HomeMy WebLinkAbout01_DeLormier Abatement Extension (PA2017-143)CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
September 27, 2017
Agenda Item No. 1
SUBJECT: DeLormier Abatement Extension (PA2017-143)
SITE LOCATION: 1441 Superior Avenue
APPLICANT: Lisa de Lorimier
OWNER: Lisa de Lorimier
PLANNER: Melinda Whelan, Assistant Planner
949-644-3221, mwhelan@newportbeachca.gov
PROJECT SUMMARY
Request to extend the abatement period of a nonconforming nonresidential use located
in a residential zoning district. The approximately 10,500-square-foot existing subject
property is located in the Multiple-Unit Residential District (RM 2420) and is occupied by
an 8,233 square foot medical office building (1441 Superior Avenue). No new
development or construction is proposed at this time. The property owner has requested
an extension of the abatement period from December 2021 expiration for an additional
24 years.
RECOMMENDATION
1)Conduct a public hearing;
2)Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301 – Class 1 (Existing Facilities) of the CEQA Guidelines,
because it has no potential to have a significant effect on the environment; and
3)Adopt the attached Resolution for the property located at 1441 Superior Avenue,
based on the findings and considerations discussed in this report, approving the
Abatement Period Extension to twenty-four years, December 15, 2045 (See
Attachment No. HO 1).
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VICINITY MAP
GENERAL PLAN ZONING
LOCATION GENERAL PLAN ZONING CURRENT USE
ON-SITE RM (Multiple-Unit
Residential)
Multi-Unit Residential
(RM 2420 SA/DU) General Office
NORTH RM RM 2420 SA/DU Convalescent Hospital/ Parking
lot
SOUTH Medical Commercial
Office (CO-M) Office Medical (OM) Medical Office
EAST RM RM 2420 SA/DU Convalescent Hospital
WEST RM RM 2420 SA/DU Apartments
1445 Superior
Convalescent Hospital
1455 G Superior
Memory Car Facility
1455 F Superior
Parking lot
1441 Superior
Subject Property
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INTRODUCTION
Project Setting
The subject property is located on the easterly side of Superior Avenue in what is known
as the County Triangle in the Newport Mesa Area of the city. It is bounded by a residential
apartment complex to the northwest, and commercial/medical office uses to the north and
southeast.
Background
Information submitted by the applicant and available in City records indicate the building
located at 1441 Superior Avenue was constructed by the owner’s father in 1959.
On July 25, 2006, the Newport Beach City Council adopted Resolution No. 2006-76
approving a comprehensive update to the Newport Beach General Plan (“General Plan
Update”), which changed the land Use Designation of the subject property from APF
(Administrative, Professional, Financial Commercial) District to RM 2420 (Multipl e-Unit
Residential 18 DU/AC) District.
On January 28, 2008, the City Council adopted Ordinance No. 2008 -05, which in addition
to other Zoning Code changes, established the maximum time period for the abatement
and termination of nonconforming uses in residential districts. However, determinations
of nonconformity could not be made until the finalization of the City’s Local Coastal Plan
(LCP), which occurred on July 14, 2009, and the subsequent Zoning Code Update which
was effective November 25, 2010 and delayed the implementation of the abatement
provisions.
On October 25, 2010, the City Council adopted a Comprehensive Update to the Zoning
Code (Newport Beach Municipal Code Title 20, NBMC) bringing consistency between the
Zoning Code and the Land Use Elem ent of the General Plan. The result of that action
rendered several properties nonconforming, including existing commercial uses located
within residential districts, which in accordance with Ordinance No. 2008 -05 became
subject to abatement in accordance with the following Section of Chapter 20.38 of the
NBMC:
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20.38.100 (Abatement Period)
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.
An abatement extension was approved on December 15, 2011, authorizing a 10 year
extension until December 15, 2021 (Attachment No. HO 2). Since the abatement
extension, the property owner has redeveloped 1455G Superior Avenue and 1455J
Superior Avenue into a memory care facility (conforming use) and 1455F into a parking
lot with the approval of a use permit. Also, the property owner has investigated the
redevelopment or reuse of the subject property. However, due to the size, shared
access and parking with 1445 Superior, the most viable solution is the redevelopment
of the three adjacent properties (subject property, 1455F Superior Avenue and 1445
Superior Avenue) concurrently. The current lease for 1445 Superior Avenue expires in
2045. Thus, the requested abatement extension is to run concurrently with this lease.
This will allow adequate time to proceed with plans to redevelop the three adjacent
properties.
