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HomeMy WebLinkAbout2019Sep10_CC_Item20_Comments_JimMosherSeptember 10, 2019, Council Item 20 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 20. Appeal of Reed Residential Variance for 1113 Kings Road (PA2019-060) Since variances condone what would otherwise be violations of the generally applicable laws, they are supposed to be much harder to approve than to deny. That asymmetry is reflected in the Zoning Code, pursuant to which to grant this variance the Planning Commission had to make each of the six findings outlined in the May 23 staff report (starting on page 20-45 of the present agenda packet). Failing any one was supposed to require denial. The same standard applies to the City Council, so the decision should be obvious: the proposal clearly fails at least two of the required findings. The proposed height variances fail required Finding 5 (page 20-49), because the granting of them would be detrimental to neighbors. Staff cites construction on slopes as a reason for relaxing standards. On the contrary, these slopes are being built on because of the views from them, which means every owner has a right to expect their neighbors to stay within the code- allowed height envelope. While there are large areas of the city in which minor exceedances of the height limits would have little consequence, here doing less than strictly enforcing the limits means the neighbors (and future neighbors if the current ones don’t object) will lose the opportunity to enjoy views they thought they could rely on the code to protect – and this will initiate a race between neighbors to see if they can outdo each other with even larger variances. In addition, as some letter writers have suggested, the added bulk the variances allow to be built over the slopes might destabilize them. In short, the proposed variances are “detrimental” to neighbors and contrary to “the harmonious and orderly growth of the City.” They may even increase a “safety hazard.” For all those reasons, the variances fail required Finding 5 and must be denied. Even if the variances had not failed required Finding 5, they would still have to be denied because they fail required Finding 6 (page 20-51): granting them would be inconsistent with the intent and purpose of the City’s General Plan. In considering this finding, it must be understood we live in an imperfect world, and not every intent and purpose of the General Plan is enforced by the Zoning Code. The denial of variances is part of the safety valve to ensure those other policies are not totally forgotten. For example, General Plan Policy LU 5.1.5 (“Character and Quality of Single-Family Residential Dwellings”) promises “Compatibility with neighborhood development in density, scale, and street facing elevations.” But in the Zoning Code, the analysis of compatibility comes only in the “site development review” (NBMC Sec. 20.52.080.C.2.c.iii) of major projects, from which single family residential construction is exempt. Yet in considering a variance for a single family home, the Planning Commission would be expected to consult Sept. 10, 2019, City Council Item 20 Comments - Jim Mosher Page 2 of 3 General Plan Policy LU 5.1.5 and to deny the variance if the result would be incompatible with the neighborhood “in density, scale, and street facing elevations” (as many argue the present proposal is) – for that would make it inconsistent with the intent of the General Plan. In the present case, staff acknowledges General Plan Policy NR 23.1 ("Maintenance of Natural Topography") to "Preserve cliffs, canyons, bluffs, significant rock outcroppings, and site buildings to minimize alteration of the site's natural topography and preserve the features as a visual resource," but fails to remind the Council of one of the most fundamental "Who We Are" policies of the Land Use Element - Policy LU 1.3 ("Natural Resources"): "Protect the natural setting that contributes to the character and identity of Newport Beach and the sense of place it provides for its residents and visitors. Preserve open space resources, beaches, harbor, parks, bluffs, preserves, and estuaries as visual, recreational and habitat resources." And it observes that this particular segment of bluffs is not protected by the Zoning Code and the owner could (in staff’s opinion) build down the full extent of the bluff “by right.” But that is a failure of the Zoning Code, not of the General Plan and it fails to acknowledge that all the bluffs from the Semeniuk Slough to Dover Drive are recognized as coastal bluffs and the portion of Pacific Coast Highway below this segment is recognized as a coastal view road. Marine erosion has nothing to do with this. In short, whether it was implemented in the Zoning Code, or not, it is clearly the intent of the General Plan to preserve the natural setting. Granting variances to make it easier to build over and obliterate designated scenic natural topographic features “that contribute