Loading...
HomeMy WebLinkAboutFluter Mixed Use Project (PA2002-033)��eW?oRr CITY OF NEWPORT BEACH PLANNING DEPARTMENT u. �? 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3229 Hearing Date: Agenda Item: Staff Person: Appeal Period: REPORT TO THE PLANNING COMMISSION PROJECT: Fluter Mixed Use Project (PA2002 -033) 2410 Newport Blvd. March 21, 2002 James Campbell (949) 644 -3210 14 days from final action SUMMARY: Amendment to Site Plan Review No. 79, requesting to modify Condition No. 14 to eliminate the requirement for an irrevocable offer to dedicate a vertical coastal access easement that would provide public access from Newport Boulevard to Newport Bay. ACTION: Amend Condition No. 14 to waive the requirement for an irrevocable offer to dedicate a vertical coastal access easement. LEGAL DESCRIPTION: Lots 12 & 13 of Block 223 of Section A together with a portion of Lot 2, Section 33 GENERAL PLAN: Recreational, Marine Commercial ZONE: SP -6 Cannery Village/McFadden Square Specific Plan (RMC - Recreational, Marine Commercial) OWNER/ APPLICANT: Russell E. Fluter, Newport Beach Introduction This project was considered by the Planning Commission on November 9, 2000 and approved by the Commission on February 8, 2001 (Exhibit No. 1). The applicant was granted approval of a Site Plan Review application and a Use Permit to have less than 0.251FAR of the project devoted to commercial uses. The applicant presently requests relief from providing vertical coastal access to the bay front. The project consists of the construction of a mixed -use (commercialfresidential) development on a vacant 9,814 square foot site located in the Cannery Village/McFadden Square Specific Plan area. The project site is located approximately 75 feet south of the intersection of 26"' Street and Newport Boulevard between the Balboa Boatyard and Hooters Restaurant. Two separate, three story buildings, one located adjacent to Newport Bay and the other abutting Newport Boulevard will be constructed. The project is more thoroughly discussed in the previous Planning Commission staff reports attached as Exhibit Nos. 2 & 3 Discussion Section 20.60.070.0 (Waterfront Development Regulations) establishes the requirement for public access to the bay front. This section stares the following: Public Access to Bay Front. In approving a site plan review or granting a use permit for development on a site with frontage along the bay, the Planning Commission shall require the dedication of vertical and lateral public access easements, except where adequate public access already exists or where the provision of access is inconsistent with public safety or the protection of fragile coastal resources. The following standards shall be applied to all lateral and vertical public access easements: Fluter Mixed Use Project (PA2002 -033) March 21, 2002 Page 2 1. Public access easements shall be a minimum of 6 feet in width. 2. Public access easements may be provided within required setback areas. 3. All dedicated public access easements shall be recorded with the Orange County Recorder's Office in a manner satisfactory to the Public Works Department. This section clearly states that easements are to be recorded in every Site Plan Review and Use Permit unless they would be inconsistent with public safety or incompatible with the goal of protecting fragile coastal resources. The applicant proposed that the two easements be provided through the recordation of an irrevocable "offer to dedicate" the easements in lieu of actually recording the easement. Condition No. 14 of project approval states the following: "14. Prior to the issuance of building permits, the applicant shall record an irrevocable offer to dedicate a 6-foot wide public access easement along the entire water frontage of the property and through the property to Newport Boulevard. The irrevocable offer to dedicate the access easement shall be subject to the review and approval of the Newport Beach City Attorney and Coastal Commission prior to recordation. " The horizontal easement area is provided within the 10 -foot setback between the bayside building and the bulkhead. The vertical easement area would be partially restricted due to a proposed security gate and the public will be forced to walk behind parked vehicles as there is no walkway separate from the parking area. The applicant states the vertical easement requirement is unreasonable due to safety and security reasons. Additionally, the applicant contends that the site is too narrow to provide public access and that an easement would be 12% of the lot area and therefore an unreasonable burden inconsistent with Section 30214 of the Public Resources Code (Coastal Act). Lastly, the applicant believes that adequate public access exists in the area, which is a factor for potentially exempting the project from the access requirement pursuant to Section 30212 of the Coastal Act. The applicant's request letter is attached as Exhibit No. 4. The cited sections of the Coastal Act are attached as Exhibit No. 5. The City has not established any policy, regulation or standard to guide a determination related to exempting a project from the access requirements when adequate access exists nearby pursuant to the Coastal Act. The Waterfront Development Regulations is silent on this issue. Additionally, the City has not established a standard that provides guidance with the issue of equity between the public's right of access pursuant to the California Constitution and the rights of a property owner. The City Attorney has recently prepared a memorandum for the Local Coastal Program Update Committee that provides some background information (Exhibit No. 6). The vertical path of travel is provided through a parking area. This type of access is not as safe as a separate walkway. This factor could be sufficient to relieve the project of the vertical access requirement. The applicant submitted an aerial photograph showing the location of nearby coastal access. Staff has prepared a map depicting the areas highlighted by the applicant as existing and Fluter Mixed Use Project (PA2002 -033) March 21, 2002 Page 3 proposed public access in the immediate vicinity (Exhibit No. 7). This map shows that public access is provided in the immediate area. The physical character and views afforded from these nearby access points is similar to the character that would be afforded from the site. In other words, the elimination of the vertical access at this point would not preclude access to a unique coastal resource. Access to the bay front in a horizontal sense from the north or south is not provided and is not likely to be provided in the near future. The adjacent boatyard to the north cannot physically provide a safe connection to 26ei Street further to the north, and the Hooter's Restaurant building provides no setback from the bulkhead. If the abutting uses- redevelop, horizontal connections will be feasible and in the case of the Balboa Boatyard, a connection to a public street will effectively eliminate the need for the vertical easement on the subject property. Recommendation Staff recommends that the Planning Commission weigh the relevant factors and take whatever action is deemed appropriate. Staff believes that the vertical access mandate can be considered overly burdensome on this 50' wide property. The horizontal easement is effectively blocked by the development and use of the abutting properties and access to the bay is provided for in the area through street ends and across private property in the immediate area. The horizontal access is important as over time the abutting properties will likely redevelop and it is the City's policy to strive for a continuous walkway along the bay front. In staffs opinion, the elimination of the vertical access requirement is not likely to significantly impede this goal. If the Planning Commission should consider the applicant's request favorably, the Commission should adopt a minute action making the following change to the Condition No. 14: 14. Prior to the issuance of building permits, the applicant shall record an irrevocable offer to dedicate a 6-foot wide public access easement along the entire waterfrontage of the property and through Fke The irrevocable offer to dedicate the access easement shall be subject to the review and approval of the Newport Beach City Attorney and Coastal Commission prior to recordation." Submitted by: PATRICIA L. TEMPLE (Planning Director PINrna L�nM4 Exhibits Prepared by: JAMES W. CAMPBELL Senior Planner 1. Excerpt of minutes from the February 8, 2401 Planning Commission meeting. 2. Staff Report dated February 8, 2001 (includes 11/09/2000 staff report). 3. Applicant's request for amendment to Condition No. 14. 4. Sections 30212 & 30214 of the Coastal Act. 5. Memorandum to LCP Update Committee dated March 4, 2002. 6. Access map. Fluter Mixed Use Project (PA2002 -033) March 21, 2002 Page 4 Exhibit No. 1 Excerpt of minutes from the February 8, 2001 Planning Commission meeting. 5 City of Newport Beach Planning Commission Minutes February 8, 2001 in lieu of the withdrawal. Apparently some members of City staff have so as and wanted to sitclown to find an alternate solution rather than withdraw the a Lion. I asked my client and with your permission, instead of a withdrawal I would I c sk for a continuation to March 81h. Motion was made by Commissioner i7Lh to continue this item to the Planning Commission meeting on March 8th. Ayes: McDaniel, Kiser, Agajanian, Selich, Gifford, Kra Tucker Noes: None SUBJECT: Fluter Mixed Use Project (Sterns Architecture) 2410 Newport Boulevard • Site Plan Review No. 79 • Use Permit No. 3685 • Variance No. 1239 A request to construct a mixed use building with 2,000 square feet of commercial space and 2 residential units. The Use Permit would allow the project with a reduced commercial FAR of 0.20 where 0.25 is required. The Variance would allow a minor reduction in landscape area within the required front yard setback area abutting Newport Boulevard. Mr. Campbell noted an additional condition as requested by the applicant. He wanted the condition to require a disclosure statement for any commercial or residential leases that would identify the abutting land uses. Commissioner Tucker asked where the requirement for the trellis and additional street trees that were identified in the staff report? Public comment was opened. Russ Fluter, 2025 West Balboa Blvd., stated that the two loft residences are designed to be unique urban spaces compatible with the neighbors. If the Commission were to reconsider this issue and allow it to go forward, it will be an asset to the community. The neighbors are supportive of the project. I am in agreement with the suggested findings and conditions of approval. Commissioner Gifford, referring to Condition 12, asked for language to be inserted, 'including landscaping installed on Newport Boulevard in connection with this project.' Mr. Fluter agreed adding that was his intent also. Lee Sterns, 1100 South Coast Highway, Laguna Beach, architect spoke about the architecture. Referencing the exhibit on the wall he noted that this is a courtyard scheme, with the building on the bay and on the street to create a better street edge putting the cars within the courtyard. The cars are 10 [HIM � Item 3 Site Plan Review 79 Use Permit 3685" -" Variance 1239 Approved I City of Newport Beach Planning Commission Minutes February 8, 2001 bracketed with the building. The trellis is on the revised drawings. The revised drawings reflect the overhang on the front commercial space as a trellis. The architecture reflects a bridging between McFadden Square and Cannery Village. He then described the types of materials to be used on site. Public comment was closed. Chairperson Selich noted that with the changes made by the owner on increasing the commercial area, and restriction on the one area for boat sale use he is in support of this application. Motion was made by Chairperson Selich for approval of Site Plan Review No. 70, Use Permit No. 3685 and Variance No. 1239 subject to the findings and conditions in Exhibit 3 with the added condition by staff and the change in Condition 12. Commissioner Tucker noted that the trellis is part of the revised plans, but there is nothing that requires landscaping on the trellis so we would need that in the condition, would we not? Mr. Campbell noted that there is no condition for landscaping for the trellis. We can add to Condition 11 as well as one that states that the applicant shall donate to the City two additional street trees (not palms) above the minimum �.. _ number pursuant to the Municipal Code. This was acceptable to Mr. Fluter. Ayes: McDaniel, Kiser, Agajanion, Selich, Gifford, Kranzley, Tucker Noes: None Exhibit No. 3 Findings and Conditions of Approval Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 FINDING Site Plan Review The site is flat, paved with asphalt and gravel with no trees or shrubs, no unique natural landforms or coastal bluffs or other environmental resources, and therefore, the proposed project will not significantly impact significant resources. The site is not within a designated Environmental Sensitive Area (ESA). The site is flat, paved with asphalt and gravel with no trees or shrubs, no unique natural landforms or coastal bluffs or other environmental resources, and the development project does not require significant alteration of the site and is therefore compatible with the site. i 2. The site is designated for Recreational Marine Commercial (RMC) uses by INDEX L� City of Newport Beach Planning Commission Minutes February 8, 2001 the General Plan and is located within McFadden Square area. The RMC designation was applied. to waterfront commercial areas where the City wishes to preserve and encourage uses which facilitate marine commercial uses and a visitor serving orientation. The General Plan permits residential uses on the second floor above permitted commercial uses in the McFadden Square area, and the project is provides residential uses on the second floor above permitted commercial uses, therefore the project is consistent with the General Plan. Although the introduction of new residential uses to the area could have an impact upon the preservation of the abutting boatyard and operation of the adjacent restaurant, residents of the facility will be afforded full disclosure of abutting uses before occupancy. Although expansion the adjacent boatyard would be precluded with the proposed project, the Balboa Boat Yard has been in operation for many years and its expansion is a private consideration and has not been sought. The proposed project will not preclude the continued operation of the boatyard: " 3. The site is on the border between the Cannery Village and McFadden Square area and is located in the designated McFadden Square area which extends to 26th Street. The proposed project does include the use sandblasted and burnished concrete block which reflects an image of permanence and strength identified as a thematic element of the McFadden Square area. Although the overall architectural theme of the project is not reminiscent of the turn of the century era exhibited in the central McFadden Square area near the Newport Pier, the architectural flavor and design of the project is closely associated with the maritime theme fostered by the Cannery Village area. The project uses galvanized metal exterior finishes for walls, roofs and window awnings. Exposed steel beams and metal canopies accent the architecture. Modest use of stucco offsets the use of sandblasted concrete with metal lintels for exterior wall finishes. Although the architect has not included specific nautical elements, the overall architectural theme meets the guidelines of the Cannery Village architectural theme and therefore, the project is consistent with the Cannery Village /McFadden Square Specific Plan. 4. Surrounding uses are varied including marine uses, restaurants, visitor serving commercial and mixed -use developments. The project is a continuation of the mixed -use development concept prevalent in the Cannery Village /McFadden Square area especially to the north of the project site. The immediate abutting sites are a boat yard and a restaurant, which have the potential to cause nuisances to residents of the project. Although the introduction of new residential uses to the area could have an impact upon the preservation of the abutting boatyard and operation of the adjacent restaurant, residents of the facility will be afforded full disclosure of abutting uses before occupancy. No outdoor living spaces are provided with the project, which will assist in reducing potential conflicts. The boatyard is a daytime use and the project will be required to incorporate construction techniques that attenuate exterior noise sources 12 INDEX I City of Newport Beach Planning Commission Minutes February 8, 2001 accordance with the Newport Beach Noise Ordinance. 