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HomeMy WebLinkAboutPC Minutes40 • Planning Commission Minutes 05/22/2003 CITY OF NEWPORT BEACH Planning Commission Minutes May 22, 2003 Regular Meeting - 6:30 p.m. Page 1 of 17 file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 INDEX ROLL CALL Commissioners Toerge, McDaniel, Kiser, Gifford, Selich and Tucker - Commissioner Agajanian resigned his commission as of this date; Commissioner Toerge was excused. STAFF PRESENT: Sharon Z. Wood, Assistant City Manager Robin Clauson, Assistant City Attorney Rich Edmonston, Transportation/Development Services Manager James Campbell, Senior Planner Gregg Ramirez, Associate Planner Ginger Varin, Planning Commission Executive Secretary MINUTES OF MINUTES Motion was made by Commissioner McDaniel, and voted on, to approve the Approved amended minutes of May 8, 2003. Ayes: McDaniel, Kiser, Gifford, Selich and Tucker Noes: None Absent: Toerge 1 Abstain: None PUBLIC COMMENTS: PUBLIC COMMENTS None None POSTING OF THE AGENDA: POSTING OF THE AGENDA The Planning Commission Agenda was posted on Friday, May 2, 2003. SUBJECT: Quick Food Restaurants at the Bluffs Commercial Center ITEM NO.1 (PA2003 -089) PA2003 -089 1300 Bison Avenue The application requests an amendment to Use Permit No. 2002 -020 to increase Approved the number of Use Permits for eating and drinking establishments that the Planning Director can authorize from 7 to 10. Additionally, the applicant seeks to increase the total area occupied by the establishments by 115 sq. ft. The request also includes the potential sale of alcoholic beverages (beer and wine) for the 3 file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 establishments. • IPublic comment was opened. Engan, Senior Vice President of Development for the Irvine Company R :rties, speaking for the applicant noted that they have no exceptions to report and understand and agree to the findings and conditions. comment was closed. i was made by Commissioner Tucker to approve an amendment to Use No. 2002 -020 by adopting the revised and new conditions contained Exhibit No. 6. Page 2 of 17 Ayes: McDaniel, Kiser, Gifford, Selich and Tucker Noes• None Absent: Toerge Abstain: None sa� SUBJECT: El Tarasco Restaurant (Use Permit No. 2003 -006) ITEM NO.2 2201 West Balboa Boulevard PA2003 -045 Request for a Use Permit to allow a Full Service, High Turnover eating and Approved drinking establishment with on -site beer and wine sales. The request includes a . waiver of off - street parking requirements. Mr. Gregg Ramirez noted the following changes to the list of conditions: 1. Condition 6, regarding an upgraded grease interceptor, does not apply and has been replaced with the requirement that an encroachment permit be applied for the benches in the front of the restaurant as they extend into the public right of way. Condition 27 is a standard condition relating to litter and graffiti and had dvertently omitted and is now being added. Commission inquiry, he noted that no correspondence was received project. comment was opened. Rush Hill, building owner and applicant, noted the following: 1. Condition 6 - the benches are teak and have been in place since 1994 wh the property was first renovated. There is an ornate encroachment pen for the steel structure on the building exterior. His building is damaged the early mornings from 2 to 2:30 am. The benches are brought inside night so that they will receive no graffiti. • 2. Condition 8 - noted that this is a family run business that is in operation other beach communities. He asked that the hours of operation be extend file: //F: \USERSIPLN \Shared \ginger \2003PC\0522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 during this time period to hopefully eliminate vandalism. At 2:00 a.m. opened restaurant allows for patrons to enjoy a meal. 3. He asked for a trial period of time, either 90 days or 6 months, that business is opened until 2:30 a.m. It could be revoked if any problem a or if the vandalism continued anyway. Ord Palomo, one of the owners of El Tarasco, stated that they would like the same hours as they have in Manhattan Beach and El Segundo and sl until 2:30 a.m. He agreed that during the time between 2 and 2:30 a.m. thi i be no service of alcohol. rman Kiser noted that an encroachment permit is a Public Works and can not be issued by the Planning Commission. comment was closed. Clauson noted that it was an ABC regulation that alcohol can not be sery 2:00 a.m. However, the Planning Commission can also add this as lition of approval. Commissioner McDaniel noted his concern of allowing this establishment to s open until 2:30 a.m. and that everyone else may want to be opened as well. If problem of the building vandalism can not be solved by closure at 2:00 a.m. t • the problem will start at 2:30 a.m. closure. Commissioner Selich noted that he has no problem with the 2:30 a.m. hour. 7 is probably a good area to do it in. missioner Gifford noted that as a resident of the peninsula, anytime there is enmity to have a full service restaurant available, it helps to upgrade the ar a lot of strictly take out places and has no problem with a trial period for 2:: hour closure. More community activity contributes to the element of safety. ;sioner McDaniel asked if there is an issue with only the drive -ins that late at night. What is the reason for the restaurants themselves Wood answered that the restaurants close when alcoholic beverage ser so the businesses have not been interested in staying open later for ce of food. Motion was made by Commissioner Gifford to approve Use Permit No. 2003 -00( subject