DISCUSSION
General Plan
The General Plan land use designation for the property is RM (Multiple-Unit
Residential). 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
The subject property is zoned RM (Multi-Unit Residential). To make the subject property
consistent with the Zoning Code would require the abatement of the nonresidential
uses. However, the Zoning Code includes a procedure that allows for the extension
of the abatement period if certain findings can be made. The approval authority for the
extension
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lies with the Hearing Officer in accordance with the provisions of Section 20.38.100.C.4.b
(Hearing Officer Hearing and Action) of the NBMC. The Hearing Officer is also required
to conduct a public hearing on the request in compliance with Chapter 20.62 (Public
Hearings) of the NBMC.
Findings and Considerations:
In accordance with the provisions of Section 20.38.100 (Abatement Periods) of the
Newport Beach Municipal Code, 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 20.38.100.4.c (Findings and
Considerations), 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. HO 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 office building has occupied the site for the past 58 years. The property owner also
owns the building next door at 1445 Superior Avenue which is occupied by a convalescent
hospital and is a conforming use. The lease of the convalescent hospital expires on
December 31, 2045. The subject property has the benefit of using parking spaces at 1445
Superior Avenue which is written into the lease.
The property owner has researched the redevelopment of the property. The irregular size
and the shared parking creates Building Code and parking issues that hinder stand-alone
redevelopment of the property. The most viable solution would be to combine the three
adjacent properties (subject property, 1445 Superior Avenue, and 1455F Superior
Avenue) into one development site. The property owner’s ability to fund this potential
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future project could be affected by the loss of income resulting from the abatement of any
of the uses that currently occupy the subject property.
Since the last abatement extension, the property owner has redeveloped 1455G and
1455J Superior Avenue into a memory care facility, which is a conforming use. The owner
has also redeveloped the 1455F Superior Avenue property into a parking lot approved
with a use permit, also a conforming use. This parking lot has improved vehicle parking
and circulation for all properties. The 24-year period would allow the owner to recover
financially from these redevelopments through profit from the convalescent hospital and
formulate a plan for comprehensive redevelopment. Furthermore, current tenants have
occupied the building for over 20 years and include a physical therapy office and other
uses that complement the convalescent hospital.
(2)Length of time the use was operating prior to the date of
nonconformity.
According to City records, the building was constructed in 1959 as a commercial building
and has maintained as such. On November 9, 1992, the City Council adopted Ordinance
No. 92-45 which changed the zoning of the subject property at 1441 Superior Avenue
from the (R-3-2178 (Multi-Family Residential)) District to the APF (Administrative,
Professional, Financial Commercial) District to bring it consistent with Land Use Element
of the General Plan.
The property became nonconforming 11 years ago, when the City Council adopted
Resolution No. 2006-76 approving the “General Plan Update.” The existing structure and
use conformed to the Land Use Element of the General Plan for the prior 47 years; or
was nonconforming and not subject to abatement. The building has been in continuous
operation since that time. Many current tenants have occupied in the building for many
years including one since 1989.
(3)Suitability of the structure for an alternative use.
The existing building fronts Superior Avenue, and shares a driveway with 1445 Superior
Avenue. Providing services that lend themselves to the drop off of elderly clients,
customers, and/or patients including an adult day care use that is a conforming use in a
residential district is ideal, but after years of extensive due diligence to repurpose the
building for such use, all efforts were unsuccessful. All potential tenants cited limited
access and parking as factors to not pursue occupancy of the building. The current
building is not suitable for conversion from the existing commercial use to a residential
building without demolishing and building new, or major renovation to provide adequate
living areas and residential parking. A residential project would share a driveway with the
convalescent hospital, would have to comply with all current Code requirements which
along with its shape and size would create multiple design constraints.
