HomeMy WebLinkAboutRedwillow Appeal_MD2007-060_418 Redlands Ave (PA2007-152)CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
December 6, 2007 Meeting
Agenda Item No. 4
SUBJECT: Appeal of Modification Permit No. 2007 -060 (PA2007 -152)
418 Redlands Avenue
APPELLANT: Will Higman
APPLICANT: Joyce LCM RedWillow
PLANNER: Janet Johnson Brown, Assistant Planner
(949) 644 -3236, jbrown(&citv.newport- beach.ca.us
PROJECT SUMMARY
An appeal of the Zoning Administrator's decision to approve Modification Permit No.
2007 -060 on property located in the R -1 District at 418 Redlands Avenue, which would
permit the minor interior remodel of and a 1,203 square -foot addition to a nonconforming
single -unit dwelling that encroaches 13 feet, 8 inches into the 20 -foot required front yard
setback.
The Planning Commission must conduct a de novo hearing and, after considering all of
the evidence presented, either approve, modify, or disapprove, in whole or in part,
Modification Permit No. 2007 -060.
RECOMMENDATION
Staff recommends that the Planning Commission conduct a de novo hearing and
reverse the decision of the Zoning Administrator and deny Modification Permit No.
2007 -060 by adopting the draft resolution attached as Exhibit 1.
BACKGROUND
At the Planning Commission hearing of October 18, 2007, the nonconforming status of
the subject structure was discussed because a modification permit can only be granted
if it is first determined that a structure is a "legal' nonconforming structure. A
nonconforming structure is defined in the Zoning Code as "a structure that was lawfully
erected, but which does not conform with the property development regulations
prescribed in the regulations for the district in which the structure is located by reason of
adoption or amendment of this code or by reason of annexation of territory to the City."
Appeal of Modification Permit No. 2007 -060
December 6, 2007
Page 2
Through research of City records, staff confirmed that the required front yard setback for
the subject property was 20 feet when the structure was built in 1946 and that no
documentation had been found that indicated a variance or other discretionary approval
had been granted to allow the structure to encroach into the 20 -foot front yard setback.
The item was continued to this meeting to allow the property owner time to research the
legality of the nonconforming structure.
Attached to this report as Exhibit 2 is a letter prepared by the attorney representing the
applicant. No documentation has been provided with this correspondence indicating the
subject structure was granted some form of discretionary approval by the City to
encroach into the required 20 -foot front yard setback.
Prior to the appeal and review of this case by the City Attorney's Office, some
modification permits have been granted to allow alterations and additions to
nonconforming structures without the determination as to whether or not the structure
was a "legal' nonconforming structure. However, it is the opinion of the City Attorney's
Office, and staff concurs, that unless it can be determined a structure is a "legal"
nonconforming structure consistent with the definition in the Zoning Code, the
provisions of the nonconforming chapter would not apply to this or future modification
permit applications for nonconforming structures.
ANALYSIS
Pursuant to Section 20.62.020 of the Zoning Code, structures that become
nonconforming due to reclassification, ordinance changes, or annexations may be
continued subject to the provisions of Chapter 20.62 (Nonconforming Structures and
Uses). The determination that a structure is nonconforming is verified by looking at
whether or not the structure is consistent with the provisions of the Zoning Code,
pursuant to Section 20.62.030. In this case, the subject structure is nonconforming
because it encroaches into the required 20 -front yard setback.
Upon determining a structure is nonconforming, it is necessary to determine if the
structure is legal because Section 20.62.040, which allows for alterations and expansion
of nonconforming structures, applies only to "legal' nonconforming structures. As stated
above, a nonconforming structure is defined as a structure that complied with the rules
and regulations in effect at the time of construction and subsequently becomes
nonconforming due to changes to the Zoning Code or other rules and regulations.
In this case, the subject structure is not a 'legal" nonconforming structure because the
Zoning Code in effect at the time of construction required a 20 -foot front yard setback
Appeal of Modification Permit No. 2007 -060
December 6, 2007
Page 3
and no documentation has been produced to confirm that a variance or other
discretionary approval was granted to allow the structure to encroach into the setback.
CONCLUSION
Staff has concluded that the subject structure is not a `legal' nonconforming structure.
Therefore, the provisions of Section 20.62.040 of the Zoning Code are inapplicable and
the Modification Permit was approved in error and is null and void. Based on the
foregoing information, staff recommends that the Planning Commission reverse the
decision of the Zoning Administrator and deny Modification Permit No. 2007 -060.
Prepared by:
Submitted by:
Jan t J" Brown, Assistant Planner David .. PlannilDilrector
EXHIBITS
1. Draft Resolution for Denial of Modification Permit No. 2007 -060
2. Correspondence from Richard Sontag, Attorney at Law
3. Correspondence from Applicant
4. Correspondence from Appellant
FAUsers \PLN\Shared \PA's \PAs- 2007\PA2007- 152 \PC \MD2007 -060 PC Staff Rpt12 -6 Mtg.doc
Exhibit No. 1
OR
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF NEWPORT BEACH REVERSING THE DECISION OF
THE ZONING ADMINISTRATOR AND DENYING
MODIFICATION PERMIT NO. 2007 -060 FOR PROPERTY
LOCATED AT 418 REDLANDS AVENUE (PA2007 -152)
WHEREAS, an application was filed by Joyce LCM RedWillow with respect to property
located at 418 Redlands Avenue, and legally described as Lot 7, Block 24, First Addition to
Newport Heights, requesting approval of Modification Permit No. 2007 -060 to permit the minor
interior remodel of and a 1,203 square -foot addition to a nonconforming single - family dwelling
unit that encroaches 13 feet, 8 inches into the 20 -foot required front yard setback; and
WHEREAS, at a noticed public hearing held on August 20, 2007, the Zoning
Administrator considered the application, plans, and written and oral evidence presented at this
meeting, and approved Modification Permit No. 2007 -060 to allow the minor interior remodel
and a 1,203 square -foot addition to a nonconforming single - family dwelling unit that encroaches
13 feet, 8 inches into the 20 -foot required front yard setback; and
WHEREAS, on August 30, 2007, an appeal of the Zoning Administrator's decision to
approve Modification Permit No. 2007 -060 was filed on the grounds that the proposed
modification does not meet the necessary findings to grant approval of 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 -060 was held on October 18, 2007, and December 6,
2007, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California.
