HomeMy WebLinkAboutHO2016-003 - Approving the abatement extension period for the property located at 123 Marine Ave RESOLUTION NO. HO2016-003
A RESOLUTION OF A HEARING OFFICER OF THE CITY OF
NEWPORT BEACH APPROVING WITH A CONDITION THE
ABATEMENT EXTENSION PERIOD FOR THE PROPERTY
LOCATED AT 123 MARINE AVENUE (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 the owner's investment
in the property and avoid interference with use of the property; and
WHEREAS, an Abatement Order was issued on or about August 30, 2016 by
Community Development Director Kimberly Brandt, AICP, which was confirmed without
change after the Hearing of the matter on October 17, 2016.
WHEREAS, an application for an extension of the abatement period was filed by Dan
Miller, operator of the Village Inn, 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.
Applicant seeks an extension that will allow the continued operation of existing restaurant
located at 123 and 127 Marine Avenue for ten years from the date of the Hearing Officer's
decision. The residential property upon which the restaurant encroaches at 123 Marine
Avenue 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. At the close of the Hearing a period of 10 days was extended for the
submittal of additional materials, at which time the Record was final and closed; and
WHEREAS, the hearing was presided over by William B. Conners, a California
licensed attorney experienced in municipal law and Hearing Officer for the City of Newport
Beach; and
WHEREAS, the Hearing Officer finds and determines as follows:
1. PRELIMINARY LEGAL DETERMINATIONS.
As used throughout,the term`nonconforming"refers to the status of legal nonconforming.
City of Newport Beach
Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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At the hearing on the application, a coalition of neighbors in the vicinity of the
premises were represented by counsel, Robert L. Glushon, esq., who submitted several
legal arguments in opposition to the application during the Hearing, and again on October
31, 2016, as permitted by the Hearing Officer at the close of the initial Hearing. Because
most, if not all, of the arguments and contentions deal with threshold issues, these will be
discussed at this point:
A. Legal nonconforming status must be supported by validly issued building
permits.
The opposition challenges the authority of the City to declare that the
encroachment area between 123 and 127 Marina Avenue is in fact a legal nonconforming
structure, citing City and County of San Francisco v. Board of Permit Appeals (1989) 207
CA3d 1099, as authority.
That case dealt with an appeal by the City and County of San Francisco of its own
Board of Permit Appeals, which in turn overturned a determination by the City/County -
Zoning Administrator. The City/County challenged the act of the Board as being in excess
of its authority.
Unlike the situation at hand, the Court found the Board did not possess the legal
authority to decide if the excess unit was nonconforming and thus legal to continue in
existence. Under the City's ordinances, the Board would in effect be legalizing a unit that
it did not have jurisdiction to create.
In our matter under consideration, NBMC §20.38.030A. states: "Director's
Determination. The Director shall determine the nonconforming conditions of land uses
and structures." Thus, unlike the situation in the Board of Permit Appeals case where it
was determined that agency seeking to legitimatize the use clearly did not have authority
to do so, herein the Community Development Director had express and sole jurisdiction
to make that discretionary call.
Whether the Director's determination was supported by substantial evidence will
be discussed below, but as an initial issue, it is clear the Director was empowered to
exercise discretion in deciding the use was indeed nonconforming.
Holding: With respect to the issue of determining whether the use was
nonconforming or not, it was the exclusive authority of the Director alone to decide this
issue.
B. Was the building permit issued in 2001 "valid"?
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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Opponent claims that unless the permit issued by the City in 2001 was valid, the
request for Abatement is moot under the NBMC's provisions. This issue was raised again
in challenging whether the nonconforming use was ever lawful in the later submittal.
Absent extraordinary circumstances that might trigger compliance with the
California Environmental Quality Act (CEQA); issuance of building permits are ministerial
acts by the City. See Friends of Westwood v. Los Angeles (1987) 191 CA3d 259. A
ministerial act refers to an action of a person, in this case building official, in a prescribed
manner in obedience to a mandate of legal authority without regard to or the exercise of
his or her own judgment upon the propriety of the act being done (Black's Legal
Dictionary, Revised Fourth Edition, 1968). If the person seeking a building permit
submitted an approved plan, demonstrated compliance with then current building codes,
and paid a requisite fee, then the permit would have to be issued.