5. The development of the site will block the limited view to the bay from Newport Boulevard which is not designated as a Scenic Highway or Drive. No public parks are in located the vicinity that the project would impact views from. Although the project site provides the only glimpse of the bay from Newport Boulevard on the block, 26th street is approximately 75 feet to the north and provides a similar glimpse of the bay from the public right of way. 6. The site is located close to the Newport Inglewood fault zone and severe ground shaking at the project site might be experienced in a major event. Prior to the issuance of a building or grading permit, the applicant must submit a comprehensive geotechnical investigation to the Building Department for review and approval. All applicable City and State building codes and seismic design guidelines will be applied through the issuance of a building permit, and therefore the proposed project will be sufficiently protected. 7. The proposed project does not have outdoor living areas and the City noise ordinance requires that interior noise levels must comply with the 45 CNEL or less standard. The applicant will be required to submit an acoustic study prior to occupancy of the residences that documents that interior noise levels meet this standard. 8. The parking lot as presently designed meets applicable requirements for reasonable and safe operations based upon the review of, Planning, Public Works and Building Departments. Subtle alterations may be necessary to ensure adequate disabled access. 9. The Zoning Code requires a 6 -foot wide horizontal easement that is parallel to the bay and a vertical easement perpendicular to the bay from Newport Boulevard to the bay to be recorded. A recorded "offer to dedicate" the easement in lieu of actually establishing the easement is consistent with Coastal Commission guidelines and is satisfactory in this case due to the nature of the project and its location. Access from the site to the north or south along the bay is blocked and is not likely to be provided in the near future. The adjacent boatyard to the north cannot physically provide a safe connection to 261h street further to the north and the Hooter's Restaurant building provides no setback from the bulkhead. When the abutting uses redevelop, horizontal connections will be feasible and in the case of the Balboa Boatyard, a connection to a public street will effectively eliminate the need for the vertical easement on the subject property. Lastly, the project provides a residential component and security of the site is necessary. 10. Electrical and mechanical equipment are not shown on the plans and approval of the project is based upon an understanding that these devices be either located underground or concealed. Additionally, trash storage 13 INDEX la City of Newport Beach Planning Commission Minutes February 8, 2001 areas are not specifically delineated with the project and approval of the project is based upon an understanding that the areas will be either accommodated within the commercial spaces and residential garages, or within screened enclosures, and they will not be visible to the public except for trash- pickup. 11. No known archaeological and historical resources are known to exist and are unlikely to exist due to the nature of the site as a disturbed and partially filled site. 12. There are no abutting residential districts, and therefore the proposed project will not likely have a significant effect upon residences in the area. Use Permit 1. The proposed commercial space is 2000 square feet and is 25.5% of the total project square footage. This amount of area is not insignificant to the overall project. 2. That the proposed commercial spaces are large enough to accommodate viable businesses. The bayside suite is 1,000 square feet in area and can accommodate a small commercial venture. The location on the bay does not favor retail uses due to its lack of visibility to Newport Boulevard, but the suite is large enough to facilitate several offices. The streetside suite is 1,000 square feet and can accommodate a small business. The size of the suite would tend to favor a small office use, but due to the good visibility of the suite from Newport Boulevard, a small retail business is very possible. Strict compliance with the minimum commercial standard for a mixed use project would increase the parking requirement, and the increased commercial area and parking would most likely require a parking garage placing residences and possibly commercial space above. This design scenario would not be conducive to providing viable commercial spaces due to its potential separation from the ground or decreased visibility. The increase commercial space would also come at the expense of one or both residential units due to need for additional space to accommodate both increased commercial space and parking. 3. The site is designated for Recreational Marine Commercial uses by the General Plan. This designation was applied to waterfront commercial areas where the City wishes to preserve and encourage uses which facilitate marine commercial uses and a visitor serving orientation. Although residential uses are not addressed within the description of the RMC designation, the Canary Village /McFadden Square Specific Area Plan permits residential uses on the second floor above permitted commercial uses, and therefore the use is consistent with the General Plan. Although the introduction of new residential uses to the area could have an impact upon the preservation of the abutting boatyard and operation of the adjacent 14 INDEX City of Newport Beach Planning Commission Minutes February 8, 2001 restaurant, residents of the facility will be afforded full disclosure of abutting uses before occupancy. Although expansion the adjacent boatyard would be precluded with the proposed project, the Balboa Boat Yard has been in operation for many years and its expansion is a private consideration and has not been sought. The proposed project will not preclude the continued operation of the boatyard. Therefore, the project will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. Variance The reduced landscape percentage is necessary in order to provide minimum required vehicular access and disabled access to the site. The site is 50 feet wide and has no alley - access ---typical - -of the Cannery Village /McFadden Square Area. Without alley access to provide vehicle access from the rear or other site access from private properly, access for vehicles and the disabled is must be through the front yard. This access requires a minimum of 29 feet in width which is 587o of the required front yard of this 50 -foot wide site. Strict application of the 50% required front yard landscaping standard would either eliminate complying disable access to the site from the sidewalk or create a substandard vehicular driveway which increases hazards. Safe vehicular access and minimum complying disabled access are higher priorities than the additional 20 square feet of landscaping which would be otherwise be required. Therefore, strict application of the landscaping and access standards in this case given the width and location of the property deprive the property owner of the privilege of developing his property in a manner consistent with other properties under the identical zoning classification. The project has an increased front building setback which increases the landscape area in front of the building although the increased area beyond the required setback cannot be used to technically meet the standard. The increased area will provide equal area to what would be required if 5076 of the required yard were landscaped. Therefore, the project and variance approval meets the legislative intent of the code which is to ensure that adequate landscaping along the street is provided, and not constitute a grant of special privilege. CONDITIONS OF APPROVAL 1. This Site Plan Review No. 79, Use Permit No. 3685 and Variance No. 1239 shall expire unless exercised within 24 months from the effective date of approval as specified in Section 20.91.050A of the Newport Beach Municipal Code. 2. The development shall be in substantial conformance with the approved site plan, floor plans and elevations dates February 8, 2001, except as noted 15 INDEX 17- City of Newport Beach Planning Commission Minutes February 8, 2001 below. INDEX 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. The Planning Commission may add to or modify conditions of approval to this Use Permit or recommend to the City Council the revocation of this Use Permit, upon a determination that the operation which is the subject of this Use Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 5. The applicant shall obtain a Coastal Development Permit from the California Coastal Commission prior to the issuance of any building or grading permit for the project. 6. The minimum elevation of the finished floor for project buildings shall be 9.00 above M.L.L.W. (6.27 Mean Sea Level). 7. The boyside structure is required to be protected with an automatic fire suppression sprinkler system subject to the review and approval of the Newport Beach Fire Department. +. 8. All trash areas shall be screened from adjoining properties and public streets. 9. The enclosed garages shall available for the exclusive use of the residential uses. No conversion of the garage spaces to other use shall be permitted. The open parking spaces shall be available for the exclusive use of the commercial businesses and customers while those commercial businesses are open for business. 10. The commercial spaces within the project shall not be converted or used for residential purposes. 11. The applicant shall submit a landscape and irrigation plan prepared by a licensed landscape architect or licensed architect for on -site and adjacent off -site planting areas. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Director prior to the issuance of a building permit. All planting areas shall be provided with a permanent underground automatic sprinkler irrigation system of a design suitable for the type and arrangement of the plant materials selected. Planting areas adjacent to vehicular activity shall be protected by a continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer. The landscape plan shall include climbing vines to be trained to the trellis located on the street elevation of the streetside unit. 16 f� City of Newport Beach Planning Commission Minutes February 8, 2001 12. All landscape materials including landscaping installed on Newport Boulevard In connection with -this project and landscaped areas shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 13. The boat slips bayward if property shall only be used in conjunction with the proposed residential dwelling units. Commercial use of the boat slips is prohibited. 14. Prior to the issuance of building permits, the applicant shall record an irrevocable offer to dedicate a 6 -foot wide public access easement along the entire water frontage of the .property and though the property to Newport Boulevard. The irrevocable offer to dedicate the assess easement shall be subject to the review and approval of the Newport Beach City Attorney and Coastal Commission prior to recordation. 15. The project must comply with the interior and exterior noise standards for residential uses of the Noise Ordinance. The interior noise standard is 45dBA between the hours of 7:OOAM and 10:OOPM and 40dBA between the hours of 10:00PM and 7:OOAM. The exterior noise level standard is 55dBA between the hours of 7:OOAM and IO:00PM and 50dBA between the hours of I O:OOPM and 7:OOAM. An acoustic study shall be performed by a qualified professional that demonstrates compliance with these standards of the Noise Ordinance. This acoustic study shall be performed and submitted to the City Planning Department prior to occupancy of the project. If the exterior noise levels exceed applicable standards, additional mitigation shall be required which may include the installation of sound wall in a location established by the acoustic study and subject to the approval of the Planning Director. 16. Each residential unit and each commercial building shall be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works Department and the Building Department. 17. Intersections of the private drive and Newport Boulevard shall be designed to provide sight distance for a speed of 35 miles per hour. Slopes, landscape, walls and other obstruction shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty -four inches in height. 18. A condition survey of the existing bulkhead along the bay sides of the property shall be made by a civil or structural engineer prior to issuance of any grading permits, and that the bulkhead be repaired in conformance 17 INDEX 14 City of Newport Beach Planning Commission Minutes February 8, 2001 with the recommendations of the condition survey and to the satisfaction of the Building Department and Marine Department. The top of the bulkhead is to be a minimum elevation of 9.00 above M.L.L.W. (6.27 MSQ. 19. All improvements within the public right of way shall be constructed as required by Ordinance and the Public Works Department. 20. