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HomeMy WebLinkAbout02/07/20026 0 0 CITY OF NEWPORT BEACH Planning Commission Minutes February 7, 2002 Regular Meeting - 6:30 p.m. ROLL CALL Commissioners McDaniel, Kiser, Agajanian, Selich, Gifford, Tucker and Kranzley - AII present STAFF PRESENT: Sharon Wood, Assistant City Manager Patricia L. Temple, Planning Director Robin Clauson, Assistant City Attorney Rich Edmonton - Transportation /Development Services Manager Patrick Alford, Senior Planner James Campbell, Senior Planner Todd Weber, Associate Planner Ginger Varin, Planning Commission Executive Secretary Minutes: Motion was made by Commissioner Kiser to approve the minutes of January 3, 2002, and January 17, 2002. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None Public Comments: Postina of the Agenda: The Planning Commission agenda was posted on Friday, February 1, 2002. INDEX Minutes Approved None Posting of Agenda • City of Newport Beach Planning Commission Minutes February 7, 2002 • • SUBJECT: Newport Riverboat Restaurant 151 East Coast Highway • Use Permit 3684 Review of operations by end of January 2002 pursuant to condition of approval. Ms. Temple noted that this is a Planning Commission review of Use Permit 3684 as required by conditions of approval, to review the outside dining aspects of the project. A courtesy notice was sent to all potentially affected persons in the Linda Isle area. We have not received any complaints related to this operation nor any letters in response to the notice. Public comment was opened. Mr. Jack Schwartz, 89 Linda Isle, noted the following: • Things have improved since the new ownership. • Still concerned with two instances over the holiday period of amplified music lasting to 11:30 and midnight. My calls were not taken at the Riverboat, all he got was a recording. • Supposed to be posted above the doors on the Texas Room, is a sign stating, 'emergency exit only, do not use these doors, an alarm will sound.' That has never been posted. There is one in the salon downstairs and that is to keep people from going out onto the deck. • Ropes on the sides were never installed. If they have a function on the rear deck the ropes are supposed to be there to close off the front deck. • This permit should be extended temporarily for another year for additional review. Anthony Pesci, operator of the Riverboat answered: • Regarding the front deck I haven't used it at all except for the Christmas holiday, when we had tents up. Had the music gone on, time does fly by with the parties, so we might have gone over. • The museum was supposed to take care of the ropes and sign, it is an oversight that will be taken care of. • We are in compliance with everything else. • At Commission inquiry, he noted he would have no problem with coming back for another review in a year, but stated there have been no real complaints for the past year. Public comment was closed. At Commission inquiry, Ms. Temple noted that staff felt that since the Texas deck or the part facing Linda Isle had not been used very often during this period, staff really did not have an opportunity to see the operation as permitted by the use permit conditions. For this reason, staff believes we should review it after another year within which there will be more activity and we will be better able INDEX Item No. 1 UP 3684 Review in 01/2003 City of Newport Beach Planning Commission Minutes February 7, 2002 to evaluate the effectiveness of those conditions. Motion was made by Commissioner Kranzley to review this item January 2003. He then noted that any issues should be made known to the Planning Department as we all want this cafe to work. This vote would amend condition 31 to have a date of January 2003. Ayes: McDaniel, Kiser, Agajanian, Tucker Gifford, Kranzley, Selich Noes: None SUBJECT: General Plan Amendment Initiations • General Plan Initiation No. 2002 -002, and • General Plan Initiation No. 2002 -003 Initiation of amendments to the Land Use Element for the Newport Village and Shellmaker Island sites. General Plan Initiation No. 2002-002 for Newport Village: Ms. Temple noted that the Newport Village site, 12 acres north of the Central Library along Avocado on Newport Center, has been owned by the City approximately two years. The City Council recently held a joint study session with the Parks, Beaches and Recreation Commission to discuss three park sites, including this site. As part of the testimony, it was brought to the attention of the Council that we had never amended the Land Use Element Map and made the text reflective of the city ownership. As noted in the staff report, we will process this in a relatively short period of time and it is unlikely that the Planning Commission will see the park plans as they will go through the Parks, Beaches and Recreation Commission, unless the City Council wishes you to review them. At Commission inquiry, Ms. Temple added that the park planning and budget process would be done earlier than the General Plan update process. The existing zoning is for open space and the site is owned by the City and limited to park purposes. We are going to make the General Plan reflective of that. Public comment was opened and closed. Motion was made by Commissioner Kiser to recommend to the City Council approval of General Plan Initiation No. 2002 -002. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kranzley, Selich Noes: None General Plan Initiation No. 2002 -003 for Shellmaker Island: INDEX Item No. 2 G12002 -002 and G12002 -003 Recommended for approval City of Newport Beach Planning Commission Minutes February 7, 2002 Ms. Temple noted that Mr. Dave Kiff, Assistant City Manager was present as this proposal is one that he has been working on with both the State and County. He has a brief presentation if Commission requests. At Commission inquiry, Ms. Temple noted that whether this is to come back to the Planning Commission or not has not been discussed as this is not zoned land; there is a possibility. City Council has been involved in workshops on this as well. The actual General Plan Amendments on both Newport Village and Shellmaker Island will come back to the Planning Commission at public hearing. The project approval on Shellmaker may or may not. Public comment was opened and closed. Motion was made by Commissioner Agajanian to recommend to the City Council approval of General Plan Initiation No. 2002 -003. Ayes: McDaniel, Kiser, Agajanian, Tucker, Gifford, Kronzley, Selich Noes: None w «* SUBJECT: Appeal of Planning Director's Interpretation 213 Coral Avenue (Van Cleve Property) • (PA 2002 -002) An appeal of the Planning Director's interpretation of Section 20.62.040 (Nonconforming Structures) of the Zoning Code. Chairperson Tucker noted that the Planning Commission had a lengthy hearing at the meeting of January 17, 2002. The nature of the discussion ranged far and wide on the topic with a lot of details on the background of how this ended up getting to the Commission. Tonight, unless four Commissioners feel differently, I am hoping to confine the discussion to just the jurisdictional matter that is before us. That would entail an appeal of an interpretation of a Code Section whereby the Planning Director is vested with the authority to make that interpretation under the Zoning Code Section 20.00.065 A. If that interpretation is unacceptable to an applicant or person to whom the interpretation applies, then Section C of that some Section allows that particular aggrieved party to appeal it to the Planning Commission. That is the only authority before us. For us, the appellant filed an appeal on two portions of the Nonconforming Use Code. Section 20.62.040 C which has to do with the concept of the percentage of structural elements that were changed; and then 20.62.040 E, which has to do with whether or not an immediate repair was necessary. Those are really the only things before us, which is another way of saying that the pre - remodeled square footage is not relevant or before us, and past or current plan check or inspection procedures are not really before us either. We are only being asked to interpret a Code Section. Staff agreed. 