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HomeMy WebLinkAboutPC2022-016 - SUPERSEDING MODIFICATION PERMIT NO. MD2008-011 AND APPROVING VARIANCE NO. VA2022-002 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-062 TO ALLOW THE DEMOLITION OF AN EXISTING DUPLEX AND THE CONSTRUCTION OF A NEW SINGLE-UNIT RESIDENCE AND ATTACHEDRESOLUTION NO. PC2022-016 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA SUPERSEDING MODIFICATION PERMIT NO. MD2008-011 AND APPROVING VARIANCE NO. VA2022-002 AND COASTAL DEVELOPMENT PERMIT NO. CD2021-062 TO ALLOW THE DEMOLITION OF AN EXISTING DUPLEX AND THE CONSTRUCTION OF A NEW SINGLE-UNIT RESIDENCE AND ATTACHED JUNIOR ACCESSORY DWELLING UNIT FOR THE PROPERTY LOCATED AT 4607 SEASHORE DRIVE (PA2021-234) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by My Vu of South Coast Architects (“Applicant”), on behalf of Derral McGinnis (“Owner”), with respect to property located at 4607 Seashore Drive, and legally described as Lot 4 of Block 46 (“Property”) requesting approval of a variance and a coastal development permit. 2. The Applicant requests a coastal development permit to demolish an existing duplex and construct a new 2,980 square-foot, single-unit residence with an attached 409-square-foot two-car garage and 376-square-foot junior accessory dwelling unit (“JADU”) in the VE Special Flood Hazard Area (“VE Flood Zone”) including a raised foundation supported by caissons to meet the minimum finished floor requirements of the VE Flood Zone (“Project”). The Project includes hardscape, walls, landscaping, and drainage facilities. Additionally, the Applicant requests a variance for the following deviations: a. To construct exterior entryway stairs for the JADU that are 28 inches in height in the side yard setback, where the maximum height is 18 inches measured from existing grade. b. To construct exterior access stairs approximately eight feet in height (includes steps and handrails) in the front yard setback abutting West Ocean Front, where the maximum height is 42 inches measured from existing grade. 3. The requested application would supersede Modification Permit No. MD2008-011, which was authorized by the Zoning Administrator on March 10, 2008 to permit an addition of a new bedroom and deck to an existing duplex which is nonconforming due to parking. 4. The Property is designated Two Unit Residential (RT) by the General Plan Land Use Element and is located within the Two-Unit Residential (R-2) Zoning District. 5. The Property is located within the coastal zone. The Coastal Land Use Plan designation is Two Unit Residential Detached (RT-E) (30.0 – 39.9 DU/AC) and is located within the Two Unit Residential (R-2) Coastal Zone District. Planning Commission Resolution No. PC2022-016 Page 2 of 18 6. A public hearing was held on July 7, 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 up to three single-family dwellings or up to six dwelling units within multi-unit structures in urbanized areas. The Project is a new single-family residence with an attached JADU located within the Two-Unit Residential (R-2) Zoning District and Two Unit Residential (R-2) 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. 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 located on Seashore Drive and faces West Ocean Front between 46th and 47th Streets. The Property is located within the VE Flood Zone (15 feet), which is a Special Flood Hazard Area designated by the Federal Emergency Management Agency Planning Commission Resolution No. PC2022-016 Page 3 of 18 (FEMA) Flood Insurance Rate Maps affecting 139 ocean fronting properties between 28th Street and 48th Street. This flood zone designation took effect March 21, 2019. 2. New development within the VE Flood Zone (15 feet) is required to meet FEMA design criteria and the City’s Building Code, which require elevated structures (i.e., the use of pilings, post, piers or columns) to raise the first floor of the structure to be at or above the Base Flood Elevation (BFE) of +15 feet NAVD 88, and the City requires an additional one foot of freeboard to the bottom of the lowest horizontal structural member. Therefore, the Project has been designed with a raised finished floor of approximately 17.33 feet NAVD 88. 3. The proposed top of landing for the JADU entryway stairs is approximately 28-inches high, which exceeds the maximum 18-inch height requirements for steps in the side yard setback. The grade below the proposed stairway is approximately 12.53 feet NAVD 88 (interpolated existing finished surface), which is 4.8 feet lower than the required 17.33-foot finished floor for the JADU. Due to the low existing topography of the Property and the flood hazard requirement for a higher finished floor, an entryway into the JADU is not feasible without relief from the maximum step height. 4. The existing patio grade below the proposed access stairs in the front yard setback is approximately 13.13 feet NAVD 88, which is 4.2 feet lower than the required 17.33-foot NAVD 88 finished floor for the primary residence. The Applicant is seeking relief from the maximum 42-inch height requirement in the front yard setback area in order to provide stair access and required guardrails from the primary residence to the outside patio. 