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. There shall be no construction storage or delivery of materials within the Newport Boulevard right -of -way. 21. Curbs, gutter and sidewalk shall be reconstructed along Newport _ Boulevard frontage under an encroachment permit issued by the Public Works Department. All construction within the public (ght -of -way be subject to further review by the Public Works Department. An Encroachment Agreement shall be executed for all non - standard improvements approved to be constructed within the public right -of -way. 22. Arrangements shall be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is - desired to record a parcel map or obtain a building permit prior to completion of the public improvements. 23. A drainage study shall be prepared by the applicant and approved by the Public Works Department, along with a master plan of water, sewer and storm drain facilities for the on -site improvements prior to issuance of a grading permit. 24. The final design of all on -site parking, vehicular circulation and pedestrian circulation systems shall be subject to the approval of the Traffic Engineer. 25. The applicant shall provide wheel stops or other approved protective barrier methods as necessary within the parking facility. The parking spaces shall be marked with approved traffic markers subject to the approval of the Public Works Department or painted white lines not less than 4 inches wide. 26. Fair Share traffic mitigation fees shall be paid to the City prior to the issuance of any building or grading permit for the site. 27. Any Edison transformer serving the site shall be located outside the sight distance planes as described in City Standard 110 -L. 28. The proposed project shall conform to the requirements of the Uniform f . Building Code, including State Disabled Access requirements, unless 18 INDEX )5 City of Newport Beach Planning Commission Minutes February 8, 2001 otherwise approved by the Building Department. 29. All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets within the limits authorized by this permit, and shall be sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. 30. Overhead utilities serving the site shall be undergrounded to the nearest appropriate pole in accordance with Section 19.24.140 of the Municipal Code unless it is determined by the City Engineer that such undergrounding is physically infeasible. 31. The residential units shall be constructed with heightened sound attenuation techniques beyond normal construction standards and said techniques shall be subject to the review and approval by the Building and Planning Department. The residential units shall be-provided air conditioning units. - _ 32. The applicant or property owner shall include a disclosure statement within any commercial or residential lease that idenfffies abuffing land uses and the potential negative issues associated with them. The disclosure statement shall be reviewed and approved by the Planning Director before use. 32. The applicant shall donate 2 additional street frees in addition to the minimum number required pursuant to the Municipal' Code. Said frees shall be planted in the general area In accordance with General Services requirements. ssa Rex Brandt Trust (Eric Welton) 2720 & 2730 Bayside Drive • Amendment No. 909 • Lot Line Adjustment No. 2000 -13 A request to estab a 4 -foot front yard setback on the Districting Map along Bayside Drive in conjun with a project to demolish an existing duplex, adjust the existing lot confgurati reating two lots facing Bayside Drve and the construction of two duplexes. Commissioner Kiser stepped down from t ais because of a possible conflict of interest as he represents an owner of property r the subject property. Mr. Campbell then made a slide presentation of the s • Block faces Bayside Drive where it has been d • Site is accessed from a public driveway from properties. • Guest parking areas for four properties. • Landscaping in general area. • Landscaping to be removed. 19 rvelo as a park. Bayside ONQ to serve four `I1.111�:1 Item 4 A 909 LLA 2000 -13 Continued to 02/22/2001 I� Exhibit No. 2 Staff Report dated February 8, 2001 (includes 11/09/2000 stafFjVM) ��EYV°OR CITY OF NEWPORT BEACH Hearing Date: February 8, 2001 uln PLANNING DEPARTMENT Agenda Item No.: 3 3300 NEWPORT BOULEVARD Staff Person: James Campbell NEWPORT BEACH, CA 92658 (949) 644 -3210 (949) 644 -3200; FAX (949) 644 -3250 ADDeal Period: 14 days REPORT TO THE PLANNING COMMISSION PROJECT: Fluter Mixed Use Project (Sterns Architecture) 2410 Newport Boulevard SUMMARY: A request to construct a mixed use building with 2,000 square feet of commercial space and 2 residential units. The Use Permit would allow the project with a reduced commercial FAR of 0.20 where 0.25 is required. The Variance would allow a minor reduction in landscape area within the required front yard setback area abutting Newport Boulevard. ACTION: Approve, modify or deny Site Plan Review No. 79, Use Permit No. 3685, and Variance No. 1239 LEGAL DESCRIPTION: Lots 12 & 13 of Block 223 of Section A together with a portion of Lot 2, Section 33 GENERAL PLAN: Recreational, Marine Commercial ZONE: SP -6 Cannery Village/McFadden Square Specific Plan (RMC - Recreational, Marine Commercial) OWNER: Russell E. Fluter, Newport Beach Introduction This project was denied by the Planning Commission on November 9, 2000. The Commission denied the project based upon the proximity of the residential uses within the project to surrounding uses and the limited size of the commercial suites. Councilmember Ridgeway called the decision for review. On January 9, 2001, the City Council referred the project back to the Planning Commission due to a change in project that increased the amount of commercial floor space and reconfigured parking. The City Council believed that the changes to the project were substantial enough to warrant further review and reconsideration of the project by the Planning Commission. 11 Discussion The previous project description and analysis is contained in the November 9, 2000 staff report attached as Exhibit No. 1. The minutes of the November 9a' meeting that relate to this project are also attached as Exhibit No. 2. The applicant revised the proposed project and increased the commercial floor area of the street side suite by 500 feet making it 1000 square feet in area. The resulting Floor Area Ratio of the commercial portion of the project is 0.20, which is below the minimum 0.25 required. The revised project meets the maximum Floor Area Ratio of 1.25 for the entire development. The increased commercial space came at the expense of the 2 -car garage for the streetside residential unit. The required garage for the unit was accounted for within the former 4 -car garage that was previously devoted to the bayside unit. The 4 -car, tandem garage has been separated into two, 2- car tandem spaces. Additionally, the parking lot was reconfigured to accommodate 1 additional commercial parking space. The area for the additional space was created by reducing and modifying the residential entries and the overall building footprints. Otherwise, the project is nearly the same project as the previously considered version. The design and architecture remain the same except that a trellis for vines was added to the streetside unit facing Newport Boulevard. This feature was added to increase the visual interest and soften the southern elevation. The revised plans are attached as Exhibit No. 5 and the original plans are attached as Exhibit No. 6 for comparison. Parking & Use The larger commercial space creates an increased requirement for parking using the typical retail and office parking ratio (1 space for every 250 square feet). The revised plan increases the parking by 1 space and the site will be deficient by 1 spare using the retail/office ratio. The applicant has contemplated this situation and proposes to lease the streetside unit to a boat sales operation that has lower parking requirement which is 1 space for each 350 square feet. With this as a use limitation, the site does provide the 7 total commercial spaces it requires. Additionally, the boat sales use will ensure that the project is compliance with the 40% marine incentive use requirement. The applicant is not requesting a parking waiver nor is he providing off -site parking. Therefore, the limitation for a less parking intensive use will limit the leasing and use of the site. The applicant believes that limiting the streetside unit to boat sales is viable and the suite will lease easily. If the applicant choose to lease to a typical commercial or office use, a parking waiver would need to be approved or off -site parking provided. However, the increased area of the streetside unit makes it a more viable commercial space. These factors should be considered in whether or not the Use Permit for reduced commercial area within a mixed -use project should be approved. Land Use Conflict The primary issue that led to the Planning Commission's denial of the project was the compatibility of the residential portion of the proposed project with the adjacent uses. The Balboa Boatyard abuts the project to the west and Hooters abuts the project to the east. The proposed changes to the project do not change this circumstance. However, the applicant is Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 February 8, 2001 . Page 2 0� D proposing to incorporate heightened sound attenuation techniques in the construction of the project. Additionally, the applicant proposes to provide air conditioning for the residences which will allow windows to remain closed more often. Lastly, the applicant proposes to plant additional street trees along Newport Boulevard near the project above the minimum requirement to beautify the area. Recommendation Staff believes that the findings for approval of the Use Permit, Site Plan Review and Variance can be supported. Revised findings for project approval are attached as Exhibit No. 3. Should the Planning Commission believe that the and denial and 4 respectively. Submitted by: PATRICIA L. TEMPLE Planning Director Exhibits Prepared by: JAMES W. CAMPBELL Senior Planner Planning Commission staff report dated November 9, 2000 (without exhibits). 2. Excerpt of minutes from the November 9, 2000 Planning Commission meeting. 3. Findings and conditions of approval 4. Findings for denial XMS_11SYS \USERSIPUNASHAREDV PLANCOIM 2001 \02- 08pc1F9uWm3685- pm-poR 2-08 -01 DOC Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 February 8, 2001 Page 3 At 2gw P�Rr CITY OF NEWPORT BEACH Hearing Date: November 9, 2000 PLANNING DEPARTMENT Agenda Item No.: S b r 3300 NEWPORT BOULEVARD Staff Person: James Campbell ` NEWPORT BEACH, CA 92658 (949) 644 -3210 (949) 634 -3200; FAX (949) 644 -3250 Appeal Period: 14 days REPORT TO THE PLANNING COMMISSION PROJECT: Flutter Mixed Use Project (Sterns Architecture) 2410 Newport Boulevard SUMMARY: A request to construct a mixed use building with 1,500 square feet of commercial space and 2 residential units. The Use Permit would allow the project with a reduced commercial FAR of 0.15 where 0.25 is required. The Variance would allow a minor reduction in landscape area within the required front yard setback area abutting Newport Boulevard. RECOMMENDED ACTION: Approve Site Plan Review No, 79, Use Permit No. 3685, and Variance No. 1239 subject to the findings and conditions of approval attached as Exhibit 1. LEGAL DESCRIPTION: Lots 12 & 13 of Block 223 of Section A together with a portion of Lot 2, Section 33 GENERAL PLAN: Recreational, Marine Commercial ZONE: SP -6 Cannery Village/McFadden Square Specific Plan (RMC - Recreational, Marine Commercial) OWNER: Russell E. Fluter, Newport Beach POINTS AND AUTHORITY: . 1. Conformance with the General Plan and Local Coastal Program The site is designated Recreational, Marine Commercial by both the General Plan and Local Coastal Program. This designation has been is applied to waterfront commercial areas where the City wishes to preserve and encourage uses which facilitate a marine commercial and visitor serving orientation. The Cannery Village and McFadden Square areas both permit residential uses on the second floor above permitted commercial uses. 2. Conformance with the Zoning Ordinance . a. Site Plan Review procedures are set forth in Chapter 20.92 of the Municipal Code. b. Use Permit procedures are set forth in Chapter 20.91 of the Municipal Code. c. Variance procedures set forth in Chapter 20,91 of the Municipal Code d. Cannery Village/McFadden Square Specific Area Plan requirements contained within Chapter 20.43 of the Municipal Code. 3. Compliance with the California Environmental Quality Act (CEQA) This project has been reviewed, and it has been determined that it is categorically exempt f" pursuant to Section 15303 (CIass 3, New Construction or Conversion of Small Structures) of the California Environmental Quality Act Implementing Guidelines. This exemption permits the construction of up to three single family dwellings or up to 10,000 square feet of commercial structures. The project consists of two residential units and 1,500 square feet of retain space and the impact of combining the two uses will generate impacts less than a 10,000 square foot commercial building. Current Development: Vacant graveled lot used for informal, private parking arrangements To the north: Balboa Boat Yard — a boat haul out and repair facility To the east: Newport Bay with a commercial boat slip, Lido Peninsula To the south: Eating and drinking establishment (Hooters) To the west: City Parking lot, commercial uses Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Page 2 A3 Introduction The applicant requests approval of a Site Plan Review, Use Permit and Variance to construct a mixed -use (commercial/residential) development on a 9,814 square foot site located in the Cannery Village/McFadden Square Specific Area Plan. The project site is located approximately 75 feet south of the intersection of 26h Street and Newport Boulevard on the northeast side of the street abutting Newport Bay. The project consists of the construction of two separate, three story buildings, one located adjacent to Newport Bay and the other abutting Newport Boulevard. Between the two buildings, 6 commercial parking spaces are proposed at- grade. The bayside building will have 1,000 square feet of commercial space on the ground floor and a 4 car garage for the residential unit above. The unit above has two levels with 2,893 square feet of total living area. The streetside building has 500 square feet of commercial space on the ground floor and a two car garage for the residence above. The unit above has two levels and will span over the access driveway and have 2,209 square feet of total living area. The two existing boat slips will be provided for the residents of the project. Project Area Characteristics 2410 Newport Boulevard Bayside building garage. 