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HomeMy WebLinkAboutButler Residence (PA2002-037)CITY OF NEWPORT BEACH PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3229 PROJECT: SUMMARY: RECOMMENDED ACTION: APPELLANT: Introduction Hearing Date: Agenda Item: Staff Person: REPORT TO THE PLANNING COMMISSION Butler Residence (PA2002 -037) 911 W. Bay Avenue July 18, 2002 James Campbell (949) 644 -3210 14 days after final action Appeal of the decision of the Modifications Committee's approval of Modification Permit No. 2002 -018. Sustain, Modify or Deny Modification Permit No. 2002 -018. Robert Butler 911 W. Bay Avenue, Newport Beach This item was continued from June 20, 2002 at the request of staff due to the receipt of a 20 -page report with exhibits from the applicant on June 19, 2002. Insufficient time was available to review the applicant's report prior to the meeting in order to formulate a response. Several Commission members also expressed a need for additional time to review the submitted report. Discussion The applicant's report is attached as Exhibit No. 1. Staff has numbered each of the paragraphs for reference purposes and has prepared a corresponding response: Cl: This comment simply expresses an opinion and a statement of the purpose of the appeal. C2: The appellant is correct that the description in the application and the revised description contained in the May 8, 2002 approval letter are not identical. Both descriptions are contained within the exhibits to the June 6, 2002 Planning Commission staff report. The May 8"' letter clearly denotes that "request as modified and approved." At issue is the relocation of the second story deck railing within the required 10 -foot front yard setback contrary to Modification Permit No. 5080. The relocation of the railing extends the second floor deck within the setback. C3: This comment simply expresses an opinion contrary to staff s belief that all relevant facts were considered by the Modifications Committee and staff. C4: The background contained in the staff report is a summary of events related to previous approvals and was not intended to present all information. C5: On May 3, 2001, the Modifications Committee did approve Modification Permit No. 5080 subject to 4 conditions of approval. This approval is documented in the approval letter dated May 10, 2001. The appellant's "Exhibit No. 1" is not a copy of the application on file. A copy of the original application is attached as Exhibit No. 2 of this report. C6: through C9: These comments express testimony regarding an approved Modification Permit No. 5080, which decision was not appealed. This appeal is on Modification Permit No. 2002- 018, making the comments not relevant to this appeal. C10: MD2001 -073 was a request by the applicant to modify Modification Permit No. 5080 to allow the extension of the deck/patio cover within the eastern side yard setback. This request was denied by the Modifications Committee on June 27, 2001. The applicant again chose not to appeal the denial of MD2001 -073 but rather appealed the Director's determination that the modified deck was not in substantial conformance to MD No. 5080. The Planning Commission upheld the Planning Director's determination after a public hearing on July 19, 2001. The applicant did not appeal this decision to the City Council. It is important to note that the railing position, which is the subject of this present proceeding, was shown in compliance with Condition No. 3 of MD No. 5080 as it was not located within the required 10 -foot front yard setback. Staff understands that the deck railing was actually constructed in full compliance with MD No. 5080. The subsequent relocation of the railing 2' -10" north within the required front yard setback to the leading edge of the patio cover is the event that led to code enforcement activities leading to administrative citations and fines and this proceeding. Cl l: through C26: These comments express testimony regarding an approved Modification Permit No. 5080 which decision was not appealed. This appeal is on Modification Permit No. 2002- 018, making these comments not relevant to this appeal. C27: This comment simply expresses an opinion contrary to the facts that lead to the present proceeding. Staff did receive a complaint from Mr. Clary, a neighbor, indicating that the deck rail was moved. A review of the approved plans and a site visit confirmed this fact. A review of permit records found the lack of a permit to relocate the deck railing that extends the deck into the required front yard setback. Condition No. 3 of MD No. 5080 clearly prohibits the extension of the deck and rail within the required front yard setback. The applicant indicates in his application for the subject Modification Permit that "it was an oversight that a request was not made to move the railing to the edge of the extended deck patio cover." However, the fact remains that no approval was granted for the deck to extend into the front setback. C28: through C31: Staff believes that Condition No. 3 of MD No. 5080 is valid and the applicant should have contested the validity of the condition by filing an appeal in accordance with applicable provisions of the Municipal Code. Due to the fact that the applicant did not exhaust the administrative remedies available to him in accordance with Chapter 20.95 of the Municipal Code, staff considers the comments immaterial to this appeal. Buller Residence (PA2002 -037) July 18, 2002 Page 2 of 10 C32: Code Enforcement Supervisor Mr. J. Sinasek has issued 6 citations to the appellant for violations of MD No. 5080. Unpaid fines total $2,300 at this time. It is not the policy of the City to exonerate fines in conjunction with application requests. The City only exonerates fines when administrative citations are issued in error. It is staff's contention that the citations and fines were applied in accordance with established City policy for documented violations. The appellant has the ability to contest the citations and fines in accordance with the procedures outlined on the reverse of the citation. The appellant has not filed an appeal of the citations issued and in accordance with the provisions under "rights of appeal" failure to file an appeal within 15 days of the citation shall constitute a waiver of the right to an administrative hearing and adjudication by an administrative hearing officer of the citation or any portion of the fine. A blank copy of the administrative citation with the appeal provisions is attached as Exhibit No. 3. Staff believes the issue of the citations and fines should be disregarded. C33: & C34: These comments express testimony regarding an approved Modification Permit No. 5080, which decision was not appealed. This appeal is on Modification Permit No. 2002 -018, making these comments not relevant to this appeal. C35: Staff concurs that the subject application is a request to relocate the railing. C36: This comment expresses an opinion. C37: Exhibit No. 3 of the June 6, 2002 staff report is indeed not a photograph. Staff was attempting to point to Exhibit No. 5, which is the project plans that show the proposed location of the deck railing. Referring to the photographs contained in Exhibit No. 4 and applicant's Exhibit 2 also illustrates the position of the existing railing within the required front yard setback. C38: Staff understands that the subject application is an attempt to authorize the deck railing in its present condition. C39: Staff thanks the appellant for identifying the scrivener's error. The required front yard setback is indeed 10 feet as established by Districting Map No. 10. C40: The description of the deck with railing is an attempt to describe the location and width of the existing deck at the front of the building. Staff believes that the general description is reasonably accurate, however it is acknowledged that it is not exact. Based upon the submitted drawings, the railing is setback approximately 7 feet from the east property line and 3' -6" from the west property line. C41: Staff has reviewed the description of the portion of the deck that was disapproved with the description contained in the approval letter of MD2001 -018. Staff believes that they are consistent and staff agrees that both descriptions do not mention the railing. The elimination of the corresponding railing with the disallowed deck was the intent of the Modifications Committee according to Mr. J. Garcia, the Modifications Committee Chairman. References to "deck" and "deck extension" within Conditions 2 and 3 include the corresponding railing as it is a required element of the deck per the Building Code. Butler Residence (PA2002 -037) July 18, 2002 Page 3 of 10 5 C42: The Modifications Committee fully understood that the applicant did not consent to the removal of the deck surface as required by the Committee action on the application. The Modifications Committee was unable to make the finding that the location of the deck and railing as originally proposed by the applicant was not detrimental to the area. By reducing the size of the deck, the Committee was able to make the finding and approve the project. C43: The action on the subject application does have a legitimate public purpose. A Modification Permit requires a request must not be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the area or detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City. Further, a Modification Permit must be consistent with the legislative intent of the Zoning Code. This finding is broad and private issues have been considered historically with Modification Permit requests. Failure to make the finding of no detrimental impact in any application sets a precedent that has a wider public impact than the limited physical impact of the application. Through the exercise of discretion, the Modifications Committee felt that approval of the deck and rail in its present condition was detrimental to the abutting property. Additionally, they felt that approval of the request as proposed could set a poor precedent possibly to be used by other property owners or developers to propose future encroachments within front yard setbacks. Such requests over time erode the purpose and intent of establishing setback standards inconsistent with the legislative intent of the Zoning Code. C44: Previous approvals did not authorize the applicant to construct the deck railing in its present location within the required front yard setback. The applicant relocated the railing with the full knowledge that it was not permitted. Condition Nos. 1 and 3 of Modification Permit No. 5080 prohibited this action and the appellant has knowledge of these restrictions. Staff met with Mr. Butler on several occasions to clarify and design the conditions of approval. During one meeting in June of 2001, Senior Planner James Campbell told Mr. Butler that the railing could not be relocated to the leading edge of the deck without a Modification Permit and a Building Permit. Staff can only conclude that the appellant does not recall the meetings with staff or misunderstood the conditions of approval after clarification by staff. C45: Staff believes this comment is inaccurate and inappropriate. C46: During the April 24, 2002 hearing before the Modifications Committee, staff inquired of the appellant's representatives if they were empowered to accept a compromise design. Design modifications to reduce the eastern portion of the deck were generally discussed, but a specific design was not identified. Since the representatives lacked the authority to consider design modifications, the Modification Committee continued the item. Subsequent to the April 20 hearing, both Mr. Clary, the ap ieHant's neighbor and the applicant proposed design alternatives stemming from the April 24 discussion of design changes by the Modifications Committee. C47: A report of those discussions has been made in the response to C46 above. Although a report of the negotiations between the parties was not reported upon, the letters and sketches Butler Residence (PA2002 -037) July 18, 2002 Page 4 of 10 prepared by both parties is contained in Exhibit No. 3 of the June 6, 2002 Planning Commission staff report. C48: This comment seems to contradict the statement within C46 as it indicated that design alternatives were discussed. As noted in the response to C46, staff recalls that design alternatives were generally discussed. The illustration was a simple notation on the file copy of the plans indicating a point approximately 1 foot east of the doorjamb as a possible termination point for the deck and rail. The exhibit referred to in this comment (Exhibit 2) is the photograph of the deck and railing as it exists today and does not depict the location of the railing as approved by the Modifications Committee. Due to the change in the deck and rail required by the Committee and the lack of a plan for the modified project, the Modifications Committee included Condition No. 4 that required