocated between Buyer and Seller in the manner customary in the County, 12.2 Real Property Taxes and Assessments. All non-delinquent general and special real property taxes,bonds and assessn-tints with respect to the Property shall be prorated through Escrow between Buyer and Seller as of the Closing based upon the latest available tax bills or tax information using customary escrow procedures. To the extent that the applicable tax assessor parcels, or any assessment district or other tax parcels, which-have been established as of the Closing include both the Property and other adjacent real property, then the applicable nondelinquent general and special real property taxes, bonds and assess--Lents shall be allocated between the Property and such other adjacent real propert), based on such manner of allocation ►-nutually agreeable to Buyer and Seller. Finally, if the regular tax bill or bills for the Property for the fiscal year in which the Closing occurs are not available as of the Closing, Buyer and Seller shall re-prorate all such general and special real property taxes, bonds and assessments for the Property between themselves outside of Escrow based upon the then current fiscal year's regular tax bill or bills within thirty (30) days following the date such regular tax bill or bills are actually received by the parties. Any special assessments, district assessments or any other bonds and assessments with respect to the Property shall not be paid in full by Seller,but the Current install--Lent of such bonds and assessments shall be prorated between Buyer and Seller as of the Closing as provided above. 12.3 Supplen-ental Real Property Taxes. With respect to any supplemental taxes assessed against the Property, Buyer and Seller hereby agree between themselves that Seller shall be obligated to pay all such supplemental taxes assessed against the Property for any period prior to the Closing, and Buyer shall be obligated to pay all such supplemental taxes assessed against the Property for any period from and after the Closing. Any supplemental properly tax bills received by Seller or Buyer after the Closing shall be prorated outside of Escrow by Seller and Buyer in accordance with the foregoing, 12.4 Property Income and Expenses. Except as otherwise set forth in this Agreement, all income and expenses of the Property shall be apportioned as of 12:01 a.m. on the Closing Date as if Buyer were vested with title to the Property during the entire day. Such prorated items include, without limitation,the following: 12.4.1 Rents. All Rents from the Residential Tenant received by Seller prior to the Closing shall be prorated between Buyer and Seller as of the Closing. Delinquent Rents shall not be prorated. 12.4.2 Utilities. Utility charges for gas, electric,water, sewer, cable and all other utility services shall be prorated at Closing on the basis of meter readings taken on the Closing Date or as soon prior to the Closing Date as possible. To the extent such meter readings are not available, the utility charges shall be prorated on the basis of the most recent actual (not estimated) bill for such utility and adjusted as necessary post-closing pursuant to Section 12.4.4 below. -17- VVACindy\l6nstlerlVillage lnnWillage lan PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 12.4.3 Other O-perating and Maintenance Costs. All other costs and expenses with respect to the operation and maintenance of the Property, including, without limitation, under any Contracts and any charges and assessments due under any merchants' associations or covenants, conditions and restrictions shall be prorated as of the Closing Date. 12.4.4 Proration Statement. At least five (5) business days prior to the Closing, Seller shall submit to Buyer a proration statement("Proration Statement") which sets forth the foregoing prorated items together with reasonably detailed supporting documentation. Prior to the Close of Escrow, Buyer and its accountants shall be afforded the opportunity to review all underlying financial records and work papers relating to the preparation of the Proration Statement, and Seller shall permit Buyer and its accountants to have full access to the books and records in its possession or in the possession of any party to whorl such records have beets given custody. To the extent any of the foregoing items of income or expense for the period prior to the Close of Escrow are received by Buyer or billed to Buyer after the Closing Date, and except as otherwise provided herein, Buyer and Seller shall re-prorate such income and expense items between themselves outside of Escrow within thirty (30) days following the date on which such items are received by Buyer. 