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Home My WebLink About15 - PA 2002-002 - Van Cleve Appeal - 213 Coral Avenue(949) 644-5200; FAX (949) 644-5229 February 26, 2002 Agenda Item No. 15 M (e mrn ioi r a1)rn idhu(mnl TO: Mayor and members of the City Council FROM: Planning Department DATE: February 21, 2002 SUBJECT: Request for a continuance on review of the Planning Commission decision on the Van Cleve appeal Staff has received a letter from the applicant (attached) requesting a continuance on this item to April 9, 2002. The applicant met with staff on February 21, 2002 and he has indicated that a solution to this issue may be possible. CITY OF N EWPORT BEACH naw PLANNING DEPARTMENT 5500 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644-5200; FAX (949) 644-5229 February 26, 2002 Agenda Item No. 15 M (e mrn ioi r a1)rn idhu(mnl TO: Mayor and members of the City Council FROM: Planning Department DATE: February 21, 2002 SUBJECT: Request for a continuance on review of the Planning Commission decision on the Van Cleve appeal Staff has received a letter from the applicant (attached) requesting a continuance on this item to April 9, 2002. The applicant met with staff on February 21, 2002 and he has indicated that a solution to this issue may be possible. ��,ewpoRr CITY OF NEWPORT BEACH Hearing Date: February 26, 2002 PLANNING DEPARTMENT Agenda Item: 15 moo NEWPORT (BOULEVARD Staff Person: Patrick J. Alford • C9��GAY,' NEWPORT REACH, CA 92658 (949) 644 -3235 (949) 644'5200: FAX (949) 644-5229 REPORT TO THE MAYOR AND CITY COUNCIL SUBJECT: Review of the Planning Commission decision on the Van Cleve appeal (PA 2002 -002) SUMMARY: A review of a decision of the Planning Commission to uphold the Planning Director's interpretation of Section 20.62.040 (Nonconforming Structures) of the Zoning Code relating to a nonconforming single family detached dwelling unit at 213 Coral Avenue on Balboa Island. ACTION: Uphold or reverse the Planning Commission's decision to uphold the interpretation of the Planning Director. Introduction Council Member Steven Bromberg has called a decision of the Planning Commission up for review by the City Council pursuant to Section 20.95.050 (C) (Calls for Review) of the • Zoning Code. On January 17 and February 7, 2002, the Planning Commission heard an appeal on the Planning Director's interpretation of Section 20.62.040 (Nonconforming Structures) of the Zoning Code. This interpretation holds that the calculation of the percentage of the alteration of structural elements should be based on linear footage of exterior and other load- bearing walls. The Planning Commission voted (6 -1) to uphold the Planning Director's interpretation of the Zoning Code. Background On April 6, 2001, the City of Newport Beach issued a building permit for a major remodel and renovation of a nonconforming single family detached dwelling unit located at 213 Coral Avenue on Balboa Island. The dwelling unit was legally nonconforming because it exceeded the maximum floor area limit of the Restricted Two Family Residential (R -1.5) District. On July 6, 2001, a site inspection by a building inspector revealed that the dwelling unit was being completely reconstructed. The inspection report states that prior to the next inspection, all plan changes must be reflected on the plan and approved by Building and Planning Departments. On September 19, 2001, a Stop Work order was issued by the Building Department for exceeding the scope of work on approved plans. . On December 20, 2001, the applicant filed an appeal to the Planning Commission of the Planning Director's interpretation. On February 7, 2002, the Planning Commission upheld the Planning Director's • interpretation. A detailed chronology of events is provided in Exhibit 2. Analysis Staff's Interpretation A building that exceeds residential maximum floor area limit and that was legally constructed prior to the adoption of this regulation is deemed to be a legal nonconforming structure. Section 20.62.040 (C) of the Zoning Code establishes limits on the amount of structural alterations that can be conducted on a legal nonconforming structure. Alteration of up to 25 percent of the structural elements within any 12- month period is permitted by right, up to 50 percent requires a modification permit, and up to 75 percent requires a use permit approved by the Planning Commission. Alteration of more than 75 percent of the structural elements is not permitted under Section 20.62.040 (C). The Zoning Code does not define the methodology for the calculation of the percentage of the structural elements altered. Therefore, the Planning Department has interpreted that this percentage should be based on linear footage of exterior and other load - bearing walls. The procedures used by the Planning Department first calculate the lineal feet of exterior walls. If it is determined that the percentage exceeds 25 percent, then the lineal feet of interior walls identified by the architect as load bearing and the • area of roof structural elements are calculated. The applicant appealed the Planning Director's interpretation that the calculation of the percentage of the alteration of structural elements should be based on linear footage of exterior and other load- bearing walls. The applicant contends that the Planning Department's method of determining the percentage of structural alteration is inconsistent with City regulations and the City's procedures in the processing and approval of similar projects in the surrounding area. The applicant based the appeal on three points: First, the applicant believes that the retained existing footings should be included as structural elements and constitute at least 50 percent of the structural elements. Second, that staff interprets Zoning Code terms inconsistently. Third, that a public safety exception should be granted under the provisions of Section 20.62.040 (E -2) of the Zoning Code because the existing wood framing was unstable due to dry rot and represented an immediate public safety hazard. • 213 Coral Avenue (Van Cleve) February 26, 2002 Page 2 of 6 On February 6, 2002, the applicant submitted a letter to the Planning Commission presenting a five -point summary of his position on the appeal (Exhibit 1). 1. The original calculation of structural elements should be adhered to notwithstanding the replacement of damaged and unsound materials. The applicant maintains that it is a common practice on Balboa Island to replace damaged or unsound building materials during construction and that practice is not considered as additional alteration of the structure. To support this position, the applicant provided a statement from Mr. Don Abrams, a real estate broker. Mr. Abrams cited four (4) examples of properties where a substantial amount of materials were replaced during demolition and construction. The replacement of deteriorated materials during remodeling may be a common practice; however, it becomes a City concern if it involves a nonconforming structure and exceeds the maximum amount of alteration that the applicant committed to on the building plans. Section 20.62.040 (C) of the Zoning Code limits alteration of structural elements to 25 percent, unless a modification permit or use permit is approved. The applicant was informed of this limitation on several occasions prior to the issuance of the building permit and staff required that the following note be included on the building plans: • 0.24875 The presence of dry rot, or any other deteriorated condition, does not grant the applicant permission to exceed the limits on the amount of alteration required by the Zoning Code, identified on the building plans, and referenced by the building permit. When the applicant first became aware of these conditions, he was obligated to inform the Planning Department and Building Department, revise the plans accordingly, and received the receive the necessary approvals. Instead, the applicant continued to replace the lumber until 100 percent of the walls and roof were replaced. 213 Coral Avenue (Van Cleve) February 26, 2002 Page 3 of 6 LS: : 166 LINEAL FT. X 9 FT PLATE HT. = 1674 SF . 23 LINEAL FT. X 9 FT PLATE HT. = 207 SF OR 12% OF LOWER LEVEL TO BE DEMOLISHED LS: LWE : 186 LINEAL FT. X 9 FT PLATE HT. = 1674 SF 18 LINEAL FT. X 9 FT PLATE HT. = 162 SF OR 9% OF UPPER LEVEL TO BE DEMOLISHED . DEMOLITION NOT TO EXCEED ISTING RESIDENCE. NOTE: 23% OF EXISTING ROOF WILL BE DEMOLISHED VICINITY • 0.24875 The presence of dry rot, or any other deteriorated condition, does not grant the applicant permission to exceed the limits on the amount of alteration required by the Zoning Code, identified on the building plans, and referenced by the building permit. When the applicant first became aware of these conditions, he was obligated to inform the Planning Department and Building Department, revise the plans accordingly, and received the receive the necessary approvals. Instead, the applicant continued to replace the lumber until 100 percent of the walls and roof were replaced. 213 Coral Avenue (Van Cleve) February 26, 2002 Page 3 of 6 Staff investigated the four examples cited by Mr. Abrams. Staff learned that in each case, the amount of alteration was in compliance with Section 20.62.040 (C) of the . Zoning Code. One had a floor area below the maximum allowed and was therefore conforming; another involved alteration of less than 25 percent of the structural elements; and the remaining two received modification permits to allow alteration of more than 25 percent of the structural elements. 2. When calculating the percentage of the alteration of the structural elements of the building in accordance with section 20.62.040 C., all of the structural elements must be considered. The applicant maintains that staff is selective of which structural elements are included in the calculation of the percentage of structural alteration. The applicant further maintains that the retained footings at the subject property comprise at least 25 percent of the structural elements of the building. The fundamental disagreement is over the definition of "structural elements." The applicant seeks a literal interpretation of the term "structural elements," meaning each individual component of a structure, such as footings, studs, joists, and rafters. In contrast, staff interprets "structural elements" as units that are part of an assembly that function as a whole to form a structure. Structural elements can consist of a single component, such as a column or beam, or a number of components as are found in bearing walls, trusses, and arches. They are identifiable units with specific roles in supporting the structure and not simply a piece of the structure. Consequently, staff views the footings as a part of a bearing wall, but not a separate structural element. Staff believes that this is consistent with the Zoning Code's definition of "structural alteration," which identifies bearing walls, columns, beams and girders as examples of the supporting members of a building. Under the applicant's interpretation, the percentage of structural alteration would have to be calculated by counting individual components, such as studs, joists, rafters, and beams. This would present a significant hardship on permit applicants, since they would have to document such facts to obtain a building permit. It would be a particular hardship on permit applicants for remodels, since such information may not be readily available. Remodel permit applicants could be forced to expose wall sections and even excavate around foundations in order to provide this information. This is why staff measures the length of load- bearing walls and does not count the number of sill plates, anchor bolts, and studs that compose that wall. Staff believes the current method of calculation is both practical and fulfills the intent of the Zoning Code. Because construction techniques and the Uniform Building Code require regular spacing of elements, staff can reasonably assume that approximately the same number of elements exist within each lineal foot of load- bearing wall. As for the applicant's belief that the foundations comprise at least 25 percent of the structural elements of the building, the applicant has not identified the basis for this estimate. This estimate, which was originally placed at 50 percent of the structural elements, appears to be arbitrary. Therefore, the applicant's interpretation cannot be applied consistently to other projects. E 213 Coral Avenue (Van Cleve) February 26, 2002 Page 4 of 6 • • At the February 7, 2002 hearing, the Planning Commission determined that the Planning Director's interpretation was reasonable and consistent with the purpose and intent of the Zoning Code. 3. The Building Director may determine that materials modified or repaired were for public health safety reasons after the fact of their removal. Section 20.62.040 (E -2) of the Zoning Code contains an exception to the limits of the amount of structural alteration of nonconforming structures if the Building Director determines that modification or repair is immediately necessary to protect the health and safety of the public or occupants of the nonconforming structure, or adjacent property. The applicant maintains that the Building Director has the authority to make an ex post facto determination that demolition and reconstruction of the structure was necessary to protect the public health and safety. The exception provided in Section 20.62.040 (E -2) is when the Building Director has evidence that a structure to avoid an immediate public health or safety hazard. determine that the cost does not exceed 50 percent structure. However, the Building Director was r determinations at the time the existing structure was intended to apply to situations must be repaired or maintained The Building Director must also )f the replacement cost of the of requested to make these demolished and reconstructed. At the February 7, 2002 hearing, the Planning Commission examined the applicant's position that the Building Director can make this determination after the fact. The Planning Commission concluded that the use of the word "is" conveys that the Building Director must make this determination before the structural elements are removed. 