A notice of time, place and purpose of the aforesaid meeting was given. Evidence, both written
and oral, was presented to and considered by the Planning Commission at these meetings; and
WHEREAS, the property is designated Single Unit Residential Detached by the General
Plan Land Use Element and is zoned R -1 (Single - Family Residential), and the existing
residential structure is consistent with these designations; and
WHEREAS, pursuant to Section 20.62.020, only structures that become
nonconforming due to reclassification, ordinance changes, or annexations are subject to the
provisions of Chapter 20.62; and
WHEREAS, pursuant to Section 20.62.030, the determination that a structure is
nonconforming is verified by looking at whether or not the structure is consistent with the
provisions of the Zoning Code; and
I
Planning Commission Resolution No. _
Page 2 of 2
WHEREAS, is has been determined the subject structure is not a 'legal'
nonconforming structure because the Zoning Code in effect at the time of construction
required a 20 -foot front yard setback and no documentation has been produced to confirm
that a variance or other discretionary approval was granted to allow the structure to encroach
into the setback.
NOW, THEREFORE, BE IT RESOLVED
Section 1. Based upon the aforementioned facts, the Planning Commission hereby
reverses the decision of the Zoning Administrator, and denies Modification Permit No. 2007 -060.
Section 2. This action shall become final and effective fourteen days after the
adoption of this Resolution unless within such time an appeal is filed with the City Clerk or this
action is called for review by the City Council in accordance with the provisions of Title 20,
Planning and Zoning, of the Newport Beach Municipal Code.
PASSED, APPROVED AND ADOPTED THIS 6th DAY OF DECEMBER, 2007.
AYES:
NOS:
ABSENT:
L-B
Robert Hawkins, Chairman
BY:
Bradley Hillgren, Secretary
8
Exhibit No. 2
10
THE LAW FIRM OF
RUZICKA & WALLACE, LLR
A LIMITED LIABILITY PARINFRSfBP
16520 BAKE PARKWAY
SUITE 280
IRVINE. CALIFORNIA 92618
TELEPHONE (949) 759 -1080
FACSIMILE (949) 759 -6813
November 28, 2007
HAND DELIVERED
City of Newport Beach Planning Commission
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
RE: My Client - Ms. Joyce Redwillow
Modification Permit #2007 -060 (PA2007 -152)
Subject Property - 418 Redlands Ave., Newport Beach
Honorary Members of the Planning Commission,
GREGORY Y. RUZICKA, U.M.
EARL R. WALLACE
Of Counsel
RICt m S. SONTAG
PAULE.SNYDER
A 4N
4e d>
47
As you may recall from the October 18, 2007 meeting I represent Joyce Redwillow
regarding the single family 1 esidence located at 418 Redlands Av:.nue, Newport Beach, California
(the "Property"), and the appeal ofthe above - referenced modification permit filed by her neighbor,
William Higman.
Below please find an analysis of the issues involved in this appeal. Based on that analysis
my client and I believe that the appeal should be denied, and that the requested modification permit
should be issued.
HISTORY OF SUBJECT PROPERTY
The current structure on the Property (the "Structure ") was originally built in or about 1947
pursuant to a September 1946 building permit. There is no evidence that this was not a valid
permit. The Structure; is a two (2) story residence. The Structure was constructed so that it
encroached on a twenty (20) foot front yard setback that was adopted by the City at or about the
time it was built. The part of the Structure that so encroaches is a downstairs two (2) vehicle
garage and the portion of the upstairs residence that includes the kitchen. Said encroachment
makes the structure non - conforming under the current City Code. While staff has been unable to
determine why the City allowed such an encroachment, it is Ms. Redwillow's position that the
issuance of the 1946 building permit means that the Structure is a legal non - conforming structure.
\k
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 2
In October 1979 the City issued a modification permit to allow an addition at the rear of
the Structure, and such an addition was completed in or about 1981. Said permit was granted
without controversy.
Ms. Redwillow purchased the Property in 1989, and currently resides there.
HISTORY OF CURRENT DISPUTE
In 2006 Ms. Redwillow desired to make improvements to the Property and the Structure.
In October 2006 she submitted plans for a building permit for a proposed minor interior remodel
and addition to the Structure. Plans were submitted, and said plans were approved in June 2007.
Ms. Redwillow's contractor then began substantial work at the Property. Soon thereafter the
neighbor immediately to the north of the Property, William I- Egman, filed a complaint with the
Planning Department'. Staff then decided that Ms. Redwillow's June 2007 permit was mistakenly
issued, and that because of the Structure's non - conformity a modification permit was required. A
stop work order was then issued, and on July 31, 2007 Ms. Redwillow applied for such a permit.