In the case at hand there is evidence that the closing of the breezeway between
the restaurant and the adjacent residence may have been accomplished before issuance
of a permit occurred. In municipal situations, it is not a rare occurrence to have a party -
commence construction without securing required permits, especially building permits, as
it appears was the case here. Once discovered to be constructing the encroachment
without required permits, it is clear a building permit was sought and secured by the owner
at the time. It is irrelevant whether there was an attempt to avoid securing of a valid
permit in the first instance since it was indeed requested and issued thereafter.
Even if the permit were incorrectly issued by the City in 2001, the time limit for
challenging that act would have long ago expired. The general statute of limitations for
lodging a dispute in that regard would have been 90 days after the incorrect action
pursuant to CCP §1094.6.
There is independent evidence that the building permit was and remains valid: (1)
it was signed off by building staff, an indication of compliance with zoning and building
regulations, (2) it references a "date of validation" of July 2001, with that term referencing
the time when the permit was deemed valid, and (3) the permit itself was issued and filed
as an issued building permit. Whether or not the act of closing-in the breezeway complied
with then current regulations regarding the crossing of property lines with a structure is
not the issue now. The permit was focused on whether or not the construction was safe
and met the uniform code requirements which are not now questioned. As long as they
permit was officially issued and approved, it was valid.
Holding: The 2001 building permit issued by the City was and is lawful and valid.
C. Compliance with NBMC §20.16.020.B. is mandatory and should act as a bar
herein.
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 4 of 17
Opposition counsel correctly references NBMC §20.16.020.B. as literally stating
that securing of permits must occur before a proposed use is commenced, a project is
constructed, or any activities associated with the use are commenced, established, or put
into operation. Counsel suggests that the term "shall" renders the action of the City to be
mandatory, and any project that proceeds without all necessary permits is invalid.
Unfortunately, as a matter of law, even the use of "shall" does not, necessarily, render
this provision to be mandatory.
Even where the term "shall" is present and even where a reference in the code
explains that term as meaning "mandatory', unless there is a penalty associated with a
failure to comply the law deems such reference directory in nature, not mandatory. See
for instance Cox v. California Highway Patrol (1997) 51 CA4th 1580 where the court
discusses the need to look to the consequences for an agency disregarding apparent
mandatory statutory language. Essentially if there is no negative impact from
disregarding the statutory language, it is directory in nature unless it is otherwise clear
that it was intended to be required. Herein it remains unclear whether the City Council
intended that any failure to secure a building permit in advance of commencing a use or -
action would bar any future attempt at obtaJning such a permit. My belief is the clear
intent of this local ordinance is to the contrary. It certainly is directory in that it attempts
to establish that necessary permits be obtained in a timely manner as much as possible,
but in those instances where compliance is required after the fact, such as with respect
to building permits, it is simply not the case. If you commence construction without a
building permit and are discovered, you have to pay a penalty fee and can then obtain
the permit without any further impediment. The ordinance does not seem to intend that
a late obtaining of such a building permit would forever prohibit actual use of that permit
in constructing the improvement. That would be contrary to common sense.
In raising this issue, it becomes incumbent upon the opposition to establish that
this provision is mandatory in all instances, and that once ignored, this provision bars all
subsequent attempts at obtaining a valid permit. As noted above, I don't believe that was
the intent of the Council, but in any case the issue of mandatory vs. directory was not
raised by the opposition and is unpersuasive without further argument or citations.
Finally, there was no showing made that this code provision was in effect in 2001
when the building permit in question was issued. It is not up to the Hearing Officer or the
City Staff to research this point, but up to the party seeking to argue that it controls in this
instance to do so.
Lacking that showing, I believe it is up to the discretion of the Hearing Officer to
determine the intent of this section and apply it to the facts of this matter.
Holding: It is found that compliance with NBMC §20.16.020.B. is not mandatory,
but is in fact directory in nature. The literal interpretation suggested by Opposition would
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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be inconsistent with the fact that uniform codes contain provisions for issuance after being
discovered in violation of requirements to secure building permits prior commencing
construction as long as such permits are subsequently requested and issued.
D. Opposition claims there is no evidence the building permit was in fact issued
with respect to the restaurant.
It is curiously stated that "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 correct that the 2001 building permit does not literally
seek an addition to the restaurant, but it does state the action was attaching the restaurant
to the house next door, it references remodeling the rear entryway which was a clear
reference to the restaurant, and most importantly the schematic diagram of the building
area is labeled as part of the Village Inn. It is readily apparent that in fact the building
permit was directly related to the restaurant at 127 Marine Avenue.