4. The definition of structural alterations has been inconsistently applied by staff and should not now be rigidly applied to Mr. Van Cleve. The applicant states that he was never apprised of the method by which City staff calculates the percentage of structural alteration and that this method was not utilized during the plan check process. These statements are not correct. Since the structural limits provisions were first adopted in 1990, the Planning Department has interpreted that the percentage is based on linear footage of structural elements, such as load - bearing walls. Furthermore, the applicant was informed of this methodology during the plan check process when the applicant was informed that the plans indicated that more than 25 percent of the structural elements would be altered. This is why the note requiring that demolition not exceed 25 percent of the existing residence (see graphic above) appeared on the building plans as early as February 12, 2001. 5. The City has a plain and speedy remedy if it wants the Code to conform to the new staff interpretation. The applicant maintains that he will suffer an extreme penalty due to ambiguities in the Zoning Code and inconsistencies in its interpretation. The applicant implies that his situation is due to a new interpretation by staff. However, as stated earlier, staff has based the percentage of structural alteration on linear footage since the structural limits provisions were first adopted in 1990. Also, as stated 213 Coral Avenue (Van Cleve) February 26, 2002 Page 5 of 6 earlier, the applicant was apprised of the limits on the amount of structural alteration and the method of calculation on several occasions during the plan check process. Planning Commission Action The Planning Commission reviewed the appeal on January 17, 2002 and February 7, 2002. After hearing extensive testimony by staff and the applicant, the Planning Commission concluded that their authority was limited to whether or not the Planning Director's interpretation was correct and whether the Building Director can grant a public health and safety exception to the limits on structural alteration after the structure has been demolished. The Planning Commission voted 6 -1 to uphold the Planning Director's interpretation and that the health and safety exceptions must be granted prior to demolition. Minutes of the January 17, 2002 hearing are attached as Exhibit 3 and draft minutes of the February 7, 2002 Planning Commission hearing are attached as Exhibit 4. Submitted by: SHARON Z. WOOD Assistant City Manager Exhibits Prepared by: PATRICK J. ALFORD Senior Planner 1. Summary of Position and Index of Written Testimony (provided by the applicant /appellant). 2. Chronology of events. 3. Draft February 7, 2002 Planning Commission minutes. 4. January 17, 2002 Planning Commission minutes. 5. January 17, 2002 Planning Commission staff report (with supplemental information). 6. February 1, 2002 memorandum from the City Attorney to the Planning Commission. 7. January 11, 2002 memorandum from the City Attorney to the Planning Commission. 8. Planning Department's Feb. 7, 2002 PowerPoint presentation to the Planning Commission. 9. Building Director's Jan. 7, 2002 PowerPoint presentation to the Planning Commission. 213 Coral Avenue (Van Cleve) February 26, 2002 Page 6 of 6 • t. J u 0 0 213 CORAL - VAN CLEVE RESIDENCE SUMMARY OF POSITION PM INDEX OF WRITTEN TESTIMONY Summary of Position 213 Coral - Van Cleve The Original Calculation of Structural Alteration Should be Adhered to Notwithstanding the Replacement of Damaged and Unsound Materials. The practice consistently followed on Balboa Island is that once the plans for the remodel are approved, the replacement of damaged and unsound materials does not result in a reassessment of the degree of structural alteration but is considered to be repairs. We can point to numerous examples where this has occurred. Mr. Van Cleve should not be treated differently than those that have gone before him or in fact are under construction now. Supporting Testimony: Declaration of Ian J. N. Harrison (No. 6) Declaration of Don Abrams (No. 5) Declaration of Glenn Lewis (No. 4) • When Calculating the Percentage of the Alteration of the Structural Elements of the . Building in Accordance with Section 20.62.040 C., All of the Structural Elements Must be Considered. The definition now asserted by City staff picks and chooses among the structural elements of a building in calculating the percentage of alteration of the structural elements of the building. The Building Director has conceded in public testimony before the Commission that the foundations are among the structural elements of the building. We are entitled to have all of the structural elements considered in making the calculations pursuant to Section 20.62.040 C. The foundations comprise at least 25% of the structural elements of the preexisting residence at 213 Coral. While city staff has the authority to interpret the provisions of the Code, that interpretation cannot ignore the plain meaning of the Code itself. Supporting Evidence: Declaration of Shucri Yaghi (No. 3) Certificate of Shucri Yaghi (Exhibit No. 5) Letter from Geoffrey Clifford (Exhibit No. 7) r� u 1l The Building Director May Determine that Materials Modified or Repaired Were for • Public Health Safety Reasons After the Fact of Their Removal. There is nothing in the Code which would prevent the Building Director from making a determination now that the repairs made to the exterior walls were necessary for the immediate protection of health and safety. (Section 20.62.040 E.2.) There is ample evidence of these conditions based on eyewitness observations, including those of City inspectors who observed these conditions as the project was underway. The only reason we did not ask for this determination was that we were not aware that the City would recalculate the degree of remodeling after the fact. Supporting Evidence: Declaration of Paul Cochran (No. 2) Declaration of Shucri Yaghi (No. 3) Declaration of Glenn Lewis (No.4) Declaration of Don Abrams (No.5) Certificate of Shucri Yaghi (Exhibit No. 7) Letter from Myra Gentner (No. 7) Letter from Ron Conti (No. 8) Letter from Mark & Claudia Tyson (No.9) The Definition of Structural Alterations has Been Inconsistently Applied by Staff and Should Not Now be Rigidly Applied to Mr. Van Cleve. The definition now presented by City staff was never shared with Mr. Van Cleve or his architect, nor has anyone else we are aware of seen it. Planning staff, who have the responsibility of making these determinations, certainly didn't utilize it during our plan check process, and other architects practicing in Newport Beach had not seen it previously either. Mr. Van Cleve should not suffer from the inconsistent application of City policies. He should be treated the same as other builders on Balboa Island. The replacement of damaged and substandard materials should be treated as repairs not structural alterations. Supporting Evidence: Declaration of John Matthams (No. l) • Declaration of Paul Cochran (No.2) Declaration of Shucri Yaghi (No. 3) Declaration of Ian J. N. Harrison (No. 6) The City has a Plain and Speedy Remedy If It Wants the Code to Conform to the New Staff Interpretation. Given the ambiguities of the Code, the inconsistency of the interpretation of these Sections, and his reliance on City approved plans and inspections, Mr. Van Cleve should not suffer the extreme penalty which would result from a rigid interpretation of the Code. If the Code does not support the City's desired purpose. The City has a simple and expedient remedy. It can amend the Code to make these provisions clear. r1 iii i 0 r-1 L_J 213 CORAL — VAN CLEVE RESIDENCE INDEX OF WRITTEN EVIDENCE Tab Declaration of John Matthams, International Design Group, ProjectArchitects ............................................................................................ ..............................1 Declaration of Paul Cochran, Co -Owner and General Contractor ........... ..............................2 Declarationof Shucri Yaghi, Consulting Engineer ..................................... ..............................3 Declaration of Glenn Lewis, Balboa Island Resident .................................. ..............................4 Declarationof Don Abrams, Rumbold Realty ............................................. ..............................5 Declaration of Ian J. N. Harrison, Newport Beach Architect ..................... ..............................6 Letter from Myra Gentner, Neighbor at 215 Coral ..................................... ..............................7 Letter from Ron Conti, Neighbor at 211 Coral ............................................ ..............................8 Letter from Mark & Claudia Tyson, Neighbors at 212 Sapphire .............. ..............................9 GAGrable\V=Cleve \TOC -213 Coral 9 0 Feb -06 -01 10:02u Fro"vehalttr,Nwr.Flelds i Yanar ♦040 251 II2/ T -210 P.092/003 F-40 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bid?! Cgsns Lta VAN CLEVE - 213 CORAL 11tALBt2A ISLAND I, John Ii. Matthams. hereby declare Lod state. I. If called as a witness, l weld Bad would testify of my own personal knowledge as 2. I am the principal of International Design Group, Architects and Interior Designers located at 721 Lighthouse Avenue, Pacific Grove, California. 3. Intamodond Design Group is the project architect for the remodel of the property located at 213 Coral on Balboa Island which is owned by W. Van Cleve. 4. When I started the prvject I specifically asked the City Jbr copies of tha plans on file in the Building Depwarterit with mapect to the strucnre that existed on the property. I was advised that the pleas were not in the City files and that the City had no record of their Iocatioa. 5. Since no plans existed, I determined the size of the existing structure based upon field measutemenn. At the time that the field measurements were taken, and contrary w Mr. Islbetmes tntimany at the Janwry 17, 2001 Planning Commission meeting, a wall existed at the rear of the property enclosing the staircase which provided access to the second story of the property. In the absence of plans for the existing structure, I had no knowledge or iafamation which would have led me to conclude that this enclosure was not properly a pan of the wdsting structure. I did not as nor was I made aware of a Rat property Report for the property which included a calculation of the permitted sgwm 600taga which was lee than my calculation based on bald tnaarrem exits. 6. Dwingthscoumafdwtbmnionthathattbeplawwet inplan check atthe City, Iand mcmban of my office bad nrsnevus discussions with City staff as to the permitted scope of the remodel and the calculation ofthepeccoide cofthealterationoftheaauatardelaneruofthebuilding. During these discusdow numerous comments were made an the plans that were inaccurate and reflected a misut►dastaading of the pleas. now issues were all finally resolved at a meeting with Jay Garda on or about %tercb 14, 2001. The statements on Sheet A -1 ofthe Site Plan for 213 Coral as to the calculation of the buildable area of the existing non - conforming residem. the percentage of the demolition of the existing walls and the exisriag roof were based Wm our discussions with City staff ►5 . Fcb -01-02 10:02u Fron-Ischalter mer,114101 i 1'ounuf +141251 1121 7.221 P.001ADI F•400 1 2 3 4 5 6 7 8 9 IO I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ss finally tetolved attbemestiog of March 14, 2001, and wets Itrictlyin accordance with the dttecdcas received from City staff at that time. 7, At no time in the process was International Design Group provided with a copy of the written detiaitian of the means of calculating ••structural alterations'• that Mr. Albettar now contends is the long standing de"tion utilized by the City. At no time was Intetttatimal Design Group iniotmed that additional sbudural eletnem of the exterior alterations exceeded 25% of the perimeter of the building. The tnedsodology now suggested by Mr. Albatar is inconsistent with the direction we received $oar Planning statE 8. In my aperie n u pd=ipal of International Design Choup in the Stale of California, iris common practice to replace damaged and stnu' tnWIyutuoundmaterials discovered Who course of a remodel. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and corrsee Executed our February 5 242, at California. A 2 31 4 5 6 7 8 9 10 11 12 13 14 15' 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF PAUL COCHRAN IN SUPPORT OF THE APPLICATION OF CHARLES VAN CLEVE - 213 CORAL, BALBOA ISLAND I, Paul Cochran, hereby declare and state: If called as a witness, I could and would testify of my own personal knowledge as follows: 2. I am the co- owner /contractor of the property located at 213 Coral on Balboa Island. 3. I am a licensed contractor with over 20 years of experience and I am familiar with construction practices relating to remodeling single family residences in the state of California. 4. During the course of the demolition work on the existing structure, I encountered numerous circumstances where the structure of the building had been materially compromised by improper construction which either occurred at the time of original construction or remodels. I also encountered significant dry rot. None of these conditions had been apparent prior to the time of the demolition work. The City repeatedly denied us the opportunity to demo portions of the structure prior to the issuance of building permits which would have enabled us to identify these problems in advance of demolition. A 5. On April 27, 2001, I asked the consulting engineer for the project, Shucri Yaghi, to review the structural problems which I encountered during the demolition work on the existing structure. Mr. Yaghi specifically advised the me many of the structural elements would need to be replaced board for board due to safety hazards and that he would modify the structural plan accordingly. 6. As demolition work and construction continued after the submission and approval of the revised structural plans on May 16, 2000, I continued to uncover extensive areas of dry rot and unsafe structural members. Mr. Van Cleve and I were very concerned that this created an immediate safety hazard for those of us working on the job site and temporary measures had to be taken to shore up the building. I ultimately determined that all of the exterior walls that had been designated to remain on the approved plans needed to be replaced on board for board basis for safety reasons. I did not feel that the required sheer walls could be attached to these members with any structural integrity. 