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. Facts in support of Finding A are hereby incorporated by reference. 2. Strict compliance with the Zoning Code would deprive the Project of livable floor area, where properties outside of the VE flood zone can construct an entryway facing the side yard setback without the necessity of entry stairs. A compliant design requires redesigning the floor plan to pull the entryway stairs out of the side yard setback and into the buildable area of the home. This relocated design reduces the amount of practical living area on a modest-sized lot which is 30-feet wide. 3. Strict compliance with the Zoning Code would deprive direct access from the principal structure into the front patio abutting the beach. Neighboring properties, as well as the existing property, include patio areas abutting the beach which are accessible from the principal structure. The Zoning Code permits accessory stairs, including guardrails, to Planning Commission Resolution No. PC2022-016 Page 4 of 18 be a maximum height of 42-inches from existing grade. For the proposed project, a 42-inch high stair is infeasible to serve as an accessway between a high finished-floor and low existing patio grade. Without a stair in the front setback, residents of the primary dwelling would be required to exit the front door abutting Seashore Drive and travel down the side yard in order to access the patio. 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. Facts in support of Finding A are hereby incorporated by reference. 2. Exterior access to the proposed JADU from the side yard setback area is necessary to maintain a reasonable floor area for the Project. Designed to meet the high finished floor required by the VE Flood Zone, the proposed residence includes complex stair systems to provide separate access into the JADU. Stairs within the buildable area count as floor area but do not provide practical living areas such as living rooms and bedrooms. Without an exterior entrance into the JADU, additional interior staircases would be necessary, thus removing additional opportunity for practical living spaces for the dwelling units. 3. Direct access from the residence to the front yard patio is necessary for enjoyment of the ocean front property. The Project is a beach-front property and consists of a patio which encroaches onto the beach through an encroachment permit. A majority of nearby residences have similar encroaching patios. The Applicant is requesting a means of direct access to the patio through stairs which encroach into the front setback area. Access onto the front patio is a significant benefit of the site and is necessary for the enjoyment of an ocean front property. 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. Facts in support of Finding A are hereby incorporated by reference. 2. Residences of similar lot size and topography located outside of the VE Flood Zone or constructed prior to the new flood hazard requirements are typically able to accommodate access stairs in the side and front yard setbacks without deviations from development standards. The requested deviations for the Project will provide privileges that are consistent with other properties in the vicinity. Planning Commission Resolution No. PC2022-016 Page 5 of 18 Finding: E. Granting of the variance will not be detrimental to the harmonious and orderly growth of 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 granting of the entryway stairs for the JADU is not detrimental to the neighborhood, as it is not visible from neighboring properties. The maximum height for stairs in a side yard setback area is 18 inches from existing grade, and the maximum height for accessory guardrails is six feet from existing grade. The proposed entryway stairs are 28 inches high from existing grade, which exceeds the Zoning Code standards by nine inches. The top of the guardrail is approximately five feet, which is compliant with the Zoning Code. 2. The JADU entryway stairs make up a small portion of the side yard area, which is less than 10 feet deep within an 85-foot deep lot. Of the 10-foot deep stairs, less than six feet of the stairs exceed the required height limit. 3. The proposed front yard access stairs from the residence onto the beach-front patio are not detrimental to surrounding properties. The lot is separated from the public beach by an approximately 15-foot deep private ocean front patio encroachment which creates a larger distance between the public beach area and the proposed stair. The proposed stairs turn to be parallel with the front property line and consist of a lower landing area within the front setback. The guardrails, which are the tallest element of the access at 8 feet from existing grade, is to be constructed with glass which is visually less obstructive. 