to the findings and conditions of approval included with the attachec resolution to allow a full service, high turnover eating and drinking establishmen with on -site beer and wine sales including the request for a waiver of off - street parking requirements and with the recommended change to condition 6, and condition 8 shall reflect that the restaurant will be permitted to be open until 2:3C a.m. all week with no alcohol service between 2 and 2:30 a.m. and this conditior 11 be reviewed in six months, and the addition of condition 27. Page 3 of 17 file: //F:\ USERSI PLN \Sharedlginger12003PC10522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 Page 4 of 17 Ayes: McDaniel, Kiser, Gifford, Selich and Tucker Noes: None • Absent: Toerge, Agajanian Abstain: None Ciraulo Residence (Variance No. 2003 -003) ITEM NO.3 202 S. Bay Front I PA2003 -067 nest to permit a 127 square foot, third level portion of a single family Denied fence to exceed the 24 -foot base height limit. The structure presently exists was constructed without the benefit of a building permit. . James Campbell clarified that the initial framing inspections cited in the s ort as occurring in June 2002, actually occurred in early May 2002. A build lector is here if the Commission wishes any additional information dfivation on any building issues. Staff recommends that this particular varia denied based on the inability to make the findings pursuant to the Munici person Kiser asked about the information that the Public Works Depar discovered a deviation from the approved plans as the front yard aches within the public right of way of S. Bay Front. Mr. Rich Edmonston answered that one of his staff members noticed that the from patio area was being resurfaced and reconstructed. The City Council policy or encroachments in the Balboa Island area provides for a 2'6" height limitafior behind the sidewalk and is intended to provide a comfort zone for pedestrians. The actual property line in relation to the sidewalk vanes on a lot by lot basis. You can walk right up to the edge of the sidewalk and your arms can overhan€ that area, so it is meant to be low. We allow brick pavers, low colored plants, etc in that setback area. The contractor was advised in September of 2002 that he needed an encroachment permit. The permit was never sought; however, the wort was done without a permit. The remodeled patio is at least two feet and is raises and also exceeds the allowed height. Because it does not match the requirement: of Council policy, staffs position is to automatically deny this and it is therefore appealed to the City Council. To date, that appeal has not been presented to staff. Public Works is not typically involved with finalizing a building permi particularly since this area is not a habitable area that is encroaching. McDaniel asked if there was anything else wrong with Campbell answered that there is a remaining question about the pad ht; however, the building inspector could address that item. Public comment was opened. Joe Ciraulo, resident of Balboa Island asked for the variance for his home. noted that it is a difficult task to decide on a variance. He requested the vari in order to: file: //F: \USERS\PLN \Shared \ginger \2003PC \0522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 • receive a certificate of occupancy; . due to financial impact endured the last seven months, and • to allow the structure to remain through the granting of the variance. David Shores, legal representative for the applicants, distributed a packet of information to the Commission that included copies of letters of support and building department inspection card, and noted the following: • Series of errors and omissions beyond the control of the Ciraulos, which ha: caused both financial and emotional hardships. • Asked that a non - conforming structure on the residence be approved. • Letters of surrounding neighbors are in support of this application. • The previous structure was a three story duplex built lot line to lot line. • Gave testimony from neighbors' letters noting that their views are muck better than with the previous structure. • Photos of the previous building compared with the three story residentia property. . Issue tonight is a 127 square foot non - conforming structure located on the roof that was not part of the original plans. • According to the staff report, this structure was built without a permit. Additional framing for the un- permitted work on the third level was done after the initial framing inspection of May 2002. • The applicants thought the work was being done in accordance with Cit3 regulations at all times. • He then presented dated photos of the roof and structures noting that thi; was built early in the process and well before the June framing inspectiot that was approved by the building inspector. • At Commission inquiry regarding the date, he stated that it was not a digita photo, but people can verify that was how it was May 23, 2002. • The inspection card indicates a framing inspection occurred on June 10 2002 where partial approval was granted pending corrections. • The same inspector approved general framing and rough electrical on Jun . 