HomeMy WebLinkAboutPC2024-014 - APPROVING A COASTAL DEVELOPMENT PERMIT AND VARIANCE TO ALLOW THE DEMOLITION OF AN EXISTING DUPLEX AND THE CONSTRUCTION OF A NEW SINGLE-UNIT DWELLING, ATTACHED GARAGE, AND ATTACHED ACCESSORY DWELLING UNIT FOR THE PROPERTY LOCATED AT 3509 SEASRESOLUTION NO. PC2024-014 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING A COASTAL DEVELOPMENT PERMIT AND VARIANCE TO ALLOW THE DEMOLITION OF AN EXISTING DUPLEX AND THE CONSTRUCTION OF A NEW SINGLE-UNIT DWELLING, ATTACHED GARAGE, AND ATTACHED ACCESSORY
DWELLING UNIT FOR THE PROPERTY LOCATED AT 3509 SEASHORE DRIVE (PA2022-0212) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Eric Mossman (“Applicant”), on behalf of Barry Pine (“Owner”), concerning property located at 3509 Seashore Drive, and legally described as Lot 5 of
Block 35 in the city of Newport Beach, County of Orange, State of California, as per map
recorded in Book 3, page 26 of Miscellaneous Maps, in the Office of the County Recorder of said county (“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 2,548-square-foot, single-unit dwelling with an attached 352-square-foot two-car garage and 254-square- foot attached accessory dwelling unit (“ADU”) in the VE Special Flood Hazard Area (“VE Flood Zone”). Additionally, the applicant requests a variance to construct three exterior entry stairs that are
approximately 9 feet in height (including steps and guardrails) in the side yard setback,
where the maximum height is 18 inches measured from existing grade for stairs and 6 feet maximum for guardrails (“Project”). The Project complies with all other development standards and no other deviations are requested.
3. The Property is categorized as Two-Unit Residential (RT) by the General Plan Land Use
Element and is located within the Two-Unit Residential (R-2) Zoning District. 4. The Property is located within the Coastal Zone. The Coastal Land Use Plan category is Two-Unit Residential - 30.0 – 39.9 DU/AC (RT-E) and the Coastal Zoning District is
Two Unit Residential (R-2). 5. The City Council adopted Resolution No. 2019-31 on March 26, 2019, initiating an amendment to Title 20 and Title 21 of the Newport Beach Municipal Code (“NBMC”) to modify the setback encroachment regulations for residential properties in the VE Flood
Hazard Area;
6. The City Council adopted Ordinance No. 2023-10 on June 27, 2023, to amend Title 20 to create a Special Food Hazard Area (VE) Overlay Zoning District to modify certain development standards for properties subject to special flood hazards as identified by the
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Federal Emergency Management Agency (“FEMA”) in the Flood Insurance Study (“FIS”) for Orange County, California and Incorporated Area with accompanying FEMA Flood
Insurance Rate Maps (“FIRM”). The VE Overlay District allows for the construction of
raised patios, steps, landings, platforms, terraces, stairs, guardrails, handrails, and similar features for access to exceed the height limits for accessory structures within side, rear, and front setbacks, subject to certain limitations.
7. The City Council also approved Resolution No. 2023-37 on June 27, 2023, to authorize
staff to submit a Local Coastal Program Amendment (“LCPA”) to amend Title 21 (Local Coastal Program Implementation Plan) to create a Special Flood Hazard Area (VE) Overlay District to modify certain development standards for properties subject to special flood hazards as identified by the FEMA in the FIS for Orange County, California and
Incorporated Area with accompanying FEMA FIRMs. The proposed amendments to Title
21 (Local Program Implementation Plan) largely mirror the amendments proposed for Title 20 (Planning and Zoning). 8. The LCPA was submitted to the California Coastal Commission (“CCC”) and deemed
complete on April 15, 2024. Because the CCC has not yet approved the LCPA, and
Ordinance No. 2023-10 to amend Title 20 is not yet in effect, a variance is necessary to authorize the proposed encroachments in the front and side setbacks. 9. A public hearing was held on June 20, 2024, 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. The 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 California Code of Regulations, Title 14, Division 6, Chapter 3 (CEQA Guidelines)
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-unit dwellings or up to six dwelling units within multi-unit structures in
urbanized areas. The Project includes the demolition of one existing duplex and
construction of a new single-unit dwelling with an attached ADU located within the Two-Unit Residential (R-2) Zoning District and the 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
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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 35th Street and 36th Street. The Property is located within the VE Flood Zone (15 feet), which is a Special Flood Hazard Area designated by the FEMA FIRMs. This Special Flood
Hazard Area designation took effect on March 21, 2019, and affects 166 beachfront
properties between 28th Street and 48th Street. 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 new structures to be elevated
through 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. These structures are designed and engineered to allow water to flow below the elevated floor system without damaging the foundation or creating substantial
debris. Therefore, the Project has been designed with a raised finished floor of
approximately 17.5 feet NAVD 88. 3. Compliance with the VE Flood Zone design criteria presents several challenges for new residential development to also meet the requirements of Title 20 and Title 21 of the
NBMC related to encroachments in setback areas. Specifically, the existing NBMC limits
steps, landings, platforms, and similar features to 18 inches maximum within side setbacks. The existing NBMC also limits fences, hedges, and walls (including guardrails or handrails) to 6 feet from existing grade within side setbacks. In this case, the Property has an existing grade in the side yard of approximately 12.00 feet (NAVD 88), where the
finished floor is at 17.5 feet (NAVD 88) or approximately 5.5 feet from existing grade.