The time frame to obtain funding and to design and process documents for the
construction of a comprehensive project that wou ld occupy the subject property and
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possibly the 1445 Superior Avenue property could not feasibly be accomplished within
the current abatement period that expires in December 2021. Additionally, the loss of
revenue due to abatement, during the processing of the new project, would subject t he
property owner to economic hardship in addition to the costs for development of the new
memory care facility (1455G and 1455J Superior Avenue) and the new parking lot (1455F
Superior Avenue).
(4)Harm to the public if the use remains beyond the abatement period.
The subject property is in an area that is occupied by other nonresidential uses; including
an office, a medical office (across the street), and a convalescent hospital. It is anticipated
that the continued commercial use of the subject property is compatible with the
surrounding uses and will not have a negative impact or pose harm on the neighboring
residential and nonresidential uses in the vicinity. To date there is no evidence of
incompatibility with the apartment complex to the west. Furthermore, the property owner
has reached out to stakeholders in the area (most notably the four assisted living facilities
within one mile of the subject property); the need for services was expressed: behavioral
health services and physical therapy for seniors, and a local pharmacy that will make
deliveries. The subject property has a physical therapy tenant, psychologists, and a
pharmacist who are looking for leases greater than 10 years. These uses are the least
impactful to parking which has always been an issue in this area , and provide support
services to the assisted living facilities.
(5)Cost and feasibility of relocating the use to another site.
The property owner does not have any other properties to which the tenants could
relocate. All of the properties they own are within the vicinity a nd in the residential zone.
The physical therapy tenant has been in business at the subject property since 1989 and
a move to a new location would be a negative impact to their business.
RECOMMENDATIONS
As discussed in Finding and Considerations section above for each property, the
applicant has presented information and a request to extend the abatement period to 28
years until December 2045. Staff’s recommendation for the 24-year extension is based
on the following findings and considerations:
1.The remaining four years is not an adequate period of time to amortize the property
owner’s investment in the property, and there is an existing shared parking
covenant written into the lease of 1445 Superior Avenue that expires in 2045. Also,
if 1445 Superior Avenue is considered in conjunction with a larger comprehensive
project, the project would have to wait for the 24 years remaining on the current
lease.
2.The property became nonconforming with the General Plan in 2006, 11 years ago,
when the City Council adopted Resolution No. 2006 -76 approving the “General
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Plan Update.” The existing structure and use conformed to the Land Use Element
of the General Plan for the prior 47 years; or was nonconforming and not subjec t
to abatement. The building has been in continuous operation since that time. Many
of the tenants have occupied the building for many years including one since 1989.
3.The property owner has redeveloped 1455G Superior Avenue and 1455J Superior
Avenue into a memory care facility (conforming use) and 1455F Superior Avenue
into a parking lot with the approval of a use permit. These projects were costly to
the property owner.
4.Efforts by the property owner to reuse the subject property for a conforming use
such as an adult day care were unsuccessful. Potential tenants cited access and
parking as the reasons for not pursuing a lease to occupy the existing building and
property.
5.The current building is not suitable for conversion from the existing commercial
use to a residential building without demolishing and building new, or major
renovation to provide adequate living areas and residential parking. The size and
access to the property do not allow for a viable project.
6.The most viable solution is the redevelopment of the three adjacent properties
(1441 Superior, 1455F Superior and 1445 Superior) into one development. The
current lease for 1445 Superior Avenue expires in 2045.
7.The property is in an area that is occupied by other nonresidential uses; including
office, medical office (across the street) and a convalescent hospital. It is
anticipated that the continued commercial use of the subject property is compatible
with the surrounding uses and will not have any negative impact or pose harm on
the neighboring residential and nonresidential uses in the vicinity. Furthermore,
outreach by the property owner has confirmed a need for the services provided at
the existing building to the surrounding area.
8.The office building has been in operation for over 58 years and has not posed any
negative impact on the neighboring uses, including the apartments to the west
9.That the relocation of the present nonresidential uses that occupy the bu ilding
would be costly since there are limited numbers of comparable vacant storefront
units or buildings within the vicinity. Consequently, relocation of the nonresidential
tenants would result in a loss of long term rental income.
10. The abatement extension of an additional 24 years to December 15, 2045, is
appropriate in this case since it will afford the property owner the ability to amortize
the value of the building improvements. Without the extension of the abatement
period, the property owner cannot enter into new leases for the commercial spaces
and would suffer an extended period of reduced revenue. Construction to combine
this property with the neighboring properties in conjunction with a larger
comprehensive project would be adversely affected.
