Loading...
HomeMy WebLinkAboutAppeal of Modification 2008-007- 311 Fernleaf AveCITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT April 3, 2008 Meeting Agenda Item 6 SUBJECT: Appeal of Modification Permit No. 2008 -007 (PA2008 -009) 311 Fernleaf Avenue APPELLANT: Carol Pangburn APPLICANT: John P. Kenney PLANNER: Patrick J. Alford, Planning Manager (949) 644 -3235, palford (&citv.newport- beach.ca.us PROJECT SUMMARY An appeal filed by Carol Pangburn of the Zoning Administrator's decision for the approval of Modification Permit No. 2008 -007 on property located in the Multi - Family Residential (MFR) District at 311 Femleaf Avenue. Modification Permit No. 2008 -007 would permit remodel and 1,235 square -foot addition to an existing nonconforming three -unit residential condominium structure. The Planning Commission must conduct a de novo hearing and, after considering all of the evidence presented, either approve, modify, or disapprove, in whole or in part, Modification Permit No. 2008 -007. Staff recommends that the Planning Commission reverse the decision of the Zoning Administrator and deny Modification Permit No. 2007 -007. 311 Fernleaf Appeal April 3, 2008 Page 2 LOCATION GENERAL PLAN ZONING CURRENT USE ON -SITE Multiple Residential (RM) Multi - Family Residential Mufti -unit residential MFR -2140 NORTH Two -unit Residential (RT) Two Famillyy Residential Two -unit and multi -unit residential SOUTH Multiple Residential (RM) Multi - Family Residential Multi -unit residential MFR -2140 EAST Two-unit Residential (RT) Two Famillyy Residential Two -unit residential WEST Multiple Residential (RM) Multi - Family Residential Multi -unit residential MFR -2140 3 311 Fernleaf Appeal April 3, 2008 Page 3 Project Setting The project site is a 5,730 square -foot lot located at 311 Femleaf Avenue. The project site is currently developed with a 4,029 square -foot triplex. The Front Unit (311 Fernleaf) and the Middle Unit (313 Fernleaf) are single - level, ground floor units and the Rear Unit (315 Fernleaf) is a single -level unit located over the garage. Vehicular access is provided to Seaview Avenue via a 14 -foot wide abandoned alley at the rear of the property. Off - street parking is provided by a five -space garage and one open parking space at the rear of the property. Table 1 below provides a summary of characteristics of the existing triplex. Table 1 Existing Tri plex UNIT FLOOR AREA SF BEDROOMS BATHS Front (Subject) 1009.84 2 2 311 Femleaf Middle 936.00 1 1 313 Femleaf Rear 1203.37 2 2 315 FemieW Total Residential 3149.21 OMNI Garage 880.00 TOTAL 4029.21 Off - street Parking 5 garage spaces, 1 open space The existing triplex is nonconforming due to a 1 -foot encroachment into the required 4- foot (northwesterly) side yard setback and because the guest parking space required for three multi - family residential units is not provided. Project Description The proposed Modification Permit would permit the remodel and addition to the Front Unit of the nonconforming triplex. The project involves the demolition of the front half of the Front Unit, the reconstruction and remodel of the ground floor, and addition of a second and third floor. The project would increase the floor area of the Front Unit by 1,235 square feet. Table 2 below provides a summary of characteristics of the triplex with the proposed addition. 5 311 Fernleaf Appeal April 3, 2008 Page 4 Table 2 Triplex with Prop Deed Addition UNIT FLOOR AREA SF BEDROOMS BATHS Front (Subject) 2244.80 4 4 311 Femleaf Middle 936.00 1 1 313 Fernleaf Rear 1203.37 2 2 315 Fernleaf Total Residential 4384.17 Garage 880.00 TOTAL 5264.17 Off -street Parking 5 garage spaces, 1 o en s ce The proposed addition would result in a 122 percent increase to the floor area of the Front Unit and a 41 percent increase to the floor area of the entire triplex. Pursuant to Chapter 20.62 (Nonconforming Structures and Uses) of the Zoning Code, a modification permit is required when additions of between 25 percent and 50 percent of the existing gross square footage are proposed to an existing nonconforming structure. Background On August 1, 2001, the Modifications Committee approved Condominium Conversion No. 2001 -009 for the conversion of the triplex into a three -unit condominium project. On February 14, 2008, the Zoning Administrator approved Modification Permit No. 2008 -007. On February 22, 2008, the appeal was filed. The Appeal The appellant is the property owner of the Middle Unit (313 Femleaf). The appellant requests that the Planning Commission reconsider the Zoning Administrator's decision to grant approval of Modification Permit No. 2008 -007. The reasons for the appeal were stated in the appeal application (Exhibit 2) as follows: 1. Blockage of light and ventilation of Pangbum Residence (313 Fernleaf). 2. Destruction of common roof between 311 -313. 3. Complete disregard by applicant of rights of other 2 owners to access buildable area. 4. Want lack of handicapped accessibility corrected. 0 311 Fern leaf Appeal April 3, 2008 Page 5 5. Drainage problems of 6 years ago rechecked. Chapter 20.95 of the Zoning Code establishes the procedures for the appeal process. Pursuant to Section 20.95.060.C, a public hearing on an appeal is conducted "de novo," meaning that it is a new hearing and the decision being appealed has no force or effect as of the date the appeal was filed. The appellate body is not bound by the decision being appealed or limited to the issues raised on appeal. Analysis Review of the Zoning Administrator's Decision Chapter 20.62 (Nonconforming Structures and Uses) of the Zoning Code contains regulations procedures for the continuance or abatement of nonconforming structures and uses. Chapter 20.62 is intended to limit the expansion of nonconforming structures to the maximum extent feasible and establishes criteria under which a nonconforming structure may be altered and expanded. Section 20.62.040.D (Nonconforming Structures - Additions) provides that a structure that is nonconforming for reasons other than for parking, open space, floor area, or building bulk may be increased up to 50 percent of the gross floor area within any 12 -month period with the approval of a modification permit. In addition, Section 20.62.050.A.1.b (Nonconforming Parking — Residential Uses — Number of Spaces) provides that a residential development having at least two parking spaces per dwelling unit may be expanded to increase the number of habitual rooms (i.e., bedrooms, living rooms, and kitchens) with the approval of a modification permit. Section 20.93.030 (Required Findings) of the Zoning Code requires that the following three findings must be made in order to approve a modification permit: A. The granting of this application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. B. The requested modification will be compatible with existing development in the neighborhood. C. The granting of this Modification Permit will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. 