0 lt:110 Item No. 3 PA2001 -002 City of Newport Beach Planning Commission Minutes February 7, 2002 Chairperson Tucker then confirmed with the Commission that they did not need to hear any other aspect of this then just the jurisdictional items before them. He then stated that he would ask staff if they had any further information on these narrow topics and then would ask Mr. Grable for any additional information that he did not give at the last meeting. Ms. Temple stated that staff wanted to complete the presentation that was prepared for the last meeting, which really is the Planning Department's comments specific to the jurisdictional items that are before the Commission in terms of the interpretation and the ideas proposed by the appellant in terms of an alternative way to view implementation of the Code. That would be all we have other than the additional information provided by Ms. Clauson. Mr. Patrick Alford, noted that the project site is in the approximate center of Balboa Island. He noted the following during a slide presentation: • Issue is an appeal of interpretation that the calculation of structural elements should be based on the linear footage of load- bearing walls. The applicant /appellant has made the following points: ❖ Retained footings should be included as structural elements. ❖ Since footings support the entire structure, they constitute at least 507o of the structural elements. Interpretation only considers exterior walls. • Interpretation disregards distinctions in the definitions of 'building,' 'structure,' and 'structural alterations.' :• Public safety exception should be granted due to the dry rot found on the site. • Dealing with the issue of footings as structural elements, there is no established methodology for determining a single element's importance in the structural integrity of a building; studs, joists, rafters, and beams all work together to support the frame of a building. Therefore, staff's contention is that the structure has to be viewed as a system. He then presented illustrations noting that while it is true that the weight of a structure is eventually transferred down to a foundation, the structure itself can not be supported unless all these elements work together to transfer that weight. • Key to this is the definition of structural alteration, which under the Zoning Code is any change or replacement in the supporting members of a building such as bearing walls, columns, beams or girders. Under the Planning Department's interpretation, the most commonly issue dealt with is the bearing walls. The percentage is calculated based upon the linear footage of bearing walls. • The applicant's interpretation is based on the role an individual component plays in supporting the load of the structure. Consequences of the applicant's interpretation are: The applicant has not identified the basis on which his estimate of the percentage of the structural elements that the footings constitute (i.e., load, area, volume). The percentage (25 -50- %) is arbitrary without any basis. INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 staff level is again work with the applicant to determine the percent and whether they have exceeded the 25% or the 50% limit. In effect, we would be starting over the process that we have gone through on the lineal footage and the bearing walls. Chairperson Tucker asserted that jurisdictionally, what is before us is an interpretation as to what is a structural element and what is the proper thing to measure, not what that measurement should be. Ms. Clauson added that the interpretation of the Code has manifested itself in a method of determining the percentages of alterations. Staff has not asked you to determine the percentage, but the appellant has. It is an issue that is being brought before you and staff is addressing that information for your review. It is connected to the interpretation. Commissioner Gifford noted that it seems what is before us is strictly whether the interpretation made by the Planning Director is legitimate, or not. And then the consequences that lead to the calculation of percentage just flows from that. The underlying task is just to determine whether the method was appropriate. Commissioner Kiser stated that what is being asked is whether the Planning Director's interpretation of the Section is a reasonable and appropriate way to interpret it. The appellant has suggested that there is a better way to do it. So it is relevant what the appellant suggests we do in modifying the way in which the Planning Director interprets that Code Section. If there is not something that is more reasonable on the table for us to consider, then we are going to have to come up with the justification for finding that the Planning Director's interpretation was not reasonable. Ms. Clauson said that is one way to look at it. What we are trying to say is that there might be other ways to interpret the Code even if you think that the Planning Director's way of interpreting the Code is correct, there might be others, then that is one of your alternatives. Commissioner Kiser stated what he is suggesting is that if the proposal of the appellant does not seem to be any more reasonable or appropriate than the Planning Director's interpretation then we're left in an abyss of finding what might be a more reasonable way to interpret our Code Section. There is one that has been used by the Planning Director, and if we are to find that is not reasonable, then it would be in contrast to what is being proposed. It is relevant that we look at whether there is a better way to interpret this Section. Commissioner Gifford stated that she thought the appeal was that the Planning Director's interpretation was not appropriate as a method of interpreting the code. We either find that it is or isn't. I can see that the result of our finding that it is or isn't leaves something definite in place because we are being asked to find that it isn't in light of certain proposals or alternatives that the appellant is making. Ms. Clauson's memo suggests that method would automatically INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 become a substitution for the method that has been used by the Planning Director and then read an excerpt from the memo: 'If the Planning Commission determines the Code requires consideration of the footings contribution to the structure of a building or that individual structural elements of a building including footings should be counted, then the Planning Director's method of implementing the Code will be changed to be consistent with that interpretation because Planning Commission's determination will