revised plans to reflect the modified deck. The revised plans have not been prepared to date. C49: The plans attached as Exhibit No. 5 of the June 6, 2002 staff report is a copy of the original plans submitted by the appellant. Exhibit No. 4 of this report is a copy of a portion of the first floor plan where Mr. Garcia indicated a point approximately l' -0" easterly of the doorjamb. Staff did not report the full extent of the negotiations to the Commission as it was not a central issue of the case. Staff believes that the responses contained within this report regarding this issue describe the negotiations that took place and assist in clarifying the actions taken by the Modifications Committee. C50: Staff concurs with this statement. C51: Staff indicates in the June 6, 2002 staff report that the actions of the Modifications Committee are reflected in the approval letter dated May 8, 2002. Staff did not restate or reanalyze the case for the Commission and simply refers the Commission to the record. C52: See response to C2 above. C53: The appellant is correct in that the deck/patio cover was approved through the approval of MD No. 5080, but the railing encroachment within the required front yard setback was not. The appeal of the Planning Directors determination of substantial conformance related to the horizontal extension of the decking to the east, not it's encroachment within the front yard setback. C54: Staff agrees that the primary subject of this proceeding is the location of the railing within the required front yard setback. The reduction and modifications of the deck are also relevant. The description included in the staff approval letter was not intended to be something more than what was under consideration. C55: Staff disagrees with this comment. C56: The removal of the denied 3'-4" horizontal extension of the deck satisfied MD No. 5080. Butler Residence (PA2002 -037) July 18, 2002 Page 5 of 10 q C57: The appellant has accurately stated the applicant's stated project description and justification from the application. C58: The approval letter dated May 8, 2002 provides partial relief to the applicant by approving the western portion of the existing relocated railing in exchange for a reduction in the deck and railing on the eastern portion. It was felt that the eastern extension of the usable portion of the deck by the relocation of the railing was detrimental to the abutting property. C59: Staff believes that the findings are relevant to the approval of the modified deck and railing. C60: This comment expresses an opinion contrary to the facts at hand in staff's opinion. C61: Staff believes it has investigated the facts of the matter as required. C62: The appellant has correctly cited a portion of the authority of the Modifications Committee contained within Section 20.93.020.B.1, with emphasis added. C63: The appellant has correctly cited Section 20.93.035, Duties of the Modifications Committee, Subsection A, with emphasis added. C64: The appellant has correctly cited Section 20.93.035, Duties of the Modifications Committee, Subsection D, with emphasis added. C65: The appellant has correctly cited Section 20.93.040, Required Findings for a Modification Permit, with emphasis added. C66: The applicant has cited Section 20.00.030, Effect and Intent of the Zoning Code, with emphasis added. C67: The applicant has cited Section 20.00.065, Rules for Interpretation of the Zoning Code Subsections A and D. C68: The applicant has cited Section 20.00.015, Purpose of the Zoning Code, with emphasis added C69: The appellant seems to be describing the specific encroachment in this case to be tied to the previously approved Modification Permit. The specific encroachment request is stated within the application for MD2002 -018 attached as Exhibit No. 3 of the June 6, 2002 Planning Commission staff report. Since this comment relates to the outcome of Modification Permit No. 5080, which the applicant chose not to appeal, staff considers the comment immaterial. C70: through C72: These comments relate to the outcome of Modification Permit No. 5080, which the applicant choose not to appeal; therefore, staff considers the comment immaterial as the appellant did not exhaust the administrative remedies available to him in accordance the Chapter 20.95 of the Municipal Code. C73: The majority of this comment relates to the outcome of Modification Permit No. 5080, which the applicant choose not to appeal, therefore, staff considers the comment immaterial, as the Butter Residence (PA2002 -037) July 18, 2002 Page 6 of 10 io appellant did not exhaust the administrative remedies available to him in accordance the Chapter 20.95 of the Municipal Code. The City contends that the removal of the 3'4" horizontal extension of the deck denied by the City satisfied the provisions of Modification Permit No. 5080. The location of the deck railing was in compliance with Modification Permit No 5080 as it was constructed per the approved plan and it did not encroach within the required front yard setback. The City contends that the deck railing was subsequently relocated without proper permits inconsistent with Modification Permit No. 5080, which the applicant now seeks relief through the subject proceeding. C74: Staff believes that the Modifications Committee discharged its duties as required by the Municipal Code and applied discretion in acting on the application which is necessary as the required finding for approval of a modification permit states that the request "may" be approved. Discretion is necessary due to the language of the required finding even though Section 20.93.035, Subsection D declares the actions of the Modifications Committee administrative acts. C75: See the response to C43. C76: Staff agrees with the first 3 sentences of this paragraph. The Modifications Committee disagrees, through its action on the subject application, with the appellant's contention that the deck extension as requested did not impact the neighbor's view. The Planning Commission can have a different opinion on this finding, which could lead to overturning the Modification Committee's decision to reduce the eastern portion of the deck. C77: See response to C43. C78: The findings contained within the approval letter dated May 8, 2002 contain sufficient facts to support Condition Nos. 2 and 3. The second sentence of Condition No. 4 allows for an extension of the requirement to timely obtain a building permit in the event that the permit be appealed or called for review by the Planning Commission, otherwise the applicant would have had to obtain a building permit for a modified project during the appeal process. C79: See comment to C43. Staff agrees that California law does not recognize a natural right to air, light or an unobstructed view. However, the required finding for the approval of a Modification Permit can be applied to regulate private issues if the requested Modification Permit is deemed detrimental to health, safety, peace, comfort and general welfare of persons residing or working in the area or detrimental or injurious to property or improvements. C80: & C81: A portion of these comments relate to the outcome of Modification Permit No. 5080, which the applicant choose not to appeal, therefore are not relevant to this appeal. Other comments make references to Variance requests, which is not the subject of this proceeding and is therefore not relevant. The statements indicating that the City has granted balcony encroachments within the front yard for other properties is not relevant as it does not address the required finding for approval and the specific circumstances of this case. For the Commission's consideration, the appellant submitted a photographic list of purported similar deck, balcony and awning encroachments to staff during the summer of 2001 as evidence that Butler Residence (PA2002 -037) July 18, 2002 Page 7 of 10 —7 the City has permitted similar encroachments. Staff investigated the claim and found that many of the cases were existing nonconforming conditions allowed to continue by right. The encroachments on Lido Isle were approved through a past blanket Variance issued in the 1960. Several of the reported instances were determined to be legal awning encroachments and several were found to be illegal and code enforcement activities were commenced. C82: The letter was not received by the Planning Department. C83: All due process requirements for Modification permits were followed in this case. Staff disagrees with the contention that the Committee was biased. In fact, staff believes that the impartiality of the process and decision is proven by the fact that a portion of the deck encroachment was approved, although the prior Modification Permit (No.5080) prohibited any encroachment for the deck. C84: Condition Nos. 2 and 3 grant partial relief that the application seeks and requires the modification of the eastern portion of the deck as indicated in Condition No. 3. C85: The present proceeding provides the applicant due process privileges. Staff believes that the appellant's rights have not been infringed. C86: Staff believes that the action of the Modifications Cornrnittee on May 10, 2000 is not material to the subject appeal. C87: No comment. C88: See response to C43. The Modifications Committee disagrees through its action on the subject application with the appellant's contention that the deck extension as requested did not impact the neighbor's view. The Planning Commission can have a different opinion on this finding, which could lead to overturning the Modification Committee's decision to . reduce the eastern portion of the deck. C89: This comment appears to be related to the previous comments related to Modification Permit No. 5080, which if this is the case, the comment is not relevant and Modification Permit No. 5080 is not the subject of this appeal. If the comment is directed to Modification Permit No. 2001 -018 (the subject application), the applicant was afforded the opportunity to discuss potential changes to the project before action was taken. C90: See response C43. C91: And C92: The Modifications Committee felt that further modification of the decking was necessary to avoid the future extension of the deck surface inconsistent with the approval of MD2001 -018. If an extension were completed, its location closer to the abutting neighbor and its use would impinge upon the view and privacy to the detriment of the neighbor inconsistent with the required finding for approval of a Modification Permit. The Committee believed that this future extension is probable given the specific circumstances of this case. Staff believes Butler Residence (PA2002 -037) July 18, 2002 Page 8 of 10 that there is a legitimate connection between the findings of fact and the condition requiring deck modification. C93: The appellant was afforded the opportunity to discuss and debate his current application, Modification Permit No. 2001 -0 18 with the Modifications Committee. The comment relating to Modification Permit No. 5080 is not material to the subject appeal. Please refer to response C81 regarding equal consideration. C94: Modification Permit No. 5080 did not authorize the deck railing to encroach within the required front yard setback. The appellant contends that the changes required in conjunction with the approval of Modification Permit No. 2001 -018 are not agreeable and unreasonable. An alternative resolution may be to overturn the approval of Modification Permit No. 2001- 018. This alternative will require the deck railing to be relocated to its approved position in accordance with Modification Permit No. 5080 and eliminate Condition No. 3 that would otherwise require changes to the eastern portion of the deck. This action will also preserve the view and privacy of the abutting neighbor. C95: The appellant's compromise proposal is outlined in a letter from Bernard Leckie dated May 3, 2002 to Mr. Jay Garcia. This letter is attached within Exhibit No. 3 of the June 6, 2002 Planning Commission staff report. As noted in response to C32, it is not the policy of the City to exonerate fines in conjunction with application requests. It is staffs contention that the citations and fines were applied in accordance with established City policy for documented violations. The Planning Commission has no jurisdiction over administrative citations or fines levied. Since the appellant has failed to file an appeal of the citations, staff is not aware of a remedy to the fines other than paying them even if the Planning Commission should choose to grant the appeal. Conclusion The appellant's report has not convinced staff to recommend that the Commission modify the decision of the Modification Committee related to the subject application. However, the Commission might not agree with the determination made by the Modifications Committee that the deck extension as presently constructed in noncompliance with Modification Permit No. 5080 is detrimental to the abutting property. If this is the decision of the Commission, staff recommends that the Commission modify the decision to approve the applicant's request. As noted in response C94, the Commission can deny the appeal and overturn the decision of the Modifications Committee and deny Modification Permit No. 2001 -018 if it is believed that the approved encroachments are detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the area or detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City or that the request is inconsistent with the legislative intent of the Zoning Code. Staff believes that facts are in evidence to support either conclusion. Butler Residence (PA2002 -037) July 18, 2002 Page 9 of 10 M Submitted by: PATRICIA L. TEMPLE ,TYP,lng 17- lurwect Exhibits Prepared by: JAMES W. CAMPBELL Senior Planner 1. Applicant's report dated June 18, 2002. 