817 1 st floor residential 230 1 st floor commercial 1,000 2nd floor 2,175 Mezzanine (3`d floor) 488 Subtotal 4,710 Streetside building garage 476 1 st floor residential 188 1st floor commercial 500 2nd floor 1,523 Mezzanine (3`d floor) 498 Subtotal 3,185 Residential area 3,710 Residential area 2,685 Commercial area 1,000 Commercial area 500 Site Area Total residential area Residential FAR Total commercial area Commercial FAR Total building Area Total FAR 9,814 6,395 0.652 (0.75 maximum) Project Complies 1,500 0.153 (0.25 minimum) Project Deficient 7,895 0.804 (1.25 maximum) Project Complies • Retail uses permitted without restriction • Office permitted in conjunction with marine incentive uses only Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Page 3 a4 Analysis Project approval requires a Site Plan Review pursuant to the Cannery Village/McFadden Square Specific Area Plan (Chapter 20.43). Additionally, the project does not provide the minimum required commercial area for a mixed use building which requires consideration of a Use Permit. Lastly, the project does not provide the minimum 50% landscaping within the required front yard which requires approval of a variance. Site Plan Review There are twelve standards to be applied in a Site Plan Review. These are listed below with a evaluation of the project in relation to each. A. Sites subject to site plan review under the provisions of this chapter shall be graded and developed with due regard for the aesthetic qualities of the natural terrain, harbor, and landscape, giving special consideration to waterfront resources and unique landforms such as coastal bluffs or other sloped areas; trees and shrubs shall not be indiscriminately destroyed: The site is flat, paved with asphalt and gravel with no trees or shrubs, no unique natural landforms or coastal bluffs or other environmental resources. The building pad elevation of the streetside building is below the minimum of 6.27 feet above mean sea level and will require raising approximately 1.52 feet. This change in grade is necessary to provide minimum flood protection and does not constitute significant alteration of the site as the grade will be similar to abutting properties. B. Development shall be compatible with the character of the neighborhood and surrounding sites and shall not be detrimental to the orderly and harmonious development of the surroundings and of the City: Surrounding uses are varied including marine uses, restaurants, visitor serving commercial and mixed -use developments.: The project is a continuation of the mixed —use development concept prevalent in the Cannery Village/McFadden Square area especially to the north of the project site. The immediate abutting sites are a boat yard and a restaurant. The boat yard is an intensive marine - related;' quasi - industrial activity that has the potential to cause nuisances to residents of the project in the form of noise, refinishing activities and motor maintenance. The adjacent restaurant is open till lOPM on Sunday, lAM Monday to Thursday and 2AM Friday and Saturday. Activities within the restaurant as well as patron activity in the parking lot during the late night hours can become a nuisance to abutting residents. The City has experienced in the past and continues to experience land use conflicts between residential uses, boat yards and especially restaurants. C. Development shall be sited and designed to maximize protection of public views, with special consideration given to views from public parks and from roadways designated as Scenic Highways and Scenic Drives in the Recreation and Open Space Element of the General Plan: The development of the site will block the limited view to the bay from Newport Boulevard. Newport Boulevard is not designated as a Scenic Highway or Drive and no public parks are in the vicinity that the project would impact views from. Although the project site provides the only glimpse of the bay from Newport Boulevard A5. Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 �y November.9, 2000 Page 4 Ad - on the block, 26`h street is approximately 75 feet to the north and provides a similar glimpse of the bay from the public right of way. D. Environmentally sensitive areas shall be preserved and protected. No structures or landform alteration shall be permitted in environmentally sensitive areas unless specific mitigation measures are adopted which will reduce adverse impacts to an acceptable level or the Planning Commission finds that the benefits outweigh the adverse impacts: The site is not within a designated Environmental Sensitive Area (ESA). The site is flat, paved with asphalt and gravel with no trees or shrubs, no unique natural landforms or coastal bluffs or other environmental resources. E. No structures shall be permitted in areas of potential geologic hazard unless specific mitigation measures are adopted which will reduce adverse impacts to an acceptable level or the Planning Commission finds that the benefits outweigh the adverse impacts: The site is located close to the Newport Inglewood fault zone and severe ground shaking at the project site might be experienced in a major event. Prior to the issuance of a building or grading permit, the applicant must submit a comprehensive geotechnical investigation to the Building Department for review and approval. All applicable City and State building codes and seismic design guidelines will be applied through the issuance of a building permit. F. Residential development shall be permitted in areas subject to noise levels greater than 60 CNEL only where specific mitigation measures will reduce noise levels in exterior areas to less than 60 CNEL and reduce noise levels in the interior of residences to 45 CNEL or less: The proposed project does not have outdoor living areas and the City noise ordinance requires that interior noise levels must comply with the 45 CNEL or less standard. The applicant will be required to submit an acoustic study prior to occupancy of the residences that documents that interior noise levels meet this standard. G. Site plan and layout of buildings, parking areas, pedestrian and vehicular access ways, and other site features shall give proper consideration to functional aspects of site development: The Planning, Public Works and Building Departments have reviewed the site plan for proper pedestrian and vehicle function. The parking lot as presently designed meets applicable requirements for reasonable and safe operations. The disabled path of travel from the disabled parking space to the commercial portions of the site is behind the adjacent parking stalls which will require the issuance of a waiver by the building official due to physical constraints. This waiver is under consideration at this time and is likely to be granted as the number of parking stalls in the lot in very limited, the distance to the commercial suites is short and the width of the site is very limiting. Designing the access to be in front of the abutting stalls has been explored and the major impact of this design is a more narrow drive isle and insufficient interior landscaping to the parking area which is required by the Zoning Code. Another aspect of pedestrian access is public coastal access required pursuant to the a Zoning Code and Coastal Act. The Zoning Code requires a 6 -foot wide horizontal easement a`O Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Paee 5 that is parallel to the bay and a vertical easement perpendicular to the bay from Newport Boulevard to the bay. The horizontal easement area is provided within the 10 -foot setback r between the bayside building and the bulkhead. The vertical easement area would be partially restricted due to a security gate and the walkway would be behind any parked vehicles. The Zoning Code requires that the Planning Comrrtission require easements be recorded against the property for the benefit of the public. The applicant desires the ability to close the access during the night for security purposes, and would rather provide and record an "offer to dedicate" the easement which is consistent with Coastal Commission guidelines in lieu of actually establishing the easement. Staff does not have a significant objection to this scenario especially since access from the site to the north or south is blocked and is not likely to be provided in the near future. The adjacent boatyard to the north cannot physically provide a safe connection to 261h Street further to the north and the Hooter's Restaurant building provides no setback from the bulkhead. If the abutting uses redevelop, horizontal connections will be feasible and in the case of the Balboa Boatyard, a connection to a public street will effectively eliminate the need for the vertical easement on the subject property. Under these circumstances, staff does not object to an offer to dedicate rather than an easement, although the Municipal Code specifically requires the easements to be provided and recorded. Staff is requesting that the Commission determine that an irrevocable offer to dedicate the public access easements be deemed sufficient in this case due to the circumstances of this case. H. Development shall be consistent with specific General Plan and applicable specific plan district policies and objectives, and shall not preclude the implementation of those policies and objectives: The site is on the border between the Cannery Village and McFadden Square area and is located in the McFadden Square area which extends to 26`h Street. The architectural theme identified for the McFadden Square area is as follows: "McFadden Square Theme. The McFadden Square area has an entirely different feel than the Cannery Village area. Here, historic 2 -story architecture predominates. This historic theme should be encouraged and enhanced by recreating the image of a turn -of -the- century resort- center following the lead of the Doryman's Inn. Elements of "turn -of- the - century" architecture include: a. Use of materials reflecting and image of permanence, stability and strength, and quality. Materials such as ceramic tile, stone, brick and brass fit this image. b. Use of architectural styles and details reminiscent of the turn of the century era in which the area was constructed. Structures in this style in general have a strong architectural emphasis on both vertical and horizontal structural members, a regular rhythm of vertical windows, and a restrained use of ornament." The proposed project does include the use sandblasted and burnished concrete block which reflects an image of permanence and strength, but the overall architectural theme of the project is not reminiscent of the turn of the century era exhibited in the central McFadden Square area near the Newport Pier. Site Plan Review No. 79, Use Pemtit No. 3685 & Variance No. 1239 °' I November 9, 2000 Page 6 The architectural flavor and design of the project is more closely associated with the maritime theme fostered by the Cannery Village area. "Cannery Village Theme. A cannery theme is recommended for the Cannery Village area. The cannery theme is reminiscent of the previous use of the area, and can provide a continuity throughout the area while preserving the variety and individuality of uses that give the area its charm. The cannery theme should be expanded to include other nautical and marine elements as appropriate. Elements of a cannery theme that may be applied to structures include: a. Use of corrugated metal shed -type buildings or siding where appropriate, with a higher level of finish than would normally be associated with such structures. b. Attractive expression of mechanical equipment and systems by incorporation into the design of structures within the height limit. C. Use of nautical devices in signs, architectural details and decoration, such as heavy rope, pilings, timbers, brass fixtures, etc." The project uses galvanized metal exterior finishes for walls, roofs and window awnings. Exposed steel beams and metal canopies accent the architecture. Modest use of stucco offsets the use of sandblasted concrete with metal lintels for exterior wall finishes. Although the architect has not included specific nautical elements, the overall architectural theme meets the guidelines of the Specific Plan. The project is on the border between the Cannery Village and McFadden Square area, and although it is within the designated McFadden Spare area, the site is separated from the central area where there traditional McFadden Square architectural theme is exhibited. Therefore, given this separation and the site's proximity to the Cannery Village area, deviating from that theme in exchange for the Cannery Village theme is acceptable in staff s opinion. The site is designated for Recreational Marine Commercial uses. This designation was applied to waterfront commercial areas where the City wished to preserve and encourage uses which facilitate a marine commercial and visitor serving orientation. The Cannery Village and McFadden Square areas both permit residential uses on the second floor above permitted commercial uses, but the presence of residences at the site could have an impact upon the preservation of the abutting boatyard if conflicts arise. Expansion the adjacent boatyard would be precluded with the development should that expansion of the boatyard ever be considered. I. Development shall be physically compatible with the development site, taking into consideration site characteristics including, but not limited to, slopes, submerged areas, and sensitive resources: The site is flat and devoid of sensitive resources and the development project does not require significant alteration of the site and is therefore compatible with the site. ay Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Page 7 J. When feasible, electrical and similar mechanical equipment and trash and storage areas shall be concealed: Electrical and mechanical equipment is not shown on the plans and r` > staff has included a condition of approval that these devices be either located t. underground or concealed. Trash storage areas are not specifically delineated on the plans, and the applicant intends that trash storage be accommodated within the commercial spaces and residential garages, and they will only be visible for trash - pickup. K. Archaeological and historical resources shall be protected to the extent feasible; No known archaeological and historical resources are known to exist and are unlikely to exist due to the nature of the site as a disturbed and partially filled site. L. Commercial development shall not have significant adverse effects on residences in an abutting residential district: There are no abutting residential districts. There are residences nearby located to the north side of 26th street within a mixed use building. The commercial component of the project is not likely to have a significant effect upon these residences due to the limited area and limitation to retail or office uses. Use Permit Section 20.43.050 (0) specifies that the minimum amount of commercial area within a mixed use building be 0.25 FAR. The project provides 1,500 square feet which is 0.153 FAR and is 953.5 square feet deficient. Project approval requires the consideration of a Use Permit subject to specific findings set forth in Section 20.63.040.D. 1. That the proposed commercial space constitutes a significant portion of the project. The proposed commercial space constitutes 19% of the project square footage. Although the area is smaller that the residential area, the residential area includes the enclosed garage spaces and therefore the commercial space constitutes 29.4% of the livable residential area. This amount of area is not insignificant to the overall project. 