311 Fernleaf Appeal April 3, 2008 Page 6 Practical Difficulties Finding A. The granting of this application is necessary due to practical diffrculffes associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. When addressing this finding, the physical aspects of the property and /or improvements and their relationship to adjacent properties may be considered. In approving Modification Permit No. 2008 -007, the Zoning Administrator found that the strict application of the Zoning Code would result in physical hardships that are inconsistent with the Code's purpose and intent. The Zoning Administrator noted that the Zoning Code permits residential developments having at least two parking spaces per dwelling unit to expand with additional rooms with the approval of a modification permit and that there is no limit on the number of rooms that may be added (Exhibit 4). To determine whether a strict application of the Zoning Code would result in physical hardships that are inconsistent with the purpose and intent of the Code, staff reviewed General Plan policies for guidance. Land Use Element Policy LU 6.2.2 addresses nonconforming structures in residential neighborhoods: Legal nonconforming residential structures shall be brought into conformity in an equitable, reasonable, and timely manner as rebuilding occurs. Limited renovations that improve the physical quality and character of the buildings may be allowed. The nonconformity of the triplex is relatively minor: the Rear Unit and garage encroach 1 foot into the required 4 -foot side yard setback and the guest parking space required for three multi - family residential units is not provided. These nonconformities occur at the rear of the property and will not be affected by the proposed alterations and addition; therefore, the proposed project does not provide an opportunity to bring the triplex into conformity per Policy LU 6.2.2. However, it can be argued that the proposed project makes rebuilding of the rear of the triplex less likely because it uses most remaining floor area allotted to this property. The MFR District in Old Corona del Mar limits the total gross floor area to 1.5 times the buildable area (site area minus required setback areas) of the site. The property has a buildable area of 3,850 square feet, which permits a maximum gross floor area of 5,775 square feet. The triplex currently contains approximately 4,029 square feet, which leaves a development potential of approximately 1,746 square feet. The proposed 1,235 square -foot addition to the Front Unit would leave only 511 square feet for the other two units (the applicant's ability to request this additional floor area will be discussed later in this report). There may not be enough undeveloped square footage remaining for a substantial remodel that would bring the rear of the triplex into conformity. 0 311 Fernleaf Appeal April 3, 2008 Page 7 It is also arguable that a 41 percent increase in floor area (122 percent increase to the Front Unit) does not constitute a "limited renovation" provided for by Policy LU 6.2.2. Although Section 20.62.040.13 allows a nonconforming structure to be expanded up to 50 percent of the gross floor area, staff does not believe that the proposed project is consistent with the Policy LU 6.2.2, which is to limit the expansion of nonconforming structures and to bring them into conformity. Neighborhood Compatibility Finding B. The requested modification will be compatible with existing development in the neighborhood. When addressing this finding, Section 20.93.035.13 states that "the sum of qualities that distinguish the neighborhood from other areas within the City may be considered;" however, only "such characteristics as they relate to the direct impact of the proposed modification on the neighborhood's character, and not development rights that would otherwise be enjoyed without the modification permit," may be considered. In approving Modification Permit No. 2008 -007, the Zoning Administrator found that the modification would be compatible with the existing development in the neighborhood. The Zoning Administrator noted that the proposed gross square footage of the structure would be less than the maximum square footage allowed by the Zoning Code and consistent with that of the surrounding neighborhood and similar land uses in the City. The Zoning Administrator also noted that granting an addition of up to 50 percent of the gross floor area would be consistent with similar approvals within the neighborhood and throughout the City (Exhibit 4). Land Use Element Policy LU 5.6.2 addresses the form and environment in the City's neighborhoods, districts, and corridors. Policy LU 5.6.2 states: Require that new and renovated buildings be designed to avoid the use of styles, colors, and materials that unusually impact the design character and quality of their location such as abrupt changes in scale, building form, architectural style, and the use of surface materials that raise local temperatures, result in glare and excessive illumination of adjoining properties and open spaces, or adversely modify wind patterns. The 300 Block of Femleaf Avenue is developed with two-unit residential structures on the east side of the street and multi -unit residential structures on the west side of the street. The development pattern consists of single -story structures at the front of the lot and two - story structures in the back. More recent development has broken this patter and now there are a number of two-story structures in the front of the lots. This is consistent with the 26/28 Foot Height Limitation Zone for the R -2 properties on the east side of the street and the 28/32 Foot Height Limitation Zone for the MFR properties on the west side of the street. N 311 Fernleaf Appeal April 3, 2008 Page 8 It is expected that development pattern of the block will continue to change as the older, single -story structures are replaced with newer, taller structures. However, the proposed remodel and addition to the Front Unit will further depart from the existing development pattern, as it will include a distinct third floor (Exhibit 4). The proposed three-story addition to the Front Unit would impact the design character of the neighborhood by creating an abrupt change in scale and building form. This is