HomeMy WebLinkAboutHO2011-007 Abatement ExtensionRESOLUTION NO. HO 2011 007
A RESOLUTION OF A HEARING OFFICER OF THE CITY
OF NEWPORT BEACH APPROVING THE ABATEMENT
EXTENSION PERIOD FOR THE PROPERTY LOCATED AT
1455 SUPERIOR AVENUE "J" (PA 2011 -032)
WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC)
requires nonconforming nonresidential uses in residential zoning districts to be abated
and terminated upon the expiration of time periods identified by the NBMC. Following
the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner
may request an extension of the abatement period in order, to amortize a property
owner's investment in the property and avoid an unconstitutional taking of property; and
WHEREAS, an application was filed on behalf of The Rawlins Family Trust, the
owner of property located at 1455 Superior Avenue "J ", and legally described as Portion of
Lot 918, First Addition to Newport Mesa Tract, requesting an extension of the abatement
period specified by the NBMC Section 20.38.100. If granted, the extension will allow the
continued operation of existing boat storage use to December 31, 2013. The property is
located in the RM (2420) Zoning District, where such nonresidential uses are not
permitted; and
WHEREAS, a public hearing was held on December 15, 2011, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California, A notice of time,
place and purpose of the meeting was given in accordance with the NBMC and other
applicable laws. Evidence, both written and oral, was presented and considered at this
meeting; and
WHEREAS, the hearing was presided over by Hon. John C. Woolley, retired
Judge (California Superior Court, Orange County), Hearing Officer for the City of
Newport Beach; and
WHEREAS, the findings and considerations of Section 20.38.100 (C.4(c)) of the
NBMC and facts in support of the findings and considerations, and required conditions
as apply to mitigate adverse impacts on the neighboring uses. as implementation of the
approval are as follows:
1. The length of the abatement period is not appropriate considering the
owner's investment in the use;
Facts in Support of Finding: The one year is not an adequate period of time to amortize
the property owner's investment in the property, especially since the current lease has
an expiration date of December 31, 2013.
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Rawlins Trust
(1455 Superior Avenue "J ")
Page 2 of 5
2. The length of time the use was operating prior to the date of nonconformity
justifies the extension of the abatement period beyond the code specified
one year.
Facts in Support of Finding: This property also became nonconforming with the
General Plan in 2006, 5 years ago, when the City Council adopted Resolution No. 2006
76 approving the "General Plan Update ". The existing use conformed to the Land Use
Element of the General Plan for the prior 47 years; or was nonconforming and not
subject to abatement. The use of the property for the storage of boats is a
nonresidential use and therefore subject to abatement. The applicant's request to
continue the nonresidential use of the parcel to honor the existing lease terms is
appropriate in this case.
3. The existing structure is not suitable for conversion to an alternate use.
Facts in Support of Findinq: There is no structure on this property and is therefore
suitable for the construction of a new residential project or expansion of the adjacent
skilled nursing facility or the adjacent assisted living facility.
4. No harm to the public will result if the nonresidential use remains beyond
the one year abatement period.
Facts in Support of Finding The property is located in an area that is occupied by other
nonresidential uses; including office, medical office (across Superior Avenue) and a
skilled nursing facility. It is anticipated that the continued boat storage use is not
compatible with the adjacent residential uses that overlook the property. That
abatement in consideration of the existing lease will eliminate the aesthetic impact on
the neighboring residential units and protect the property owner from potential lawsuit
that could be caused by abatement prior to expiration of the lease term. Additionally, as
conditioned, the outdoor storage and hours of operation will be limited to boats and
vehicles. All other storage items, including but not limited to parts and construction
materials are to be removed within 45 days of this approval and hours of operation will
limit noise impacts on the neighboring residential uses.
5. The cost and feasibility of relocating the use to another site cannot be
accommodated within the one -year abatement period.
Facts in Support of Finding: The applicant indicates that the relocation of the boat
storage use prior to expiration of the current lease could be costly and would result in a
loss of clientele, and could result in a prolonged loss of revenue to the property owner.
WHEREAS, this activity has been determined to be categorically exempt under
the requirements of the California Environmental Quality Act under Class 1 (Existing
FAUSERS \PLMSharcd \PA's\PAs - 201 ITA2011- 032\FINAL DOCS\PA2011 -032 - Rcso ol'Approval FINAL 1455 1 - 12-16-2011 REV.docs
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Rawlins Trust
(1455 Superior Avenue "J ")
Page 3 of 5
Facilities). This class of projects has been determined not to have a significant effect on
the environment and is exempt from the provisions of CEQA. This activity is also
covered by the general rule that CEQA applies only to projects that have the potential
for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA
Guidelines. It can be seen with certainty that there is no possibility that this activity will
have a significant effect on the environment and therefore it is not subject to CEQA.
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby approves the
requested Abatement Period Extension (PA2011 -032), subject to the findings and
considerations set forth above and subject to the conditions set forth in Exhibit A which is
attached hereto and incorporated by reference.
Section 2. The Abatement Period Extension for the property located at 1455 Superior
Avenue "J ", and legally described as Portion of Lot 918, First Addition to Newport Mesa
Tract, is hereby extended and will expire on December 31, 2013, at which time all
nonresidential use of the property shall cease, unless an additional extension of the
abatement period is granted; or an appropriate change in the Zoning District and the
General Plan Land Use Designation are approved and adopted.
Section 3. This action shall become final and effective fourteen (14) days after the
adoption of this Resolution unless within such time an appeal is filed with the City Clerk
in accordance with the provisions of Title 20, Planning and Zoning, of the Newport
Beach Municipal Code.
APPROVED AND ADOPTED THIS 16TH DAM OF DECEMBER 2011.
MM
GHon. Johh C. Woo)leyy' retired Judge
(California Superior Court, Orange County)
Hearing Officer for th City of Newport Beach
ATTEST:
5/;,� City'Clerk
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City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Rawlins Trust
(1455 Superior Avenue "J ")
Page 4 of 5
EXHIBIT "A"
CONDITIONS OF APPROVAL
The Abatement Period Extension for the property located at 1455 Superior
Avenue "J ", and legally described as Portion of Lot 918, First Addition to Newport
Mesa Tract, is hereby extended and will expire on December 31, 2013, at which
time boat storage use of the property approved by this action shall cease.
2. That the outdoor storage shall be limited to boats and vehicles, and that all other
storage items, including but not limited to parts and construction materials, shall
be removed within 45 days of this approval to reduce the aesthetic impacts. The
items to be removed shall be determined and subject to the discretion of the
Community Development Director or appointed designee. This abatement
extension approval does not authorize the use of the property as a commercial
parking facility.
3. That the hours of operation of the boat storage facility shall be limited to between
8:00 a.m. to 8:00 p.m., daily; except that during the summer months (Daylight
Savings Time), the closing hour shall be extended to 9:00 p.m.
4. This Abatement Period Extension may be modified or revoked by the Community
Development Director should it be determined that the boat storage use 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.
The operator of the facility shall be responsible for the control of noise generated by
the subject facility including, but not limited to, noise generated by employees and
patrons, and mechanical equipment. 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.
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Between the hours of
7:OOAM and 10:OOPM
Between the hours of
10:OOPM and 7:OOAM
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
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City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Rawlins Trust
(1455 Superior Avenue "J ")
Page 5 of 5
6. 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
Abatement Extension Application (PA2011 -032), for the property located at
1455 Superior Avenue "J ", and the determination that the project is exempt under
the requirements of the California Environmental Quality Act. 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.
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