HomeMy WebLinkAboutPC2022-002 - SUPERCEDING VARIANCE NO. 751 AND MODIFICATION PERMIT NO. 4941 AND APPROVING VARIANCE NO. VA2021-002 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-025 TO ALLOW THE CONSTRUCTION OF A NEW SINGLE-UNIT RESIDENCE AND TO WAIVE CITY COUNCIL POLICY L-6 ARESOLUTION NO. PC2022-002 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA SUPERCEDING VARIANCE NO. 751 AND MODIFICATION PERMIT NO. 4941 AND APPROVING VARIANCE NO. VA2021-002 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-025 TO ALLOW THE CONSTRUCTION OF A NEW SINGLE-UNIT RESIDENCE AND TO
WAIVE CITY COUNCIL POLICY L-6 AND APPROVE ENCROACHMENT PERMIT NO. N2022-0040 TO RETAIN EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 3625 OCEAN BOULEVARD (PA2021-130)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Ryan McDaniel of Brandon Architects, Inc. (“Applicant”), on behalf of Ronald P. Beard and Marsha Yun Beard, Trustees of The RPB and MYB Community Property Trust established August 12, 2020 (“Owners”), with respect to property located at 3625 Ocean Boulevard, and legally described in Exhibit “A” which is
attached hereto and incorporated herein by reference (“Property”) requesting approval of
a variance and a coastal development permit. 2. The Applicant requests a coastal development permit to demolish an existing single-unit residence and construct a new 5,413 square-foot, single-unit residence with an attached
522 square-foot two-car garage. The Applicant requests a variance for the following
deviations: a. A building height of three (3) feet above mean curb height of Ocean Boulevard, whereas Titles 20 and 21 of the Newport Beach Municipal Code (“NBMC”) requires
the building height to be no greater than the elevation of the curb;
b. A flat roof height of 38 feet, whereas Titles 20 and 21 require a maximum flat roof height of 24 feet.
c. An encroachment of ten (10) feet into the required 10-foot front yard setback area;
d. The construction of a two-car garage, whereas Titles 20 and 21 require a three-car garage for single-unit residences which include livable floor area of 4,000 square feet or greater;
3. In addition to the entitlements set forth in Section 2, the Applicant requests approval of Encroachment Permit No. N2022-0040 (PA2021-130) to retain existing non-compliant improvements within the Ocean Boulevard public right-of-way including site walls, stairs on-grade, bio-retention planter, sump-pumps, railings and a decorative concrete
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driveway that encroach up to 47-feet into the 110-foot wide public right-of-way at the Property (“Project”).
4. The requested encroachments are not specifically provided for within City Council Policy L-6 (Encroachments in Public Rights-of-Way) (“City Council Policy L-6”). Thus, the Project is prohibited under Section A (Private encroachments that are prohibited without a waiver and approval) of said policy. Due to this prohibition, the requested encroachment may only
be approved upon the waiver of City Council Policy L-6 and approval of the encroachment
permit by the Planning Commission. 5. The Property is designated Single-Unit Residential Detached (RS-D) by the General Plan Land Use Element and is located within the Single-Unit Residential (R-1) Zoning District.
6. The Property is located within the coastal zone. The Coastal Land Use Plan designation is Single Unit Residential Detached (RSD-A) (0.0 – 5.9 DU/AC) and it is located within the Single-Unit Residential (R-1) Coastal Zone District. The Property is also located in the Bluff (B) Overlay District, which restricts new development from extending further
onto the bluff face beyond the existing development.
7. A public hearing was held on February 17, 2022, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the hearing was given in accordance with California Government Code Section 54950 et
seq. (“Ralph M. Brown Act”) and Chapters 20.62 and 21.62 (Public Hearings) of the
(“NBMC”). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This Project is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Sections 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment.
2. Class 3 exempts the construction of limited numbers of new, small structures, including one single-family residence. The Project is a new single-family residence located within the Single-Unit Residential (R-1) Zoning District and Single-Unit Residential (R-1) Coastal Zone District.
3. The exceptions to this categorical exemption under Section 15300.2 of the CEQA Guidelines are not applicable. The Project’s location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not
damage scenic resources within a state scenic highway, is not a hazardous waste site,
and is not identified as a historical resource.
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SECTION 3. REQUIRED FINDINGS.
Variance
In accordance with NBMC Subsection 20.52.090(F) (Variances – Findings and Decision), the following findings and facts in support of such findings are set forth:
Finding:
A. There are special or unique circumstances or conditions applicable to the subject
property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical
zoning classification.
Facts in Support of Finding: 1. The Property is a coastal bluff lot located on the westerly side of Ocean Boulevard.
