HomeMy WebLinkAboutSweeney Residence (PA2004-206)CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
Agenda Item: 3
September 9, 2004
TO: PLANNING COMMISSION
FROM: James W. Campbell, Senior Planner
(949) 644 -3219, icamobellCmcity .newoort- beach.ca.us
SUBJECT: Appeal of the Planning Director's determination of grade for the
purpose of measuring structure height for 401 -403 Heliotrope Avenue
(PA2004 -206)
APPELLANT: Ed Sweeney, Newport Beach
ISSUE
On July 2, 2004, the Planning Director determined the grade for the purpose of
measuring structure height for 401 -403 Heliotrope Avenue in accordance with
provisions of the Zoning Code (Exhibit No. 1). The appellant filed an appeal within the
prescribed appeal period requesting that the Planning Commission overturn the Director
and establish the grade at a different elevation (Exhibit No. 2).
Staff recommends that the Planning Commission deny the appeal and uphold the
Planning Director's determination of grade.
DISCUSSION
The Zoning Code establishes how the height of structure is determined. Specifically,
Section 20.65.030.A states:
"Height of Structure. The height of a structure shall be the vertical distance between the
highest point of the structure and the grade directly below. In determining the height of a
sloped roof, the measurement shall be the vertical distance between the grade and the
midpoint of the roof plane, as measured from the ridge of the roof to where the wall plate
intersects the roof plane, provided that no part of the roof shall extend more than 5 feet
above the permitted height in the height limitation zone."
Appeal of Grade Determination for
401 -403 Heliotrope Ave.
September 9, 2004
Page 2
Grade is defined as the unaltered vertical location of the ground surface unless it is
altered or some other grade is identified. Section 20.65.030.6 states:
°Grade. For the purpose of measuring height, the grade shall be the unaltered natural
vertical location of the ground surface unless one of the following applies:
At the time of subdivision, the City has approved a grading plan or map, under which
circumstances grade shall be finished grade as shown on the plan or map so
approved. For sites that were developed without or prior to the requirement for a
grading plan or map, the Planning Department shall exercise its best efforts to
determine the location of grade for the purpose of measuring height. In so doing, the
Planning Department shall use existing on -site elevations and contours, as well as
the elevations and contours of adjoining and nearby properties to determine the
natural profile of the site. In cases where retaining walls have been constructed or
be used for the measurement of height. Under no circumstances shall height be
measured from excavated surfaces such as basements and wine cellars which have
been used to artificially lower the ground surface." (emphasis added)
A detailed explanation of the Director's determination of grade is contained in the
attached determination letter (Exhibit No. 1). In summary, staff believes that the existing
finished grade of the property is the grade the Zoning Code identifies for the purpose of
measuring structure height. The Code clearly indicates that a filled surface used for the
purpose of measuring height prior to October 12, 1972 is the grade to be used as the
baseline for height measurement. Staff believes there are compelling facts to support
this conclusion given the air photos, geotechnical report and original site plan from 1960
(Exhibit No. 3). The applicant has not addressed this issue but has focused attention
upon estimating the natural grade from the 1950s using air photography given the belief
that the site was subsequently excavated. Mr. Sweeney and his consultants have
prepared several exhibits identifying what the natural grade of the site might have been
prior to excavation of the site. -Air photographs were used and expert opinions from
geologists were also included. These exhibits were used by staff in the evaluation
process and are contained within Exhibit No. 4.
At first look, the site appears to be an excavated pad at the base of a steep slope. The
interesting thing is that the steep slope at the north corner of the lot is too steep to be a
product of grading since engineers would not leave an unsupported cut slope at such a
steep grade given the soil conditions; only a small 3-4 foot high retaining wall exists at
the base of the much higher slope. It is possible that the nonconforming nature of the
slope was created prior to development of the site without city supervision or approval
and it may have later been accepted as a natural feature. Opinions from several
geologists indicate that the steep slope was the result of excavation. Geotechnical
analysis reveals that a significant portion of the site under the existing building was
Appeal of Grade Determination for
401 -403 Heliotrope Ave.