2. Modification Permit No. 5080 application 3. Administrative citation form (both sides) 4. Copy of a portion of the first floor plan with the notation showing a point approximately 1 foot east of the doorjamb, made by Mr. Garcia, Modifications Committee Chairman. Butler Residence (PA2002 -037) July 18, 2002 Page 10 of 10 1 t7 .l i .fi. _1 3 a J LAWRENCE.K DAVIDSON APPELLANT'S REPORT 537 NEwroRT CENTER DRIVE, srIITE 537 NEWPORT BEACH, CA 92660 (949) 500 -6275; FAX: (949) 496 -3711 Hearing Date: Jane 20, 2002 Agenda Item: Staff Person: James Campbell (949) 644 -3210 Appeal Period: 14 days after final decision APPEI i.ANM REPORT TO THE PLANNING COMMISSION BY PROJECT: Butler Residence (PA 2002 -03n PIANtJIrvGDEp�,R ?N9ENi 911 West Bay Avenue CITY 0� �- SUMMARY: Appeal of the Conditions Attached to Approval of ,jot � 9 CQ�2 PN1 Modification Permit No. 2002 -018 AM 111212 3 4 5 8 7 8191101 1 111111 RECOMMENDED Modify the Original Decision of the Modifriadons ACTION: Committee's approval of Modification Permit No. 2002 -. 018 APPELLANT: Robert S. Butler 911 West Bay Avenue, Newport Beach LOCATION: Approximately 200 feet west of the intersection of 9'e Street and Bay Avenue, Balboa Peninsula LEGAL DESCRIPTION: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West GENERAL PLAN: Two - Family Residence ZONING DISTRICT: R -2 (Two Family Residential) In order that the Planning Commission should have a complete understanding of this Appeal and to supplement the Staff Report to the Planning Commission that omits important information and evidence, Appellant, submits the following report so that the Planning Commission is fully informed about the circumstances of the case pending before it on this appeal. Introduction. This matter is basically a neighbor's complaint about Appellant's deck extension /patio cover project that encroaches into the front yard setback of the two family residence located at 911 West Bay Avenue, on the Balboa Peninsula. The neighbor's C complaint alleges that his private view from his adjacent property is negatively impacted by the project. The evidence refutes this claim. Notwithstanding the obvious di minimus impact of Appellant's deck extension /patio cover on the view, the neighbor has collaborated with City Staff to exploit and to misuse enforcement of front yard set back ordinances to Exhibit No. 1 June 16, 2002 Page 2 of 20 stop Applicant's project, to assess fines against Appellant for purported violations of Modification Permit 5080, and to otherwise harass Appellant causing interference with 011 contract rights and expense, and to deprive him from reasonable use of his property in violation of Appellant's constitutional, civil and property rights. The entire City process has so far reeked of manifest injustice and unfairness. The relief sought by this appeal is simply a correction of the injustices perpetrated in the name of orderly zoning practices. This conclusion is fortified with a brief examination of the Staff Report to Planning Commission. Under the section at page 3 of 4, the Staff alleges "The appellant has offered no facts to support [its] position." At the last sentence of this section, Staff states G+ 2 "The facts to support the approval of the modified project are contained within the attached approval letter (Exhibit 1)." Turning to Exhibit 1 you will observe that there is a statement of Original Request. Compare that purported request to the Project Description and Justification Exhibit 3 of the Modification Permit Application 5080A that is the Appellant's Request for Relief. The two requests do not match. As more fully appears below, Appellant contends that Staff has invented issues that are 1 irrelevant and not part of his request for action, and the Modifications Committee ignored C 3 the request for relief presented by Appellant. Therefore, the Staff analysis is irrelevant to the outcome of this Appeal. Y Procedural History of AgPlication• t The Staff Report to the Planning Commission presented background to this appeal. Because the Staff port omits material evidence about the background and because ff Cl I that information is necessary to serve fundamental justice in this appeal, Appellant has a right to present opposition to the conclusions presented by Staff and because Staff has `opened the door" to this inquiry. Modification Permit No 5080. On May 3, 2000 the Modifications Committee unconditionally and unanimously approved an encroachment into the front yard set back applicable to the two family residence at 911 West Bay Avenue, Balboa, GS California within the City of Newport Beach by means of Modification Permit No. 5080 based on the Application for Modification Permit that requested a "deck extension /patio cover". Copies of the Application and Permit are attached as Appellant's Exhibit No. "Y', and fully incorporated herein by this reference.' On the application Appellant clearly applied for modification of the front yard set back requirements to accommodate a deck extension /patio cover that was described in the application for relief from strict application of the Zoning Code, as follows: Project Description and Justification (describe briefly) Request to permit an G, encroachment f 4" beyond the permitted ease encroachment of 2 feet 6 inches into the required 10'f vntyard setback on Bay Ave. onpmpersy located in the R -2 District } 1 In the interests of saving space, all Appellant's Exhibits are fully incorporated herein by the reference to such Exhibits as'presented in this Appellant's Report as if fully set forth at the place of reference in this Report. i (Z June 16, 2002 Page 3 of 20 "deck extenrimlpatio ca»ee' ~' The reference to "deck extension /patio cover" is placed in quotation marks on the application because this description of the project was suggested by an employee of "y the City of Newport Beach on April 14, 2000. The evidence will show that Appellant went to City Hall to find out about requirements for his project, and (� he met with Eugenia Garcia. After discussing the project with her and the use that Appellant wanted, she suggested that he describe it in the request by personally hand writing the words: "deck extension /patio cover" on a copy of the Appellant's application. Fr_ om this point forward, Mr. Butler understood that the structure he was building was a "deck extension /patio cover" for purposes of the Modification Permit he applied to obtain. i This evidence is uncontroverted, Mr. Butler is prepared to testify as to the foregoing events, and Staff has ignored this claim through out this modification permit process! G1 Moreover, Staff has offered no credible evidence to rebut Mr. Butler's offer of testimony. Yet, this written request on the face of Mr. Butler's application for modification permit no. 5080 was somehow overlooked (or ignored ?) by Staff at the hearing on the application that was heard on May 3, 2000. The record is silent except for what is written on the application. With Appellant in attendance at the hearing for the application for modification permit, with no opposition presented to Appellant's request for action, with no testimony or evidence presented in opposition to the Appellant's application, and without any admonition by Staff conducting the hearing that the granting of the Modification Permit would ultimately have conditions attached that severely limited the scope of the request, the formal Modification Permit dated May 10, 2000 (seven days after the hearing) provided that the "patio, cover shall not be used as an extension of the existing second floor deck, unless an amendment to this approval is first obtained." (See condition no. 3, page 2 of the permit letter) Staff failed to disclose to Appellant, and to. the Planning. Commission' that the., conditions imposed on tins. original Modification Permit 5080 occurred after Staff," received two letters in opposition to the Appellant's application that arrived at City Hall after the May 3, 2002 hearing. The letters came from the owner and the tenant of Mr. Butler's easterly neighbor. They complained about interference with their private views resulting from Appellant's project After receiving these letters, Staff offered Mr. Butler no opportunity to refute the claims stated in the letters that were received after the May 3 hearing and before the Letter Dated May 10, 2000 was issued and executed by Eugenia Garcia, Associate Planner and Chair of the Modifications Committee. However, Staff did write a formal finding to Modification Permit 5080, as follows: MR C9 II? June 16, 2002 Page 4 of 20 "6. The proposed patio cover will not obstruct views from adjoining residential properties because: The view to the bay is not across the subject property, but straight out towards the street" CA A photograph of the view is attached hereto, fully incorporated herein by this (W;nL) reference as Exhibit "2". Staff did not include this photograph in your Planning Commission packet for this hearing tonight •. �r.•• - • It II 1 This disapproved request from Appellant was to allow the extension in width of the previously approved solid roof patio cover. Since the request was denied, Appellant removed the extension portion of the "deck extension /patio cover" approved in C I0 Modification Permit 5080 to comply with the decision after appealing the decision to the Planning Commission. Once there, Staff characterized the issue as whether the plans that were submitted for Modification Permit 5080 were substantially the same as the plans on which the Building Permit was issued. The Staff Report states, at the bottom of page one: "During construction, staff discovered an inconsistency between the approved Modification Permit and the building plans. The Planning Director determined that the building plans were not in substantial conformance with Modification Permit No. 5080." Appellant sets forth the following points to refute the conclusion presented by the Staff report; to itemize evidence that Staff failed to disclose in prior administrative hearings; and to organize the opposition to the Modification Permit that was conditionally granted on May 8, 2002: On or about May 24, 2001, Appellant attempted to verify whether or not there was any discrepancy between the Modification Permit and the Building Plans that were approved on August 10, 2000, September 7, 2000, November C 1 13, 2000, and December 20, 2000. Mr. Butler contends that the plans submitted on August 10, 2000, substantially conformed with the Modification Permit 5080. In response to his inquiry, Mr. Butler received a letter from Faisal Jurdi, P.E, C.B.O., and Deputy Building Director for the City of Newport Beach. A copy of the original of the letter Mr. Butler received is attached hereto; and C 2 fully incorporated herein by this reference as Exhibit "311. Mr. Jurdi stated, "We no longer have the drawings you initially submitted into plan check on August 10, 2000." The City lost the proof Mr. Butler had, besides his Iq 1 June 16, 2002 Page 5 of 20 testimony, that what he submitted substantially complied with the Modification Permit 5080. The basic evidence necessary to determine whether the Modification Permit and building plans are consistent is gone! This contention was raised earlier in these proceedings concerning 911 West Bay Avenue. On June 6, 2001, Bernard A. Leckie, counsel for Mr. Butler, wrote Dennis D. O'Neil, Esq., City Councilman for the City of Newport Beach about this problem describing it as a "tempest in a teapot" A copy of this letter is attached hereto, marked Exhibit "4" and fully incorporated herein by this reference. Appellant apologizes for the quality of this copy, but it came from the files of the City of Newport Beach. A copy of this letter was included by Staff in its Report to the Planning Commission on an appeal heard July 19, 2001 on an issue narrowly defined bj Staff as a question of substantial conformance between the two sets of plans. However, Staff omitted any reference to the fact that the original building plans that were filed August 10, 2001, were lost Moreover, Staff never mentioned that material fact in its report to the Planning Commission. Moreover, when Dennis D. O'Neill faxed the