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Home My WebLink AboutAppeal_MD2007-050_1132 Ebbtide Rd (PA2007-111)CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT October 18, 2007 Agenda Item 2 SUBJECT: Appeal of Modification Permit No. 2007 -050 (PA 2007 -111) 1132 Ebbtide Road APPLICANT: Paul and Norma Fruchbom APPELLANT: Planning Commissioner Michael Toerge PLANNER: Jaime Murillo, Associate Planner (949) 644 -3209, imurillo(a)city.newport- beach.ca.us PROJECT SUMMARY Appeal of the Zoning Administrator's decision to approve Modification Permit No. 2007- 050, which authorized the applicant to exceed the 3 -foot height limit for fences, hedges, and accessory structures within the required 86 -foot front yard setback by allowing the retention of the following existing elements: 1) hedges; 2) a portion of an entry gate; 3) a pilaster; and 4) a sculpture. Also permitted was the addition of: 5) a new 11- foot -high sculpture within the front yard setback; and 6) retention of the existing 9.5- foot -high driveway gate located within the 6 -foot side yard setback. The Planning Commission must, after considering all of the evidence presented, either, approve, modify, or disapprove, in whole or in part, Modification Permit No. 2007 -050. RECOMMENDATION Staff recommends that the Planning Commission modify the approval of Modification Permit No. 2007 -050 as follows: 1) authorize the retention of the existing entry gate and pilaster encroachment; 2) authorize the retention of the existing sculpture; 3) approve the proposed sculpture encroachment; 4) deny the applicant's request to retain Hedge 1 at any height above 3 feet; 5) modify the encroachment of Hedge 2 to maintain a maximum height of 7 feet; and 6) deny the applicant's request to retain the existing 9.5- foot high driveway gate. Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 2 um J ON -SITE Single -Unit Residential Single - Family Single - Family Dwelling Detached Residential /B Overlay NORTH Single -Unit Residential Single - Family Single - Family Dwelling Detached Residential /B Overla SOUTH Single -Unit Residential Single - Family Single- Family Dwelling Detached Residential /B Overlay EAST Open Space Jasmine Creek Planned Jasmine Creek Open Space Community WEST Single -Unit Residential Single - Family Single- Family Dwelling Detached Residential /B Overla um J Appeal of Modification Permit No. 2007 -050 October 18, 2007 Paae 3 Project Setting The subject property is a 17,165 square -foot lot that is developed with a single - family, detached dwelling unit. It is located at the southeast intersection of Crown Drive and Ebbtide Road in the Harbor View Hills Community Association. The community consists of a terraced subdivision, with the subject property located on the highest pad elevation at the northeasterly boundary of the subdivision. North of the subject property, across Crown Drive, is the Harbor View Broadmoor Community Association, a similar single - family detached subdivision. East of the subject property is the Jasmine Creek Community Association, a single - family attached subdivision. Project Description The applicant requested a modification permit to exceed the 3 -foot height limitation for fences, hedges, and accessory structures within the required 86 -foot front yard setback to allow the retention of the following existing elements: 1) Hedge 1- An existing 10- foot -high hedge (as measured from interior grade), which the applicant proposes to trim down to a maximum height of 7 feet. The hedge encroaches 74 feet into the required 86 -foot front yard setback area as a continuation of the fence approved by Modification Permit No. 2509 in 1980 (see Background discussion below). 2) Hedge 2- An existing 12- foot -high hedge (14.5 feet measured from sidewalk grade) located between the front of the house and the entry gate element, which is a height of 5 feet above the 7 -foot fence /hedge height (as measured from interior grade) permitted by Modification Permit No. 2509. 3) Entry Gate- A 6- foot -high entry gate and pilaster that encroaches 8 feet beyond the 38 -foot encroachment authorized by Modification Permit No. 2509, for a total encroachment of 46 feet into the required 86 -foot front yard setback. A 1980 building permit is on file for the construction of a fence that references Modification Permit No. 2509; however, plans were not archived and staff is unable to verify whether the improvements were incorrectly constructed in the field. The original wrought iron entry gate was replaced by the current property owner with the gate that exists today. 4) Sculpture 1- An existing 10- foot -high sculpture that encroaches 46 feet into the front yard setback. h Appeal of Modification Permit No. 2007 -050 October 18, 2007 The applicant is also requesting the approval of: Page 4 5) Sculpture 2- A new 11- foot -high sculpture, which is proposed to encroach 65 feet into the front yard setback area; and 6) Driveway Gate- The retention of an existing 9.5- foot -high driveway gate (Modification Permit No. 2007 -050 approval letter states 11 feet) located within the 6 -foot side yard setback. The gate was replaced 3 years ago by the owner after a vehicle crashed through the previous existing gate. Exhibit 2 (Project Plans) and Exhibit 3 (Site Photographs) illustrates each of the requested elements. Background The subject dwelling was originally constructed in 1960. In 1980, Modification Permit No. 2509 was approved allowing: 1) the construction and replacement of an existing 6- to 7- foot -high fence and driveway gate (variable height to account for terraced grade) along the northeasterly side property line; and 2) a new 8.5- foot -high entry gate and a 6 to 7- foot -high fence that encroaches 38 feet into the required 86 -foot front yard setback area. Facts used to support the findings were: 1) That the proposed fence and entry development in the front 86 -foot front yard setback will not obstruct views from adjoining residential property and will not be detrimental to the neighborhood; 2) That the minor encroachments of the fence height along Crown Drive occur at terraced locations caused by the terrain of the site; and 3) That the natural grade of the site is approximately 8 feet above street height and access to the front of the house requires modifications to fence height requirements (Exhibit 4; Modification Permit No. 2509). It should be noted that the only finding required to be made to support a modification request in 1980 was that the request would not be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood. The current property owner and applicant purchased the home in 1984. According to the applicant, the current walls, hedges, pilasters and gates have remained unchanged since he purchased the home, with the exception of the entry gate and the driveway gate. According to a neighboring property owner (2739 Windover Drive), the hedges historically measured approximately 6 feet in height, but have grown to a height greater than 6 feet within the last 4 years prompting a complaint to the City. 01 Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 5 On March 14, 2007, the Code & Water Quality Enforcement Division issued a notice of the violation to the applicant related to the height of the hedge located along the northerly side of the front yard setback area. On May 23, 2007, the applicant submitted an application request for a modification permit to allow the existing 10- foot -high hedge, reduced to a height of 6 to 7 feet, to remain in the front yard setback area. In reviewing the submitted application request, additional existing over - height improvements were discovered and added to the modification request. On August 20, 2007, the Zoning Administrator approved the applicant's request (Modification Permit No. 2007 -050) with conditions restricting the height of Hedge 1 to a maximum height of 7 feet and Hedge 2 to a maximum height of 12 feet (Exhibit 5; Approval Letter). On August 27, 2007, Planning Commissioner Michael Toerge initiated an appeal of the Zoning Administrator's approval of Modification Permit No. 2007 -050 on the grounds that the proposed modification fails to meet all three of the required findings necessary to approve the request. DISCUSSION The Appeal Commissioner Toerge is requesting that the Planning Commission reconsider the modification request and contends that the findings required to approve the modification cannot be made. The following reasons were provided in support of the appeal: • The granting of the application is not necessary due to practical difficulties associated with the property. • Strict application of the Zoning Code does not result in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. • The requested modification is not compatible with the existing development in the neighborhood. Chapter 20.95 of the Municipal 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. W1 Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 6 Analysis Chapter 20.93 (Modification Permits) of the Newport Beach Municipal Code provides for administrative relief for certain development proposals where there is a practical difficulty or physical hardship, including relief from the required building setbacks and from the maximum height limitations for walls, fences, and hedges. In order to approve a modification permit, the following three findings must be made: A. The granting of the 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 such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. Practical Difficulties Finding A. The granting of the 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. To make this finding, it must be shown that the property has some practical difficulty or constraint that, when combined with the strict application of the setbacks and height limitations, creates a physical hardship that is inconsistent with the purpose of the code. Typically, setback modifications are permitted for exceptionally small or irregularly shaped lots that do not meet current lot standards or for lots where topography severely limits proposed development. Fence and hedge height modifications are typically permitted for properties that require pool protection fencing, properties where the topography of the lot creates difficulty in maintaining a consistent fence height, or for properties adjacent to heavily traveled streets (i.e. Jamboree Road) and need increased noise attenuation. In determining whether or not this finding can be supported, the Planning Commission should consider the following factors: Practical Difficulties: In this case, the subject lot is actually one of the larger lots in the community and consists of gradual sloping topography, with the exception iI Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 7 of steeper slopes towards the front and side property lines. However, the property is significantly impacted by an 86 -foot front yard setback requirement, which is disproportionately larger than any other front yard setback in the community and equates to approximately 46 percent of the total lot area. Front yard setbacks for the Harbor View Hills Community Association range from 6 feet to 86 feet, with no apparent consistency in their application with respect to lot size or lot orientation. The application of an 86 -foot front yard setback on this property disproportionately impacts this property owner, not only by limiting the percentage of the lot area the applicant can build on, but also resulting in a front yard area significantly greater than that of other properties (Exhibit 6; Front Yard Setback Comparison). • The subject lot is located between the intersections of Ebbtide Road /Crown Drive and Crown Drive North/Crown Drive, with the entire northerly property line exposed to Crown Drive. Similar to many other lots in the community that are located adjacent to Crown Drive or similar streets, the subject lot is exposed to increased light impacts from vehicle headlights and noise from vehicles traveling along the street. Typically, a 6 -foot wall/fence along side yards is considered an appropriate height to mitigate against such impacts; however, the other lots adjacent to Crown Drive in the community are not required to provide front yard setbacks larger than 20 feet, allowing a greater portion of those lots to be protected and screened with a 6- foot -high fence, wall, or hedge. Although the applicant is proposing hedges in excess of 6 feet within the front yard setback, it can be argued that the subject property has a disproportionate length of his lot that is exposed to vehicle noise and headlight impacts due to the 86 -foot front yard setback. • Given the location at the southwest comer of the intersection of Crown Drive and Crown Drive North, the