to the character and identity of Newport Beach” is totally contrary to this intent and purpose of the General Plan. For that reason, the granting of these variances fails required Finding 6. They must be denied. Support of other findings questionable Although a variance must be denied if any of the required findings cannot be made, and staff’s arguments in support of Findings 5 and 6 are clearly erroneous, its arguments in favor of some of the other findings seem doubtful. For example, in support of Finding 3 (“Granting of the variance is necessary for the preservation and enjoyment of substantial property rights of the applicant”), staff asserts that the existence of the gully feature “effectively reduce[s] the buildable width from approximately 90 percent of the lot width to 72 percent of the lot width at those locations.” First, when one buys a property it is not with an expectation, let alone a “right,” that every piece of it will be buildable (parts, for example, might be underwater, or, as here, steeply sloped), and it is not the government’s obligation to make them so. Second, when Cliff Haven was subdivided in 1947 (see Tract No. 1219 map) this lot (#31), like some others with topographic challenges, was given an extra 15 to 20 feet of width (a street frontage of 85 feet compared to the more typical 65 to 70 feet), quite possibly to compensate for the part that could not easily be developed. Lot 30, the one next to it on the east, most impacted by the gully, was made unusually narrow, at 50 feet, perhaps with a thought that it could not be sold and would be left as open space. Sept. 10, 2019, City Council Item 20 Comments - Jim Mosher Page 3 of 3 Third, staff’s description of the “problem” greatly exaggerates its magnitude. The gully feature impacts only a small part of Lot 31. According to the topographic maps, it does not affect the buildable width directly along Kings Road nor does it affect the buildable width along the lower portion of the lot – all of which staff says the owner has an absolute right to develop. At most it affects what looks like about 10% of the lot, and even in that part it appears no steeper than the lower parts of the lot, which are considered “normal” for the area. Staff’s assertion that the gully portion of the property could not be developed in compliance with the code’s height regulations is inconsistent with its claim that the remainder of the property (with similar slopes, but just in a different direction) could be. Bigger issues Sadly, as the staff report notes, denial of the requested variances will not prevent the applicant from returning to the City with plans for even larger home that many will feel is even more incompatible with the neighborhood, but which can (according to staff) be approved without any discretionary review. As indicated above, the purported “right” to build structures incompatible with the neighborhood in “in density, scale, and street facing elevations” is a failure of the Zoning Code to adequately implement the promises made in the General Plan. In the Code as currently constituted, for a “normal” (no variances) single-family home application, the analysis of consistency with the General Plan (presumably including compatibility with the neighborhood) is supposed to come during the Director’s approval of what is called a “Zoning Clearance” (see NBMC Sec. 20.16.030.A.1). That decision can, in turn, be referred or appealed (for a 14-day window) to the Planning Commission. However, only the Director and the applicant are aware a decision has been made. By the time the neighbors become of aware of the project (when construction starts) the time to appeal the determination of neighborhood compatibility has long expired, and the applicant can by then argue they have made a substantial investment based on approval by the City. There is something fundamentally wrong with this. Bringing this application to the Council also highlights the City’s byzantine system of measuring heights and expressing the limits attached to them. The almost completely arbitrary “grade planes” drawn over this property (see page 20-40) in some cases exaggerate the heights relative to the actual ground level and in other cases significantly underestimates them. The staff report also cites the height of some of the eaves of the sloping roofs as requiring variances, but a close reading of the code indicates we have no limits on the eaves of sloping roofs. The only thing we regulate is “the highest peak of the roof” (see NBMC Sec. 20.30.060.B.2). The Council should be aware that there is no universally-accepted system of measuring building heights. Many cities measure structure heights from the lowest point on the exterior of the building to the highest point on the roof, with some small extra allowance on steep slopes. That is a lot simpler and worth considering. Alternatively, Newport Beach, for many years, went by an average of the heights at the corners of the building to the highest point.