Contained in the staff report and entered into the record is Attachment B which -
sets forth the 2001 Building Permit No. B2001-1972. It may be that at the time the
argument was crafted by Opposition they had not seen this document, but at all times
that I have been in possession of the staff report this building permit has been plainly and
clearly set forth and relates to the restaurant as an encroachment into adjacent property
across the property line for some sort of restaurant use.
Holding: A valid building permit was issued by the City in 2001 in conjunction with
the Village Inn restaurant encroachment into 123 Marine Avenue property.
E. The burden of proof is on the party asserting a right to nonconforming use
In a sense this is correct, but it is misplaced to assume it is the applicant for the
extension of the Abatement Period that has the burden with respect to all issues. There
are actually two issues at hand, with two incumbent separate burdens of proof involved.
The first issue is whether or not there is a nonconforming use established under
the NBMC. As set forth in A. above, Newport Beach Municipal Code §20.38.030A. states:
"Director's Determination. The Director shall determine the nonconforming conditions of
land uses and structures." Thus the discretionary determination of whether or not there
exists a nonconforming situation falls on the authority of the Community Development
Director, not the applicant for the extension of time. As such, the burden of proof rests
with the Director, not the applicant. It is found that the Director has met that burden with
substantial evidence, as demonstrated in her memorandum of August 30, 2016 which
details the reasons and rationale for that determination. The Director reviewed this
determination after the Hearing was closed at. my request due to potentially new
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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information that she may not have considered. After reflection, the Director declined to
change or revise the earlier memorandum. Perhaps more importantly, the issue is moot.
Once it was found by the Director that there was a nonconforming situation under
the NBMC, an opportunity to seek a review by hearing officer to seek an extension of time
for required abatement of the nonconforming situation under the factual circumstances
set forth in the NBMC arose. That is the purpose of the hearing that was held on October
17, 2016, at which the current arguments were raised. Unlike the issue regarding the
propriety of finding nonconforming status, the issues regarding whether or not substantial
evidence exists to support an extension in accord with reasons set forth in the Code does
indeed rest with the applicant. Staff has the ability to recommend a preferred decision in
the same manner as the rest of the public, and it is common for the applicant to concur in
this recommendation as sound reasoning when it comports with their own point of view,
but in the end it is up to the applicant to make the case. If the staff recommendation is
well-reasoned, meeting this burden may be met by simply agreeing with that point of view.
It should be noted that the Director made the decision that the encroachment was -
nonconforming on or about August 30, 2016. NBMC §§20.64.020 and .030 establish a
system for appealing from decisions of the•Director, with a statute of limitations of 14
days. It appears that much of opposition's argument is directed at this initial
determination, but there is no appeal of the Director's determination allowed at this time
because the time to appeal that issue to the Planning Commission has long expired. At
this time that issue is moot and the determination of the Director requires deference from
the Hearing Officer.
Holding: The decision of the Director affirming nonconforming status to the
encroachment onto the 123 Marine Avenue property stands and any appeal has been
time barred since September 14, 2016.
Holding: The burden of showing whether or not the Hearing Officer should grant
an extension of the Abatement Period falls on the applicant to demonstrate.
F. Findings for the extension are not met.
This section is offered by the Opponent by argument alone as opposed to legal citations
and factual findings.
Holding: These arguments are not legal in nature and will be dealt with separately
in the "findings and recommendations" sections below.
G. Categorical exemption pursuant to CEQA is not appropriate.
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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Opposition argues that staffs determination that the request for Abatement is
categorically exempt under §15301 of CEQA Guidelines (existing facilities) is incorrect.
It is argued that the exemption is facially wrong because based on prior arguments, the
encroachment is illegal, and an illegal structure cannot be considered to be an existing
structure.
Facial challenges are directed at the statute in question, and consideration is given
only to the text of the measure itself, not its application to particular circumstances. See
Tobe v. City of Santa Ana (1995) 9 C4th 1069. In general, there can be no set of
circumstances that exist under which the statute would be valid.
If this is truly a facial challenge to the CEQA Guideline, it fails immediately. Herein,
the categorical exemption applies to existing structures without any reference to whether
that structure was created legally or not. To be facially incorrect there would have to be
no existing structure on the site. Period. That is simply not the case during all relevant
times herein.