Although the lot is large in total area, new development is limited to not extend farther
onto the bluff face beyond existing development in order to comply with Titles 20 and 21. The lot is further constrained by the topography within the buildable area, which slopes steeply from the front of the lot to the bluff edge, and steeply from side property line to side property line. These constraints make it impractical to comply with the front
setback requirements required by Titles 20 and 21 and still design a driveway, garage,
and entry into the dwelling while complying with the existing line of development. 2. The Property has a unique topography as it is located at the transition of the bluff on Ocean Boulevard and includes a steep decline towards the adjacent property at 3619
Ocean Boulevard. The topography declines approximately 40 feet from the front of the
property line to the northwesterly rear limit of development. Additionally, the topography declines approximately 20 feet in the transition from the southeasterly to northeasterly side yards.
3. The garage, along with the entry area, is proposed to be constructed three (3) feet above
the mean curb height. The remaining levels below do not exceed the mean curb height. There is a significant decrease in grade elevation between Ocean Boulevard and the location of the existing garage. The construction of a useable driveway which best complies with City driveway slope standards along with a garage to meet minimum Code
standards results in a building height which exceeds the mean curb height by three (3)
feet. 4. The existing residence has a building height that is three (3) feet above the mean curb height of Ocean Boulevard, where Titles 20 and 21 require a maximum height to be no
greater than the curb. The residence was authorized through Variance No. VA751,
which was unanimously approved by the Planning Commission on June 6, 1963. The proposed residence will not exceed the height of the existing residence nor diminish any existing views of the ocean.
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5. The unique topography of the lot, which slopes from the front to the rear bluff as well as from side-to-side property lines, creates a difficulty in constructing a height-compliant
three-car garage without reducing the entry area to an unusable size. The proposed
entry area, which is less than 400 square feet and approximately 17 feet wide, includes the entry door, foyer, and access to the lower levels. The construction of the Code-required three-car garage would reduce the entry area to approximately 160 square feet and approximately 7 feet wide, which is not practically usable for the residents.
Finding:
B. Strict compliance with Zoning Code requirements would deprive the subject property of privileges enjoyed by other properties in the vicinity and under an identical zoning
classification.
Facts in Support of Finding: 1. The Property is one (1) of ten (10) single-unit residences (3601 to 3729 Ocean
Boulevard) located on the bluff face side of Ocean Boulevard, between Orchid and
Poppy Avenue. All ten (10) residences have been previously authorized by discretionary approvals to encroach into the required ten-foot front setback area. Strict compliance with the required ten-foot front setback would deprive the Owners of livable area which the surrounding properties enjoy, especially due to the topography constraints of the lot.
Additionally, the reduction in footprint would create constrained floor levels and difficult
access between floor levels. 2. Titles 20 and 21 require all structures on the bluff side of Ocean Boulevard in Corona del Mar to have a maximum building height that is not greater than the elevation of the
adjacent curb. Strict compliance with this height restriction would deprive the Property
of a safe driveway slope. Since there is a significant decline in elevation from Ocean Boulevard to the proposed garage, the finished floor of the garage needs to be elevated in order to decrease the driveway slope as much as possible. This necessitates the overall height of the garage to be three (3) feet above the adjacent curb on Ocean
Boulevard, which is the height of the existing structure on the Property. Furthermore,
surrounding properties such as 3709, 3713, 3719, and 3725 Ocean Boulevard were granted similar height deviations above the curb height, while 3729 Ocean Boulevard was granted a maximum building height which is nine (9) feet above the curb height.
3. Strict compliance with the maximum height limitations required by Titles 20 and 21 (24
feet for a flat roof) would deprive the Property of a usable residence. Since the Property is located on a bluff where there is significant elevation change in multiple directions, it is not feasible to build a livable residence while complying with the height limitations, as it would not be able to comply with Code-required ceiling heights nor provide adequate
access between levels.
4. Although the proposed residence exceeds the Code-required height limit for a flat roof, the Applicant has designed the Project to have a significant reduction in volume in comparison to the existing structure. Where the existing structure has a roof eave
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footprint of 2,543 square feet at the highest level (above the height limit), the proposed residence has a reduced eave footprint at the highest level of 1,076 square feet, which
is a reduction of 1,467 square feet of volume.
Finding: C. Granting of the variance is necessary for the preservation and enjoyment of substantial
property rights of the applicant.
Facts in Support of Finding: 1. The Property consists of a steep coastal bluff. The Project is limited within the buildable
area, between the front and side setbacks and the existing rear line of development.