applicant contends that the lot is not only subject to the increased traffic impacts described above, but is also subject to an increased risk of vehicles colliding into his property. The applicant states that there have been 3 collisions into previous driveway gates and several near misses in the past. Purpose and Intent: • The purpose and intent of requiring properties to maintain setbacks and height limitations is to ensure adequate light, air, privacy, and open space is provided for each dwelling unit, as well as to protect residents from harmful effects of excessive noise, population density, traffic congestion, and other adverse environmental effects. Additionally, these development standards are intended to achieve compatibility with the surrounding neighborhoods. • Typically, front yard setbacks are larger than side and rear setbacks to promote open, visually pleasing front yards. However, it should be noted that 0 Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 8 the development pattern of this particular terraced subdivision is not typical in that lots located on the west side of Ebbtide Road, Goldenrod Avenue, and White Sails Way are reversed with their front yard setbacks located on the view side and their 6 -foot rear yard setbacks fronting the street. This configuration permits these lots the ability to entirely screen their rear yards from the street with 6- foot -high walls, fences, and hedges. • The Zoning Code establishes a 6 -foot height allowance for fences, walls, and hedges within the side and rear yard setbacks areas and a 3 -foot height allowance within the front yard setback areas. These height limitations are standard throughout the City and are considered to provide adequate privacy and protection for most properties. It should be noted that areas of the City with sub - standard subdivisions, such as Old Corona del Mar and the Balboa Peninsula, are permitted fence and wall heights of 5 feet within the front yard setbacks (the upper 3 feet must be 40 percent open). This exception was created to afford these properties increased privacy due to the small lots and minimal front yard setbacks to the street. Phvsical Hardship: • Given the subject lot's large front yard setback and the 3 -foot height limitation for fences, walls and hedges within this setback, the applicant is significantly limited to the types of improvements that can be constructed on the property, including a protective wall, fence or screen hedge. As a result, the lot is afforded less privacy and subject to increased noise and headlight impacts from vehicles then the other properties similarly situated adjacent to Crown Drive or similar roadways. This is inconsistent with the purpose and intent of the Zoning Code. • The applicant added a 10 -foot -high sculpture (Sculpture 1) and is proposing an 11 -foot -high sculpture (Sculpture 2) for the stated purpose of enhancing the visual appearance of the large front yard area. The setback creates a physical hardship in locating these structures within the front yard due to the height limitation of 3 feet. The sculptures cannot be located behind the front yard setback since the house is located at the setback line due to the limited buildable area of the lot. These encroachments are minor in nature and similar to other accessory outdoor garden improvements, such as a patio umbrella, heater, or fountain. • Given the location of the lot in relationship to the intersection of Crown Drive and Crown Drive North, and in order to provide increased protection from vehicular impacts, the applicant contends that a larger driveway gate is required to increase visibility of the gate and alert on- coming vehicles to the turning roadway, and to help shield the property from vehicular headlights. The new 9.5 -foot -high gate was constructed of reflective stainless steel and increased height to make the gate more visible to drivers at night. i� Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 9 It is staffs belief that the property is severely impacted by the disproportionately large 86- foot front yard setback, which in combination with the 3 -foot height limitation within the setback and location adjacent to Crown Drive, arguably affords the property less privacy and exposes a greater percentage of the property to vehicle noise and headlight impacts . This also creates difficulty for the applicant to enhance the front yard with minor architectural features, such as the sculptures; however, the applicant's request for total privacy by maintaining hedges up to 12 feet high is excessive and can been considered granting a special privilege over that of what other property owners in the area are entitled. Staff believes the applicant's concerns regarding vehicular safety and the desire to provide a visible and protective driveway gate are warranted; however, a 7- foot -high gate as previously permitted by Modification Permit No. 2509 is adequate to meet these concerns. Staff does not believe sufficient facts are evident to support the finding for the entire modification request as proposed; however, staff believes facts are evident to support the findings for the following improvements: Entry Gate & Pilaster- The existing 6- foot -high entry gate and pilaster encroach 46 feet into the 86 -foot front yard setback, maintaining a 40 -foot setback to the front property line. Allowing the this encroachment affords the property owner equitable privacy and protection from the vehicle noise and headlight impacts on Crown Drive, consistent with other properties in the neighborhood, while still providing a reasonably open front yard area, consistent with the purpose and intent of the Zoning Code. Hedge 1- Allowing Hedge 1 to encroach a maximum of 66 feet into the 86 -foot front yard setback, with a hedge height not to exceed 6 feet, maintains a 20 -foot setback to the front property line consistent with the largest front yard setback of the other lots located adjacent to Crown Drive. This encroachment affords the property owner equitable privacy and protection from vehicle noise and headlight impacts on Crown Drive, consistent with the development limitations other properties abutting Crown Drive in the neighborhood are afforded. Sculptures- The existing and proposed sculptures are minor architectural encroachments, similar to other accessory outdoor garden improvements such as a patio umbrella, heater, or fountain, and allow the applicant to enhance the visual appearance of the large front yard area. Modification requests for similar sculpture and fountain encroachments have been approved in the past for various properties throughout the City. Neighborhood Compatibility Finding B. The requested modification will be compatible with existing development in the neighborhood. Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 10 The purpose of this finding is to ensure that the granting of the modification will not result in development that is out of character with existing development in the neighborhood. In determining whether or not this finding can be supported, the Planning Commission should consider the following: • Entry Gate & Pilaster- The existing entry gate and pilaster have been in place for several years and maintain a 40 -foot setback to the front property line, more than what a majority of the other properties in the neighborhood are required to provide, and can be found compatible with the existing development. • Hedge 1- Encroaching within 12 feet of the front property line with the proposed hedge exceeds what other similarly situated lots are permitted to develop and results in development that is out of character with existing development within the community. If the hedge is pulled back to maintain a 20 -foot setback to the front property line, one could consider a 6 -foot hedge compatible with the development of the lots similarly situated adjacent to Crown Drive; however, such a reduced setback would then be incompatible with the 68 -foot setback of the lot immediately south of the applicant at 1126 Ebbtide Road. • Hedge 2- Hedge 2 at a height of 12 feet exceeds the standard 6- foot -high fences, walls, and hedges that other properties in the neighborhood are permitted to provide and results in development that is out of character with the development limitations in the neighborhood. Although hedge heights are difficult to maintain and several properties throughout the community do provide hedges and screen planting in excess of the height limits required by the Zoning Code, these hedges are in violation and should not be used for addressing compatibility in the neighborhood. • Drivewav Gate- The existing 9.5- foot -high driveway gate exceeds the standard 6- foot -high fences and walls that other properties in the neighborhood are permitted to provide and results in development that may be considered out of character with the existing development pattern in the neighborhood. It should be noted however, that the wrought iron vehicular access gate constructed by the Jasmine Creek Community Association on the property immediately east of the subject lot is 7.5 feet high. The applicant's as -built driveway gate is an average height of 7.75 feet (9.5 feet max) and can arguably be found consistent character with the adjacent gate. • Sculptures- The sculptures are minor architectural features that result in negligible visual impacts, similar to other accessory outdoor improvements, such as patio umbrellas, heaters, and fountains. These improvements enhance the applicant's front yard landscaping and will not result in development that is out of character with the existing neighborhood. • The Harbor View Hills Community Association reviews proposed developments within the community to ensure compatibility with the character of the I a- Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 11 neighborhood, and have submitted a letter stating they have no objection to the hedges so long as they do not impede Association views or traffic safety. It should be noted that the neighbor whose views are impacted by the hedges is located north of Crown Drive in another association (Harbor View Broadmoor). The front yard landscaping improvements can be found consistent with General Plan Land Use Policy LU 5.1.6 (Character and Quality of Residential Properties) which requires that residential front yard setbacks and other areas visible from the public street be attractively landscaped. • As previously stated, the lots on the west side of Ebbtide Road, across the street from the applicant, are reversed frontage lots with the front yard setbacks on the view side and the 6 -foot rear yard setbacks fronting Ebbtide Road. This configuration permits screening of rear yards from the street with 6 -foot walls, fences, and hedges, similar to what the applicant is proposing. Health and Safety Finding C. The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. Staff believes the extension of the entry gate and pilaster into the front yard setback, the over - height sculptures, and the over - height driveway gate, will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. The entry gate and pilaster have existed in that location since 1980 without proving to be detrimental. The sculptures are minor architectural features that do not impact views and should not negatively impact persons residing in the neighborhood. The driveway gate provides the applicant increased protection from vehicular impacts at the intersection and increases visibility and safety for on- coming vehicular traffic approaching the intersection. The hedges are several years old and have not proven detrimental to most surrounding property owners or contributed to vehicle site distance problems. Several surrounding property owners have actually submitted letters in support of the hedges, as they provide increased privacy for their properties also; however, the neighboring property owner that is opposed to the hedges is negatively impacted by the hedges. According to the neighbor at 2739 Windover Drive, the hedges have grown taller over the years, slowly eliminating views of Catalina Island and sunset views of the ocean. It is important to note that the City does not have private view protection policies or regulations; however, when a height deviation is requested from what is normally permitted by Zoning Code, it is reasonable to take into consideration the resulting private view impacts the deviation creates. The neighbor states, and it is evident from the photographs in Exhibit 7, that private views of Catalina Island and sunset views of the ocean are completely screened by any hedge that measure 6 feet or higher. These view i3 Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 12 impacts could, therefore, be considered detrimental, and the finding cannot be made for any portion of the over - height hedges that significantly impacts the private view. Summary Based on the above analysis of the 3 necessary findings to approve the subject modification request, staff is recommending approval of the entry gate, pilaster, and sculpture encroachments as requested. Due to the view impacts to the neighboring property owner north of Crown Drive, and taking into account the front yard setbacks of the adjacent lot and other similarly situated lots in the community, staff believes that the 46 -foot encroachment into the 86 -foot front setback area (maintaining a 40 -foot setback) with the existing entry gate and pilaster provides the applicant equitable privacy and protection and that Hedge 1 should be limited to a height of 3 feet. Hedge 2 is recommended to be trimmed down to a maximum height of 7 feet, consistent with the previous modification approval. Due to the lack of facts to support the need for an 11- foot -high driveway gate and to the incompatibility with other improvements in the community, staff is recommending that the gate be replaced with a 7— foot -high gate, as previously approved, which should be sufficient to protect the residence from potential vehicle impacts. Alternatives 1. Should the Planning Commission concur with the Zoning Administrator's findings for approval of Modification Permit No. 2007 -050, the Planning Commission should deny the appeal and uphold the Zoning Administrator's approval. 