7. Inspectors were on the job site frequently and in the vicinity of the project lb 0 • • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26j 27i 28 continuously during the demolition and construction work. I was never advised that it was improper to replace the existing exterior walls on a board for board basis. On May 2, 2001, Inspector Paul Sobek conducted an inspection of the soils compaction for the pipes to be replaced. At this time Mr. Sobek walked the interior of the residence which had been substantially demolished. The condition of the existing framing were readily apparent. Mr. Sobek specifically pointed out the structural problems, including floor joists that had been cut in half and then not supported during earlier remodels, and the termite and dry rot damage. No mention was made of a need for any additional permits or approvals. 8. On May 23, 2001, Inspector John Berkley conducted an inspection of the footings and I foundation. At that time the entire rear of the house had been removed due to the unsafe conditions noted by Mr. Yaghi. Once again, no mention was made of a need for any additional permits or approvals. 9. On July 2, 2001, Paul Sobek conducted an inspection of the nailing of the subfloor for the second story. At this point all of the framing had been completed for the first floor and the second story subfloor was completed. The framing of the second floor was in process. Mr. Sobek noted that the preexisting floor joists had been replaced and commented that the plans would need to be revised to reflect that. He did not indicated that what had been done was incorrect or that any additional permits or approvals would be required. 10. July 6, 2001, Paul Sobek returned to the job site and handed me a notice that the changes would have to be shown on plans and approved by the City prior to the next inspection. He indicated that the City had received a complaint about the work from another builder. He also told me that I did not need to stop work on the framing, just get the changes made to the plans. 11. Following Mr. Sobek's last visit to the property I continued framing the building. All framing was completed and ready for inspection on August 13, 2001. 12. Following the submittal and approval on August 22, 2001, of the revised plans we believed Mr. Sobek asked for, we called for final inspection of the framing. On September 10, 2001, Paul Sobek arrived for inspection of final framing, reviewed the plan revisions and stated that they were not what he wanted and refused to even look at the framing. Mr. Sobek, for the first time raised 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an issue that liquefaction was a problem that needed to be addressed and that the percentage of modification shown on the plans needed to be crossed out. Mr. Van Cleve was present during thiI inspection and Mr. Sobek told us that these issues should be taken up with "Faisal" in the Building Department. 13. On September 19, the project was "red tagged by the City. No construction activity, other than City approved measures to protect the new construction has been undertaken. 14. In my experience with residential remodels in California, the replacement of unsafe and unsound materials is a common, indeed required practice, and does not affect the status of the project as a remodel. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January X, 2002, at ea. alifornia. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SHUCRI 1. YAGHI IN SUPPORT OF THE APPLICATION OF CHARLES VAN CLEVE - 213 CORAL, BALBOA ISLAND I I, Shucri I.Yaghi, hereby declare and state: 1. If called as a witness, I could and would testify of my own personal knowledge as I follows: 2. I am a licensed civil engineer in the State of California. My office is at 112 E. Chapman, Orange, California. 3. I am the consulting engineer for the project located at 213 Coral, Balboa Island, California, owned by Mr. Van Cleve.. 4. When I visited the site on April 27, 2001, I observed serious structural problems uncovered during the course of the demolition of the interior walls of the existing residence. I determined that these elements constituted as safety hazard and recommended that the contractor, Mr. Paul Cochran, replace the unsafe materials on a board for board basis. My firm prepared revised structural plans which were submitted to the City on May 9, 2001, for approval based on my recommendations. The revised plans were approved by the City on May 16, 2001. 5. Contrary to the statements made by Mr. Albettar at the public hearing on this on January 17, 2001, the new foundations included in the structural plans prepared and approved. by my firm, are not "floating" but are tied into the existing foundations. None of the existing foundations were shown to be removed or altered on the structural plans. 6. In calculating the load bearing capacity of exterior walls, the existence of openings in the walls has no bearing on the load carrying capacity of the exterior walls as structural elements of a structure as the framing around such openings transfers the load to the foundations to the same degree the walls would without openings. 7. The statements made in my certifications dated November 9, 2001, with respect to the Existing Building Foundations, which include my calculation that the footings comprise at least 50% of the structural elements of the building, and with respect to the Lumber Replacement of an Existing Wood Structure, copies of which have been previously provided to the Planning Commission, are true and correct of my own knowledge and professional opinion. AC) Gao drBa -o� � . a p2 r�Om'Da F1ei :B: M1BWB!.riBiGb 4 ic�naer *949 251 .TOT i -431 F 002/001 F -467 I • 2 3 4 5 6 7' 8 91 10i 11 12 13 14 15 i16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of pe> ury under the laws of the State of California that the foregoing is true and correct. Executed on January ?1, 2002, at p )(,'>s California. ak 0 0 2 3 4 5 C 1, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 271 28 DECLARATION OF GLEN LEWIS IN SUPPORT OF THE APPLICATION OF CHARLES VAN CLEVE - 213 CORAL, BALBOA ISLAND I, Glen Lewis, hereby declare and state: I am a resident of Balboa Island, California. If called as a witness, I could and would testify of my own personal knowledge as follows: 2. I have lived on Balboa Island since I979 3. I have been a licensed contractor and I am familiar with construction practices relating to single family residences in California and, in particular, the City of Newport Beach. 4. I am very well acquainted with the property located at 213 Coral on Balboa Island which is owned by Mr. Van Cleve. My sister -in -law had entered into escrow to purchase the property prior to Mr. Van Cleve's purchase of the property. I conducted an on -site investigation of the property at her request. My sister -in -law ultimately decided not to purchase the property due to the number of leaks that I discovered in the roof and in the plumbing during my inspection of the property. 5. Due to my original interest in the property, I followed the day to day construction activities of the property after it was acquired by Mr. Van Cleve. 6. I was extremely surprised at the level of dry rot that was discovered when the walls were opened up and in the condition of the supporting members of the structure. Based on my observation, none of the structural material in the walls was capable of being utilized safely in the remodel of the home. 7. My investigation did not reveal these issues and in my opinion no reasonable inspection of the property would have disclosed these conditions until such time as construction actually commenced. 8. In my view, the work that has been performed to date on the premises is a first class professional job. In my opinion, the contractor, although perhaps not familiar with the peculiar regulations of the City of Newport Beach, made a good faith effort to perform the work on the structure in a highly professional manner with the upmost regard to the quality and safety of the construction of the home. �,5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. + Executed on January/A 2002, at Newport Beach, California. L ///I /z i c L ►C. Glen Lewis 4;zXWX W. I-M16 :�`` Feo -0: ]2 01:02om from- Bucnal[er.Nemer,Fialds 6 Younger +949 251 1828 T -201 P.002 /005 F -419 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 2$ 26 27 28 DECLARATION OF DON ABRAMS IN SUPPORT OF THE APPLICATION OF CHARLES VAN_CLEVE - 213 CORAL. BALBOA ISLAND I, Don Abrams, hereby declare and state: I. If called as a witness, I could and would testify of my own personal knowledge as follows: 2. I am a licensed real estate broker in the State of California and the owner of Rumbold Realty. My office is located at 302 Marine Avenue on Balboa Island. I am also an attorney licensed to practice in Connecticut, California, and Washington D.C. I practiced law in the District of Columbia as an Assistant United States Attorney and in Connecticut as Special Attorney for the U.S. Department of Justice Organized Crime Strike Force. 3. I was the agent for TVC Associates, Inc., ( "'f VC ), who acquired the property located at 213 Coral on July 20, 2000. 4. Mr. Van Cleve, ofTVC, acquired 213 Coral with the intent of remodeling the structure as his personal residence. He paid substantially more for the property than its value as a "tear down." 5. Mr. Van Cleve conducted his due diligence with the City prior to the close of escrow and elected to proceed with the purchase of the property on the assumption that it was suitable for a remodel. 6. Mr. Van Cleve consistently indicated to me that his intent was to occupy the remodeled structure as his family residence. It was not until, the extensive replacement of dry rot and unsafe materials was found to be required that Mr. Van Cleve elected to complete the remodel for resale due to the escalated costs which exceeded his budget for his personal residence. 7. From every indication I had, Mr. Van Cleve was surprised at the degree of replacement that was required. This view is supported by the fact that the replacement occurred over a period of months rather than what would otherwise be a one or two day demolition job. 8. 1 observed nothing to indicate that Mr. Van Cleve or Paul Cochran, co -owner of TVC and the contractor, intended to avoid or circumvent any of the requirements. of the City of Newport Beach. 9. I was not surprised at the extent ofthe replacement of dry rot and damagedmaterial that N., [-I 1 2 3 41 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0 :02pm From- eucnsi:er.Namer,Fielas S Younger *949 251 1828 T -201 P.003/005 F -419 occurred during the demolition and construction work on 213 Coral. It is a common practice to discover these conditions in older homes on the Island. I am familiar with numerous projects on the Island where substantial materials were replaced during demolition and construction as was the case with 213 Coral. Specific examples include the properties located at 327/329 Amethyst, 339 East Bayfront, 10I0 South Bayftont and 208 Garnet, which was recently completed. 10. I never received a Real Property Report from the City showing the square footage of the existing structure per City records. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January, 2002, at Ale k&r ✓cn' California. Dan Abrams �-A • Fab -d -32 91:02pm F•om- Bucnal[er.hemer,h elos g Younger 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 *949 251 1828 7 -201 P.004 /005 F -419 DECLARATION OF IAN J. N HARRISON IN SUPPORT OI' THE APPLICATION OF CHARLES VAN CLEVE - 213 CORAL, BALBOA ISLAA-D I, Ian J. N. Harrison, hereby declare and state: If called as a witness, I could and would testify of my own personal knowledge as follows: 2. I am a licensed architect in the State of California. My office is located at 1936 Teresita Lane, Newport Beach, California. 3. 1 am very familiar with the Newport Beach Municipal Code and the practices and procedures of the City of Newport Beach with respect to the remodel of residences in the City of Newport Beach and particularly on Balboa Island. 4. At Mr. Van Cleve's request, I reviewed the structure at 213 Coral to determine if it had been constructed in conformance with the approved set of plans. 5. 1 made field measurements of what appeared to be the footprint of the original structure as well as the what is currently constructed. Based on my review, I determined that the building is being constructed substantially in accordance with the approved plans. The area of the home as remodeled will consist of 3,008 square feet. 6. During the course of my walk -thru of the house, it is apparent that most, if not all of the existing studs were replaced. In my experience with remodels on Balboa Island, most of the older homes need to have a lot of the existing structural flaming members replaced due to poorly done original construction or subsequent remodels, and/or dry rot or mold. In my experience, the City has never required a recalculation of the percent of the structural alteration of a building based on the replacement of these materials. My impression has always been that the City looked on such replacement as maintenance and not new construction. The Uniform Building Code, Chapter 1, Section 102, specifically states that unsafe conditions cannot be left unaddressed. 7. During all of my experience in processing remodels in the City of Newport Beach, I have never seen orbeen provided acopy ofthe written definition ofthe means ofcalculating "structural alterations" that Mr. Albettar now contends is the long standing definition utilized by the City. (have never been informed that, as an architect, I could identify additional structural elements if the exterior a� LUWFOO-VI 4,;UdPm from- guenaicer.Nemer.h elos 4 Younger +949 251 1707 T -430 P.002/002 F -466 11 21 3 4 5 6 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alterations exceeded 25% of the perimeter of the building. The methodology now suggested by Mr. Albettar is inconsistent with the past interpretations of the prooisions of the Code relating to the remodel of non- conforrning structures that I have received from City Planning staff. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 1-20 0 Myra Gentner 215 Coral Avenue Balboa Island, California 92662 January 30, 2002 Planning Commission City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 -8915 Re: 213 Coral Avenue Dear Members of the Planning Commission: I live at 215 Coral Avenue on Balboa Island, directly next door to Mr. Van Cleve's property at 213 Coral Avenue. I attended and was prepared to speak at the last Planning Commission hearing on this matter but am not sure I will be able to attend on February 7`s. I want to make my views known to the Commission and so I submit this letter in lieu of making an appearance. I am very familiar with the construction next door and have observed the job from its inception last spring. 