2. That the proposed commercial space is large enough to accommodate a viable business. The bayside suite is 1,000 square feet in area and can easily accommodate a small commercial enterprise. The location on the bay does not favor retail uses due to its lack of visibility to Newport Boulevard. The streetside suite is 500 square feet and can accommodate a very small business. The size of the suite would tend to favor a business or professional office use, but due to the good visibility of the suite from Newport Boulevard, a small retail business is highly possible in staff s opinion. The Commission should consider the that the commercial area has limitations due to its designation of Recreational Marine Commercial. Non- marine related office uses can only be accommodated when 40% of the commercial area of the site is occupied with a marine related incentive use. Therefore, 600 square feet of the project must be occupied with a marine incentive use before any non - marine related office uses. Most general retail uses can occupy the entire site without limitations. The applicant operates a real estate business and specializes in the Cannery Village area has experience with the leasing limitations. This experience will assist the city in ensuring that the marine related commercial uses or retail uses will occupy the site in compliance with the Zoning Code limitations. Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Page 8 The commercial spaces will very desirable to artists, architects or other professionals who might desire a live /work environment. Staff is supportive of this kind of environment as it reduces traffic and is a growing market segment, but this aspect of the design of the project will increase pressure away from including marine- related uses. Strict compliance with the minimum commercial standard for a mixed use project would produce a total of 2,453.5 square feet of commercial space which would require 10 commercial parking spaces. The increased commercial area and parking would most likely require a parking garage placing some the commercial and residential components above. The applicant has indicated that this is not financially feasible. Another option is to have an exclusive commercial project which using the base development allocation of 0.50 FAR, a 4,907 square foot building could be constructed which would require a minimum of 20 parking spaces. This development scenario would place the commercial area above a parking garage and the applicant again indicates would make the project financially infeasible given the current commercial market. This viewpoint could support the perspective that the proposed project is primarily a residential project, although the inclusion of 1,500 square feet is not insignificant in staff s opinion All use permits are subject to the general finding that states, "that the proposed location of the use pernih and the proposed conditions under which it would be operated or maintained will be consistent with the General Plan and the purpose of the district in which the site is located; will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city." The reduction of commercial area is the subject of the use permit and it facilitates the feasibility of the mixed -use project. Therefore, evaluating the project as a whole is necessary. The project introduces residential uses between two intensive commercial uses and the General Plan, through the RMC designation, fosters the maintenance of existing marine- related uses and preservation of sites for these uses. Variance The proposed project does not strictly comply with the minimum landscaping within the required front yard and thus, project approval requires the approval of a variance as Section 20.43.050 (1) requires that a minimum or 5% of any exterior paved parking area and a minimum of 50% of the area of the required front yard shall be devoted to planting areas. The project devotes only 42% percent of the required front yard to plantings. Section 20.91.035(B) of the Newport Beach Municipal Code provides that in order to grant any variance, the Planning Commission must make the following findings: I. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of this code deprives such property of privileges enjoyed by other property in the vicinity and tinder identical zoning classification, 2. That the granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant. 6 3 Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Page 9 3. That the granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. 4. That the granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare or injurious to property improvements in the neighborhood. Unfortunately, in the Cannery Village/McFadden Square specific plan, there is no provision for a portion of the landscape area to be devoted to decorative paving as is allowable in the Central Balboa Specific Plan. The reduced landscape percentage is necessary in order to provide required vehicular access and disabled access to the site. The site is 50 feet wide and has no alley access typical of the Cannery Village/McFadden Square Area. Without alley access to provide vehicle access from the rear or other site access from private property, access for vehicles and the disabled is mandatory through the front yard. This access requires a minimum of 29 feet in width which is 58% of the required front yard of this site. Strict application of the 50% required front yard landscaping standard would either eliminate complying disabled access to the site from the sidewalk or create a substandard vehicular driveway which increases hazards. Staff believes that safe vehicular access and minimum complying disabled access are higher priorities than the additional 20 square feet of landscaping which would be otherwise be required. Therefore, strict application of the landscaping and access standards in this case, given the width and location of the property, deprive the property owner of the privilege of developing his property in a safe manner. The applicant has increased the building setback 1 additional foot thereby increasing the landscape area in front of the building although the increased areas is technically outside the required front yard setback area. This increased area will provide equal area to what would be required if 50% of the required yard were landscaped. Therefore, due to these circumstances, the project and variance approval meets the legislative intent of the code which is to ensure that adequate landscaping along the street is provided. For these reasons, staff believes that the findings for the variance can be made. Zoning Ordinance Compliance The project complies with other applicable zoning ordinance requirements. The proposed buildings comply with the height limitation where the midpoint of the sloping roof does not exceed 26 feet and the maximum height of the peak roof does not exceed 31 feet. The project meets applicable setback requirements of the zoning district which is 5 feet on the front, 0 feet on the sides and 10 feet from the bulkhead. The project requires 6 parking spaces for the commercial area and a two spaces per dwelling unit. The project provides 6 parking spaces in the open parking lot and a 2 -car garage for the streetside unit and a 4 -car garage for the car garage for the bayside unit. Landscaping is provided interior to the parking area that meets the minimum 5% requirement (the front yard landscaping deviation was discussed previously). The proposed project has a 0.804 total Floor Area Ratio (FAR) which is below the 1.25 FAR maximum. Building bulk is a separate calculation and in this application, it is identical to the FAR and is less than the 1.25 FAR. Lastly, the only other major issue regarding zoning compliance is the requirement that public access easement to the waterfront be required. This issue was discussed previously in this report, and staff recommends that the i 3 Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Pa ,-e 10 Comrission require the owner record irrevocable offers to dedicate the minimum public access easements at this time. The project complies with all other applicable requirement of the Zoning Ordinance. Recommendation Staff believes that there are sufficient grounds for project approval. The architectural design of the project is compatible with the Cannery Village/McFadden Square architectural themes with its use of materials and architectural features. Staff believes that the reduced size of the commercial spaces are viable for a limited segment of the commercial market demand. The reduced landscaping of the front yard is justifiable due to the physical constraints of the site and approval of the requested variance is appropriate in Staffs opinion. Staffs only reservation is with the location of the project which introduces residential uses adjacent to intensive commercial uses. The proximity of the project to the Balboa Boat Yard and to a late night restaurant may create future conflicts between the residents and these businesses. However, compliance with noise ordinance requirements should minimize potential conflicts. The impact of the project upon objective of the City to maintain marine- related uses is an important consideration for this project. If the Planning Commission believes that the project is not compatible with this General Plan goal, the project should be denied. Lastly, the site is vacant and development of the site would provide general improvement to the area. Submitted by: PATRICIA L. TEMPLE Planning Director Exhibits Prepared by: JAMES W. CAMPBELL Senor Planner W � \ WIIS_ I\ SYS \USERS\PIMSHARED \IPLANCOM\?OMI I- 09pc\Fluter Mixed ux \u3685- perepon.DOC 59, Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 November 9, 2000 Page I I City of Newport Beach Planning Commission Minutes November 9, 2000 SUBJECT: Fluter Mixed Use Project (Stems Architecture) 2410 Newport Boulevard • Use Permit No. 3685 • Site Plan Review No. 79 A request to construct a mixed use building with 1,500 square feet of commercial space and 2 residential units. The Use Permit would allow the project with a reduced commercial FAR of 0.15 where 0.25 is required. The Variance would allow a minor reduction in landscape area within the required front yard setback area abutting Newport Boulevard. Public comment was opened. Russ Fluter, 2025 West Balboa Boulevard stated that he agrees with the findings and conditions of approval. Commissioner Kiser asked if the landscape is what requires the Variance, the fact that there is only 42% versus 50% landscaping provided in the front yard? What alternatives might there be in designing the project and why you have to come for a variance on the landscaping? Mr. Fluter answered that when the landscape requirement was put in the Cannery Village /McFadden zone, this particular site or one like it was not anticipated. The typical lot in the Cannery Village is 30 x 93 foot lot that abuts an alley. This project, the only to gain access to the property is to create a driveway on half the property. You also need a walkway to get into the property because the code requires a walkway in addition to the driveway. That cuts you out of 50% no matter how you do it. This project is in the McFadden Square area border. Commissioner McDaniel noted that this is supposed to be a commercial area. It seems like we are putting housing in the middle of a commercial area. Mr. Fluter answered that the minimum requirement for commercial in this project is .25, which is 1,000 square feet more than I have. When you try to lay this site out that would require an additional four parking spaces. The site is allowed for both residential and commercial. One side of the site is Hooter's Restaurant and the Balboa Boat Yard is on the other side. Commissioner Kranzley asked the applicant how he was going to attract tenants that aren't going to be sitting in here protesting every restaurant use and boat yard use in the future. I am concerned about the fact that we are sticking residential in the middle of fairly active commercial, which has been very difficult in this area of town. Mr. Fluter opined that is what makes the area great. Across from the boatyard are condominiums. We have had very little complaints. This site will have views 50 INDEX Item No. 5 UP No. 3685 Site Plan Review No. 79 Denied $5 City of Newport Beach Planning Commission Minutes November 9, 2000 over the boat yard. This is a loft project surrounded by commercial; it is not in a residential area. Anybody who rents or buys a residence in this kind of a neighborhood is going to know where they are buying and they are going to like it. Commissioner Kranzley asked for an explanation of the easement issue. I have this vision that we will have some bayfront walkway. Mr. Campbell stated that the Municipal Code requires that an easement be created that is 6 feet wide, horizontally abutting the bay. The required easement is to be recorded. Staff is recommending that we do an irrevocable offer to dedicate that issue. That offer to dedicate would be recorded against the property. If one of the abutting land uses does redevelop at some point in time, we can get a connection and the easement could then be recorded. Commissioner Kranzley clarified that we do not have an easement recorded on this piece of property, in the future we have the right to have on easement. That easement would never represent a taking of this property from the owner of the property. Public comment was closed. Chairperson Selich noted his concern of this project. It is not good policy to be putting residential properties in between boat yards, I realize that the zoning permits that in this area, although it certainly does not mandate it. You can do all commercial on the property. If he wasn't asking for a FAR change and less landscaping, he would not be here and could just go in and get a building permit. Mr. Campbell noted that a Site Plan Review application is also before you that has specific findings of compatibility. There is a discretionary action and would come before the Planning Commission even without the FAR change or landscaping. Continuing, Chairperson Selich noted this is not a compatible use the way it is designed. The mixed -use provisions do not mandate that this be done and I do not believe it is within the intent of mixed -use development. It is primarily a residential use with little commercial. We are basically approving a residential use between a boat yard and a restaurant bar facility. I just can not support it. Commissioner Kranzley asked the applicant how he would feel about conditions regarding types of windows and things that would be in the residential portion of this application such as quadruple paned, etc. for soundproofing as much as possible? I have the same vision of how mixed use should work. INDEX Mr. Fluter answered that he would not have a problem with that. He stated that the architecture would be a handsome building and have a theme of the area 51 3i City of Newport Beach Planning Commission Minutes November 9, 2000 that when people drive by will be uplifted. I agree that there is a problem with the mixture of residential and commercial, but I would like to see a beautiful new building there than if someone put a 2500 straight commercial building there. I could put in air conditioning and talk to a sound acoustical engineer for further suggestions. Ms. Temple agreed that a requirement for an acoustical