2. Should the Planning Commission determine that not all the findings can be made, the Planning Commission should direct staff to prepare findings and a resolution of denial for the requests and return at the next Planning Commission meeting date with such resolution for adoption. 3. Should the Planning Commission determine that the 86 -foot front yard setback arbitrarily and disproportionately impacts the subject lot, but find that the applicant's modification request is more appropriately addressed through amending the front yard setback, the Planning Commission should initiate a code amendment. Environmental Review The project qualifies for a Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the Implementing Guidelines of the California Environmental Quality Act (CEQA). The exemption includes the addition of accessory structures to an existing structure. �4 Appeal of Modification Permit No. 2007 -050 October 18, 2007 Page 13 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: aim1 M rillo, Associate Planner EXHIBITS: Submitted by: 1. Draft Resolution 2. Project Plans 3. Site Photographs 4. Modification Permit No. 2509 5. Modification Permit No. 2007 -050 Approval Letter 6. Front Yard Setback Analysis 7. Photographs of Neighbor's View Impacts 8. Letters of Opposition 9. Letters of Support F:WSERSIPLMSharecAPA'sIPAs - 20071PA2007- 1111MD2007- 050PCrpt.doc J5 Exhibit No. 1 Draft Resolution 11 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH MODIFYING THE ZONING ADMINISTRATOR'S APPROVAL OF MODIFICATION NO. 2007 -050 FOR PROPERTY LOCATED AT 1132 EBBTIDE ROAD (PA 2007 -111) WHEREAS, an application was filed by Mr. and Mrs. Paul Fruchbom with respect to property located at 1132 Ebbtide Road, and legally described as Lot 77 of Tract 2202, requesting approval of a modification permit to exceed the 3 -foot height limit for fences, hedges and accessory structures within the required 86 -foot front yard setback with the retention of the following elements: 1) hedges; 2) a portion of an entry gate; 3) a pilaster; and 4) a sculpture. The request also included the addition of a new 11 -foot- high sculpture within the front setback and the retention of an existing 9.5- foot -high vehicle access gate located in the 6 -foot side yard setback; and WHEREAS, at a noticed public hearing held on August 20, 2007, the Zoning Administrator considered the application, plans and evidence, both written and oral, and approved Modification Permit No. 2007 -050 with conditions restricting the height of the hedges; and WHEREAS, on August 27, 2007, Planning Commissioner Michael Toerge initiated an appeal of the Zoning Administrator's approval of Modification Permit No. 2007 -050 on the grounds that the proposed modification fails to meet all three of the required findings necessary to approve the request; and WHEREAS, 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; and WHEREAS, a public hearing on the appeal of the Zoning Administrator's decision to approve Modification Permit No. 2007 -050 was held on October 18, 2007 in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the aforesaid meeting was given. The application, plans, a staff report and evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting; and WHEREAS, the property is designated Single -Unit Residential Detached by the General Plan Land Use Element and Local Coastal Program Land Use Plan and zoned R- 1 -13 (Single - Family Residential). The existing residential structure is consistent with these designations. The existing hedges, portion of entry gate, pilaster, existing and proposed sculptures, and existing vehicle gate are accessory to the primary use; and WHEREAS, Section 20.93.030 (Modification Permits) of the Newport Beach Municipal Code requires findings and facts in support of such findings for approval of a modification permit for the retention of the existing hedges, entry gate, pilaster, and 19 City of Newport Beach Planning Commission Resolution No. Paqe 2 of 7 sculpture, and the addition of proposed 11 -foot high sculpture located within the 86 -foot front yard setback. Such findings and facts to support such findings are as follows: 1. Finding: The granting of the 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. Facts in Support of Finding: a. The property is significantly impacted by an 86 -foot front yard setback requirement, which is disproportionately larger than any other front yard setback in the community and equates to approximately 46 percent of the total lot area. Front yard setbacks for the Harbor View Hills Community Association range from 6 feet to 86 feet, with no apparent consistency in their application with respect to lot size or lot orientation. The application of an 86 -foot front yard setback on this property disproportionately impacts this property owner, not only by limiting the percentage of the lot area the applicant can build on, but also resulting in a front yard area significantly greater than that of other properties. b. The subject lot is located between the intersections of Ebbtide Road/Crown Drive and Crown Drive North /Crown Drive, with the entire northerly property line exposed to Crown Drive. Similar to many other lots in the community that are located adjacent to Crown Drive or similar streets, the subject lot is exposed to increased light impacts from vehicle headlights and noise from vehicles traveling along the street. Typically, a 6 -foot wall/fence along side yards is considered an appropriate height to mitigate against such impacts; however, the other lots adjacent to Crown Drive in the community are not required to provide front yard setbacks larger than 20 feet, allowing a greater portion of those lots to be protected and screened with a 6- foot -high fence, wall, or hedge. Since the subject property is constrained with an 86 -foot front yard setback, a disproportionate percentage of the property is limited to improvements of a maximum height of 3 feet, thereby increasing the applicant's exposure to vehicle noise and headlight impacts. c. To enhance the visual appearance of the large front yard area for the applicant's benefit, a 10- foot -high sculpture has been added and an additional 11- foot -high sculpture is proposed. The setback creates a physical hardship in locating these structures within the front yard due to the height limitation of 3 feet. The sculptures cannot be located behind the front yard setback since the house is located at the setback line due to the limited buildable area of the lot. These encroachments are minor in nature and similar to other accessory outdoor garden improvements such as a patio umbrella, heater, or fountain. d. The existing 6 -foot high gate and pilaster that encroach 46 -feet into the front yard setback, maintaining a 40 -foot setback to the front property line, affords the property owner equitable privacy and protection from the traffic impacts from the M City of Newport Beach Planning Commission Resolution No. _ Page 3 of 7 Crown Drive, consistent with other properties in the neighborhood, while still providing a reasonably open front yard area, consistent with the purpose and intent of the Code. e. The applicant's request for total privacy by encroaching within 12 feet of the front property line and maintaining hedges 10 -12 feet high is excessive and can been considered granting a special privilege over that of what other properties are entitled. 2. Finding: The requested modification will be compatible with the existing development in the neighborhood. Facts in Support of Finding: a. Harbor View Hills Community Association reviews proposed developments within the community to ensure compatibility with the character of the neighborhood, and have submitted a letter stating they have no objection to the hedges so long as they do not impede Association views or traffic safety. b. The existing entry gate and pilaster have been in place for several years and maintain a 40 -foot setback to the front property line, more than what a majority of the other properties in the neighborhood are required to provide, and can be found compatible with the existing development. c. The lots on the west side of Ebbtide Road, across the street from the applicant, are reversed frontage lots with the front yard setbacks on the view side and the 6 -foot rear yard setbacks fronting Ebbtide Road. This configuration permits screening of rear yards from the street with 6-foot walls, fences, and hedges. The entry gate and pilaster encroachment is consistent with this development pattern. d. The sculptures are minor architectural features that result in negligible visual impacts, similar to other accessory outdoor improvements, such as patio umbrellas, heaters, and fountains. These improvements enhance the applicant's front yard landscaping and will not result in development that is out of character with the existing neighborhood. e. The front yard landscaping improvements can be found consistent with General Plan Land Use Policy LU 5.1.6 (Character and Quality of Residential Properties) which requires that residential front yard setbacks and other areas visible from the public street be attractively landscaped. 3. Finding: The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. t�I City of Newport Beach Planning Commission Resolution No. _ Paae 4 of 7 Facts in Support of Finding: a. The encroachment of the entry gate and pilaster into the front yard setback and the over height sculptures will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. b. The entry gate and pilaster have existed in that location since 1980 without proving to be detrimental. c. The sculptures are minor architectural features that do not impact views and should not negatively impact person's residing in the neighborhood. WHEREAS, the proposed modification permit for the retention of an as -buik 9.5- foot high driveway gate located within the required 6 -foot side yard setback and retention of an existing hedges shall be denied in accordance with Chapter 20.93 (Modification Permits) of the Newport Beach Municipal Code, for the following reasons: 1. Although the subject property is located at the southwest comer of the intersection of Crown Drive and Crown Drive North and subject to increased impacts from vehicle headlights illuminating his residence from cars driving down Crown Drive North and turning, as well as an increased risk of vehicles crashing into his property, a 7 -foot high gate as previously permitted by Modification Permit No. 2509 is adequate to provide protection from these impacts and provide sufficient visibility to alert on- coming vehicles of the turning roadway. 2. The as -built 9.5 -foot high vehicle access gate exceeds the standard 6 -foot high fences and walls that other properties in the neighborhood are permitted to provide and results in development that is considered out of character with the existing development pattern in the neighborhood. 3. The existing 12 -foot high hedge located east of the entry gate exceeds the standard 6 -foot high fences, walls, and hedges that other properties in the neighborhood are permitted to provide, as well as the 7 -foot height allowance permitted by Modification Permit No. 2509 in 1980. Maintaining the hedge at a height of 12 feet is excessive and can been considered granting a special privilege over that of what other properties are entitled. Additionally, the hedge results in development that is out of character with the development limitations in the neighborhood. 