20, 2002. • The full roof structure was built and the third story structure was clean. Page 5 of 17 file: //F: \USERS\PLN\ Shared \ginger\2003PC \0522.HTM 06/06 /2003 Planning Commission Minutes 05/22/2003 visible. i• The site inspection card documents all the inspections as well as numero witnesses that the structure was fast built in May 2002. • The project contractor, Jim Santaniello paid the $170 for the building ai plan check fees for a set of fire sprinkler plans that were reviewed ai approved by the City on June 21 with as-built roof structure. • The letter of January 7, 2002 from Robert Preciado states that he worked f the general contractor Santaniello and it was not unusual for the contract to make structural and cosmetic changes. At all times the Ciraulos we under the impression that all plans were approved by the City and they we acting under the guidelines of the City. • The Ciraulos were planning on moving into the residence on October 10 and were notified via letter of October 16th from the Building Departme that a stop work notice had been issued less than a week prior to the planned move -in date. • During the nine months of the construction this was the first corresponden from the City stating that there was any sort of a problem. • The owners were issued a temporary occupancy approval for three wont and have had since then a succession of extensions. i • Without a certificate of occupancy, they are unable to get a loan from C bank or do anything about a construction loan on the property until C house receives a final approval, which is what we are asking C Commission to do tonight. • In the packet there is a contracting bid that discusses in full detail the fi process required to remove the existing roof structure. The removal will 1 an enormous undertaking from the construction standpoint as well as heavy cost to the property owners. It will also be another time period to g that done. • The Zoning Code requires certain findings be made and I believe this is unique circumstance and there are exceptional and extraordina circumstances that apply to this property. • The granting of this variance is necessary for the preservation of tl property rights of the Ciraulos and is consistent with the purposes of tl Code and will not constitute a special grant of privilege. • Granting such application will not under the circumstances adversely affe the health or safety of the people in the area. It is a home that the people the area admire and enjoy. • This is a unique case with unique facts and we ask for an approval for th Page 6 of 17 file:// F:I USERS\PLN1Shared lginger12003PC10522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 Page 7 of 17 application. Commissioner Tucker noted that it may seem unique but every couple of years we get one of these where people build something that is not authorized. I view this and the way we should look at the problem, as if we had been asked to grant thi: variance before any work had started, would we have granted the variance. All tht hardships and issues that have been raised as unique circumstances, all are a resul of what got built. What we do, and what our Code is set up to do, is to look at thf unique circumstances of the physical piece of land that we are starting with. don't see your point of view, you want to have all the hardship and uniquenes; come after the work has been done. Our Code has been set up to do just the opposite, which is to look at it and determine a variance at the time before an7 work is done. Tell me why we shouldn't look at it from this standpoint, look a what we would have done if you had come in before any work had been started. Would it have justified a variance at that time? What finding basis? Is then anything unique about the property at the point in time when there was nothing of Shores answered it would have justified a variance at that time. There was -story structure that had been tom down. Commissioner Tucker noted that when the old structure was tom down, there w nothing unique about the land. Variances are usually granted when the property falling down the side of a hill, exceed the height limits because the height limit •based upon natural grade and as you fall down the hill, the house technical becomes higher as you go further out in the lot as it falls off. What is unique abc this property as a flat piece of property? r. Shores answered that as a flat piece of property, probably the uniqueness is on the bay and that's the only uniqueness of it. unissioner Tucker noted that is not a uniqueness, that may have to deal w e but not with variances. I am not trying to be difficult, I am just trying t out to you what we have to deal with and we are completely Code driven particular case. We have to make findings and I am trying to find out wl unique about this property, and I am not hearing anything at this point. •. Shores noted that in a perfect world that would be so, but you have to look ne particular point of motivation and see that the responsibility in this case fired. The situation is that people watched this go up and the Ciraulos are he thout a remedy other then to destroy a beautiful piece of property worth millic dollars. iissioner Tucker answered that he is not saying that there may not be son for relief, but a variance, he has a problem seeing within the statuto: ity that this body has been granted, how we have the ability to grant JMr. Shores answered you have to make four findings with regard to uniqueness of the situation here, this was a situation that is going to irrepai file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 0 • Planning Commission Minutes 05/22/2003 r that property and irreparable harm the Ciraulos. It is a matter now that if yc there was no malice, it is a matter of equity. We have law and equity and v to you to say that under the Code you can find the uniqueness of tl tion and the uniqueness of the property and the totality of the circumstances. runissioner Tucker noted you are giving us more authority than we have, yr not a