study be prepared to address sound attenuation within the residential structures be submitted prior or with the building application is within reason. All recommendations of that study would then be implemented within the project. our current interior noise standard is 45 dBA. The question would be do you want to impose a more stringent standard than that. Commissioner Agajanion noted his concern with the design of the project. He stated he is in support of the project. Commissioner Kiser asked if there would be any problems with residents on this particular site between these two uses. Problems for the City in the way of lawsuits? Ms. Clauson noted that regarding lawsuits by virtue of the fact that we have placed residential there and somebody buys a house there, I don't believe so. As far as future problems when somebody who owns the property next door wants to redevelop it make a change, sure there may be potential problems there. There is a potential problem with people complaining about noises next door for the operations of the boat facility, but in the case of that we would direct those property owners that it is a private nuisance issue. Ms. Temple noted that we are involved with actual code enforcement issues with the boat yard due to complaints from the adjoining 29th Street Marina residents having to do with early morning boat deliveries and back up bells, etc. that are creating complaints. We have not closed that file yet, as the issue has not been resolved yet with the business owner. Commissioner Kiser noted residential uses with commercial creates a nice community, but to the extent it is going to create a lot of problems in the future as residential uses are intermixed with the boat yard uses, I wonder whether this would start a trend towards losing all the boat yard marine type uses over time. Chairperson Selich noted that there is a variance being requested. There are strict standards for approving variances and other instances. They have mainly been for hillside areas, but one of the things we have to look at for consistency is the grounds for granting a variance. I don't see the grounds myself particularly in relation to the standards set in reviewing other variances. Commissioner McDaniel noted that mixed use could work, but we have created an island here. We have a boat yard on one side and a restaurant on the other 52 IITTWN City of Newport Beach Planning Commission Minutes November 9, 2000 INDEX side that will be noisy and there is no place for this to expand. There is one little place here. I don't think it is fair to the boat yard to be putting someone who is bound to have concerns about early morning deliveries and doing boat work. That is what was there first and that is what it was zoned for originally to have that kind of businesses on the water, which will require access to the water. I couldn't support this. Ms. Ciauson at Commission inquiry noted that the City is not liable for the issuance of a permit approval or something to operate within the Code. You have residences there and issues that will come up in the future and the complaints that the City will have to address when they occur. Commissioner Gifford noted her support of the comments made by the Chairperson. She noted that she is not persuaded to make findings for a variance and in terms of a commercial loft area, with the boat yard there it is akin to being industrial. I don't think our obligation is necessarily to the boat yard or to the surrounding property owners, I think it is a matter of good planning. don't think this is workable, putting residential in there. Motion was made by Chairperson Selich to deny Site Plan Review No. 79, Use Permit No. 3685 and Variance No. 1239 subject to the findings for denial in Exhibit 2 of the staff report. Ayes: McDaniel, Kiser, , Selich, Gifford Noes: Agalanian, Kranzley Absent: Tucker Exhibit No. 2 Findings for Denial Site Plan Review No. 79, Use Permit No. 3685 L Variance No. 1239 1. Surrounding uses include a boat yard and a restaurant. The City has experienced in the post and continues to experience land use conflicts between residential uses and boat yards and restaurants. The adjacent boat yard is an intensive marine - related, industrial activity permitted within the RMC district that has the potential to cause nuisances to residents of the project in the form of noise, refinishing activities and motor maintenance. Introduction of the residential uses adjacent to this use will generate complaints and pressure to regulate the boat yard in order to make it compatible with the project. Potentially further regulating the adjacent boat yard is contrary to the City's goal to preserve waterfront land for these necessary harbor activities. The adjacent restaurant is permitted to be open till IOPM on Sunday, 1 A Monday to Thursday and 2AM Friday and Saturday and is a permitted use. Activities within the restaurant as well as patron activity in the parking lot during the late night hours may become a nuisance to abutting residents. Permitting residences 53 3Y� City of Newport Beach Planning Commission Minutes November 9, 2000 adjacent to the restaurant will generate complaints and increased pressure to further regulate the restaurant contrary to its permitted operational characteristics. Therefore, the proposed project is inconsistent with the abutting uses 2. The Zoning Code requires that a mixed -use project provide a minimum of 0.25 FAR in order to create viable commercial spaces. The proposed commercial spaces are not large enough to accommodate viable retail or marine - related businesses. The bayside suite is 1,000 square feet in area and due to its lack of visibility from Newport Boulevard, retail uses are unlikely. Although office the site is large enough for office uses, non - marine - related office uses are only permitted when 40% of the commercial area on the site is occupied with marine incentive use. Therefore, the marketability of the unit is very limited. The streetside suite is 500 square feet and due to its size, the suite would tend to favor a small office use rather than a retail use. The suite is located close to Newport Boulevard, and therefore has very good visibility; the size of the suite is very limiting for a retail establishment. Due to these limiting factors, compliance with the requirement that 40% of the commercial area be devoted to marine incentive uses is questionable. Larger and more viable commercial spaces will assist in compliance with the marine incentive use requirement. 54 INDEX 31 Exhibit No. 3 Findings and Conditions of Approval Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 FINDINGS Site Plan Review 1. The site is flat, paved with asphalt and gravel with no trees or shrubs, no unique natural landforms or coastal bluffs or other environmental resources, and therefore, the proposed project will not significantly impact significant resources. The site is not within a designated Environmental Sensitive Area (ESA). The site is flat, paved with asphalt and gravel with no trees or shrubs, no unique natural landforms or coastal bluffs or other environmental resources, and the development project does not require significant alteration of the site and is therefore compatible with the site. 2. The site is designated for Recreational Marine Commercial (RMC) uses by the General Plan and is located within McFadden Square area. The RMC designation was applied to waterfront commercial areas where the City wishes to preserve and encourage uses which facilitate marine commercial uses and a visitor serving orientation. The General Plan permits residential uses on the second floor above permitted commercial uses in the McFadden Square area, and the project is provides residential uses on the second floor above permitted commercial uses, therefore the project is consistent with the General Plan. Although the introduction of new residential uses to the area could have an impact upon the preservation of the abutting boatyard and operation of the adjacent restaurant, residents of the facility will be afforded full disclosure of abutting uses before occupancy. Although expansion the adjacent boatyard would be precluded with the proposed project, the Balboa Boat Yard has been in operation for many years and its expansion is a private consideration and has not been sought. The proposed project will not preclude the continued operation of the boatyard. 3. The site is on the border between the Cannery Village and McFadden Square area and is located in the designated McFadden Square area which extends to 2e Street. The proposed project does include the use sandblasted and burnished concrete block which reflects an image of permanence and strength identified as a thematic element of the McFadden Square area. Although the overall architectural theme of the project is not reminiscent of the turn of the century era exhibited in the central McFadden Square area near the Newport Pier, the architectural flavor and design of the project is closely associated with the maritime theme fostered by the Cannery Village area. The project uses galvanized metal exterior finishes for walls, roofs and window awnings. Exposed steel beams and metal canopies accent the architecture. Modest use of stucco offsets the use of sandblasted concrete with metal lintels for exterior wall finishes. Although the architect has not included specific nautical elements, the overall architectural theme meets the guidelines of the Cannery Village architectural theme and therefore, the project is consistent with the Cannery Village/McFadden Square Specific Plan. 4. Surrounding uses are varied including marine uses, restaurants, visitor serving commercial and mixed -use developments. The project is a continuation of the mixed —use development concept prevalent in the Cannery Village/McFadden Square area especially to the north of the project site. The immediate abutting sites are a boat yard and a restaurant which have the potential to cause nuisances to residents of the project. Although the introduction of new residential uses to the area could have an impact upon the preservation of the abutting boatyard and operation of the adjacent restaurant, residents of the facility will be afforded full disclosure of abutting uses before occupancy. No outdoor livings spaces are provided with the project which will assist in reducing potential conflicts. The boatyard is a daytime use and. the project will be required to incorporate construction techniques that attenuate exterior noise sources accordance with the Newport Beach Noise Ordinance. 5. The development of the site will block the limited view to the bay from Newport Boulevard which is not designated as a Scenic Highway or Drive. No public parks are in located the vicinity that the project would impact views from. Although the project site provides the only glimpse of the bay from Newport Boulevard on the block, 26a' street is approximately 75 feet to the north and provides a similar glimpse of the bay from the public right of way. 6. The site is located close to the Newport Inglewood fault zone and severe ground shaking at the project site might be experienced in a major event. Prior to the issuance of a building or grading permit, the applicant must submit a comprehensive geotechnical investigation to the Building Department for review and approval. All applicable City and State building codes and seismic design guidelines will be applied through the issuance of a building permit, and therefore the proposed project will be sufficiently protected. 7. The proposed project does not have outdoor living areas and the City noise ordinance requires that interior noise levels must comply with the 45 CNEL or less standard. The applicant will be required to submit an acoustic study prior to occupancy of the residences that documents that interior noise levels meet this standard. 8. The parking lot as presently designed meets applicable requirements for reasonable and safe operations based upon the review of Planning, Public Works and Building Departments. Subtle alterations may be necessary to ensure adequate disabled access. 9. The Zoning Code requires a 6 -foot wide horizontal easement that is parallel to the bay and a vertical easement perpendicular to the bay from Newport Boulevard to the bay to be recorded. A recorded "offer to dedicate" the easement in lieu of actually establishing the easement is consistent with Coastal Commission guidelines and is satisfactory in this case due to the nature of the project and its location. Access from the site to the north or south along the bay is blocked and is not likely to be provided in the near future. The adjacent boatyard to the north cannot physically provide a safe connection to 2e street further to the north and the Hooter's Restaurant building provides no setback from the bulkhead. When the abutting uses redevelop, horizontal connections will be feasible and in the case of the Balboa Boatyard, a connection to a public street will effectively eliminate the need for the vertical easement on the subject property. Lastly, the project provides a residential component and security of the site is necessary. 10. Electrical and mechanical equipment are not shown on the plans and approval of the project is based upon an understanding that these devices be either located underground or concealed. Additionally, trash storage areas are not specifically delineated with the project and approval of the project is based upon an understanding that the areas will be either accommodated within the commercial spaces and residential garages, or within screened enclosures, and they will not be visible to the public except for trash - pickup. 11. No known archaeological and historical resources are known to exist and are unlikely to exist due to the nature of the site as a disturbed and partially filled site. 12. There are no abutting residential districts, and therefore the proposed project will not likely have a significant effect upon residences in the area. Use Permit 1. The proposed commercial space is 2000 square feet and is 25.5% of the total project square footage. This amount of area is not insignificant to the overall project. 2. That the proposed commercial spaces are large enough to accommodate viable businesses. The bayside suite is 1,000 square feet in area and can accommodate a small commercial venture. The location on the bay does not favor retail uses due to its lack of visibility to Newport Boulevard, but the suite is large enough to facilitate several offices. The streetside suite is 1,000 square feet and can accommodate a small business. The size of the suite would tend to favor a small office use, but due to the good visibility of the suite from Newport Boulevard, a small retail business is very possible. Strict compliance with the minimum commercial standard for a mixed use project would increase the parking requirement, and the increased commercial area and parking would most likely require a parking garage placing residences and possibly commercial space above. This design scenario would not be conducive to providing viable commercial spaces due to its potential separation from the ground or decreased visibility. The increase commercial space would also come at the expense of one or both residential units due to need for additional space to accommodate both increased commercial space and parking. 