4. The neighboring property owner located at 2739 Windover Drive is negatively impacted by the hedges. According to the neighbor, the hedges have grown taller over the years, slowly eliminating views of Catalina Island and sunset views of the ocean. It is important to note that the City does not have private view protection policies or regulations; however, when a height deviation is requested from what is normally permitted by Code, it is reasonable to take into consideration the resulting private view impacts the deviation creates. The neighbor's private views of Catalina Island and sunset views of the ocean are completely screened by the hedge located west of the entry gate; therefore, the 2a City of Newport Beach Planning Commission Resolution No. _ Paqe 5 of 7 request to exceed the 3 -foot height limitation with this hedge can be found detrimental to persons residing in the neighborhood. Taking into account the front yard setbacks of the adjacent lot (68 feet) and other similarly situated lots in the community (13 to 20 feet), staff believes that the existing 46 -foot encroachment into the 86 -foot front setback area (maintaining a 40 -foot setback) with the existing entry gate and pilaster provides the applicant equitable privacy and protection. WHEREAS, the proposed project qualifies for a Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the Implementing Guidelines of the California Environmental Quality Act (CEQA). The exemption includes the addition of accessory structures to an existing structure; and NOW, THEREFORE, BE IT RESOLVED: Section 1. The Planning Commission of the City of Newport Beach hereby approves Modification Permit No. 2007 -050 as modified, subject to the Conditions set forth in Exhibit "A." 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 in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 18th DAY OF OCTOBER 2007. BY: Robert Hawkins, Chairman L Bradley Hilgren, Secretary AYES: NOES: ABSENT: �3 City of Newport Beach Planning Commission Resolution No. _ Paae 6 of 7 EXHIBIT "A" CONDITIONS OF APPROVAL MODIFICATION PERMIT NO. 2007 -050 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. The existing hedge previously approved by Modification Permit No. 2509 allowing an encroachment into the required 86 -foot front yard setback shall be trimmed to a maximum of 7 feet, as measured from the immediately adjacent grade elevation of the interior front yard, to comply with the original conditions of approval of Modification Permit No. 2509. 4. The existing 6 -foot high pilaster, portion of entry gate and approximately 10 -foot high sculpture encroaching 46 feet into the 86 -foot front yard setback shall be retained at their present height. 5. The existing 10 -foot high hedge located west of the entry gate shall be trimmed to a maximum height of 3 feet measured from the immediately adjacent grade elevation of the interior front yard. 6. The placement of new trees (in accordance with the definition of the Municipal Code) located within the 86 -foot front yard setback, along the northeasterly property line shall be adequately spaced and shall not create a hedge or screen planting, and shall receive review and approval by the Planning Department prior to installation. 7. The proposed sculpture shall be a maximum of 11 feet in height (including its base), and will be located to the interior side of the existing hedge. The sculpture shall encroach no more than 65 feet into the required 86 -foot front yard setback. 8. The existing driveway access gate (approximately 9.5 feet in height measured from the adjacent sidewalk) shall be removed and replaced with a gate not to exceed a height between 6 and 7 feet to comply with the original conditions of approval of Modification Permit No. 2509. 9. In order to provide adequate sight distance at the intersection of Ebbtide Road and Crown Drive, the height of existing plantings shall be reduced to 24 inches maximum within the sight distance triangle, per City Standard 110 -L, unless otherwise approved by the Public Works Department. This reduction in height of plantings within the sight distance triangle shall be subject to review and approval prior to issuance of building permits, unless otherwise approved by the Public Works Department. 11 City of Newport Beach Planning Commission Resolution No. _ Paqe 7 of 7 10. If any of the existing public improvements surrounding the site is 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 completion of private construction. Said determination and the extent of the repair work shall be made at the discretion of the Public Works inspector. 11. 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. 12. All work performed within the public right -of -way shall be reviewed and approved by the Public Works Department under an encroachment permittagreement, if required. 13. This approval shall expire unless exercised within 24 months from the approval date, as specked in Section 20.93.055 of the Newport Beach Municipal Code. Prior to the expiration date of this approval, an extension may be approved in accordance with Section 20.93.055 (B) of the Newport Beach Municipal Code. Requests for an extension must be in writing. 9 Exhibit No. 2 Project Plans �® tl z 0 U 6 w 4 Q SS & @@ 9 4 j 1E t i �ZQ> w& o; Qi F$ °m s zz bgw wa¢ Y pp dNF fl} es 3 ; e p Ri� s 8 adS: �o 87 z a Q4R SxF C Q y3yai,, I Z w rt ppz F� p m pp z ¢ of u W sa e. ppFF apmpa. x$ 6g w NEE p aG� $ vl� w j All- 4 aa H 9a WIN g3° £ cr o w I .vn.e ¢ g U wa m ^a E C $ p cr > m gym$ g 6 u ,gog � Q — - - -E S I I � eroea eaa e QO x Exhibit No. 3 Site Photographs 3► I i v l� 1 v; 7 .1j I P U ;> r, e ^t+ - a, 'r,. � '1 r✓� e a d is 0 a n r r� .L* e � e 'T N r ' -� } .� |/ , a '� � � /=c R ©� � / , . t« \�Y c » �\ . �� }� �� ! �� ; ! �.�^ , E` # . \ � �� , i � \� . � \ yx a !�« � \ _ / `� 2 - & m^ / \. ». « Z � `� , f� � 2 :� Exhibit No. 4 Modification Permit No. 2509 3'\ I: e. 2509 ;Appj jcttti Max5on B- Smith d c: rr•ss of Property Involvt:d Co rona 1132 Ebbtive Robd, Cona del Mar v Lot 77, Tract No. 2202 h Ve,,n e 1%,T It . tp.d to permit: 1.) Construction and replacement of an existing 61 tO t7 9 ce a I -ncE ; and 2.) anew 8 6" high entr and -Ut:o �ILI.Ien ,tii�; permits .g mazimWn ,,enE-rO-ach1Wn-F-JW1P in 0 0 requ) red 85 front rd setback area where the Code permitscag u '31-EF ----TFre ip - SiFfe-nc-e-7-rFere ' ex s Ing poor-e-Opment within the required tr northeasterIT- . . . . . . . e ya seWcR area. he Modifications Committee on February 19. 1980 approved the application s . iiiiiject to the following conditions: ..T. That development shall be in substantial conformance with the approved plot plan and :The Modifications Committee determined in this case that the proposal would .snot -b,e detrimental to persons, property or improvements in the neighborhood . and.,that the modification as approved would be :.insistent with the led-islative °Intent of Title 20 of the Newport Beach Municipal Code, and made the following ,findings: 1. That the proposed fence and entry development in the 'd ill not Tial proNrty-and wi I I not De de"' front ) obstruct Vt0N-fm--m-aErj-vining resiBen lriiikaT CoLth! minor encroac nts OT the Tence height along Crown Frfve. —occur -at-t-Effac-edToloffscaffsdff 5TUW-Ferrain of thie-sr'FEK-3. Inat trie natural gradeof-the 'IrR is a' ve stre lst h2ight and access to fife-Tr-o-nf-of-I If House requires Ploclit tea tions W Telluc height requirenientS. 4. ihat tne existing pool equipment 19 locatea adj5cent W •metre I to adjacent rest centiai properties. �:110TE: This approval shall extend for it period of 18 earths from the end of the appeal period, and cannot be extended. The decision of the CorimiLtac may be appealed to the Planning Commission or _vithipl< day'. of the di,tc- thr.- decision. Any appeal filed shall be by is filing fee of $100.00. Na btjildin; permits may be issued -;until Lhr: Ipp(-i:l period has expired. 114111.%-*:!:.5 W-A'Al! WE [If Iq.!4ICK;i:. WITC102 tow" Villiew P.. Cv ^rcnt Pl::nning Administrator 'JIL : lorAivy. iris 1. 13!• affi)." ,O the plans 111,C-81 --W-wil.ted fl:rjilai: clit!CA: and ti-jiltlir.": J-t-rfaits. 2i WIN. IIN lot Ali -- .., `�. , , , , I 1TI 44 71WA=a=jlWl:j I � ©\ Ew sdua� |I ', R Exhibit No. 5 Modification Permit No. 2007 -050 Approval Letter A") August 20, 2007 PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92663 (949) 644 -3200 FAX(949)644 -3229 NOTICE OF ZONING ADMINISTRATOR ACTION Paul and Norma Fruchbom 1132 Ebbtide Road Newport Beach, CA 92660 Approved Modification Permit No. MD2007 -050 Application No. (PA2007 -111) Site Address 1132 Ebbtide Road On August 20. 2007, the Zoning Administrator approved the above referenced application based on the findings and conditions in the attached action letter. Zoning AqKinistratgr Javier S. Garcia, AICP JSG:ks /rb cc: APPEAL The Zoning Administrator's decision may contact be appealed to the Planning Commission within 14 Michael P. Simondi days of the action date. A $600.00 filing fee shall 4685 Macarthur Court, Suite 450 accompany any appeal filed. No building permits Newport Beach, CA 92660 may be issued until the appeal period has expired. A5 Application No. Applicant Site Address Legal Description MODIFICATION PERMIT NO. MD2007 -050 (PA2007 -111) PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92663 (949) 644 -3200 FAX (949) 644 -3229 Modification Permit No. MD2007 -050 (PA2007 -111) Paul and Norma Fruchbom 1132 Ebbtide Road Lot 77, Tract 2202 On August 20, 2007, the Zoning Administrator approved the application request to exceed the 3 foot height limit allowed for fences and screen plantings (hedges) in the required 86 -foot front yard setback with the retention of the following existing elements: 1.) screen planting /hedge, 2.) an entry gate, 3.) a pilaster, and 4.) sculpture. Also included is a request to permit the addition of a new 10 -foot tall sculpture and retention of the existing screen planting (hedge) that encroaches 74 feet into required 86 -foot front yard setback. The application includes a request to allow the retention of an existing vehicle access gate located within the 6 -foot side yard setback. The hedge is approximately 18 feet tall and the vehicle access gate is approximately 11 feet tall, measured from the adjacent sidewalk. The property is located in the R -1 -13 District. The Zoning Administrator's approval is based on the following findings and subject to the following conditions. FINDINGS 1. The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Single -Unit Residential Detached" use. The existing residential structure is consistent with this designation. The existing hedge, portion of entry gate, pilaster, existing and proposed sculptures, and existing vehicle access gate are accessory structures to the primary use. 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). \N 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 property that would be precluded by strict application of the zoning requirements for this District for the following reasons: • The subject property is a corner lot located at the intersection of Ebbtide Road and Crown Drive. The building pad is generally level, with a slope toward Ebbtide Road, and is elevated approximately 8 to 10 feet above both streets measured at the sidewalk. The properties located across Crown Drive are higher in elevation and in a direct line of sight to the front of the residence located on the property. The northerly rear side of the property is at street level and is located at the corner of Crown Drive North and Crown Drive. The rear of the residence and pool area are exposed to traffic noise and loss of privacy due to the close proximity of the intersection of the two streets. • The property is subject to a required 86 -foot front yard setback fronting Ebbtide Road and a required 6 -foot side yard setback adjacent to Crown Drive. Walls, gates, pilasters, hedges, and similar accessory structures are allowed in required front yard setbacks to a maximum height of 3 feet and in required side yard setbacks to a maximum 6 feet. • A Modification Application (MD2509) was approved February 19, 1980 permitting the construction and replacement of an existing 6 to 7 -foot high fence and driveway gate along the northeasterly side property line. Also a new 8 -foot 6 -inch high entry archway (the archway was not constructed but two 6 -foot tall pilasters were constructed in its place) and a 6 to 7 -foot high fence encroachment, 38 feet into the required 86 -foot front yard setback area along Crown Drive, was approved. 