At an August 30, 2007 hearing the Zoning Administrator considered Ms. Redwillow's
application for a modification permit. Mr. Higman appeared and contested the application. At the
conclusion of the hearing the Zoning Administrator granted the application.
In connection with the granting of the permit the Administrator made several required
findings of fact, including (1) the proposed addition and remodel were "consistent with the
legislative intent of ..the Municipal Code ", (2) the granting of the "application is necessary due
to practical difficulties associated with the property. The strict application of the ...Code results
in a physical hardships that are inconsistent with the purpose and intent of the ... Code ", (3) "the
requested modification will be compatible with existing development(s) in the neighborhood"
because, among other reasons, "[T]he proposed addition to the non - conforming structures is
similar to and consistent with modified and conditioned approvals granted by the Zoning
Administrator, Modifications' Committee and the Planning Commission on appeal for addition
to non - conforming structures in this neighborhood and Citywide ", (4) "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 ". Twelve (12)
1 Ms. Redwillow's problems with Mr. Higman actually began in September 2006. At that time contractors
hired by the Higmans to construct a swimming pool in their yard caused extensive damage to Ms. Redwillow's
backyard, including damaging part of her sprinkler system and destroying a number of mature Burgmansias trees.
Ms. Redwillow was referred to me by the Oasis Senior Citizen Center. In November 2006 I wrote to Mr. Higman
concerning this matter. After several weeks Mr. Hlgman eventually had the sprinkler system repaired, though he
never compensated Ms. Redwillow for the trees.
go
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 3
conditions were also attached to the granting of the permit.
Mr. Higman then filed the within appeal. The appeal was originally set for hearing at the
Planning Commission's October 18, 2007 meeting. However, at that hearing, and for the first time
in this matter, Staff raised a new and potentially significant issue. At that hearing Staff made the
recommendation that the sought for modification permit could not be granted if the non-
conforming structure is "illegal ". Without reference to the City Code, Staff apparently defines an
"illegal" non - conforming use as one that was never legal, as opposed to a `legal" non - conforming
use that refers to a structure that was "legal" when it was built, but has become "illegal" due to a
change in the zoning laws. Because Staff can find nothing in the City's records regarding a
"variance or other discretionary approval" for the Structure at the time it was built, they have now
labeled the Structure an "illegal" non - conforming structure. This despite the fact that the Structure
was built with a properly issued and valid building permit.2
Due to this new issue, and at Ms. Redwillow's and my request, the Commission continued
the hearing on this appeal to its December 2007 meeting.
CITY CODE AND NON - CONFORMING RESIDENTIAL STRUCTURES
Title 20 to the City of Newport Beach Municipal Code includes many definitions used in
zoning and planning matters. §20.03.030 defines a "nonconforming structure" as one "that was
lawfully erected, but which does not conform with the property development regulations
prescribed in the regulations for the district in which the structure is located by reason of adoption
or amendment of the Code..." The Code does not make any distinction between "legal" and
"illegal" non - conforming structures, and does not provide a definition for those terms.
Chapter 20.62 concerns "nonconforming structures and uses" and "structural alterations"
to such structures. The "chapter is intended to limit the expansion of nonconforming structures... to
the maximum extent feasible, to establish the criteria under which they may be continued... and to
bring these structures... into conformity in an equitable, reasonable and timely manner, without
infringing upon the constitutional rights of property owners."
§20.62.040(C)(D) provide for structural alterations and additions to "legal" nonconforming
structures. Pursuant to those sections alterations and additions of up to 50 percent of the structure
or the gross floor area may be made "upon approval of a modification permit ". In order for such
a Despite the potential significance of this issue, it was not raised in the City's initial July 2007
correspondence with Ms. Redwillow regarding this matter, at the Zoning Administrator's August 2007 hearing, or in
the Staff report pt0pared for the October l8' Planning Commission hearing.
S3
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 4
a permit to be issued §20.62.040(F) requires that certain findings be made. Said findings include:
"(1) The cost of the improvements to be made is minor in
comparison to the value of the existing nonconforming condition.
(2) The cost of correcting the nonconforming condition would
exceed the cost of the other alterations proposed.
(3) Retention of the nonconforming condition is necessary to
maintain reasonable use of the structure.
(4) The alteration does not increase the structure's
inconsistency with the regulations of the Zoning Code."
Additionally, §20.93.030 requires th
Administrator approves a modification permit.
in this matter by the Administrator, include:
t other findings be made when the Zoning
Said findings, which as stated above were 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 application will not adversely affect
the health or safety of persons residing or working in the neighborhood
...and will not be detrimental to the general welfare or injurious or
property or improvements in the neighborhood.
As argued below, the above findings are all easily made in this matter, and so the Planning
Commission should deny the within appeal, and the City must grant Ms. Redwillow the sought
for modification permit.
ANALYSIS
Based upon Staff s current position it appears that the fast issue which should be addressed
is whether the Structure is a `legal" or "illegal" non - conforming structure.