particularly true with the abrupt change in scale with the Middle Unit, which is only a single -story. Staff does not believe that this is consistent with Policy LU 5.6.2. Health and Safety Finding C. The granting of this Modification Permit will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. When addressing this finding, potential adverse impacts on persons or property in the vicinity may be considered. These include, but are not limited to, modifications that would significantly interfere with provision of adequate air and light on an adjacent property or result in a substantial invasion of privacy. In approving Modification Permit No. 2008 -007, the Zoning Administrator found that the proposed project did not present potential adverse impacts to persons or property. The Zoning Administrator noted that the proposed project provides the minimum open space requirement, two parking spaces per unit, and a total gross floor area within the maximum limits allowed by the Zoning Code (Exhibit 4). Although the proposed three -story addition to the Front Unit would create an abrupt change in scale and building form, it would maintain the minimum 4 -foot side yard setback, which will provide adequate air and light with the adjacent property. Furthermore, the northeast side property line abuts a slope within a public right -of -way, which will remain open and provide additional air and light for the Middle Unit and Rear Unit. The proposed location of doors, windows, balcony and deck do not present any privacy issues, as they do not overlook any outdoor living areas on the adjacent property. Validity of the Application Section 20.90.030.0 (Application Filing — Required Signatures) of the Zoning Code requires that the property owner, or the lessee or by an authorized agent with written authorization from the property owner, sign applications for discretionary approvals. This is required, in part, to insure that the applicant has the legal right to file the application and develop the project, if approved. False or misleading information of a material fact, or the omission of a material fact, can constitute grounds for denial or revocation. The Condominium Plan (Exhibit 5) for the subject property provides a three - dimensional description of the condominium project to identify each "unit." The "common area" is the Ell 311 Fernleaf Appeal April 3, 2008 Page 9 entire property, including structures, land, and improvements, other than area of the units. The applicant is the owner of the space identified as "U1" (Front Unit) and has an undivided one -third interest in the common area. Likewise, the other two property owners each own their units, U2 (Middle Unit) and U3 (Rear Unit), and each have an undivided one -third interest in the common area. Sheet 11 of the Condominium Plan shows the vertical dimension of the space of U1 as 8 feet and that this space does not include foundation or the roof (see image below). Since neither the foundation or the roof are shown as a part of U1, these structures, by definition, constitute common area owned jointly by all three property owners. := q as rtw�wr Lest m _ To UO b G MUM= U(D mPOW&W u D 3n.VWWL" LEA LE SCALE. 1` =20' The proposed project involves demolition of the roof and a part of the foundation, which are part of the common area. Therefore, staff believes that the application requires the signatures of the other two property owners or their written authorization for the applicant to sign on their behalf. Since neither of these signatures nor the written authorization were part of the application, staff believes that Modification Permit No. 2008 -007 was approved due to a false or misleading statement of a material fact, or the omission of a material fact. Therefore, the Modification Permit was approved in error and should be reversed by the Planning Commission. Response to Points of Appeal Staff has prepared the following in response to the points raised by the appellant. 1. Blockage of light and ventilation of Pangbum Residence (313 FemleaO. As stated earlier, although the proposed three -story addition to the Front Unit would create an abrupt change in scale and building form with the single -story Middle Unit, the northeast side property line abuts a slope within a public right -of -way that will remain open. This will adequate air and light for the Middle Unit. 2. Destruction of common roof between 311 -313. As stated earlier, staff believes that the roof above the Front Unit is part of the common area of the condominium and is owned jointly by all three property owners. l� 311 Fernleaf Appeal April 3, 2008 Page 10 3. Complete disregard by applicant of rights of other 2 owners to access buildable area. Staff believes that the application requires the authorization of all three property owners, which will require an equitable resolution of this issue in order for the project to proceed. 4. Want lack of handicapped accessibility corrected. In the letter to the Zoning Administrator, the appellant stated that the nonconforming side yard setback and a box housing utility meters blocks access to the alley for people in wheelchairs. State disabled access requirements are not applied to remodels and additions of residential structures. 5. Drainage problems of 6 years ago rechecked. No other information was provided on this issue; therefore, staff offers no response. Alternatives Should the Planning Commission concur with the Zoning Administrator's findings for approval of Modification Permit No. 2007 -060, the Planning Commission should deny the appeal and uphold the Zoning Administrator's approval. The Planning Commission may also uphold the approval of the Modification Permit with modified conditions. Environmental Review The proposed project has been reviewed and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). This exemption permits interior and exterior alterations and additions to existing single family dwellings. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Patrick J. Alord, Planning Manager Submitted by: David Lepo, Plan rg Director 311 Fernleaf Appeal April 3, 2008 Page 11 EXHIBITS (in the order they are referenced within the report) 1. Draft Resolution for denial of Modification Permit No. 2008 -007 2. Appeal application form 3. Appellants letter to the Zoning Administrator 4. Modification Permit No. 2008 -007 action letter 5. Condominium Plan 6. Project plans 7. Site photographs RIUSERSWLMSharedlpA,sIPAs - 20081PA2008- 009/2008.04.0.3 PC MD2008 -007 Staff Rpt.doc \3 Exhibit No. 1 Draft Resolution \4 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH REVERSING THE DECISION OF THE ZONING ADMINISTRATOR AND DENYING MODIFICATION PERMIT NO. 2008 -007 FOR PROPERTY LOCATED AT 311 FEARLEAF AVENUE (PA2008 -009) WHEREAS, an application was filed by John P. Kenney with respect to property located at 311 Fernleaf Avenue, and legally described as Lot 11 and a portion of Lot 13 in Block No. 232 of Corona del Mar, requesting approval of Modification Permit No. 2008 -007 to permit remodel and 1,235 square -foot addition to an existing nonconforming three -unit residential condominium structure; and WHEREAS, at a noticed public hearing held on February 14, 2008, the Zoning Administrator considered the application, plans, and written and oral evidence presented at this meeting, and approved Modification Permit No. 2008 -007; and WHEREAS, on February 22, 2008, an appeal of the Zoning Administrator's decision to approve Modification Permit No. 2008 -007 was filed with the Planning Department; and WHEREAS, a public hearing on the appeal was held on April 3, 2008 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting; and WHEREAS, the Planning Commission finds as follows: 1. The condominium is nonconforming due to a 1 -foot encroachment into the required 4 -foot (northwesterly) side yard setback and because the guest parking space required for three multi - family residential units is not provided. 2. The proposed project involves demolition of the roof and a part of the foundation, which are part of the common area of the condominium. Since the property owners of 313 Fernleaf and 315 Fernleaf did not authorize the application for the proposed project, Modification Permit No. 2008 -007 was approved without knowledge of all material facts relating to ownership. A false or misleading statement of a material fact, or an omission of a material fact in the application for a discretionary pen-nit are grounds for denial. 3. The proposed project would use 1,235 square feet of the remaining 1,746 square feet of gross floor area permitted on the property. This would leave only 511 Is Planning Commission Resolution No. Page 2 of 3 square feet for future development, which is insufficient for a substantial remodel that would bring the rear portion of the condominium into conformity. 4. The nonconformities of the condominium occur at the rear of the property and will not be affected by the proposed project; therefore, the proposed project does not provide an opportunity to bring the condominium into conformity, which makes rebuilding of the rear of the triplex less likely because it uses most remaining floor area allotted to this property. This is inconsistent with General Plan Policy LU 6.2.2, which calls for legal nonconforming residential structures to be brought into conformity in an equitable, reasonable, and timely manner as rebuilding occurs. 5. The proposed project would result in a 41 percent increase in floor area to the condominium project and 122 percent increase in floor area to 311 Fernleaf. This is inconsistent with General Plan Policy LU 6.2.2, which calls for limited renovations to nonconforming structures. 6. The proposed three -story addition to the Front Unit would impact the design character of the neighborhood and the Middle Unit by creating an abrupt change in scale and building form. This is inconsistent with General Plan Policy LU 5.6.2, which requires renovated buildings to be designed to avoid abrupt changes in scale, and building form. NOW, THEREFORE, BE IT RESOLVED Section 1. Based upon the aforementioned facts, the Planning Commission hereby reverses the decision of the Zoning Administrator, and denies Modification Permit No. 2008 -007. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk or this action is called for review by the City Council in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. 2 r6 Planning Commission Resolution No. _ Page 3 of 3 PASSED, APPROVED AND ADOPTED THIS 3rd DAY OF APRIL, 2008. AYES: NOS: ABSENT: BY: Robert Hawkins, Chairman BY: Bradley Hillgren, Secretary 11 . Exhibit No. 2 Appeal application form CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE ZONING ADMINISTRATOR Project No. PA oZ# 7 -00 9 Application No. ? Name of Appellant �}i & fJ Al ze &IXA/ Phone ?YV - S 6 6 - 90 7 Site Address 911 FERAL -EAF DkO1V19- AEC. MA-A- izlP 2s Date of Zoning Administrator's decision IXJ623 20 D9' Name of Applicant — cTd ffd KE-Al de-Y for (Description of application filed with Zoning Administrator) -3- 67P&V Rr�VO�FC- OF ek19r_1A1j6 / STORV try. 1UP0 MMMW 111111 i i ' ii Reasons for AppealC4A -eelzl E DE 11,6H 7- A-ND J1eX1 Ole- AW,o,,gilml Xer>a )ewae ��,qI3 rj&A_i�F) a &F demzle.J &oF I6ETwewW 3 / /- 3/ 3 COAVP/_ t Tc- &sXE A-,U B3 l J4PP�l�if iY7� 4F Jp /GyT5 of OT�EA' a cJ�N�7s 7'o EXCt�� LJ /CpABG� A-A f p u>i4RlT ,cJrCK QG /�4N➢JCAPFE� ,4&h-_1;51e1471( Signature of Appellant Date 'y Received by Fee received Date 1'Rdel-Ems ©/�: / 7s FOR OFFICE USE ONLY /+COO Hearing Date An appeal shall be scheduled for a hearing before the Planning Commission within thirty (30) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.050). NOTE: Please submit: • 11x17 set of plans— 12 each • One set of mailing labels (Avery 5960) for property owners within 300 ft. radius of subject property APPEALS: Municipal Code Sec. 20.95.0408 Appeal Fee: $600.00 pursuant to City Council Resolution 2006 -4. (Deposit funds with Cashier in Account #2700 -5000) F: \Users \PLN \Shared \Forms \New Forms\MISC FORMS \appealZA.doc ovl Revised 07 -21 -06 jcr Exhibit No. 3 Appellant's letter to the Zoning Administrator 93 City of Newport Beach Zoning Commissioners From: Carol Pangburn, owner /resident of 313 Fernleaf Ave., Corona del Mar Re: 311 Fernleaf and John Kenney's application to redevelop /reconstruct/remodel same BACKGROUND INFO on 313 Femleaf. I originally purchased 313 Fernleaf in January of 2003 from John Kenney, the developer and owner of the 3 unit condo conversion which he completed in 2002. I was the I' owner of 313. John kept 311 Fernleaf for his own use and later sold 315 Fernleaf to a friend. At the time I purchased, my husband Dick had terminal cancer. We both felt that the small, 1 -story condo (1 bdrm + den) was the perfect retirement home for me: little yard upkeep, walking distance to shopping and the beach, close to Oasis Senior Center, and close to family, friends and church. Senior housing in Newport is scarce so we felt very blessed to find this treasure even though we paid top of the market price. When Dick died in 2005 I sold our family home and asked my tenant at 313 to vacate so I could move in. I spent thousands on adding a wall of cabinets and granite counters in my little den and on improving my patio /decking which is a wonderful outdoor