215 Coral has been in our family for many years, so I am familiar with the former structure on 213 Coral, including its dilapidated condition just prior to Mr. Van Cleve's activities on the site. The prior residence was a study in deferred maintenance, disrepair and blight. The place was an absolute wreck and a major eyesore for the street. I was not surprised to learn from Paul that much of the structure of the home was rotten. At times, we wondered if the place would suddenly collapse, taking us out in the process. So it was with a sense of relief that we learned a new home would be going up. The new home being built by Mr. Van Cleve will be a huge improvement over the former place and a real asset to mid -block Coral Avenue. The house looks the same as the former structure in terms of height and mass, but will have a lot more architectural detail. I think it will be far more sound than the old house, with the addition of all the steel beams and girders. I urge the Planning Commission to allow Mr. Van Cleve to complete his home. We would not look forward to enduring some form of demolition and reconstruction next door and that proposal seems totally inappropriate and wasteful. We also grow tired of the trespassers wandering around the half - completed house, picking up the trash that seems to accumulate there and are concerned about vandalism. On behalf of many neighbors, I thank you for your consideration. Sincerely, CJ 3�- Ronald V. Conti • 211 Coral Avenue Newport Beach, CA 92662 February 4, 2002 Planning Commission City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 Re: 213 Coral Avenue Dear Members of the Planning Commission I reside on Balboa Island at 211 Coral Avenue which is located next door to Mr. Van Cleve's property at 213. I was present at the last Planning Commission hearing relating to the subject property but was not given the opportunity to speak. As I will not be able to attend the scheduled February 7`s meeting I would like to submit my comments in writing. Having lived at 211 Coral Avenue for the past three plus years and having been a frequent guest for the two years preceding that, I feel that I am familiar enough with the • property to share my observations. The old structure was in desperate need of repair. It was an eyesore to the neighborhood and neglected the entire time I have been on the Island. Over the years many neighbors, along with guests to my home, have commented as to the sorry condition of the property and what an embarrassment it was to the street. I observed the construction process and could see they were encountering significant problems every step of the way. The former structure was systematically dismantled with great care over a long period of time and the scope kept increasing as they discovered new problems. Had it been their intention to demolish the structure it would have been done in a much shorter period of time and more economically. The new structure appears to conform to the profile of the previous structure and has no adverse impact on my home and or property. Our neighborhood needs to be restored. I would like to see the construction work completed and not deal with the partially finished structure on a daily basis. I am constantly faced with people trespassing on the property and have had to pick up additional trash that seems to accumulate around an abandoned construction site. LJ 3� i 0 February 4, 2002 Page 2 Please allow W. Van Cleve to complete this project. We have been faced with a partially completed structure for too long a period of time. Thanks for your consideration. Sincerely, OWV�� Ronald V. Conti 2�5 L, Mark & Claudia Tyson 212 Sapphire Avenue, Balboa Island Newport Beach, California 92662 Phone: 949-673 -3866 Fax: 949.613 -0825 February 3, 2002 Planning Commission City of Newport Beach' P.O. Box 1768 Newport Beach, CA 92658-8915 RE 213 Coral, Balboa Island Dear Members of the Planning Commission: We are 20 -year residents of Balboa island currently residing at 212 Sapphire, a home we built 7 -years ago. At the time we purchased our property, the condition of the above referenced home was deplorable — and more in keeping with a ghetto environment than the charming community of Balboa Island. The obvious state of structural disrepair, pest and insect infestation, uncleanness and ongoing neglect was terrible to endure, as we lived directly behind the subject dwelling. Those residing within simply ignored their animal's waste leaving it to rot along with the carcasses they threw outside for their pets to consume. During the seven years we owned our properly, they allowed trash, debris and old mattresses to deteriorate and remain discarded along their side yards. At the time the home was sold to Mr. Van Cleve we had an opportunity to tour the house, where we saw first hand, the condition of this disgusting piece of property. It was hard to believe that the City of Newport Beach and all its departments responsible to guard the general health and safety of the area would not only allow people to live in such fifth, but require those around the property to tolerate such unacceptable conditions. The infestation of termites in the old wooden dwelling was so severe that swarms migrated to our residence causing damage to our newly constructed home and necessitating thousands and thousands of dollars in tenting, fumigation and repair costs. We could not have been more thrilled when the subject property was sold and we learned that the property would be totally renovated. As work began, Mr. Van Cleve and his contractors exhibited care and consideration toward us and the other neighbors surrounding the property. When the old framing was exposed, I was shocked to see, on a daily basis, as workmen 31 Letter to City of Newport Beach Planning Commission Dated February 3, 2002 Page 2 of 2 removed plank after plank, the extent of decay and infestation throughout the house. We assumed your inspectors were in synch with the decomposing structure that was uncovered and we were relieved to see that the rotted and infested material were removed. While we could not have been more pleased that the subject property was being rebuilt with an emphasis on quality, we are now dealing v dh a new problem. The home has been suspended In a.pardally completed framing stage for almost six months, causing it to become not only an eyesore, but also a growing safety concern. Although fonced off to prevent entry, we've noticed numerous trespassing, especially children that could fall and be injured. We ask the building and planning department to act as soon as possible on getting the building activity on this property to resume so that the neighbors surrounding this suspended construcfion aren't further adversely affected by this situation. From the elevations and Boor plans that Mr. Van Cleve kindly showed us, after he received Planning Commission approval, the planned home appears to be beautifully designed. Considering the deplorable condition of the previous property that was allowed to blight the beautiful island of Balboa, it would seem that every effort would be made by the City of Newport Beach to encourage premium construction to upgrade its troubled properties. Please advise us on how quickly this matter wits be resolved. Thank you. Sincerely, Mark and 2dha Roxburgh Tyson 00: Mr. Chuck Van Cleve 11 3� 213 Coral Avenue • (PA 2002 -002) Chronology of Events 01/25/01 Plans submitted and first reviewed by the Planning Department. The applicant was informed that the plans were not complete and was requested to provide additional information to determine compliance with Zoning Code regulations. 02/22/01 Review of revised plans by the Planning Department. Based on the information contained in the revised plans, the Planning Department determined that that the existing house exceeded residential floor area limits and that the work (demolition and replacement of existing exterior walls) constituted a new house rather than a remodel, thus requiring review by the California Coastal Commission. 03/07/01 Review of revised plans by the Planning Department. The applicant was informed that the plans indicated that more than 25 percent of the structural elements were being altered and that a modification permit or a use permit would be required. The applicant submitted a revised plan, which represented that the alteration would be limited to 25 percent or less of the structural elements. 04/06/01 Building permit is issued. . 05/02/01 Pre - construction meeting with Building Department. 05/23/01 Footings and slab inspected and approved by Building Department. 07102101 Subfloor inspected and approved by Building Department. 07/06/01 Site inspection by the Building Department. Inspection report states that prior to the next inspection, all changes must be reflected on the plan and approved by Building and Planning Departments (staff estimates that 100 percent of the exterior and interior walls were new). 09/11/01 Roof Framing inspected by the Building Department. A correction notice was issued requiring that the plan be revised the plan to reflect the new site conditions before any further inspection could be made. 09/19/01 Stop Work order was issued by the Building Department for exceeding the scope of work on approved plan. The applicant was informed that all changes must be approved on the plan by Building and Planning Departments before any further work. 12/20/01 Appeal filed. 01/17/02 First Planning Commission hearing on the appeal. . 02107102 Planning Commission upholds Planning Director's interpretation. 3°' City of Newport Beach Planning Commission Minutes 7, 2002 Ms. Temple noted that Mr. Dave Kiff, Assistant City Manager was present as this proposal is one that he has been working on with both the State and County. He has a brief presentation if Commission requests. At Commission inquiry, Ms. Temple noted that whether this is to come back to the Planning Commission or not has not been discussed as this is not zoned land; there is a possibility. City Council has been involved in workshops on this as well. The actual General Plan Amendments on both Newport Village and Shellmaker Island will come back to the Planning Commission at public hearing. The project approval on Shellmaker may or may not. Public comment was opened and closed. Motion was made by Commissioner Agajanian to recommend to the City Council approval of General Plan Initiation No. 2002 -003. Ayes: McDaniel, Kiser, Agajanian, Gifford, Kranzley, Selich Recused: Tucker •r• SUBJECT: Appeal of Planning Director's Interpretation 213 Coral Avenue (Van Cleve Property) • (PA 2002 -002) An appeal of the Planning Director's interpretation of Section 20.62.040 (Nonconforming Structures) of the Zoning Code. Chairperson Tucker noted that the Planning Commission had a lengthy hearing at the meeting of January 17, 2002. The nature of the discussion ranged far and wide on the topic with a lot of details on the background of how this ended up getting to the Commission. Tonight, unless four Commissioners feel differently, I am hoping to confine the discussion to just the jurisdictional matter that is before us. That would entail an appeal of an interpretation of a Code Section whereby the Planning Director is vested with the authority to make that interpretation under the Zoning Code Section 20.00.065 A. If that interpretation is unacceptable to an applicant or person to whom the interpretation applies, then Section C of that some Section allows that particular aggrieved party to appeal if to the Planning Commission. That is the only authority before us. For us, the appellant filed an appeal on two portions of the Nonconforming Use Code Section 20.62.040 C which has to do with the concept of the percentage of structural elements that were changed; and then 20.62.040 E, which has to do with whether or not an immediate repair was necessary. Those are really the only things before us, which is another way of saying that the pre - remodeled square footage is not relavent or before us, and past or current plan check or inspection procedures are not really,before us either. We are only being asked to interpret a Code Section. Staff agreed. ¢....___. .._ ..._ 1 . Goa g INDEX 0 Item No. 3 PA2001 -002 r� L_J 4b • City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX Chairperson Tucker then confirmed with the Commission that they did not need to hear any other aspect of this then just the jurisdictional items before them. He then stated that he would ask staff if they had any further information on these narrow topics and then would ask Mr. Grable for any additional information that he did not give at the last meeting. Ms. Temple stated that staff wanted to complete the presentation that was prepared for the last meeting, which really is the Planning Department's comments specific to the jurisdictional items that are before the Commission in terms of the interpretation and the ideas proposed by the appellant in terms of an alternative way to view implementation of the Code. That would be all we have other than the additional information provided by Ms. Clauson. Mr. Patrick Alford, noted that the project site is in the approximate center of Balboa Island. He noted the following during a slide presentation: • Issue is an appeal of interpretation that the calculation of structural elements should be based on the linear footage of load- bearing walls. The applicant /appellant has made the following points: :• Retained footings should be included as structural elements. :• Since footings support the entire structure, they constitute at least 50% of the structural elements. Interpretation only considers exterior walls. Interpretation disregards distinctions in the definitions of 'building,' 'structure,' and 'structural alterations.' Public safety exception should be granted due to the dry rot found on the site. • Dealing with the issue of footings as structural elements, there is no established methodology for determining a single element's importance in the structural integrity of a building; studs, joists, rafters, and beams all work together to support the frame of a building. Therefore, staff's contention is that the structure has to be viewed as a system. He then presented illustrations noting that while it is true that the weight of a structure is eventually transferred down to a foundation, the structure itself can not be supported unless all these elements work together to transfer that weight. • Key to this is the definition of structural alteration, which under the Zoning Code is any change or replacement in the supporting members of a building such as bearing walls, columns, beams or girders. Under the Planning Department's interpretation, the most commonly issue dealt with is the bearing walls. The percentage is calculated based upon the linear footage of bearing walls. • The applicant's interpretation is based on the role an individual component plays in supporting the load of the structure. Consequences of the applicant's interpretation are: The applicant has not identified the basis on which his estimate of the percentage of the structural elements that the footings constitute (i.e., load, area, volume). i• The percentage (25 -50 - %) is arbitrary without any basis. 