The denial of the requested deviations would reduce the buildable area to be less than the existing development on-site, as well as other residences located on the bluff. 2. The design and location of the Project achieves reasonable development of the Property
within the topographical restraints and limits of development on the bluff face. Granting
of the variance preserves the Applicant’s right to construct a residence which is comparable with the neighborhood while preserving the bluff face. Finding:
D. Granting of the variance will not constitute a grant of special privilege inconsistent with
the limitations on other properties in the vicinity and in the same zoning district. Fact in Support of Finding:
1. Titles 20 and 21 permit the approval of variances to resolve practical physical hardships resulting from the unique topography and location restraints that exist on this lot and surrounding area. The ten (10) residences, including the subject Property, which are located on the bluff face of Ocean Boulevard between Orchid Avenue and Poppy
Avenue, all have similar topographical constraints and have previously received relief
from development standards through discretionary approvals. 2. The requested height deviations are necessary to permit a residence that is comparable to neighboring lots along the Ocean Boulevard bluff and therefore would not constitute
the granting of special privileges.
3. The requested front setback deviation is consistent with the surrounding residences on the Ocean Boulevard bluff, which all have been granted deviations to encroach into the front setback. The existing structure on the Property also encroaches into the front
setback.
Finding:
E. Granting of the variance will not be detrimental to the harmonious and orderly growth of
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the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working
in the neighborhood.
Facts in Support of Finding: 1. The proposed 10-foot encroachment into the required 10-foot front setback does not
create a visual detriment when viewed from Ocean Boulevard. There is an
approximately 60-foot public right-of-way area between the Property line and Ocean Boulevard, which reduces the impact of the encroachment. Developments on neighboring properties have been similarly approved to encroach to the front property line and have not proven to be detrimental to the neighborhood.
2. The Applicant is proposing to deviate from the maximum height restriction. The existing structure is constructed three (3) feet above the adjacent curb height and maintains the deviated height along the entire width of the buildable frontage (approximately 60 lineal feet), which is visible from Ocean Boulevard. The Applicant is proposing to reduce the
area of the residence which will exceed the curb height to be 40 lineal feet, while
lowering the remaining 20 lineal feet of frontage to below the curb height. This reduces the massing which is visible from Ocean Boulevard and opens additional opportunities for public views of the ocean.
3. The Project utilizes recessed balconies on multiple floor levels as seen from the bluff
side and offers a reduction of volume as the viewed from the adjacent properties and the bluff side. The granting of the variance will result in a project that is not detrimental to the surrounding neighborhood, but instead designed to have less bulk than the existing structure.
4. The existing residence includes an attached, 448-square-foot two-car garage, where Titles 20 and 21 require a three-car garage. The Project requests a deviation to construct a similar 522-square-foot two-car garage instead of a three-car garage. The existing two-car garage has not caused a detriment to the neighborhood. Adding a three-car
garage would remove additional views to the ocean, and require an additional curb cut
to Ocean Boulevard which removes street parking. Finding:
F. Granting of the variance will not be in conflict with the intent and purpose of this section,
this Zoning Code, the General Plan, or any applicable specific plan. Facts in Support of Finding:
1. Granting the variance request would not increase the density beyond what is planned
for the area, and will not result in additional traffic, parking, or demand for other services. 2. The proposed variance request provides similar setbacks for the Property consistent with the existing development pattern along Ocean Boulevard.
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3. The proposed variance request provides a maximum floor area that is consistent with neighboring lots of similar size, located within the same zoning designation. There is no
deviation requested for floor area.
4. The Property is not located within a specific plan area.
Coastal Development Permit In accordance with NBMC Subsection 21.52.015(F) (Coastal Development Permits - Findings and Decision), the following findings and facts in support of such findings as set forth:
Finding:
G. Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1. The proposed deviations to the front setback, building height, and parking allow for a development that is similar and compatible in design, bulk, and scale of the existing single-family neighborhood pattern of development and expected future development
on the bluff side of Ocean Boulevard.
2. The proposed deviations comply with NBMC Subsection 21.52.090(2) (Relief from Implementation Plan Development Standards, Variances), which allows for waiver or modification of certain standards of the Implementation Plan because of special
circumstance including location. Topographical challenges exist for all of the bluff side
properties on Ocean Boulevard between Orchid Avenue and Poppy Avenue. However, the Property is especially constrained since it is located on the transition of the bluff which has a significant decline in elevation towards the adjacent property at 3619 Ocean Boulevard.