September 9, 2004
Page 3
excavated far below the existing grade and then filled to its current grade. Herein lays
the crux of the matter; a combination of cut and fill likely exists.
The Coast Geotechnical report dated January 17, 2004 (included in Exhibit No. 3)
shows that a good portion of the site was deeply excavated and then filled to its current
grade. The report preparer also expresses the opinion that natural profile of the site was
much higher and that there is a cut at the north corner of the lot. The City had this report
independently evaluated by an expert geologist who concluded that the opinion
expressed about the natural grade (elevation and slope) was not necessarily supported
(Exhibit No. 5).
The air photographs used by the applicant's consultants as the basis for.their estimate
of the grade in the 1950s are not of the highest quality and there is a 3 -5 foot margin of
error. Other assumptions were used by the consultant in the photographic analysis that
introduces uncertainty in the results. In other words, interpretation of older air
photographs is inexact and more opinion than fact. Staff believes that the photos from
the 1950s (the basis for the appellant's appeal) indicate that the site was altered in
1952. A review of older photographs from the 1930s and 1940s show prior alteration of
the site including the deep excavation of the site in the 1930s. The site is clearly shown
in a photograph from 1931 in the back dining room of Coco's in Corona del Mar. This
photograph shows what appears to be a steeper slope than what RBF is suggesting.
The entire body of photographs highlights the difficulty in implementing the unaltered
natural grade as outlined in Section 20.65.030. The photos can support the notion that
the site was cut and then filled. In that case, what is the most appropriate application of
the Code? If under no circumstances shall an artificially lowered ground surface such as
a basement or wine cellar be used, the existing grade is not similar to a basement or
wine cellar. Since there is clear evidence that a filled condition exists that was used for
the purpose of measuring height, staff concluded that the existing grade is the correct
determination given the language of the Code. The appellant has indicated to staff that
the grade they seek is not necessarily the grade identified by RBF, but rather a lower
grade identified by the architect on the buildings shown on the large format plans
(Exhibit No. 6).
The appellant indicates in his August 27, 2004 letter (Exhibit No. 2) his opinion that staff
has taken the most "conservative route possible" in this determination due to "deceit
practiced by the office of Andrew Goetz" who was the original architect of record. Mr.
Goetz is no longer the architect of record and the appellant also indicates a desire to
have an independent evaluation of the facts by the Commission. Although the original
survey submitted in conjunction with this matter is allegedly forged and has been
eliminated from further review, the analysis conducted by staff was based solely on the
provisions of the Zoning Code.
Appeal of Grade Determination for
401 -403 Heliotrope Ave.
September 9, 2004
Page 4
In conclusion, staff believes the most appropriate application of Section 20.65.030 of the
Zoning Code as it relates to the specific circumstances of the lot is that the existing
grade should be used as the baseline for measuring structure height because the site is
a filled surface previously used to measure height. The primary impact of this
determination is that the proposed residences shown in the attached drawings will need
to be redesigned entirely. Additionally, development of the site using the existing grade
will match expectations of neighbors since it is unusual to design and develop a lot to a
grade that has not been seen for 40 to 60 years.
Environmental Review
The grade determination relates to the eventual demolition of a 4 -unit residential
structure and its replacement with two single family dwellings. The project qualifies for
an exemption from further environmental review pursuant to Section 15302
(Replacement and Reconstruction) of the Implementing Guidelines of the California
Environmental Quality Act. This exemption covers the replacement or reconstruction of
existing structures and facilities where a new structure or structures will be located on
the same site as the structure replaced and will have substantially the same purpose
and capacity as the structure replaced. Staff believes that the facts support the finding
that the project including the determination of grade is exempt from environmental
review.
Public Notice
The Zoning Code requires appeals to be noticed in the same fashion as the original
decision being appealed. In this case, no notice of the Director's action was required
and therefore no notice of the appeal is required. The subject of this agenda item was
noticed with the posting of the agenda as required by law.
Alternatives
In addition to the recommended action, the Planning Commission has the option to
uphold the appeal and determine the grade in accordance with the appellant's request.