The Structure was constructed approximately sixty (60) years ago pursuant to a valid
building permit. Based upon the Staff report it appears that it was at about that time the City
adopted the current front yard setbacks. Since a building permit was issued, and the City's files
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 5
contain no evidence of any variance issued in association with the Structure, it is logical to assume
that the Structure was built according to the then setback requirements. The fact that the Structure
was built at apparently the same time the set back requirements were changing is further evidence
that it was built legally according to the requirements then enforced by the City. Without any
conflicting evidence the only conclusion that can be drawn is that the Structure was "lawfully
erected" and so represents a "legal" nonconforming use as defined by the City Code.
Furthermore, in 1979 the City granted the then owners of the Property a modification
permit for an addition to the Structure. If the Structure was an "illegal" non - conforming structure
such a permit should not have been issued. As such it is plain that at least in 1979 the City
considered the Structure to be a `legal" non - conforming structure.
Finally, and as more particularly set forth below, other modification permits for additions
or remodels to non - conforming residential structures issued by the City in the past five (5) years
do not even apply this distinction. A review of all such permits indicated that none of them
involved an analysis of whether or not the subject structure was a "legal" or "illegal'
nonconforming structure. This appears to be the first instance in which Staff has raised this issue.
Neither I or Ms. Redwillow understand why this issue has now been raised in this matter. Based
on the City's past failure to consider the issue with regard to other modification permits this
appears to be a situation of selective enforcement.
If, as argued above, the Structure is a "legal" non - conforming structure than, as also set
forth above, Ms. Redwillow is entitled to the modification permit is certain conditions exist.
As set forth above, the Zoning Administrator found that my client's application met all of
the requirements necessary for the issuance of a modification permit. However, Staff apparently
disagrees. In the report prepared for the October 18, 2007 hearing Staff argued that Ms.
Redwillow's application did not meet the requirements of such a permit. Staff is wrong.
The first finding required by §20.93.030 is that "[T]he 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 ". In this situation the Structure encroaches on the current front yard setbacks,
but has done so for approximately sixty (60) years. A strict enforcement of said setback would
involve demolishing a large section of the Structure, including the Structure's kitchen. As Staff
notes, "[P]ractically speaking, it would be structurally difficult to retain a portion of the structure
and the entire building would need to be demolished in order to conform to the... front yard
setback." As such, the "physical hardships" to Ms. Redwillow are clear, and were recognized by
)5
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 6
both the Zoning Administrator and the Staff.3
The second finding required by §20.93.030 is that "[T]he requested modification will be
compatible with existing development in the neighborhood ". In regard to this finding both the
Zoning Administrator and the Staff found that the proposed modifications and improvements
conform to all applicable zoning and building requirements. Furthermore, the proposed
modifications do not in any way intrude on neighborhood characteristics or block any views. As
such the modifications to be done by Ms. Redwillow are "compatible with existing development
in the neighborhood. "
Additionally, §20.93.030(C) requires that "[Th]e granting of such application will not
adversely affect the health or safety of persons residing or working in the neighborhood ... and will
not be detrimental to the general welfare or injurious or property or improvements in the
neighborhood". There is absolutely no evidence that the granting of Ms. Redwillow's application
will adversely affect the health or safety of anyone. Mr. Higman has made the allegation (and Staff
apparently supports it without reference to any supporting evidence) that the Structure blocks light
and air to his front yard, and so somehow affects his and his family's health and safety. While due
to its encroachment on the front yard setback the Structure may block some light to Mr. Higman's
fi-ont yard (how can it block air ?), this is irrelevant. First, it is not a health or safety issue, and
second Mr. Higman bought the lot his home is situated on, and built his home, long after the
Structure was built. Therefore if Mr. Higman has a problem with the Structure he can blame only
himself for building a house right next door to it.
Furthermore, Ms. Redwillow's application meets all of the criteria set forth in
§20.62.040(F). The cost of the improvements to be made by Ms. Redwillow are minor in
comparison to the value of the existing nonconforming condition. Ms. Redwillow believes the
Property is worth at lease $1,500,000.00. She has planned on spending approximately 4250,000.00
on the improvements. Additionally, the cost of correcting the nonconforming condition would
exceed the cost of the other alterations proposed. As set forth above, it would require demolishing
(and rebuilding) a large portion of the Structure, including that portion with the home's kitchen.
3 Despite finding that Ms. Redwillow's application meets the criteria set forth in §20.93.030(A) Staff, with
very little justification, concluded that her application should be denied.
" Once again Staff disagrees. Said disagreement is apparently based on an erroneous interpretation of the
Code. Staff found that the modifications would not be compatible with the neighborhood because of the Structure's
existing non - conformity. That is not what the Code says. The Code refers to the "requested modification ", not the
non - conforming structure to be modified. Staff s interpretation of this requirement would mean that few modification
permits could ever be issued because the non - conforming structures to be modified are probably is not compatible
with existing development.
le
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 7
All of that would clearly cost more than $250,000.00. Furthermore, retention of the
nonconforming condition is necessary to maintain reasonable use of the Structure. Again, the
nonconforming portion of the Structure includes the house's kitchen. Without a kitchen its hard
to have a home. Finally, the proposed alteration does not increase the structure's inconsistency
with the regulations of the Zoning Code. As set forth in the findings of the Zoning Administrator
and the Staff, all of Ms. Redwillow's proposed alterations and additions to the Structure and the
Property comply with all applicable zoning and building codes, and so there is no increased
inconsistency.
Additionally, the equities in this matter clearly favor Ms. Redwillow. Based on the building
permit issued in 1946, the reliance thereon, and the lack of any action by the City for over sixty
(60) years to require the non - conformity of the Structure to be corrected, Ms. Redwillow has a
strong equitable argument for allowing the proposed modifications to the Structure and the
Property.