3. The site is designated for Recreational Marine Commercial uses by the General Plan. This designation was applied to waterfront commercial areas where the City wishes to preserve and encourage uses which facilitate marine commercial uses and a visitor serving orientation. Although residential uses are not addressed within the description of the RMC designation, the Canary Village/McFadden Square Specific Area Plan permits residential uses on the second floor above permitted commercial uses, and therefore the use is consistent with the General Plan. Although the introduction of new residential uses to the area could have an impact upon the preservation of the abutting boatyard and operation of the adjacent restaurant, residents of the facility will be afforded full disclosure of abutting uses before occupancy. Although expansion the adjacent boatyard would be precluded with the proposed project, the Balboa Boat Yard has been in operation for many years and its expansion is a private consideration and has not been sought. The proposed project will not preclude the continued operation of the boatyard. Therefore, the project will not be detrimental to the public health, safety, peace, morals, comfort, or welfare of persons residing or working in or adjacent to the neighborhood of such use; and will not be detrimental to the properties or improvements in the vicinity or to the general welfare of the city. �C _ Variance 1. The reduced landscape percentage is necessary in order to provide minimum required vehicular access and disabled access to the site. The site is 50 feet wide and has no alley access typical of the Cannery Village/McFadden Square Area. Without alley access to provide vehicle access from the rear or other site access from private property, access for vehicles and the disabled is must be through the front yard. This access requires a minimum of 29 feet in width which is 58% of the required front yard of this 50 -foot wide site. Strict application of the 50% required front yard landscaping standard would either eliminate complying disable access to the site from the sidewalk or create a substandard vehicular driveway which increases hazards. Safe vehicular access and minimum complying disabled access are higher priorities than the additional 20 square feet of landscaping which would be otherwise be required. Therefore, strict application of the landscaping and access standards in this case given the width and location of the property deprive the property owner of the privilege of developing his property in a manner consistent with other properties under the identical zoning classification. The project has an increased front building setback which increases the landscape area in front of the building although the increased area beyond the required setback cannot be used to technically meet the standard. The increased area will provide equal area to what would be required if 50% of the required yard were landscaped. Therefore, the project and variance approval meets the legislative intent of the code which is to ensure that adequate landscaping along the street is provided, and not constitute a grant of special privilege. CONDITIONS OF APPROVAL 1. This Site Plan Review No. 79, Use Permit No. 3685 and Variance No. 1239 shall expire unless exercised within 24 months from the effective date of approval as specified in Section 20.91.050A of the Newport Beach Municipal Code. 2. The development shall be in substantial conformance with the approved site plan, floor plans and elevations dates February 8, 2001, except as noted below. 3. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 4. The Planning Commission may add to or modify conditions of approval to this Use Permit or recommend to the City Council the revocation of this Use Permit, upon a determination that the operation which is the subject of this Use Permit, causes injury, or is detrimental to the health, safety, peace, morals, comfort, or general welfare of the community. 5. The applicant shall obtain a Coastal Development Permit from the California Coastal Commission prior to the issuance of any building or grading permit for the project. 6. The minimum elevation of the finished floor for project buildings shall be 9.00 above M.L.L.W. (6.27 Mean Sea Level). qt 7. The bayside structure is required to be protected with an automatic fire suppression sprinkler system subject to the review and approval of the Newport Beach Fire Department. 8. All trash areas shall be screened from adjoining properties and public streets. 9. The enclosed garages shall available for the exclusive use of the residential uses. No conversion of the garage spaces to other use shall be permitted. The open parking spaces shall be available for the exclusive use of the commercial businesses and customers while those commercial businesses are open for business. 10. The commercial spaces within the project shall not be converted or used for residential purposes. 11. The applicant shall submit a landscape and irrigation plan prepared by a licensed landscape architect or licensed architect for on -site and adjacent off -site planting areas. These plans shall incorporate drought tolerant plantings and water efficient irrigation practices, and the plans shall be approved by the Planning Director prior to the issuance of a building permit. All planting areas shall be provided with a permanent underground automatic sprinkler irrigation system of a design suitable for the type and arrangement of the plant materials selected. Planting areas adjacent to vehicular activity shall be protected by a continuous concrete curb or similar permanent barrier. Landscaping shall be located so as not to impede vehicular sight distance to the satisfaction of the Traffic Engineer. 12. All landscape materials and landscaped areas shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 13. The boat slips bayward if property shall only be used in conjunction with the proposed residential dwelling units. Commercial use of the boat slips is prohibited. 14. Prior to the issuance of building permits, the applicant shall record an irrevocable offer to dedicate a 6 -foot wide public access easement along the entire water frontage of the property and though the property to Newport Boulevard. The irrevocable offer to dedicate the assess easement shall be subject to the review and approval of the Newport Beach City Attorney and Coastal Commission prior to recordation. 15. The project must comply with the interior and exterior noise standards for residential uses of the Noise Ordinance. The interior noise standard is 45dBA between the hours of 7:OOAM and 10:00PM and 40dBA between the hours of 10:OOPM and 7:OOAM. The exterior noise level standard is 55dBA between the hours of 7:OOAM and 10:OOPM and 50dBA between the hours of 10:00PM and 7:OOAM. An acoustic study shall be performed by a qualified professional that demonstrates compliance with these standards of the Noise Ordinance. This acoustic study shall be performed and submitted to the City Planning Department prior to occupancy of the project. If the exterior noise levels exceed applicable standards, additional mitigation shall be required which may include the installation of sound wall in a location established by the acoustic study and subject to the approval of the Planning Director. 16. Each residential unit and each commercial building shall be served with an individual water service and sewer lateral connection to the public water and sewer systems unless otherwise approved by the Public Works Department and the Building Department. 17. Intersections of the private drive and Newport Boulevard shall be designed to provide sight distance for a speed of 35 miles per hour. Slopes, landscape, walls and other obstruction shall be considered in the sight distance requirements. Landscaping within the sight line shall not exceed twenty-four inches in height. 18. A condition survey of the existing bulkhead along the bay sides of the property shall be made by a civil or structural engineer prior to issuance of any grading permits, and that the bulkhead be repaired in conformance with the recommendations of the condition survey and to the satisfaction of the Building Department and Marine Department. The top of the bulkhead is to be a minimum elevation of 9.00 above M.L.L.W. (6.27 MSQ. 19. All improvements within the public right of way shall be constructed as required by Ordinance and the Public Works Department. 20. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. There shall be no construction storage or delivery of materials within the Newport Boulevard right -of -way. 21. Curbs, gutter and sidewalk shall be reconstructed along the Newport Boulevard frontage under an encroachment permit issued by the Public Works Department. All construction within the public right -of -way be subject to further review by the Public Works Department. An Encroachment Agreement shall be executed for all non - standard improvements approved to be constructed within the public right -of -way. 22. Arrangements shall be made with the Public Works Department in order to guarantee satisfactory completion of the public improvements, if it is desired to record a parcel map or obtain a building permit prior to completion of the public improvements. 23. A drainage study shall be prepared by the applicant and approved by the Public Works Department, along with a master plan of water, sewer and storm drain facilities for the on -site improvements prior to issuance of a grading permit. 24. The final design of all on -site parking, vehicular circulation and pedestrian circulation systems shall be subject to the approval of the Traffic Engineer. 25. The applicant shall provide wheel stops or other approved protective barrier methods as necessary within the parking facility. The parking spaces shall be marked with approved traffic markers subject to the approval of the Public Works Department or painted white lines not less than 4 inches wide. 26. Fair Share traffic mitigation fees shall be paid to the City prior to the issuance of any building or grading permit for the site. i 27. Any Edison transformer serving the site shall be located outside the sight distance planes as described in City Standard 110 -L. 28. The proposed project shall conform to the requirements of the Uniform Building Code, including State Disabled Access requirements, unless otherwise approved by the Building Department. 29. All mechanical equipment shall be screened from view of adjacent properties and adjacent public streets within the limits authorized by this permit, and shall be sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal Code, Community Noise Control. 30. Overhead utilities serving the site shall be undergrounded to the nearest appropriate pole in accordance with Section 19.24.140 of the Municipal Code unless it is determined by the City Engineer that such undergrounding is physically infeasible. 31. The residential units shall be constructed with heightened sound attenuation techniques beyond normal construction standards and said techniques shall be subject to the review and approval by the Building and Planning Department. The residential units shall be provided air conditioning units. �V Exhibit No. 4 Findings for Denial Site Plan Review No. 79, Use Permit No. 3685 & Variance No. 1239 1. Surrounding uses include a boat yard and a restaurant. The City has experienced in the past and continues to experience land use conflicts between residential uses and boat yards and restaurants. The adjacent boat yard is an intensive marine- related, industrial activity permitted within the RMC district that has the potential to cause nuisances to residents of the project in the form of noise, refinishing activities and motor maintenance. Introduction of the residential uses adjacent to this use will generate complaints and pressure to regulate the boat yard in order to make it compatible with the project. Potentially further regulating the adjacent boat yard. is contrary to the City's goal to preserve waterfront land for these necessary harbor activities. The adjacent restaurant is permitted to be open till 1OPM on Sunday, lAM Monday to Thursday and 2AM Friday and Saturday and is a permitted use. Activities within the restaurant as well as patron activity in the parking lot during the late night hours may become a nuisance to abutting residents. Permitting residences adjacent to the restaurant will generate complaints and increased pressure to further regulate the restaurant contrary to its permitted operational characteristics. Therefore, the proposed project is inconsistent with the abutting uses 2. The Zoning Code requires that a mixed -use project provide a minimum of 0.25 FAR in order to create viable commercial spaces. The proposed commercial spaces are not large enough to accommodate viable retail or marine - related businesses. The bayside suite is 1,000 square feet in area and due to its lack of visibility from Newport Boulevard, retail uses are unlikely. Although office the site is large enough for office uses, non - marine - related office uses are only permitted when 40% of the commercial area on the site is occupied with marine incentive use. Therefore, the marketability of the unit is very limited. The streetside suite is 1,000 square feet and due to its size, the suite would tend to favor a small office use rather than a retail use. The suite is located close to Newport Boulevard, and therefore has very good visibility, the size of the suite is very limiting for a retail establishment. Due to these limiting factors, compliance with the requirement that 40% of the commercial area be devoted to marine incentive uses is questionable. Larger and more viable commercial spaces will assist in compliance with the marine incentive use requirement. 3. The project site does not provide commercial parking at a retail/office ratio (1 space/250 sq. ft.). Therefore, a portion of the site will be limited to a less parking intensive use such boat sales. By not providing parking based upon 1/250 ratio, the use and leasing flexibility is limited. Providing limited parking and thereby limiting flexibility of uses that can occupy the site is detrimental to the community and surrounding business. This is especially true if a more parking intensive and complying use were to occupy the site generating a need for street parking. �l 5 A Exhibit No. 3 Applicant's request for amendment to Condition No. 14. 