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Home My WebLink AboutHO2011-008 Abatement ExtensionRESOLUTION NO. HO 2011- 008 A RESOLUTION OF A HEARING OFFICER OF THE CITY OF NEWPORT BEACH APPROVING THE ABATEMENT (EXTENSION PERIOD FOR THE PROPERTY LOCATED AT 1438 SUPERIOR AVENUE "G" (PA 2011-033) 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 "G ", and legally described as Portion of Lot 818, 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 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 vacant lot is currently utilized as a boat storage facility with a lease term that will expire on August 31, 2013, including lease options. Staff recommends that the abatement extension to December 31, 2013 will accommodate the current lease term and will coincide with the lease term and boat storage facility on the adjacent parcel at 1455 Superior Avenue "J ". City of Newport Beach Hearing Officer Resolution Abatement Extension — Rawlins Trust (1455 Superior Avenue "G ") Page 2 of 5 a. 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: The property 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 and 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 boat storage is a nonresidential use and therefore subject to abatement. 3. The existing structure is not suitable for conversion to an alternate use. Facts in Support of Finding: 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 present boat storage use would be costly since there is no other vacant land or parcel within the vicinity. Staff recommends extension of the abatement period to honor the existing lease obligations and that the boat storage and service use be abated after that. Since there are no structures or other physical improvements, the property owner's cost is minimal, with the exception of the loss of rental income. FAUSERS \PWShared \PA's \PAs - 201 I\PA2011- 033TINAL DM\PA2011 -033 - HO Reso of Approval FINAL - 12 -16 -201 Ldocx City of Newport Beach Hearing Officer Resolution Abatement Extension — Rawlins Trust (1455 Superior Avenue "G ") Page 3 of 5 WHEREAS, this activity has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing 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 -033), 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 "G ", and legally described as Portion of Lot 818, 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 or the building be demolished, 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; or a change to the Zoning Regulations pertaining to nonconforming uses or their abatement are approved and adopted prior to that date. 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 16'" /" ECEMBER 2011. By: on. r a C. V)/o Iley, retired Judge (California Su¢erl r Court, Orange County) Hearing Officer f r the City of Newport Beach �. i s . • - FaUSERS`.PLN%h=d\PA'sTAs - 201 ITA2011- 033TINAL DOCSTA2011 -033 - HO Rcso of Approval FINAL - 12- 16.201 Ldoa. City of Newport Beach Hearing Officer Resolution Abatement Extension — Rawlins Trust (1455 Superior Avenue "G ") Page 4 of 5 EXHIBIT "A" CONDITIONS OF APPROVAL 1. The Abatement Period Extension for the property located at 1455 Superior Avenue "G ", and legally described as Portion of Lot 818, 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. 5. 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. F: \L SERS\PLMSharedTA's\PAs - 201 ITA2011- 033TINAL DOCSPA2011 -033 -140 Reso of Approval FINAL - 12 -16 -201 I.docx Between the hours of 7:OOAM and 10:OOPM Between the hours of I O:OOPM and 7:OOAM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 5OdBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 5OdBA Commercial Property N/A 65dBA N/A 6OdBA F: \L SERS\PLMSharedTA's\PAs - 201 ITA2011- 033TINAL DOCSPA2011 -033 -140 Reso of Approval FINAL - 12 -16 -201 I.docx City of Newport Beach Hearing Officer Resolution Abatement Extension — Rawlins Trust (1455 Superior Avenue "G ") 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 -033), for the property located at 1455 Superior Avenue "G ", 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. F.IUSERS\PLNVShare&PA'sTAs - 20111PA2011 -033TINAL DOCSWA2011 -033 - HO Reno of Approval FINAL - 12 -16 -201 Ldmx