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 entryway stairs for the JADU are not in conflict with the intent of the maximum 18-inch height standard in the Zoning Code. The intent of the Code is to prevent the re-grading of setback areas to be significantly higher than the existing grade. The entry way stairs are a small, 10-foot deep staircase within a side yard that is 85 feet deep. 3. The maximum height standard of 42-inches in front yard setback areas are intended to limit the visual mass of accessory structures such as decks, fences, hedges, and walls. The proposed access stairs are constructed of steps and glass guardrails, which are Planning Commission Resolution No. PC2022-016 Page 6 of 18 necessary for direct access to the patio and are not visually obstructive. 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. With exception of the requested variance for the access stair deviations, the proposed development complies with applicable residential development standards including, but not limited to, floor area limitation, setbacks, height, and parking. a. The maximum floor area limitation is 3,829 square feet and the proposed floor area is 3,738 square feet. b. The Project provides the minimum required setbacks, which are five feet along the front property line abutting West Ocean Front and 3 feet along each side property line. There is no required setback along the property line abutting Seashore Drive. c. The project includes garage parking for a total of two (2) vehicles, complying with the minimum two (2)-car garage parking requirement for single-family residences with less than 4,000 square feet of habitable floor area. d. The highest guardrail is less than 24 feet from established grade (17.33 feet NAVD88) and the highest ridge is no more than 29 feet from established grade, which comply with the maximum height requirements. Pursuant to Section 21.30.060 (B), the minimum required top of slab elevation for interior living areas of all new development within flood hazard areas shall be as established by the Flood Insurance Rate Maps recognized by the Building Division as part of flood safety requirements and maps adopted by the Council. The subject property is located in the VE Flood Zone and the minimum top of slab elevation is required to be a minimum of 17.33 feet NAVD88. Pursuant to 21.30.060 (B), the height of a principal structure shall be measured from the top of slab elevation. Therefore, the established grade for the subject property is 17.33 feet NAVD88, and the maximum elevation allowed for a guardrail or flat roof is 41.33 feet NAVD88 and 46.33 feet NAVD88 for a sloping roof (minimum 3:12 pitch). 2. The Project proposes to demolish the existing duplex on-site to construct a single-family residence and attached JADU. As a result, the Project complies with the Housing Crisis Planning Commission Resolution No. PC2022-016 Page 7 of 18 Act of 2019 and Senate Bill 8 (Skinner) because it does not result in the loss of residential density. The State Department of Housing and Community Development (“HCD”) has verified with the City in an email dated March 23, 2022, that an ADU is considered a housing unit under Government Code Section 66300 provisions to replace existing units. The Property Owner has certified that the units are not "protected" units under Section 66330 Subdivision (d)(2). The Project is consistent with the General Plan, Local Coastal Program, and Zoning designations that allow the single-family and accessory dwelling unit land uses. Under Coastal Land Use Plan Table 2.1.1-1, the Two Unit Residential (RT) category is intended to provide primarily for two-family residential development such as duplexes or townhomes. Implementation Program (IP) Table 21.18-1 shows “Single-Unit Dwellings – Detached” and “Accessory Dwelling Units” as allowed uses in the R-2 Coastal Zoning District. Therefore, the project of a single-family residence and accessory dwelling unit to replace the existing duplex is consistent with the R-2 zoning and land use designations and does not result in a loss of residential density. 3. A Coastal Hazards Report and Sea Level Rise Analysis was prepared by GeoSoils, Inc., dated August 17, 2021 for the project. The report concludes that the project will be reasonably safe from wave runup, overtopping, and future sea level rise. The estimates assume an approximate 2.95-foot increase from sea level rise over the next 75 years (i.e. the life of the structure). The maximum water elevation is 7.7 NAVD88; therefore, the future sea level is estimated to reach approximately 10.65 feet NAVD88 (the likely range for sea level rise over 75-year design life of the structure based on low risk aversion estimates (66 percent probability) for sea level rise provided by the State of California, Sea Level Rise Guidance: 2018 Update). Additionally, the maximum water elevation using the medium-high risk aversion estimate (0.5 percent probability) is 14.4 feet NAVD88. The finished floor elevation of the first floor of the proposed structure is approximately 17.3 feet NAVD88, which complies with the minimum 9.0-foot (NAVD88) elevation standard for new structures and exceeds the minimum requirements for future projected sea level rise (10.65 and 14.4 feet NAVD88). 