be one of general application for all remodels of legal nonconforming structures....' I have the impression that we don't have the alternative to do a third thing, what we might find most reasonable. Commissioner Kiser said it is instructive to me to at least consider what the appellant proposes to fix the supposed unreasonable interpretation of the Code. If we hear a proposal for interpreting the Code Section in a different way and it sounds no more reasonable to us than what the Planning Director has been using, then it seems to me that is relevant in our considering whether the Planning Director's interpretation is reasonable. Commissioner Gifford noted that part of what the applicant is attempting to demonstrate are reasons why the Planning Director's interpretation is not reasonable. I don't have the impression that they are saying the Planning Director's interpretation is reasonable and so is theirs so there is no reason why theirs shouldn't be used. Commissioner Kiser noted that if what is being proposed by the appellant as being a more reasonable interpretation of the Code doesn't make sense to the Planning Commission, then the Planning Director's interpretation as it stands and has throughout this matter that is before us may appear to be something that is more reasonable than what is proposed. It is relevant; reasonableness is a subjective thing. We need to consider everything that is before us, for instance, the percentages that the appellant thinks that the foundation system should be of the structure of the home and whether that could be consistently applied. It all goes to again, how reasonable the Planning Director's interpretation is, I believe. Chairperson Tucker stated he is not sure that jurisdictionally the Planning Commission has the authority that you just described. The Section that is involved says, 'Where uncertainty exists regarding the interpretation of any provision of this Code, or its application to a specific site, the Planning Director shall determine the intent of the provisions.' That determination can be appealed to us. In this particular case, the intent of the Code, I don't think, has anything to do with the percentages if you will. It has to do with definitionally with what is a structural element, but I am not sure that we have the authority to start getting into the discussion on percentages. Our authority is only as set forth in this Code. It is not that the appellant does not have a remedy in some other jurisdiction, like the City Council or a court, but as far as the Planning Commission is concerned, our only authority is where uncertainty exists regarding the interpretation of any provision of this Code or its application to a INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 The applicant's interpretation can not be applied consistently to other projects. ❖ Not all remodels have this amount, of exposure or documentation on past remodels. Essentially, an applicant may not be able to provide staff information how much alteration occurred in the past. �'• Using the applicant's method we would require exposing wall sections and /or the excavations of foundations. ❖ This places a hardship on remodel permit applications. de 50% or more of a nonconforming building could be demolished and completely reconstructed by right. This is inconsistent with Chapter 20.62, which requires that nonconforming structures be brought into conformity in an equitable, reasonable, and timely manner. • Dealing with the issue of consistency with Zoning definitions: s> The assertion that staff only considers exterior walls is incorrect. • As indicated in previous testimony, we also look at interior walls and roof structural elements in the calculation of the percentage. ••r This is consistent with the definition of 'structural alteration',' which identifies 'bearing walls' as an example of the • supporting members of a building. 4- Footings are a part of the bearing wall, just not a separate element. The current method is practical and fulfills the intent of the Zoning Code. Dealing with public health and safety exception: The Building Director must determine that modification or repair is immediately needed to protect the public health or safety. ❖ The Building Director must determine that the cost does not exceed 50% of the replacement cost of the structure. ❖ The Building Director has not been asked to make these determinations. Chairperson Tucker noted that the issue of percentage is not before us. We are just interpreting whether something is a structural element, not what percentage of it is, assuming that we agree that it was a structural element. The appeal is not about what the percentage is. Mr. Alford answered that was correct and that the percentage was only used to illustrate how if this interpretation is followed, the eventual consequences of this might be to future projects. Mrs. Wood added that if the Commission were to agree with the appellant that staff should be looking at the foundations, then what we would have to do at INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 specific site, we review what the Planning Director determines is the intent of the provision. That doesn't sound to me that we are in the business of trying to decide if something is 25 %, 50% or 75% structurally altered. What should be included in the term, 'structural element,' I think is our only jurisdiction. Why don't we have the appellant come up. Mr. Grable, 895 Dove Street, Suite 400, NB., attorney at Buchalter, Nemer, Fields and Younger representing the appellant noted the following: • Written testimony has been presented to the Planning Commission. • Coming in after the fact where an inequity has occurred. • An interpretation has arisen that is causing the applicant to potentially demolish a portion of the structure and reconstruct it. • We are asking for a literal reading of the Code Section; you can't amend your codes through interpretations. • It might not be a better way of calculating this or not a way the City would like to have the result of being in this situation. The remedy is not to apply a subjective measure back against this property, the remedy is to amend the Code. Chairperson Tucker noted that as a jurisdictional matter, your basic position is that the structural elements includes the foundation. Once again, I don't think 40 that is part of what we are here to determine, what the percentage might be. The question is, does the term 'structural elements' include foundations, and if the Planning Commission was to decide it does, then this issue would go back to staff and the applicant to try to figure out what that means. He then asked about Section E2 Public Health and Safety, saying he had not heard anything on that issue. He reiterated that he is interested in staying with what is in front of us, we understand the hardship and that background. At the last hearing, we let everyone ramble on as much as they wanted and I would like to see us focus in on things that are actually within our authority to decide. There was a lot of things that were interesting, but there is nothing the Planning Commission can do about it. Mr. Grable noted: • The latest memo sent to the Planning Commission has a summary of the applicant's positions. • The practices on the island are to calculate the percentage of alteration and then once that is done, build it out in accordance with the plans and specifications; that