13. Broker's Commission. Seller and Buyer each represent to the other that no brokerage commission, finder's fee or other compensation of any kited is due or owing to any person or entity in conn ection with the transactions covered by this Agreement except that Seller shall pay a commission of$95,000 to Tire McMahon of CB Richard Ellis and a commission and finder's fee of$95,000 to Kevin McKenna of CB Richard Ellis and a finder. Each patty agrees to and does hereby indemnify and hold the other harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the indemnifying party in connection with this transaction. 14. Condemnation and Destruction. 14.1 Condemnation. If all or any portion of the Property is taken prior to the Close of Escrow as a result of condemnation (including the filing of any notice of intended condemnation or proceedings in the nature of eminent domain), then Buyer shall have the right, by written notice delivered to Seller and Escrow Holder within ten (10) business days after Buyer receives written notice of such conden-nation,to terminate this Agreement and cancel Escrow. Otherwise, if Buyer does not so elect to terminate this Agreement and cancel Escrow by written notice delivered to Seller and Escrow Holder within such ten(10) business day period, then this Agreement shall remain in full force and effect, and the entire award from the condemning authority shall be the sole property of Buyer. If this Agreement and the Escrow are terminated pursuant to this Section,then Buyer hereby assigns to Seller all of Buyer's right,title and interest in and to such condemnation award and, notwithstanding the provisions of Section 11.1, Seller shall pay all Escrow cancellation charges,the Deposit and any other funds deposited by Buyer into Escrow, together with all interest earned thereon in Escrow, shall be returned to Buyer by Escrow Holder. 14.2 Fire or Other Casualty During Escrow. If there is a "material" damage to the Property or if the Property is destroyed by earthquake, flood, landslide, fire or other V,T:1CindyliCinstlerl\�iliage Inn1Vi!!2 e Inn PSA.DOC. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) casualty prior to the Closing Date,then Buyer shall have the right,by written notice delivered to Seller and Escrow Holder within tell(10) business days after Buyer receives written notice of such damage or destruction,to terminate this Agreement and cancel Escrow, for purposes hereof, "material" shall be deemed to be any uninsured damage or destruction to the Real Property or any insured damage or destruction where the cost of repair or replacement is estimated to be One Hundred Thousand Dollars ($100,000.00) or more or shall tale more than one hundred twenty (12 0) days to repair, in Seller's good faith judgment. If Buyer does not so elect to terminate this Agreement and cancel Escrow by written notice delivered to Seller and Escrow Holder within such ten(10) business day period, or if Seller has insurance coverage reasonably satisfactory to Buyer, this Agreement shall remain in frill force and effect, and all insurance proceeds payable to Seller with respect to such damage or destruction, if any, shall be assigned and delivered by Seller to Buyer at the Close of Escrow hereunder, Seller shall pay to Buyer any deductible or self-insured retention applicable to such insurance coverage, and Buyer and Seller shall proceed to the Closing pursuant to the terms of this Agreement without modification of the terms of this Agreement and without any reduction in the Purchase Price. If this Agreement and the Escrow are terminated by Buyer by written notice delivered to Seller and Escrow Holder during such ten (10)business day period as provided above, then, notwithstanding the provisions of Section 11.1, Seller shall pay all Escrow cancellation charges, the Deposit and any other funds deposited by Buyer into Escrow, together with all interest earned thereon in Escrow, shall be returned to Buyer by Escrow Holder or Seller if previously released to Seller. 