Therefore, typical stairs, landings, handrails, and similar features that provide access from the street, side yard, or front yard cannot be accommodated within the side setbacks.
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4. Other properties in the VE Flood Zone would also be subject to these same special or unique circumstances. However, most properties in the City that are within the Zoning
District would not be subject to the same FEMA requirements.
5. The applicant seeks a variance for three entry stairs to exceed the maximum height in the side setback to provide access to the dwelling and ADU. The proposed top of landing height for all three entry stairs is approximately 5 feet, 6 inches, which exceeds the
maximum 18-inch height allowance for steps in the side yard setback. The proposed
handrails and guardrails associated with the three entry stairs would reach a height of approximately 9 feet and would not exceed the minimum height required by California Building Code (“CBC”) as certified in Title 15 (Buildings and Construction) of the NBMC. Due to the elevation difference between the existing grade and the required finished
floor, exterior entry stairs are not feasible without relief from the maximum allowed
height. 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 Title 20 and Title 21 of the NBMC would deprive the Project of
livable floor area as the Property is 25 feet in width, which is relatively narrow for typical
R-2 Zoned properties in the City. Similarly zoned properties with similar or even larger widths outside of the VE Flood Zone can construct an entryway facing the side yard setback without the necessity of entry stairs. A compliant design would require redesigning the floor plan to pull the three entry stairs out of the side yard setback and
into the buildable area of the home. This relocated design would reduce the amount of
practical living area by about 128 square feet on a modest sized 2,325-square-foot lot. 3. Strict compliance with Title 20 and Title 21 of the NBMC would deprive the Property of direct access from the dwelling onto the front yard patio that fronts the public beach.
Neighboring properties, as well as the existing Property, include patio areas abutting the
beach and boardwalk which are directly accessible from the dwelling. Title 20 and Title 21 of the NBMC permit accessory stairs, including guardrails, to be a maximum height of 42 inches from existing grade in the front setback. The Project is designed with features in the front setback that comply with the 42-inch height allowance. However,
the entry stairs in the side setback that provide direct access to the beach from the
elevated first floor would not be feasible, as the limit is 18 inches maximum from existing grade. Without entry stairs in the side setback, residents of the primary dwelling would be required to travel down an entry stair that is incorporated into the building area to exit the dwelling with no direct access to the beach or boardwalk. Without the encroachment,
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the primary access to the dwelling would be from the garage entry at the rear of the property, which is not typical of other R-2 Zoned properties.
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 and B are hereby incorporated by reference.
2. The Applicant is requesting two sets of entry stairs for the single-unit dwelling within the
side setback that allow for direct access into the dwelling. Without these entry stairs, the only way to access the dwelling would be to enter from the garage level and travel up the internal stairway onto the main level with the elevated finished floor. Residences of similar lot size and topography located outside of the VE Flood Zone have side yard
access into the dwelling that complies with Title 20 and Title 21 the NBMC because the
finished floor is on or near the existing ground. Direct access into the dwelling without needing to travel through the garage level is necessary for the enjoyment of substantial Property rights of the Applicant.
3. The Applicant is requesting a means of direct access to the front patio through stairs
which encroach into the side setback area that leads to the beach front. Direct access onto the front patio is a significant benefit of the Property that has existed since the residences were originally constructed and is necessary for the enjoyment of the beach front property.
4. The Applicant is requesting one set of entry stairs to access the ADU at the rear of the property. Exterior access to the proposed ADU from the side yard setback area is necessary to maintain a reasonable floor area for the Project. Designed to meet the elevated finished floor required in the VE Flood Zone, the proposed residence includes
complex stair systems to provide separate access into the ADU. 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 ADU, additional interior staircases would be necessary, thus removing additional opportunity for practical living spaces for the ADU.