Letter from Bernard A. Leckie to Sharon Wood, Patty Temple, and Jay Flbettar he sent a companion email that was not disclosed to the Planning Commission and was not in the file on the date Mr. Butler inspected it See the last page of Exhibit "4" for the reference to the emailed message. Neither Staffs Report to the Planning Commission nor the Minutes from the July 19, 2001 hearing report about the loss of the plans upon which the decision turned. How could Staff narrowly characterize the issue as being merely to compare two sets of plans when it knew in May, 2001 that the most important evidence of what was submitted to the Building Department was lost? Additionally important in the Leckie Letter dated June 6, 2001 is the disclosure at paragraph 3, page 2 that the City cannot find the original plans for the project Therefore, the Staff should have brought this fact to the Commission's attention so it could have disbursed substantial justice or at least interviewed witnesses. Dennis D. O'Neill had presented the letter to Staff well before the hearing on June 11, 2001. C13 CA4 GIs C16 Instead, Staffs July 19, 2001, Report under "Analysis" simply states that "[s]taff believes that the building plans were issued in error." The report G �) "covers -up" the embarrassment associated with having lost the original plans at the Building Department The Planning Commission relied on the facts before it. on July 19, 2001, and C 1S it acted without knowledge that the City had lost the plans. Chairman Tucker stated, "That if a plan had not been submitted that was different than l5 7 June 16, 2002 Page 6 of 20 what the Modification application showed, staff would not have been in a position to make an error." Yet Mr. Tucker did not know at the time he chastised Mr. Butler at the July 19, 2001 hearing, that the Building Department Staff had lost the plans that G 9 were submitted for the Building Permit, so, Mr. Tucker could not be sure why staff was in a position to make an error. It is submitted that the embarrassment associated with the loss of the initially approved building plans has tainted these hearings and makes it impossible for Appellant to have a full, fair and impartial administrative hearing before 1C, the agencies of the City of Newport Beach because city staff is alienated against him Moreover, Mr. Tucker (consistent with the theory espoused, above) goes on to say (as reported from the minutes of the meeting), "The question comes [sic] is the burden going to fall on the person who submitted a plan that was not consistent with the Modification permit or is it going to fall upon the City and the public? That is what the Commission will weigh and decide tonight." Unfortunately, Mr. Tucker apparently placed the burden of proof on Mr. Butler to produce the plans he had filed with the City of Newport Beach. Staff did not inform the Commission that those plans were lost as of May 24, 2001, a date that is eight (8) weeks prior to the Thursday, July 19, 2001 hearing on the issue that Staff narrowly defined. Because the City lost the plans, it was impossible for Mr. Butler to prove that what he submitted for his modification permit was in substantial conformity with the plans issued by the Building Department. Moreover, once the August 10, 2000 plans were lost, it became impossible for Building Department Staff to compare the approved lost plans against those that the Building Department subsequently approved on September 7, 2000, November 13, .2000, and December 20, 2000 when they were submitted for minor revisions. C21 Cv� In summary, there is no competent evidence that shows that the plans that Appellant submitted on August 10, 2000 were not in substantial conformity G23 with the Modification Permit; therefore, the Staff conclusion is not based on credible, substantial evidence. Since the conclusion is incredible, it is false and misleading. The June 6, 2002, Staff Report to the Planning Commission continues: "The applicant Sled an appeal of the substantial conformance determination, which was considered by the Planning Commission on July 19, 2001. The Planning Commission upheld. the Director's determination. The applicant decided not to pursue further appeals W June 16, 2002 Page 7 of 20 and changed the project to comply with Modification Permit No. 5080. Of course, that is what happened; however, as discussed above, the Planning Commission did not have all the evidence for full and fair consideration of the appeal, and the next door neighbor, Michael Clary, stated (at the bottom of the C, 7,q Planning Commission Minutes, at page 32), "However, we do object to the 3' — 4' foot extension to the east of the patio cover that was not approved by the Planning Department. Both the extension of the deck and the patio cover do impact our view corridor. We agree with the Modification Committee who unanimously disapproved the northeast comer ofthe patio cover and ask that it be removed." So, Appellant removed the northeast comer to satisfy what Mr. Clary wanted, and so, "applicant decided not to pursue further appeals and changed the project to G25 comply with Modification Permit 5080." The Commissions' collective attention is directed to Appellant's Exhibit "2" that shows the view impact Mr. Clary refers to in his testimony. Appellant simply sought a practical way to placate his neighbor's complaints and he relied on what that neighbor told the Planning Commission in removing the northeast comer of the structure at a cost of approximately $1,600.00. Additionally, by this time litigation over a revoked building permit that had been initially granted involving residential property in the neighboring city of Costa Mesa was settled. C2L Appellant Butler was aware that notwithstanding a substantial payment by the City to avoid further litigation, attorney fees incurred by the property owner were in the neighborhood of $41,000.00. Appellant decided it was in his interest and the public interest to avoid pursuing that kind of costly controversy in fight of the comments by Mr. Clary at the Planning Commission hearing that he would be satisfied with removal of the northeast comer of the patio cover. The June 6, 2002, Staff Report to the Planning Commission continues: "After receiving complaints from neighbors, staff determined that the second floor deck railing above the patio cover was moved from the permitted location to the leading edge of the structure within the front yard setback without the benefit of permits. Condition No. 3 of Modification Permit No. 5080 specifically prohibits this activity without fast obtaining an amendment to the permit. The applicant indicates that it was an "oversight" that he neglected to request permit in advance of the alteration of the deck railing." This statement is a conclusion that is not based upon any objective evidence; CT7 therefore, the Planning Commission should ignore it First, as discussed above, the existence of Condition No. 3 is suspect and probably invalid for lacking any connection to any public purpose that is required under the C2Qj Municipal Code of the City of Newport Beach (See Municipal Code Sections 11 :J .J June 16, 2002 Page 8 of 20 20.01.030; 20.093.040; 20.01.015). No legitimate government interest is advanced with this type of action. The Modifications Committee failed to make aV individualized determination that the condition is related both in nature and extent to the impact of the proposed deck extension on the public. Moreover, the Modifications Committee misled Appellant about whether there would be any conditions to the Modification Permit. -Since there is no impact on the public from the deck extension /patio cover that was, the subject of Modification Permit No. 5080, the condition is invalid as unlawful. The City needs to show that there is some essential connection between public interest and the condition numbered .3. The Modifications Committee has the burden of making this showing since there now have been fines levied against the owner for failure to comply with the condition; and although there can be no precise calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. Otherwise the condition is invalid, and rroid ab ixitio. Since. Condition No. 3 to Modification Permit 5080 is- void, the fact that the patio cover was used as a deck extension is a permitted use and not an unlawfuil use. If the Modifications Committee intended to make use as a deck extension unlawful, it should have provided notice and opportunity for the Appellant to be heard on the subject, and the Modifications Committee should not have based their decision on the private rights reflected in the letters received after the public hearing. If the committee makes ex pane communication by letter after public hearing the method of choice, all future decisions of the Modifications Committee could, theoretically, be influenced by secret letters from constituents upset about issues pending before the committee. Such a practice undermines the notion of open and public meetings that is the standard operating procedure of California municipal meetings, by law. This rule has particularly important application in this pending Appeal because beginning on October 10, 2001, and on October 31, 2001, and on November 7, 2001, and finally. on November 9, 2001, Appellant was cited City employee J. Sinasek, ID # 2707 for violating conditions one and three of Modification Permit 5080. Since condition one is substantial compliance with filed plans, and since the filed plans are lost by the City, this condition should be eliminated on the grounds that the City lacks evidence necessary to prove its case. Further, since condition 3 is invalid as fully discussed above, there can be no condition that Appellant has violated. So one element of relief requested through this appeal is for release and exoneration of the Administrative Citations so that Appellant is no longer liable for fines exceeding $1,600.00. See Appellant's Exlubit KT' for details of the citations. C25 C (sr4iftuej) C261 CS C31 C 32 i 7 l June 16, 2002 Page 9 of 20 Moreover, the source of the land use requested by Appellant with Modification Permit 5080 was the handwritten note by Eugenia Garcia on the copy of the original application Appellant retained for his files. As an employee of the City, it is hard to imagine that Ms. Garcia did not understand what the specific use was that Mr. Butler requested. Indeed, she must have understood it so well that she wrote it in her own handwriting for Mr. Butler to remember. She also was giving Appellant information as to how he should complete his application for a Modification Permit to obtain the right to have a deck extension /patio cover penetrate into the front yard set back. It is hard to imagine that Mr. Butler would ignore her advice; so, it is reasonable to conclude that she intended that he follow her advice and he would rely on it On the other hand, Mr. Butler had no idea that the Modifications Committee would apply conditions to his deck extension /patio cover that would convert the application into exclusively a patio cover, and Ms. Garcia never suggested that his permit would be conditioned in a way that would take -away one of the uses he applied to have. Finally, Mr. Butler paid the filing fee and commenced the process that ultimately injured him by compelling him to pay miscellaneous fees for appeals and further modification permits, engineering fees, increased construction costs, and fines that were levied by the City of Newport Beach for purported failure to comply with Condition No. 3 of Modification Permit 5080. So, it was hardly an "oversight" about the railings. The Condition No. 3 is unlawful and void. It does not exist. Mr. Butler was misled by the City Staff into believing that he was applying for a deck extension /patio cover when City Staff began secretly treating his application as only for a patio cover after complaint letters were received objecting to the Modification permit on private view interference grounds and after the hearing and evidence gathering was closed. Moreover, the request to relocate railings is a request for action filed February 19, 2002, a date over six months after the June 27, 2001 Modification Committee and the July 19, 2001 Planning Commission meeting. The June 6, 2002, Staff Report to the Planning Commission continues: fgbe project consists of the retention of the second floor deck and 3 deck railing within the front yard setback. Copies of the deck are attached as Exhibit No. 3. The railing currently encroaches 2 feet, 10 inches within the required 5 -foot front yard setback. The 36" high railing is constructed of wood with glass or acrylic panels and extends from the western budding wall across the face of the building to approximately 7 feet from the eastern property line." -� This statement is not accurate and represents conclusions of the preparer of the report. First, Exhibit 3 to the Staff Report to the Planning Commission is not a photograph. Once again the Commissions' collective attention is directed to Appellant's Exhibit u2" which shows the deck as it currently exists. Appellant's Exhibit i°2" was taken r C33 G 3L! G35 Cato C31 a F June 16, 2002 Page 10 of 20 } from the City's file on this application, and Appellant does not know who actually prepared the photograph. It is an unbiased depiction of the area where the deck extension /patio cover is located. g. Second, the project description and justification is described on Modification Permit C 38 No. 5080A which is the attempt by Appellant to amend Modification Permit No. 3 5080 to conform to existing conditions on Appellant's property and in the ;` neighborhood. This application was filed February 19, 2002. _1 Third, the front yard set back applicable to the subject residence is ten feet not 5 C39 feet as the Staff Report states on page 3 of 4 under "project Overview." Fourth, the railing does not extend from the western building wall across the face of the building to approximately 7 feet from the eastern property line. Exhibit "2" GLID shows how the railing appears today. Moreover, Staff neglected to add that the side yard set back is three feet. .