This argument is presented without any controlling legal authority and seems to
defy logic. The encroaching structure either,is there or it is not. An illegal structure has
the same potential environmental impacts as one that is legal. The broad purpose of
CEQA is to provide local agencies sufficient information regarding potentially significant
environmental impacts that might result from project approval so that the agency might
eliminate or reduce the impacts through conditions of approval. There is nothing of a
legal nature that I can find that differentiates between legal and illegal structures that in
fact are already in existence. I find this argument to be sophisitic. If a structure exists,
the impact on a project will be the same regardless of its status.
The Opposition correctly states that in some instances the categorical exemptions
from CEQA themselves are subject to exceptions. In this instance staff has determined
that there exists a Class 1 Categorical Exemption (existing structure) which would relieve
the project from the application of a CEQA analysis. Opposition argues that an exception
from the exemption is appropriate here because "there is a reasonable possibility that the
activity will have a significant effect on the environment due to unusual circumstances."
citing CEQA Guidelines §15300.2(c).
The legal authority cited does exist, but it is inapposite herein because there are
no facts to place the current situation into that exception. The "reasonable possibility" of
a significant effect has to be established by plausible evidence. Opposition claims that
the fact the encroachment constitutes a commercial use on a residentially zoned property
is enough to trigger the "unusual circumstances" exception, citing to Berkeley Hillside
Preservation v. Berkeley (2015) 60 C4th 1086.
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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What is required to be shown pursuant to that case in order to invoke this exception
to an exemption is basically two-fold: (1) unusual circumstances must be demonstrated,
and (2) a significant environmental impact due to those unusual circumstances (Berkeley
Hillside Preservation v. Berkeley (supra, 1097). The fair argument test is used to
determine if there is a reasonable possibility of this significant impact.
There is no logical connection between the facts that the commercial
establishment encroaches on residential property, therefore it automatically results in a
significant environmental impact. There is no showing that any impact, such as the noise
impact that currently may exist, would not emanate from the commercial restaurant if it
were contained on its own property. Likewise, there is no showing herein that noise exists
to a level that would constitute a significant environmental impact. There has been no
measured level, no expert showing the noise is persistent or repetitive. More is required
to meet the test that a fair argument can be made that a significant impact might result
from leaving the buildings in the exact same relationship that they are currently arranged.
There is no cause and effect relationship demonstrated here.
Holding: Based on the information that is contained in the record, I find no
showing that unusual circumstances have given rise to potentially significant
environmental impacts such that the Categorical Exemption relied upon was incorrect.
(see Citizens for Envy!Responsibility v. St. of CA ex rel 14th Dist. Ag. Assn. (2015) 242
CA4th 555.) The Categorical Exemption relied upon by staff was correctly applied.
Holding: At all times relevant herein, there has been a structure consisting of an
enclosed former breezeway between two buildings, one a commercial restaurant and the
other a residential premises.
H.z No evidence that non-conforming use was ever lawful.
Counsel restates his previous argument that there is no evidence the decision of
the Director was lawful.
As noted above, this argument is time-barred and ignores the exclusive act of
jurisdiction in this regard exercised by the Director on August 30, 2016. As such, it is
beyond the scope of the Hearing Officer to determine. That said, I do find that there is
substantial evidence presented by the Director in her August 30, 2016, memorandum,
which has not been changed or revised, where she finds that the encroachment area
constitutes a nonconforming use, meaning a one that was lawfully established. She cites
as evidence the historic long-time use of the commercial property in the encroachment
area, the aerial photos and building permits that evidence the nature and use of the
Y Note that H. and I. are responses to the supplemental briefing provided by Opposition Counsel On October 31,
2016.
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 9 of 17
storage area that crossed the property line at that time. The notion of "substantial
evidence" in land use decisions generally turns on whether there is some significant
amount of evidence that supports the determination, and the decision is not entirely
lacking in evidentiary support. See Association for Protection, etc., Values v. City of Ukiah
(1991) 2 CA4th, 720; Laurel Heights v. Regents of the University of California (1993) 6
C4th 112. 1 disagree with counsel's conclusion that there is no evidence that the use was
lawful in 2001. 1 understand that in presenting his opinion he weighs the evidence in a
light most favorable to his client, but in this instance I simply disagree with the conclusion
that there isn't "any evidence" that supports her decision.