15. Waiver and Consent. Either party may specifically and expressly waive in writing any breach by the other party of any provision of this Agreement, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining, such consent for the same or any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. 16. Survivability. All covenants of Buyer or Seller which are intended hereunder to be performed in whole or in part after the Closing, and all representations, warranties and indemnities by either party to the other, shall survive the Closing and be binding upon and inure to the benefit of the respective parties hereto and their respective heirs, executors, administrators, successors and assigns. 17. Further Documents and Acts. Each of the parties hereto agrees to cooperate in good faith with each other, and to execute and deliver such further documents and perform such other acts as may be reasonably necessary or appropriate to consummate and carry into effect the transactions contemplated under this Agreement. 18. 1031 Exchange. In the event either party so desires, the parties agree to cooperate with each other in completing the purchase and sale of the Property as part of a tax deferred exchange pursuant to the provisions of Section 1031 of the Internal Revenue Code of 1986, as at-nended. Seller and Buyer agree to execute any and all additional documents as may be -19- \A:1Ci idyliCinstlerlvillage fimWiliage Inn PSA DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) reasonably required in connection with such exchange; provided, however, that(a)the successful completion of any such exchange shall not delay the date of the Close of Escrow as provided for herein, (b) neither party shall be required to expend additional consideration or incur additional liabilities to the other party or to third parties as a result of any such exchange, (c) any documents to be executed in connection with any such exchange shall be delivered at least five (S) business days prior to the Close of Escrow, (d)the cooperating party shall not be required to take legal title to any other real property in com-rection with any such exchange, and(e) the exchanging party shall protect, defend, indenu-iify and hold the cooperating party free and harmless from and against any and all claims, damages, costs and liabilities (including, without limitation, attorneys' fees and costs) arising out of or relating to such exchange. 19. Miscellaneous, 19.1 Successors and Assigns. Neither Buyer nor Seller shall voluntarily or by operation of law assign or transfer any right, interest or obligation hereunder without the other party's prior written consent, which consent pray not be unreasonably withheld. Notwithstanding the foregoing, Buyer shall have the right, without Seller's consent,to transfer Buyer's rights and interests under this Agreement to a joint venture, limited liability company. partnership or other entity, so long as (a) Buyer or an affiliate of Buyer or its principals retains a substantial interest or a managing interest in such joint venture, partnership or other entity; (b) Buyer shall remain primarily liable for the performance of Buyer's obligations under this Agreement; (c)the assignee must expressly assume in writing all of Buyer's obligations under this Agreement; and (d) Buyer shall deliver to Seller a copy of the fully executed written assignment and assumption agreement between Buyer and such assignee at least three (3)business days prior to Closing. Subject to the foregoing, each and all of the covenants and conditions of this Agreement shall inure to the benefit of and shall be binding upon the respective heirs, executors, administrators, successors and assigns of Buyer and Seller. As used in this Section,the terra "successors" shall refer to the successors to all or substantially all of the assets of a party and to a party's successors by merger or consolidation. 19.2 Attorneys'Nees. If any legal action is instituted between Seller, Buyer or Escrow Holder in connection with this Agreement,then the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs and reasonable attorneys'fees. Buyer and Seller shall each bear their own attorney's frees for the preparation and negotiation of this Agreement. 