Finally, and as the Zoning Administrator found, the City has issued many modification
permits for other structures that are non - conforming due to encroachment of various setbacks. Said
permits include numbers 4513 (304 Santa Ana Ave.), #4603 (2916 Clay), MD2003 -007 (2054 E.
Ocean Front), MD2003 -030 (104 Via Mentone), MD2003 -035 (2221 Heather Ln.), MD2003 -050
(1703 E. Ocean Blvd.), MD2003 -123 (1300 Sussex Ln.), MD2004 -005 (504 W. Bay Ave.),
MD2004 -019 (1319 Oxford Ln.), MD2004 -025 (2 15 Crystal Ave.), MD2004 -032 (2223 Cliff Dr.),
MD2004 -041 (401 Santa Ana Ave.), MD2004 -044 (2540 Vista Baya), MD2004 -052 (934
Goldenrod Ave.), MD2004 -072 (3908 Channel Pl.), MD2005 -07 (2024 Galaxy Dr. ), MD2005 -011
(2248 Port Durness Pl.), MD2006 -035 (340 Catalina Dr.), MD2006 -062 (2337 La Linda Pl.),
MD2006 -066 (611 Kings Pl.), MD2006 -076 (2724 Ocean Blvd.), MD2006 -079 (302 Amethyst
Ave.), and MD2006 -082 (717 Poppy Ave.).'
CONCLUSION
Ms. Redwillow desires to improve her home. To that end she hired a licensed contractor
and obtained the necessary permits. A neighbor complained and the City decided she needed a
modification permit to do the necessary work. She applied for such a permit and it was granted
by the Zoning Administrator. Her neighbor, with whom she has a history of bad blood based on
the neighbor's contractor's damage to the Property, appealed that decision and that appeal is
currently before you.
s Furthermore, and as stated above, in none of those permits was the issue of "legal" versus "illegal" non-
conforming structure brought up.
1I
City of Newport Beach Planning Commission
Re: Modification Permit #2007 -060 (PA2007 -152)
November 28, 2007
Page 8
As set forth above, it is my and Ms. Redwillow's position that she is clearly entitled to the
modification permit. Despite Staffs conclusions (which directly contradict the findings of the
Zoning Administrator), and as set forth above, the history of the Structure demonstrates that it is
a "legal" non - conforming structure, and Ms. Redwillow's application meets all of the Code's
criteria for a modification permit. Therefore the within appeal should be denied, and the sought
for modification permit granted.
I want to thank the members of the Planning Commission for their attention to this matter,
and I look forward to the continued December 5`' Planning Commission meeting and at that time
being able to answer any questions you may have.
Otherwise, if you have any questions or there are any problems please feel free to contact
me at any time.
Thank you for your courtesy and attention to this matter.
SINCERELY.
(RI ONTAG
ATTORNEY AT LAW
cc: Client
l�
Exhibit No. 3
1�
Page I of 2
Brown, Janet
From: JOYCE REDWILLOW Doyceredwillow @sbcglobal.net]
Sent: Thursday, November 29, 2007 10:12 AM
To: Brown, Janet
Cc: Richard Sontag
Subject: Please forward: My request to Chairman of Planning Commission
As you know, the modification appeal for 418 Redlands Avenue is scheduled for December 6,
2007. This seems to have taken on a life of its own far beyond the scope and intent of the project. I'm
not sure how to bring this back into perspective.
To date, no decision -maker from the city or planning commission has actually seen the house as it
relates to the plans. I would be very grateful if you and any other planning commission member could
come and look at the property and house, because no one else has.
This is a small house; my plan is modest in size; elegant in its simplicity and scope. I will be 70 this year
and planned to retire and pursue my design interests with my own studio. I obtained a reverse mortgage
for my construction financing. To date, I have spent at least $50,000 in plans, engineering, many
revisions, a city mandated survey, permits, hearings, lot preparation, mortgage costs and legal fees. My
initial construction contract is for $250,000.
I never expected the city would revoke its permit, particularly since it took over a year and many
reviews to have everything finalized. Since beginning construction in June, now stopped for six months,
my mortgage continues to accrue monthly charges of approximately $1,630 for basically nothing.
The year before, I replaced the roofs. I am now unable to proceed with even small things such as
window replacement and deck replacement. The terms of the mortgage include restoration of these
areas. It has been six months since I drew the construction funds. There is a time frame of six months for
repairs that begins upon initial withdrawal of funds. In December, I will be in default of the loan terms.
These were to have been completed concurrent with new construction so everything matched. This is
now a very real concern.
My contractor, Quality Construction, completed two nearby remodels on Santa Ana this year. He does
excellent work, but will have to schedule forward if this extended delay continues.
The network of a -mails and correspondence between Will Higman and the city staff
encompasses several departments and is extensive. I can not be certain I will ever receive all copies to
review for his accuracy.
As discussed in my response dated October 16, 2007, false statements were made regarding issue of
permit and that construction had started. These two major facts were entirely eliminated from the
original planning report to commissioners. In a similar manner,
Higman describes the front overhang as extending far beyond the public right of way. In fact, it extends
less than a foot over in one comer only. I was present when the city surveyor measured the overhang and
discussed this with him.