Holding: For the reasons set forth above, I find this argument is moot due to a
failure to appeal the Director's decision within 14 days of the August 30, 2016,
determination.
Holding: Despite the fact that the Hearing Officer has no jurisdiction to act with
respect to the Director's now final decision, I do find that there exists substantial evidence
to support that decision as outlined in the August 30, 2016, decision and the evidence _
submitted in the Hearing regarding the 2001 Building Permit submittal and approval.
I. In what amounts to a restatement of a prior position, Opposition Counsel refers
to their prior letter brief and once again argues that all of the findings to support the
requested extension cannot be made due to a lack of supporting evidence.
It is argued that the only justification for the 10 year extension offered by the
applicant is to "weigh options." That is simply not the case. In the written statement
submitted by the applicant in support of their request they note that: (1) they were required
to purchase the adjacent residential property with the restaurant "because of the
restaurant encroachment", (2) evaluate different options to address the nonconformity,
(3) to avoid economic hardship, (4) removal of the encroachment would be cost-
prohibitive, (5) removal would be infeasible due to its use for food preparation and
storage, (6) deprivation of this use would result in a taking of the property, and (7) loss of
this use would significantly impact the viability of the restaurant use.
As further support for these positions is the fact that Planning Staff offered a staff
recommendation to permit the 10 year extension. Despite any conclusions to the
contrary, the job of Staff is to look at the.pertinent facts for and against the application
and make a professional informed decision as to what is best for the community. The
applicant concurred in the Staff Recommendation and basically linked to that analysis.
Between the Staff's reasoning and that of the applicant, I believe there is ample
justification for the extension, primarily from an economic point of view.
While not changing my opinion as stated above, after the Hearing was closed the
Applicant, through their representative Carol McDermott, submitted additional information
City of Newport Beach
Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 10 of 17
regarding the potential impacts if the extension did not issue. She stated that: (1) removal
of the encroachment area would "significantly impact" the viability of the restaurant, (2)
the food preparation and storage area in the encroachment is "necessary" for the on-
going restaurant operation in order to achieve food sales goals, (3) the lack of prior
complaints over the many years the restaurant has been in existence demonstrates a
lack of adverse impacts, and (4) a 1 year extension would be insufficient to support any
future renovations or redesign. This information essentially supports the prior applicant
and staff findings.
I would note that my analysis did take into account the fact that numerous
neighbors believe that the encroachment area creates too much noise. If this were
allowed to continue, it could result in a hardship to neighbors, but a condition of approval
has been added to require reduction of noise emanating from this site. If applicant
concurs and reduces the noise, the other factors argue in favor of the 10 year extension.
2. FINDINGS AND RECOMMENDATIONS OF HEARING OFFICER
NBMC §20.38.100.4, sets forth the process for requesting an extension of the
abatement period contained in the abatement order of the Community Development
Director—herein one year. In general, it regi*es that an application forthe extension be
filed within 90 days prior to expiration of the abatement period—in this matter prior to May
31, 2017. It was obviously timely filed. The application must set forth the length of
extension requested, and provide evidence in support of the findings that must be made
to support an extension as set forth in NBMC §20.28.100.C.4.c. A hearing officer shall
be utilized to make this determination.
The Hearing Officer herein is empowered to approve, conditionally approve, or
deny the request for the extension pursuant to NBMC §20.28.100.4.b.iii. The Resolution
of decision shall include: (1) findings of fact; (2) evidence presented of economic hardship
arising from the abatement proceedings; (3) the nonconformity's impact on the
community; (4) and such other factors that may affect the length of the abatement period
required to avoid an unconstitutional taking.
Note that the Hearing Officer's authority extends only to determining the validity of
the extension, not the underlying decision by the Community Development Director to
issue an Order of Abatement.
In making this decision, the Hearing Officer shall consider: (1) the length of the
abatement period in relation to the owner's investment in the use; (2) the length of time
the use was operating prior to the date of nonconformity; (3) suitability of the structure for
an alternate use; (4) harm to the public if the use remains beyond the abatement period;
and (5) the cost and feasibility of relocating the use to another site.
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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Each of these issues is discussed separately below after the Findings of Fact
applicable herein are set forth.