Environmental Review
The project is categorically exempt under Section 15301, of the California Environmental
Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities). This abatement period
extension 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
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CEQA applies only to projects that have the potential for c ausing 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.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property
within 300 feet of the boundaries of the site (excluding intervening rights -of-way and
waterways) including the applicant and posted on the subject property at least 10 days
before the scheduled meeting, consistent with the provisions of the Municipal Code.
Additionally, the item appeared on the agenda for this meeting, which was posted at City
Hall and on the City website.
Prepared by:
ATTACHMENTS
HO No. 1 Draft Resolution with Findings and Conditions
HO No. 2 Hearing Officer Resolution No. HO2011-006 (PA2011-032)
HO No. 3 Supplemental Information Submitted by Applicant and Site Photos
9
Attachment No. HO 1
Draft Resolution
10
RESOLUTION NO. HO2017-001
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH APPROVING AN ABATEMENT PERIOD
EXTENSION FOR THE PROPERTY LOCATED AT 1441
SUPERIOR AVENUE (PA2017-143)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
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 a specified period of time unless that period of time is extended by a resolution from the
Hearing Officer after a noticed public hearing to allow the property owner to amortize the
owner’s investment in the nonconforming property or to avoid an unconstitutional taking of
property;
WHEREAS, an application was filed by Lisa DeLormier, with respect to property located at 1441
Superior Avenue, and legally described as Portion of Lot 819, First Addition to Newport Mesa
Tract. The applicant requests approval of an abatement period extension to 2045 which is 24
years in addition to a previous extension until December 15, 2021. The subject property is
located within the RM (Multi-Unit Residential) Zoning District and the General Plan Land Use
Element category is RM (Multiple-Unit Residential). The subject property is not located within
the coastal zone;
WHEREAS, the applicant proposes an extension of the required abatement period specified
by Section 20.38.100 (Abatement Periods) of the Newport Beach Municipal Code as
previously extended as noted above . The property is now, and at all times since 1959 has
been, improved with an approximately 8,233 square-foot office building. The applicant
requests to allow the existing nonresidential use to continue to December 15, 2045, without
abatement;
WHEREAS, a properly noticed public hearing was held on September 27, 2017, in the
Crystal Cove Conference Room (Bay D-2nd Floor) of the Newport Beach City Hall facility
located at 100 Civic Center Drive, Newport Beach, CA. Evidence, both written and oral,
including a written staff report was presented and considered by the Hearing Officer , William
B. Conners; and
WHEREAS, the findings and considerations required to be considered by the Hearing Officer
pursuant to NBMC Section 20.38.100.C.4.c. together with facts and information in support of
such findings are set forth following:
A. Is the length of the abatement period appropriate considering the owner's investment in
the use?
Finding: Yes. The office building has occupied the site for the past 58 years. The property
owner also owns the building and adjacent property at 1445 Superior Avenue which is
occupied by a convalescent hospital and is a conforming use. The lease of the convalescent
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Hearing Officer Resolution No. HO2017-001
Page 2 of 5
07-22-2014
hospital expires on December 31, 2045. The uses at 1441 Superior Avenue have the benefit
of using parking spaces at 1445 Superior Avenue pursuant to the existing lease.
Facts in Support of Finding:
1.The property owner has researched the redevelopment of the property. The
irregular size, the access, and the shared parking creates Building Code and parking issues
preventing viable re-use or redevelopment of the property. The most viable solution would be
to combine the three adjacent properties (1441 Superior Avenue, 1445 Superior Avenue, and
1455F Superior Avenue) into one development. The property owner’s ability to fund this
potential future project could be affected by the loss of income resulting from the abatement
of any of the uses that currently occupy the subject property.
2.Based on the information submitted, an extension of an additional 24 years for the
abatement of the current uses is necessary to avoid the economic hardship that would
otherwise result.
3.The abatement extension of an additional 24 years to December 15, 2045, is
appropriate in this case since it will afford the property owner the ability to amortize the value
of the future redevelopment of their three adjacent properties at 1441 Superior Avenue, 1455
Superior Avenue and 1455F Superior Avenue.
