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HomeMy WebLinkAbout12/06/2007"Planning Commission Minutes 12/06/2007 CITY OF NEWPORT BEACH Planning Commission Minutes December 6, 2007 Regular Meetinq - 6:30 p.m. Page 1 of 8 "http: / /www.city.newport- beach. ca. us /PinAgendas /2007 /mnl2062007.htm 06/20/2008 INDEX ROLL CALL Commissioners Eaton, Hawkins, Cole, Toerge, Peotter and McDaniel Commissioner Toerge was absent; all others were present. STAFF PRESENT: Sharon Z. Wood, Assistant City Manager David Lepo, Planning Director Robin Clauson, City Attorney David Keely, Senior Civil Engineer, City Traffic Engineer Patrick Alford, Senior Planner Brandon Nichols, Associate Planner Ruby Garciamay, Planning Department Assistant Ginger Varin, Planning Commission Secretary and Administrative Assistant PUBLIC COMMENTS: PUBLIC COMMENTS Chairman Hawkins noted a meeting in connection with the proposed new Group Residential Ordinances for a Study Session will be held on Tuesday, December None 11th, between 4 p.m. and 6 p.m. in the City Council Chambers. The public is welcome. POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on November 21, 2006. HEARING ITEMS SUBJECT: MINUTES of the regular meeting of November 15, 2007. ITEM NO. 1 Approved Motion was made by Commissioner Cale and seconded by Commissioner Toerge to approve the minutes as corrected. Ayes: Eaton, Peotter, Hawkins, Cole, McDaniel, Toerge and Hillgren Noes: None I Absent : None SUBJECT: Coastal Residential Development Permit No. 2006 -003 (PA2006- ITEM NO.2 78) PA2006 -278 1703 W. Balboa Blvd. Continued The applicant requests approval of a Coastal Residential Development Permit (CRDP) to allow the demolition of a 10 -unit apartment building in the City's Coastal Zone. The apartment building is proposed to be replaced by three detached Ingle- family homes. The purpose of the CRDP is to ensure compliance with Government Code Section 65590 (Mello Act) which regulates the demolition of low and moderate income dwelling units in the Coastal Zone. Mr. Lepo noted that staff has requested that this item be continued to allow for the Page 1 of 8 "http: / /www.city.newport- beach. ca. us /PinAgendas /2007 /mnl2062007.htm 06/20/2008 "Planning Commission Minutes 12/0612007 of the Feasibility Study. was made by Commissioner McDaniel and seconded by Commissioner yes: Eaton, Peotter, Hawkins, Cole, McDaniel, Toerge and Hillgren Noes: None bsent: I None Planned Community Text Amendment No. 2007 -004 Amendment to Newport Tract Map No. 2004 -001 919 Bayside Drive applicant requests to amend the Bayside Residential Planned Community irict Development Regulations (Planned Community Text No. 55) to implement conditions of approval of the Coastal Development Permit for the development 17 -lot single - family residential subdivision. Changes to the Planned nmunity Text are also proposed to simplify the administration of the Planned nmunity development regulations. To ensure consistency with the amended fined Community Text and conditions of approval of the Coastal Development mit, the applicant further requests amendments to Newport Tract Map No. 4-001 (Tentative Tract Map 15323) and the conditions of approval of said map. Planner Brandon Nichols gave an overview of the staff report. The changes are proposed: community is no longer proposed to be gated; all streets, sidewalks and ways open to the public; new sidewalk added in the interior to serve the :lopment; Lot G provides additional access to the walkway adjacent to the h -end of the development and easement or public access will be placed to ire public use. finds these proposed changes to be in substantial conformance with the ial approval. of McDermott from Government Solutions, representing the applicant, noted concurrence with the staff report. She requested that this item be heard at the cial Council meeting in December if at all feasible. Hawkins asked about the walkways. s. McDermott answered the access comes from the street along the public tewalk directly onto the public street within the subdivision. There is an sement between lots 5 and 6 that goes directly to the cantilevered walkway iding to the ramp. We were required by the Coastal Commission to provide that d the parking on the street is also public. There is a loop street that has access the lot driveways and the 19 public parking spaces on the site as well as access wn to the water. Hawkins asked about lot consolidation. McDermott answered that someone may come in and buy two lots but it sins to be seen whether the Coastal Commission will allow that without an tional approval. irman Hawkins expressed his concern of someone consolidating all the lots one parcel and exceeding the MFR and height limits. PA2007 -165 Recommended for approval to City Council Page 2 of 8 "http: / /www.city.newport- beach. ca. us /PinAgendas /2007imnl2062007.htm 06120/2008 "Planning Commission Minutes 12/0612007 Is. McDermott answered the provisions built in the PC text and the language iat there there be no more than 17 lots should cover your concern. Complete onsolidation would not be feasible due to the street configuration that has been pproved in the Tentative Tract Map. If you want to say not less than 10 or even 2 units would be fine. She then noted the Coastal Commission has approved the W as it is written, so if there is to be a limitation, requests that it be placed on the entative Tract Map or conditions of approval attached to the PC text as that rould make the implementation simpler due to the processing we are doing at Hawkins noted his agreement with the limitation. comment was opened. comment was closed. Toerge asked about the setback differences. Lepo answered that they are consistent with the setbacks on the previously roved map and PC text. Three feet should have come off each of the setba :h is attributable to the part of the walkway that is not cantilevered. 