Prepared by: Submitted by:
c,, Lz�
Ja es W. CampbYall, Senior PI nner
P :
Patricia L. Temple, 'Planning Director
Appeal of Grade Determination for
401 -403 Heliotrope Ave.
September 9, 2004
Page 5
Exhibits:
1. Determination letter dated July 2, 2004
2. Appeal
3. Site Plan from Variance No. 581 from 1960
4. "Report & Analysis of Geologic & Photogrammetric Research" for 4011403
Heliotrope dated April 19, 2004
5. Letter from Ken Bagahi, consulting geologist
6. Proposed building plans for 401 & 403 Heliotrope Avenue
CITY OF NEWPORT BEACH
PLANNING DEPARTMENT
Patricia L. Temple, Director
July 2, 2004
Ed Sweeney
P.O. Box 4086
Tustin, CA 92781
Re: 4011403 Heliotrope
Dear Mr. Sweeney:
I have had a chance to review the additional information you complied and submitted on
April 20, 2004. The binder included two letters from RBF Consulting and others along
with a contour map, several site section drawings and a 1952 air photograph. Staff has
also reviewed survey information previously submitted and has conducted site visits to
understand on -site and surrounding topography. Air photographs from 1931, 1939 and
1947 have also been reviewed in an effort to identify grades. Existing Building, Planning
and Public Works Department records were searched and relevant records reviewed.
The height of a structure is the vertical distance between the highest point of the
structure and the grade directly below. For.the purpose of measuring height, the grade
shall be the unaltered natural vertical location of the ground surface unless several
circumstances identified in Section 20.65.030.6 are identified. I believe that the site is
subject to the provisions of Subsection 1, which states:
At the time of subdivision, the City has approved a grading plan or map, under
which circumstances, grade shall be finished grade as shown on the plan or map so
approved. For sites that were developed without or prior to the requirement for a
grading plan or map, the Planning Department shall exercise its best efforts to
determine the location of grade for the purpose of measuring height. In so doing, the
Planning Department shall use existing on -site elevations and contours,. as well as
the elevations and contours of adjoining and nearby properties to determine the
natural profile of the site. In cases where retaining walls have been constructed or
filled surfaces have been used for the purpose of measuring height prior to October
12, 1972, the finished grade established in conjunction with the filled condition shall
be used for the measurement of height. Under no circumstances shall height be
measured from excavated surfaces such as basements and wine cellars which have
been used to artificially lower the. ground surface."
Corona del Mar has no approved grading plan or map due to the age of the subdivision
so the first sentence is not applicable. City permit records indicate that the site was
developed in 1960. The original plans are on file; however, no grading plans or survey
information is included. In cases such as these, the remaining provisions may be
3300 Newport Boulevard • Post Office Box 1768 - Newport Beach, California 92658 -8915
Telephone: (949) 644 -3200 • Fax: (949) 644 -3229 • www.city.newport- beach.ca.us
Grade determination
4011403 Heliotrope Ave.
July 2, 2004 — Page 2
applicable depending upon the physical circumstances of an individual lot. A short
retaining wall is located at the northwest corner of the site that retains approximately 2 -3
feet of earth. This retaining wall is located at the base of a steep exposed rock
outcropping. There is a slope between the lot and the adjacent tot to the north with the
subject property at a lower elevation. The remainder of the site is relatively flat and
developed with a 4'-unit residential building and an in- ground pool. Vehicular access is
provided from Heliotrope Avenue.
The City approved Variance No. 581 in early 1960 that allowed the existing building to
encroach within setbacks. Part of the justification for the variance was, "contours on the
north and south side from V to 22'." The site plan associated with this variance shows a
"rock bank" at the northwest corner of the lot that roughly corresponds to the location of
the existing rock outcropping noted above. Based upon this information that describes
the existing grades of the site fairly closely, staff believes the existing grade was used
for the purpose of determining structure height for the construction of the existing
building.
A geotechnical report prepared by Todd Houseal shows additional subsurface details
based upon several borings. The report shows that a portion of the site under the
existing residential building was filled and he expresses his opinion that the northwest
corner of the lot was cut.