`) The June 6, 2002, Staff Report to the Planning Commission continues: "The Modifications Committee acted to approve only a portion of the } requested encroachment. The easterly portion of the deck (approximately 9 feet) was disallowed due to its proximity to the neighbor to the east. The deck surface was also required to be eliminated with the structural elements allowed to remain so that relocation of the railing would not readily occur in the future. Staff felt that this condition requiring removal of the decking material is an important safeguard, given the history of this project. The changes to the applicant's request were trade due to a belief that the design and i location of the deck as requested would prove detrimental to the y abutting property to the east. Locating the encroachment further to the west avoids imposing upon the view and privacy of the abutting i property." This statement is totally misleading without an illustration. Please refer to Exhibit "2" and note that no part of the deck extension penetrates into the side yard set 3 back. What Staff is suggesting is that the Modifications Committed disapproved of C4 the location of railing on part of the deck, but Staff fails to accurately describe what .� portion of the railing. Moreover, Appellant never requested or consented to removal of the deck surface. Finally, Staff clearly admits by this statement that the City of Newport Beach is J placing the full force and effect of its laws and law enforcement mechanism behind C y 2 protecting the private property rights of adjacent owners who contend that the Appellant's approved project interferes with the view from their residence. This description of Staff's intent and activity does not attempt to justify their actions to enforce private property rights. It clearly is not a public necessity, and there is I June 16, 2002 Page 11 of 20 clearly no connection with any public purpose whatsoever with this action. The Staff recommendation is lawless. Moreover, it punishes Appellant for building a structure that the City authorized him to build and led him to believe would be permitted if he only applied for a CA Modification Permit. Appellant did not build this structure without complying with all applicable Hiles and ordinances as they were explained and presented to him. But, Staffs report leaves all of this information out of its report; therefore, the Planning Commission is, once. again, operating with biased information collected Cris impatiently by a biased staff seeking to inflict harm and to harass Appellant without any rational reason whatsoever. These changes were never discussed with Appellant Indeed they were never discussed at either hearing on April 24, 2002 that was continued to seek authority Coto from Appellant to adopt a settlement resolution proposed by Jay Garcia, Planning Director. Unfortunately, Staff failed to report on the April 24, 2002 hearing to the Planning Commission, and there is no report about the discussions attempting to settle the MI issues. At that hearing Mr. Garcia suggested relocating the deck railing to a point about one foot east of the sliding glass door jamb on the deck. That relocation was illustrated by Mr. Garcia on the plan in the custody of the City. The relocation appeared as a G4� 90 degree turn of the railing south to its original location to align with the existing railing on the portion of the deck extension that is located within all applicable set backs and therefore, does not require a modification permit. See Exhibit "2" for illustration of that railing movement. Mr. Garcia actually "wrote and drew" his suggestion on the copy of the plans submitted by Appellant for the Modification Permit. However, mysteriously Exhibit C� No. 5 to the Staff Report fails to show Mr. Garcia's notations that he made on the City's File Copy of the Plans during the April 24, 2002 proceedings. Staff has not reported that event to the Planning Commission. This hearing was continued to enable counsel for Mr. Butler to get his authority to C150 accept Mr. Garcia's suggestions or to allow submission of another idea from the Appellant The June 6, 2002, Staff Report to the Planning Commission continues: `"The facts to support the approval of the modified project are contained within the attached approval letter (Exhibit No. 1). As of the drafting of this report, the appellant has not presented any additional information relative the [sic] required finding above." Z1 3 June 16, 2002 Page 12 of 20 By now it should be obvious that Staff merely quoted the municipal code section G5) without analysis of whether Staff or the Modifications Committee fulfilled the mandate to develop all facts necessary for a just and fair result. The Staff Report merely "defauhs" to the so- called Approval Letter. The approval letter mis- states the Original Request that is on appeal to the Planning Commission: The original request filed on February 19, 2002, states: "For permission to retain in place the patio cover /deck railing which was moved when patio cover /deck was extended 2' 10 ". It was an oversight that a request was not made also to move the railing to the edge of the extended deck patio cover. It is prayed that the railing as it now exists be approved as located presently." C52 The staff letter states that "Request to allow the retention of a deck extension completed without benefit of a building permit. The deck area was formerly a solid roof patio cover encroaching 2 -feet 10- inches into the required 10 -foot front yard setback. The extension increases the depth of the deck 2 -feet 10- inches and maintains the required 3 foot side yard setbacks. The property is located in the R -2 District Appellant submits that he was not requesting this relief at all. It is submitted that Staff invented this request to satisfy themselves. The question of retention of the deck extension /patio cover was decided when the Modifications Committee approved the application to permit a patio cover to encroach 2 feet 10 inches into the required 10 foot front yard set back under Modification Permit 5080. Subsequently, the Planning Commission wrote to Appellant stating "Please be advised that the Planning Commission at its meeting of July 19, 2001, denied your appeal of the Planning Director's decision related to Modification 5080 (PA2001- 118)." That appeal was described in the letter from the Planning Commission dated August 24, 2001, as an appeal "of Director's determination that changes to an approved project were not in substantial conformance with the previously approved plans (Modification Perintit 5080). C 53 The only issue before the Modifications Committee that was requested by Appellant is the location of the deck railing. Yet Staff seeks to turn this C1514 proceeding into something more as is reflected May 8, 2002, Modification Permit No. MD2002 -018 (PA2002 -037). Staff is cleverly manipulating the Planning Commission Agenda with their reports that fail to accurately reflect the request from the Appellant that was C55 presented to the Modifications Committee on June 27, 2001. 2� June 16, 2002 Page 13 of 20 That denial of Appellant's request for Modification was satisfied when C56 Appellant removed a portion of the deck extension to remove the approximately 3 -feet flinches easterly extension of the deck extension /patio cover. So, the issue stated by Staff is not part of this pending appeal. This } proceeding is a request. "For permission- to retain in place the patio cover /deck railing C57 t which was moved when patio cover /deck was extended 2' 10". It was an oversight that a request was not made also to move the railing to the edge of the. extended deck patio cover. It is prayed that the railing as it now exists be approved as located presently." r So, the purported approval letter dated May 8, 2002 does not even cover the relief requested by Appellant! Your attention is directed to Staff Report Exhibit 3 that is the Application and correspondence considered by the C, E)& Modifications Committee. By inspecting the document one will observe that y the issue before the Modifications Committee was railing location; not retention of a deck extension. Therefore, all of the Findings Nos. 3, 4, 5, 8, 9, 10, 11, and 13 are irrelevant GScl and not related to the railing relocation request. It therefore follows that the Staff Report to the Planning Commission not only fails to report facts to the Commission, it is totally irrelevant as being CLO based on a letter that does not pertain to the request for relief submitted by the Appellant. Apparently Staff has made no independent investigation into this matter as col required by the Municipal Code more fully set forth below. Whenever a s+rict interpretation of the provisions of the Municipal Code for the City of Newport Beach, or its application to any specific case or situation would preclude a reasonable use of property not otherwise permissible under Clot, existing regulations, the Modifications Committee may grant approval of such modifications relating to required building setbacks in front yards. (Chapter 20.93, Section 20.93.020 (B) (1) of the City of Newport Beach Zoning Code (referred to as "Zoning Code')) Duties of the Modifications Committee S5 .1 l June 16, 2002 Page 14 of 20 i A. Investigation. The Modifications Committee shall cause to be made, by its own members or its respective staffs, such investigation of facts bearing upon such application as will serve to provide all information necessary to assure that the action on each application is consistent with the intent of this section and sound planning practices. 3 } D. Administrative Act. The granting of any modification permit, when conforming to the provisions of this code, is declared to be an administrative function, the authority and responsibility for performing which is imposed upon the Modifications Committee and the Planning Director and the action thereon by the Modifications F Committee or Planning Director shall be construed as administrative acts performed for the purpose of assuring that the intent and purpose of this code shall apply in special cases, as provided in this section, and shall not be construed as amendments to the provisions of this code or the ., districting map of the City. (Ord. 97 -09 Exh. A (part), 1997) [emphasis added] Section 20.93.040 Required Findings. A. In order to grant relief to an applicant through a modification permit, the Modifications Committee shall find that the establishment, maintenance or operation of the use of the property or building will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed modification is consistent with the legislative intent of this Code. (Ord. 2001 -18 § 2 (Exh. ZA -3) (part), 2001; Ord. 97 -09 Exh. A (part), 1997) Section 20.01.030 Effect and Intent. When interpreting and applying the provisions of this Code, it shall be held to represent the minimum requirements adopted for the promotion of the public health, safety, comfor,4 convenience and general welfare. It is not intended by the adoption of this Code to repeal or in any way to impair or interfere with any existing provision of law of the City, or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the erection, construction, establishment, moving, alteration or enlargement of any legal building or improvement; nor is it intended by this Code to interfere with or annul any easement, covenant, or other agreement between parties; provided, however, that in cases in which this Code imposes greater restrictions than are imposed or required by other easements, covenants or agreements, than in such cases the provisions of this Code shall control. (Ord. 97 -09 Exh. A (part), 1997) cl3 C&q CJ05 N June 16, 2002 Page 15 of 20 Section 20.01.065 Rules for Interpretation. ' A. Zoning Regulations. Where uncertainty exists regarding the interpretation of any provision of