3tion was made by Commissioner Peotter and seconded by Commissioner Cole adopt resolution recommending that the City Council approve Planned mmunity Text Amendment No. 2007 -004 and approve amendments to Newport act Map No. 2004 -001. Lepo verified that the motion includes the minimum lot number on the Tract ). The maker of the motion declared this is not part of the motion. Hawkins noted his concern of huge homes being built. McDermott noted that with the adoption of the PC, which is already on the erty, there is no MFR restriction or allowance. Hawkins asked if the applicant would accept a number of lots. McDermott noted it would be acceptable. motion was called for and approved as recommended by staff. Eaton, Peotter, Hawkins, None None Joyce LCM RedWillow residence (PA2007 -152) 418 Redlands appeal of the Zoning Administrator's decision to approve Modification Permit 2007 -060 on property located in the R -1 District, which would permit the mir !rior remodel of, and a 1,203 square -foot addition to a nonconforming single - iily dwelling unit that encroaches 13 feet, 8 inches into the 20 -foot required fr 1 setback. Hawkins noting the a -mails sent between one of the Commissioners ITEM NO.4 PA2007 -152 Denied Page 3 of 8 "http: / /www. city. newport- beach. ca. us /PlnAgendas/2007 /mnl 2062007.htm 06/20/2008 "Planning Commission Minutes 12/06/2007 the appellant and asked the City Attorney if those communications rose to a I that they might create a conflict for the Commissioner. nt City Attorney Aaron Harp answered that he had seen the emails n Mr. Higman and Commissioner Eaton and does not believe there is any or bias. >. Brown gave an overview of the staff report. At inquiry by the Assistant City .omey, she added that the first Zoning Code was adopted in 1936, which tablished a 20 -foot front yard setback on all R -1 lots. The Zoning Code was dated in 1943 and at that time a districting map was codified with a 20 -foot front rd setback called out on lots on Redlands. In conclusion, she noted staff tuests that the decision of the Zoning Administrator be reversed and >dification Permit No. 2007 -060 be denied. Commission inquiry, Ms. Brown noted that there are no plans on file for this tress on site. imissioner Eaton noted the email correspondence from Mr. Higman was cruse he had forwarded his questions to staff and had copied both the ap appellant. nissioner Cole noted the letter from the attorney representing the applicant this is a legal non - conforming structure. He asked if these statements had addressed. >. Brown noted these were not addressed directly; however, the records don't vide anything that would make the structure as a legal non - conforming ucture in that the Zoning Code did not change, nor did the rules and regulations place in 1946 change. tent City Attorney Harp added that a building official would not have the to waive setback requirements. That is a case that has been litigated at times here in the City and we have gone to the court of appeals and have successful every time. 1r. Will Higman, appellant, noted he agrees with the recommendation in the staff ;port. He noted the issue is whether the property is legal or not legal and that as to do with the modification permit that was granted in 1979 that was valid for 8 months after the application. Continuing, he noted excerpts of the staff report. Commission inquiry, Mr. Higman added: paid an appeal fee; there are no practical difficulties associated with this perty as it is a standard lot size; this modification would not be compatible with Ming properties as all other houses are within 1 or 2 feet from the setback; the posed addition would not be compatible with the neighborhood because by necting the two buildings at a two -story height it will be the longest building on lot in Newport Heights by approximately 13 feet 6 inches; his property does get enough sun during the winter due to the house sticking out and shades his perty and the airflow to the property would be restricted with an extra 13 feet 6 Sontag, attorney representing Ms. Red Willow, noted: legal versus illegal non - conforming issue has come up in this matter; he had Page 4 of 8 "http : / /www.city.newport- beach. ca. us /P[nAgendas /2007 /mnl2062007.htm 06/20/2008 "Planning Commission Minutes 12/06/2007 red modifications that have been permitted for the past few years; this is a s change in how the City will grant modification permits and will affect the City; Ms. RedWillow has followed all the rules in this matter and has had g to do with the non - conformity of the structure nor the modification fed in 1979 nor the work done in 1980/1981. RedWillow had applied for the permits and they were granted about half a ago, and now this issue has come up. mtinuing, he noted her home is 60 years old; how is it fair or equitable to deny r a modification permit based on a brand new standard that nobody in this City s been held to; the City knew where this house was going to sit