trial court, we do not have equity powers. All we can do is jud€ :ther there is a grounds for a variance. There may be a forum for relief but having problems seeing it here. person Kiser asked what is the irreparable harm to the property owner present situation if they had to remove the roof structure? r. Shores answered the cost and delay is financially disastrous to this piece :)perty that is trying to get a loan on it. If you look at the J. Carr report, t tire structure is designed for the load that is on it now. To tear it down is goi cause a great deal of damage to the property. We don't even know to the ext the structural damage that will be caused. This body does have the power ant this variance, even if there is another forum for relief, nobody wants to 0 ael Smith, resident of Balboa Island, noted that he has observed this An g all phases and that the house is a beautiful asset to the island and was professional manner and is far superior than the structure that was e. He asked that the variance be granted. nissioner Tucker asked the City Attorney, does the fact that this props upon a time had a three story structure on it, does that vest any rights for ;ant to build something other than what the Code allows once they tore :ure down? Clauson answered, no. ioner Tucker clarified that he is not disputing the fact that residence and a great improvement to what was there, it is just a Av that the Commission has.. Dick Nichols, Councilman for Corona del Mar noted the following: On Little Island you passed a structure that had a smaller than buildable to or a smaller lot than typically buildable, you gave it an FAR of 1.15, yoi gave it a three story with an upper point and it was one very short block of the bay. All of this was granted over and above any allowable variances. Those were all special things done by the Planning Commission. Here we have a structure that could have been remodeled and kept all he had and you would of had to approve it and he took it down to a n more acceptable level. It seems to me that we want to get this thing c] to zoning, not take away all the rights of the property and start it over zero. You don't do that on any property that I have seen. file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM Page 8 of 17 06/06/2003 • L Planning Commission Minutes 05/22/2003 . My question is this seems to me to be a 'no brainer' and that it should passed. son Kiser noted that, if the property you are speaking of is the one I of, it is a very small triangular lot behind the grocery store. Nichols answered no, it is on the Little Island, the first street in down to t off the full block. It was a turn around lot that was built out within three both setbacks. It was given a grossly over allowable. Tucker stated he would go through that for Mr. Nichols. • First of all, there was no height variance that was requested. • Since I have been on the Commission, we have never granted a he variance for any flat lot. All the height variances have to deal with the that are falling down a hillside. . The number of stories is not within our purview. People can build number of stories they care to as long as the height does not exceed height limit. • In the particular case you are talking about, the Districting Maps as to wh the setbacks were, were opposite the orientation of the lot. If you compu the setbacks on that lot, they may have ended up with 500 or 600 feet buildable area. . We have odd ball lots all over town. We get these things at least once month, every other meeting we get a variance on floor area based upon f orientation of the lot. • What we do in that particular case is that we look at the totality of circumstances and we come up with a reasonable FAR considering v everything else in the neighborhood is. . In that particular case, I was an advocate of what is called a reasonabh setback approach, where we had a standardized approach to dealing with it. That is what passed at the Planning Commission and it went to the Council. The Council granted more footage than what the Planning Commission ha( because the Council felt like the FAR for this particular lot you are refeninj to, in order to be consistent with what was in the area, could be even a little larger than what we granted. It did not have anything to do with a heigh variance. Nichols noted it had a third floor elevator in it, and the elevator was )sed on the third floor and is smaller than this. The third floor 1 eded the height variance. mmissioner Tucker answered there was not a height variance to it. I don't elevator at all on that property if it is the same one we are talking about. file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM Page 9 of 17 06/06/2003 • 0 Planning Commission Minutes 05/22/2003 Nichols stated he could not give the address on it but it did. The other thing these properties that you are talking about, were constructed or turned aroui the way they were with knowledge. The people who previously looked ing that property who lived in the area, couldn't put on the house that th ted to because of the setback requirements because it did not have enou3 dable. This person came, evidently politically attuned, she got all the FAR, t] I story structure and a deck up there. Tucker noted he finds the two situations not at all similar. Nichols stated he understands that one and the other are not the same, doesn't look good, it looks like you are taking money for this one. Kiser noted that Mr. Nichols' comment was completely uncalled for. nmissioner Tucker noted that was beyond uncalled for. Let me just tell y are Code driven here. The Code has