this Code or its application to a specific site, the Planning Director shall determine the intent of the provision. OV-1 C. Appeals. An interpretation of the zoning regulations or districting map by the Planning Director may be appealed to the Planning Commission, as provided in Chapter 20.95. (Ord. 97 -09 Exh. A (part), 1997) t Section 20.01.015 Purpose. > This Code is intended to promote the growth of the City in an orderly manner and to promote acid protect the pubffcheWth, safety, peace, comfort eadgeveral Gl oa welfare, and to protect the character and social and economic vitality of all districts within the City, and to assure the orderly and beneficial development of such areas. } (Ord. 97 -09 Fxh. A (part), 1997) e ent: The specific encroachment in this case was for a building structure that is described ' as a deck extension /patio cover. This description was negligently omitted by Staff from the Modification Permit that was originally issued in this case when Staff described the modification requested as merely "to permit a patio cover to encroach 2 feet 10 inches into the required 10 foot front yard setback." (Modification Permit C (9 No. 5080, granted May 3, 2000) Since the occurrence of that self - serving act perpetrated by Staff on or about May 10, 2000, the administrative record in this case . has become hopelessly confused and distorted so that it is impossible for Appellant to receive a fair and impartial hearing that comports with fair administrative procedures as required by law. 3 i Indeed, the source of the characterization of the requested encroaching structure actually came from a former City employee named Eugenia Garcia who personally wrote the words: "deck extension /patio cover" on a copy of the original Application for Modification Permit No. 5080 that Appellant has in his possession. This same municipal employee personally informed Appellant that upon payment of the filing fee and filing of the application for a modification permit, the permit should be granted. This statement misled Appellant into believing that the structure he could build would be a combination structure entitled "deck extension /patio cover." This confusion began on April 14, 2000 when Appellant met with the municipal employee about his contemplated project. Appellant has continued to believe what he was told by the City's employee, to wit: his application involved a deck extension and a patio cover. That request for Modification Permit 5080 was in fact unanimously and unconditionally granted without opposition on May 3, 2000 at the public hearing on the application. In addition, the Modifications Committee gave no admonition to Appellant, at the hearing, or on the record that the granted permit would contain 00 25 l June 16, 2002 Page 16 of 20 conditions; and, Appellant received no notice at the hearing that the Modification Permit would be conditional. The fact that the city would make the modification permit conditional was not dearly stated. Subsequently, and secretly the Modifications Committee attached a condition to the unanimous approval. It is this ul I practice that we object to having. This condition that was created unilaterally by the Modifications Committee, in the absence of notice and without granting Appellant an opportunity to be heard on the fairness and justice of the condition. Moreover, CGI' M the offensive condition was inserted into the written report of the Modification Permit by Staff after receipt of two complaint letters from the owner and his tenant living at property east and adjacent to Appellant's residence. The timing of these actions suggest strongly that Staff reacted to the neighbor complaints about view impact and that those complaints designed to protect private rights formed the basis for the conditions inserted into the written permit after the CA 2 hearing was completed and the Modifications Committee voted 3 ayes and 0 noes to approve the application without revealing or discussing any conditions to the permit. This conduct reflects that the Committee acted in an arbitrary and high -handed manner. At this time, Appellant has suffered fines levied for having a structure built without a building permit because the initial entitlement derived from the Modification Permit 5080 contained a post - hearing, secretly inserted condition that the proposed patio cover shall not be used as an extension of the existing second floor deck unless an amendment to Modification Permit 5080 is first obtained. That condition has been subsequently cited by the City in its governmental action of fining Appellant for L13 failure to follow the condition of his entitlement The City contends that the building permit granted to Appellant is invalid for mistake. The City now takes the position that the deck extension was constructed without a building permit since the permit that was issued is invalid for failure to satisfy the conditions contained in Modification Permit 5080. So, now Appellant is purported to be liable to criminal prosecution simply because he relied on the statements and the actions of City of Newport Beach employees about how he should proceed to settle an encroachment issue. The Modifications Committee shall cause by its own members or its respective staffs, such investigation of facts bearing upon such application as will serve to provide all information necessary to assure that the action on each application is consistent with the intent of this section and sound planning practices. In this case, Staff failed to follow this municipal mandate. Staff failed to provide, and continues G� to fail to provide all information necessary to ensure that the Modifications Committee actions conform to the intent of Section 20.93.035 so that the Modifications Committee performs administrative acts for the purpose of assuring that the intent and purpose of the Zoning Code in special cases. The intent and purpose of the Zoning Code is to establish a Modifications Committee consisting of three members for the purpose of passing upon requests for reasonable use of property not permissible under existing regulations. The Zoning Code is intended to promote the growth of the City in an orderly manner and to promote and protect the public 0 June 16, 2002 Page 17 of 20 health, safety, peace, comfort and general welfare, and to protect the character and social and economic vitality of all districts within the City, and to assure the orderly and beneficial development of such areas. (Ord. 97-09 Exh. A (part), 1997) No legitimate government interest is advanced with actions like what happened to Appellant. Here the Modifications Committee has consistently and repeatedly failed to make any individualized determination that the conditions they inserted into the written form of permit are related both in nature and extent to the impact of the proposed deck extension on the public. Since there was no finding that the deck extension impacts the public at the hearing or in the written permit, there is no legitimate public purpose for the conditions attached to the Modification Permit hereby appealed, nor to any of the Modifications and Amendments to Modification Permit 5080. Indeed, the Modifications Committee specifically found on May 3, 2000 the view from adjoining residential properties is not across Appellant's real property, "but straight out towards the street." Further, this same finding is set forth as Finding No. 7, at page 3, of the May 8, 2002 Modification Permit No. MD2002 -018 (PA2002 -037). Therefore public views are not at stake in this application. Moreover, as more fully appears on Appellant's Exhibit "2", a photograph of the view from the complaining adjacent neighbor's deck, the deck extension involved in this case does not impact the neighbor's view in any meaningful way. The view to the bay and beach is not obstructed. Staff did not report this important fact to the Planning Commission; so, the Appellant offers it for consideration. Since there is no impact on the public, the City needs to show that there is some essential connection between public interest and the conditions set forth in the Modification Permit. Moreover, the modifications committee has the burden of making this showing since there now have been fines levied against the owner for failure to comply with the condition; and although there can be no precise calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. The Staff Report fails to offer any evidence to show such a connection and rational relationship. Staffs report offers no Facts to support any connection between conditions 2, 3 and the second sentence of condition no. 4. Moreover, the condition imposed prohibiting the deck extension is an unreasonable condition. Where the condition is imposed to protect the private property of an adjacent owner, there is no public purpose in the condition thereby rendering it unreasonable. Further; where the condition is imposed that purports to protect a private view, such a condition is unreasonable since there is no legal right to view protection. California law does not recognize a landowner's "natural right to air, light or an unobstructed view." C,-7S- CIAO Ci,-1 C."7 d C-19 z� June 16, 2002 Page 18 of 20 Finally, this condition treats Appellant differently from other citizens who apply for modification permits in the City of Newport Beach who are allowed the opportunity to discuss and debate their application for specific modification permits. In other words the treatment Appellant received at the hands of the Modifications Committee amounts to discrimination against his application when a condition is attached to his modification permit that is attached ex post facto to his request for a variance from the zoning law to allow his deck to encroach 2 feet 10 inches into the front yard setback requirement of the City ordinances. We contend that Appellant is entitled to the same treatment that others on his street have received when their balconies and deck extensions have encroached into the front yard setback. As demonstrated by E*bibit "5", there are other deck extensions that penetrate into the front yard set back area near the Appellant's home. The Government Code provides as to zoning variances from the specific terms of zoning ordinances. Such Variances shall be granted only when because of special circumstances applicable to the property; the strict application of the zoning ordinances deprives such property of privileges enjoyed by other property in the vicinity under the same zoning classification. (Government Code Section 65906) As more fully appears on Exhibit "5", the Appellant's property is located in an area where the homes are close together and the lots are small. To get maximum square footage for living space, many nearby homes have balconies that encroach into the front yard set back near the Appellant's residence. The City has extended to these other property owners the privilege of having balconies and deck extensions that encroach into front yard setbacks. It is only fair and lawful to allow Appellant to use his property in the same way that other nearby owners are privileged to use their properties. vo ; Additionally, as depicted on Exhibit "6" neighbors near the Butler residence support the deck extension /patio cover as consistent with a public purpose of CD1 beautifying the Balboa Peninsula. This letter was trailed to the Planning Department, but it does not appear in Staffs Report to the Planning Commission. i Unfortunately, the Modifications Committee acted in an arbitrary and high -handed 3 manner that ignored procedural due process notwithstanding there was a hearing. However, just because there was a "hearing" does not mean that the Modifications r� Committee was a fair tribunal in this application process. As a biased decision Cit7� maker, the Modifications Committee denied Appellant his right to due process and his right to an impartial decision maker. Conditions nos. 2 and 3 take away a portion of the Appellant's deck extension and require removal of the deck surface and lower level ceiling material, enclosed C84 9 electrical fixtures and to change the solid shade structure to an open beam trellis structure. 