was done. • The difficulty that arose from that is that in doing so we replaced rotted and damaged wood in the process which has caused this now to become an issue. • We have testimony from an independent architect, that that is a common practice on Balboa Island. We also have declarations from the local realtor and resident who is also a contractor. • If we can agree that is the way things are done, then we shouldn't be here arguing about it. R " City of Newport Beach Planning Commission Minutes February 7, 2002 • In reviewing your Code now that we have a situation where it might result in tearing down all or a portion of this building, what does the Code literally say? The Code only talks about modifications to structural elements. • The foundation is a structural element. A way to calculate it needs to be found. • It might result in a situation in the City where you might have more structures that can be remodeled than you like from a policy standpoint. The answer is, don't penalize Mr. Van Cleve for that, fix the Code. • The engineer can talk about the structural issue. • The method of calculating that or how much it is, really is not before you. • The issue of determination of public health and safety, we have a number of declarations and letters written testifying to the lack of structural integrity of this building before we started the demolition. • We can provide evidence to justify that at least 25% of the materials removed were for this very purpose. If that is the case, we have a remedy we can go through and apply for a modification or use permit and get this back on track. • The key point is, did that determination have to be made before the materials were removed, or can we now ask the Building Director to • make that determination, that it can be determined after the fact. • The Code does not say it can not be done after the fact. Chairperson Tucker read the language of Section E: 'Structural elements of a legal nonconforming structure may be modified or repaired if the Building Director determines that such modification or repair is immediately necessary to protect the health and safety of the public or occupants ...'. That sounds like he has to make the determination that such modification or repair is immediately necessary. That imparts to me that it is something you need to ask him about, not tell him about after it happened. Mr. Grable noted that if Mr. Van Cleve had known it was an issue, that would have been done. However, we did not know it was an issue at that time. We are asking the Building Director now. If there is evidence to demonstrate that, what would be the harm in demonstrating it now? Chairperson Tucker noted he does not read it that way. Jurisdictionally, a series of things that need to happen to use Section E, one of which is when the Building Director makes a determination. Commissioner Gifford asked staff if a determination had ever been made in any other case after the fact with respect to replacement due for health and safety reasons? Ms. Temple answered that during her tenure with the City, she does not recollect 40 such a determination ever having been made. 10 INDEX 0 City of Newport Beach Planning Commission Minutes February 7. 2002 Mr. Elbettar, Building Director answered that he has never been required to make a determination such as this during his tenure of five years. Referring to the staff report on page 6, Commissioner Kiser read that, 'it should be noted that the Building Director reviewed photographs of the framing taken by the applicant during the demolition phase. The building Director stated that there was no indication of dry rotted lumber, or that any dry rotted lumber present was an immediate public safety hazard. ...... I would like to have that statement confirmed. Mr. Grable interjected that the photos were not of dry rot, the intent of those photos was to show where the floor joists on the second floor had been cut down by previous construction. The engineer can testify to that. Mr. Elbettar, stated he agrees with the previous statement. These were the only photos taken and were not intended to support the dry rot issue. I want to state too, that I have not received as of today, and I emptied my in basket before I came here, such a request that we would evaluate the dry rot or materials removed or evidence otherwise. Mr. Grable noted he has covered the points he has made on structural elements. The engineer can now testify to this matter. Chairperson Tucker stated that after the engineer speaks, anybody else who has expertise and would like to testify, that would be fine. We have a lot of things in the way of declarations that are all well and good for some other authority, but don't really pertain to the limited areas that we can decide upon. It is not that they are not relevant, they are not relevant to us. I would like to listen to somebody who can testify as to structural elements and anybody who thinks they might have enlightenment why the Building Director can after the fact, make the determination as to the health and safety issue. He then brought it back to the Commission for discussion on hearing testimony on the E2 section as well as on the structural elements part. Chairperson Tucker asked if there was any interest on hearing further testimony on the public safety issue or if it was the Commission's interpretation that the Building Director 's review needed to happen before the former structural elements got removed? Commissioner Kranzley stated it was clear to him that this needed to be determined prior to the reconstruction of the project. The intent of the Code is basically to end the legal nonconforming uses at some point in time. The legal nonconforming uses should eventually conform. I don't think there is any other way to determine that Section of the Code with regards to when there is a public health and safety issue, whether it is determined prior to or post fact. It is clear to me. I1 INDEX . City of Newport Beach Planning Commission Minutes February 7. 2002 Commissioner Gifford noted that the Code is fairly clear on that issue but at the some time, we have a lot of things that come before us that have been accomplished and we are asked to subsequently grant the variance or the modification. One of the things I would be interested in is what the public health and safety issue is, because if it could be resolved, that makes the structural element moot. Whether Mr. Grable believes he has compelling evidence that he could present to Mr. Elbettar to make a determination to consider something and saying although this was not brought to our attention, there are potentially some mitigating factors for that based on our understanding of practice we are persuaded by the evidence that it was a serious situation and we will consider granting an approval after the fact. This building is sitting there now with nothing happening for the good of anyone, the City or the applicant. If there is an opportunity to find out if there is evidence that potentially would be persuasive to consider a post facto approval, then I would like to understand whether that would be worth pursuing. Chairperson Tucker stated the question before us on this item is do we believe that this Code Section can be /should be interpreted to allow for after the fact determinations by the Building Director. It should not have to do with the quality of the after the fact information, the