5 DRAFT )! If City of Newport Beach Planning Commission Minutes 7, 2002 S• The applicant's interpretation can not be applied consistently to other projects. S Not all remodels have this amount of exposure or documentation on past remodels. Essentially, an applicant may not be able to provide staff information how much alteration occurred in the past. o Using the applicant's method we would require exposing wall sections and /or the excavations of foundations. •> This places a hardship on remodel permit applications. 50% or more of a nonconforming building could be demolished and completely reconstructed by right. This is inconsistent with Chapter 20.62, which requires that nonconforming structures be brought into conformity in an equitable, reasonable, and timely manner. Dealing with the issue of consistency with Zoning definitions: The assertion that staff only considers exterior walls is incorrect. As indicated in previous testimony, we also look at interior walls and roof structural elements in the calculation of the percentage. This is consistent with the definition of 'structural alteration',' which identifies 'bearing walls' as an example of the supporting members of a building. :• Footings are a part of the bearing wall, just not a separate element. The current method is practical and fulfills the intent of the Zoning Code. Dealing with public health and safety exception: The Building Director must determine that modification or repair is immediately needed to protect the public health or safety. The Building Director must determine that the cost does not exceed 50% of the replacement cost of the structure. The Building Director has not been asked to make these determinations. Chairperson Tucker noted that the issue of percentage is not before us. We are just interpreting whether something is a structural element, not what percentage of it is, assuming that we agree that it was a structural element. The appeal is not about what the percentage is. Mr. Alford answered that was correct and that the percentage was only used to illustrate how if this interpretation is followed, the eventual consequences of this might be to future projects. Mrs. Wood added that if the Commission were to agree with the appellant that staff should be looking at the foundations, then what we would have to do at 6 AFT INDEX • • r1 �J IN City of Newport Beach Planning Commission Minutes February 7, 2002 staff level is again work with the applicant to determine the percent and whether they have exceeded the 25% or the 50% limit. In effect, we would be starting over the process that we have gone through on the lineal footage and the bearing walls. Chairperson Tucker asserted that jurisdictionally, what is before us is an interpretation as to what is a structural element and what is the proper thing to measure, not what that measurement should be. Ms. Clauson added that the interpretation of the Code has manifested itself in a method of determining the percentages of alterations. Staff has not asked you to determine the percentage, but the appellant has. It is an issue that is being brought before you and staff is addressing that information for your review. It is connected to the interpretation. Commissioner Gifford noted that it seems what is before us is strictly whether the interpretation made by the Planning Director is legitimate, or not. And then the consequences that lead to the calculation of percentage just flows from that. The underlying task is just to determine whether the method was appropriate. Commissioner Kiser stated that if what is being asked is whether the Planning Director's interpretation of the Section is a reasonable and appropriate way to • interpret it. The appellant has suggested that there is a better way to do it. So it is relevant what the appellant suggests we do in modifying the way in which the Planning Director interprets that Code Section. If there is not something that is more reasonable on the table for us to consider, then we are going to have to come up with the justification for finding that the Planning Director's interpretation was not reasonable. Ms. Clauson said that is one way to look at it. What we are trying to say is that there might be other ways to interpret the Code even if you think that the Planning Director's way of interpreting the Code is correct, there might be others, then that is one of your alternatives. Commissioner Kiser stated what he is suggesting is that one of the proposals of the appellant does not seem to be any more reasonable or appropriate than the Planning Director's interpretation then we're left in an abyss of finding what might be a more reasonable way to interpret our Code Section. There is one that has been used by the Planning Director, and if we are to find that is not reasonable, then it would be in contrast to what is being proposed. It is relevant that we look at whether there is a better way to interpret this thing essentially. INDEX Commissioner Gifford stated that she thought the appeal was that the Planning Director's interpretation was not appropriate as a method of interpreting the code. We either find that it is or isn't. I can see that the result of our finding that it is or isn't leaves something definite in place because we are being asked to find that it isn't in light of certain proposals or alternatives that the appellant is • making. Ms. Clauson's memo suggests that method would automatically -._... 7 ?T �3 City of Newport Beach Planning Commission Minutes • February 7, 2002 INDEX become a substitution for the method that has been used by the Planning Director and then read an excerpt from the memo: 'If the Planning Commission determines the Code requires consideration of the footings contribution to the structure of a building or that individual structural elements of a building including footings should be counted, then the Planning Director's method of implementing the Code will be changed to be consistent with that interpretation because Planning Commission's determination will be one of general application for all remodels of legal nonconforming structures....' I have the impression that we don't have the alternative to do a third thing, what we might find most reasonable. Commissioner Kiser said it is instructive to me to at least consider what the appellant proposes to fix the supposed unreasonable interpretation of the Code. If we hear a proposal for interpreting the Code Section in a different way and it sounds no more reasonable to us than what the Planning Director has been using, then it seems to me that is relevant in our considering whether the Planning Director's interpretation is reasonable. Commissioner Gifford noted that part of what the applicant is attempting to demonstrate are reasons why the Planning Director's interpretation is not reasonable. I don't have the impression that they are saying the Planning Director's interpretation is reasonable and so is theirs so there is no reason why theirs shouldn't be used. . Commissioner Kiser noted that if what is being proposed by the appellant as being a more reasonable interpretation of the Code doesn't make sense to the Planning Commission, then the Planning Director's interpretation as it stands and has throughout this matter that is before us may appear to be something that is more reasonable than what is proposed. It is relevant; reasonableness is a subjective thing. We need to consider everything that is before us, for instance, the percentages that the appellant thinks that the foundation system should be of the structure of the home and whether that could be consistently applied. It all goes to again, how reasonable the Planning Director's interpretation is, I believe. Chairperson Tucker stated he is not sure that jurisdictionally the Planning Commission has the authority that you just described. The Section that is involved says, '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 provisions.' That determination can be appealed to us. In this particular case, the intent of the Code, I don't think, has anything to do with the percentages if you will. It has to do with definitionally with what is a structural element, but I am not sure that we have the authority to start getting into the discussion on percentages. Our authority is only as set forth in this Code. It is not that the appellant does not have a remedy in some other jurisdiction, like the City Council or a court, but as for as the Planning Commission is concerned, our only authority is where uncertainty exists regarding the interpretation of any provision of this Code or its application to a DRAFT 1 City of Newport Beach Planning Commission Minutes February 7, 2002 specific site, we review what the Planning Director determines is the intent of the provision. That doesn't sound to me that we are in the business of trying to decide if something is 25 %, 50% or 75 %. It is just what should be included in the term, 'structural element,' I think is our only jurisdiction. Why don't we have the appellant come up. Mr. Grable, 895 Dove Street, Suite 400, NB., attorney at Buchalter, Nemer, Fields and Younger representing the appellant noted the following: • Written testimony has been presented to the Planning Commission. • Coming in after the fact where an inequity has occurred. • An interpretation has arisen that is causing the applicant to potentially demolish a portion of the structure and reconstruct it. • We are asking for a literal reading of the Code Section; you can't amend your codes through interpretations. • It might not be a better way of calculating this or not a way the City would like to have the result of being in this situation. The remedy is not to apply a subjective measure back against this property, the remedy is to amend the Code. Chairperson Tucker noted that as a jurisdictional matter, your basic position is that the structural elements includes the foundation. Once again, I don't think • that is part of what we are here to determine, what the percentage might be. The question is does it include that, and then if the Planning Commission was to decide that, this issue would go back to staff and the applicant to try to figure out what that means. He then asked about Section E2 Public Health and Safety, saying he had not heard anything on that issue. He reiterated that he is interested in staying with what is in front of us, we understand the hardship and that background. At the last hearing, we let everyone ramble on as much as they wanted and I would like to see us focus in on things that are actually within our authority to decide. There was a lot of things that were interesting, but there is nothing the Planning Commission can do about it. Mr. Grable noted: INDEX • The latest memo sent to the Planning Commission has a summary of the applicant's positions. • The practices on the island are to calculate the percentage of alteration and then once that is done, build it out in accordance with the plans and specifications; that was done. • The difficulty that arose from that is that in doing so we replaced rotted and damaged wood in the process which has caused this now to become an issue. • We have testimony from an independent architect, that that is a common practice on Balboa Island. We also have declarations from the local realtor and resident who is also a contractor. • If we can agree that is the way things are done, then we shouldn't be here arguing about it. • In reviewing your Code now that we have a situation where it might DRAFT �5 City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX result in tearing down all or a portion of this building, what does the Code literally say? The Code only talks about modifications to structural elements. • The foundation is a structural element. A way to calculate it needs to be found. • It might result in a situation in the City where you might have more structures that can be remodeled than you like from a policy standpoint. The answer is, don't penalize Mr. Van Cleve for that, fix the Code. • The engineer can talk about the structural issue. • The method of calculating that or how much it is, really is not before you. • The issue of determination of public health and safety, we have a number of declarations and letters written testifying to the lack of structural integrity of this building before we started the demolition. • We can provide evidence to justify that at least 25% of the materials removed were for this very purpose. If that is the case, we have a remedy we can go through and apply for a modification or use permit and get this back on track. • The key point is, did that determination have to be made before the materials were removed, or can we now ask the Building Director to make that determination, that it can be determined after the fact. • The Code does not say it can not be done after the fact. Chairperson Tucker read the language of Section E: 'Structural elements of a legal nonconforming structure may be modified or repaired if the Building Director determines that such modification or repair is immediately necessary to protect the health and safety of the public or occupants ...'