4. The Coastal Hazards Report and Sea Level Rise Analysis also evaluates the potential for shoreline erosion and wave attack at the site. The report concludes that future wave runup will likely not reach the site under severely eroded beach conditions and extreme storms. The report states that this section of Newport Beach does experience short term erosion, but that the erosion is temporary and largely the result of an energetic winter. The report concludes that the sandy beach in front of the property is typically over 375 feet wide and has provided adequate protection for the property over the last several decades. The proposed development will not need shoreline protection over the life of the development. 5. The Project will be reviewed for compliance with building code and FEMA standards prior to issuance of a building permit. The VE Flood Zone mapped at the site requires a base flood elevation (BFE) of +15 feet NAVD88, and the City requires an additional one (1) foot of freeboard to the bottom of the lowest horizontal structural member. Therefore, the project has been designed with a raised finished floor of 17.33 feet NAVD88. The residential structure is also required to have a pile foundation. Therefore, although unlikely to occur at the project site over the life of the development, the structure has Planning Commission Resolution No. PC2022-016 Page 8 of 18 been designed to withstand potential wave overtopping in compliance with the FEMA VE Flood Zone standards. 6. Pursuant to Section 21.30.030(C)(3)(i)(iv) (Protective Structures) of the NBMC, the property owner will be required to enter into an agreement with the City waiving any potential right to protection to address situations in the future in which the development is threatened with damage or destruction by coastal hazards (e.g., waves, erosion, and sea level rise). The property owner will also be required to acknowledge any hazards present at the site and unconditionally waive any claim to damage or liability against the decision authority, consistent with Section 21.30.015(D)(3)(c) (Development Standards) of the NBMC. Both requirements are included as conditions of approval that will need to be satisfied prior to final building inspection, and prior to the issuance of building permits, respectively. 7. The Property is located in an area known for the potential of seismic activity and liquefaction. All projects are required to comply with the California Building Code (“CBC”) and 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. 8. The Property is located on a wide beach, approximately 200 feet from the mean high tide line. A Construction Erosion Control Plan was provided to implement temporary Best Management Practices (BMPs) during construction to minimize erosion and sedimentation and to minimize pollution of runoff and coastal waters derived by construction chemicals and materials. The project design also addresses water quality through the inclusion of a post-construction drainage system that includes drainage and percolation features designed to retain dry weather and minor rain event runoff on-site. Any water not retained on-site is directed to the City’s storm drain system. 9. Pursuant to Section 21.35.050 (Water Quality and Hydrology Plan) of the NBMC, due to the proximity of the development to the shoreline and the development containing more than 75 percent of impervious surface area, a Water Quality and Hydrology Plan (“WQHP”) is required. A preliminary WQHP has been prepared for the project by Forkert Engineering & Surveying Inc. The WQHP includes a polluted runoff and hydrologic site characterization, a sizing standard for BMPs, use of an LID approach to retain the design storm runoff volume on site, and documentation of the expected effectiveness of the proposed BMPs. 10. Proposed landscaping complies with Implementation Plan Section 21.30.075 (Landscaping). A condition of approval is included that requires drought-tolerant species. Prior to issuance of building permits, the final landscape plans will be reviewed to verify invasive species are not planted. 11. The Property is not located adjacent to a coastal viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is Channel Place Park and is not visible from the site. The Property is located adjacent to Seashore Drive, which serves as lateral access and provides intermittent views of the beach where it intersects with street ends. As Planning Commission Resolution No. PC2022-016 Page 9 of 18 currently developed, the existing property and other residences along Seashore Drive impede views of the ocean from Seashore Drive and provide very limited opportunities to see the beach through side yard setbacks. The Property is located in the middle of the block, and existing views of the beach are available along the 46th and 47th Street ends. The Project would not block any existing views through the project site. Additionally, the proposed single-family residence and attached JADU complies with all applicable Local Coastal Program (LCP) development standards and maintains a building footprint consistent with the existing neighborhood pattern of development. 