B. Does the length of time the use was operating prior to the date of nonconformity justify the
extension of the abatement period beyond the code specified one year?
Finding: Yes. The property has been used as a commercial office building since 195 9.
There is no evidence of any negative impact to the surrounding areas and in the context of
surrounding uses, and has the support of a number of neighbors.
Facts in Support of Finding:
1.The property became nonconforming with the General Plan and Zoning Code in
2006, 11 years ago. The existing structure and use conformed to the Land Use Element of
the General Plan for 47 years prior to the 2006 update, and was not subject to abatement
until 2008. At all relevant times, the commercial office use has been compatible with the
surrounding residential and non-residential land uses and there is no evidence of any
nuisance arising from such use.
2.The substantial period of time of use without noted problems underscores a high
probability of continued successful integration into the surrounding environs, supporting the
extension sought.
C. Would the existing structure be suitable for an alternative use?
Finding: No. current building is not suitable for conversion from the existing commercial use
to a residential building without demolishing and building new, or major renovation to provide
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Hearing Officer Resolution No. HO2017-001
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07-22-2014
adequate living areas and residential parking. The size and access to the property do not
allow for a viable project.
Facts in support of finding:
1.The existing building fronts on Superior Avenue, and 1441 Superior Avenue shares
a driveway with 1445 Superior Avenue. Providi ng services that lend themselves to the drop
off of elderly clients, customers, and/or patients such as a conforming adult day care use is
ideal. However, after years of extensive due diligence to repurpose the building for such use,
all efforts were unsuccessful. All potential tenants cited limited access and parking as factors
to not pursue occupancy of the building. The current building is not suitable for conversion
from the existing commercial use to a residential building without demolishing and build ing
new, or major renovation to provide adequate living areas and residential parking. The
subject property is too small for an apartment or condominium project, would share a
driveway with the convalescent hospital, and would have to comply with all current Code
requirements.
D. Would remaining at this site beyond the abatement period result in any public harm?
Finding: No. There is no evidence that extending the nonconforming use will result in any
negative impact or harm to the public. There is no evidence that the continued commercial
office use will result in any change whatsoever, and the evidence presented is that the use is
appropriate and acceptable to the surrounding neighborhoods at the current time.
Facts in support of finding:
1.The subject property is in an area that is occupied by other nonresidential uses;
including office, medical office (across the street) and a convalescent hospital. Furthermore,
the property owner has reached out to stakeholders in the area (most notably the fou r
assisted living facilities within one mile of the subject property); the need for services was
expressed: behavioral health services for seniors, physical therapy for seniors and a local
pharmacy that will make deliveries. The subject property has a phys ical therapy tenant,
psychologists and a pharmacist who are looking for leases greater than 10 years. These uses
are the least impactful to parking which has always been an issue in this area.
2.The existing office building has not posed a negative im pact on the neighboring
uses, including the adjacent apartment residents to the west.
E. Would relocation of the facility to another site be overly costly and infeasible?
Finding: Yes. The property owner does not have any other properties to which the tenants
could relocate.
Facts in support of finding:
1.The relocation of the proposed use is difficult since the property owner only owns
buildings within the immediate vicinity that are also zoned residential.
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07-22-2014
2.The property owner’s investment into the redevelopment of their other properties
into conforming uses (1455G Superior and 1455F Superior) was already costly. Abatement of
the existing uses would result in additional revenue loss and could impact the future
redevelopment. This would be an unreasonable expenditure to expect the owner to shoulder.
WHEREAS, this project has been determined to be categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to Title 14 of the California Code of Regulations
(Section 15315, Article 19 of Chapter 3, Guidelines for Implementation of the California
Environmental Quality Act) under Class 1 (Existing Facilities), and furthermore this
abatement period extension has been determined not to have a significant effect on the
environment and not subject to 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; and
NOW, THEREFORE, BE IT RESOLVED:
1.The Hearing Officer of the City of Newport Beach hereby conditionally grants and
approves the requested Abatement Period Extension (PA201 7-143) for the subject property
located at 1441 Superior Avenue, Newport Beach, CA, subject to the findings and
considerations set forth above.