. That sounds like he has to make the determination that such modification or repair is immediately necessary. That imparts to me that it is something you need to ask him about, not tell him about after it happened. Mr. Grable noted that if Mr. Van Cleve had known it was an issue, that would have been done. However, we did not know it was an issue at that time. We are asking the Building Director now. If there is evidence to demonstrate that, what would be the harm in demonstrating it now? Chairperson Tucker noted he does not read it that way and has jurisdictionally a series of things that need to happen; one of which is when the Building Director makes a determination. Commissioner Gifford asked staff if a determination had ever been made in any other case after the fact with respect to replacement due for health and safety reasons? Ms. Temple answered that during her tenure with the City, she does not recollect such a determination ever having been made. i DRAFT �' In City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX Mr. Elbettar, Building Director answered that he has never been required to make a determination such as this during his tenure of five years. Referring to the staff report on page 6, Commissioner Kiser read that, 'it should be noted that the Building Director reviewed photographs of the framing taken by the applicant during the demolition phase. The building Director stated that there was no indication of dry rotted lumber, or that any dry rotted lumber present was an immediate public safety hazard. .....' I would like to have that statement confirmed. Mr. Grable interjected that the photos were not of dry rot, the intent of those photos was to show where the floor joists on the second floor had been cut down by previous construction. The engineer can testify to that. Mr. Elbettar, stated he agrees with the previous statement. These were the only photos taken and were not intended to support the dry rot issue. I want to state too, that I have not received as of today, and I emptied my in basket before I came here, such a request that we would evaluate the dry rot or materials removed or evidence otherwise. Mr. Grable noted he has covered the points he has made on structural elements. The engineer can now testify to this matter. Chairperson Tucker stated that after the engineer speaks, anybody else who has expertise and would like to testify, that would be fine. We have a lot of things in the way of declarations that are all well and good for some other authority, but don't really pertain to the limited things that we can decide upon. If is not that they are not relevant, they are not relevant to us. I would like to listen to somebody who can testify as to structural elements and anybody who thinks they might have enlightenment why the Building Director can after the fact, make the determination as to the health and safety issue. He then brought if back to the Commission for discussion on hearing testimony on the E2 section as well as on the structural elements part. Chairperson Tucker asked if there was any interest on hearing testimony on the public safety issue or if there was an interpretation that it was something that needed to happen before the former structural elements got removed? Commissioner Kranzley stated if was clear to him that this needed to be determined prior to the reconstruction of the project. The intent of the Code is basically to end the legal nonconforming uses at some point in time. The legal nonconforming uses should eventually conform. I don't think there is any other way to determine that Section of the Code with regards to when there is a public health and safety issue, whether if is determined prior to or post fact. It is clear to me. Commissioner Gifford noted that the Code is fairly clear on that issue but at the some time, we have a lot of things that come before us that have been FTtl i City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX accomplished and we are asked to subsequently grant the variance or the modification. One of the things I would be interested in is what the public health and safety issue is, because if it could be resolved, that makes the structural element moot. Whether Mr. Grable believes he has compelling evidence that he could present to Mr. Elbettar to make a determination to consider something and saying although this was not brought to our attention, there are potentially some mitigating factors for that based on our understanding of practice we are persuaded by the evidence that it was a serious situation and we will consider granting an approval after the fact. This building is sitting there now with nothing happening for the good of anyone, the City or the applicant. If there is an opportunity to find out if there is evidence that potentially would be persuasive to consider a post facto approval, then I would like to understand whether that would be worth pursuing. Chairperson Tucker stated the question before us on this item is do we believe that this Code Section can be /should be interpreted to allow for after the fact determinations by the Building Director. It should not have to do with the quality of the after the fact information, the question is either does it allow after the fact information or doesn't it. That is the legal question before us. Commissioner Selich stated he agrees with Commissioner Gifford's comments, but that is between the applicant and the Building Department and does not involve the Planning Commission. For whatever reason the applicant has elected to approach the Building Department on that issue, I don't see it as something the Planning Commission should be involved with. Commissioner Kranzley noted his agreement with previous statement. Commissioner Kiser stated that we should not be hearing any evidence that might lead to a resolution after the fact by the Building Director. The first issue we have to resolve and decide is whether the Code Section intent is to allow the Building Director to do this after the fact. If our determination is yes, then we go to step two taking this evidence. If our determination is no, then we don't hear it. I don't think the Section allows for after the fact determination. That would be my vote on this issue. Commissioner McDaniel agreed with the previous comments adding that we should try to stay focused. Commissioner Agajanian concurred. Chairperson Tucker stated that on the issue of the after the fact nature, we will take testimony as to why our interpretation is wrong, but we do not want to hear about all the things that happened. For purposes of whatever arguments you want to make, we will assume that this thing was in terrible shape and a danger to all. Physical condition is not the issue, the issue is should you have asked the Building Director in order to take advantage of this Section and four of us are saying yes, that is what the Section ways to us. UDRAFalw +', City of Newport Beach Planning Commission Minutes February 7, 2002 Commissioner Kiser noted for the record that we should not assume that the building was about to fall down. I am back to the minutes and suggest that the building was ready to fall down a that we are ready to assume anything. concerned that someone could come now the Planning Commission assumed id I don't think that we should suggest Chairperson Tucker answered that he was trying to not hear about the terrible shape of the building by assuming if was in terrible shape. Let's hear from the structural engineer on the issue of the structural elements. Shucri Yaghi, 112 East Chapman Ave., Orange, Consulting Engineer of the project noted that he had been called in during the demolition period to look at the existing lumber. He then noted the following: • Lumber was in very bad shape • Some areas could have been fixed and some areas needed to be replaced because it was in bad shape. • Changing the lumber for the same, it was not adding anything. Chairperson Tucker stated the issue is the structural elements in your opinion still remaining after everything that was demolished and taken away. The contention is that structural elements were still left because of the structural foundations. The staff is saying if should not include foundations. Mr. Yaghi stated the foundations is a structural element and the foundation supports the whole building. The building has to meet the 1997 Uniform Building Code (UBC) that is very strict in terms of earthquake and internal vertical loads. Everything needs to be tied down to the foundation, we use different frames and they all have to be tied down to the existing foundation. The existing foundation carries the majority of the building whether it is for every day use or during an earthquake. Continuing, he noted: • Designing a project in the City of Newport Beach we must meet the 1997 UBC. • Nothing that exists on this project, meets those UBC requirements, not even the anchor bolts. • There were some elements in the lumber that were real bad and could cause a safety hazard, for instance there was a beam that was 16 inches deep that was cut down to 4 inches; also the top plates that transfer the earthquake loads to the sheer walls that is 3'/2 inches wide has a 3 inch hole in it, so there is nothing left in it. Also, there is a hinge on top of the wall, evidently at one time this use to be a one story and another story was added by creating a hinge that could fall during an earthquake. Chairperson Tucker stated this is interesting, but we only need a narrow band of information tonight, and that is interpretation of a Code Section. Mr. Grable offered to help by asking questions of Mr. Yaghi, Commission agreed. DRAFT INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX Mr. Grable asked and was answered: • Whether the foundation is a structural element of the building. What did you tell us? - Mr. Yaghi answered that the foundation carries the whole building. • The role it plays with other structural elements comprises what percentage of the carrying of the entire structural load of the building? - Mr. Yaghi answered it carries the whole load, at least 50 %. • What you are saying is that the foundation carries 10017a of the load, since the balance of the structural elements are also carrying 100%,, then it must carry at least 50% of the total calculation. Does that make sense? Chairperson Tucker answered the percentage is not before us. The testimony is it is a structural element. Commissioner Kiser stated the staff does consider the foundations to be a part of the structural system of the home. Mr. Ian Harrison, 1936 Terrace View Lane an architect stated he was called because he does a lot of work on the island. He noted: • Arbitrary approach when dealing with the Planning Department on what is considered a remodel, how we all arrive at the 25, 50 or 75 %. • It has been practice on the Island where you replace old material because it is not cost effective, especially with molds. • Even a nail is a structural element. • To ask the Building Director to look at every stud, I think at that point, is typically not done. I have never come across that. • In this case, the building was so bad that it ended up being a lot more than anybody expected. It went beyond what is the normal practice and beyond anybody's control. • We are looking for an interpretation that the way the Planning Director looks at this percentage is valid but there is another valid interpretation. • By saying Mr. Van Cleve can go ahead with his building, it is not setting a precedent for buildings down the line. • The intent of the Code is not to eliminate nonconforming uses; you are allowed to do a 25% change to a nonconforming building in one year. Next year you could do another 25 %, etc. ad infinitum. • The intent of the law is not to do away with nonconforming buildings, it is to have some control over nonconforming buildings. Commissioner Kranzley disagreed stating there are three Commissioners who were actually on the committee that re -wrote that Code. I clearly understand what the intent of the Code is. • City of Newport Beach Planning Commission Minutes February 7, 2002 Mr. Harrison answered that is not what is written, otherwise you would have limited how many nonconforming times you can come in and do it. At Commission inquiry, he stated that he has done at least 30 nonconforming buildings on the island. Mr. Grable then read a letter dated November 9, 2001 from Mr. Elbettar to Mr. Van Cleve regarding concrete slab on foundation as structural elements. Commission Gifford noted that by counting linear feet, you are counting all elements of the structural system. Therefore, you are not neglecting the foundation as a part of the system. At looking at exterior walls and the linear feet have certain repeating patterns and that would be included. I am not asking for your interpretation. Discussion continued on alterations of structural elements versus structural systems verbiage. Mr. Van Cleve, 93 Ocean Vista stated the following: • This is an unpopular issue. If the foundation is part of the structural elements and by measuring the linear footage of the building, it includes the foundation and we have left 100% of the old foundation on the job, there is no way we could have removed 100% of the structural elements. It is that simple. • What might help for the future is to change the words structural elements to above ground structure or we change it to structural elements excluding the foundation. Then you could do linear footage. Then you would just measure and take out what is being done. • If the foundation is part of the structural elements, we left it on the ground: everything new is tied into it. • 1 did everything that I felt was possible. I thought I did the right thing. • I am not required to hire an on site architect and I didn't' hire one. • 1 hired a design firm, the architect stamped the plans. • I didn't get anything from the City saying that I had to know everything in the Code before I built my house. • I went by the knowledge of what I ran into, experience, and what I did. • My plans were approved April b, 2001. • 1 called the Building Department when I started the demo and let them know I was going to have to reengineer the whole thing. May 3�d, I brought the new structural plans to the City that showed a complete new second floor and a new roof and 75% of the ground floor being changed. Chairperson Tucker stated that this is veering off the issue, you are giving us the historical information that the Planning Commission has seen in the . documentation. Really that is something that we can not deal with, but there DRA FT INDEX 0 City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX are other bodies where you can go and make those arguments. The Planning Commission has to deal only within the Zoning Code. You have other issues that are beyond zoning issues that are appropriate for somebody else. Mr. Van Cleve concluded, asking for justice. Mr. Grable asked Mr. Elbettor for clarification on a public safety removal before or after the fact. Mr. Elbettar stated the issue of replacing dry rot wood is not a main concern for the Building Department for a conforming structure. This exception is part of the Zoning Code and only becomes an issue when the structure is nonconforming and then you need to remove beyond a committed percentage that you