3 The remedy requested by Appellant is for the City of Newport Beach, acting through its duly constituted Planning Commission to correct the abuses occurring at the Staff CS and Modifications Committee level and to grant Robert S. Butler his constitutional ,i June 16, 2002 Page 19 of 20 i rights to notice and fair opportunity to be heard on his application for a Modification Permit, his right to Due Process of Law, his right to procedural fairness, his right to equal protection of the law, and his right to freedom from unconstitutional taking of a valuable private use of private property without compensation and without due process of law. What could be more fundamental and what could be clearer in this case? 9 In the absence of a showing of public need, the action taken by the Modifications Committee going back to May 10, 2000 is unconstitutional. There is no public purpose in government taking action that benefits only one property owner. In this case, the Modifications Committee, under color of state action, grafted a secret condition onto Appellant's original Modification Permit application that was never disclosed or discussed with him before it was adopted by the committee. It was fait ac»mp&. On May 3, 2000, the application was granted and passed unanimously with little discussion from the committee. There was no opposition to the application. Surreptitiously, a neighbor acting with selfish motives submitted letters in opposition to the application after the duly noticed and convened hearing of the Modifications Committee. In reaction to the neighbor complaints of view interference caused by the proposed structure, the Modifications Committee attached a condition to the Application. With the present Modification Permit, Staff seeks to repeat the technique perpetrated earlier. This practice should stop. The conditions suggested by Staff protect no public need and does not benefit the public in anyway. The structure built by Appellant does not significantly impact the view from the complaining neighbor's property, or any other nearby residence. The structure does not create any burden on the public; therefore, there is no connection between the condition that the structure be used as a patio cover; not as a deck and the public's right to view, the public's access to the beach, or the public's use of the beach. The deck does not increase private use of the beach. Therefore, the condition is invalid and void in this case. Moreover, the Modifications Committee offered no justification for the determination that the condition attached to the Modification Application was appropriate except to recite the "boilerplate" language from Municipal Code Section20.93.040. The only notice that the applicant received was when he received the written permit that spelled out conditions that were attached to a previously unconditional grant of the permit. In other words, the committee granted the requested use, and then it took it away without any opportunity to discuss the matter. COE) (PAVII ) Cfs-1 ii No legitimate government interest is advanced with this type of action. The C41 L) committee failed to make any individualized determination that the condition is related both in nature and extent to the impact of the proposed deck extension on the public. 10 'i June 16, 2002 Page 20 of 20 Appellant argues that since there is no impact on the public, and the City needs to show that there is some essential connection between public interest and the condition; and since the modifications committee has the burden of making this showing since there now have been fines levied against the owner for failure to ;i comply with the condition; and although there can be no precise calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. >l Otherwise, the condition imposed prohibiting the deck extension is an unreasonable condition. Finally, five of the conditions attached to the Modification Permit dated May 8, 2002, single Appellant out and treats him differently from other citizens who apply for modification permits and are allowed the opportunity to discuss and debate their application to specific projects in the City. in other words the treatment Robert S. Butler received at the hands of the Modifications Committee amounts to discrimination against his application where he suffers from a condition that is attached ex port facto to his request for a variance from the zoning law to allow his deck to encroach 2 feet 10 inches into the front yard setback requirement of the City ordinances under Modification Permit 5080. We contend that he is entitled to the same treatment that others on his street have received when their balconies and deck extensions have encroached into the front yard setback. Gil l Gq2 r- "M Based on the available evidence, and judging from what was not included in the Staff `J Report to the Planning Commission, upholding the decision of the Modifications Committee is unfair punishment for Appellant's innocent application. The Gy Qq modification of the deck extension /patio cover is not agreeable with Appellant in that it constitutes an unreasonable condition to enjoyment of the entitlement Appellant earned with his application for Modification Permit 5080 and in reliance on advice and directives from City employees. Appellant is prepared to offer the proposal included in the Staff Report to resolve cqg this issue once and for all assuming that the City releases and exonerates Appellant from the illegal fines assess against him Dated: June 18, 2002 Respectfully submitted, LAWRENCE H. DAVIDSON Robert S. Butler UN `a y ........ rr..r.uuu.w 4'„p0.N•Y. 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 PART I: Cover Page Project Common Name (if applicable): FEES: APPLICANT (Print): CONTACT PERSON (if different): Mailing Address: Mailing a Address- RA V, Phone: Y N 7: / Fax ( ) phone ( ) Fax ( ) Property Owner (if different from above): Mailing Address: Phone:( ) Fax ) Y Y .1. tl l u � l I r 1 •� r A U Y OF- Y• • a u• 111 11 111 11 11 II Y 11 I. 1 YI I'Y 1 1 II . 11 - il_�II.1 1 'J • - 1 1 .II 1 nrWi�_rl Application: Modific Permit No-: COMMUNITY AND ECONOMIC DEVEWPME:,T O Accepted by, PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORr REACH, CA 92658 (949) 644-3200; FAX (949) 644-3250 PART I Cover Page FEES: APPLICANT' (Print): CONTACT PERSON (if different): ----- ---- - i le Mailing Address: r 74 X: Fax Phone: Fax ",-ty n%vi"-r 'c Jitrerent from above): Ph- 4.,i-, t De Trip and justbifi '*,on (descrsbe bliefly) OPERTY OWNER'S L"-G - depose WVj say do (I am) (WC are) the owntr %.) of the prolvo, 1;' (1) ('0 !rlher certify, under ' -erjui4, -that the Forego; and Iffie inr6marjor0herewith stjbtl lite, 1:1,. of all msfvct�; u7s, a!uj to LN t:ljf(n"""j"Aa� 0wywne-r;"'Vritle1la"J dic Lecord owner is filed with diZ- appficatiw,. Appellant's Exhibit "i" Page, 2 �241, s i 3 i �a lm�==minl kIN IN NIMM 81 IrAll 7I 3a Lo Ali q &4W4� AppeUanes Exhibit "1" I wwq I I Page 3 kIN IN NIMM 81 IrAll 7I 3a Lo Ali q &4W4� AppeUanes Exhibit "1" I wwq I I Page 3 .�s l f K: eY l"of �ff 1�pp ♦ �1. Fif 11 l8 �y f a4: fF kWC'.. i/ 4x. Sal.I j.1 -F 14WIl ik r rt �33 l May 24, 2001 CITY OF NEWPORT BEACH BUILDING DEPARTMENT 3300 NEWPORT BLVD. P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (949) 6443275 Mr. Robert Butler 911 West Bay Avenue Newport Beach, CA 92661 SUBJECT: Request for Copy of Drawing Submitted into Plan Check, Plan Check #2013 -2000, 911 West Bay Avenue Dear Mr. Butler: A building permit was issued on September 13, 2000. At permit issuance, we usually approve two sets of corrected drawings, and keep one approved set with our records and keep one old set for the Orange County Assessor's Office. The rest of the drawings and one approved set are given to the permittee. For this project, we have on file a set of drawings approved on September 7, 2000, a revised set approved on November 13, 2000, and another set for a revised section detail approved on December 20, 2000. We no longer have the drawings you initially submitted into plan check on August 10, 2000. Please call me if you wish to have a copy of the record drawings or if you have any questions on the contents of this letter. I can be reached at (949) 644 -3277. Very truly yours, BUILDING DEPARTMENT mi�ll, C V (wy TJLI�.Jtiittar, P F., v. • ., .lrY itii By: P, '4 Faihal 6 • . Deputy i ' / 1 1 1 FJ:ds Exhibit 113" r -mail rah hlo(n)ri %nnvnnr Dort- beach.ca.us /buildine i4un-11-01 08:04 From- Hewitt A re . 949 798 0511�J HEWITT & MCGum, LLP . AT0VWrsATUW 19900 MACARMILDOta.EVAM SORE 1050 1RV11,11S, CM.GORraA 92612 (949) 7984500 • (949)799.0511(FAX) EMAIL: W RrrEWS DIRECT MAI- (949) 79%0734 . RMAIL:&=q@6cwiRmq Ao June 11, 2001 THIS IS PAGE 1 OF 5 PAGES. TO: Sharon Wood Patty Temple Jay Elbettar ,p x FROM: Dennis D. O'Neil SPECIAL NOTES: T-520 P.001/005 F -1002 0 1/ sum IL IMH" MARXIL WOUIRS JAYF.PALOW(Off PAOLA.RowE WnuAMLTwomzy JOM P. YEAGER FAX NO: (949) 644 -3250 Please review this awd the e-mail I sent and get back to me. 1 j IF YOU EXPERIENCE ANY DIFFICULTIES IN RECEIVING THIS TI ANSMISSION, PLEASE CALL (949) 798 -0500. THE INFORMATION CONTAINED IN THIS FACSIMILE TR.ANS&OSION IS ATTORNEY. PRIVILEGED AND CONFIDENTIAL INFORMATIONTNTENDEDONLYFORTHEREVIEW AND USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBYNOTIFIED THAT ANY UNAUTHORIZED DISSEMINATION, DISTRIBUTION, USE OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF. YOU HAVE RECEIVED THIS COMMUNICATION IN JS BYTHE TELEPHONE. THANK YOU. Exlnbit H4H Page I 141 ' Tr9AM COCMAN i DSAN DUNN•RANION SANDRA A. GALLS '�. WR.UAME.HALLE AMAM K HARrM.L HuOH HEWrtr JoeN D. HOOSON From- Hewitt A re . 949 798 0511�J HEWITT & MCGum, LLP . AT0VWrsATUW 19900 MACARMILDOta.EVAM SORE 1050 1RV11,11S, CM.GORraA 92612 (949) 7984500 • (949)799.0511(FAX) EMAIL: W RrrEWS DIRECT MAI- (949) 79%0734 . RMAIL:&=q@6cwiRmq Ao June 11, 2001 THIS IS PAGE 1 OF 5 PAGES. TO: Sharon Wood Patty Temple Jay Elbettar ,p x FROM: Dennis D. O'Neil SPECIAL NOTES: T-520 P.001/005 F -1002 0 1/ sum IL IMH" MARXIL WOUIRS JAYF.PALOW(Off PAOLA.RowE WnuAMLTwomzy JOM P. YEAGER FAX NO: (949) 644 -3250 Please review this awd the e-mail I sent and get back to me. 1 j IF YOU EXPERIENCE ANY DIFFICULTIES IN RECEIVING THIS TI ANSMISSION, PLEASE CALL (949) 798 -0500. THE INFORMATION CONTAINED IN THIS FACSIMILE TR.ANS&OSION IS ATTORNEY. PRIVILEGED AND CONFIDENTIAL INFORMATIONTNTENDEDONLYFORTHEREVIEW AND USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBYNOTIFIED THAT ANY UNAUTHORIZED DISSEMINATION, DISTRIBUTION, USE OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF. YOU HAVE RECEIVED THIS COMMUNICATION IN JS BYTHE TELEPHONE. THANK YOU. Exlnbit H4H Page I 141 09:04 From - Hewitt i McGul..� 949 798 9511 1 '1 MESERVE, MUMPER & HUGHES LLP LC' AOOw FO 01,11Gl 17000 RFD MILL AVENUE 555 Sohn, Fl. . STPC>:T SUITE SEO DTH FLOOR LOD AwOELSC. [•...FOwVy. 6G071.2010 IRVINE, CALiIDRNIw 04614 -5053 •-1� TE". OME 12131 020.0]00 Fr -- E 1E 131625•I OCiO S.11 D Foe OFCIDE T50 ' a- STREET SCR :200 TCEPr16NE 1 2 '�. 7T 72 f�CC1YwC x6191 32]•0079 .Q, June 6, 2001 TELEPMOME 19491 4746005 FACSIMILE 1040) 9761066 Dennis D. O'Neil, Esq. Hewitt & McGuire, LLP 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 T -520 P.002 /OUS -J02 EOWIN A. MEDEAVE 1660 • 1696 1 S.aALET E. MS.LRVC 1 1666 • 1969 1 HCW61 -CZ "W- Pt-. IDDO 1666 1 CYFFOAD E. NUOMED 1 Mo. - 1061 1 J. RODCPT MESCPVC 1 1016 - 1667 1 Re: Application #MPN 5080 Our Client: Robert Butler 1 Address of Property: 911 W. Bay Avenue Legal Description: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West Subject: Action by City of Newport Beach to stop construction of a patio cover after permit previously issued .) Dear Denny: It is hard to believe that you can find time to practice law after all of your duties and obligations on the City Council. The matter described herein seems like a tempest in a teapot, but I would be most grateful if you could review the within matter and indicate what action should be taken in representing Mr. Butler in an effort to get this matter resolved. My initial' observation of the matter indicates that under the circumstances the City is being unfair to Mr. Butler in stopping work on his project to construct a patio cover which is now approximately 80 °/6 to 85% completed. The property in question involves Mr. Butler and his wife living upstairs while there is a tenant in a downstairs unit. An inspection is necessary in order to enable the job to be finished, but the inspector has been told not to inspect the work. Exhibit "4" Page 2 NZ 08:05 From - Hewitt d WGui,„ MESERVE. MUMpER & HUGHES LLA Dennis D. O'Neil, Esq. June 6, 2001 Page 2 949 798 0511 T -5Z0 P.003/005 F -001 { Mr. Butler is an attorney although he retired over 10 years ago after a very _l successful career in Los Angeles where he was a highly respected and well known trial attorney. The following is a short summary by time sequence: 1. 1980:- Mr. Butler builds his home at 911 Vilest Bay Avenue. 2. 5110100. Mr. Butler files for a Modification Permit #5080 and the Modification Permit was unanimously granted by the Modifications Committee. You will note on the Modification Permit that opposition - leners were filed by the owner of the adjacent property, Michael Clary and also by a renter in Mr. Clary's property. The objections were apparently rejected. The initial application included a sketch map that did not show a 3' extension in the lateral direction toward the house of the complaining neighbor. The application was for a patio cover over 'a patio occupied by Mr. Butler's tenant on the first floor. The 3' area in question is within the side setback. Said Modification Permit is attached hereto as Exhibit "A ". 3. 8 /10 /00. After the initial approval, Mr. Butler had plans prepared which included the 3' area. A copy of the approval is attached hereto as Exhibit "B ". Apparently the City now contends that the original plans cannot be located! Jt is unknown how this could possibly have happened. 