2.The Abatement Period Extension for the property located at 1441 Superior Avenue,
and legally described as Portion of Lot 819, First Addition to Newport Mesa Tract, is hereby
extended for an additional 24 years, to expire on December 15, 2045, at which time all
nonresidential uses of the property shall cease or the building 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.
3.This action shall become final and effective 14 days following the date this
Resolution was adopted 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.
4.This resolution is intended to apply at the conclusion of the extension previously
granted by Hearing Officer Resolution No. HO2011-006 (PA2011-032), and is additive to that
determination, and does not in any way nullify or void that decision .
PASSED, APPROVED, AND ADOPTED THIS 27TH DAY OF SEPTEMBER 27, 2017.
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Hearing Officer Resolution No. HO2017-001
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07-22-2014
BY:
William B. Conners, Municipal Law Consultant
Hearing Officer for the City of Newport Beach
15
Attachment No. HO 2
Hearing Officer Resolution No. HO2011-
006 (PA2011-032)
16
RESOLUTION NO. HO 2011-006
A RESOLUTION OF A HEARING OFFICER OF THE CITY
OF NEWPORT BEACH APPROVING THE ABATEMENT
EXTENSION PERIOD FOR THE PROPERTY LOCATED AT
1441 SUPERIOR AVENUE (PA 2011-032)
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 on behalf of The Rawlins Family Trust, the
owner of property located at 1441 Superior Avenue, and legally described as Portion of
Lot 819, First Addition to Newport Mesa Tract, 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 commercial use for ten years from the date of the Hearing
Officer's approval (December 15, 2021). The property is located in the RM (2420)
Zoning District, where such nonresidential uses are not permitted; and
WHEREAS, a public hearing was held on December 15, 2011, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time,
place and purpose of the meeting was given in accordance with the 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 Hon. John C. Woolley, retired
Judge (California Superior Court, Orange County), 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 one year abatement period specified by the Municipal
Code is not of sufficient duration to amortize the property owner's investment. The
information submitted by the applicant indicates that an extension of 10 years for the
abatement of the current uses is necessary to avoid an unconstitutional taking of the
applicant's property. Subsequently, the ten year period would allow the owner to
transition the current tenants out of the building to accommodate the future project. An
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City of Newport Beach
Hearing Officer Resolution
Abatement Extension -Rawlins Trust
(1441 Superior Avenue)
Page 2 of 3
extension period for the term of the lease is necessary to avoid economic hardship that
will result if the owner is required to abate the use prior to expiration of the lease.
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: The property became nonconforming with the General
Plan in 2006, 5 years ago, when the City Council adopted Resolution No. 2006-76
approving the "General Plan Update". The existing structure and use conformed to the
Land Use Element of the General Plan for the prior 47 years; or was nonconforming and
not subject to abatement.
3. The existing structure is not suitable for conversion to an alternate use.
Facts in Support of Finding: The building could be modified to accommodate other
commercial or nonresidential uses. However, the current building is not suitable for
conversion from the existing commercial use to a residential building without
demolishing and building new, or major renovation to provide adequate living areas and
residential parking.
4 . No harm to the public will result if the nonresidential use remains beyond
the one year abatement period.
Facts in Support of Finding: The property is located in an area that is occupied by other
nonresidential uses; including office, medical office (across the street) and a skilled
nursing facility . It is anticipated that the continued commercial use of the subject
property is compatible with the surrounding uses and will not have any negative impact
or pose harm on the neighboring residential and nonresidential uses in the vicinity .
5. The cost and feasibility of relocating the use to another site cannot be
accommodated within the one -year abatement period .
Facts in Support of Finding: The applicant indicates that the relocation of the present
nonresidential uses that occupy the building would be costly since there are limited
numbers of comparable vacant storefront units or buildings within the vicinity.
Consequently, relocation of the nonresidential tenants would result in a loss of long term
rental income, especially since a new comprehensive residential or expansion of the
skilled nursing facility or assisted living facility project is not proposed in the immediate
future.