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 property has a required 86 -foot front yard setback which allows accessory structures to a maximum height of 3 -feet. This required front yard area is approximately one -half the length of the lot and is the view -side of the property. Although the subject property is generally elevated above street level, it is at the same elevation or lower than properties located across Crown Drive. Exceeding the height of accessory structures allowed within the required 6 -foot side yard setback along Crown Drive and within the required 86 -foot front yard setback adjacent to Ebbtide Road and Crown Drive is necessary to provide privacy for the existing residence which is in the direct line of sight of the neighboring properties across Crown Drive. The strict application of the Zoning Code would significantly impact the privacy at the view -side area of the property. August 20, 2007 F:1Users\PLN\Shared\PA's1PAs - 20071PA2007- 1111MD2007 -050 appr.doc Page 2 k 1 • The retention of the vehicle access gate at the rear of the property is requested to provide noise mitigation for the residence and pool area from the street traffic at the intersection of Crown Drive and Crown Drive North. 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 project will modify the previous action taken by Modification Application No. 2509, approved February 19, 1980, which permitted a side yard fence and front entry gate exceeding the 3 -foot height limit to encroach 38 feet within the required front yard setback area and a fence and driveway gate exceeding the 6 -foot height limit within the required side yard setback area. The revised request will extend the fence and pilaster approximately 8 feet into the 86 -foot front yard setback and has been in place for several years, as evidenced by photographs presented at the hearing. • Reducing and limiting the height and granting the request to exceed the height limit for hedges, walls, gates and other accessory structures within the required front and side yard setbacks is consistent with conditioned approvals granted by the Modifications Committee and the Planning Commission for similar structures in this neighborhood and Citywide. This will also reduce the existing nonconforming status and bring the height closer to conformance to the allowances authorized by the Community Association. • The encroachment of the hedge (as reduced and limited in height by this approval), portion of entry gate, pilaster, vehicle access gate and sculptures within the front and side yards is minor in nature and consistent with the encroachment of similar structures within the front and side yards of corner properties within the neighborhood. • The Harbor View Hills Community Association has no objection to the existing and proposed hedges, and by extension will have no objection to the reduced and limited height of the hedge and screen plantings. 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 existing hedge extending beyond the originally permitted 38 -foot front yard encroachment will be lowered to match the height of the hedge approved by Modification Permit No. 2509. The lowered height of the hedge will continue to provide privacy for the front and side yards of the existing residence, and will limit obstruction of views across the property by neighboring properties. August 20, 2007 F: \Users \PLN \Shared \PA's \PAs - 2007 \PA2007 - 111 \MD2007 -050 appr.doc Page 3 ,` • The encroachment of the existing hedge, portion of entry gate, pilaster, and sculpture, and the proposed sculpture into the required front yard setback is minor in nature and will limit the obstruction of views from the neighboring properties. • The vehicle access gate which exceeds the height allowed by Modification Permit No. 2509 has not caused any sight distance problem along Crown Drive and Crown Drive North, and there are no adverse impacts public views across the 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. The existing hedge previously approved by Modification Permit No. 2509 allowing an encroachment into the required 86 -foot front yard setback will be lowered to between 6 and 7 feet in height to comply with the original conditions of approval of the Modification Permit. 4. The existing 6 -foot high pilaster, portion of entry gate and approximately 10 -foot high sculpture encroaching 46 feet into the 86 -foot front yard setback shall be retained at their present height. The existing hedge encroaching approximately 74 feet into the required 86 -foot front yard setback may be retained and shall be regularly maintained in height to between 6 and 7 feet to match the hedge previously approved by Modification Permit No. 2509, and in no case shall it exceed a maximum height of 7 feet measured from the immediately adjacent grade elevation of the interior front yard. 5. The placement of new trees (in accordance with the definition of the Municipal Code) located within the 86 -foot front yard setback, along the northeasterly property line shall be adequately spaced and shall not create a hedge or screen planting, and shall receive review and approval by the Planning Department prior to installation. 6. The proposed sculpture shall be a maximum of 11 feet in height (including its base), and will be located to the interior side of the existing hedge. The sculpture shall encroach no more than 65 feet into the required 86 -foot front yard setback, unless otherwise approved by the Zoning Administrator. 7. The existing driveway access gate (approximately 11 feet in height measured from the adjacent sidewalk) may be retained in its present configuration and shall not exceed present height. Application and plans for building permit for the as- built installation shall be submitted within 30 days of the effective date of this August 20, 2007 F:1Users\PLN\Shared\PA's1PAs - 20071PA2007- 1111MD2007 -050 appr.doc Page 4 1 q approval and a building permit shall be obtained within 60 days of the effective date of this approval. 8. In order to provide adequate sight distance at the intersection of Ebbtide Road and Crown Drive, the height of existing plantings shall be reduced to 24 inches maximum within the sight distance triangle, per City Standard 110 -L, unless otherwise approved by the Public Works Department. This reduction in height of plantings within the sight distance triangle shall be subject to review and approval prior to issuance of building permits, unless otherwise approved by the Public Works Department. 9. Modification Permit No. 2059 approved a 6 to 7 foot fence along the northeasterly property line encroaching 38 feet into the 86 foot front setback. The existing hedge along the property line is limited from 11 to 12 feet in height and will terminate 38 feet into the required 86 -foot front setback, shall be regularly maintained in height to between 11 and 12 feet, and in no case shall it exceed a maximum height of 12 feet measured from the immediately adjacent grade elevation of the interior front yard. 10. If any of the existing public improvements surrounding the site is 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 completion of private construction. Said determination and the extent of the repair work shall be made at the discretion of the Public Works inspector. 11. 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. 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 for the as -built sculpture and the vehicle access gate installation, prior to commencement of construction. 14.. 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. August 20, 2007 F:IUsers\PLNIShared\PA's\PAs - 20071PA2007- 1111MD2007 -050 appr.doc Page 5 5a 15. 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. 16. This approval shall expire unless exercised within 24 months from the approval date, as specified in Section 20.93.055 of the Newport Beach Municipal Code. Prior to the expiration date of this approval, an extension may be approved in accordance with Section 20.93.055 (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 $600.00 filing fee shall accompany any appeal filed. No building permits may be issued until the appeal period has expired. A copy of the approval letter shall be incorporated into the Building Department set of plans prior to issuance of the building permits or issuance of revised plans. By: Zoning A$ministratVr Javier S. Garcia, AICP JSG:ks /rb Attachments: Vicinity Map Opposition Letter: S. Booty and G. Collins, 2739 Windover Drive Letters in Support; Landstrom, Ebbtide Road Harbor View Hills Community Association Michael Strong, Windover Drive Appeared in Opposition: G. Collins, Windover Drive Appeared in Support: Simondi, MacArthur Court August 20, 2007 F:1UserslPLNlSharedlPNs1PAs - 200APA2007- 1111MD2007 -050 appr.doc Page 6 !�\ VICINITY MAP SAN v�cveu oR . t i I i p_ , -_. DAB PIA R LLON DR op zy V t S Tfhc + i1.. j 4� . •1�. '. .41'ic � `.f. MARGUEPoTE AVE = ^'• 'i_ Modification Permit No. MD2007 -050 PA2007 -111 1132 Ebbtide Road August 20, 2007 F:1Users\PLN\Shared\PA's1PAs - 20071PA2007- 1111MD2007 -050 appr.doc Page 7 �� Exhibit No. 6 Front Setback Analysis 63 50 48 4 "c 48 48 7�— 50 _�S 68 48 60 86 Exhibit No. 7 Photograph of Neighbor's View Impacts 51 - Aq. , M Exhibit No. 8 Letters of Opposition U\ March 27,20( Mr. Shane Burckle City of Newport Beach Code and Water Quality Enforcement 3300 Newport Boulevard Newport Beach, CA 92663 -3384 RE: 1 132 Ebbtide, Corona del Mar Dear Mr. Burckle: RECEIVED BY PLANNING DEPARTMENT JUN 05 2007 CITY OF NEWPORT BEACH As per our telephone conversation, we are requesting that the City of Newport Beach enforce the Site Regulations (Municipal Code 20.60.030) limiting the height and open construction requirements of the fences, walls and hedges at the Fruchbom residence located at 1 132 Ebbtide. We also request that we be formally notified should an application for any modification or variance to the Site Regulations be submitted to the City for the above residence. We regret having to involve the City in this matter but we are left with no other recourse. The hedges have grown to a height that has almost completely blocked our Sunset and Catalina Island view from our living room, and the Fruchboms have made it clear that they are not concerned with our view and have no intention of trimming their hedges to a height that would restore our view. We are very respectful of the property rights and privacy concerns of others and therefore were reticent to even approach the Fruchboms. However, given the height of the hedges and that the Fruchboms had no apparent intention of ever limiting the height, we initially approached them in May of 2005 and verbally requested that they trim their hedges. As our view continued to be eroded by the growth of the hedges, we sent a letter in November of 2006, requesting that they consider trimming at least a portion of the hedges that have cut out so much of the view that we have enjoyed for the last 40 years. We enclosed a copy of the attached photograph that demonstrates the impact of their wall, fence and hedges upon our view (that's Catalina Island you see between the hedges). Over the course of the last couple of months, we have discussed our concerns with the Fruchboms but they are unwilling to voluntarily trim even a portion of their Crown Drive hedges to the height of their Ebbtide hedges over which they enjoy their view. They have expressed a concern that if any portion of their Crown Drive hedges are cut to a height of less that 10 feet, one of our neighbors down and across Crown Drive might be able see into their bedroom from a second story window. They are unwilling to even consider installing shades or blinds on their bedroom windows, or constructing any other screening that might in any way, restrict their views. While we can understand their desire to gain privacy, we do not believe that it should be at our expense. We only wish that we could resolve this is a cooperative neighborly manner. Thank you for your consideration, V �ty and�GregCollins '�' 2739 With ver Drilt� ve Corona del Mar, CA 92625 949/644 -7435 LD� I` 3 a p..p. P e- � ya A 1 l pl II ��l o � ya A t �3 r 'K1 • r o •� 1 l pl t �3 r 'K1 • r o •� Page 1 of 2 Murillo, Jaime From: Greg Collins [gmcollin @earthlink.net) Sent: Monday, September 24, 2007 7:58 PM To: Murillo, Jaime Subject: FW: Fruchbom 1132 Ebbtide, Corona del Mar - Original Letter Jaime: Thank you for your phone call last week regarding 1132 Ebbtide. Per our conversation, I've attached the original letter we sent to Code Enforcement back in March, and then to Planning in June. Even though you have a hard copy of the photos from the file, I though it would be best to email these photos to you so that you could see more clearly, zoom -in, etc. It's hard