question is either does it allow after the fact information or doesn't it. That is the legal question before us. 40 Commissioner Selich stated he agrees with Commissioner Gifford's comments, but that is between the applicant and the Building Department and does not involve the Planning Commission. For whatever reason the applicant has elected to approach the Building Department on that issue, I don't see it as something the Planning Commission should be involved with. Commissioner Kranzley noted his agreement with previous statement. Commissioner Kiser stated that we should not be hearing any evidence that might lead to a resolution after the fact by the Building Director. The first issue we have to resolve and decide is whether the Code Section intent is to allow the Building Director to do this after the fact. If our determination is yes, then we go to step two taking this evidence. If our determination is no, then we don't hear it. I don't think the Section allows for after the fact determination. That would be my vote on this issue. Commissioner McDaniel agreed with the previous comments adding that we should try to stay focused. Commissioner Agaianian concurred. Chairperson Tucker stated that on the issue of the after the fact nature, we will take testimony as to why our interpretation is wrong, but we do not want to hear about all the things that happened. For purposes of whatever arguments you want to make, we will assume that this thing was in terrible shape and a danger to all. Physical condition is not the issue, the issue is should you have asked the 12 INDEX • City of Newport Beach Planning Commission Minutes February 7, 2002 Building Director in order to take advantage of this Section and four of us are saying yes, that is what the Section says to us. Commissioner Kiser noted for the record that we should not assume that the building was about to fall down. I am concerned that someone could come back to the minutes and suggest that now the Planning Commission assumed the building was ready to fall down and I don't think that we should suggest that we are ready to assume anything. Chairperson Tucker answered that he was trying to not hear about the terrible shape of the building by assuming it was in terrible shape. Let's hear from the structural engineer on the issue of the structural elements. Shucri Yaghi, 112 East Chapman Ave., Orange, Consulting Engineer of the project noted that he had been called in during the demolition period to look at the existing lumber. He then noted the following: • Lumber was in very bad shape • Some areas could have been fixed and some areas needed to be replaced because it was in bad shape. • Changing the lumber for the same, it was not adding anything. Chairperson Tucker stated the issue is the structural elements in your opinion still remaining after everything that was demolished and taken away. The contention is that structural elements were still left because of the structural foundations. The staff is saying it should not include foundations. Mr. Yaghi stated the foundations is a structural element and the foundation supports the whole building. The building has to meet the 1997 Uniform Building Code (UBC) that is very strict in terms of earthquake and internal vertical loads. Everything needs to be tied down to the foundation, we use different frames and they all have to be tied down to the existing foundation. The existing foundation carries the majority of the building whether it is for every day use or during an earthquake. Continuing, he noted: • Designing a project in the City of Newport Beach we must meet the 1997 UBC. • Nothing that exists on this project, meets those UBC requirements, not even the anchor bolts. • There were some elements in the lumber that were real bad and could cause a safety hazard, for instance there was a beam that was 16 inches deep that was cut down to 4 inches; also the top plates that transfer the earthquake loads to the sheer walls that is 3'/2 inches wide has a 3 inch hole in it, so there is nothing left in it. Also, there is a hinge on top of the wall, evidently at one time this use to be a one story and another story was added by creating a hinge that could fall during an earthquake. Chairperson Tucker stated this is interesting, but we only need a narrow band of information tonight, and that is interpretation of a Code Section. 13 INDEX • City of Newport Beach Planning Commission Minutes February 7, 2002 Mr. Grable offered to help by asking questions of Mr. Yaghi, Commission agreed. Mr. Grable asked and was answered: Whether the foundation is a structural element of the building. What did you tell us? - Mr. Yaghi answered that the foundation carries the whole building. The role it plays with other structural elements comprises what percentage of the carrying of the entire structural load of the building? - Mr. Yaghi answered it carries the whole load, at least 50 %. What you are saying is that the foundation carries 100% of the load, since the balance of the structural elements are also carrying 100 %, then it must carry at least 50% of the total calculation. Does that make sense? Chairperson Tucker answered the percentage is not before us. He then summarized that the testimony of the appellant's expert is, the foundation is a structural element. Commissioner Kiser stated the staff does consider the foundations to be a part of the structural system of the home. Mr. Ian Harrison, 1936 Terrace View Lane an architect stated he was called because he does a lot of work on the island. He noted: • Arbitrary approach when dealing with the Planning Department on what is considered a remodel, how we all arrive at the 25, 50 or 75 %. • It has been practice on the Island where you replace old material because it is not cost effective, especially with molds. • Even a nail is a structural element. • To ask the Building Director to look at every stud, I think at that point, is typically not done. I have never come across that. • In this case, the building was so bad that it ended up being a lot more than anybody expected. It went beyond what is the normal practice and beyond anybody's control. • We are looking for an interpretation that the way the Planning Director looks at this percentage is valid but there is another valid interpretation. • By saying Mr. Van Cleve can go ahead with his building, it is not setting a precedent for buildings down the line. • The intent of the Code is not to eliminate nonconforming uses; you are allowed to do a 25% change to a nonconforming building in one year. Next year you could do another 25 %, etc. ad infinitum. • The intent of the law is not to do away with nonconforming buildings, it is to have some control over nonconforming buildings. Commissioner Kranzley disagreed stating there are three Commissioners who 14 INDEX • City of Newport Beach Planning Commission Minutes February 7, 2002 were actually on the committee that re -wrote that Code. I clearly understand what the intent of the Code is. Mr. Harrison answered that is not what is written, otherwise you would have limited how many nonconforming times you can come in and do it. At Commission inquiry, he stated that he has done at least 30 nonconforming buildings on the island. Mr. Grable then read a letter dated November 9, 2001 from Mr. Elbettar to Mr. Van Cleve regarding concrete slab on foundation as structural elements. Commission Gifford noted