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.
Facts in Support of Finding: 1. Facts in support of Finding A are hereby incorporated by reference.
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2. Facts in support of Finding C are hereby incorporated by reference.
3. 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.
4. Further, the City is currently processing an LCPA with the CCC which would allow these encroachments to be permitted without a variance. The amendments to Title 20 (Planning and Zoning) were approved by the City Council on June 27, 2023 (Ordinance
No. 2023-10). The proposed Project is consistent with the allowed encroachments
proposed in the amendments. Therefore, the requested deviations are expected to be typical of new development in the VE Flood Zone. 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 entry stairs for the single-unit dwelling and ADU is not detrimental to the neighborhood, as the entry stairs and landings are not visible from neighboring
properties. The maximum height for entry stairs in a side yard setback area is 18 inches
from existing grade, and the maximum height for accessory guardrails is 6 feet from existing grade. The proposed entryway stairs are 5 feet, 5 inches high from existing grade, which exceeds the Title 20 and Title 21 standards by 4 feet. The proposed handrails and guardrails associated with the three entry stairs would reach a height of
approximately 9 feet and would not exceed the minimum height required by the CBC as
certified in Title 15 (Buildings and Construction) of the NBMC for safety purposes. Although the proposed guardrails and handrails may be visible to the adjacent properties at about nine feet above grade, they are designed with glass material to minimize the visual impact from the neighboring properties. The handrails and guardrails would also
be oriented so that they run along the sides of the staircases and do not directly face
the street, which would also minimize visual impacts. 2. The proposed rear ADU entry stairs are not detrimental to surrounding properties. The Project design does not include any unique features in the rear of the property that could
obstruct access or create hazards for the motorists or pedestrians on Seashore Drive. The
first-floor garage is setback approximately 2 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.
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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 three entry stairs are not in conflict with the intent of the maximum 18-inch height
standard in Title 20 and Title 21 of the NBMC. The three guardrail and handrail systems
are not in conflict with the intent of the 6-foot maximum height standard in Title 20 and Title 21 of the NBMC. The intent of the Code is to prevent the re-grading of setback areas to be significantly higher than the existing grade and to prevent high raised decks, landings, patios, platforms, steps, or similar structures in the side setbacks that abut
neighboring side yards and potentially impact privacy. The proposed entry stairs are
intended for access into the dwelling and ADU. Additionally, the 6-foot maximum height standard for fences, hedges, and walls including guardrail and handrails, is to allow for adequate light and air into neighboring setbacks and to prevent the appearance of the building being walled off from surrounding areas. In this case, the area of the guardrails
and handrails over the 6-foot limit will be comprised of glass which will reduce the
appearance of bulk and allow the passage of light into adjacent spaces.
3. 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 entry 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 3,224 square feet and the proposed floor area is 3,156 square feet.
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b. The Project provides the minimum required setbacks, which are 5 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. The
first-floor garage is setback approximately 2 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.
c. The Project includes garage parking for a total of two vehicles, complying with the
minimum two-car garage parking requirement for single-unit dwelling with less than 4,000 square feet of habitable floor area. The ADU is exempt from parking requirements because it is an attached ADU within a half-mile walking distance of public transit.
d. The highest guardrail is less than 24 feet from established grade (17.5 feet NAVD 88) 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) (Height of Structures and Measurement) of the NBMC, 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 17.5 feet NAVD 88. Pursuant to
21.30.060(B) (Height of Structures and Measurement) of the NBMC, the height of a
principal structure shall be measured from the top of slab elevation. Therefore, the established grade for the subject property is 17.5 feet NAVD 88, and the maximum elevation allowed for a guardrail or flat roof is 41.5 feet NAVD 88 and 46.5 feet NAVD 88 for a sloping roof (minimum 3:12 pitch).
2. The neighborhood is predominantly developed with two and three-story, single-unit and two-unit dwellings. The proposed design, bulk, and scale of the development are consistent with the existing and anticipated neighborhood pattern of development.
3. The Project proposes to demolish the existing duplex on-site to construct a single-unit
dwelling and attached ADU. As a result, the Project complies with the Housing Crisis 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-unit dwellings 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-unit dwelling residence and accessory dwelling
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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.