when it was ilt; does not know why the City allowed this to be done; from an equitable point view, the Commission cannot say this is an illegal non - conforming structure; we nsider this legal as it was done with a permit and there was a 1979 modification rmit issued. t is a relatively major change in how the City is going to issue modification sits in the future needs to be studied as there will be a number of people ,ted by this change. In all the permits he looked at, there was no indication these were legal non - conforming structures and so many of those permits, be all of them, would not have been granted with this new standard. He Auded saying that his client should not be penalized for staff coming up with ething that is brand new and it is the first time this issue has ever come up rding a modification. He referenced his letter brief dated November 28th. Cole asked about the permits he had researched. Sontag answered his letter references only those dealing with structures that non- conforming due to encroachment of various setbacks. He noted a finding whether Ms. RedWillow's home is legal or illegal. Harp asked if he had determined if any of the researched permits were legal. Sontag answered that issue was not raised so you could not tell if they were I or not. There was no analysis reflected in the files on the issue of legal or - leaal. ier Cole asked if there is a process to determine whether a non- use is legal or non - legal. Is that something that by definition has to be in the modification process? Harp added he would not expect there to be a modification permit that had n denied based on it being illegal because it should not be at the modification Cole asked when this is determined. r. Lepo answered that anytime an application comes in, the planner who is in large of the review goes through the files to see previous actions on the record A determine if there is any bootleg work that was done. Modifications are )proved for heights, fences, etc. There was some question in the interpretation )out the effect of a prior modification and what affect the granting of that odification had if the structure was non - conforming at that time. A prior odification approval does not make a non - conforming structure in conformance, is only that portion of the building that the modification was granted for. You Page 5 of 8 "http: / /www.city.newport- beach. ca. us /PlnAgendas /2007 /mnl2O62007.htm 06/20/2008 "Planning Commission Minutes 12106/2007 ould need to look at the applicant's referenced modifications to see if there were for modifications. I don't think there are any of those that you would find a pre - cisting encroachment as extensive as what we have here. There has never beer problem such as this before. The issue of non - conforming status came about ae to the appeal and had not been looked at before as it was not in question. missioner Cole noted his concern that this may be an arbitrary decision by as speculated by the appellant because it was brought to attention by the . Sontag commented that in this case that determination was not made. It was t made in the letter that was sent in July nor made at the hearing in August nor s it brought up in the original staff report. This issue of legal versus illegal came for the first time at the October Planning Commission meeting. Staff did not k at this issue and is not part of any of those files that I had researched. irman Hawkins stated the position that because it is never looked at and we s the modifications that have been approved let's assume, illegal structures, makes the illegal structure legal. Is that what you are saying? Sontag answered it is unfair to my client to make her the very first person in City to be burdened with this type of standard. If you are going to change the idard, I believe you need to give notice to people who may be applying for lification permits in the future. nan Hawkins noted we need to give someone the process for an illegal are or an illegal use; we need to give them notice that we are going to have Enforcement enforce our Code, that is what you are telling us. r. Sontag answered we are talking about a non - conforming structure. There wa: building permit that had plans that clearly showed the encroachment. Staff may correct, but I am asking for equity. I don't believe this standard has been ;plied anywhere else. rman Hawkins noted the standard is if you have an illegal structure and gone is applying for another modification of this illegal structure, should you t that modification given the illegal structure? I don't know that that is some ial standard, special review. If it occurs you find you have an illegal structure, would you grant the modification? The possibility is that the reason that ig has not been made is all the structures were either legal or legal non- Sontag noted it is a finding that has to be made. It is unfair to burden his a brand new standard. airman Hawkins noted the findings that need to be made for a modification is in Ordinance and you are suggesting because it is not in our Ordinance that we not apply the fact that an illegal structure is illegal. Harp added if this had been a legal non - conforming, we wouldn't have it as of the findings for granting this modification permit, we would just go through analysis. The only reason the issue is being raised here is because after we c a hard look at it, we determined it was illegal. That issue