HomeMy WebLinkAbout2003-16 - Authorizing Procedures for Issuance of a Special Circumstance Variance.ORDINANCE NO. 2003 -16
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AUTHORIZING PROCEDURES
FOR ISSUANCE OF A SPECIAL CIRCUMSTANCE
VARIANCE
WHEREAS, the Newport Beach City Charter vests the City Council with the authority to
make and enforce all laws, rules and regulations with respect to municipal affairs subject
only to the restrictions and limitations contained in the Charter and the Constitution; and
WHEREAS, the City Council has the authority to make and adopt regulations and permit
procedures for development of property within the City of Newport Beach and has done
so pursuant to the Newport Beach Zoning Code, Title 20 of the Newport Beach
Municipal Code ( "Zoning Code "); and
WHEREAS, as a charter city, Newport Beach is not subject to the provisions of the
State Zoning and Planning Act except to the extent that those provisions relate to
matters of statewide concern; and
WHEREAS, the City Council finds that the special circumstances that have generated
the need for, and the special provisions of, this ordinance do not involve matters of
statewide concern and are not matters the regulation of which are subject to express or
implied preemption by the Legislature; and
WHEREAS, the procedures and findings for the consideration and approval of variances
are found in Chapter 20.91 of the Newport Beach Municipal Code and those procedures
and findings do not address the unique circumstances described in this ordinance; and
WHEREAS, the City Council finds that, during the past 3 years, a local architect, Andrew
Goetz (for purposes of this ordinance, the words Andrew Goetz or Goetz include the
business entity known as Andrew Goetz and Associates, any other business entity
owned or controlled by Andrew Goetz and any person acting on behalf of Andrew
Goetz), submitted numerous applications for building permits that were accompanied by
topographic surveys that: (a) were not signed by the surveyor; and (b) were altered to
increase the elevations on all or a portion of the parcel; (c) or were fabricated by Andrew
Goetz and not based on any field data; and
WHEREAS, the City Council finds that the Building Department, following standard
procedures in all cases, issued approximately 30 building permits based on, and in
reliance on, the false information submitted by Goetz; and
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WHEREAS, the City Council finds that, based on preliminary analysis, virtually all of the
building permits issued on the basis of information submitted by Andrew Goetz during
the past three years, authorized construction of buildings that exceed the height limits
specified in the Zoning Code; and
WHEREAS, the City Council finds that, based on preliminary analysis, the projects for
which building permits were issued on the basis of false information submitted by Goetz
are in various stages of construction ranging from completed structures that have been
occupied for an extended period of time to projects that are not yet under construction;
and
WHEREAS, the Building Director has, pursuant to the provisions of Section 303.5 of the
Uniform Administrative Code (adopted by reference in Title 15 of the Newport Beach
Municipal Code) suspended construction on all projects that the City has determined
involve permits that were issued based on false information submitted by Andrew Goetz;
and
WHEREAS, the City Council finds that, under virtually all circumstances, strict
enforcement of the Zoning Code serves important public interests such as promotion of
aesthetically pleasing neighborhoods, protection of the public health and welfare and the
equal handed administration of laws; and
WHEREAS, the City Council finds that the extremely unique circumstances relevant to
the building permit applications submitted by Andrew Goetz warrant the extraordinary
step of adopting this ordinance establishing special circumstance variance procedures
for a very limited number of properties; and
WHEREAS, the City Council finds that granting the special circumstance variances to
the extent authorized by this ordinance will not adversely affect the health, safety,
welfare or peace of the City or the persons who own property in and around the parcels
for which a special circumstance variance may be granted; and
WHEREAS, the City Council finds that the classifications in this ordinance, which allows
the issuance of a special circumstance variance for certain construction projects that are
complete or substantially complete, represent a fair and equitable balance of the public
interests in strictly enforcing the Zoning Code with the hardships experienced by the
owners of property who have been victimized by the apparently criminal conduct
engaged in by Goetz; and
WHEREAS, the City Council finds that the classifications and provisions of this
ordinance, and the criteria for granting a special circumstance variance, are reasonable
and represent, to the best extent possible given the wide range of circumstances,
projects that are substantially similar in all relevant respects; and
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WHEREAS, the City Council finds that this ordinance, and the procedure and criteria for
granting a special circumstance variance is not to be codified and shall not be
considered an amendment to the zoning code due to its extremely narrow and limited
application.
WHEREAS, the City Council finds and declares that the provisions of this ordinance,
and any special circumstance variance granted pursuant to this ordinance, do not
supersede or in any way effect any private contract relating to the use of land and /or
size of structures such as the "covenants, conditions and restrictions" applicable to
many properties in the City of Newport Beach.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows:
SECTION 1: CRITERIA
Notwithstanding any other provision of the Newport Beach Municipal Code, an owner of
property that satisfies all of the following criteria may apply to the Planning Director for a
special circumstance variance pursuant to the provisions of Section 2 and 3:
(a) The property is the subject of a building permit that was issued on the
basis of an application submitted by Andrew Goetz on behalf of the property
owner /developer;
(b) The City determined, when the building permit application was issued, that
the proposed structure fully complied with all relevant provisions of the Zoning
Code based on the information submitted by Andrew Goetz on behalf of the
property owner /developer;
(c) The building permit application submitted by Andrew Goetz included a
topographic survey that contains a forged, altered, or falsified stamp and /or
signature of the licensed surveyor who conducted the survey;
(d) The building permit application submitted by Andrew Goetz included a
topographic survey that contained altered and /or falsified survey data including
elevations that did not accurately reflect the information provided to Goetz by the
person who conducted the survey
(e) The City would not have issued the building permit or determined the
structure conformed to the building height limits established by the Zoning Code if
the true and accurate topographic survey had been submitted with the
application.