For me personally, the darkest moment by far is that Mrs. Hart was verbally attacked, threatened, and
called a liar by the Higmans and Mrs. Higman's father, in the lobby as she was leaving the hearing. I will
11/30/2007 A
Page 2 of 2
regret forever that a treasured friend experienced this frightening behavior simply because she chose to
comment on my behalf. With time and research, information can be disputed and corrected, but there is
no way to go back and change this.
In my opinion, contrary to appearances, these are not nice people. They do and say whatever they
perceive is necessary to achieve their interests. The city staff has been placed in the position of having to
allow them to do so.
Someone needs to say "no" and stop this endless invention of frequently trivial issues, best summarized
by Will Higman in his communications with staff. "...his wish to do a strong background approach with
minimal exposure at the hearing," [and] "...now that things have reversed in his favor, the need to
change his stratedgy."
Its difficult to determine what they really want. They've owned their property since 1996 and rented it
out for several years before building. Kris Higman has aggressively campaigned to buy my property.
First, her father could make a lot of money on it and she could have friends move in. I told her that was
unrealistic, although the city charges me utilties for 3 dwellings, that would not go forward to a new
owner.
Next, they wanted to buy the house and rent it back to me for as long as I wished to stay. The
only thing they would change is to put in new windows. Then it was .... I'm too old to live here and all the
young families in Newport Heights are buying the houses next to them. Following my knee replacement
the guess was that I would certainly move back to Denver to be close to the family.
You can imagine how pleased I was to observe the new homes at 515 and 519 Santa Ana were built by
people that seem to be closer to my age.
At this point, I'm not sure what to do other than request your assistance to actually look at the property,
judge it on its own merits, and go from there. Hopefully we can arrange this. I look forward to hearing
from you. Many thanks again,
Sincerely, Joyce Redwillow
e -mail (best) or phone 949 - 642 -4963
11/30/2007 A Z).1
The original Orange County tax assessor's ledger provides the following
information with respect to Map of the First Addition to Newport Heights,
February 1907, Block 24: 6 houses, 5 minor improvements in 1947.
LOT
NAME
1944
1945
1946
1947
1
Webb Finley
$ 1920
2
0
3
0
4
Marion Goodcell
$ 230
$ 230
5
Durwood Young
$ 1305
$ 1305
$ 1305
$ 1305
6
0
7
Ada Museus
$ 1860
8
0
9
0
10
0
11
Paul Anders Grace Brooks
$ 1270
$1480
12
0
13
0
14
Orville Fingley
$ 1250
15
Nelson Fox
$ 550
16
0
17
0
18
Eugene Weyant
$ 350
$ 350
19
Hugh Watson
$ 1660
20
Jobn AhLstrom
$ 150
$ 150
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NEWPORT HEIGHTS
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Page 1 of 6
Brown, Janet
From:
Will Higman [Whigman @rwli.net]
Sent:
Thursday, November 29, 2007 5:38 AM
To:
Brown, Janet
Cc:
Harp, Aaron; Lepo, David
Subject:
PC Meeting December 6th ( MOD Application No. 2467)
Attachments: Building Permit#1013- 81.pdf; Modifaction Permit#2467.pdf
Good morning Janet
Regarding the planning commission meeting set for December 6th...
Please add this string of emails and the "attachments" to the staff report for me. I will
be addressing the planning commissioners on the issues of City Council Policy L -2
and whether or not the house is legal nonconforming. I have already addressed all of
the other code and policy issues to the best of my ability and have nothing to add
there.
Thanks for your help!
Will
From: Will Higman
Sent: Tuesday, October 30, 2007 3:07 PM
To: Harp, Aaron; Brown, Janet
Cc: jeff.cole @cushwake.com; eaton727 @earthlink.net; rhawkins @earthlink.net; bhillgren @cox.net;
scott.peotter @taxFlghter.com; strataland @earthlink.net; Lepo, David
Subject: RE: MOD Application No. 2467
Aaron
Thanks for letting me know how that works.
I did find some interesting information about this Modification permit that I would
like to share with you. Please take the time to read through this email.
When I read through the staff report I noticed on Modification permit No. 2467, that
the Modifications Committee placed special conditions on the project on October 16,
1979. Now that I know a little bit about how and why this process happens the
following condition really caught my eye.
"That the proposal includes a reduction in the front yard encroachments that
now exist on the site."
The reason this caught my eye was because I thought it might help all of us solve the
mystery of how and when the added little low roof overhang came into existence. This
is the portion of the front structure that has been added on with no building records
11/29/2007 31
Page 2 of 6
and is the portion of the structure that protrudes into the public right of way per the
City Engineer.
The Planning department was very helpful and allowed me to come in and view the
microfiche. Included in the file were the actual plans that were submitted by the
applicant. What happened next I can only describe as amazing! The plans clearly
showed how and why the Modification Committee approved the permit. I will do my
best to describe my findings but you may want to go over to the Planning department
and view the file for yourself.
The plans submitted and approved for this Mod permit included the following
changes to the existing front structure.
• The exterior stairs were removed and an internal stair case was added.
• The front door was now located on the bottom floor and facing Redlands Ave.
• The low roof in question above was nonexistent on the plans.
• The front driveway approach was closed off along with the garage!
These were the main things that I saw that could be classified as a reduction in the
front yard encroachments. Obviously the removal of the curb cut and closing of the
front facing garage were standouts!