requirements and gives us the ability s tude in judgment in some areas and not in others. I didn't write the Code. I the Planning Commission's position to change the Code and if you think le is wrong, you change the Code, you're the councilman, and we will abide t Code. We don't make things up here, that is the big knock here that so ple in town think we are just kind of making it up. There is a Code here e nothing against these people, I think they built a beautiful house. I just d( where the Code is giving us the authority to act. I am sure this will ultimat to the Council, and the Council could use different judgment. But, nob( A us to be the policy makers, so we attempt to enforce the Code, we do it id faith, and, none of us are for sale. Clauson, with Commission assent, explained that the concept of a variance, a; J by Commissioner Tucker, is that there is something unique about thi erty, the topography of the property, or the strict application of the Zoning , which would be the setbacks, or other types of zoning provisions. Thi is have consistently held that things like there is something about the desigi g superior, or something about the economical or financial impacts of the lion on the property, or something about the fact of what they could of ha( not provide the facts to support the findings that are necessary for a variance. arilyn Nicholson, owner of the property at 206 S. Bay Front noted that she trees with Commissioner Tucker's comments. The other man kept comparing ii the house that was there before. Well, before that there was another house tha as quite nice and they tore that house done and put up the other one. I think tha as one of the reasons the City made more restrictions and code enforcement. ] el it is being selectively enforced. We tore the house down that we have owna :ice 1947 about eight years ago. We asked for a variance on the wall setbacks a: e wall that we had was out quite a bit but not to the edge of the property line, bu ey made us set it back 20 inches. All the other houses on that street are 2( ches or more back behind the sidewalk line, his I believe is about 6 inches now is way out beyond the others. This is definitely out of line. As far as the height already has one of the nicest, biggest lots on the island, the scope of the hour( iminates that lot and probably the next lot and I can not find any hardship reasor file: //F: \USERS\PLN \Shared \ginger \2003PC \0522.HTM Page 10 of 17 06/06/2003 Planning Commission Minutes 05/22/2003 Page 11 of 17 or cause that they should seek or be granted a variance. The one gentleman talk about another small lot where they only had a small buildable space and ih is asked for some variances. I have neighbors who have their house come right e edge of the alley and I would be happy to give them a variance because d have a problem, it is a hardship lot. But, this one is a perfect lot. I see the top the structure from my bedroom window. I wish it wasn't there, but it is. It doe: seem like they should have any privileges that the rest of us don't have. I feel tl they ought to be made to follow the ordinances just the way the rest of us were. 11 Willis, 107 Garnet noted that this is a beautiful house and he supports the ;uest. The issue on the wall is it is out about a foot and a half further than tl st of the them. But, as it has not been allowed for the rest of the neighbors, one at 210 S. Bay Front there's is five feet back and they had been denied ;uest to get close to where the others are. Is this issue on the wall a separa e? Is the extra 127 feet on the roof beyond the R 1.5, are we talking about ing simply too high? I was going to tear down my house a couple of years a€ d had asked for a variance to build an architectural display. I was going to be vt over the height limit resulting in a total of 5 cubic feet over and that w nied. My concern now, is the practice of build it now and request later, or if th granted, I will re- submit my plans. The house is lovely, I have no objections extra square footage, but I just want to make sure that we all get treated wii Chairperson Kiser answered that the 127 feet on the roof was not permitted u e building permit and is above the height limit for that district so it is permitted construction. That is the thorny and difficult issue that we are de< with tonight. Since the request for your two foot height variance was denied, t have been many more height variances denied. Certainly the ones that c before the Planning Commission are regularly and summarily denied unless t are some very unusual circumstances. Arian Esnard, resident of Balboa Island noted that there are more people living arages on the island. He said that he could not understand why the Commissi ,ould not approve a request for an insignificant request for people who have tak duplex and reduced it to a single family unit and taken a three story building a Auced it to considerably less than the height limit. The way things are goi ith the permit process in this City, it would test the patience of a saint. n Howell, resident of Balboa Island noted he has no problems with th struction. Reading from the staff report he asked if the applicant received ding permit to demolish and construct a replacement dwelling, the ne struction included a 29 foot elevator shaft that is permitted to exceed the height limit up to 5 feet, which is what they are up to now. I don't understar consistency and I don't see the problem just because there is a bathroom the Chairperson Kiser answered that the permit was only for the 25 foot square elevator shaft not the 127 square feet which is about 