A. FINDINGS OF FACT: Following are the factual determinations deemed pertinent to
this matter:
a. The current owners of the properties purchased them as two separate lots of
record in early 2012.
b. The property located at 123 Marine Avenue is residentially zoned and used,
with the exception of the encroachment which serves the restaurant, while the adjacent
property at 127 Marine Avenue is zoned and used as a commercial restaurant.
c. At all times since at least 2001, and definitely at all times owned by the current
property owners, the setback area between the two properties and formerly used as a
covered breezeway has been enclosed and essentially joins a portion of the restaurant
and part of a parking garage under a residential unit and an area in front of the garage _
structure. This area is being used for restaurant supporting activity, including cold
storage, dry storage, and food preparation. This area is referred to herein as the
encroachment.
d. The enclosure of the encroachment was constructed in accordance with a City
Building Permit, No. B2001-1972, issued on or about July 30, 2001.
e. At all times during the period of ownership of the property by applicants, the
nonconforming status of the encroachment has lawfully existed.
f. On or about August 30, 2016, the Community Development Director issued
notice to the property owner that the encroachment was nonconforming due to an
amendment of NBMC §19.04.035 in 2008 which prohibits the construction of structures
across a property line. The Director found that the original enclosure of the encroachment
was lawfully established, thus legally nonQonforming at that time and subject to the
abatement procedures detailed in Zoning Code §20.38.100 which required
discontinuance of the encroachment within one year unless an extension was granted.
This decision was not appealed.
g. An application for an extension of the abatement period was filed in a timely
manner3 by Dan Miller, Operator of the restaurant, on behalf of the property owners,
seeking a 10 year extension of time to abate the nonconforming situation.
' Although the application is not dated, it is clear that it was submitted within 1 '/z months of the Director's
determination prior to the hearing date of October 17,2016 and is therefore timely.
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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h. The Hearing of the request for the extension of the abatement period was held
on October 17, 2016, at City Hall. It was open to the public and afforded an opportunity
for public testimony. The preliminary statements introducing this Resolution above (the
WHEREAS statements) are found to be factually correct and incorporated herein by
reference.
i. The record of this proceeding was opened at the Hearing, and includes any and
all information contained in the staff report, any writings provided to the City before,
during, or after the hearing until such time as.the record is closed by the Hearing Officer,
along with all oral testimony made during the hearing, along with a sign-in sheet for
attendees. At the close of the Hearing, the Record remained open for receipt of additional
materials requested by the Hearing Officer, along with any additional responses from the
applicant, the opponents, or staff. Minutes of the meeting created by staff are also
included in the Record. The Record officially closed on November 2, 2016. Additional
information and photos were received from: (1) Robert Glushon, esq., (2) Jim Mosher, (3)
Mike Sullivan, (4) planning staff(News Splash), and (5) Applicant and representative. All
of this information has been considered and is added to the record. _
j. During the Hearing testimony was received from several residents living near
the encroachment, as well as written and oral testimony from an attorney representing a
coalition of residents in the neighborhood, who all stated, among other things, that there
was an emanation of annoying noise from the food preparation area within the
encroachment. It was described as a hammering or banging noise which was loud
enough to interfere with the quiet enjoyment of nearby properties.
k. Representatives of the restaurant present at the hearing did not deny the
presence of this noise or explain why it was necessary at this location, although they did
agree with the staff recommendation and responded to other issues raised by speakers.
I. The factual findings of the Hearing Officer in responding to preliminary legal
issues raised are incorporated herein as if set forth separately. In the interest of avoiding
redundancy they are not set forth herein again.
11
B. MANDATORY ITEMS OF REVIEW AND FINDINGS.
Pursuant to NBMC §20.38.100.C.4.(c) the Hearing Officer is directed to consider
the following: (a.) the length of the abatement period in relation to the owner's investment
in the use; (b.) the length of time the use was operating prior to the date of nonconformity;
(c.) suitability of the structure for an alternate use; (d.) harm to the public if the use remains
beyond the abatement period; and (e.) the cost and feasibility of relocating the use to
another site. These guidelines and resulting findings are set forth following:
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Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
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a. The length of the appropriate abatement period considering the owner's
investment in the use.
Finding: The extension of the abatement period for 10 years is allowed, but with
one condition. The extension is financially supported, but if it continues in its present
configuration it will continue to be a source of annoyance and nuisance to nearby
residences due to excess noise emitted from the activity in the encroachment area.