RBF believes that the grade in the 1959 was higher with a gentler slope than the
existing grade. They arrive at this opinion through the use of air photographs from the
1950's, which are not very clear in my opinion. If the grade at that time was indeed as
described by RBF, excavation of the site to existing conditions would have necessitated
the construction of a much larger retaining wall at the northwest comer of the site due to
the extremely steep .slope of that portion of the site. In this scenario, the existing grade
would be the result of excavating a filled condition leaving both excavated and filled
areas. Regardless of how the existing grade came to be, the geotechnical report
indicates a filled condition exists. and the variance application and plan indicate that the
cut predates construction. In that case, a grade that resembles the existing grade was
used for the purpose of measuring height at the time of construction.
Based upon this understanding and the guidance provided by Section 20.65.030.8.1,
staff is lead to conclude that the existing grade should be used as the baseline for
structure height measurement. You may appeal this determination within 14 days from
the date of this letter by filing an appeal form with the payment of a $915 administrative
processing fee. If you file an appeal, a hearing before the Planning Commission will be
scheduled within 30 days, unless a later date is mutually agreed upon.
Grade determination
401/403 Heliotrope Ave.
July 2, 2004 — Page 3
If you have any questions regarding this letter, please call me at (949) 644 -3228 or you
can contact James Campbell, Senior Planner (949) 6443210.
Sin�ceerely, ))
Patricia L. Temple
Planning Director
CC. Bill Edwards
Laurence P. Nokes
It
PA2004 -206
401 Heliotrope Avenue, CDM
Edward ! eeney
CITY OF NEWPORT bmiAton
APPLICATION TO APPEAL DECISION OF THE PLANNING DIRECTOR
Application No.
Name of Appellant
or person filing: 6 0 �� ��i
Wf�+�
Address:
Phone: -7114 3s0 (:�Zt"t
Date of Planning Director's decision: 0 L' 20
Regarding application of: Z for
(Description of application filed with Staff)
Reasons for Appeal: L� T e715-� LIE AA-df-
Date 2 51, `S"
of Appellant
PLANNING DEPT. ASSISTANT or STAFF
FOR OFFICE USE ONLY (j C
Date Appeal filed and Administrative Fee received: I ` —,20
Hearing Date. An appeal shall be scheduled for a hearing before the Planning Commission within thirty (30)
days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date
(NBMC Sec. 20.95.050) AID
cc: Appellant
Planning (Furnish one set of mailing labels for mailing) D �-
File JUG. 15 200
APPEALS: Municipal Code Sec. 20.95.040B Aae f _e4a
Appeal Fee:, $71-4'00 pursuant to Resolution No.
%T5 L,
(Deposit funds with Cashier in Account #2700 -5000) ` l
F:\Users\PLMSharefforms 2000 \01d Forms \lforms\Staffappeal.doc
FROM THE DESK OF
ED SWEENEY
To: Planning Commissioners
From: Ed Sweeney
Date: August 27, 2004
Re: 401 and 403 Heliotrope
Establishment Natural Grade
Dear Sirs,
In order to fully evaluate the request for your help in determining the natural grade on
this property we respectfully ask that you take a few moments and inspect the property. I
can be available at any time with as little as an hours notice.
With the current turmoil in the real estate markets we are reevaluating our blueprints and
are in a catch -22 as to what we can revise until an agreement on natural grade is reached.
The over simplified explanation our dilemma is that our roof lines are within the height
limits designated by the City of Newport Beach on the front, back and west sides of one
building, but because the natural grade was cut and the current building was built "into'
the hillside, the height in the center of the home exceeds twenty -nine feet. The reason we
are asking for a return to natural grade lines is to be able to stair step up the hillside and
impel the property into its highest and best use.
When we entered into contract with Andrew Goetz, he seemed like a nice enough person
and had the energy and the drive to do the project. When we found out he had committed
fraud on our survey we were surprised to say the least and under competent advice we
terminated his employment and entered into negotiation with James Campbell to find a
solution and move forward. Jim recommended we get our own independent survey and if
we could competently prove where the natural grade was, we would be able to move
forward. As time went on and more and more evidence was gathered, it became evident
that the natural grade lines were actually above what we requested.