3. The Project is located on the bluff side of Ocean Boulevard, directly adjacent to the ocean. A coastal hazards report, prepared by GeoSoils, Inc. on May 30, 2021, concludes that the Project is safe from hazards, which includes shoreline movement, waves and wave runup, and flooding with future sea level rise, for a minimum of 75 years. The
historical water elevation at the Newport Bay is 7.7 feet North American Vertical Datum
of 1988 (NAVD 88). Based on the “medium-high risk aversion, low emissions” scenario, which is estimated to have a sea level rise (SLR) of six (6) feet by the year 2100, the future extreme bay water level may reach as high as 13.7 feet NAVD 88 (7.7 feet NAVD 88 + 6 feet SLR) over the next 75 years (ie. life of future development). While the
Property sits on a bluff that is approximately 55 feet NAVD 88 in elevation, the projected
sea level rise and wave run up will not reach the elevation where the proposed structure is located. Additionally, there exists bedrock at the back of the beach that acts like natural shore protection and protects the Property from waves and erosion factoring in sea level rise. The study states that there are no recommendations necessary to mitigate
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potential coastal hazards, and that no new shore protection is required to protect the development over the next 75 years.
4. With the exception of the variance requests, the proposed development complies with applicable residential development standards including, but not limited to, side and rear setbacks, floor area, and open space:
a. A 4-foot setback is required from both side property lines and a 10-foot rear
setback is required from the rear property line. The proposed residence provides a 4-foot side setback on each side, and the limit of development is approximately 80 feet from the rear property line.
b. The maximum floor area for the residence, including the garage, is 8,881 square
feet. The proposed residence is 5,413 square feet with an attached 522-square-foot garage, which results in a total floor area of 5,935 square feet. c. A minimum of 888 square feet of open volume area is required and the proposed
residence provides approximately 4,230 square feet of open volume area.
5. Pursuant to NBMC Section 21.35.050 (Water Quality and Hydrology Plan), due to the proximity of the development to the shoreline and the development containing more than 2,500 square feet of impervious surface area, a Water Quality Management Plan
(“WQMP”) is required. A WQMP prepared by Thomas M. Ruiz, Civil Engineer, dated June
4, 2021, has been submitted and will be reviewed by the City’s Engineer Geologist. The WQMP includes a polluted runoff and hydrologic site characterization, a sizing standard for Best Management Practices (“BMP”), use of a Low Impact Development (“LID”) approach to retain the design storm runoff volume on site, and documentation of the
expected effectiveness of the proposed BMPs.
6. The Property is located in an area known for the potential of seismic activity and liquefaction and is required to comply with the California Building Code (“CBC”) and City’s Building Division standards and policies. Geotechnical investigations specifically
addressing liquefaction are required to be reviewed and approved prior to the issuance
of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for compliance with approved investigations and CBC prior to building permit issuance.
7. Proposed landscaping complies with NBMC Section 21.30.075 (Landscaping). A
condition of approval is included that requires drought-tolerant landscaping, and prohibits invasive, species. Prior to issuance of building permits, the final landscape
plans will be reviewed to verify invasive species are not planted.
8. The Project site is located approximately 200 feet southeast of Inspiration Point, which is designated by the Coastal Land Use Plan (“CLUP”) as a public view point. Additionally, the CLUP designates Ocean Boulevard as a coastal view road. The Project site is visible from various locations along Ocean Boulevard when viewing the ocean.
Additionally, the site and bluff face is visible from Inspiration Point while facing
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southwest. Benches are available for the public to enjoy panoramic views of the ocean, which includes the Ocean Boulevard bluff. The existing residence is constructed three
(3) feet above the adjacent curb on Ocean Boulevard and offers limited articulation and
modulation in the building design. The proposed residence matches the existing height of three (3) feet above the adjacent curb, but includes portions of the roof sunk beneath the curb, recessed balcony areas, and an overall reduction in building volume in comparison to the existing structure. The proposed structure provides an improvement
of the public views from both Inspiration Point and Ocean Boulevard. An investigation
of the Project site and surrounding area did not identify any other public view opportunities. Therefore, the Project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to public views.
Finding:
H. Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone.
Fact in Support of Finding: 1. The existing residential lot does not currently provide nor inhibit public coastal access. The Property is located approximately 200 feet from Inspiration Point, which is identified
as a public beach access point by the CLUP to Corona del Mar State Beach.
Additionally, Ocean Boulevard is identified by the CLUP as blufftop access. The Project is the demolition of an existing single-unit residence and the construction of a new single-unit residence. Access to the beach remains available through Inspiration Point and the beach parking lot. Therefore, the development will not impact public access to
local coastal resources.
In accordance with NBMC Section 21.52.090 (Relief from Implementation Plan Development Standard), the Planning Commission may approve a waiver to a development standard of the
Implementation Plan only after making all of the following findings:
Finding: I. The Planning Commission has considered the following:
i. Whether or not the development is consistent with the certified Local Coastal
Program to the maximum extent feasible; and
ii. Whether or not there are feasible alternatives that would provide greater consistency
with the certified Local Coastal Program and/or that are more protective of coastal
resources.