committed to already on the plans. You have to now exceed that because you have found dry rot. That is a unique issue and has never happened in my tenure. Ms. Temple noted that the Planning Department uses the perimeter measurement as the most readily understandable enforceable and likely to yield a conclusion that is a reasonably effective way of having a consistent administration of the Code. When the percentages of removal start to become fairly close to any one of the thresholds or slightly exceed certain of those thresholds, we will allow the architects to provide us further information on the interior bearing walls to add to the calculation and also, will consider . maintenance of the roof or preservation of portions of the roof as factors in the calculation. But those only come into play when the initial calculations result in one of those thresholds being exceeded by a small degree. This has been done in the post. Mr. Grable concluded by saying his client is in a difficult situation. In order to get past this situation, we ask that you take a very close look at the literal language of the Code. While it might not be the best interpretation, or for the purposes the City would like to have here, or might not be the easiest one to administer, because of the consequences to Mr. Van Cleve, we think we are entitled to a literal reading of the Section. The literal reading is you count the structural elements, you can't pick and choose which one you want. Glen M. Lewis, 205 Agate Street noted that he had been interested in this house prior to the current owner buying it. He stated that he had inspections done and found numerous holes in the roof that had caused inside the home several water stains on the plaster. The walls inside were very bad. He then discussed what procedures he followed as a working contractor. Ms. Clauson clarified for the record on the reading that Mr. Grable did from that letter dated November 9th, at the time when we had originally met there was an assertion that the slab constituted a percentage in the structural element. That letter was the statement that the City had never considered the slab. I know it says slab on foundation, but the focus was on the slab. If you look at Mr. Yaghi's . 16 ... :..._.. :__: '. DRAFT . City of Newport Beach Planning Commission Minutes February 7, 2002 certification, he says the slab is not part of the foundation. Chairperson Tucker, for the record, then read a prepared statement on his view of the matter: We have heard extended testimony about the house construction at 213 Coral on Balboa Island. The only issue before us is the appeal of an interpretation of the Planning Director of Zoning Code Section 20.62.040. The appellant contends the term "structural elements" as used in Section 20.62.040 C includes footings of the building on the subject property, which existed before the commencement of a remodel for which a building permit was issued by the City. The staff contends that structural elements should not include footings, but only exterior perimeter walls and in certain cases interior structural walls. The staff contends that the staff's interpretation has been consistently applied and is capable of being objectively determined in each remodel situation which presents itself to the Planning Director. The Planning Commission derives its authority from Sections 20.00.065 A &C. Section A provides that "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 ". Section C provides that an interpretation of the Planning Director is appealable to the Planning • Commission. Accordingly, the Planning Commission has no jurisdiction over past or current plan check or inspection procedures since they do not involve interpretations of the Zoning Code per se. Nor is the pre - remodel square footage relevant to the issue of code interpretation which is before us. The Planning Director interprets that the intent of Section 20.62.040C is to establish the degree of modification to a nonconforming structure which may occur, by right, with a modification or with a Planning Director use permit. The appellant concurs with this interpretation of intent (which is the expressed jurisdiction of the Planning Director), but contends that the Planning Director has not properly interpreted the term "structural element" in that Section. The term "structural element" is not defined in the Code, although the term "alteration, structural" is defined by way of examples which are not exclusive. Absent a statutory definition, the plain meaning of the term "structural element" should guide us. The staff also points out that the Section 20.62.010 intends that expansion of nonconforming structures be limited with the goal of bringing them into conformance with code requirements. However, Section 20.62.040 C does allow structural elements of nonconforming structures to be "modified or repaired" in such a fashion that their useful life could well be extended. We have also received substantial evidence both from staff and from the appellant that footings are structural elements of a building, albeit the determination as to what portion of such structural system is difficult to ____.._ m 'T INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX determine. The staff's resistance to including footings seems to be two -fold. First and foremost is that it would be difficult to determine as compared to the present staff administrative approach. The second seems to be an interpretation that structural in the present context means above the ground structures (as opposed to below ground facilities such as foundations), although foundations are part of the building permit process and not part of the grading permit process. Based upon the above, I would find that foundations are structural elements and should be included in the computation as to the portion of structural elements which remain. However, in doing so, the analysis should also include the fact that the original foundations appear to have been supplemented in a material respect by new footings and walls which appear to be bearing a very significant portion of the weight of the new building. It may well be over 75% of the structural elements of the new building are new and not the old foundations which appear to have been supplemented in a very material way. This percentage determination will need to be worked out between the staff and the appellant since this issue is not part of the appellants appeal and therefore is not before us tonight. I would also find that no substantial evidence was presented to support appellant's position that repair of the structural elements was immediately necessary under Section 20.62.040 E. Jurisdictionally, Section 20.62.040 E, by its very terms, may only be invoked "..if the Building Director determines that such . modification or repair is immediately necessary..." The use of the word "is" imparts the meaning the Building Director needs to have made his decision before the work is performed. There is no evidence that the Building Director was ever asked in advance. I would recommend that staff come forward with an amendment to Section 20.62.040 C to define structural element as used in this section. Since this is an exception to a general rule, it would seem that staff's past approach to the interpretation is supportable, but needs to be codified. Structural element in my opinion could be defined as above ground elements which include perimeter and interior walls as staff has used in the past. I would also recommend to staff that a separate building permit application be used for nonconforming structures which recites the rules and that a nonconforming structure which is excessively modified will not be considered a nonconforming structure. Further the building inspectors should be trained to refer any plan changes on nonconforming structures immediately to the Planning Department for concurrence or action. Commissioner Selich noted he agrees with some things that were just said and some he does not agree with. We are being asked to overturn some 25 years of the way the Zoning Code has been interpreted. It is the convention that has been used. In my opinion, the applicant has not presented any compelling evidence to overturn that, I think that staff has presented reasons why their 18 _. . DRAFT1 • City of Newport Beach Planning Commission Minutes February 7, 2002 methodology is reasonable. To get in here and start splitting hairs on structural elements, this time we deal with footings, the next time someone will come in and complain because the anchor bolts were not considered, or earthquake braces. Where is it going to end? We are dealing with remodeling on older buildings in the City that there is varying degrees of information on. It is not a building permit process, it is a method that was devised in the re -write of the Zoning Code which Commissioner Kranzley and I served on as a way to go towards the elimination, contrary to what was testified here, the elimination of nonconforming buildings but still provide for a reasonable way for them to be maintained. We argued a lot over that whole issue and was probably one of the more contentious things we discussed in the Zoning Code rewrite and we came up with this procedure as a reasonable way to deal with this situation. I am in support of the staff's interpretation and maybe some of your ideas of putting more things down in writing and clarifying some things, I can think of some other things in addition to what you are suggesting could be done. However, I don't think those are the issues that are before us. The issue is the methodology for interpreting this provision of the Zoning Code. The applicant's methodology may be a proper one in some circumstances, there are probably 20 or 30 other methodologies that you can come up with. I think the one that the Planning Department chose is the most practical and reasonable way for us to deal with this remodeling issue, particularly given the fact we have so many of these older buildings where we don't have a lot of information on them. I support upholding the Planning Director's interpretation. Commissioner Kranzley stated that in 1973 the residents of Newport Beach and Balboa Island decided, after a number of public hearings, that they wanted to keep Balboa island quaint. They actually down zoned, that is a huge deal in this town, the amount of square footage that they could have on the island. This house at the time became legal, nonconforming because it was built before 1973 and nonconforming because it is too large. What the citizens want on Balboa Island is to see these big houses get smaller. Contrary to what Mr. Harrison says, we do have a very liberal policy about the work that can be done, but if a house falls under such disrepair that the only way for the house to stand up is to scrape the entire house, that absolutely flies in the face of the intent of the Zone Code. To completely tear down the house and rebuilt it, completely goes against what the citizens of Balboa Island wanted and what the citizens of Newport Beach wanted back in 1973. I would absolutely support the interpretation by the Planning Director. Commissioner Kiser stated he agrees with everything said by Commissioner Selich and Commissioner Kranzley. The Planning Director's interpretation of the Code Section and the way in which the Planning Department calculates the amount of the structure that is being altered is very reasonable and easy to understand. In fact, it gives the applicant a chance to try to keep structural element alterations under the defined percentages. I support the Planning Director's interpretation and while this may be an unfortunate situation, I don't think we should go about torturing our own system, which I believe to be very • reasonable. - T INDEX City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX is Commissioner Gifford stated that the matter of health and safety is taken care of. I believe the Planning Director has made a reasonable and fair determination in her application and understanding of the intent of the Code with respect to nonconforming structures and remodels. I think that the interpretation that the Planning Director has applied results in something that is very coincident with the intent of the Ordinance. I think the interpretation that the applicant urges and I understand that hard circumstances make a strained interpretation, but I think it would result in an absolute total negation of the intent of the Ordinance and the Code. I support the interpretation of the Planning Director so that the intent of the provision can continued to be administered and upheld. Commissioner McDaniel, noting that everyone else has been much more eloquent then he could, stated that he sees no reason to overturn staff's interpretation. Commissioner Agajanian stated he supports the reasonableness of the decision that the Planning Director has made. If there is any relief to be found with this project, it will probably be with the City Council. Ms. Temple stated that at the last meeting, a draft resolution was distributed. It was prepared for majority action. The Planning Commission reviewed the draft. Ms. Clauson clarified that if there is a determination by the Commission on an interpretation of that section then you would include that in the motion. I don't know if that is in the resolution. The motion would be limited to your interpretation of whether the Building Director is authorized under the Code to make a post determination rather than a prior determination. Whether they were asked or what determination they made here, there really is not a way for you to review his determination, once he makes it. It is just an interpretation of whether the Code gives him the authority to make it after the fact. We would deal with the public health and safety issue as well as the reasonableness of the measurement issue both in the some motion. Ms. Temple noted that if that is the case, you could direct staff to add one more 'section' which would be specific as to the ability of the Building Director to make such a determination after the fact. Motion was made by Commissioner Kiser to adopt Resolution 1548 supporting the Planning Director's interpretation of Section 20.62.040 of the Zoning Code in the form that was distributed at the last meeting and just reviewed. Commissioner Agajanian stated there is nothing on the resolution that speaks to the second issue of the health and safety. Ms. Clauson stated that was correct. You could either ask for the motion to be amended to include that interpretation or if you wanted to make a