should have been ie up front and the modification application should not have been accepted. It sn't impact the propriety of applying a standard. Page 6 of 8 "http: / /www.city.newport- beach. ca. us /PlnAgendas /2007 /mnl2062007.htm 06/20/2008 "Planning Commission Minutes 12106/2007 missioner McDaniel noted that there has been building on this property that done without permits. Harp added yes and there have been structures built there that encroach into public right -of -way that did not receive any building permits. mmissioner McDaniel noted the Commission makes the determination of any Aication to get as close to compliance as possible. This is another time when opportunity has come before us and we will take whatever action we feel is .essary if this does go to something that is built that it will be made to conform closely as possible. imissioner Eaton noted the new General Plan has language in Policy 6.2.2 h made the distinction between legal and illegal non - conformities. This is the issue before the Commission. We need to find conformity with the General y Porter, local resident noted that staff has not been able to find in the records this was not a permitted structure and was not granted a variance. They are ;ing the assumption that it is an illegal non - conforming structure. In fairness, should be allowed to move forward and do what she wants to do. Staff is :ing assumptions on no facts and it has been brought to your attention. She an old 1946 plumbing tag; would that have happened if the papers were not in :r for the entire structure? Aerial photos show the structure and nobody has that should not be. He asked that the Commission adopt a resolution to allow application. comment was closed. >ioner McDaniel noted this application is not fixing a bunch of things that t have the opportunity to fix. There are too many things wrong with this and he does not support adding anything on this site. He noted he denial. ) mmissioner Hillgren noted the last staff report referenced Land Use 6.2.2 that 3tes legal non - conforming residential structures shall be brought into conformity an equitable, reasonable timely manner as re- building occurs. Limited iovations that improve the physical quality and character of the building may be owed. That is not in the current action tonight, is there a reason why? It was in prior version. noted this language is contained in the revised resolution on page 2 of 3 as was made by Commissioner McDaniel and seconded by Commissioner i to reverse the decision of the Zoning Administrator and deny Modification No. 2007 -060 for the property located at 418 Redlands Avenue (PA2007- Hillgren suggested refunding the fee by the appellant. Lepo noted there was an extensive amount of staff work done on this appeal. )tever the basis, the appeal fee typically covers this staff time. McDaniel noted this is what the process is and does not support a Page 7 of 8 "http: / /www.city.newport- beach. ca. us /PinAgendas /2007 /mnl2062007.htm 06/20/2008 "Planning Commission Minutes 12/0612007 Chairman Hawkins stated this is an illegal structure and the Commission is not imposing a new standard on this structure. An illegal use or illegal structure is just that and the issuance of a permit, modification or building or whatever, will not serve as an estoppel or waiver by the City or somehow the Planning Director referencing a discussion that somehow converted an illegal structure to a legal structure. An illegal structure needs to be upgraded, changed so that it conforms and that is what we don't have here. If we assume this structure is legal non- onforming I think there are many reasons why the Modification Permit granted as ill- advised. I don't think it complies with the General Plan and to the extent we ere to grant a modification on a legal nonconforming structure, we would hope he applicant would take steps to upgrade the structure to make it more nforming. That isn't happening here. I understand that there would be ubstantial problems in compatibility with the neighborhood and the proposed tructure adversely affects the health and safety of the persons residing in the eighborhood and would be detrimental to the general welfare and or injurious to roperty and improvements. yes: Eaton, Peotter, Hawkins, Cole, McDaniel, Toerge and Hillgren Noes: None Absent: None ADDITIONAL BUSINESS: ADDITIONAL BUSINESS a. City Council Follow -up - no City Council meeting since the last Planning Commission meeting. b. Report from Planning Commission's representative to the Economic Development Committee - Chairman Hawkins noted there was no meeting. C. Report from the Planning Commission's representative to the Genera Plan /Local Coastal Program Implementation Committee - Commisisone Eaton reported no meeting. Matters which a Planning Commissioner would like Staff to report on at subsequent meeting - none. a. Matters which a Planning Commissioner may wish to place on a future agenda for action and staff report - none. f. Project status - Mr. Lepo reminded the Commission of the Christmas party on the 20th. Staff has met with the owners of AERIE and they have reduced the project; this will be coming to the Commission in February. Requests for excused absences - none. ADJOURNMENT: 8:00 p.m. DJOURNMENT BRADLEY HILLGREN, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION •�: "http: / /www.city.newport- beach. ca. us /PlnAgendas /2007/mnl2O62007.htm 06/20/2008