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Facts in Support of Finding:
1. Constructing the proposed residence with the Code-required 10-foot front yard
setback diminishes livable area which the existing and surrounding residences currently enjoy. Without encroaching into the front setback, the proposed residence would have constrained floor levels with difficulty accessing lower levels. Encroachment into the front setback has been a relief from the topographical
restraint for all of the bluff side residences on Ocean Boulevard between Orchid and
Poppy Avenues, as all of the residences have been authorized to encroach into the front setback area. 2. The alternative to construct a three-car garage with an adequate entry area would
diminish the enhanced public views the Applicant is proposing. The proposed
residence is designed to have approximately 40 lineal feet of frontage width extend above the adjacent curb height of Ocean Boulevard, while the remaining 20 lineal feet of frontage width drops below the curb height. The existing residence exceeds the curb height for the entire 60 lineal feet of frontage width. A three-car garage
would result in additional bulk and mass and diminish public views of the ocean.
3. Exceeding the flat roof height limit required by Titles 20 and 21 is necessary for adequate ceiling heights and living space where there are topographical constraints due to significant bluff transitions. Where feasible, the Applicant has designed the
Project to have a split-level design, which reduces portions of the building height and
protects public views from Ocean Boulevard which were not previously provided by the existing residence. 4. A residence which complies with the front setback and height restrictions would
create design constraints for adequate floor area on each level as well as access
between levels. The proposed residence is not excessive in area or height in comparison to the other residences in the surrounding area, and presents a reduction in overall volume and bulk compared to the existing structure on the site.
Finding:
J. The granting of the variance is necessary due to special circumstances applicable to the
property, including location, shape, size, surroundings, topography, and/or other physical features, the strict application of the development standards otherwise
applicable to the property denies the property owner privileges enjoyed by other property
owners in the vicinity and in the same coastal zoning district.
Facts in Support of Finding:
Facts in Support of Finding A above are hereby incorporated by reference.
Finding: K. The variance complies with the findings required to approval a coastal development
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permit in NBMC Section 21.52.015(F).
Fact in Support of Finding:
Facts in Support of Findings G and H above are hereby incorporated by reference. Finding:
L. The variance will not result in development that blocks or significantly impedes public
access to and along the sea or shoreline and to coastal parks, trails, or coastal bluffs. Fact in Support of Finding:
1. The Property does not currently provide access to the sea or shoreline, nor does it provide access to any coastal parks, trails, or coastal bluffs. 2. Vertical access to the beach and ocean to the south of the project site is available for
the public from Inspiration Point and the Corona del Mar State Beach Ramp both located
to the west of the site. The Project does not result in development that will impede existing public access because all construction is limited to the project site and the public sidewalk fronting the site will remain.
Finding:
M. The variance will not result in development that blocks or significantly impairs public
views to and along the sea or shoreline or to coastal bluffs and other scenic coastal areas.
Facts in Support of Finding: Fact 8 in support of Finding G above is hereby incorporated by reference.
Finding:
N. The variance will not result in development that has an adverse effect, either individually
or cumulatively, on coastal resources, including wetlands, sensitive habitat, vegetation or wildlife species.
Fact in Support of Finding: The existing and proposed residence is located on a bluff top between Ocean Boulevard and the ocean. Per Section 21.28.040.D.5.d (Bluff Overlay District) of the NBMC, new
development shall not extend further onto the bluff face beyond the existing
development. The proposed residential structure complies with this limitation and will not have an adverse effect on the bluff. There are no other coastal resources on the property nor are there any in the immediate area that could be affected by its redevelopment.
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Finding:
O. The granting of the variance will not be contrary to, or in conflict with, the purpose of this
Implementation Plan, nor to the applicable policies of the Local Coastal Program. Fact in Support of Finding:
Facts in Support of Finding G above are hereby incorporated by reference.
Encroachment Permit
In accordance with City Council Policy L-6 (Encroachments in the Public Rights-of-Way), the
following findings and facts in support of such findings are set forth: Finding:
A. The proposed private improvements will not be a detriment to the health, safety and
welfare of the public. Facts in Support of Finding:
1. The Project does not hinder the present or future use of the public right-of-way, including
sidewalks, and there are no existing City utilities located within the encroachment area.
2. The Ocean Boulevard parkway within the public right-of-way is approximately 47 feet wide of the overall 110-foot right-of-way width.
3. The Project does not diminish the rights of the public along the Ocean Boulevard right-
of-way. The existing public sidewalk along Ocean Boulevard is at the top of the slope
and will remain unobstructed.
