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HomeMy WebLinkAbout1896 - APPROVE VA_20361 CYPRESS STREETRESOLUTION NO. 1896 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH APPROVING VA2012 -005 FOR A VARIANCE TO ALLOW EXISTING HEDGES AND BLOCK WALLS TOPPED WITH LATTICE PANELS, WHICH EXCEED THE ZONING CODE HEIGHT LIMITS WITHIN SETBACKS (SIDES — 6 FEET, FRONT — 42 INCHES), TO REMAIN IN PLACE ALONG THE SIDE PROPERTY LINES LOCATED AT 20361 CYPRESS STREET (PA2012 -113) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Gennady and Marina Chizhik, with respect to property located at 20361 Cypress Street and legally described as the Northeasterly one -half of Lot 158 Tract 706, requesting approval of a variance. 2. The applicant is requesting a variance to allow the existing hedges and block walls topped with lattice panels, which exceed the Zoning Code height limits within setbacks (sides — 6 feet, front — 42 inches), to remain in place along the side property lines. On the southerly side, the applicant requests that the hedge located within the southerly side setbacks, and the hedge within the 20- foot -front setback be allowed to remain at the existing height as indicated on the project plans. 3. The subject property is located within the Santa Ana Heights Specific Plan, Residential Equestrian land use district (SP -7, REQ) and the General Plan Land Use Element category is Single -Unit residential Detached (RS -D). 4. The subject property is not located within the coastal zone. 5. In 2009, prior to construction of the new home on the subject property, City building permits were issued to the applicant to construct 6- foot -high block walls, centered on the rear and side property lines, which is the maximum height allowed within rear and side setbacks. 6. During construction of the new home, the height of the property line block walls was increased without permits; additionally, lattice panels (4 feet by 8 feet) were also attached to portions of the block walls along the side property lines; and hedges were planted adjacent to the block walls along a portion of the northerly side property line and hedges and trees, that have been allowed to grow together into a hedge ( "tree /hedge "), were planted along the entire length of the southerly side property line 7. A public hearing was held on November 8, 2012 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 Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. Planning Commission Resolution No. 1896 Page 2 of 7 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures. 2. The project involves allowing retention of block walls, lattice panels and hedges that exceed the height permitted by the Zoning Code within the front, side, and rear setbacks. The Planning Commission finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. SECTION 3. REQUIRED FINDINGS. In accordance with Section 20.52.090 of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. That there are special or unique circumstances or conditions applicable to the subject property (e.g. location, shape, size, surrounding, 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: A -1. Because the REQ land use district within the Santa Ana Heights Specific Plan allows the keeping of a limited number of horses, various domestic farm animals, and dogs, the Zoning Code requires larger side and rear setbacks than required within some other single - family zoning districts within the City. The larger setbacks intended help to minimize possible negative impacts related to those allowed uses on adjacent properties. A -2. The properties adjacent to the subject property have previously been developed (pre - annexation) with single - family dwellings and various, existing accessory structures and "out- buildings" associated with the keeping of horses and various domestic animals and other uses. A -3. The existing grade of the subject property along the northerly side property line ranges between 1 foot and 2 feet higher than the existing grade on the adjacent property. Since the maximum height of the block wall is measured from the existing grade, the 6- foot - block -wall originally constructed did not provide adequate privacy or minimize the negative impacts related to the use and non - conforming structures located within Planning Commission Resolution No. 1896 Page 3 of 7 the side setback along the side property line on the adjacent property (20351 Cypress). A -4. The subject property is lower in existing grade than the adjacent property (20371 Cypress) along the southerly side property line. The existing grade on the adjacent property is uneven and is more than 1- foot - higher than the subject property in some areas. There are various, existing accessory structures located within the side setbacks along the side property. Some of the structures are higher than the 6 -foot- height limit allowed by the Zoning Code. Finding: B. That 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. Fact in Support of Finding: B -1. Strict compliance of the Zoning Code would require that the block walls, lattice panels, and hedges be removed or reduced to a maximum height of 6 feet within the side and rear setbacks and 42 inches within the front setback. Neither of these requirements would allow the opportunity to establish a sufficient barrier between the subject property and the adjacent neighbors, which would adequately address the issue of privacy and concerns regarding noise and dust related to the uses of the neighboring properties. The existing height of the block walls /lattice panels, and hedges have proven beneficial in addressing these concerns. B -2. The negative impacts resulting from strict compliance with the Zoning Code would deprive the owner and any future owner of the enhanced aesthetics and privacy the enjoyed by other properties located within the vicinity and throughout the City. B -3. Many of the properties in the vicinity have previously (pre- annexation) been developed with walls and hedges that are located along the side property lines similar in height as those requested with the variance. Those walls and hedges have not proven to be detrimental to adjacent neighbors or other persons in the vicinity. B -4. The existing block walls /lattice panels, and hedges are well designed and should not prove detrimental to the adjacent neighbors or other persons in the vicinity. Finding: C. That the granting of the Variance is necessary for the preservation and enjoyment of substantial property rights of the applicant. Fact in Support of Finding: C -1. Allowing for the increased height of the block walls /lattice panels, and hedges