to photograph the waterline and Catalina with my camera during the day (glare, fog, etc), so we included the evening photos where the waterline and Catalina are easier to distinguish. The day photo #3240001 and evening photo #1010003 are essentially the same view from out our living room ( #1010003 is slightly closer). In the evening photo #1010003, you can see Catalina through the gate between the hedges, and again to the right of the hedges before the tree. Further to the right you can see the waterline left of the rooftop /chimney. Photo #1010005 is a close -up of the gate with Catalina in the background between the hedges. The light you see is on the pilaster on the gate at about a height Of 5'. As we discussed on the phone, we are concerned with the applicant's stated intention to plant trees above the hedges to gain their privacy. If the hedges are limited in height, and trees are planted above (as code allows), we should be able to see Catalina and our winter sunsets under the canopies and thru the trees. However, if the hedges are allowed to be as high as the bottom of the tree canopies, our view would be completely blocked. Photo #1010005 demonstrates this point. The gate in the middle is "open" and the view is thereby preserved because we can see under the tree and thru the gate (the tree in this photo happens to be a City tree in the parkway, but it illustrates my point). Otherwise, if the hedge is allowed to be as high as the bottom of the tree canopy (as the current modification allows), it would create a solid obstruction like the existing hedge to the right of the gate and we would have no view. There are a number of photos in that I can supply (they should still be in the City's file) showing the applicant's property. I'll send a couple by separate email (so this email doesn't get too large). I will send you by separate email 1) my notes prepared for the original August 20th hearing, and 2) my comments on the staff report approving the request for modification. Once you have had an opportunity to review, please call me with any questions. Thank you for your time, Greg Collins 2739 Windover Drive Corona del Mar, California 92625 (714) 323 -3209 cell (949) 679 -4000 ext. 15 work (949) 644 -7435 home From: Greg Collins [mai[to:gmwllin @earthlink.net] Sent: Tuesday, June 05, 2007 9:51 PM To: esteffen @city.newport- beach.ca.us Subject: FW: Fruchbom 1132 Ebbtide, Corona del Mar 09/25/2007 (.,5 Page 2 of 2 Erin: Attached is the original letter we sent to Shane Burckle regarding our concerns with the Fruchbom's wall /fence /hedge at 1132 Ebbtide. As per our telephone conversation today, please put this letter in the file for the Modification, and let us know when it would be appropriate for us to speak with Jay Garcia regarding our concerns prior to the July 9th hearing date. Thank you, Greg Collins 2739 Windover Drive Corona del Mar, CA 92625 949/644 -7435 949/644 -7303 fax 714/323 -3209 cell From: Greg Collins [mailto:gmcollin @earthlink.net] Sent: Wednesday, March 28, 2007 8:47 PM To: Shane Burckle Subject: Fruchbom 1132 Ebbtide, Corona del Mar Shane: Sony 1 didn't get this to you sooner, I've been out of town. Per our conversation, I've attached a letter expressing our concerns with the Fmchbom's wall /fence/hedge at 1132 Ebbtide, and requesting that we be notified if there are any hearings associated with their application for modification or variance. I will drop the original letter in the mail to you tomorrow. I've also attached a couple of photos that may help illustrate the problem. Sara Booty & Greg Collins 2739 Windover Drive Corona del Mar, CA 92625 949/644 -7435 949/644 -7303 fax 714/323 -3209 cell 09/25/2007 �D('p Page I of 2 Murillo, Jaime From: Greg Collins [gmcollin @earthlink.net] Sent: Monday, September 24, 2007 8:00 PM To: Murillo, Jaime Subject: FW. 1132 Ebbtide - notes for hearing Jamie - below are my notes that I prepared for the hearing: Sara has lived since 1967, Greg since '84 Brief summary of our March 27, 2007 letter • Our home is orientated towards Catalina, our living room and other (courtyard & kitchen) views look over their front yard and above the homes across Ebbtide • Noticed the view of Catalina we have enjoyed for 40 years (Sara) began to disappear 3 or 4 years ago as their untrimmed hedges grew • During winter months, when the air is clear and the sun sets behind Catalina, we enjoy not just Catalina itself, but the sunsets above and around. • Tried to work out a compromise (asked only right side down to 6') to avoid this very situation • but unable because according to applicant, unless their hedge /wall is at least 10' high it will not provide them the privacy they desire (applicant informed me that they would not cut lower than 10') • Complaint based enforcement as opposed to proactive enforcement per desires of Council Issue is a result of applicants desire to gain privacy from 4 homes across and down Crown Drive • Applicant's desire to gain privacy should not be at the expense of our existing view — we should not have to loose our existing views in order for the applicant to gain privacy • The applicant never had the privacy they are now trying to gain • A 3' hedge shields their home from the street and sidewalks (everything but the 4 homes) • The applicant has stated (to me and Shane Burckle w/ code enforcement) that a 5 or 6 foot hedge will not provide the privacy they desire and that they will plant trees (as code allows) in addition to the hedge to block any view into their home from the across Crown Drive (thus blocking our view) • In other words, their intent is to replace the existing 13 to 18 foot tall hedges with a combination of hedges and trees. • When they plant their trees (as code allows) we would only be able to see under the trees of this modification is denied. Reliance upon existing Code • I believe that the intent of the code is to protect and preserve the private and public views and the open space of what was once a small beach community. • This request for modification is not appropriate for this location and would set a dangerous precedent throughout the community - I have to assume that if the applicant is granted this modification because of their desire for privacy, that this would apply to any other home on Balboa Island, down Margerette in CdM, along the oceanfront in Newport or CdM. Imagine walking around Balboa Island if all the waterfront homes raised their front walls to a height of 5 or 6 feet — it would destroy the openness, the public view corridors, and their neighbor's views. • Crown Drive is not a heavily traveled street • This is their front yard • This is not an urban environment where homes are hidden behind walls • They have not provided justification to meet the three required findings • A. the strict application of the Zoning Code does not result in physical hardships (they already got relief of the setback in the original modification). • B. the requested modification is not compatible with the existing developments in the neighborhood 09/25/2007 6 1 Page 2 of 2 (affects our view and is out of scale with pedestrian traffic on the adjacent streets). • Our home is typical of a majority of homes in NewportlCdM in that the views are not only perpendicular to the streetfront, but across and over adjacent properties. • Its my understanding that with the current code, because the grade between their yard and the adjacent sidewalk is greater than 2' (front yard is greater than 5' above the public sidewalk at their gate), the walls/hedges at the top of the slope can not exceed 3 feet in height and must be 40% open. • We believe the code was designed so that when trees are planted adjacent to any walls/fences/hedges, it would not create a solid obstruction but would maintain the openness originally intended by the code. If the modification is granted and the applicant is allowed a solid 6' high wall /fence /hedge, when the trees are planted, you will not be able to see under the trees. • We believe we should be able to rely upon the existing code to protect our view and the openness that this code was intended to preserve. I went by the City July 24th and read the Fruchbaum's application. Paraphrasing the application they are stating (my comments in Red italics): • 4 homes across Crown Drive (down the hill from us in our development) have a view into their living room, bedroom, etc. and the only way to prevent that is to allow the hedge to remain at 6' in height. - Per my previous discussions with Mr. Fruchbaum, the hedge must beat least f 0' high to protect their privacy (that is why he would not cut the hedge down to 6' as we had originally requested). • He can't plant trees to protect his privacy because with only a 3' hedge below, the 4 homes could see under the trees. • Blinds are not an option because it will impact the Fruchbaum's view • None of the homes' views are impacted by the hedge - except ours? • The hedges have been above 3' in height for years (they have a photo of the hedge taken from their interior yard hand written date on the back 1984). - It is true the hedge was previously between 5 and 6 feet in height (not 12 feet like it is now) — we could see over it. The "old" hedge at 6 feet in height did not give them the privacy they now want from the 4 homes across Crown Drive. If you took at that photo, the hedge they look over (along Ebbtide) is lower so that they do not impact their own view. • States existing hedges are 12' - actually they vary between 20' and 14'- • This modification should be approved because it's a continuation of the previously approved 1980 modification processed by the previous Owners - not true • The previously approved modification allowed an encroachment for a 6' to 7' high fence/hedge 38' into their 86' setback ending with an entry gate. • The entry gate improvements (by the previous Owners ?) were built further into the setback than the 1980 modification allowed, but this was an "oversight" and this current modification should be approved to remedy that "oversight'. - The design of the entry gate that encroaches further into the setback that was modified in 1980 was not a simple "oversight', but that what was built is an entirely different design. 09/25/2007 0 Modifications Staff Action Report for August 20, 2007 Page 1 of 2 Murillo, Jaime From: Greg Collins [gmcollin @earthlink.net] Sent: Monday, September 24, 2007 8:08 PM To: Murillo, Jaime Subject: FW: 1132 Ebbtide - Modifications Staff Action Report for August 20, 2007 Jaime: Below are the comments I had when I read the August 20th staff report approving the request for modification at 1132 Ebbtide. When you have an opportunity, I would like to discuss with you. Finding 3 — 1St paragraph • The properties located across Crown Drive are not higher in elevation than subject property. The subject property building pad is higher than our building pad, and all 4 of the properties located across Crown Drive with "direct line of sight" are level with or lower than our property. • The subject property front yard is lower than their building pad, but not lower than our yard or other 4 properties across Crown. • The northerly rear side of the subject property is not at street level, it's actually below. • The rear of the residence is not exposed to "noise and loss of privacy due to close proximity of the intersection of the two streets" because there is no intersection — Crown drive simply bends around the comer. • Not sure what is meant by the direct line of site from properties across Crown into front of residence. They can see directly in, but they are not directly in front of the residence (they are off to the side). Finding 4 — 1St paragraph • Again, the subject property is not lower than properties located across Crown. • This raises the central issue — is the right to privacy from 4 homes a valid physical hardship. • a 6' to 7' hedge is not required to maintain privacy from any public streets or sidewalks (they have this privacy with as little as a 3' hedge) • a 6' to 7' hedge does not provide the desired privacy from the 4 homes, the hedge would have to be a minimum of 10' (this is as stated by the applicant to myself and code enforcement). Trees will have to be planted (as the code allows) `above" the 6' to 7' hedge to provide the desired screening for privacy. • Is everyone's right of privacy (in this particular case the right to gain privacy) more important than anyone's existing right to an existing view? • We can see waterline /Catalina over a 5' hedge, but not a 7' hedge. • We will not see anything over a 5' hedge and trees. • The existing code must have been developed with the understanding of, and in anticipation of tree plantings adjacent to and in conjunction with hedges. There has to be a reason that the code