0 RUSSELL E. FLUTER 2025 West Balboa Blvd Newport Beach, CA 92663 949.673.3777 fax 949.673.3451 December 18, 2001 James Campbell, Planner City of Newport Beach RECEIVED BY 3300 Newport Blvd. PLANNING DEPARTMENT Newport Beach, CA 92663 CITY OF NEWpnRT BEACH Re: 2410 Newport Blvd., Newport Beach, CA AM JAM 1 6 2002 PM Use Permit No. 3685, Site Plan Review No. 79 Condition of approval #14 vertical access ?Id191101IIi 12111818141616 Dear Mr. Campbell: r Please remove your condition #14 (vertical access). The condition of vertical public access would be an unreasonable burden on my property. Additionally, adequate public access already exists nearby 50 feet to the North, the entire block (over 500 feet of bay frontage) is open to the public from 2e Street to 2e Street. The only way to provide the vertical public access through this property is shown on the plan, see attachment #3. The access would be hidden from sight and partly behind parking spaces, which would be unsafe because of cars backing out through the access walkway. There would be no way to provide security or to manage the access way, given the 2 new residences and commercial space on this long narrow lot. When the neighboring properties are redeveloped, gaining lateral access across the bay frontage of the property would be a much more reasonable way to plan for public access, using the street ends or larger projects for vertical access. After analyzing the California Coastal Commission Public Access Action Plan, and sections 30212, 30214 of the Public Resources Code, and reviewing the relevant facts and circumstances, I believe that vertical access on this property would also be considered unreasonable. The subject property is only 50 feet wide and 200 feet deep and is too narrow to provide vertical access. A 6 foot vertical access dedication would be 12% of the total property. The City code (see attachment #1) allows exceptions for public safety and where adequate nearby access already exists. Thank you for your consideration in waiving this vertical access condition, as it would create an undue hardship on the property. Sincerely, Re Fluter Attachments: 1. City Zoning Code, Page 20.60 -12, Site Regulations Paragraph C — Public Access to Bay Front 2. City of Newport Beach, Planning Commission Minutes, February 8, 2001 Paragraph 14 3. Plot plan showing vertical access. 4. Aerial photographs showing nearby access. City Zoning Code O Page 20.60 -12 i Site Regulations 2410 Newport Blvd. C. Public Access to Bay Front. in approving a site plan review or granting a use permit for development on a site with frontage along the bay, the Planning Commission shall require the dedication of vertical and lateral public access casements, cxce t where adequate public access already exists or where the provision of inconsistent with public safety or the protection of fragile coastal resources. The following standards shall be applied to all lateral and vertical public access casements: 1. Public access easements shall be a minimum of 6 feet in width. _ 2. Public access easements may be provided within required setback areas. 3. All dedicated public access casements shall be recorded with the Orange County Recorder's Office in a manner satisfactory to the Public Works Department. �b City of Newport Beach Planning Commission Minutes._ February 8, 2001 2410 Newport Blvd. 14. Prior to the issuance of building permits, the applicant shall record an irrevocable offer to dedicate a.6 -foot wide public access easement along the entire water frontage of the property and though the property to Newport Boulevard. The irrevocable offer to dedicate the assess easement shall be subject to the review and approval of the Newport Beach City Attorney and Coastal Commission prior to recordation. �1 T ¢N�11 plx�k Kuk a Exhibit No. 4 Sections 30212 & 30214 of the Coastal Act. 5 CALIFORNIA CODES PUBLIC RESOURCES CODE SECTION 30212 30212. (a) Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects except where (1) it is inconsistent with public safety, military security needs, or the protection of fragile coastal resources, (2) adequate access exists nearby, or (3) agriculture would be adversely affected. Dedicated accessway shall not be required to be opened to public use until a public agency or private association agrees to accept responsibility for maintenance and liability of the accessway. (b) For purposes of this section, "new development" does not include: (1) Replacement of any structure pursuant to the provisions of subdivision (g) of Section 30610. (2) The demolition and reconstruction of a single - family residence; provided, that the reconstructed residence shall not exceed either the floor area, height or bulk of the former structure by more than 10 percent, and that the reconstructed residence shall be sited in the same location on the affected property as the former structure. (3) Improvements to any structure which do not change the intensity of its use, which do not increase either the floor area, height, or bulk of the structure by more than 10 percent, which do not block or impede public access, and which do not result in a seaward encroachment by the structure. (4) The reconstruction or repair of any seawall; provided, however, that the reconstructed or repaired seawall is not seaward of the location of the former structure. (5) Any repair or maintenance activity for which the commission has determined, pursuant to Section 30610, that a coastal development permit will be required unless the commission determines that the activity will have an adverse impact on lateral public access along the beach. As used in this subdivision, "bulk" means total interior cubic volume as measured from the exterior surface of the structure. (c) Nothing in this division shall restrict public access nor shall it excuse the performance of duties and responsibilities of public agencies which are required by Sections 66478.1 to 66478.14, inclusive, of the Government Code and by Section 4 of Article X of the California Constitution. 5� CALIFORNIA CODES PUBLIC RESOURCES CODE SECTION 30214 30214. (a) The public access policies of this article shall be implemented in a manner that takes into account the need to regulate the time, place, and manner of public access depending on the facts and circumstances in each case including, but not limited to, the following: (1) Topographic and geologic site characteristics. (2) The capacity of the site to sustain use and at what level of intensity. (3) The appropriateness of limiting public access to the right to pass and repass depending on such factors as the fragility of the natural resources in the area and the proximity of the access area to adjacent residential uses. (4) The need to provide for the management of access areas so as to protect the privacy of adjacent property owners and to protect the aesthetic values of the area by providing for the collection of litter. (b) It is the intent of the Legislature that the public access policies of this article be carried out in a reasonable manner that considers the equities and that balances the rights of the individual property owner with the public's constitutional right of access pursuant to Section 4 of Article X of the California Constitution. Nothing in this section or any amendment thereto shall be construed as a limitation on the rights guaranteed to the public under Section 4 of Article X of the California Constitution. (c) In carrying out the public access policies of this article, the commission and any other responsible public agency shall consider and encourage the utilization of innovative access management techniques, including, but not limited to, agreements with private organizations which would minimize management costs and encourage the use of volunteer programs. y Exhibit No, 5 Memorandum to LCP Update Committee dated March 4, 2002. 51 CITY OF NEWPORT BEACH Office of the City Attorney TO: LCP Update Committee FROM: Robert Burnham RE: Coastal Act "Primer" DATE: March 4, 2002 The purpose of this memo is to provide the Committee with a summary of the law relative to exactions and provisions of the California Coastal Act (Act) and relevant decisional law that are pertinent to the preparation and certification of a Local Coastal Plan (LCP) under the. 1. EXACTIONS In Nollan v. California Coastal Commission (1987) 483 U.S. 825, the Supreme Court held that a public agency could require the dedication of property as a condition to the issuance of a permit unless there is a reasonable relationship or nexus between the exaction (condition) and a legitimate state interest. In Nollan, the Court found that the Coastal Commission had a legitimate state interest in preserving public access and view corridors to the coastline but that there was no "nexus" between this interest and a requirement that property be .dedicated for public use as a condition to the issuance of permit to remodel a beachfront residence. The Court concluded that the addition to the residence did not interfere with the State's interest so there was not a reasonable relationship (nexus) between the exaction and, the permit. In Dolan v. City of Tigard (1994) 512 U.S. 374, the Supreme Court found that a City's attempt to have a landowner dedicate property for bike path and flood management as a condition to issuing a building permit was a taking of property. The Court held that the exaction must be roughly proportional to the impact of the development. The City was ruled to have taken Dolan's property because it failed to prove that the impact of Dolan's business expansion on bike traffic and flooding was roughly proportional to the required dedication. The Nollan /Dolan cases, along with other rulings, would prevent the City from requiring certain dedications and would arguably prevent the S� Commission from denying certification of an LCP on the basis that public access provisions should require dedications under the conditions in Nollan /Dolan. 2. PROCESS FOR APPROVAL An LCP consists of land use plans, zoning ordinances, zoning district maps, and within sensitive habitat areas other implementation actions. The City submits an LCP for certification after approval by the Planning Commission and City Council. The Commission has ninety days to either certify or refuse certification. ( §30512 PRC). The Commission is required to explain why certification was denied and provide suggested changes that would, if approved by the City, constitute certification. ( §30512(b) PRC). The City may elect to address the Commission's decision not to certify in a manner other than as suggested and may then resubmit its revised LCP plan to the Commission. During the preparation and approval of any proposed LCP, the public and all affected governmental agencies shall be provided maximum opportunities to be heard.( §30503 PRC) The Commission can only disapprove an LCP on the basis it is not in conformity with Act. The Commission, in approving or disapproving a LCP, only enforces the Act and does not create or originate any land use rule or regulation. City of Chula Vista v. The Superior Court of San Diego (1982) 133 Cal. Rptr. 909. Although the Commission's powers are limited to enforcing the Act, this limitation may be more academic than real. As a practical matter, the Act allows the Commission broad leeway in deciding whether an LCP is in conformance with the policy provisions of the Act. The Commission is acting in a quasi - judicial capacity when reviewing an LCP. Therefore, the Commission must use its independent judgment when reviewing an LCP and may not rely upon the city's conclusions or findings. The courts have determined that "the commission must exercise its independent judgment to decide if such conformity has been achieved because that decision cannot be completely delegated to the local entity where it is likely to be subject to local economic and political pressures which cannot so readily influence the commission." City of Chula Vista v. The Superior Court of San Diego County (1982) 183 Cal. Rptr. 909. 3. REQUIRED ELEMENTS The City is responsible for determine the precise content of an LCP. ( §30500 PRC) but is required to address these provisions of; the Act. 6b A. Public Access. The Act provides that an LCP shall provide maximum public access to coastal resources consistent with public safety needs, rights of private property owners, and protection of natural resource areas from overuse. ( §30210 PRC). In addition, "Wherever appropriate and feasible, public facilities, including parking areas or facilities, shall be distributed throughout an area so as to mitigate against the impacts, social and otherwise, of overcrowding or overuse by the public of any single area." ( §30212.5). According to the Act, "development shall not interfere with the public's right of access to the sea. "( §30211 PRC). New development projects shall provide "public access from the nearest public roadway to the shoreline and along the coast" ( §30212 PRE). A new development does not include (a) remodeling or rebuilding of a single family residence so long as the floor area does not increase by more than 10% and (b) alternations to any structure so long as the use /intensity /footprint remains the same. In terms of coastal access, the LCP may contain policies that limit or restrict access based on topography, the site's ability to sustain intense usage, the presence of fragile natural resources, the proximity of the access area to adjacent residential uses, and protection of privacy of adjacent landowners. ( §30214 PRC). The Act provides that the public's access shall be "carried out in a reasonable manner - that considers the equities and balances the rights of the individual property owner." ( §30214 PRC). B. Recreation The Act states that "coastal areas suited for water- orientated recreational activities ... shall be protected for such uses." (§ 30220PRC) and the "use of private lands suitable for visitor- serving ...recreational facilities... shall have priority over private residential, general industrial, or general commercial developments, but not over agricultural or coastal- dependent industry." ( §30222 PRC). The Fortunately, the Act states that "increased recreational boating use of coastal waters shall be encouraged." ( §30224 PRC). C. Marine Environment. According to the Act, "marine resources shall be maintained, enhanced, and where feasible, restored. Special protection shall be given to areas and species of special biological or economic �1 significance." ( §30230 PRC). Improvements that alter natural shoreline processes are permitted when required to serve coastal - dependent uses or protect existing structures or public beaches in danger of erosion but must be designed to eliminate or mitigate adverse impacts on local shoreline sand supply. ( §30235 PRC). D. Environnemental Sensitive Habitat Areas (ESHA) According to the Act "ESHA shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas." ( §30240(a) PRC). The act states that development in areas adjacent to [ESHA] as well as parks and recreation areas shall be sited and designed to prevent impacts that would significantly degrade those areas and must be compatible with the preservation of those areas. The Commission is required to prepare a report that designates "sensitive coastal resource areas within the coastal zone" where the protection of coastal resources and public access is required. ( §30502(a)). The LCP must include implementation actions adequate to protect the coastal resources identified in this report. E. Development According to the Act, "new residential, commercial, or industrial development ... shall be located [within or next to] existing developed areas able to accommodate it" or other areas where it will not significantly adversely affect coastal resources. The LCP is not required to include housing policies and programs. ( §30500.1 PRC) i obert Burnham MO I Exhibit No. 6 Access map. 65