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(f) Construction of the project pursuant to the building permit issued on the
basis of the false topographic survey has proceed to the stage that the Building
Department has inspected, and given approval for, work on the (exterior or
interior) drywall, suspended ceiling, shower lath, exterior lath or "plaster- scratch"
coat.
(g) The City has no evidence that the owner or developer of the property for
which the building permit was issued pursuant to the application submitted by
Goetz had actual knowledge of the falsification of the signature /stamp of the
surveyor or the falsification or alteration of the survey data.
SECTION 2: REQUIRED FINDINGS
The Planning Director may grant a special circumstance variance for any property
described in Section 1 if the Planning Director finds that:
(a) No portion of the structure on the property that was constructed, or is
being constructed, exceeds by more than five percent (5 %) the height
permitted by the Zoning Code and the structure complies in all other
respects with the provisions of Titles 15 and 20 of the Newport Beach
Municipal Code; or
(b) (i) The applicant has completed (or the variance is conditioned on
completion) all feasible alterations to the structure that can be made to
cause the structure to conform, or more closely conform, to the building
height provisions of the Zoning Code; and
(ii) That aside from the feasible alterations specified in subsection (i),
the applicant has provided credible and convincing evidence that there is
no feasible alteration that would cause the structure to conform, or more
closely conform to the building height provisions of the Zoning Code; and
(iii) The structure complies in all other respects with the provisions of
Title 20 and Title 15 of the Newport Beach Municipal Code.
SECTION 3. COVENANT
The grant of any special circumstance variance is conditioned on the applicant's
recordation of a covenant approved as to form and content by the City Attorney, that
states, among other things that:
(a) The structure is the subject of a special circumstance variance;
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(b) The special circumstance variance terminates if the structure is destroyed
or demolished or if the City finds that there is substantial evidence to
support a finding that the owner /developer of the property when the
special circumstance variance was granted knew of the falsification of the
surveyor's stamp /signature or the falsification of the survey data.
SECTION 4. PROCEDURE
The Planning Director shall conduct a hearing on any application for a special
circumstance variance. Written notice of the hearing shall be given to all owners of real
property, as determined by the latest equalized assessment roll, located within 300 feet,
inclusive of public property and public rights of way, of the exterior boundaries of the
property that is the subject of the application. Written notice shall be given at least
seventy -two (72) hours prior to the date and time of the hearing. Testimony at the
hearing shall be strictly limited to whether the property is eligible for a special
circumstance variance on the basis of the provisions of Section 2(a) or 2(b). The
Planning Director shall not consider testimony or comments on other subjects including,
without limitation, the impact of the excessive structure height on any adjacent property
or any view from or to any adjacent property. The Planning Director may, prior to any
hearing, establish a sixty (60) minute limit on testimony. The decision of the Planning
Director shall be final.
SECTION 5. FEASIBLE
For the purposes of this ordinance, the term feasible alteration(s) shall mean a
modification of the structure that involves removal and replacement of roofing (shingles,
slates, tiles, etc.), the removal of interior or exterior finishes (dry wall, stucco, plaster etc.
etc.) but does not include the removal, alteration or replacement of supporting members
of the structure such as trusses, load- bearing walls, columns, beams, or girders unless
the Planning Director determines that the limited removal, replacement or alteration of
structural elements that pertain directly to the portion of the structure that exceeds the
height limit in the Zoning Code can be accomplished without any impact on the
remainder of the structure.
SECTION 6: SEVERABILITY
That if any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be invalid or unconstitutional, such decision shall not affect the validity or
constitutionality of the remaining portions of this Ordinance. The City Council declares
that it would have passed this Ordinance and each section, subsection, clause or
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phrase hereof, irrespective of the fact that any one to more sections, subsections,
sentences, clauses and phrases be declared unconstitutional.
SECTION 7: CONCLUSION
The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance.
The City Clerk shall cause the same to be published once in the official newspaper
within fifteen (15) days after its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on the 12th day of November, 2003, and adopted on the 25th day
of November, 2003, by the following vote, to -wit:
ATTEST:
AYES, COUNCILMEMBERS Heffernan, Rosanskv. Adams,
Webb, Nichols, Mayor Bromberg
NOES,COUNCILMEMBERS None
ABSTAIN "
ABSENT, COUNCILMEMBERS None
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF NEWPORT BEACH
I, LEILANI I. BROWN, Deputy City Clerk of the City of Newport Beach, California,
do hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2003 -16 was duly and regularly introduced before and adopted by
the City Council of said City at a regular meeting of said Council, duly and regularly held on the
25th day of November 2003, and that the same was so passed and adopted by the following vote, to
wit:
Ayes: Heffernan, Rosansky, Adams, Webb, Nichols, Mayor Bromberg
Noes: None
Absent: None
Abstain: Ridgeway
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 26th day of November 2003.
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Deputy City Clerk
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(Seal) City of Newport Beach, California
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CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2003 -16 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: December 6, 2003.
2003.
In witness whereof, I have hereunto subscribed my name this day of j %/
City Clerk
City of Newport Beach, California