that by counting linear feet, you are counting all elements of the structural system. Therefore, you are not neglecting the foundation as a part of the system. At looking at exterior walls and the linear feet have certain repeating patterns and that would be included. I am not asking for your interpretation. Discussion continued on alterations of structural elements versus structural systems verbiage. Mr. Van Cleve, 93 Ocean Vista stated the following: • This is an unpopular issue. • If the foundation is part of the structural elements and by measuring the linear footage of the building, it includes the foundation and we have left 100% of the old foundation on the job, there is no way we could have removed 100% of the structural elements. It is that simple. • What might help for the future is to change the words structural elements to above ground structure or we change it to structural elements excluding the foundation. Then you could do linear footage. Then you would just measure and take out what is being done. If the foundation is part of the structural elements, we left it on the ground; everything new is tied into it. • 1 did everything that I felt was possible. I thought I did the right thing. 1 am not required to hire an on site architect and I didn't' hire one. 1 hired a design firm, the architect stamped the plans. 1 didn't get anything from the City saying that I had to know everything in the Code before I built my house. • 1 went by the knowledge of what I ran into, experience, and what I did. • My plans were approved April 6, 2001. • 1 called the Building Department when I started the demo and let them know I was going to have to reengineer the whole thing. • May 3rd, I brought the new structural plans to the City that showed a complete new second floor and a new roof and 75% of the ground floor being changed. 15 INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 Chairperson Tucker stated that this is veering off the issue, you are giving us the historical information that the Planning Commission has seen in the documentation. Really that is something that we can not deal with, but there are other bodies where you can go and make those arguments. The Planning Commission has to deal only within the Zoning Code. You have other issues that are beyond zoning issues that are appropriate for somebody else. Mr. Van Cleve concluded, asking forjustice. Mr. Grable asked Mr. Elbettar for clarification on a public safety removal before or after the fact. Mr. Elbettar stated the issue of replacing dry rot wood is not a main concern for the Building Department for a conforming structure. This exception is part of the Zoning Code and only becomes an issue when the structure is nonconforming and then you need to remove beyond a committed percentage that you committed to already on the plans. You have to now exceed that because you have found dry rot. That is a unique issue and has never happened in my tenure. Ms. Temple noted that the Planning Department uses the perimeter measurement as the most readily understandable enforceable and likely to . yield a conclusion that is a reasonably effective way of having a consistent administration of the Code. When the percentages of removal start to become fairly close to any one of the thresholds or slightly exceed certain of those thresholds, we will allow the architects to provide us further information on the interior bearing walls to add to the calculation and also, will consider maintenance of the roof or preservation of portions of the roof as factors in the calculation. But those only come into play when the initial calculations result in one of those thresholds being exceeded by a small degree. This has been done in the past. Mr. Grable concluded by saying his client is in a difficult situation. In order to get past this situation, we ask that you take a very close look at the literal language of the Code. While it might not be the best interpretation, or for the purposes the City would like to have here, or might not be the easiest one to administer, because of the consequences to Mr. Van Cleve, we think we are entitled to a literal reading of the Section. The literal reading is you count the structural elements, you can't pick and choose which one you want. Glen M. Lewis, 205 Agate Street noted that he had been interested in this house prior to the current owner buying it. He stated that he had inspections done and found numerous holes in the roof that had caused inside the home several water stains on the plaster. The walls inside were very bad. He then discussed what procedures he followed as a working contractor. • Ms. Clauson clarified for the record on the reading that Mr. Grable did from that letter dated November 9th, at the time when we had originally met there was an 16 INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 assertion that the slab constituted a percentage in the structural element. That letter was the statement that the City had never considered the slab. I know it says slab on foundation, but the focus was on the slab. If you look at Mr. Yaghi's certification, he says the slab is not part of the foundation. Chairperson Tucker, for the record, then read a prepared statement on his view of the matter: We have heard extended testimony about the house construction at 213 Coral on Balboa Island. The only issue before us is the appeal of an interpretation of the Planning Director of Zoning Code Section 20.62.040. The appellant contends the term "structural elements" as used in Section 20.62.040 C includes footings of the building on the subject property, which existed before the commencement of a remodel for which a building permit was issued by the City. The staff contends that structural elements should not include footings, but only exterior perimeter walls and in certain cases interior structural walls. The staff contends that the staff's interpretation has been consistently applied and is capable of being objectively determined in each remodel situation which presents itself to the Planning Director. The Planning Commission derives its authority from Sections 20.00.065 ABC. • Section A provides that "Where uncertainty exists regarding the interpretation of any provision of this code or its application to a specific site, the Planning Director shall determine the intent of the provision ". Section C provides that an interpretation of the Planning Director is appealable to the Planning Commission. Accordingly, the Planning Commission has no jurisdiction over past or current plan check or inspection procedures since they do not involve interpretations of the Zoning Code per se. Nor is the pre - remodel square footage relevant to the issue of code interpretation which is before us. The Planning Director interprets that the intent of Section 20.62.040C is to establish the degree of modification to a nonconforming structure which may occur, by right, with a modification or with a Planning Director use permit. The appellant concurs with this interpretation of intent (which is the expressed jurisdiction of the Planning Director), but contends that the Planning Director has not properly interpreted the term "structural element" in that Section. The term "structural element" is not defined in the Code, although the term "alteration, structural" is defined by way of examples which are not exclusive. Absent a statutory definition, the plain meaning of the term "structural element" should guide us. The staff also points out that the Section 20.62.010 intends that expansion of nonconforming structures be limited with the goal of bringing them into conformance with code requirements. However, Section 20.62.040 C does allow structural elements of nonconforming structures to be "modified or repaired" in such a fashion that their useful life could well be extended. 