12. The Property is located in the viewshed of the public beach, which is not a designated viewpoint but provides scenic views of the ocean. The project will replace an existing duplex with a new single-family home and attached JADU that complies with applicable development standards. The project also complies with the City’s Residential Design Standards that restrict the size and location of third floors. The project proposes a third floor of 380 square feet to accommodate a lounge area and powder room, which meets the additional 15-foot stepback standards from the front and rear setback lines. Compliance with third floor standards minimize the appearance of bulk and scale from the adjacent beach, neighboring properties, and street. The project would be constructed with a finished floor that is approximately 5 feet above the existing beach elevation and the overall height of the structure will appear higher than neighboring properties. However, as the other 165 properties along the beach from 24th Street to 48th street redevelop, they will also be required to comply with the VE Flood Zone construction standards that necessitate raised foundations on caissons. 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 Property is located between the nearest public road and the sea or shoreline. Section 21.30A.040 of the NBMC requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the project replaces an existing duplex located on standard R-2 lot with a new single-family residence and attached JADU. Therefore, the project does not involve a change in land use, density or intensity that will result in increased demand on public access and recreation opportunities. Furthermore, the project is located in the middle of the block, and designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. 2. Vertical access to the beach is available at the 46th and 47th Street ends. Lateral access is available on the beach in front of the property and along Seashore Drive to the rear of the property. The Project does not involve the removal or creation of additional street parking spaces. The project design does not include any unique features in the rear of the property Planning Commission Resolution No. PC2022-016 Page 10 of 18 that could obstruct access or create hazards for the motorists or pedestrians on Seashore Drive. The first-floor garage is setback approximately six feet from the property line, which would allow the residents additional visibility to the bike path and street as they enter and exit the garage. 3. The Applicant is proposing to maintain the existing encroaching patio on West Ocean Front. Any new encroachments within the Ocean Front Encroachment area would require review and approval by Public Works Department and the California Coastal Commission. No new encroachments on the beach are proposed as part of this project. 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. Facts in Support of Finding: 1. The proposed deviations result from access stairs in the front and side setbacks which are designed to be consistent with the LCP to the maximum extent feasible. The proposed top of landing for the JADU entrance is approximately 28-inches high, which exceeds the maximum 18-inch height requirements for steps in the side yard setback. The existing grade below the proposed stair is 12.53 feet NAVD 88, which is 4.8 feet lower than the required 17.33-foot finished floor for the JADU. An exterior entryway into the JADU is not feasible without relief from the maximum step height. In the front setback, the existing patio grade below the proposed stair abutting the beach is approximately 13.13 feet NAVD 88, which is 4.2 feet lower than the required 17.33-foot NAVD 88 finished floor for the primary residence. The applicant is seeking relief from the maximum 42-inch height requirement in the front yard setback area in order to provide access from the primary residence to the outside patio. Both sets of stairs are designed to the minimum heights necessary to provide access. 2. An alternative to the side yard access stairs is to have the entrance at the grade level and to design a stair system within the buildable area outside of the setback. Stairs within the buildable area count as floor area but reduce the opportunity for practical living areas such as living rooms and bedrooms. The proposed project already has difficult design constraints from being in the VE Flood Zone. Interior stairs would not provide greater consistency with the LCP and are not more protective of coastal resources. Planning Commission Resolution No. PC2022-016 Page 11 of 18 3. A separate entry for the JADU is not feasible to be located in the front. The Property is 30-feet wide with 3-foot side setbacks on each side, leaving a 24-foot wide buildable frontage. The proposed garage is near the minimum width of 17 feet 6 inches. The lot