4. 12/20/00. The plans were amended concerning the pitch of the patio cover in order to make it less slanted. The pitch of the patio cover was reduced. The plans were approved by ORR, which we understand is a "Oree. The pertinent portion of said plans are attached hereto as Exhibit "C -1 ". The plans also included a 3' extension of the patio cover toward the neighbor's house which is the same as it was on -the plans approved in August of 2000. A copy of the portion of the plans showing the extension is attached as Exhibit "C -2 ". 5. 4/01. Mr. Butler puts the plans out for bid and enters into a contract for the construction to be performed at a cost of $9,800. The engineering expense was $3,300. Exhibit "4" Page 3 43 Y Jun— i.1 -01c 08:05 Fram—Hewilt 6 NcG�� .AESEAVE. MUMPER S HUGHES LLP Dennis D. O'Neil, Esq. June 6, 2001 Page 3 949 198 0511 T -520 P.004/005 F -002 6. 511/01. Work commences on the project in accordance with the approved plans. The work is approximately 80% to 85% completed as the painting and the electrical portion have been completed. Plywood has been put at the proper locations. 7. Week of 5/8/01. Inspector Fleener comes to the job site and refuses to approve or inspect. The contractor was told that he would have to take the matter up with the Planning Department. Just prior to this date the neighbor had apparently written a letter to the Planning Department on 5 15/01, a copy of which is attached hereto as Exhibit "D ". A similar letter was also written by the downstairs tenant of the neigtbor, namely Blair T. Bryant, whose signature on his letter dated 5/7/01 is completely different from the signature on a letter previously submitted to the Planning Department on 5/28/01. See attached letters as Exhibit "E -1" and "E -2 "_ S. 5/24/01. The City lnspector issues a Stop Work Order, a copy of which is attached hereto as Exhibit "F ". x 9. 5 /11101. Ms. Temple, Mr. Elbettar and the Assistant City Manager, J Ms. Woods, made a determination that there was an error made by the staff in signing off the plans without talking to them. A Mr. Butler has been told that he should make an application for a new modification to cover the 3' area. Mr. Butler has rejected doing so because the plans submitted in August of 2000, which were approved, clearly included the 3' and it seems like the height of carelessness that the City claims they can't find } those plans at this time. In December of 2000, the plans were again reviewed and a approved by Greg. l Therefore, there is no reason to go back in to seek a further and new modification' 1 to satisfy the whims of a neighbor who makes a very questionable complaint on . ?+ some interference with a view which the Modification Permit already considered l and rejected. Please keep in mind that W. Butler's properly, as well as the l neighbors, are located directly across the street from the open public beach area. } There is some urgency in this matter because Mr. Butler is unable to complete the. work and cover over the exposed areas. The contractor cant believe what has Exhibit "4" Page 4, 44 Jur_ 7-11 -91 : 08:06 From- How:tt b MCGu:' MESERVE. MUMPER &t HUGHES LLP Dennis D. ONeil, Esq. June 6, 2001 Page 4 949 799 0511 T -520 P.005 /005 F -002 transpired and it seems that basic fairness has been violated. Mr. Butler has acted in good faith and it seems a travesty that the events involved have occurred. I hate to take vour time in giving consideration to this matter, but it seems that reason and logic should be applied to permit this construction to be completed. It is understood that if the patio cover is ever sought to be used as a deck, that a further amendment will be necessary, but it seems the current action by the City is unjustified. In any event, it would be greatly appreciated if you could provide some ideas or direction as to bow this problem can be resolved. Very truly yours, Bernard A. Leckie Of.Counsel for MESERVE, MUMPER & HUGHES LLP BAL:mt Enclosures cc: Robert Butler 23792.1 Exhibit "4" Page 5 4S s -WMNM% z� lip NMI fi a w 177. j�� 0 IS (I ns m )r,4d (q,) 6% ^a a 99 Appellant's Exlubit f16" w NOTICE OF ADNIINZ+TRATIVE CITATION l q aTYOFNEWNWMACH RAMMMWAMUXr C, Ne 12001— 01- (v coazwoRaaarr As WPecUos Of de promises Wc=d at all- —/73.94/ L�J is de City otNv*VM BcWk MV=W a vi*h (s) of ft NewpW Bemb Municipal Code. 1 CITATION SIWA0. « ...... IS NOW DUE AND PAYABLE - r���sowrsm[�4�taemwrncums� Tza>G�.oT� ACCwN ARamvwn �rnr�Ar�sNatYOD ax�lusmtalo�asmsa ] 2ND. CITATION $200.BU. - -. IS NOW DUE AND PAYABLE '] 3RD. CITATION $500.00.- .. -..L4 NOW DUE AND PAYABLE UBVMATORS) WASORMNAlLYBROUGNROYWBAT lfNT10Pi O1 MM tl l �EWACM0WLM)GWBY DATE Appellant's Exhibit "7" t I i i l 1 3 t SI NOTICE OF ADMNISTRATIVE CITATION CRTO1NBwpmmgmz COT0MffAND[COMMMONWAMMn 1Gb /— O�lln l nAfMW OR1'ARII®i! nPk PU WlamsC"OW ameraN+�.nree�i4T.. /D:f/d An' dffie, ' be eedt m tlsCirydNevpNlBac4 teYaled a vidtla�(�dthe Neapwl BpebMuoiti@dCada I I W- afATION SIKW ........IS NOW DUR ANDPAYMS I I ' I86MMLEMCRA7IONSWWM OMANOYOIIAUTffiCnEDZ BVAY TMYNNAUMCONTOMMGVMMRMUC8 WACnOMANDMiALTMIUYAt$DUM IS IP CO90LUNCC 8 NOT ACHMM OR O YOO COMVM TO MKM Ti CMIM t- 71 52. NOTICE OF ADMINIS%..ATIVE CITATION 'TTY OF NEWPORT 3FACH "�BNNVITY AM BLYlNOwHC DEF�.OPMEM' PI.A.YNpiG DFlAIfI'tdPNT' Gtaoion Dl�Y /�C's.'I� �'/L!%/ QRtORL�ffia'f � 73B�tkoprt Bbi Y(W"4. s a aWbmCwrectimDge 0 JC9 ;S A9iJ ja inspecdon of the ptetnises located .� ahe City of Newport Beach, revealed a vioiadWs) of the Newport Beach Municipal Code. }ame of oweer or Yadeeas jddres if diQamtBm ;+,;iolariax iST. CITATION 5100.00. ........ IS NOW DUE AND PAYABLE ] THE NEXTTEMM CITATION IS NOW PENDING AND YOU MAYBE CITED EACBDAY THE VIOLATION CONTRMM OTHER ENFORCEMENS ACTH ANDPWALT93 MAY AM RESULT IF COMMLINCES NOT ACHIEVED OR W YOU CONTINUE TO IGNORE THIS CRAMM ;2ND. CNATION $200.00_ _S NOW DUE AND PAYABLE �-M% WATION $500.00---LS NOW DUE AND PAYABLE tS VIdATR) "" WAS ORRRNALLY BROUGHT' TO YOUR ATTENTION ON /- " W " AND YOU b'E vOT CORRECTED OR RESOLWD TIC TO i WHITE (VloWdon Copy) CANARY (Hmn Copy) PINK (Officer Copy) {'/f 7 ^ �. iQ�_ IO� vYC/ cc•�eeF.�'C- /�.1e- ��'�C'.GCCSQ/^— A 53 WHITE (VloWdon Copy) CANARY (Hmn Copy) PINK (Officer Copy) {'/f 7 ^ �. iQ�_ IO� vYC/ cc•�eeF.�'C- /�.1e- ��'�C'.GCCSQ/^— A 53 NOTICE OF ADNffiW1,,%I IVE CITATION )Molpmmp nrmcn J= ; DEYE.OeMM Gatim�te�l 0"U&NIS [NWiasnCareetionD,te1� �� 7 Ttar 9 i /O i�J?il pa wpowon of &C mufma bested a the City o(Newport Beach, muW a vialad*s) dYhe Newport Beach MvaichW code. .metawawwhdam A�1!)7-79 r cN'. l—!CITL�� �alresB�Eveolihp 4 .) I IST. CITATION $100.00.. ...... IS NOW DUE AND PAYABLE `11 TD610flI'I'LEPEL CITATIONBNOW I'ENDB(GAIYD YOOMAY B6lSf ®BACHDAY l IUVIOI.ATWNCONT04M OTMENFORCEWMAMON AND MNALTIFB MAY ALSO REMULT IF COMPLIANCES NOTACSTEYED OR IF YOU CONTINUE TO IGNORE TWS CITATION MAIM SZOOAO_.. -4S NOW DUE AND PAYABLE d �- ATION SSMAO.... -.§ NOW DUE AND PAYABLE ff20 / 4 1 _ A I c-s rI WHITE (Yodatton Copy) CANARY (Hewing Copy) PINK (== Copy) Sy v' i i i Sy CITY OF NEWPO. _, BEACH Application: A&L Iv: odification Permit No.: p� T COMMUNITY AND ECONOMIC DEVELOPMENT O Accepted by: PLANNING DEPARTMENT "u !2 �,,,��, „•` 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 PART I: Cover Page Project Common Name (if applicable): FEES: APPL CANT (Print : 7-L ©B' ew CONTACT PERSON (if different): Mailing Ai�d dp""ess: r ailing Address: Phone: Fax ( ) Phone: ( ) Fax ( } Property Owner (if different from above): Mailing Address: Phone: ( ) Fax ( ) PROJECT ADDRESS: Project Description (d PRr41hP hriPfl V ) (1) (We) JY J l/ I L—iC:: involved in application. (I) , We) further certify, under penslt and the information herewith submitted are in all respects true and PAID Cl am) (we are) the owner(s) of the property(ies) -ezoina statements and answers herein contained APR 1 ^ 2000 NOTE: An agV7"0#WAV* r 6Written authorization from the record owner is filed with the application. ttCAi. Exhibit No. 2 A...... ... .... ..... .. �_. ..._... .... ..- NOTICE OF ADURdSTRATIVE CITATION CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT Citation No CODEENFORCEMENT . 3390 Newport Blvd. Newport Beae4, Ca. w8 "6"15 CltatioRJCorrecllon Date Tim! An inspection of the premises located at in the City of Newport Beach, revealed a violation(s) of the Newport Beach Municipal Coda Name downer W' 6odara � ddrm EdlQaeot Waa . [ ] 1ST. CITATION $100.00 ......... IS NOW DUE AND PAYABLE [ ] THE NEXT LEVEL CITATION IS NOW PENDING AND YOU MAY BE CITED EACH DAY THE VIOLATION CONTINUES. OTHER ENFORCEMENT ACTION AND PENALTIES MAY ALSO RESULT IF COMPLIANCE S NOT ACHIEVED OR IF YOU CONTINUE TO IGNORE THIS CITATION. [ ] 2ND. CITATION $200.00_ ... ... ..IS NOW DUE AND PAYABLE [ ] 3RD. CITATION $500.00._... -JS NOW DUE AND PAYABLE IS VIOLATION(S) WAS ORIGINALLY BROUGHT TO YOUR ATTENTION ON AND YOU HAVE NOT CORRECTED OR RESOLVED THE VIOLAT[ON(S). CORRECTION(S) REQUIRED: RECEIPT ACKNOWLEDGED SIGNAIUREOFOFWCER MNTNMOFOMCER Int 7IOLATION(S) CLEARED AS OF (DATE INSPECTED WHITE (Violation Copy) CANARY (Hearing Copy) PINK (Officer Copy) Exhibit No. 3 FRONT SmE IMPORTANT-READ CAREFULLY THE LAW REQUIRE Administrative Citation Newport Beach Municipal Code Section 1.05.020 provides for the issamuce of administrative citations for Municipal Code Violations, Tim are three levels of citations that can be issued progressively for a violation. The fines, as indicated on the from Of the ciwion, are $100.00 ki the First Citatimi, $200.00 for the Second Citation and $500.00 for the Third and subsequent Citations for violations of the same ordinance within one year. These fees an cumulative Oil chadous may be feared each day the viclasticas exists. -A warning, if issued, does not incur a fine and, therefore, may not be appealed. Rights of Apoes You have the right to appeal this administrative citation within fithem (15) it* from the citation/coffection data together with in advanced deposit of the fine along with a Request for Hearing form. An appeal must be in writing to the address on the front of this citation and to the attention of "Administrative Heating Officer.", A Properly filed appeal will result in an adminismitiVe hearing. Fail= of my person an properly file a written appeal within firm (is) coNsEcurrw days from the citation/correction date shall constitute a waiver of his or her right to an administrative has* and arjudbostion of the administrative cittlion.or any portion duervid and the wtal amount of the fine. How to Pay F1 13ACk The amount of the fine is indicated on the front of this administrative citarm Prior to receiving an invoice from the Revenue Division, you may pay by mail or in person at 3300 Newport Blvd., Revenue Division, Newport Beach City Hall, Payment T> should be made by personal check, cashier's check, or money order, payable to the City of Newport Beach. Please write die citatim or account number an your check or money order. If the citation is not paid a appealed within the statutory time, You will receive an invoice from the City Revenue Division. Please follow the instructions m the invoice to ensure Proper McCaskill Of Your Payment Payment .Of the fine shall got dame the failure to correct the violation nor shalt it'Iy ar further enforcement MOOD by the City of Newport Beach. Comareamences; of Failure to Pay the Fine The failure of my person to pay the fine assessed by the administrative citation within the time specified on the citation or on the invoice form the Revenue Division may result in a claim with the Small Cishims Court or my legal remedy available to coiled such money. The City has the authority to called all costs associated with the firing of suchactions. Failure to pay fine requirements may be fixmd in Newport Beach Municipal Code Section 1.05. 100. - r Conseristences of Failure to Cursed Violations There are numerous enforcement options that can be used to CRWMV the M-1006011 Of violations, These Options induk but are not limited to civil lidedrim jbinteracK criminal lomeation civil litigation, recording the violation with the Comity Recorder and farremse of certain State tax beriefin; for substandard residential rental Property. Ilaw options = willpower 00 City to collect fines up to $100,ODO.00, to demolish structures or make necessary repah at the owner's expenses, and to imaroeratic violators. Any of these options or others my be wed if the administrative citations do not achieve compilliance. if yen need further clarificatim about payment of the citation, Place all (949) 644-3141 for the Revenue Division. Ifyou need further information about the violations andlor him to comply, plew call the inslaactur designated on the rent A fail description of the hearing Process for the City's administrative hearings fix Municipal Code VWM and YOU rights in that Process are round in Newport Beach Municipal Code Sections 1.05.060,1.05.0110 and 1.05.010. Rev. 041299 92 - Exhibit No. 4 0