17 INDEX • City of Newport Beach Planning Commission Minutes February 7, 2002 We have also received substantial evidence both from staff and from the appellant that footings are structural elements of a building, albeit the determination as to what portion of such structural system is difficult to determine. The staff's resistance to including footings seems to be two -fold. First and foremost is that it would be difficult to determine as compared to the present staff administrative approach. The second seems to be an interpretation that structural in the present context means above the ground structures (as opposed to below ground facilities such as foundations), although foundations are part of the building permit process and not part of the grading permit process. Based upon the above, I would find that foundations are structural elements and should be included in the computation as to the portion of structural elements which remain. However, in doing so, the analysis should also include the fact that the original foundations appear to have been supplemented in a material respect by new footings and walls which appear to be bearing a very significant portion of the weight of the new building. It may well be over 75% of the structural elements of the new building are new and not the old foundations which appear to have been supplemented in a very material way. This percentage determination will need to be worked out between the staff and the appellant since this issue is not part of the appellants appeal and therefore is not before us tonight. 1 would also find that no substantial evidence was presented to support appellant's position that repair of the structural elements was immediately necessary under Section 20.62.040 E. Jurisdictionally, Section 20.62.040 E, by its very terms, may only be invoked "..if the Building Director determines that such modification or repair is immediately necessary..." The use of the word "is" imparts the meaning the Building Director needs to have made his decision before the work is performed. There is no evidence that the Building Director was ever asked in advance. I would recommend that staff come forward with an amendment to Section 20.62.040 C to define structural element as used in this section. Since this is an exception to a general rule, it would seem that staff's past approach to the interpretation is supportable, but needs to be codified. Structural element in my opinion could be defined as above ground elements which include perimeter and interior walls as staff has used in the past. I would also recommend to staff that a separate building permit application be used for nonconforming structures which recites the rules and that a nonconforming structure which is excessively modified will not be considered a nonconforming structure. Further the building inspectors should be trained to refer any plan changes on nonconforming structures immediately to the Planning Department for concurrence or action. • Commissioner Selich noted he agrees with some things that were just said and some he does not agree with. We are being asked to overturn some 25 years of 18 INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 the way the Zoning Code has been interpreted. It is the convention that has been used. In my opinion, the applicant has not presented any compelling evidence to overturn that, I think that staff has presented reasons why their methodology is reasonable. To get in here and start splitting hairs on structural elements, this time we deal with footings, the next time someone will come in and complain because the anchor bolts were not considered, or earthquake braces. Where is it going to end? We are dealing with remodeling on older buildings in the City that there is varying degrees of information on. It is not a building permit process, it is a method that was devised in the re -write of the Zoning Code which Commissioner Kranzley and I served on as a way to go towards the elimination, contrary to what was testified here, the elimination of nonconforming buildings but still provide for a reasonable way for them to be maintained. We argued a lot over that whole issue and was probably one of the more contentious things we discussed in the Zoning Code rewrite and we came up with this procedure as a reasonable way to deal with this situation. I am in support of the staff's interpretation and maybe some of your ideas of putting more things down in writing and clarifying some things, 1 can think of some other things in addition to what you are suggesting could be done. However, I don't think those are the issues that are before us. The issue is the methodology for interpreting this provision of the Zoning Code. The applicant's methodology may be a proper one in some circumstances, there are probably 20 or 30 other methodologies that you can come up with. I think the one that the Planning Department chose is the most practical and reasonable way for us to deal with this remodeling issue, particularly given the fact we have so many of these older buildings where we don't have a lot of information on them. support upholding the Planning Director's interpretation. Commissioner Kranzley stated that in 1973 the residents of Newport Beach and Balboa Island decided, after a number of public hearings, that they wanted to keep Balboa island quaint. They actually down zoned, that is a huge deal in this town, the amount of square footage that they could have on the island. This house at the time became legal, nonconforming because it was built before 1973 and nonconforming because it is too large. What the citizens want on Balboa Island is to see these big houses get smaller. Contrary to what Mr. Harrison says, we do have a very liberal policy about the work that can be done, but if a house falls under such disrepair that the only way for the house to stand up is to scrape the entire house, that absolutely flies in the face of the intent of the Zone Code. To completely tear down the house and rebuilt it, completely goes against what the citizens of Balboa Island wanted and what the citizens of Newport Beach wanted back in 1973. 