Therefore, the extension is conditioned on owner implementing approved procedures to
reduce noise emanating from the encroachment area. Such procedures could include
eliminating doors and windows from this area that are not required by building code
provisions, addition of sound attenuation insulation in the south walls of the structure, and
likewise insulating the ceiling might assist in accomplishing this goal, too. Installing
heavier insulated doors where required with automatic closing devices may help as well.
The condition expressly requires creation of an approved sound reduction plan that is
submitted to Community Development Staff and demonstrates a positive reduction in
noise from the food preparation area. The owner is required to work with the Community
Development Staff as well as the Building Department to create a plan to abate the noise
that exists according to others in the neighborhood, and implement that plan within 90
days of this decision. If not substantially implemented within that time period, the
extension shall be reopened and the Hearing Officer authorized to review the
recommendation for extension of the abatement period at that time.
Facts in Support of Finding: The applicant is requesting an abatement extension
of ten years. The property was purchased in 2012 at which time it was already in violation
of the NBMC and potentially subject to an abatement order. For whatever reason that
order did not issue until August 30, 2016. The owner has already enjoyed four years of
extended abatement status. There has been little evidence other than comments from
the owner and his agents to the effect that it would be economically problematic if the
extension were not granted. This ignores the fact that four years of extra advantage have
already been received by the owner. It goes without saying that every owner of a
business facing an abatement order that impacts square footage being used would have
a good argument that it would result in an economic hardship of some degree.
The staff recommendation indicates that it is their opinion that a one year
abatement period would be insufficient to allow the property owner to provide
improvements to the property that may be needed. It is staffs opinion that a hardship
might result if the extension were not approved.
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 the owner has
implemented several interior improvements to the restaurant to update the older, outdated
interior. Implicitly extending the abatement period would allow continued improvements
City of Newport Beach
Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 14 of 17
to be made, especially those that might abate other nuisance conditions being imposed
for the benefit of surrounding residents.
The one year abatement period specified by the Municipal Code is not of sufficient
duration to allow the property owner to explore interior renovations to redesign the
kitchen, utilize the upstairs area for restaurant use, or other options. Therefore, an
extension of 10 years for the abatement of the encroachment is necessary to allow
continued viable use of the applicant's property and to avoid the economic hardship that
might result by the abatement of the encroachment which is a functional and important
component of the restaurant operation. As long as continued use of this area can reduce
the noise emanating from it, the length of abatement is commensurate with the owner's
investment in the use and expectation of continued viability.
b. 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.
Finding: It is apparent that since at least 1989 the area between the two structures _
on the adjacent parcels were joined by a roof structure. It is somewhat in dispute when
the complete enclosure of this space occurred, but definitely in 2001 when permits
memorialize the current configuration. The NBMC changed in 2010 and made the use of
the encroachment area which extend over the property line one of nonconformity,
although staff did not issue an abatement order until 2016. In either case the property
has been utilized in its current relationship for more than 15 years and probably more
than 25 years. At a minimum, the current encroachment has been in its present state for
many years, enough that had if it been a significant nuisance it would have been brought
to the City's attention long ago. The fact that it has existed for an extensive period of time
demonstrates it is a suitable use in the neighborhood, and justifies continued use beyond
the one year abatement period automatically granted by the NBMC.
Facts in Support of Finding: Historic aerial photos of the encroachment are
inconclusive regarding whether the structure was fully enclosed as early as 1989 due to
the fact such photos only show the roof of the structure. That said, it is clear that at all
times since 1989 the area has been covered;creating a structure of sorts until it was fully
enclosed and in its current configuration in 2001. Building permits were issued in 2001,
at which time the City of Newport Beach had notice that the encroachment area was fully
encapsulated and extended across the property line. The City of Newport Beach adopted
an ordinance in 2010 which requires that nonconforming uses of structures crossing
property lines such as this be discontinued within one year unless an extension is granted
by the Hearing Officer.
While there was a significant factual dispute as to exactly when the breezeway
between the two buildings was enclosed, there is no doubt that by at least the summer of
2001 the enclosure was complete and a building permit supporting the improvement
City of Newport Beach
Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 15 of 17
issued. At all times since there is no substantial factual argument that it was used as
anything but a storage and preparation area for the restaurant next door.