4. Ocean Boulevard slopes downward toward private property and the Pacific Ocean with an elevation change of approximately 7-feet.
5. Approval would require the Owners to enter into an Encroachment Agreement to allow
the proposed improvements as requested, and any liability associated with the proposed
private improvements would be transferred to the Owner. Additionally, if the need for public improvements should arise in the future, Owner shall agree to remove all encroachments at no cost to the City.
Finding:
B. The individual circumstances applicable to this application and the proposed
encroachment are consistent with the public interest.
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Facts in Support of Finding:
1. Improvements are complementary to the area; adjacent neighbors have similar private
encroachments within the Ocean Boulevard right-of-way. Some of the adjacent encroachments are permitted through an encroachment permit and agreement, whereas others have been constructed without approval.
2. The maximum height of proposed structures in the right-of-way will not exceed three (3)
feet in height above the existing sidewalk grade. Public views along the Ocean Boulevard sidewalk will remain unobstructed. 3. There are no existing City utilities within the encroachment area.
4. The Property is located in the coastal zone and the approval of an Encroachment Permit and Agreement including the waiver of City Council Policy L-6 for the existing improvements does not require a coastal development permit in accordance with Newport Beach Municipal Code (NBMC) Section 21.52.035 (Projects Exempt from
Coastal Development Permit Requirements). NBMC Subsection 21.52.035.C(1) refers
to coastal act exemptions related to existing single-unit residential buildings, including ancillary structures normally associated with a single-unit residence, such as garages, swimming pools, fences, storage sheds, but not including houses or self-contained residential units; and landscaping on the lot, unless they involve a risk of adverse
environmental effects. The existing site walls, stairs on-grade, patios, guardrails, potted
plants, planters, and decorative concrete driveway are minor detached structures associated with the proposed single-family residence. Their location and presence do not pose a conflict to coastal resources, coastal access, or other adverse environmental effects. The encroachments do not alter the existing bluff oceanward of the existing
home. Any future improvements may require a coastal development permit.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby finds this Project is categorically exempt from the California Environmental Quality Act pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA
Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has
no potential to have a significant effect on the environment. 2. Planning Commission approves the waiver of L-6.
3. The Planning Commission of the City of Newport Beach hereby approves VA2021-002
and CD2021-025, subject to the conditions set forth in Exhibit “B,” which is attached hereto and incorporated by reference.
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4. 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 Titles 20 and 21 of the Newport Beach Municipal Code. Final action
taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 (Appeal to the Coastal Commission) of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act.
5. This resolution supersedes Variance No. 751 and Modification Permit No. 4941, which upon vesting of the rights authorized by this Variance and Coastal Development Permit, shall become null and void.
PASSED, APPROVED, AND ADOPTED THIS 17TH DAY OF FEBRUARY, 2022.
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, and Rosene
NOES: Weigand ABSTAIN: None
ABSENT: None
BY:_________________________
Lee Lowrey, Chairman BY:_________________________
Curtis Ellmore, Secretary
Attachment(s): Exhibit A – Legal Description Exhibit B – Conditions of Approval
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Planning Commission Resolution No. PC2022-002 Page 15 of 21
EXHIBIT “A”
LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF BLOCK A OF CORONA DEL MAR, IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 3, PAGES 41 AND 42, MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
THAT PORTION OF SAID BLOCK “A” LYING SOUTHEASTERLY OF THE SOUTHEASTERLY
LINE OF TRACT NO. 1257, AS PER MAP RECORDED IN BOOK 38, PAGE 25 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND EASTERLY OF A LINE DESCRIBED AS FOLLOWS:
BEGINNING AT A IN THE SOUTHWESTERLY LINE OF OCEAN BOULEVARD AS SHOWN ON
SAID MAP, DISTANT THEREON SOUTH 30° 23’ 25” EAST 68 FEET FROM THE MOST
EASTERLY CORNER OF SAID TRACT AND RUNNING THENCE SOUTH 56° 31’ 49” WEST
TO THE SOUTHWESTERLY LINE OF SAID BLOCK A.
EXCEPTING ANY PORTION OF THE DESCRIBED PROPERTY BELOW THE LINE OF NATURAL ORDINARY HIGH WATER MARK WHERE IT WAS LOCATED PRIOR TO ANY ARTIFICIAL OR AVULSION CHANGES IN THE LOCATION OF THE SHORELINE.
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Planning Commission Resolution No. PC2022-002 Page 16 of 21
EXHIBIT “B”
CONDITIONS OF APPROVAL
(Project-specific conditions are in italics)
Planning Division
1. The development shall be in substantial conformance with the approved site plan, floor
plans and building elevations stamped and dated with the date of this approval (except as
modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval.