1 would absolutely support the interpretation by the Planning Director. Commissioner Kiser stated he agrees with everything said by Commissioner Selich and Commissioner Kranzley. The Planning Director's interpretation of the Code Section and the way in which the Planning Department calculates the amount of the structure that is being altered is very reasonable and easy to understand. In fact, it gives the applicant a chance to try to keep structural element alterations under the defined percentages. I support the Planning 19 INDEX • City of Newport Beach Planning Commission Minutes February 7, 2002 Director's interpretation and while this may be an unfortunate situation, I don't think we should go about torturing our own system, which I believe to be very reasonable. Commissioner Gifford stated that the matter of health and safety is taken care of. I believe the Planning Director has made a reasonable and fair determination in her application and understanding of the intent of the Code with respect to nonconforming structures and remodels. I think that the interpretation that the Planning Director has applied results in something that is very coincident with the intent of the Ordinance. I think the interpretation that the applicant urges and I understand that hard circumstances make a strained interpretation, but I think it would result in an absolute total negation of the intent of the Ordinance and the Code. I support the interpretation of the Planning Director so that the intent of the provision can continued to be administered and upheld. Commissioner McDaniel, noting that everyone else has been much more eloquent then he could, stated that he sees no reason to overturn staff's interpretation. Commissioner Agajanian stated he supports the reasonableness of the decision • that the Planning Director has made. If there is any relief to be found with this project, it will probably be with the City Council. Ms. Temple stated that at the last meeting, a draft resolution was distributed. I was prepared for majority action. The Planning Commission reviewed the draft. Ms. Clauson clarified that if there is a determination by the Commission on an interpretation of that section then you would include that in the motion. I don't know if that is in the resolution. The motion would be limited to your interpretation of whether the Building Director is authorized under the Code to make a post determination rather than a prior determination. Whether they were asked or what determination they made here, there really is not a way for you to review his determination, once he makes it. It is just an interpretation of whether the Code gives him the authority to make it after the fact. We would deal with the public health and safety issue as well as the reasonableness of the measurement issue both in the same motion. Ms. Temple noted that if that is the case, you could direct staff to add one more 'section' which would be specific as to the ability of the Building Director to make such a determination after the fact. Motion was made by Commissioner Kiser to adopt Resolution 1548 supporting the Planning Director's interpretation of Section 20.62.040 of the Zoning Code in the form that was distributed at the last meeting and just reviewed. • Commissioner Agajanian stated there is nothing on the resolution that speaks to the second issue of the health and safety. 20 INDEX . City of Newport Beach Planning Commission Minutes February 7, 2002 Ms. Clauson stated that was correct. You could either ask for the motion to be amended to include that interpretation or if you wanted to make a separate motion with that determination. Without amending the current motion, there is just direction to what the Planning Commission's thoughts are. Commissioner Kiser asked if this is something that we could do, was it in front of us and did we have public hearings on this or are we getting afield of this. Ms. Clauson answered that it has been brought before you by the appellant. You are in a way interpreting the Code, obviously it is not before you or the jurisdiction is not before you to make the decision for the Building Official or to tell the Building Official to make the decision, but you do have the ability to interpret the Code as to whether or not the Building Official, can make this determination after the fact. Commissioner Kiser said this was a very narrow area that we noticed and had public hearing on because of the contentiousness of the matter. Ms. Temple clarified that while the discussion in that Section does grant the authority on the determination to the Building Director, the provision is in Title 20, • the Zoning Code. It was part of the issues raised in the appeal letter, so in terms of providing staff guidance on the administration of that as to whether a determination can be made before or after the fact, I think that is entirely within the Commission's jurisdiction. Commissioner Agajanian asked the maker of the motion to modify the motion to include the thought that the provision for the health and safety be interpreted to mean prior to any action rather than an expo facto application or something to that effect. Commissioner Kiser noted he would amend his motion if everyone is in accord. Commissioner Agajanian restated the amended motion. The amendment is to interpret the health and safety issue to mean that any applicant needs to get a determination from the Planning Director prior to demolition as opposed to after. Mr. Elbettar offered a clarification to the language saying that the use of the word demolition implies a whole demolition, I think we should use the word removal of said elements rather than just demolition. Ms. Temple added that we would incorporate in item 9 verbiage that would state, 'Pursuant to Section 20.62.040 E2, all determinations made related to this Section shall be made before the removal of any of the structural elements in question.' 21 INDEX . City of Newport Beach Planning Commission Minutes February 7, 2002 Commissioner Kiser amended his motion to incorporate the amendment that Commissioner Agajanian proposed. Ms. Temple read what will be new condition 9 on the resolution that we will be adopting and I have accepted that as part of my motion. Ayes: McDaniel, Kiser, Agajanian, Gifford, Kranzley, Selich Noes: Tucker a) City Council Follow -up - Ms. Wood stated that at the City Council meeting of January 22nd both the design standards for mobile homes and the PC text amendment for Camco Pacific were approved; the City Council initiated the amendments to the general plan and zoning for the Regent Newport Beach project. b) Oral report from Planning Commission's representative to the Economic Development Committee - none. C) Report from Planning Commission's representatives to the General Plan Update Committee - Commissioner Kranzley stated that we got about 250 applications for the General Plan Update Committee. There is a lot of interest in the City to be on this committee; we will have selected the committee by this coming Monday aft ernoon. d) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - Commissioner Kranzley asked about the mobile home park on Coast Highway before you go over the bridge on the right hand side. I can't believe it is in compliance with health and /or building /zoning codes. Ms. Temple answered that we probably conduct more health code enforcement on various issues at that location than any other parts in town. She will bring back an update. Commissioner Selich asked for a report from staff on how many other cities in Orange County follow the general plan initiation process that we have. After watching Marina Park issue, it is the most ridiculous thing I have ever seen. Being a developer for 20+ years, in most place all you have to do is file an application and not go through two meetings like we do. e) Matters that a Planning Commissioner may wish to place on a future agenda for action and staff report - None. Status report on Planning Commission requests -. None. g) Project status - None. 0 h) Requests for excused absences- None. 22 INDEX Additional Business • City of Newport Beach Planning Commission Minutes February 7, 2002 • • INDEX +is ADJOURNMENT: 9:00 P.M. I Adjournment EARL MCDANIEL, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION 23