19.3 Nqtces. All notices, requests, demands, and other communications required or pertnitted under this Agreement shall be in writing(including facsimile communications) and shall be (as elected by the person giving such notice) (i)hand delivered by messenger or courier service, (ii) sent via facsimile or email with confirming copy by mail, (iii) sent via overnight delivery service, or (iv) mailed by United States mail(postage prepaid), registered or certified,return receipt requested, addressed to the addresses set forth in the Summary Statement. Each notice shall be deeined delivered (1) on the date delivered if by personal delivery, (2) on the date of traiisniission with confirmed answer back if by facsimile or email during business hours at the recipient's address and at 9:00 a.m. on the next succeeding business day if not transmitted during business hours, (3) on the date delivered if by overnight delivery service, and (4) two (2) business days after deposit in the United States mail (postage -20- V1:1CindylKinstlerWillaQe lnnMllaffe lnn PSA.UOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) prepaid)if by registered or certified mail. By giving to the other panes at least fifteen (15) days' written notice,the parties to this Agreement and their respective successors and assigns shall have the right from time to time and at arty time during the term of this Agreement to change their respective addresses and each. shall have the right to specify as its address any other address. 19. 1 Gender and Nate. In this Agreement (unless the context requires otherwise),the masculine, feminine and neuter genders and the singular and the plural shall be deemed to include one another, as appropriate. 19.5 Entire Ag celthent. This Agreement and its exhibits constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. All prior agreements, representations, negotiations and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein.... 19.6 Captions. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. 19.7 Time of Essence. Time is of the essence of every provision of this Agreement in which time is an element. 19.8 Governin Law. This Agreement and the exhibits attached hereto shall be governed by and construed in accordance with the laws of the State of California. 19.9 An-rendments. No addition to or nhodifrcation of any provision contained in this Agreement shall be effective unless fully set forth in writing by both Buyer and Seller. 19.10 Counterparts, This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. 19.11 Exhibits. All exhibits to this Agreement are incorporated herein by this reference as though fully set forth in the body hereof. 19.12 Time References. Any references in this Agreement to time for performance of obligations or elapsed time shall mean consecutive calendar days, months, or years, as applicable, unless otherwise explicitly indicated herein. In the event that the day on which Buyer or Seller is required to take any action under the terms of this Agreement is not a business day, such action shall be taken on the next succeeding business day. Whenever notice, approval or disapproval must be given to Escrow Holder and Escrow Holder is closed on the last day for taking such action, then the parties shall have until 5:00 p.m. on the first following day Escrow Holder is open to take such action. 19.13 Construction of AAmement. The agreements contained herein shall not be construed in favor of or against either party, but shall be construed as if both patties prepared this Agreement. -21- 1t Xiudyli<instlu\Village hilAVillage Inn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) 19.14 No Recording Without Consent. Neither Buyer nor Seller shall, without the consent of the other party, record this Agreement or a short form or memorandum hereof, or take any other action that would materially and adversely affect the marketability of Seller's title to the Property. 19.15 Public Armouncements. Neither Buyer nor Seller shall issue a press release or other public announcement prior to the Closing regarding the transaction contemplated in this Agreement except as agreed to in writing by Seller and Buyer(in the exercise of their respective reasonable discretion). 19.16 Currencv. All dollar amounts are expressed in United States currency. 