3. The Applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Use Permit.
4. Variance No. VA2021-002 and Coastal Development Permit No. CD2021-025 shall expire
unless exercised within 24 months from the date of approval as specified in Section
20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted
by the Community Development Director.
5. This Variance and Coastal Development Permit may be modified or revoked by the
Planning Commission should they determine that the proposed uses or conditions under which it is being operated or maintained is detrimental to the public health, welfare or materially injurious to property or improvements in the vicinity or if the Property is operated or maintained so as to constitute a public nuisance.
6. Any change in operational characteristics, expansion in area, or other modification to the approved plans, shall require an amendment to this Variance and Coastal Development Permit or the processing of a new Variance and Coastal Development Permit.
7. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits.
8. Prior to the issuance of a building permit, the Applicant shall submit a landscape and
irrigation plan prepared by a licensed landscape architect. These plans shall incorporate
drought tolerant and noninvasive plantings and water efficient irrigation practices, and
the plans shall be approved by the Planning Division.
9. Prior to final building permit inspection, an agreement in a form approved by the City
Attorney between the property owner and the City shall be executed and recorded
waiving rights to the construction of future shoreline protection devices to address the
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Planning Commission Resolution No. PC2022-002 Page 17 of 21
threat of damage or destruction from waves, erosion, storm conditions, landslides, seismic activity, bluff retreat, sea level rise, or other natural hazards that may affect the
property, or development of the property, today or in the future. The agreement shall be
binding against the property owners and successors and assigns. 10. Prior to the issuance of a building permit, the property owner shall submit a notarized signed letter acknowledging all hazards present at the site, assuming the risk of injury
or damage from such hazards, unconditionally waiving any claims of damage against
the City from such hazards, and to indemnify and hold harmless City, its City Council, its
boards and commissions, officials, officers, employees, and agents from and against any
and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation,
attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which
may arise from or in any manner relate (directly or indirectly) to City’s approval of
development. This letter shall be scanned into the plan set prior to building permit issuance. 11. The applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA).
In compliance with the MBTA, grading, brush removal, building demolition, tree
trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds pursuant to MBTA:
A. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no
longer observed. When the nest is no longer active, construction activity can continue
in the nest area. B. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and
to determine when it is safe to commence construction activities. If an active nest is
found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 12. Best Management Practices (BMPs) and Good Housekeeping Practices (GHPs) shall
be implemented prior to and throughout the duration of construction activity as
designated in the Construction Erosion Control Plan. 13. The discharge of any hazardous materials into storm sewer systems or receiving waters shall be prohibited. Machinery and equipment shall be maintained and washed in
confined areas specifically designed to control runoff. A designated fueling and vehicle
maintenance area with appropriate berms and protection to prevent spillage shall be provided as far away from storm drain systems or receiving waters as possible.
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Planning Commission Resolution No. PC2022-002 Page 18 of 21
14. Debris from demolition shall be removed from work areas each day and removed from the project site within 24 hours of the completion of the project. Stock piles and
construction materials shall be covered, enclosed on all sites, not stored in contact with
the soil, and located as far away as possible from drain inlets and any waterway. 15. Trash and debris shall be disposed in proper trash and recycling receptacles at the end of each construction day. Solid waste, including excess concrete, shall be disposed in
adequate disposal facilities at a legal disposal site or recycled at a recycling facility.
16. Revisions to the approved plans may require an amendment to this Coastal Development Permit or the processing of a new coastal development permit.
17. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval. 18. The applicant shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Coastal
Development Permit.
19. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All
landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be
kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 20. Prior to the issuance of a building permit, the Applicant shall pay any unpaid
administrative costs associated with the processing of this application to the Planning
Division. 21. The site shall not be excessively illuminated based on the luminance recommendations of the Illuminating Engineering Society of North America, or, if in the opinion of the
Director of Community Development, the illumination creates an unacceptable negative
impact on surrounding land uses or environmental resources. The Director may order the dimming of light sources or other remediation upon finding that the site is excessively illuminated.