F:\USE RS\P LNI Sh arl'dIPA's\PA s -20 1 I \PA2 0 ) I-032\Fl NAL DOC$I PA 20 11-032 -Rl'SO o f Appro val RNAL 1<141 Sup e ri o r-12-1 5-20 11.(\oc ;.; 18
City of Newport Beach
Hearing Officer Resolution
Abatement Extension -Rawlins Trust
(1441 Superior Avenue)
Page 3 of 3
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 en vironm ent 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 (PA2011-032), subject to the findings and
considerations set forth above.
Section 2. The Abatement Period Extension for the property located at 1441 Superior
Avenue, and legally described as Portion of Lot 819, First Addition to Newport Mesa Tract,
is hereby extended and will expire on December 15, 2021, at which time all nonresidential
use of the property shall cease or the building 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.
APPROVED AND ADOPTED THIS _--'1-"5_TH.,----,' r-:7"'7"'-!:.EM=B!:.E'-'.R_ 2011 .
By:
ATTEST:
F:\Us er sI PL N\S hared IPt\'s\PA s -20 I I \PA20 11 ·032\FlNAL DO CS\PA 20 11-0J2 -Res o of App ro va l FI NAL 1441 Superi or-12-15-2011.d ocx 19
Attachment No. HO 3
Supplemental Information Submitted by
Applicant and Site Photos
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Requested Abatement Period Extension
Site Address: 1441 Superior Avenue
a. What is the length of the requested extension of the abatement period?
The applicant requests an extension of the abatement period for 24 years, until 2045.
b. What is the length of the abatement period in relation to the owner’s investment in
the use?
I own the subject office building at 1441 Superior Avenue as well as the adjacent
properties at 1445 Superior, and 1455F Superior. I have attached an exhibit showing
the affected parcels. There is a convalescent hospital operating at 1445 Superior, which
is a conforming use under the new zoning. They have an existing lease that runs until
July 31, 2045. The 1455F parcel is a parking lot. The 1441 parcel is small, narrow and
irregular shape. It has the benefit of sharing some parking with the neighboring
property at 1445, but parking is the guiding determinant in planning the reuse of this
property. 1441 has 20 assigned spaces (although there are only 13 within the parcel
itself) and a covenant for additional shared spaces written into the 30 -year lease for the
adjacent facility at 1445.
My husband and I have met several times about the redevelopment of these properties
over the last few years with the City Planning Staff. Th is time period will allow our
leases to run their course in conjunction with the lease on 1445, as well as proceed
forward with our plans of redeveloping all three properties to conforming use.
c. How long was the use operating prior to the date of nonconformity?
This property contains a two-story office building, built by my father in 1959. The
building has been in continuous operation since that time. Many of our tenants have
been in the building for years, one since 1989.
d. What is the suitability of the structure for alternative use?
The existing building fronts on Superior Avenue, and 1441 and shares a driveway with
1445. Providing services that lend themselves to the drop off of elderly clients,
customers, and/or patients is ideal, but after years of extensive due diligence to
repurpose the building for such use, all efforts were unsuccessful. All potential tenants
cited limited access and parking as deal breakers. The parcel is too small for the
construction of an apartment or condominium unit, and would share a driveway with
the convalescent hospital.
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e. Will there be any harm ta the public if the use remains beyond the abatement period?
In discussions with stakeholders in the surrounding area (most notably four (4) assisted
living facilities within a mile of 1441 Superior), the need for key services was expressed:
behavioral health services for seniors, physical therapy for seniors and a local pharmacy
that will make deliveries. We have a long-standing physical therapy tenant, and have
recruited a psychologist and a pharmacist. All three (3) tenants have indicated they
would like 10+ year leases, with a desire to extend beyond that. All three require
limited parking and do not impact traffic. For the adjoining properties, this office
building is a good, quiet neighbor which is closed on nights and weekends
f. What is the cost and feasibility of relocating the use to another site?
I do not have any other properties to which our tenants could relocate as all of my
adjacent properties are also in the new residential zone. The physical therapy center
has been in business since 1989 and is so well-known, that a move to a new location
would damage their business.
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?
This property has been in my family since the 1940's, and my husband and I would very
much like our children to continue my father's legacy. All three properties (1441, 1455F
and 1445 Superior) can be conjoined and redeveloped as multi-family residential in
2045. We have been thoughtful in our approach to the use of these properties and
respectful of the City and the General Plan.
PA2017-143
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