19.17 ASreement Binding_-Only Upon Execution. The delivery of this Agreement in unexecuted form by Buyer to Seller does not constitute either the agrecinent of Buyer or an offer by Buyer to purchase the Property upon the terms and conditions set forth herein, and this Agreement shall only be binding upon execution by both parties. The date on which the last of Buyer and Seller have executed this Agreement shall be referred to herein as the "Effective Date." _22_ VJ:1Ciridy\KinsticrlVilla,,e Inn\Village hnn PSA.DOC Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) IN WITNESS WHEREOF, the paries have executed this Agreement as of the day and year first above written. har-los V .]�instle' I L in la Kistler \. "BUYER" THRESA ROBERTA TOLL REVOCABLE TRUST, dated March 16, 2007 By: Elena Gratnont, Successor Co-Trustee "SELLER" -23-- I�1:1CinclylKinstlerlVilla�e lnnWiilage Inn PSA.DOC --- Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. Charles V. Kinstler It Lynda Kinstler TIIRESA ROBERTA TOLL REVOCABLE TRUST, dated March 16, 2007 By: _ — /� Gy1)� rl� Mena Grarnont, Successor Co=I nstee "SELLER" REE E i -23- W:\Cindy\1UistlerlViliage InnWillage Inn i'SA.DOC - - Hearing Officer-October 17,2016 Item No.1 k: Additional Materials-Hearing Officer-Index of Record 123 Marine Avenue(PA2016-133) JOINDER OF ESCROW HOLDER R Orange Coast Title Coinpaliy, the Escrow Holder under this Agreement, hereby certifies that the date of Opening of Escrow pursuant to Section. 3 of this Agreement is t�, ;QV: I �A)d, 2011, and agrees to be bound by the instructions set forth herein.. ORANGE COA T;,ITI"T'LE COST " � By: - Its: ` �f�% "ESCROW HOLDER" I i WA0nd),llCnstler\Village Innl\village Inn PSA DOC Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) NO. REVISION DATE -741-61± I (E)SI6N (E)FP / F -F - - T]- -i L -� - - T] -1L -� - - �- -1 L -� - - �- -1 +r - - - - L - J L - J L - _ _ LI JI L - J _ _ L - J L - J L J F-L - L� �L - JAL - _j FIREPLACE EXIT I I EXIT (E)FIREPLACE 3'-10" E -IC O - I I I � � � _— — —I �v 4-0 I � � SPK �� �,�� —fi,ITERTAI1�11��NT� �v Ale REA v —.� /may I I I I I I I I I I I I / y (E)\/ILLAGE INN < >L — _j L _ _j L — � L _ J L — J L _ J > RESTAURANT ENTERTAILAMENT NAREA JF_ N / >< v < / Xy I � � I I i v � I � N C - - �— �� \0 \/> / L 63 rY � rQ < U �� aO > L —1 EVENING ENTERTAINMENT ARRANGEMENT LOimp / < LO < < C: 00 � -0 L - -1 </ > < < �EVNEST flINING _ ri) 7 V < / >< v .42 SEAtTa< v > L — / / 4 _ — � E 5�4R LU L — L <v / > / /yv / Q 0 (� — L - -1 �� �� �� y0 L — � �� </ />- � +,L - -1 255E S - - - - - - - - - - - - v </ 10 Q - - L J L -1 � � — � </ /> / / / L —�L-- ��L-- �L — � LUI Q � L — L / < I' I > /<y // N _ _ L — J L -1 < //> / / /\/ L —I-1 / \ F —1 F 7 62 > > (E)EAST DINING O F _ -1 ROOM W I I I I I I <, > I I+r - L -14;�SE)TS </ `� I I o // 4'-0.. 6�_3�, ol / v> I I < ;> > SES S L _ L I < v �< > < � y >< / > v /yiy / v /v�v ' � - I EXISTING BIKE RACKS I (E)HALL E MEN I I (E)5TA67E TO REMOVED BE (ALSO, SEE SHEET A-1) UP — — — _ _ \ \ i / \ F_ \0 E STOR. E STO I ❑I (E) PROPERTY LINES (E)DIBHWABHING �— <� \ >< / > LI � � 2❑ (E) SIDEWALK Z L I— \ Q I 3❑ ROOF OVERHANG ABOVE Z cc) 10 ICE)Or-P I GE — \ I �4 TABLES AND CHAIRS, TYP. ALL OUTDOOR PATIO AREA z N 0)o L L I 5❑ PATH OF TRAVEL, 1:12 MAX. SLOPE W LU > Q E STOR. ID - \ o I w Z _ Q o z F_ —1 LUz J LU J (E)KITCHEN o _ _ _ (E)D 15HWA5H NG E MEN l u I > o E57AJ ANS > N O a 77 :11 I m Q (E)RESTAURANT 5061 5PLUQ < / >< v N L 43 (E)KITCHEN 466 BI= = m 0 I � I TRIS E COOLER 11a SFE (E)STORAGE TOT B� 4552 5F Exlr DOOR 707A c (E)GOOKL NE � 1V50UND ' I NEW PATIO 200 SF (E)WOMEN 6A5KET5,ETC. EXIT 5 _ E51 :7)ENT I AL (E)�OOt� PREP. L o - o (E)STORAGE (E)APT ABOVE REST. 124 B7- - - - - - - - - - - — — TOT 124'� BP I (E)HALLWAY (E)GOOLER I _ L07 AREA 5'-2" 12T MARINE AVE. 44,75 5F J I I (E)FREEZER LU az 5EA71 N67 Op Q ° 14'-I 1 V2 2q W,2" WEST 121 N I NG ROOM 42 SEATS O E J J EAST P I N I NG ROOM '14 SEATS LL LL! BAR 25 BEATS c NEW PATIO 16 SEATS COO I I TOTAL 15T SEATS �: O (E)GARAGE VN/ 2Ni7 E W J STORY APARTMENT LL Z LL A50\/r= I I UP DATE: 8/29/16 DRAWN BY: 1 I TRUAX PROJECT NO. THE VILLAGE INN r— I ST f�LCCR PLAN SHEET SCALE: I/4"=I'-O" ° ° ° ° ° ° ° O N A-2 _ _ _ _ © JAY A.TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. Hearing Officer-October 17,2016 Item No.1 k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) — — — — — — — — NO. REVISION DATE I I (E)LI /IN& I ON Q w I � L N NC QO� c5 (E)MASTER C115 a) B nROOM N U LO 0 C ` - m O (� ° -o Lo " I I 0 F I (E) PROPERTY LINES ? Q 05060 1 � w O JN I CO�2❑ (E) FLAT ROOF 00) JTO (E) ROOF OVERHANG ABOVE fQ co (E K 17CHEN I I ,- � � O co bm ❑ (E) PARAPET O N m 5❑ (E) FIREPLACE CHIMNEY U HALL 0 (E) FIREPLACE _ m L SLOPE SLOPE — — 4- ` I 11 I 3 � O LATH E MSTR. ON 5ATH 1 _— I TUB/5MR. 1 - co � co Z � I W CL > Q QU Q � w p Z Z 5-1 (E)HIGH ROOF J LU Q J SLOPE J (n > RE57AU AN7 > CC N O oCL t (E)RESTAURANT 3061 SF W Q (E)<7C HEN 466 SF m (E)OFF I GE 115 SF I I I (E)S70RA6E 11011 SF TOTAL 4552 SF 00 NEW PATIO 200 SF I 1% RE5 :;� N7 1 AL 0 _ m (E)AFT ABO\/E REST. 12441 SF —r — — — — — — — TOTAL 124�i SF I � I (E)LOw ROOF +t L07 AREA 1 5111 I 12'7 MARINE AVE. 4475 SF O Cl) O z BATH ( )KITCHEN DN 5EA7I N6 J Q LLJ 14'-IV2" 5'-2" 2q'-`1�2" 1 WEST i�I N I NG ROOM 42 SEATS Q Q EAST C)I N I NG ROOM '14 SEATS J I O - o� BAR 25 SEATS z NEW PATIO 16 SEATS O Din I I TOTAL 15-7 SEATS 010 Wa) J 0) Q LL I I I I I I I DATE: I 8/29/16 DRAWN BY: I (E)BnRM#26 I I � (C)L I Y I NG I TRUAX PROJECT NO. THE VILLAGE INN SHEET I � LL- 1 1 123 MARINI, A-4 © JAY A TRUAX,expressly reserves its common law copyright and other property rights in these plans.These plans are not to be reproduced,changed or copied in any form or manner whatsoever,nor are they to be assigned to any third party,without first obtaining the express written permission and consent of JAY A.TRUAX. Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—index of Record 123 Marine Avenue(PA2016-133) Please conrirm receipt ofthis email Thank you, Ruby From:NoReplyacnewportbeachca.goy Sent: Monday,October 24,2016 11:15 AM To: Garciamay,Ruby Subject:Newport Beach,CA: Hearing Officer Meeting-October 17,2016 Dearing Officer Meeting - October 17, 2016 Additional Materials Received Post Date: 10/24/2016 10:30 AM mks g ..l g, 0, y ra ; =ate»»;gg:^ Nr News Splash a ws Planning Division News Splash: NOTICE OF ADDITIONAL MATERIALS RECEIVED NOTICE IS HEREBY GIVEN that additional materials were received, referenced as le and If, for the Hearing Officer meeting held on Monday, October 17, 2016. The complete agenda packet, including staff report and additional' materials, can be accessed online. Please click here to view the complete Hearing Officer meeting packet . Written comments regarding this public hearing ffem should be submitted no later than 5:30 p.m., November 2 2016, to Brenda Wisneslyd, Deputy Community Development Director, at bwisneski(-7a,newportbeachca.,aov or 100 Civic Center Drive,Newport Beach, CA 92660. The Hearing Officer of the City of Newport Beach will consider the following application: Abatement Period Extension — 123 Marine Avenue - Request for extension of the required Abatement Period specified by Section 20.38.100 of the Newport Beach Municipal Code. A portion of the commercial structure located on 127 Marine Avenue extends onto the subject property which is zoned Two-Unit Residential, Balboa Island (R-BI). The applicant, who owns both properties, requests to allow the existing encroachment use to continue for an extended period of time without abatement. Please note: This is an automated message from the City of Newport Beach. Subscription preferences may be changed by accessing your News &Alerts account from the City website. Having trouble viewing this email? View on the website instead. Change your eNotification preference. Unsubscribe from all Newport Beach CA eNotifcations. Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) ENTITLEMENT : . aCADVIS©RSRECORD - TEAM - Ct TY October 31, 2016 VIA EMAIL City of Newport Beach William Connors, Hearing Officer loo Civic Center Drive Newport Beach, CA 92662 Re: 123 Marine Avenue PA2o16-133 Village Inn Dear Mr. Conners: On behalf of my clients,the Village Inn (Dan Miller and Charlie Kinstler), I wish to offer the following additional justification for an extended abatement period for the restaurant kitchen encroachment as follows: 1. If we were required to abate the encroachment immediately, elimination of the restaurant storage/food preparation use of the encroachment would significantly impact the viability of the restaurant. 2. The food preparation/food storage area is necessary for the on-going restaurant operation to meet the Planning Commission's condition of the existing Conditional Use Permit which was granted without requiring removal of the food storage area. The Condition states that the restaurant"...shall make a good faith effort towards the goal of increasing the percentage of food sales to 40%or more..." We are currently achieving 42%food sales (and trending upwards),thereby meeting the goal of 40%food sales. But we can't do that without the portion of the kitchen under discussion. 