5 fold the permitted footage. For variances like this, what people do is come forward and ask for a variance, anc in this circumstance it would be denied. About the separateness of the wal file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 Page 12 of 17 encroachment into the right of way and this permit application, what is before u: • tonight? Is the wall encroachment in front of us tonight or not? Mr. Edmonston answered that the encroachment is not subject to the Plannin€ Commission review. It was mentioned in the staff report to indicate that therf were other problems that the City has with the property the way it wa: constructed. It is something that would have to be appealed to the City Council. To address the specifics of the one that was denied that was set back 5 feet an( wanted to move forward, if they comply with Council policy, it would b< approved and I encourage that property owner to give us a call. Wood noted that the Code provides for an exception to the height limit fol 1 portions of structures such as elevator shafts. So that would have beer fitted without a variance or a modification or any kind of special approval. n it grew from 25 square feet to 127 square feet to include a bathroom, tha into variance territory. The exception would not apply to fireplace structures. Kathy Esnard, resident of Balboa Island noted that her observation during construction phase when they visited the Ciraulos, they would say that this per. has been granted and approved and we are just waiting for the next permit to granted for the next phase. The impression that we were all given was that d were in good faith requesting permits and getting approvals as they did during construction. I ask that you look carefully at what was and was not granted and to understand, were the perceptions the same on both sides? Was the grc Igranting/denying permits seeing the same thing as the Ciraulos were when tl were requesting permits to have things done? I see some confusion there. :e Gale, resident of Balboa Island noted that as a cement contractor he perience with an instance where caissons that were poured slipped after a ars. It went to court. The judge was an astute man and he excused everyb -re except the contractor who drilled into bedrock for the caissons. He held ty responsible because the building inspector did not do his job. If the inspe up there and the elevator shaft was permitted, how was it he did not notice throom? Why didn't he stop the job right then and there? It seems to me ty has a liability here. The city inspector has to notice things that are not on ins and he should have stopped the job. Carole Ciraulo, noted that there are unique circumstances in this case. We built tha house with whom we thought was a good contractor. Neither she nor her husband asked for a bathroom nor the fireplace; the contractor did this on his own. She has asked if this was okay with the City and he told her not to worry about it. Wher the inspectors came, she had asked again and was told that it had passes inspection. If she had known that at any time when this was framed that the Cit} did not approve it it would have been gone because she had not asked for it in the first place. Now the uniqueness of this is that we have no more money, we can` get a loan, we can't get a certificate of occupancy, we did not ask for any of thi; and the thing passed every single inspection. This was our dream home. I have ar engineer's report that says that if we rip off that extra weight, which by the wa3 there was a special inspection made requested by one of the inspectors, I had tc put extra beams in during construction. Now this entire house is built and I an file: //F:\ USERS\ PLN \Sharedlginger \2003PC\0522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 Page 13 of 17 supposed to pay $200,000 to rip down something that I would have removed start with. According to the engineer's report when you take that weight off t] roof, it will flex and crack all of the crown molding inside of the house. Yes, it unique and I am begging for this variance. We did not know what was happenir and I know ignorance is no excuse of the law, but when you see ever sing inspection being passed as a homeowner. To get to the point when you are you to move in and the very next day and all of a sudden to find out that there is problem. I have no money to rip it down. We did not do this with malice. uiirperson Kiser stated that no one here on this Commission would suggest t is any one individual responsible for something like this. In fact, if you w mpletely unknowing of this and your contractor assured you all along that is getting all the proper permits then you need to really consider your optic d the situation with and potential actions against your contractor. Be advised ,ur own counsel about that. Andre Gerby, resident of Balboa Island stated her support of the applicants. reconstructed her home, she would be devastated if she was in thei: n. She asked that the Commission understand their position. comment was closed. Tucker noted: I . The issue is the extent of our authority. If it was up to me to grant it or I don't see it as a big deal. But that is not anything within the purview of Planning Commission. . I don't see the ability to make the findings. It has nothing to do with th beauty of it, or the hardship. The variance findings are statutory and I don see where we have that authority. The other forum I am talking about is th City Council. They see a broader framework than we do and they come u with reasons for their actions that are separate and apart than how we see it. . I