limits the heights of hedges and requires that the upper portions of all hedges must be 40% open and I can't believe that they expected any homeowner wanting more privacy to be granted a modification. The authors of the code must have understood that this would limit privacy and made a conscience decision that the openness was more important than privacy. • These findings do not acknowledge that the applicant already received relief (approximately 46') from the 86 -foot front yard setback (assuming the argument that it is excessive has merit) with their originally approved modification. Finding 5 — 2nd and 3rd paragraphs • Don't know if this is consistent with similar structures Citywide, but it is not consistent with similar structures (with similar size front yards) in the neighborhood. • Interesting that this brings it "closer to conformance to the allowances authorized by the community association ". This illustrates that it is not in conformance of the community association allowances (although they wrote a letter of support). If a neighbor in the same association (we are not) attempted to 09/25/2007 0 Modifications Staff Action Report for August 20, 2007 Page 2 of 2 gain approval of a hedge that would block a view, it would clearly be denied by the association. • Having said that, is what the association allows on other corner properties in their neighborhood relevant? This speaks to the complaint enforcement issue. If an association chooses not to enforce a City code issue is it then ok? Finding 6 — 2nd paragraph • It states (in a positive tone) that the encroachment will limit the obstruction of views from the neighboring properties. Doesn't acknowledge that the enforcement of the existing code without modification would eliminate the obstruction of views. Conditions 3 and 9 conflict • Condition 3 states the hedge to the left is to be lowered to 6' to 7' per the original modification, but condition 9 allows 11' to 12'. Condition 5 • Can this me modified to prohibit planting of any additional trees within the setback from Ebbtide to the gate? As currently written, and with the applicant's stated intention to gain privacy from the 4 homes across Crown, there will be a problem. By definition, if the applicant plants trees to screen the views of the 4 Crown homes, he will be creating "screen planting" and based upon code enforcement's past unwillingness to enforce the 3' screen wall height restrictions, we'll be back at Planning Commission arguing over the trees. Condition 9 • As discussed this is arbitrary — why 11' to 12'? Why wasn't original 6' limit per original modification adequate? Again, the applicant never had privacy from the 4 homes across Crown, and has to increase the screening to gain it. • As you may already be aware, because of the grade changes, this will result in a plus 16' hedge height measured from the sidewalk. Totally out of pedestrian scale, inconsistent and inappropriate. Condition 11 • Is this a standard paragraph and does this really avoid setting a precedent. 09/25/2007 Exhibit No. 9 Letters of Support I'v �� KDF W� COMMUNITIES, LLC Uettcr music y, 'J�Rer neigP6urnpn��. Uctter (u!n'p Gentlemen; p� %RAG Qty By JU` 11 C /JyO 20pj OFyRl Cy Modification Request Hearing 1132 Ebbtide Corona del Mar, CA. 92625 Attached are 3 letters in support of my request for modification to allow a higher hedge at my residence. The first is from the President of my homeowners association, Harbor View Hills Community Association, stating that my association has no issues with my hedge. Please note that the neighbor who complained about my hedge is in another HOA. The other two letters are from long time neighbors across the street who feel the hedge is a benefit as it provides privacy to both parties. These are the only neighbors I asked for opinions but could provide more if needed. Thank Paul FrYuchbom 1 01 Dove ;1: e I S "'re r ?u I Newpnrl Reach I CA 92660 1 P 949 622 1866 1� F. 949 851 1819 June 20, 2007 p14NN J�ECEPajD By �; 11 P,4PWEM' JUL 11 2007 CITY OF NEW ORT BEACH 1133 EBBnDE ROAD CORONA DEL MAR, CA 92625 (949)640-4707 EMAIL:Jm1pr®aol.com To: The City of Newport Beach Re: Modification request hearing June 9m, 2007 pertaining to the Fruchbom residence at 1132 Ebbtide Road, Corona del Mar We have lived directly across the street from the Fruchbom's for over 15 years. Their landscaping is, by far, some of the most beautiful in Harbor View Hills. It does not create any problems for us as neighbors; in fact, it's just the contrary. The hedges in question (that have been in excess of ten feet for many years) help to maintain the privacy from the houses across from us. Th for consi�de our opinion. John and Jan Landstrom 1133 Ebbtide Road, CdM 1� 2727 Windover Drive, Corona del Mar, CA 92625 Paul Fruchhom 1132 Ebbtide Corona del Mar, CA 92625 June 16, 2007 Paul, r 00/0 Apparently you have received a complaint regarding the hedge containing a bourgainvilea between your house and Crown Drive. As far as I am concerned this hedge does not in any way obstruct our view, and furthermore is not only attractive but also at its current height affords a welcome degree of privacy between our two properties. Regards Michael Strong -1'-) HARBOR VIEW HILLS COMMUNITY ASSOCIATION Wo Walters Management 17300 Redhill Avenue, Suite 210 Irvine, CA 92624 Ph. (949) 762 -2228 Fax (/49) 79"367 City of Newport Beach Il <2oF�t. �NF�n Reference: Modification request hearing June 9a', 2007 WO// 1132 Ebbtide Gentlemen; We understand that the homeowners at 1132 Ebbtide (the Fruchbom's) have been ticketed for having a hedge height in excess of 3 feet along their side yard on Crown Drive, and have asked for a modification allowing them to maintain their hedge at 6 to 7 feet in height. This is to inform you that this Association generally has no problems with such hedges if they enhance privacy and do not adversely affect any of our Harbor View Hills Community Association homeowners. We have no objection to these types of plantings where they do not impede Association views or traffic safety. Thank you for considering our opinion. 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N "d c2 � .� cn 2 r .v N � Cld c� •� w ti � � N �' 0 0 MICHAEL I.TOERGE 2524 OCEAN BOULEVARD CORONA DELL MAR, CA 92625 (949) 675 -9312 TEL (949) 723 -1554 FAX August 27, 2007 DAVID LEPO PLANNING DIRECTOR CITY OF NEWPORT BEACH PO BOX 1768 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 -8915 RE. MODIFICATION PERMIT NO. MD2007 -050 (PA2007 -111) Dear David: i l� Pursuant to the provisions of Chapter 20.95 of the Zoning Code, I hereby appeal the Zoning Administrator's approval of the above referenced modification permit to the Planning Commission. I initiate this appeal on the grounds that the proposed modification fails to meet all three of the findings required to grant a modification permit. Specifically, I do not believe that the granting of the application is necessary due to practical difficulties associated with the property. Nor do I believe that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. Further, the requested modification is not compatible with existing development in the neighborhood. Thank you for your consideration. Sincerely, Michael Toerge LAW OFFICE OF FRANK W. BATTAILE 110 Newport Center Drive, Suite 200 Newport Beach, California 92660 October 15, 2007 Members of the Planning Commission (949) 719 -1121) Fax(949)719 -1326 Email: bhlaw @earthlink.net RECEIVED SY PLANNING DEPARTMENT City of Newport Beach OCT 15 2001 3300 Newport Blvd. P.O. Box 1768 CITY OF NEWPORT BEACH Newport Beach, CA 92658-8915 Re.: 1132 Ebbtide: Modification Permit No. MD2007 -050 (PA2007 -111) Dear Members of the Planning Commission: I am writing on behalf Mr. Paul Fruchbom regarding the appeal of the decision by Mr. Jay Garcia to approve the referenced Modification Permit. First of all, Mr. Fruchbom and 1 both want to thank David Lepo and Jaime Murrillo for the time and effort they have spent on this matter, and especially for meeting with us at Mr. Lepo's office last week. We understand the position staff is taking with respect to the justification Mr. Garcia found for granting the permit. However, for the reasons set forth below, we deeply disagree with staff's determination that no such justification exists. On the contrary, we believe that the justification is clear and compelling, particularly with regard to the safety issue in connection with Mr. Fruchbom's driveway gate. The Commission should understand that the application at issue was not generated initially by Mr. Fruchbom. This appeal arises from a complaint made by the neighbor living at 2739 Windover Drive, across Crown Drive from the subject property. That neighbor, Ms. Sarah Booty, complained to the City that Mr. Fruchbom's hedges were blocking her view of Catalina. In fact, as is clearly seen from numerous photographs taken over 20 years ago, the hedges have always been as high as they are now, if not higher. It is also obvious that with or without the hedges there is no view of Catalina from Ms. Booty's property. Ms. Booty's spokesman and contact point is Mr. Greg Collins. Mr. Collins appeared at the administrative hearing below and has been, so far as is known to this office, the sole point of contact between staff and Ms. Booty. I am informed that Mr. Collins is a personal friend of Commissioner Toerge, who is the appellant. Aside from the past history of the hedges, Mr. Collins and Ms. Booty offer descriptions of the physical layout of the community that simply defy first -hand observation. Mr. Collins insists that there are no properties along Crown Drive above street level. But, simply standing on -site it is obvious that there are such properties and, as Mr. Garcia determined, that fact is part of the reason it is necessary for Mr. Fruchbom to have hedges higher than 3 feet. Mr. Collins insists that the rear of Mr. Fruchbom's property is not at street level when in fact it is. Mr. Collins Page 2 of 6 insists that without Mr. Fruchbom's hedges he would have a view of Catalina from Ms. Booty's property. But, if you walk along the sidewalk adjacent to Crown Drive, it is obvious that there is no such view. THE ADMINISTRATIVE HEARING BELOW After Ms. Booty's complaint, City officials inspected the site and determined that there are a number of non - conforming conditions. Mr. Garcia took up the issues and, in response to Mr. Garcia's suggestion, Mr. Fruchbom made the application that is now at issue. The important points are these: Noone has ever, to this day, complained about any aspect of the underlying approval except for the height of the hedges; and 2. Mr. Garcia determined that Hedge 1 must be trimmed to SIX feet, not seven feet, and that whenever the hedge grows to seven feet it must be trimmed back down to six feet; and 3. Mr. Fruchbom accepted that condition. Subsequently, there were no complaints from anybody at all. In particular, neither Ms. Booty nor Mr. Collins appealed Mr. Garcia's decision. Instead, Commissioner Toerge appealed the decision and has placed into issue a number of conditions about which there has never been any complaint from anybody. The Staff Report as well as the findings Mr. Garcia made include a host of special conditions that, under State law as well as the Municipal Code, demonstrate that Mr. Fruchbom is entitled to the requested modifications. THE DRIVEWAY GATE Special Conditions Require a Hieher Driveway Gate Mr. Fruchbom's driveway is unique, and dangerously so, in that it faces directly on Crown Drive at a point where it makes a 90 degree downhill turn. That physical condition results in cars speeding downhill around the corner creating noise, headlight intrusion and the potential for deadly crashes. The statement about potential crashes is not mere lawyer hyperbole. There have been 2 crashes in the past - both of them when there was a 7 -1/2 foot Rate in place. The most recent crash resulted in the rear gate being knocked all the way into Mr. Fruchbom's pool and total destruction of the rear wall. If anyone had been in Mr. Fruchbom's spa, that person would certainly have been killed. Mr. Fruchbom has many photographs of the event. Mr. Page 3 of 6 Collins himself was present at the time and tried to help. That crash is an undeniable fact. It is not simply something that "the applicant states" as it is referenced in the Staff Report. In response to those 2 crashes Mr. Fruchbom recognized that a 7 -1/2 foot gate was not sufficient. Not knowing that he needed a special permit to do so, he commissioned - at great expense - an artistically appealing gate with a rounded top that has a maximum height of 9 -1/2 feet and an average height of only 7.75 feet. There is no other property in the vicinity that suffers from this dangerous condition. It