3. The length of time the encroachment has been in existence without complaints shows that there have been no adverse impacts to the surrounding property owners. 4. A one-year abatement period is not sufficient,given the age of this building dating back over 8o years, to allow us to explore costly interior renovations to redesign the kitchen by possibly moving some dining upstairs,reduction of community gathering space in the rear of the dining room or exploration of other options,which may require time consuming and costly discretionary action by the city We respectfully request that you consider these points as we wish to honorably continue the enhance restaurant operations desired by most of Balboa Island and the Newport Beach community. Sincerely, CMUWT� Carol McDermott Cc: Brenda Wisneski Dan Miller 949.717.7939 offi-1 949.422-2303 cell 15000 Birch Street,East Tower,Suite 400,Newport Beach,CA,9266ol www.entitlementadNisors.com Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) LUNA & GLUSHON ATTORNEYS 16255 VENTURA BOULEVARD,SUITE 950 Century City Office ENCINO,CALIFORNIA 91436 1801 Century Park East,Suite 2400 TEL:818-907-8755 Los Angeles,CA 90067 FAX:818-907-8760 October 31, 2016 VIA EMAIL City of Newport Beach William Connors, Hearing Officer 100 Civic Center Drive Newport Beach, CA 92662 Re: 123 Marine Avenue (PA2016-133 Dear Mr. Conners: As you are aware, our law firm represents Marine Avenue Neighbors ("Neighbors') who strongly oppose the Applicant's request for a 10 year extension of the Abatement Period specified by section 20.38.100 of the Newport Beach Municipal Code as to the non-conforming commercial use into the residential zone. This shall supplement our prior letter dated October 14, 2016 and is in response to the additional information provided to you by the Applicant and staff. 1. No Evidence that Non-Conforming Use was ever Lawful As noted by you at the public hearing, the foundational issue for you to decide is whether there is substantial evidence that the non-conforming use was lawful at the time of the issuance of the 2001 building permits. While the Director's prior determination that the use was legal non-conforming is evidence to be considered, it is nothing more than a conclusion based on an "assumption' without any evidence of a lawfully issued building permit or, even without a permit, that such non-conforming use was lawful. Neither the Director, nor staff, nor the Applicant has provided the Hearing Officer with any evidence (much less the legally required "substantial evidence") that the non-conforming use was lawful in 2001 or prior thereto. Without any evidence (i.e.: legal building permit, such use was lawful in any Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach William Connors, Hearing Officer October 31, 2016 Page Two event in 2001), there is no legal basis to grant any extension of time on the Abatement Order. By law, legal non-conforming status of a structure must be supported by validly issued building permits. City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1107; see also County of Sonoma v. Rex (1991) 231 Cal.App.3d 1289, 1297 ("A nonconforming use is one which lawfully existed prior to the effective date of the zoning restriction and which continued thereafter in nonconformity with the ordinance"); Melton v. City of San Pablo (1967) 252 Cal.App.2d 794, 805; City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1107 (Court rejected that a structure was entitled to the benefit of the doctrine of pre-existing non- conforming use and rejected claim that it was "unfair to expect a property owner to come up with documentation when so much time has elapsed and city records are incomplete"). The Applicant has completely failed to meet its burden of proof that the subject non-conforming use was ever lawful and the Courts have been clear that where an owner's use of property is not lawfully established, the property owner is not entitled to the benefit of the doctrine of pre-existing non-conforming use. 2. The Applicant has Failed to Provide any Evidence to Support its Request for an Extension of 10 Years. Reference is made to our prior letter which addressed how all of the legal findings for the requested extension cannot be