will assist in alleviating the negative impacts and concerns on the subject property related to the uses and location of the existing accessory structures and 'but- buildings" on the adjacent properties. This will afford a higher level of enjoyment and use of the subject Planning Commission Resolution No. 1896 Paae 4 of 7 property by the applicant or future property owners, which is consistent with the intent of the Zoning Code to promote the orderly growth and development of the City, to promote and protect the public health, safety, peace, comfort and general welfare, to protect the character and social and economic vitality of all districts within the City, and to assure the orderly and beneficial development of such areas. Finding: D. That the 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. Facts in Support of Findin D -1. Granting the variance request will preserve the applicant's right to enjoy a level of privacy comparable to other properties within the SP -REQ District and does not constitute a grant of special privilege inconsistent with the limitations on the other properties in the vicinity and in the same zoning district. Finding: E. That the granting of the Variance will not be detrimental to the harmonious and orderly growth of the City, or 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: E -1. The existing block walls /lattice panels, and hedges are well designed and should not prove detrimental to the adjacent neighbors or other persons in the vicinity. E -2. As conditioned, all changes to the originally constructed block walls must be approved by the Building Department and new building permits reflecting the changes must be issued. E -3 As conditioned, the reduction of the 18 -foot high hedge to a maximum height equal to the top of the adjacent lattice panels will ensure adequate light and air for the neighboring property. E -4. As conditioned, reducing the height of the hedge on the southerly side property line to 30 inches within the 5- foot - traffic- safety - visiblility -area required by the Municipal Code and to the height of the existing, adjacent block wall within the remaining 15 feet of the front setback, will increase visibility of the equestrian trail and Cypress Street when exiting property. Finding: F. Granting of the Variance will not be in conflict with the intent and purpose of Section 20.52.090 of the Zoning Code, the Zoning Code, the General Plan, or any applicable specific plan. Planning Commission Resolution No. 1896 Paqe 5 of 7 Facts in Support of Finding: F -1. The granting of this variance will not conflict with the Land Use Element of the General Plan, which designates the site for Single -Unit Residential Detached (RS -D) use, or the Zoning Code, which designates the site as located within the Residential Equestrian land use district (REQ) of the Santa Ana Heights Specific Plan (SP -7). The block walls /lattice panels and hedges are accessory to the dwelling unit and are therefore consistent with these designations and will not change the use of the property. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Variance Permit No. VA2012 -005, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 8TH DAY OF NOVEMBER, 2012. AYES: Ameri, Brown, Kramer, Toerge, and Tucker NOES: Hillgren and Myers ABSTAIN: None ABSENT: None BY: /%- Mic ael` 6erge, Chairman Ml Fred Ameri, Secretary Planning Commission Resolution No. 1896 Paae 5 of 7 Facts in Support of Finding: F -1. The granting of this variance will not conflict with the Land Use Element of the General Plan, which designates the site for Single -Unit Residential Detached (RS -D) use, or the Zoning Code, which designates the site as located within the Residential Equestrian land use district (REQ) of the Santa Ana Heights Specific Plan (SP -7). The block walls /lattice panels and hedges are accessory to the dwelling unit and are therefore consistent with these designations and will not change the use of the property. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby approves Variance Permit No. VA2012 -005, subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated by reference. 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 8TH DAY OF NOVEMBER, 2012. AYES: Ameri, Brown, Kramer, Toerge, and Tucker NOES: Hillgren and Myers ra:1�lr_mrr•isrem ABSENT: None ma Michael Toerge, CVairman , Secretary Planning Commission Resolution No. 1896 Paqe 6 of 7 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved plans stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval.) 2. VA2012 -005 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. 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. Within 60 days after the effective date of the action for Variance No. VA2012 -005, the property owner or an authorized representative shall either reduce or remove the hedge within the front setback on the southerly side property line to the height of the existing block wall in that area. 5. Within 60 days after the effective date of the action for Variance No. VA2012 -005, the property owner or authorized representative shall either remove or reduce the height of the block walls and hedges within the first 5 -feet along the side property lines to a height of 30 inches as required by Section 20.30.130: Traffic Safety Visibility Area of the Municipal Code. The reduction in height shall be subject to the review and approval of the City Traffic Engineer. 6. Within 60 days after the effective date of the action for Variance No VA2012 -005, the property owner or an authorized representative shall either reduce or remove the additions to the block wall /and or lattice panels or obtain a building permit for the as- built rear and side property line walls from the City's Building Division of the Community Development Department. The construction plans for the as -built walls must comply with the most recent, City- adopted version of the California Building Code. 7. Within 60 days after the effective date of the action for Variance No. 2012 -005, the property owner or authorized representative shall reduce the height of the hedge row along the southerly property to the height of the top of the block wall /lattice. Trees higher that the top of lattice are allowed within the side setback areas as long as the they don't become a hedge as defined in the zoning code. 8. 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. Planning Commission Resolution No. 1896 Paqe 7 of 7 9. 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 the Chizhik Variance including, but not limited to, the VA2012 -005 (PA2012 -113). 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.