just don't happen to see the authority. If I felt like it was there or close being there where it was a bit of a stretch, I would be happy to stretch. I having a problem. Commissioner Selich stated he agrees with what was said. He added that ha doesn't think that even the City Council will be able to find for a variance for it a; there is absolutely no grounds. Variances are complex and hard to understand. How to apply the variance and the exceptions apply to the land and the lot and no the circumstances that occur during the courses of construction are not reall} issues of hardship. If this project were to come before the Commission and no been built, I don't see any way a variance would have been granted for tha structure because I don't see anything in the material that has been presented to u; that justify an exceptional circumstances to this piece of property. There is i problem here and there are other forums for relief, but the Commission certainl} isn't it. I will not be supporting a variance. file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 Planning Commission Minutes 05/22/2003 Page 14 of 17 Commissioner Gifford stated she finds nothing in the record that would allow •to make the findings that are required for exceptional or extraordir circumstances, the necessity for the preservation and enjoyment of substar property rights, or the fact that this would not be a grant of special privilege the fourth finding I have no problem with. Unfortunately we are required to ir all four findings, so I will not be supporting this application. Chairperson Kiser noted that he feels the same way. Each time a variance comes before us, we struggle with the four findings that we need to make. I would have the most difficulty with the grant of special privilege. While it is unfortunate and maybe financially very difficult for this particular homeowner to bear the burden of removing the parts of this building that were beyond what was permitted in the building permit, it is nevertheless a larger issue to allow someone to come in and get a permit after a building is completed with well beyond what was allowed in the building permit. Whether it was through stealth or mere inadvertence, or whether it was through a contractor lying to an owner about what in fact was permitted or was not permitted, really is not relevant. The fact is if we approve this tonight, in my mind would be granting a very special privilege. We have had testimony tonight from people who have applied for variances similar to the one before us, and have been denied, as I am certain this would have been. The fact that the other approvals were given in the home after this un- permitted construction was up is really not relevant. The inspectors are not looking for other areas when they are approving electrical, plumbing or other elements of the building. The fact that sprinkler plans were approved I don't think was persuasive. •While the neighbors have come forward in support, and some not in support, the neighbors are really not in a position to determine in the bigger picture what is appropriate or important in the way of decisions such as this for consistency and non - arbitrariness and not granting special privileges. We see these matters month - in and month -out and do occasionally have this very sort of thing where a building permit was exceeded. We hear a lot of stories about the causes of those things and unfortunately what we have to make in each case is what we feel is the best planning decision for the City. How this came about or whose fault it is, is something that we need to put behind us. We really need to make sure that there is also a message sent, whether it be to owners, contractors or a combination, not to build something like this, which certainly someone knew was un- permitted. I will assume for the moment that Mrs. Ciraulo's testimony is accurate and truthful, which means that the general contractor knew in this case that this was entirely un- permitted, the additional 122 square feet of structure on the top floor. We really need to send a message that no one should be encouraged to do this and then to come in later and ask for forgiveness, essentially , instead of asking for permission up front. The only way we can live in a civilized society is under a rule of law that everyone follows, and that has some consistency. So, for all those reasons I could not approve this variance. For me, it is a very straightforward case, and the conclusion is that that the Ciraulos will need to do what is necessary to rectify this, or take it to another forum. Commissioner McDaniel stated that he feels terrible for the applicants. It is certainly easier to ask for forgiveness than permission. There are a lot of people who would run out and build something and say, 'see they got away with it, why shouldn't I.' The Commission has pretty much said what needs to be said and I am file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 L J • 0 Planning Commission Minutes 05/22/2003 Page 15 of 17 afraid I am going to have to vote against this as well. Motion was made by Chairperson Kiser to deny the applicant's request by adopting the findings contained in Exhibit No. 2. Ayes: McDaniel, Kiser, Gifford, Selich and Tucker Noes: None Absent: Toerge Abstain: None SUBJECT: Master Plan of Arterial Highways ITEM NO.4 Discussion of public right of way dedication requirements. Continued Chairman Kiser stated that on April 17th meeting, Commissioner Selich has requested a report on the process for requiring the dedication of right of way for arterial highways in connection with requested