made with supporting evidence. The Applicant has further failed to submit any further evidence to support its request for a 10 year extension. The sole reason for the request is to "weigh options." Even if the Hearing Officer disregarded the reality that the non- conforming use has never been lawful, there is zero evidence to support any lengthy extension. While the Neighbors reserve their rights to challenge any extension, to the extent that the Hearing Officer determines that the non- conforming use was lawfully established in the first place, any extension of time should not exceed one year. This period provides more than adequate time for the Applicant to "weigh options." Hearing Officer-October 17,2016 Item No.1k: Additional Materials—Hearing Officer—Index of Record 123 Marine Avenue(PA2016-133) City of Newport Beach William Connors, Hearing Officer October 31, 2016 Page Three For all of the reasons set forth above and in our prior letter, the Neighbors request that the Hearing Officer deny the request for extension of the required Abatement Period specified by section 20.38.100 for the proposed Project. Very truly yours, LUNA &GLUSHON ROBERT L. GLUSHON Hearing Officer-October 17,2016 Item No.1k: Additional Materials_Hearing Officer—index of Record 123 Marine Avenue(PA2016-133) Subject: FW: Newport Beach, CA: Hearing Officer Meeting-October 17, 2016 From: Wisneski, Brenda(BVVisneski@newportbeachca.gov) To: bslawstuff@yahoo.com; Cc: RGarciamay@newportbeachca.gov; Date: Wednesday, November 2, 2016 9:43 AM For your consideration. From: Jim Mosier[mai tto:jimmosher@yahoo.com] Sent: Wednesday,November 02,2016 9:35 AM To: Wisneski,Brenda Subject: Re:Newport Beach,CA: Hearing Officer Meeting-October 17,2016 Brenda, I have these additional comments for Hearing Officer Conners; 1. 1 notice the new Director's memo (Additional Materials le) is unsigned and refers to its subject as "127 Marine Avenue." My understanding is that the subject of the abatement proceeding is the residential property at 123 Marine Avenue, not the mixed use properly at 127 Marine Avenue. 2. The new Director's memo does not address the question of whether the 2001 permit may have been issued in error. That is, did the development at 123 Marine Avenue become non-conforming as a result of a change in zoning regulations (as seems to be required as a basis for the hearing), or, despite the 2001 permit, did it never conform to the zoning? I personally do not know the answer. Evidently the rules for building across property lines have changed, but I do not know if the regulations for building commercial structures on non- commercial lots may have been different in the past or if the zoning of 123 Marine Avenue may have been different. For example, was 123 Marine Avenue once zoned for mixed use? 3. At the October hearing,I recall some possible confusion about what Mr. Sullivan lived "adjacent" to. I believe Mr. Sullivan's family lives at 121 Marine Avenue. It may help to clarify that while 121 Marine Avenue is not immediately adjacent to the Village Inn restaurant at 127 Marine Avenue, according to the City's maps 121 Marine Avenue does abut, and is immediately adjacent to the subject property at 123 Marine Avenue. Hearing Officer-October 17,2016 Item No.1k: Additional Materials_Hearing Officer—index of Record 123 Marine Avenue(PA2016-133) Subject: FW: Newport Beach, CA: Hearing Officer Meeting -October 17, 2016 From: Wisneski, Brenda(BWisneski@newportbeachca,gov) To: bslawstuff@yahoo.com; Cc: RGarciamay@newportbeachca.gov; Date: Wednesday, November 2, 2016 2:21 PM One more correspondence for the record. From: Jim Mosher [mailto Jimmosher a yahoo.coml Sent: Wednesday,November 02,2016 1:59 PM To: Wisnesici,Brenda Subject; Re:Newport Beach, CA:Hearing Officer Meeting-October 17,2016 Brenda, One more thing: 1 noticed Google Maps has pictures of the nonconforming structure from three recent years https://www.google.com/maps/Aa33.6053619,-117.88981.28,3a,75y,270h,90t/data !3m7!Ie1!3m5! ls6Z gG4BksAW591(aVaXH4ZQ!2e0!5s20110601T000000!7il3312!8i6656 https://www.google.com/maps/9,33.6053619,-117.8898128,3a,75y,270h,90t/data=!3m7!lel !3m5! 1s6Z gG4BksAl7V59kaVxX1447-Q!2e0!5s20110601T000000!7il3312!8i6656 https://www.google.com/maps/g33.6053769,-117.8898181 3a 75y,270h,90t/data=!3m6!lef.!3m4! 1 s!.RY2Rzvc8S70J1n8MLj3og!2e0!7i].3312!8i6656 1 have attached screenshots.