extension of my main living are. I love my home on Fernleaf and have planned to live out my remaining life there. In my 2 '/2 years of living on Fernleaf John Kenney, several times, told me he planned to buy my condo back and rebuild what he should have done the fast time. He said there was quite a bit of square footage for "us" to add to the property. I told him I loved it there, where would I go, and my price would be too high to make any sense for such a project. I really thought he was just teasing, dreaming etc. So, I was flabbergasted when on January 9, 2008, John informed me I would be getting a postcard on a hearing. He said he was going to add 2 more stories to his unit and basically tear it down and rebuild. He said there were 1746 square feet to be used and he was going to add 1235 to his unit, leaving 511 for use by the other 2 units. He said he'd been planning these changes for 2 years. If only he'd been more open about this and had discussed it with me surely we could have negotiated the square footage and the plans. A few days ago I discovered that Mr. Kenney approached the owner of 315 several months ago regarding the architectural plans and suggested what that owner could do with the extra square footage. The 315 owner, being quite interested, met with Mr. Kenney's architect. When Mr. Sipos (315) asked what the amount of square footage left for Carol would be, the architect replied there was none left. Mr. Kenney suggested to Mr. Sipos that he not tell Carol, that she is old, and she will be upset.(At least he got that right, I am old and I am upset.) Mr. Sipos decided he wanted no part of this collusion and has not spoken to Mr. Kenney since. I'm honestly very shocked that one owner in a 3 -unit condo development with common walls, roofs,airspace, yards, walks etc. can do such major construction without the agreement of the other 2 owners. It seems to me that he's treating his condo like a detached home, rather than the condo that it is, joined to mine with a common single roof and a common wall. I'm protesting this construction and felt the above background would help in clarifying my situation and hopefully provide you, our commissioners, with facts to make a fair decision. "1 MY PROTESTS TO THE 311 CONSTRUCTION 1. I am going to be dwarfed by the 3 -story building. The additional height will take sunlight and light from my deck area at the rear and the courtyard at the front, these being my only source of light and ventilation. Connected to me on 1 side (315) is a 2 -story unit built over the garages. And now on the other side (311) a 3 -story. I will be lost in the middle. Please picture the cartoon of the little house between 2 towering buildings ... the "guy who refused to sell out." I protest not only my loss of light and sun, but loss of property value. Who will want to buy this little home connected to a towering 3 -story? 2. I am very worried about my roof. We (311 and 313) have a common roof ...please see photos... How can Mr. Kenney cut into that roof without creating tremendous problems in regards to roof leaks. And where does he cut in ?? The ridges of the roof are not aligned with the common wall. I really fear the destruction of that common area...wall and floors. The same applies to our common foundation and our common wall. (See photos of roof) 3. I was not aware, when I purchased the condo, that our property was non - conforming in that the set back at the rear walkway from the alley, next to our garages, was 3 feet, rather than the required 4 feet. Shouldn't Mr. Kenney have corrected that when he developed the property the V time? It appears that he could have, at least, been made to move the box housing the meters to another location, leaving enough accessibility for wheelchairs. The setback from the large box housing the meters is approximately 1 foot.. We all access from the alley, mainly because there are red curbs and no parking in front. Its impossible to get a wheelchair through that area without trespassing on the neighbor's property. (See photo) 4. I'm also wondering if Mr. Kenney shouldn't be required to have a Geological/Soil Engineering Report update. Its been at least 8 years since the retaining walls and special plantings were put on the Femleaf Ramp hillside which abuts our property. Perhaps the soil should be tested again to be sure the walls and plantings have solved that original drainage problem, and to be sure the loads from 2 additional stories don't cause slippage. (Photos of hillside) In closing, its really too bad Mr. Kenney didn't talk this over with me before he spent thousands of dollars on his architectural plans. There's an additional 1,746 square feet that can be added to our combined property. Why does Mr. Kenney get 1,235 of this, leaving 511 for the other 2 of us to use? When I asked Mr. Kenney this question, he laughed and responded, "First come, first served." I don't find this funny, or fair. Our 3 unit condo development is unique, as most all of the small condo developments in the village are 2 units. If you are going to vote "yes" to Mr. Kenney, I invite you to come out, before you vote, and personally view the property to see how it sits and to see for yourself its uniqueness. View it from across the Bayside gully at the end of Dahlia or Femleaf. Then walk around it and check out the common areas and picture the proposed 3 stories of the little front house. I hope you would then ask Mr. Kenney to go back to the drawing board and come up with something acceptable to all 3 of us, something that conforms and that doesn't block light and views of our open space, something that will not cause damage or destruction to my home or to our lot, and something that gives me and my guests accessibility. IF V OH L115 I JIM, .11 Lwf X. us Jig � LI T, z6. Sr eu . . . . . . . . . . V. o0off, -.7 t, I-AA 0 vO --_o -SK I ......... .............. . . . . . . . . . . U- .41 Al. re NIN 00 ­1 ILI , 4g 7K� �I1 is al, r+' dal 4. LQ EW wiY..... ..... J 1 A Wlvd; m I Oil .1h I Exhibit No. 4 Modification Permit No. 2008 -007 action letter �11� Application No. Applicant Site Address Legal Description MODIFICATION PERMIT NO. MD2008 -007 (PA2008 -009) PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92663 (949) 6443200 FAX (949) 644 -3229 Modification Permit No. MD2008 -007 (PA2008 -009) John P. Kenney 311 Fernleaf Avenue Lot 11 & POR 13 OF PROJECT 932 -87 LOCATED ON AP052- 021 -28 TOGETHER WITH AN UND1 /3 INT IN LOTS TR186 On February 14. 