construction that has un- widened roads in front of it. Mr. Edmonston stated that the report basically summarizes the existing authority that the staff has via the Municipal Code. Commissioner Selich noted that the staff report states projects that only require building permits cannot be required to dedicate right of way. I reviewed all of the materials, and I don't see that is the case. Mr. Edmonston noted that we can do what we are granted authority to do and there isn't a specific provision of authority associated with a building permit to require dedication. They are required with either subdivisions or in certain cases, with use permits. Commissioner Selich noted that Section 13.05.010 says street widening and improvements as a condition of building permits. It seems that would provide some exceptions, am I reading it wrong? It provides exceptions, but not for building permits? Mr. Edmonston noted that his department typically have not attached dedications to building permits and I know that there is some concern about the nexus between dedication and improvement costs versus situations in which you can require them. That might be better addressed by the City Attorney's office. Commissioner Selich stated that there is an issue here on the dedication policy. Chairperson Kiser noted that there seems some confusion and suggested that this item be continued to allow further research. Motion was made by Commissioner Tucker to continue this item and allow time for this to come back for review as soon as possible. Ayes: 1 McDaniel, Kiser, Gifford, Selich and Tucker Noes• None file: //F: \USERS\PLN \Shared \ginger \2003PC \0522.HTM 06/06/2003 • E • Planning Commission Minutes 05/22/2003 Page 16 of 17 Absent: Toerge Abstain: None SUBJECT: Capital Improvement Program (CIP) ITEM NO.5 Review FY 2003 -04 Capital Improvement Program for consistency with the Recommended for General Plan, Zoning Code, and other planning policy documents. consistency Chairman Kiser asked if there were any comments. Commissioner Selich noted that he read the report and finds nothing inconsistent with the City's General Plan. Motion was made by Commissioner Selich to recommend that the City Council find it consistent with the General Plan, Zoning Code, and other planning policy documents. Ayes: McDaniel, Kiser, Gifford, Selich and Tucker Noes- None Absent: Toerge Abstain: None ADDITIONAL BUSINESS: ADDITIONAL BUSINESS a. City Council Follow -up - Ms. Wood noted that on the Council meeting of May 13th there was a second reading and approval of the Code Amendment for the Granny Flats; approval of the General Plan and Local Coastal Program for the Curci property on Agate Avenue; the Code Amendment for Alcoholic Beverage Outlets was approved on first reading, and applies city- wide but only during the time when the safety enhancement zone applies; one vacancy was filled on the General Plan Advisory Committee in District 2 and there are two other vacancies and one vacancy on the General Plan Update Committee with Commissioner Agajanian's resignation. b. Oral report from Planning Commission's representative to the Economic Development Committee - no report. c. Report from Planning Commission's representatives to the General Plan Update Committee - Ms. Wood noted that there was a review of a more detailed scope of services and the budget and the Committee recommended approval of that; the price for all of the consultants' services alone is a little over a million dollars. We are looking at a 24 month process for the remainder of this. That contract will be going to the Council on June 100i. There was a presentation by the fiscal consultant on the results of the fiscal impact model for the City. We provided results for the current situation for the existing land use and development and also assumed complete build out of the General Plan. d. Report from Planning Commission's representative to the Local Coastal file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003 J Planning Commission Minutes 05/22/2003 Plan Update Committee - no report e. Matters which a Planning Commissioner would like staff to report on at subsequent meeting - Commissioner Selich stated he is inclined recommend to fellow Commissioners that we make a request to the Counc that Councilman Nichols be censured for his statement tonight. He ask( the Assistant City Attorney if there are any exceptions to the Brown Act th we can take an action this evening on that since it was an item on tl agenda? The timeliness of the issue is such that it should be up to tl Council at their next meeting. Ms. Clauson explained that you can add t item to the agenda if the Planning Commission determines that the matt arose after the time when the agenda was posted and that it was somethir that needed to be immediately dealt with. Following discussion of timin consequences, jurisdiction, etc. it was decided that each of tl Commissioners would have individual correspondence with the Counc members. Matters which a Planning Commissioner may wish to place on a fu agenda for action and staff report - Chairman Kiser asked for a report al the appropriateness of a Councilperson to appear before the Plan Commission and make comments suggesting that one or more of Planning Commissioners have been paid off to make decisions. g. Status Reports on Planning Commission requests - none. It. Project status - none. i. Reauests for excused absences - none. Page 17 of 17 ADJOURNMENT: 8:15 p.m. JADJOURNMENTI PATRICIA L. TEMPLE, SECRETARY EX- OFFICIO CITY OF NEWPORT BEACH PLANNING COMMISSION file: //F: \USERS\PLN \Shared \ginger\2003PC \0522.HTM 06/06/2003