22. All noise generated by the proposed use shall comply with the provisions of Chapter
10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher:
Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM
Location Interior Exterior Interior Exterior
Residential Property 45dBA 55dBA 40dBA 50dBA
Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA
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Planning Commission Resolution No. PC2022-002 Page 19 of 21
Mixed Use Property 45dBA 60dBA 45dBA 50dBA
Commercial Property N/A 65dBA N/A 60dBA
23. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Beard Residence including, but not limited to, Variance No. VA2021-002 and Coastal Development Permit No. CD2021-025 (PA2021-130). This indemnification shall
include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions
set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. Fire Department
24. Dwelling unit shall be protected by a fire sprinkler system (NFPA 13D). 25. A three-foot wide accessway shall be provided from the street to the rear of the property. Building Division
26. The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City-adopted version of the California Building Code. The construction plans must meet all applicable State Disabilities Access requirements. Approval from the Orange County
Health Department is required prior to the issuance of a building permit. 27. The Applicant shall employ the following best available control measures (“BACMs”) to reduce construction-related air quality impacts:
Dust Control • Water all active construction areas at least twice daily. • Cover all haul trucks or maintain at least two feet of freeboard. • Pave or apply water four times daily to all unpaved parking or staging areas. • Sweep or wash any site access points within two hours of any visible dirt deposits
on any public roadway. • Cover or water twice daily any on-site stockpiles of debris, dirt or other dusty material. • Suspend all operations on any unpaved surface if winds exceed 25 mph.
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Planning Commission Resolution No. PC2022-002 Page 20 of 21
Emissions • Require 90-day low-NOx tune-ups for off road equipment.
• Limit allowable idling to 30 minutes for trucks and heavy equipment.
Off-Site Impacts • Encourage carpooling for construction workers. • Limit lane closures to off-peak travel periods. • Park construction vehicles off traveled roadways.
• Wet down or cover dirt hauled off-site.
• Sweep access points daily. • Encourage receipt of materials during non-peak traffic hours. • Sandbag construction sites for erosion control. Fill Placement
• The number and type of equipment for dirt pushing will be limited on any day to
ensure that SCAQMD significance thresholds are not exceeded. • Maintain and utilize a continuous water application system during earth placement and compaction to achieve a 10 percent soil moisture content in the top six-inch surface layer, subject to review/discretion of the geotechnical
engineer.
28. Prior to the issuance of a grading permit, the Applicant shall prepare and submit a Water Quality Management Plan (WQMP) for the proposed project, subject to the approval of the Building Division and Code and Water Quality Enforcement Division. The WQMP
shall provide appropriate Best Management Practices (BMPs) to ensure that no
violations of water quality standards or waste discharge requirements occur. 29. A list of “good housekeeping” practices will be incorporated into the long-term post-construction operation of the site to minimize the likelihood that pollutants will be used,
stored or spilled on the site that could impair water quality. These may include frequent
parking area vacuum truck sweeping, removal of wastes or spills, limited use of harmful fertilizers or pesticides, and the diversion of storm water away from potential sources of pollution (e.g., trash receptacles and parking structures). The Stage 2 WQMP shall list and describe all structural and non-structural BMPs. In addition, the WQMP must also
identify the entity responsible for the long-term inspection, maintenance, and funding for
all structural (and if applicable Treatment Control) BMPs. 30. Rooms used for sleeping shall have emergency egress open into the courtyard.
31. A 42-inch minimum height guardrail shall be provided at rear yard where a 30-inch or
greater difference in elevation occurs. Public Works Department
32. No structural encroachments for the home, including tiebacks, caissons, walls etc. shall
be permitted within the public right-of-way or easement area with the exception the proposed lower level building corner over the sewer easement.
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33. The proposed encroachments with the Ocean Boulevard right of way shall require a City Council Policy L-6 waiver by the Planning Commission and a new encroachment
agreement shall be required for the proposed encroachments. 34. The City sewer line running through the property shall be replaced from the property line adjacent to 3619 Ocean Boulevard to the manhole located at 3631 Ocean Boulevard. A new easement shall be granted that is centered over the newly reconstructed sewer
main. The portion of the sewer main from the westerly property line to the area under
the new home shall be sleeved to accommodate future replacement of the sewer main. 35. The proposed driveway shall be constructed consistent with City Standard STD-162. The approach bottom width shall be 20-foot maximum.
36. The Project shall be able to accommodate an 8-foot wide sidewalk along the Ocean Boulevard project frontage with exception of the driveway approach. 37. A new 5-foot wide easement shall be provided that is centered along the sewer main.
38. All improvements shall be constructed as required by Ordinance and the Public Works Department. 39. All damaged curb, gutter and sidewalk along the Ocean Boulevard frontage shall be
reconstructed per City Standard.
40. An encroachment permit shall be required for all work activities within the public right-of-way.
41. All improvements shall comply with the City’s sight distance requirement. See City
Standard 110-L. 42. The slope of the driveway shall be limited to 19.1 percent maximum and the transitions and grade changes shall comply with City Standard.
43. In case of damage done to public improvements surrounding the development site by the private construction, additional reconstruction within the public right-of-way could be required at the discretion of the Public Works Inspector.
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