4. A Coastal Hazards Report and Sea Level Rise Analysis was prepared by GeoSoils, Inc., dated August 22, 2022 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 3.2-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 feet NAVD 88; therefore, the
future sea level is estimated to reach approximately 10.9 feet NAVD 88 (the likely range for sea level rise over 75-year design life of the structure based on low risk aversion estimates (66% 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 13.7 feet NAVD 88. The finished floor
elevation of the first floor of the proposed structure is approximately 17.5 feet NAVD 88, which complies with the minimum 9.0-foot (NAVD 88) elevation standard for new structures and exceeds the minimum requirements for future projected sea level rise (10.9 and 13.7 feet NAVD 88).
5. 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 300 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.
6. The Project will be reviewed for compliance with CBC and FEMA standards prior to
issuance of a building permit. The Project has been designed with a raised finished floor of 17.5 feet NAVD 88, in compliance with FEMA standards. The residential structure is also required to have a pile foundation. Therefore, although unlikely to occur at the Property over the life of the development, the structure has been designed to withstand potential wave
action or overtopping in compliance with the FEMA VE Flood Zone standards.
7. The Project does not include the construction of any shoreline protective devices such as seawalls or bulkheads. By nature, any features below the design flood elevation (16 feet NAVD 88) must be open to allow water to flow freely below the raised foundation. For
example, stairs in the side setbacks are required to have open treads so water may flow
through them. This is a fundamental building requirement in the VE Flood Zone. This is required for any structures (except those specifically exempted like elevators) that are located below the design flood elevation. Therefore, the proposed encroachments would not result in the creation of new shoreline protective devices. Further, pursuant to Section
21.30.030(C)(3)(i)(iv) (Protective Structures) of the NBMC, the 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).
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8. The 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) (Waterfront Development) 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. 9. 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 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.
10. 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.
11. 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% of impervious surface area, a Water Quality and Hydrology Plan (“WQHP”) is required. A preliminary WQHP has been prepared for the Project by DNZ Engineering. 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. 12. Landscaping complies with Section 21.30.075 (Landscaping) of the NBMC given no
landscaping is proposed. Although the Project does not propose any new landscaping a
condition of approval is included that requires drought-tolerant species should the Applicant choose to revise the Project to include landscaping. Prior to issuance of building permits, the final landscape plans will be reviewed to verify invasive species are not planted.
13. The Property is not located adjacent to a coastal viewpoint as identified in the Coastal Land
Use Plan. The nearest coastal viewpoint is Newport Island 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 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 35th and 36th Street ends. The Project would not block any existing views through the project site, as there are no existing views through the site. Additionally, the proposed single-unit dwelling and attached ADU complies with all
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applicable Local Coastal Program (LCP) development standards and maintains a building footprint consistent with the existing and expected neighborhood pattern of development.
14. 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-unit dwelling and attached ADU 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 574 square feet to
accommodate a family room, bedroom, bathroom and covered balcony, 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.
15. The Project would be constructed with a finished floor that is approximately 5.5 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.
Facts in Support of Finding:
1. The Property is located between the nearest public road and the sea or shoreline. Section 21.30A.040 (Determination of Public Access/Recreation Impacts) 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-unit dwelling and attached ADU. 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. The Property is located adjacent to the West Oceanfront boardwalk, which serves as lateral access and provides a path along the beach for pedestrian and bicycle use. The
Project does not include a feature that would impede access to the boardwalk. Further, the
entry stairs and walls within the front setback do not exceed the maximum height of 42 inches and do not create a visual impact within the front setback area abutting the boardwalk.
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3. Vertical access to the beach is available at the 35th and 36th 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 that could obstruct access or create hazards for the motorists or pedestrians on Seashore Drive. The first-floor garage is setback approximately two 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.
In accordance with NBMC Section 21.52.090 (Relief from Implementation Plan Development Standards), the Planning Commission may approve a waiver to a development standard of the Implementation Plan only after making 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 for entry stairs within side setbacks are designed to be
consistent with the LCP to the maximum extent feasible. The deviations are also
consistent with the LCPA that is currently being processed with the CCC. The proposed top of landing height for the staircases is approximately five feet, six inches, which exceeds the maximum 18-inch height requirements for steps in the side yard setback. The existing grade below the proposed stair is 12.00 feet NAVD 88, which is 5.5 feet
lower than the required 17.5-foot finished floor for the dwelling. An exterior entryway into
the dwelling and ADU is not feasible without relief from the maximum stair and fence height limits. All three entry stairs are designed to the minimum height necessary to provide access to the dwelling and ADU while meeting safety standards of the CBC as certified in Title 15 (Buildings and Construction) of the NBMC.