2008, the Zoning Administrator approved the application request to permit the remodel and addition of between 25% and 50% of the existing gross square footage of an existing non - conforming three unit residential condo structure. The proposed additional square footage conforms to all required setbacks. The existing triplex is non - conforming because it encroaches 1 foot into the required 4 -foot northwesterly side yard setback and does not provide guest parking required for multi - family dwellings. The condominium conversion was approved prior to changes to parking regulations that required two -car parking per dwelling unit and guest parking. The existing three -unit residential condo structure provides two parking spaces per unit, including five garage spaces, all of which are proposed to remain. The District. The Zoning Administrator's approval is subject to the following conditions. FINDINGS property is located in the MFR (2140) based on the following findings and 1. The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Multiple -Unit Residential" use. The existing three - unit residential condo structure is consistent with this designation. The proposed addition does not change the use of the structure. 2. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 1 (Existing Facilities). 3. The modification to the Zoning Code, as proposed, is consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code. It is a logical use of the i5l property that would be precluded by strict application of the zoning requirements for this District for the following reasons: • The existing triplex is nonconforming because it encroaches 1 foot into the required 4 -foot northwesterly side yard setback and it does not provide the required one guest parking space for the existing three units. • Chapter 20.62 of the Zoning Code permits existing legal nonconforming structures to additions that increase up to 25 percent of the existing gross floor area by right. 4. In accordance with the provisions of Chapter 20.93, the granting of this application is necessary due to practical difficulties associated with the property. The strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code for the following reasons: The Zoning Code permits the addition to an existing legal nonconforming structure of up to 50 percent of the gross floor area with the approval of a Modification Permit. The Zoning Code permits residential developments having at least two parking spaces per dwelling unit to expand with additional rooms with the approval of a Modification Permit. The code does not specify a limit on the number of rooms that can be added. 5. In accordance with the provisions of Chapter 20.93, the requested modification will be compatible with existing development(s) in the neighborhood for the following reasons: The proposed gross square footage of the structure is less than the maximum square footage allowed by the Zoning Code for the subject property and is consistent with the surrounding neighborhood as well as similar land uses throughout the City. Granting the request of a square footage addition of up to 50 percent of the gross floor area is a suggested option by the Zoning Code and is consistent with modified and conditioned approvals granted by the Zoning Administrator and the Modifications Committee within the neighborhood and throughout the City. 6. In accordance with the provisions of Chapter 20.93, the granting of this Modification Permit will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and not be detrimental to the general welfare or injurious to property or improvements in the neighborhood based on the following: The minimum open space requirement of 23,100 cubic feet will be provided within the buildable area of the property. February 14, 2008 FAUsers \PLN \SharedTRs \PAs - 2008 \PA2008 - 009 \MD2008 -007 appr.doc Page 2� The existing three -unit residential condo structure provides two parking spaces per unit including five garage spaces all of which are proposed to remain. • The addition of 1,235 square feet is an addition to one of the three condo units of the existing triplex and results in a total gross floor area within the maximum limits allowed by the Zoning Code for the subject property. CONDITIONS 1. The development shall be in substantial conformance with the approved plot plan, floor plans and elevations, except as noted in the following conditions. 2. Anything not specifically approved by this Modification Permit is prohibited and must be addressed in a separate and subsequent Modification Permit review. 3. If any of the existing public improvements surrounding the site are damaged by private work, new concrete sidewalk, curb and gutter, street pavement, and other public improvements will be required by the City at the time of private construction completion. Said determination and the extent of the repair work shall be made at the discretion of the Public Works inspector. 4. This approval was based on the particulars of the individual case and does not, in and of itself or in combination with other approvals in the vicinity or Citywide, constitute a precedent for future approvals or decisions. 5. The applicant shall provide a Geotechnical report to the Public Works Department for review and approval documenting that the proposed project will not add additional load or surcharge on the existing City retaining wall and ensure slope stability on the northeast side of the property along the Fernleaf Avenue ramp. The plans need to show the location of easements and City retaining wall adjacent to the proposed project. 6. All weep holes from the planter wall along Fernleaf Avenue and drains from the patio to the area above the retaining wall shall be removed. 7. The applicant shall provide a drainage plan showing how the site will drain and eliminate additional percolation into the area adjacent to the city retaining wall. The site shall drain to Fernleaf Avenue at the front of the property or the alley. 8. All non - standard encroachments into the public right -of -way require an encroachment permit and encroachment agreement, if applicable, from the Public Works Department. 9. All structure elements shall not encroach into the public right -of -way. February 14, 2008 F: \Users \PLV \Shared \PA's\PAs - 20081PA2008- 009\MD2008 -007 appr.doc Page 3 10. The proposed addition and related work shall comply with the California Building Code and all adopted local amendments. 11. Coastal Commission approval shall be obtained prior to issuance of the building permits and a copy of the approval letter from Coastal Commission shall be incorporated into the Building Department and field sets of plans. 