The bottom line here is the fact that the Hart's were making an attempt to convert the
front structure into a more normal single family home. I do have to speculate that the
reason they were granted the Modification permit was because of their intentions and
plans along with "closing off the curb cut" which now put them in compliance of City
Council Policy
L -2. Mrs. Hart was on the City Council during this time and I am sure that she was
very cognizant of the building codes in Newport Heights at that time. I now take my
hat off to the Harts for attempting to do the right thing with this property!
So now one question is... where did Phil Manuell and building permit #1013 -81 come
into play? As you stated the Mod permit transfers with the property but I highly
doubt that this released him from having to comply with the conditions of the
Modification Permit. I have not yet gone to the Building Department to view the plans
but I was able to find one thing available on the public access portion of the City
website. (see attachment)
It appears the Mr. Manuell started his project without a building permit. I have
attached the notes from the field inspector at that time which state: "Foundation
and slab placed without the benefit of permit or inspection." So not only did Mr.
Manuell start his project without a permit he failed to complete "any" of the
reductions in encroachments per the condition of the Mod.
My question for today is as follows:
Because of Mr. Manuell's rouge actions as it pertains to Modification Permit No.
11/29/2007 3?-
Page 3 of 6
2467, does this afterthought addition now become an "illegal" structure?
It's amazing to me how much further all of the problems with this property extend.
After seeing all of this new information it really makes me feel strong about the City
Council Policy L -2 requirement in our neighborhood.
I hope you find this information useful in determining if this structure is in fact legal.
Sincerely,
Will Higman
From: Harp, Aaron [mailto:aharp @city.newport- beach.ca.us]
Sent: Monday, October 29, 2007 8:53 AM.
To: Will Higman; Brown, Janet
Cc: jeff.cole @cushwake.com; eaton727 @earthlink.net; rhawkins @earthlink.net; bhillgren@cox.net;
scott.peotter @taxfighter.com; strataland @earthlink.net; Lepo, David
Subject: RE: MOD Application No. 2467
Hi Will,
The modification permit runs with the land so a change of ownership wouldn't impact the rights under the
modification permit. Thx.
Aaron C. Harp
Assistant City Attorney
for the City of Newport Beach
(949) 644 -3131
FAX 723 -3519
Confidentiality Notice: This email may contain material that is confidential,
privileged and /or attorney work product for the sole use of the addressee. Any
review by, reliance or distribution by others or forwarding to others without express
permission is strictly prohibited. If you receive this transmission in error, you are
advised that any disclosure, copying, distribution, or the taking of any action in
reliance upon the communication is strictly prohibited. Moreover, any such
inadvertent disclosure shall not compromise or waive the attorney- client privilege as
to this communication. If you have received this communication in error,
immediately please notify the sender. Thank you.
From: Will Higman [mailto:Whigman @rwll.net]
Sent: Saturday, October 27, 2007 2:34 PM
11/29/2007 S5
Page 4 of 6
To: Brown, Janet
Cc: jeff.cole @cushwake.com; eaton727 @earthlink.net; rhawkins @earthlink.net; bhillgren @cox.net;
scott.peotter @taxfighter.com; strataland @earthlink.net; Harp, Aaron; Lepo, David
Subject: RE: MOD Application No. 2467
Janet
Thanks for letting me come in and view the files for this Modification permit. I have
one question regarding the permit and it is as follows:
Are Modification permits transferable to a new owner in the event that a change of
ownership occurs before the permit is exercised? The Mod permit no. 2467 was
issued in 1979 to Linda Hart but never exercised by the applicant or "per the plans
submitted with the application."
In 1981 there was a building permit issued to someone named Phil Manuell and he
listed himself as the owner. It looks like the City let him ride the coat tails of this Mod
permit and I am not sure if this is proper? He did get a building permit within 24
months but the addition he completed did not comply with the "conditions" of the
1979 Mod permit or match "any of the plans submitted" by the Mod applicant in
1979.
Please let me know what you can!
Also I have sent Erin an email letting her know that I would like to come in and see
the plans on file for the 1981 building permit.
Thank you,
Will
From: Brown, Janet [mailto:JBrown @city.newport-beach.ca.us]
Sent: Monday, October 22, 2007 4:52 PM
To: Will Higman
Subject: RE: MOD Application No. 2467
I'll check with our administrative staff and let you know.
From: Will Higman [mailto:Whigman @rwli.netj
Sent: Monday, October 22, 2007 3:44 PM
To: Brown, Janet
Subject: RE: MOD Application No. 2467
Thanks Janet!
I do want to come in for both... Is there a certain day or time that would work best for
listening to the recording?
FYI I came in to see Aaron today and it was time well spent.
11/29/2007 � 1
Page 5 of 6
Thanks again,
Will
From: Brown, Janet [mailto: ]Brown @city.newport- beach.ca.us]
Sent: Monday, October 22, 2007 3:36 PM
To: Will Higman
Subject: RE: MOD Application No. 2467
Good afternoon, Will.
The complete file for Modification Permit No. 2467 is available on microfiche. You are
welcome to come in at any time to review the microfiche file.
The recording of the August 20, 2007 Modifications Hearing is on a cassette tape; there is no
digital file. Please let me know when you want to come in to listen to the tape. Our
administrative staff will need advance notification in order to get the tape ready to play and
schedule a quiet location for you.
Thank you.
Janet Johnson Brown
Assistant Planner
City of Newport Beach
(949) 644 -3236
jbrown@city.newport-beach.ca.us
From: Will Higman [mailto:Whigman @rwli.net]
Sent: Friday, October 19, 2007 1:32 PM
To: Brown, Janet
Subject: MOD Application No. 2467
Janet
Thank you for doing such a good job with your staff report last night. The 1946
picture was a big hit!