is not wide enough to allow for separate entrances for both the principal dwelling unit and the JADU. Therefore, the side yard entry is the most feasible means of entry for the JADU. 4. An alternative to the front yard access stair into the beach-front patio is to reduce the livable floor area of the residence and to construct the staircase within the buildable area outside of the setback. However, the lot is not excessively large and implementing a staircase within the buildable area would reduce the amount of livable area dedicated to the living room. An access staircase, which is typically permitted in front setbacks, only requires deviation for height due to the recent increase in flood hazard regulations in the VE Zone. Relocating the staircase into the buildable area would not provide greater consistency with the LCP and is not more protective of coastal resources. 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 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. Planning Commission Resolution No. PC2022-016 Page 12 of 18 2. Vertical access to the beach and ocean is available from the 46th and 47th Street street ends. 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 11 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 not located on or near coastal resources such as wetlands, sensitive habitat, vegetation, or wildlife species. There are no other coastal resources in the immediate area that could be affected by the proposed redevelopment. 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. 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. Planning Commission Resolution No. PC2022-016 Page 13 of 18 2. The Planning Commission of the City of Newport Beach hereby approves VA2022-002 and CD2021-062, subject to the conditions set forth in Exhibit "B," which is attached hereto and incorporated by reference. 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 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. 4. This resolution supersedes Modification Permit No. MD2008-011 which upon vesting of the rights authorized by this Variance and Coastal Development Permit, shall become null and void. PASSED, APPROVED, AND ADOPTED THIS 7TH DAY OF JULY, 2022. AYES: Ellmore, Harris, Kleiman, Lowrey, Rosene, and Weigand NOES: ABSTAIN: ABSENT: Klaustermeier BY:~~-~--- Lauren Kleiman, Chairman BY: '\/V'\./L ------------Mark Rosene , Secretary Attachment(s): Exhibit A -Conditions of Approval Planning Commission Resolution No. PC2022-016 Page 14 of 18 EXHIBIT “A” 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. VA2022-002 and Coastal Development Permit No. CD2021-062 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. The guardrails located within the front yard setback shall be constructed of glass or transparent material. 9. 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. Planning Commission Resolution No. PC2022-016 Page 15 of 18 10. 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 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. 11. 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. 12. 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. 13. 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. 14. 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 Planning Commission Resolution No. PC2022-016 Page 16 of 18 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. 15. 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. 16. 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. 17. Revisions to the approved plans may require an amendment to this Coastal Development Permit or the processing of a new coastal development permit. 18. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 19. 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. 20. 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. 21. 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. 22. 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. 23. 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 Planning Commission Resolution No. PC2022-016 Page 17 of 18 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 Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 24. 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. Building Division 25. 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. 26. 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. Emissions • Require 90-day low-NOx tune-ups for off road equipment. Planning Commission Resolution No. PC2022-016 Page 18 of 18 • 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. 27. 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. 28. 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. 29. Hardscape and site improvements shall be designed to meet ASCE 24 Section 9.3 and 4.5.12 standards. 30. Walls located below Design Flood Elevation (DFE) shall be designed as breakaway walls per NFIP 60.3 (e)(4) or ASCE 24 Section 4.5.12. 31. Elevators shall be designed per FEMA Technical Bulletin 4. 32. Alternative Means and Methods request subject to Building Official approval required for emergency egress onto decks and/or roofs.