2. An alternative to the side yard entry stairs for the single-unit dwelling and the ADU is to have the entrance at the side yard 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 Project is already significantly impacted by the minimum design requirements of the
VE Flood Zone. Interior stairs would not provide greater consistency with the LCP and are not more protective of coastal resources. 3. Designing a separate entrance on each side of the single-unit dwelling and ADU that is
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within the buildable area is not realistic. The lot is 2,325 square feet and 25-feet wide with 3-foot side setbacks on each side, leaving a 19-foot wide buildable frontage. If each
entrance is at least three feet deep on each side, that would leave a width of 13 feet for
living area. Thus, the lot is not wide enough to allow for separate entrances for both the principal dwelling unit and the ADU. Therefore, the side yard entry is the most feasible means of entry for the single-unit dwelling and the ADU.
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.
Fact 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.
Facts in Support of Finding: 1. Facts 12 and 13 in support of Finding G are hereby incorporated by reference.
2. Facts in support of Finding H are hereby incorporated by reference.
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:
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1. Fact 11 and 12 in support of Finding G above is hereby incorporated by reference.
2. Although the Property allows for 6-foot tall walls in the side setback, the interior side
yards of the Property with the Project encroachments are designed with guard rails with glass material to minimize the visual impact from the neighboring properties and to soften the visual impacts of the building mass. Further, the entry stairs are comprised of three separate smaller stairs rather than two large connecting
staircases to lessen the visual impacts to neighboring properties.
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:
1. 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:
1. 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.
2. The Planning Commission of the City of Newport Beach hereby approves PA2022-0212
to allow a Variance and Coastal Development Permit, subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated herein by reference.
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3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community
Development Director in accordance with the provisions of Title 21 (Local Coastal
Implementation Plan), 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 NBMC and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the California Public
Resources Code. PASSED, APPROVED, AND ADOPTED THIS 20th DAY OF JUNE, 2024.
AYES: Barto, Ellmore, Harris, Langford, Lowrey, and Salene
NOES: None ABSTAIN: None
ABSENT: Rosene
BY:_________________________
Curtis Elmore, Chair BY:_________________________
Tristan Harris, Secretary
Attachment(s): Exhibit A – Conditions of Approval
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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. The Variance and Coastal Development Permit filed as PA2022-0212 shall expire unless
exercised within 24 months from the date of approval as specified in Section 20.54.060 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 and handrails located within the side setbacks (associated with the stair
encroachments) shall be constructed of glass or open material so that 40% of the
guardrails are open throughout. 9. Prior to the issuance of building permits, the Applicant shall submit a landscape and
irrigation plan prepared by a licensed landscape architect. These plans shall incorporate
drought tolerant plantings and water efficient irrigation practices, and the plans shall be
approved by the Planning Division.
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10. 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.
11. Prior to final building permit inspection, an agreement in a form approved by the City
Attorney between the 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 Owners and successors and assigns. 12. Prior to the issuance of a building permit, the 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.
13. Prior to the issuance of building permits, the property owner shall record a deed
restriction with the County Recorder’s Office, the form and content of which is
satisfactory to the City Attorney, prohibiting the use of the accessory dwelling unit for
short-term rentals (i.e., less than 30 days) and prohibiting the sale of the ADU separate from the principal dwelling. This deed restriction shall remain in effect so long as the
accessory dwelling unit exists on the property.
14. 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.
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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.
15. 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. 16. 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.
17. 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. Stockpiles 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.
18. 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. 19. 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
Mixed Use Property 45dBA 60dBA 45dBA 50dBA
Commercial Property N/A 65dBA N/A 60dBA
20. Should the Property be sold or otherwise come under different ownership, any future owners or assignees shall be notified of the conditions of this approval by either the property owner or the leasing agent.
21. Construction activities shall comply with Section 10.28.040 of the Newport Beach
Municipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday.
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Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays.
22. This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach Municipal Code.
23. To the fullest extent permitted by law, the 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 Pine Residence including, but not limited to a variance and coastal development permit. 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 24. 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.
25. 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.
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• 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.
26. 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.
27. 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.
28. Walls located below the Design Flood Elevation (DFE) shall be designed as breakaway
walls per the National Flood Insurance Program (NFIP) 60.3(e)(5). 29. Elevators shall be designed per the American Society of Civil Engineers (ASCE) 24
Section 7.5.
30. Stairs located below the DFE shall be constructed of flood damage resistant material
and be of open design per NFIP 60.3(e)(5) and ASCE 24 Section 8.1.
Public Works Department 31. The Applicant shall install a new sewer clean out on the existing sewer lateral per City Standard 406.
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32. The applicant shall relocate the water meter to the public right of way per City Standard
502.
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