Now that the case has turned directions my game plan will change as well. I am
hoping that you will continue to help with with questions that I have. Please let me
know what the protocol is regarding these requests... Also I do now want to come in
and listen to the Modification Hearing recording. Is there anyway this is available as
a digital file? Please let me know...
To get me started with new questions I have attached a document for your review.
The document is a modification permit that was granted in 1979 with special
conditions. One of the conditions was that the a 'reduction in front yard
encroachments that now exist on site. "
11/29/2007
Page 6 of 6
My question is as follows.
Are there any records on file that state what these reductions included and if they
were ever completed?
Please let me know and thank you so much for your help.
Will Higman
Reliable Wholesale Lumber, Inc.
W Higman anerwli.nc
Ph.
11/29/2007 3�
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40fiifications
No. 2467
Applicant Linda Hart
Involved 418 Redlands A enue Newuprt (Leach
The Modifications Committee on_ October 16, 1979 approved the application
subject to the following conditions:
I. That development shall be in substantial conformance with the aooroved plot olan and
The Modifications Committee determined in this case that the proposal would
not-be detrimental to persons, property or improvements in the neighborhood
and that the modification as approved would be consistent with the legislative
intent of Title 20 of the Newport Beach Municipal Code, and made the following
findings: I. That all additions to the rear of the front building conform to the required-
NOTE: Tnis approval shall extend for a period of In months from the end
of the appeal period, and cannot be extended.
The decision of the Committee may be appealed to the Planning Commission
withinl4 days of the date of the decision. Any appea) filed shall be
accompanied by a filing fee of 8100.00. No building permits may be issued
until the appeal period has expired.
MODIFICATIONS COMMITTEE -
DEPARTMENT OF COMMUNITY DEVELOPMENT
R. V. )IOGAN, DIRECTOR
°j- L ror_vz _... _
ar�aY�._.._._..
Senior Planner
NOTE:: The above application number must be affixed to the
L +einu submitted for plan check and building permits.
IN
Page I of 2
Brown, Janet
From: Will Higman [Whigman @rwii.net]
Sent: Thursday, December 06, 2007 4:08 PM
To: Brown, Janet
Cc: Harp, Aaron; Lepo, David; Alford, Patrick; Varin, Ginger; Brown, Janet; Robert C. Hawkins;
Barry Eaton; Bradley Hillgren; Earl McDaniel; Jeffrey Cole; Scott Peotter; Mike Toerge
Subject: RE: Hearing - 418 Redlands Avenue ( Higman Reponse to Latest Redwillow)
Attachments: Higman Quick Respone ' 2- 6- 07.doc
December 6, 2007
Janet
Thanks for keeping me up to speed...
In an effort to stay on point with the real issues I feel the need to respond to this
email of Mrs. Redwillow. I do not have all of my back up paperwork here at work but I
feel the need to respond timely.
(RedwWow) In my opinion, the "real" issue in this matter is not the
encroachment but the Higman's ongoing obsession to prevent me from building
anything on my property.
We have no problem and would support Mrs. Redwillow in building an addition or
new home as long as it complies with the current City set backs along with City
Council Policy L-2.
(Redwillow) "...we are in favor of letting the property exist in its current
configuration ... and [are] in total opposition to any change in the footprint of
any structures on the property."
This is true even if the structure is determined to be illegal. We have no problem
living next to the house even though it sticks out 13'6" into the current City set
back. We also would support the decision by the City to allow for future building
permits for maintenance issues, i.e.
new windows etc...
(Redwillow) To paraphrase, forget eveWhin else we said.., ust do not allow
a ytthing to be built next to us.
This is not true, we welcome any new building structure that complies with the
current City set back.
(Redwillow) However, should the Higmans continue to insist that my existing
overhang, front drive, garage and encroachment are permanently injurious to
them...
This is not true, the damage only occurs if you connect the front and rear structure
12/06/2007
Page 2 of 2
as proposed. By connecting the two structures we would be burdened with an extra
13'6" of darkness and lack of airflow over and above any other house in Newport
Heights.
(Redwillow) Is the effect of my setback any greater than the effect of the side
yard setback of the Rath's newly built property? No. In fact, their structure
totally blocks everything on the adjoining property.
Mute point because the Rath's and Farmer's are "corner lots" with different side set
backs.
I could respond to all of the quotes but these are the main issues as I see them.
Also as an FYI I am not coming with any extra people tonight. My neighbors
surrounding the project have signed letters in opposition and some have spoken. My
wife Kristin will also not be in attendance this evening. We are all just ready to start
the process of healing the bad feelings in the neighborhood.
Thank you!
Will Higman
From: Brown, Janet [mailto: ]Brown @city.newport - beach.ca.us]
Sent: Thursday, December 06, 2007 3:49 PM
To: Will Higman
Subject: FW: Hearing - 418 Redlands Avenue
Will,
Below is a memo /document from Joyce Redwillow that I sent to the Commissioners a while
ago. I apologize for omitting your name from the distribution.
There are a couple of attachments to Joyce's memo that did not transfer with her e-mail. A
hardcopy of the document will be available at the meeting tonight (look for it in the lobby of the
Council Chambers).
Janet Johnson Brown
Assistant Planner
City of Newport Beach
(949) 644 -3236
jbro wn@ city. ne wport- beach. ca. us
12/06/2007