Because of the deceit practiced by the office of Andrew Goetz, we feel the city planning
department has taken the most conservative route possible. While I understand their
position we respectfully disagree. With deep respect we ask the planning commission to
render an independent decision. We feel we have proven beyond any doubt, the natural
grade of the property. I also understand that there are two sides to every story and if the
planning commission rules against our evidence, I.will abide by your decision and there
will be no further appeals.
Thank you for your time in this matter.
Ed Sweeney
5�Q
1�
Exhibit No. 4
(separate binder)
F IMP
/AP
BAGAHI ENGINEERING INC.
GEOTECHNICS & FOUNDATIONS
18017 SKY PARK CIRCLE DRIVE, SUITE J
IRVINE, CA 92614
TEL (949) 252 -8292 • FAX (949) 252 -8293
February 14, 2004
MIL JAMES CAMPBELL
City of Newport Beach
Planning Department
3300 Newport Blvd.
Newport Beach, CA
RECEIVED BY
PLAtJNING DEPARTMENT
CITY OF NEWPORT BE
FEB 18 2004 PM
Z 819,10 Ill �12�1�13141516
Job No. 13311- 156-01
SUBJECT: REVIEW OF INTERPRETATION OF NATURAL GRADE
401— 403 Heliotrope Avenue
Corona del Mar, CA
REFERENCES: (1) COAST GEOTECEMCAL, "Geologic Interpretation of
Natural Grade, 401 and 403 Heliotrope Avenue, Corona del
Mar, CA ", dated January 17, 2004.
(2) Aerial / Contour Plan, Scale 1/32" = 1.0' dated January 2004.
Dear Mr. Campbell:
In accordance with your request, we have reviewed the interpretation of natural grade for the
subject site. Our scope of services included:
(1) Site visit and meeting with the project Architect, Mr. William Edwards, the Owner
representative Ms. Cathy Lee Fmnsen and the project geologist, Mr. Todd D.
Houseal of Coast Geotechnical,
(2) Review of referenced report and plan,
(3) Meetings in our office and your office, and
(4) Discussions at various times with project architect and review of various aerial
photos.
�5
Mr. James Campbell
Project: Review of Interpretation of Natural Grade Page 2
Job No. 133H- 156 -011 February 14, 2004
In an effort to establish the natural grade, the owners of the property authorized Coast
Geotechnical to perform a geologic investigation and present them with a report of findings.
As part of this report, Coast Geotechnical reviewed various geologic publications and maps,
renewed air photos, performed geologic reconnaissance of the area and a site exploration
program
Their findings are that based on their air photo interpretation, a slide occurred at some point
in time at the site resulting in an arcuate feature. Subsequently, at some time later, this
arcuate feature was filled in to achieve present day grade.
The subsurface drillings at the site by Coast Geotecbnical together with records of the
previous compaction grouting at the site by Moore and Taber were then utilized to arrive an
approximate limit of relatively deep undocumented fill new the central portion of the lot.
Based on these findings two grades across the site have been presented by Coast
Geotechnmal. One grade is the "probable topographic expression in air photo" as depicted in
Figures 7 and 7A of the referenced report. Based on this figure, much of the central portion
of the site is near elevation 97f. Another interpretation is the estimated grade prior to
arcuate feature which is shown in Figure 8. Based on this figure, the central portion of the
site is at about elevation 1101. More detail elevations across this site are presented in the
referenced report.
We understand many air photos have been examined in arriving at these conclusions
although except for on oblique one, none have been presented or referenced in the report.
Based on the referenced report, it can be concluded that relatively deep fill covers much of
the central and lower portion of the site. More supporting data is needed to establish
topographic contours.
We trust this information is adequate at this time. iQRn�
RG�yi `cQ'
Very truly yours,
fy
�• � 108
, �0
/BAGZT1ENGINE G C. `� EYO a.aa,aC"+
Ken H. Bagahi, PhD., E. 1
Principal
KHB\pv :� or CALF .
Distribution: (1) Addressee
Attachment: References 1 and 2
Prv133H.dw
Bagahi Engineering Inc.
Exhibit No. 6
(separate plans)
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