12. Prior to issuance of building permits, the applicant shall submit to the Planning Department an additional copy of the approved architectural plans for inclusion in the Modification Permit file. The plans shall be identical to those approved by all City departments for building permit issuance. The approved copy shall include architectural sheets only and shall be reduced in size to ' 11 -inches by 17- inches. The plans shall accurately depict the elements approved by this Modification Permit and shall highlight the approved elements such that they are readily discernible from other elements of the plans. 13. A building permit shall be obtained prior to commencement of the construction. 14. The additional square footage shall not exceed a 50 percent increase of the existing gross square footage and shall maintain all required setbacks. 15. A copy of this approval letter shall be incorporated into the Building Department and field sets of plans prior to issuance of the building permits. 16. All work performed within the public right -of -way shall be reviewed and approved by the Public Works Department under an encroachment permit/agreement, if required. 17. This approval shall expire unless exercised within 24 months from the approval date, as specified in Section 20.93.050 (A) of the Newport Beach Municipal Code. Prior to the expiration date of this approval, an extension may be approved in accordance with Section 20.93.050 (B) of the Newport Beach Municipal Code. Requests for an extension must be in writing. APPEAL PERIOD The Zoning Administrator's decision may be appealed to the Planning Commission within 14 days of the action date. A $600.00 filing fee shall accompany any appeal filed. No building permits may be issued until the appeal period has expired. A copy of the approval letter shall be incorporated into the Building Department set of plans prior to issuance of the building permits or issuance of revised plans. By: Zoning AdminisCrator Javier S. Garcia, AICP February 14, 2008 FAUsers\PLNISharedTRs1PAs - 20081PA2008- 0091MD2008 -007 appr.doc Page 4 �,o JSG:msg/es Attachments: Vicinity Map Letter of Opposition — Carol Pangburn, owner 313 Fernleaf Avenue Letter of Opposition — Helen R. Rask, owner 309 Fernleaf Avenue Appeared in Opposition: Carol Pangbum Appeared in Support: None February 14, 2008 F:\Users \PLN \Shared\PA's \PAs - 2008 \PA2008 - 009 \MD2008 -007 appr.doc Page 5 VICINITY MAP lk� O a , ry , f ■ ZX P Modification Permit No. MD2008 -007 PA2008 -009 311 Fernleaf Avenue February 14, 2008 F: \Users \PLN \Shared\PA's \PAs - 2008 \PA2008 - 009 \MD2008 -007 appr.doc Page 6 WL Exhibit No. 5 Condominium Plan Lk*3 • s 2 WHEN RECORDED MAIL TO: John Kenney Real Estate 3334 E. Coast Hwy #435 Corona del Mar, Ca 92626 John Kenney Recorded in Official Records, County of Orange Darlene Bloom, Interim Clerk Recorder 1111111111P11111111 111111111191111111111124. 00 ,20 a cas 2002027856110:47am 04103/02 0.00 0.00 0.00 0.00 18.001 0.00 0.00 0.00 CONDONIINILTM PLAN FOR LOT 11 AND A POTION OF LOT 13, BLOCK 232 IN THE CITY OF NEWPORT BEACH COUNTY OF ORANGE, STATE OF CALIFORNIA lop Consisting of a description of the surface of the land included within the project which is as follows: Lot 11 and a potion of Lot 13 in Block No. 232 of Corona del Mar in the City ofNewport Beach, County of Orange, State of California, as shown on a map recorded in Book 3, pages 41 and 42 of Miscellaneous Maps, Records of Orange County, California. A three - dimensional description of a condominium project, one or more dimensions of which may extend for an indefinite distance upwards, in sufficient detail to identify certain exclusive use areas and each Unit, pursuant to the California Civil Code Section 1351. CONTENTS Surveyor's Certificate .............................................. ..............................2 ..............................2 Owner's Certificate .................................................. Signatures and Acknowledgments ............................................... . ............ 3 -4 Definitions and General Notes ..................................... ............................5 -6 ..............................6 Basisof Bearings .................................................... ............................6 Basisof Elevations .................................................. ..............................8 BoundaryPlan ..................................................... Building(Unit Location Plan .................................... ............................... - 9 Airspace Dimension Plan (Floor Plan) ........................... .............................11 ............................... VerticalElevations ................................................ SHEET 1 OF 11 �15 SURVEYOR'S CERTIFICATE I hereby certify that I am a licensed land surveyor of the State of California, that this condominium plan, consisting of 1 sheets, was prepared under my direction; and that the said plan correctly represents the boundary of the land included within this project and the "as- built" location of the units therein based upon construction plans and field inspection. dated this / 2 fA day of /'9�9 R ca! 2002. Clarence Morris Butler PLS 4184 Registration expires 6/30/04 OWNERSHIP CERTIFICATE We, the undersigned, being all the record owners of, and record holders of security interest in the real property herein described, do hereby certify that: we consent hereby to the recordation of this condominium plan pursuant to the provisions of Chapter 1, Title 6, Part 4, Division second of the California Civil Code of: 1) The description and survey map of the surface of the land included within this project as such description and survey map are set forth herein; 2) A three- dimensional description of a condominium project, one or more dimensions of which may extend for an indefinite distance upwards or downwards, in sufficient detail to identify the common areas and each separate interest, and. 3) This certificate. SHEET 2 OF 11 OWNERS. John Patrick Kenney, an unmarried man atric NOTARY ACKNOWLEDGMENT State of California) )ss County of (Gt 1^Gj On this : - -(q "o gL before me, 1!h tAc i" ` ! t c personally appeared John Patrick Kenney personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand: 36 My Principal Place of Business is tot W Y a Y t r����� //� otary Public in and for said State in Cef (( fb ✓t.1j � County. e) 1(a r2� / Rd-ut e( &flj Q,4/\- i O � My Commission expires pee lQ 9-00 Print Name DANIEL BARRIENT03� N Comm. t 1286951 11/n NOTARY PU,B,ARR1ENT A w' 0 sage County My Comm.Expirss D ec. 10, 2004 SHEET 3 OF 11 A*11 NOTARY State of Ct County of ) On this before me, personally appeared personally known to me (or proved to me on the basis of 'sfactory evid/Signatm" persons whose names are