The current owners purchased the two lots containing the restaurant and adjacent
residence, along with the enclosure, in 2012. Thus the owners have had only four years
to make improvements, grow the business, and basically attempt to recoup their
investment based on the current configuration. In terms of business development, this is
not a long time. I find that the additional period of 10 years will give them a greater
opportunity to recover their investment, along with any costs of noise attenuation required
by this decision.
c. The existing structure is not suitable for conversion to an alternate use.
Finding: It is difficult to envision what alternate use would be appropriate in the existing
encroachment area. Elimination could greatly impact the existing restaurant, and the
current wall of the garage area makes residential expansion or use impractical. The
current use is appropriate under the circumstances. _
Facts in Support of Finding: The subject encroachment is located within the setback area
of both the residential and commercial developments. 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. The area serves the restaui`ant, so removal would simply create a very
small buffer between the two buildings at a detriment to the commercial establishment.
d. No harm to the public will result if the nonresidential uses remain beyond the
one year abatement period.
Finding: As set forth in the conditional grant of extension by the Hearing Officer above,
the extension is appropriate, but to avoid any undue continuation of noise problems,
which could be harmful to the public, the noise attenuation condition needs to be
implemented.
Facts in Support of Finding: The subject encroachment has existed since at least 2001.
It serves as storage, a food preparation area, 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, assuming that the
negative impacts from noise that exist at the current time are reduced. This condition is
key to making this extension viable.
City of Newport Beach
Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 16 of 17
There was substantial repeat testimony at the hearing that the encroachment area
is a source of noise. Several persons testified to this fact, and it was raised in the Hearing
brief of Opposition counsel. I find there is substantial evidence to support a finding that
there is a frequent and unwanted amount of noise escaping from the encroachment area.
It would be unfair to surrounding residents to allow the encroachment to continue in its
present condition, which according to the 2001 building permits consists of wood framing
with drywall covering. There is no showing that any sound insulation was utilized at all,
and in fact the consistent comments regarding noise emanating from the area where food
was being processed underlies this fact.
The owner is really asking for what amounts to a 14 year extension given the 4
years that have expired since he could have legally been required to abate this use. It is
inherently fair that if the owner is to experience a continued ability to utilize this area for
his own profit, then the surrounding neighbors should be granted some relief from what
is already some level of nuisance.
e. The cost and feasibility of relocating the uses to another site cannot be -
accommodated within the one-year abatement period.
Finding: If the encroachment area was to be removed or relocated, the only place on the
restaurant property where this might occur is the upstairs residential area. The inherent
cost of moving to this location, even if feasible at all, would be great. It is clear that the
cost of moving to this location would be great, and certainly would not generate any
additional income for the restaurant and definitely not something that would be
recoverable in a one-year 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 would
require a complete redesign of the kitchen, reduction in seating area, and change in
access. Even if storage could be relocated to the upstairs area, that would require
engineering, potential revisions to the area, and a disruption of the existing operation.
3. COMPLIANCE WITH CEQA.
As noted under preliminary legal issues above, 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 high probability that there is little or no
possibility that this activity will have a significant effect on the environment and therefore
it is not subject to CEQA. Further, it is found that there is no applicable exception to the
City of Newport Beach
Hearing Officer Resolution
Abatement Extension
(123 Marine Avenue)
Page 17 of 17
exemption such that would trigger further analysis and review under CEQA as analyzed
in some detail above.
This issue has been analyzed above with respect to the challenge raised by
Opposing counsel. Please refer to that analysis for further legal review. It is the opinion
of the Hearing Officer that compliance with CEQA has occurred.
NOW THEREFORE, BE IT RESOLVED:
Section 1. Based on the record herein, the Hearing Officer of the City of Newport
Beach hereby conditionally approves the requested Abatement Period Extension of ten
years (PA2016-133), subject to the findings, condition, 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 BIk & Lot 16 BIk 1 Ex E 10 Ft
Lots 15, is hereby extended for ten years and will expire on November 3, 2026, at which
time the encroachment area 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. However, if the condition relating to noise abatement is not substantially
implemented within 90 days, the extension shall return to the Hearing Officer for further
review. It should be noted that this extension is only in full force and effect as long as there
is compliance with the required condition.
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, or unless there is a failure to comply with the condition attached to this
approval.
PASSED, APPROVED, AND ADOPTED THIS 2nd DAY OF NOVEMBER, 2016.
_/s/ _
William B C nners
Hearing Officer for the City of Newport Beach