is a physical reality that deprives Mr. Fruchbom of the ability to use his backyard without fear of being killed in his own hot tub. The inadequacy of a 7 -1/2 foot gate is demonstrated by the fact that there have been 2 crashes, one of them potentially fatal, with a 7-1/2 foot gate. It cannot have been the intent of the Zoning Code to mandate the continued existence of such a dangerous condition. Comvatibility of the Drivewav Gate As for compatibility, the Staff Report notes that "[t]he applicant's as -built driveway gate is an average height of 7.75 feet (9.5 feet max) and can arguably be found consistent [in] character with the adjacent gate." Also, the Harbor View Hills Community Association provided a letter to Mr. Garcia that states that the HOA has no concerns about any aspect of Mr. Fruchbom's application, including the gate. Noone to this day has complained about the gate. It is not overly large. It is not garish. It is aesthetically appealing and serves an extremely important safety purpose. Health and Safety There is no conceivable health or safety issue arising from the gate. Indeed, the gate substantially contributes to the safety of the whole neighborhood. The Fruchbom's are the principal beneficiaries of the increased safety provided by the gate, but the whole community also benefits from anything that prevents potentially fatal crashes. THE HEDGES The View Issue Despite Ms. Booty's and Mr. Collins' statement to the contrary, the hedges at issue have been as high as they are now since at least 1984. Mr. Fruchbom has photographs to prove it. Ms. Booty's property is below the level of the sidewalk along her side of Crown Drive. Walking Page 4 of 6 along that sidewalk it is obvious that there is no view of Catalina from Ms. Booty's property. In any event, whatever view she has now is the same view she has had for over 20 years. It has to be emphasized that Mr. Fruchbom has already agreed to abide by Mr. Garcia's condition that the hedges will be trimmed down to 6 feet. With that reduction in height Ms. Booty will enjoy more blue sky than she has had in over 20 years. She may also have some view of the roofs of homes farther down Ebbtide, but she has never had a view of Catalina. Even if the hedges were eliminated altogether, she still would not have a view of Catalina. Special Conditions The entire surrounding community is set out in peculiar ways that result in an unacceptable intrusion on Mr. Fruchbom's privacy from the street frontage of both Crown Drive and EbbtideRoad. First of all, Mr. Fruchbom's front yard setback of 86 feet is quite possibly the largest setback in Newport Beach. The Staff Report agrees that this setback creates substantial difficulties for maintaining the same privacy enjoyed by other owners in Harbor View Hills with setbacks ranging down to 6 feet. Also, nearby residences are, in fact, elevated above street level. Without a hedge taller than 3 feet they would have a view into Mr. Fruchbom's bedroom. Those neighbors have written in support of maintaining the hedges at at least 6 feet to protect their own privacy. The Staff Report correctly states that "Given the subject lot's large front yard setback and the 3 -foot height limitation ... the lot is afforded less privacy and subject to increased noise and headlight impacts from vehicles then [sic] the other properties similarly situated adjacent to Crown Drive or similar roadways. This is inconsistent with the purpose and intent of the Zoning Code." The Staff Report emphasizes the point by repeating it. "It is staff's belief that the property is severely impacted by the disproportionately large 86 -foot front yard setback, which in combination with the 3 -foot height limitation ... arguably affords the property less privacy and exposes a greater percentage of the property to vehicle noise and headlight impacts." However, the Staff Report then concludes that "the applicant's request for total privacy by maintaining hedges up to 12 feet high is excessive." This is a critical point. Mr. Fruchbom is NOT requesting hedges up to 12 feet high. Mr. Garcia limited Hedge I to 6 feet - and Mr. Fruchbom accepts that condition. if the Commission denies the appeal and sustains Mr. Garcia's decision, the height of Hedge 1 will be 6 feet, not 12 feet. Page 5 of 6 Compatibility The setback and height requirements are intended to "protect residents from harmful effects of excessive noise, population density, traffic congestion, and other adverse environmental effects." (Staff Report.) It is obvious that the harmful effects do not result from front yards per se, but from street facing yards. As the Staff Reports notes, the surrounding community is laid out differently than most communities. The homes immediately across Ebbtide have their rear yards facing the street. Their front yards are away from the street, facing the ocean. Because their street frontage is technically the back yard, those homeowners can and do have 6 -foot hedges to insulate them from the harmful effects of the street frontage, if Mr. Fruchbom cannot also have at least 6 -foot hedges, he will be deprived of the same enjoyment of his property as his neighbors across Ebbtide. In fact, if Mr. Fruchbom's street -front hedges are reduced to 3 feet, that would cause Mr. Fruchbom's property to be out of character. LEGAL AUTHORITY SUPPORTS THE GRANTING OF THE APPLICATION AND DENIAL OF THE APPEAL The Commission should be guided, through the City Attorney of course, by Craik v. County of Santa Cruz (2000) 81 Cal.AppAth 880, where the court upheld the granting of height and setback variances on ocean view residential property. The court confirmed the basic rule that "we require the findings to `bridge the analytic gap between the raw evidence and ultimate decision or order."' (Id., at 884, citing Tonanga Ass. v. County of Los Angeles (1974) 11 Cal.3d 506.) Here, the findings in the Staff Report itself, with respect to impacts on privacy arising from the 86 foot setback and the elevation of surrounding properties, and the fact that nearby properties have their rear setback as the street frontage, simply do not logically connect with the staffs ultimate conclusion that the hedges should be limited to 3 feet. The only logical finding to be drawn from the Staff Report is that Mr. Fruchbom is entitled to have at least a 6 -foot hedge in order to enjoy the same benefit of the Zoning Code as nearby property owners. Craik also makes clear that non - physical impacts of the Zoning Code justify the grant of a variance. "There is not authority to support that a `physical' disparity is a precondition for a variance. Goveriment Code section 65906 requires variances to be granted `because of special circumstances applicable to the property." (Id., at 890, emphasis in original.) Therefore, with respect to county regulations at issue in that case, "though the FEMA [County Ordinance] and related county regulations may abstractly apply to everyone (contraindicating a disparity), in reality, the regulations only impact the land of real parties and a few other vacant parcels." (Id.) Here, the unusual setback and the fact that neighbors across Ebbtide have the benefit of 6- foot hedges in the rear setback that is their street frontage, create "special circumstances" that make a variance necessary. Page 6 of 6 DUE PROCESS This appeal has been taken by a Planning Commissioner. Our understanding is that the appealing Commissioner will sit on the dais and, in addition to speaking out in favor of his own appeal, will participate in voting on his own appeal. In addition, the appealing Commissioner will have an opportunity to question Mr. Fruchbom and anyone else speaking out on his behalf. After the close of public comment, the appealing Commissioner will be able to speak at length and argue his case to the remaining Commissioners, far beyond the right of any other appellant to speak in favor of his own appeal. While the Commissioners are certainly entitled under the Constitution to appeal decisions and be heard as citizens, they are not entitled to act in the dual capacity of citizen - appellant and decision maker. The appealing Commissioner should step down from the dais, participate as an ordinary citizen - appellant, and after public comment has been closed he should leave any further discussion and the final voting to the other members of the Planning Commission. One of the key cases on this point is Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205. In that case the court found that a land use applicant was not denied due process when a councilmember acted both as appellant and as a voting councilmember. However, that determination was based on the fact that the council vote was unanimous and that the appealing council member did not exercise undue influence over the proceedings. Therefore, even if the appealing councilmember had not participated, the result would have been the same. What is clearly implied is that if the vote here is 4 to 3, and if Councilmember Toerge does influence the proceedings in some way, then the result will be a judicial finding that Mr. Fruchbom was denied his due process right to an impartial decision maker. (See also, Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547.) It is in the best interest of everyone concerned to avoid that potential and have Commissioner Toerge step down and participate as an interested citizen and, apparently, as an advocate for Mr. Collins and Ms. Booty. Doing so will avoid even the appearance of impropriety and will preserve the credibility of the Planning Commission and its processes. cc: Clients r EXHIBIT "A" CONDITIONS OF APPROVAL MODIFICATION PERMIT NO. 2007 -050 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. The existing hedge previously approved by Modification Permit No. 2509 allowing an encroachment into the required 86 -foot front yard setback shall be trimmed to a maximum of 7 feet, as measured from the immediately adjacent grade elevation of the interior front yard, to comply with the original conditions of approval of Modification Permit No. 2509 within 30 days from the effective date of this action. 4. The existing 6 -foot high pilaster and portion of entry gate and tely 10 feet high seulpture encroaching 46 feet into the 86 -foot front yard setback shall be retained at their present height. 5. The existing 10 -foot high hedge located west of the entry gate shall be trimmed to a maximum height of 3 feet measured from the immediately adjacent grade elevation of the interior front yard within 30 days from the effective date of this action. 6. The plaeerAent ..t new :Fees (in aGeerdanee with the ide{nitinn nf__ the Munieipal Gede) leeated within the 86 feet f rth .+ ! 1 preperty 1' hall be adequately snaonrd and shall net nrea#e a hedge 9F seFeen planting, and shall Feeeive review and -PPFE)Yal by the 7. T-he- proposed soulpture shall be a maximum. of d 1 faet in height (inolu din .its -ha e \, �. d will be lo eated!. � fhn side of the - existing hedge. The seulpture hall s h no mere than 66 feet into the r red 86 fee 1+tlnt yaFd setbarF 8. The existing driveway access gate (approximately 9.5 feet in height measured from the adjacent sidewalk) shall be removed and replaced with a gate not to exceed a height between 6 and 7 feet to comply with the original conditions of approval of Modification Permit No. 2509 within 180 days from the effective date of this action. 9. In order to provide adequate sight distance at the intersection of Ebbtide Road and Crown Drive, the height of existing plantings shall be reduced to 24 inches maximum within the sight distance triangle, per City Standard 110 -L, unless otherwise approved by the Public Works Department. This reduction in height of plantings within the sight distance triangle shall be subject to review and approval prior to issuance of building permits, unless otherwise approved by the Public Works Department. 10. If any of the existing public improvements surrounding the site is 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 completion of private construction. Said determination and the extent of the repair work shall be made at the discretion of the Public Works inspector. 11. 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. 12. 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. 13. This approval shall expire unless exercised within 24 months from the approval date, as specified in Section 20.93.055 of the Newport Beach Municipal Code, or if the required actions described in Condition Nos. 3. 5, and 8 are not completed by the specified time frame. Prior to the expiration date of this approval, an extension may be approved in accordance with Section 20.93.055 (B) of the Newport Beach Municipal Code. Requests for an extension must be in writing.