subscribed to the within i ent and ackne that they executed the some in their authorized capacities, an that by the inskuinent the persons, or the entity upon behalf of which a ns acted, executed the hmftmnent. WITNESS my hand: �/ _ _ � My Principal Place of Business is Notary Public in for said State �n County, My Com*ssion expires SHEET 4 OF 11 12 0 DEFINITIONS AND GENERAL NOTES 1) PROJECT. Shall mean the entire parcel of real property described as Lot 11 and a portion of Lot 13 in Block No. 232 of Corona Del Mar, in the City of Newport Beach, County of Orange, State of California as shown on a map recorded in Book 3, Pages 41 and 42, of Miscellaneous Maps, Records of Orange County, California for condominium purposes. The project is a "Condominium Project" as defined in Section 135l(f) of the California Civil Code. The Property is a "Common Interest Development" as defined in Section 1351(c), 2) CONDOMINIUM. Shall mean an Estate in Real Property (defined in Section 738 and 1351(f) of the California Civil Code) consisting of both: a) A separate interest in space called a Unit; and b) An undivided interest in the Common Area. 3) CONDOMINIUM PLAN or PLAN. Shall mean and refer to the recorded diagrammatic drawings of the Units built or to be built on the Property which identifies each Unit and shows its dimensions pursuant to California Civil Code Section 1351(e). 4) UNIT. Shall mean and refer to the elements of a Condominium not owned in common with other Owners as defined in California Civil Code Section 1351(1). Each Unit is designated as a Unit in the Condominium Plan for the Property and is separately identified by the letter "U" and the Unit Number. A) GARAGE. Shall mean that portion of the Property depicted as Exclusive Use Common Area designed for the exclusive use of a unit as a garage, and shall be identified on the Condominium Plan by the letter "(3" and the Unit Number. B) DECK . Shall mean that portion of the Property depicted as Exclusive Use Common Area designed for the exclusive use of a unit as a deck or room, and shall be identified on the Condominium Plan by the letter "D" and the Unit Number. There are three Condominium Units in this Project. Units 1, 2, and 3 are on Lot I 1 and a portion of Lot Din Block 232 of Corona Del Mar in the City of Newport Beach, County of Orange, State of California as shown on a map recorded in Book 3, Pages 41 and 42, of Miscellaneous Maps, Records of Orange County, California. They are shown and described as 311, 313, and 315 Femleaf on the Condominium Plan. The Owner of each Condominium Unit shall also be granted an undivided one -third (1/3) interest in and to the Common Area. SHEET 5 OF 11 5) BASIS OF BEARINGS. The bearings shown hereon are based on the bearing between O.C.S. horizontal control station G.P.S. No. 6200 and station O.P.S. No. 6292 being N4(r35'00"E per records on file in the office of the Orange County Surveyor. 6) BASIS OF ELEVATIONS. Elevations for the vertical limits of condominium units are based on the following: A temporary base elevation of 10.00'. 7) EXCLUSIVE- USE COMMONS AREAS. Shall mean and refer to those portions of the Common Area designated by the Declaration, and /or Condominium Plan or by law for the exclusive or restricted use of the Owners of particular designated Units. A) CARPORT. Shall mean that portion of the Property depicted as Exclusive Use Common Area designed for exclusive use as a carport, and shall be identified on the Condominium Plan by the letters "CP" and the Unit Number. B) YARD. Shall mean that portion of the Property depicted as Exclusive Use Common Area designed for exclusive use as a yard or patio, and shall be identified on the Condominium Plan by the letter "Y" and the Unit Number. 8) COMMON AREA. Shall mean and refer to the entire Property (including structures, land and improvements) other than the Units described in the Declaration and the Condominium Plan. 9) ELEVATION. The elevations for the vertical boundaries of the condominium units are shown on the vertical elevations shown herein. 10) BOUNDARY LINE INTERSECTIONS. All airspace boundary tines intersect at right angles unless otherwise indicated 11) LATERAL DIMENSIONS. The lateral dimensions of the condominium units are shown on the floor plans shown herein. 12) REMENTLal_ BUILDING. Shall mean each residential building in did Project which contains units. 13) BUILDING TIES. All building ties are at right angles to the project boundary unless otherwise shown and are measured from the foundation lines of the building, or their prolongations. SHEET 6 OF 11 ETV N50 7. CONDOMINIUM PLAN FOR Lt7T 11 & A PORTION OF LOT 13 IN BLOCK 232 ❑F NEWPORT BEACH SCALE: 1' =20' 6 ' -w t I21.7q• PORTION OF LOT 13 5 °DO'0 'W 5.00' 25.0D' m R LOT 11 I 7' P.U.E. p; (u a N EASEMENT 1 ^ — — — ` ` — — _ y _ 2s.oD• N50 '00'00'W 125.00' 0 2' ACCESS AND EGRESS h EASEMENT W 1 W Q O o W o °v J LIZ Z o G! Z bi SEAVIEW AVENUE N50'00'00'W 150.00' BASIS OF BEARINGS MONUMENT NOTES THE BEARING SHOWN HEREON ARE BASED ON FOUND AS NOTED THE CENTERLINE OF 33rd STREET BEING N53 °41'53'E PER MAP OF NEWPORT BEACH TRACT RECORDED IN BOOK 3, PAGE 26 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY. SHEET 7 BF 11 s} CONDOMINIUM PLAN FOR LOT 11 & A P❑RTI ❑N OF LOT 13 IN BLOCK 232 OF NEWPORT BEACH SCALE: 1' =20' 'N50 000'00'W 7.00' r- G® I G Y 1 m G ® 36. -- Y G® u® 313 FERNLEAF 1 -9t G® U® 311 FERNLEAF SEAVIEW AVENUE N50 ° 00'00'W 150.00' WALLS (FIRST FLOOR) = YARD SHEET 9 25.00' 25.00' w zrl w� �y W wo J p z o Od w LL- OF 11 S3 CONDOMINIUM PLAN FOR LOT 11 & A P❑RTI❑N OF LOT 13 IN BLOCK 232 OF NEWPORT BEACH G 0 G Q G@ G Q G ID 315 FERNLEAF UQ9 N c 313 FERNLEAF U 2Q 311 FERNLEAF U Q POINT 'A' FIRST FL❑ ❑R SCALE: i' =20' SECOND FLOOR SCALE: 1' =20' POINT 'A' FLOOR PLAN SHEET 10 OF 11 CONDOMINIUM PLAN FOR I LET 11 & A PORTION OF LET 13 IN BLOCK 23 OF NEWPORT BEACH LE= LOWER ELEVATION UE= UPPER ELEVATION THE ELEVATIONS FOR G1 ARE THE SAME AS THE ELEVATIONS FOR G2 AND FOR G3. NOTE: ALL ELEVATIONS SHOWN ARE BASED UPON A TEMPORARY BASE ELEVATION OF 10.00 GRADE ]10 i o U® msrew"Ar LE =17.00 m E= 7 n =18.00 E =IBM o t NG �c G® UE =16.00 ma rcaatr t rag EXISTI NG LE= GRADE co LE =8.00 ® UE =16.00 LE =8.00 SCALE: 1' =20' 311, 313, AND 315 FERNLEAF AVENUE (UNITS 1, 2, &3) SECTION 'A -A' SHEET 11 OF 11 Exhibit No. 6 Project Plans I J� v4di /X! �_ .� — la��r i1 b$i �.,, v y'°3 `a J • \. I Y yvN -f4 aiw'J ? aY lYJ1j 0 •O .O N W O z E Q � ti O e w 111x"' 5°� t:. .Y Y 3 as d 0 F i a 3 e a i zi v i I �I _ k n;v Ills ; s. II r I 05 I I �} ix \ n 1 J I- xx I I 1 I I iii I I I An rm /s I Exhibit No. 7 Site Photographs w Z IL Q >` LL � Q C_ W L N 2 Y K w d l� MO -> w \P