separate . RAFT3 5� . City of Newport Beach Planning Commission Minutes February 7, 2002 INDEX motion with that determination. Without amending the current motion, there is just direction to what the Planning Commission's thoughts are. Commissioner Kiser asked if this is something that we could do, was it in front of us and did we have public hearings on this or are we getting afield of this. Ms. Clauson answered that if has been brought before you by the appellant. You are in a way interpreting the Code, obviously it is not before you or the jurisdiction is not before you to make the decision for the Building Official or to tell the Building Official to make the decision, but you do have the ability to interpret the Code as to whether or not the Building Official, can make this determination after the fact. Commissioner Kiser said this was a very narrow area that we noticed and had public hearing on because of the contentiousness of the matter. Ms. Temple clarified that while the discussion in that Section does grant the authority on the determination to the Building Director, the provision is in Title 20, the Zoning Code. It was part of the issues raised in the appeal letter, so in terms of providing staff guidance on the administration of that as to whether a determination can be made before or after the fact, I think that is entirely within the Commission's jurisdiction. iCommissioner Agajanian asked the maker of the motion to modify the motion to include the thought that the provision for the health and safety be interpreted to mean prior to any action rather than an expo facto application or something to that effect. Commissioner Kiser noted he would amend his motion if everyone is in accord. Commissioner Agajanian restated the amended motion. The amendment is to interpret the health and safety issue to mean that any applicant needs to get a determination from the Planning Director prior to demolition as opposed to after. Mr. Elbettar offered a clarification to the language saying that the use of the word demolition implies a whole demolition, I think we should use the word removal of said elements rather than just demolition. Ms. Temple added that we would incorporate in item 9 verbiage that would state, 'Pursuant to Section 20.62.040 E2, all determinations made related to this Section shall be made before the removal of any of the structural elements in question.' Commissioner Kiser amended his motion to incorporate the amendment that Commissioner Agajanian proposed. Ms. Temple read what will be new condition 9 on the resolution that we will be adopting and I have accepted mn AT z City of Newport Beach Planning Commission Minutes 7, 2002 that as part of my Ayes: McDaniel, Kiser, Agajanian, Gifford, Kranzley, Selich Noes: Tucker ADDITIONAL BUSINESS: a) City Council Follow -up - Ms. Wood stated that at the City Council meeting of January 22nd both the design standards for mobile homes and the PC text amendment for Camco Pacific were approved; the City Council initiated the amendments to the general plan and zoning for the Regent Newport Beach project. b) Oral report from Planning Commission's representative to the Economic Development Committee - none. C) Report from Planning Commission's representatives to the General Plan Update Committee - Commissioner Kranzley stated that we got about 250 applications for the General Plan Update Committee. There is a lot of interest in the City to be on this committee; we will have selected the committee by this coming Monday afternoon. d) Matters that a Planning Commissioner would like staff to report on at a subsequent meeting - Commissioner Kranzley asked about the mobile home park on Coast Highway before you go over the bridge on the right hand side. I can't believe it is in compliance with health and /or building /zoning codes. Ms. Temple answered that we probably conduct more health code enforcement on various issues at that location than any other parts in town. She will bring back an update. Commissioner Selich asked for a report from staff on how many other cities in Orange County follow the general plan initiation process that we have. After watching Marina Park issue, it is the most ridiculous thing I have ever seen. Being a developer for 20+ years, in most place all you have to do is file an application and not go through two meetings like we do. e) Matters that a Planning Commissioner may wish to place on a future agenda for action and staff report - None. f) Status report on Planning Commission requests -. None. g) Project status - None. h) Requests for excused absences - None. ADJOURNMENT: 9:00 P.M. 22 AT INDEX • Additional Business Adjournment I•..i 5� City of Newport Beach Planning Commission Minutes January 17, 2002 SUBJECT: Appeal of Planning Director's Interpretatl 213 Coral Avenue (Van Cleve Property) • (PA 2002 -002) An appeal of the Planning Director's interpretation of Section 20.62.040 (Nonconforming Structures) of the Zoning Code. Chairperson Tucker asked staff for background information. Testimony will be received tonight and I am most interested in making sure the Commission has the issues framed so that we know exactly what it is that we are supposed to be deciding. Ms. Clauson stated that a court reporter is present for the purpose of taking minutes of this item hearing verbatim. In the past, if an issue comes up later and we needed to go back and hire somebody to come in and listen to the tapes and they don't know the voices, they are not familiar. It has been ah ad-ditional problem for everybody, including the court reporter to try and figure out who is speaking. To avoid that issue and if this is needed in the future we thought we would have somebody here tonight. Chairperson Tucker clarified the procedures and asked staff to present the background. Ms. Temple outlined what staff has planned and the staff members available for information or questions in regards to this matter. She then introduced, Mr. Jay Elbettar, Building Director and Mr. Faisal Jurdi, Deputy Building Director who were prepared to go through some of the building plans as they relate to the appeal and the determinations. Also present, Ms. Marina Marrelli, who was the residential zoning plan checker on this project and Patrick Alford, who has prepared a detailed presentation including Power Point exhibits of all the building plans in relationship to the City's original issuance of the Building Permit. Continuing, Ms. Temple noted the background, the Section of the Code, administrative procedure and interpretation of the Planning Department and the Planning Director that have been appealed. The Nonconforming Structures and Uses Chapter, as if is currently written, was adopted in 1997. However, the 1997 version was a re- for'matting and slight adjustment to the Nonconforming Uses Chapter, which was substantially changed in 1990, a couple of years after the 1988 General Plan update. After the 1988 General Plan was adopted, the Zoning Code was amended in order to bring the Zoning Code into conformity with the General Plan. Through those actions, many more properties were made legal non - conforming. A total re- drafting of the Nonconforming Uses Chapter was done to make sure that there were clear rules under which the Department would administer when a non - conforming building was just being remodeled or repaired and when a nonconforming building was being reconstructed and was required to be brought into conformity with the provisions, particularly as it may have related to numbers of dwelling units or floor area ratios. After that Chapter was adopted in 1990, the department INDEX Item No. 1 PA2002 -002 Continued to 02/07/2002 City of Newport Beach Planning Commission Minutes January 17, 2002 needed to establish a routine procedure for the administration of those provisions. The ones in question, in this case, are how to calculate what percentage of structural elements were being altered in a non - conforming building upon which to base whether the remodel was a permitted by right, would require the approval of a modification permit, would require the approval of a use permit, or, would be required to be brought into conformity. If the alterations exceeded 75 %, then the structure would need to be brought into conformance unless a variance could be approved with the appropriate findings being made. Those procedures were established in 1990 by the Planning Director at the time, Mr. Hewicker, and have been consistently administered in that fashion since 1990. We have applied these Sections in the manner described in the staff report on a regular basis and we have never, until this time, been challenged as to the appropriateness of the means that we use to determine compliance with this provision. I have never before had anybody complain about the equitability of the procedure. We believe, as described in —the staff - report, — the procedure -to be equitable and fair and that it has been consistently applied. It is a good way of determining compliance with this Chapter. The Building Department will present some of their analysis in relation to the procedure supporting the determination, that in this particular case, the non - conforming building has been repaired or replaced beyond the 757o limitation of structural elements. Chairperson Tucker stated he would like to go through the presentation in particular to see the plans and all the other information. This is a serious matter, and an unusual one for the Planning Commission to get involved with a Code interpretation that could have some significant consequences for the appellant. It is important to go through these details to allow a full due process hearing. Mr. Patrick Alford then began a slide presentation, noting the following: • Vicinity map with location. • Pictures of project site. • Slide with the first set of plans. Mr. Jay Elbettar, Building Department Director (continuing the slide presentation) stated that his role in this matter was to try to analyze the appellant's assertion that in fact the foundation represents 5017o of the building structural elements in challenging the Planning Director's method of calculating the amount of alteration of the non - conforming structure. We took a look at the plans and we scanned the permit set, so what you see before you is the actual permit set. We have made notatons on the plans to try and highlight our discovery of the issues. He then referenced the Foundation Plan where it was discovered a new foundation system as represented by the yellow highlighted area contrasted to the existing foundation system. Referencing the plans, he then noted the following: • Conflict of information. • 'Demo Plan' as represented by the architect as project plans showing the area in question of an existing wall as part of the garage and stairs. • The portion of the wall does not match the existing foundation that was INDEX S 0 l� 0 City of Newport Beach Planning Commission Minutes January 17, 2002 shown on the 'Demo Plan'. • New foundation is not consistent. • Existing wall can not remain above a new foundation. • The orange area as noted on the plan was the area where the existing wall must have been because it had to be on a foundation. Commissioner Kiser asked about the foundation by the garage, does the plan represent the architect affirming the yellow colored foundation area on the plan as existing? Ms. Temple answered that a Demolition Plan or drawing of this nature is typically asked for by the Planning Department for the purposes of making the lineal calculations as described in the staff report to determine how much of the non- conforming structure is being altered. This type of plan is not one typically used by the Building Department in the structural plan review. This was presented not with the original set but was prepared specifically for the Planning Department's needs to make their determinations in relationship to the Nonconforming Use Chapter. This page will end up being a part of the approved building plans and is prepared by their architect. Continuing, Mr. Elbettar, referencing the plans noted: • Existing walls to remain and the dotted lines representing those walls to be removed. This was the extent of the remodel to fry to maintain the non - conforming right of the applicant. • New foundation and stair representing the inconsistent information. • Notations on the plans were made by the Building Department staff. • He then explained that they went to the records and found the Residential Building Report that is prepared during the sale of a property. This record shows two prior permits (1963 and 1978) with square footages. • We were unable to locate those records and could not find the hard copy in the permit packet, but we had them on microfiche. • He then depicted a slide showing the 1963 information that showed 1,815 square foot main area with a 352 square foot garage area. • He then showed a slide with the building permit issued in 1978 that showed 735 square feet addition to the main structure and 66 square foot addition to {he garage. • He then presented a slide with the existing plan that the permit was issued in 1978 that confirms that the wall in question was not existing as well as file exterior stair leading next to the garage up to the balcony on the second floor. We did some comparative calculations of the walls. • Another slide was presented depicting the tabulation of the square footages as determined by our analysis and based on information presented to us by the applicant to date. • We have not received 'As Built Plans' from the applicant to represent the actual site conditions as requested on the September Stop Work Order and our July notice. INDEX U/ 1 City of Newport Beach Planning Commission Minutes January 17, 2002 • He presented a slide depicting existing area per the records with a living space of 2,550 and a garage of 418 with a total of 2,968 square feet. • The existing area per Planning Department calculations on the plans were 3,145 square feet and the existing area per drawings prepared by the architect is 3,152 square feet. The difference representing what we think is in part to the location of that exterior wall that got shifted in the garage area. • The allowable area per Planning Department calculations and current Code is 2,720 square feet. • The allowable area per Drawing Table prepared by the architect is 2,520 square feet. • The proposed area per Drawing Table by the architect under which the permit was issued was 3,004 square feet. • The proposed area per our Planning Department calculations was 3,070 square —feet: • As measured in the field, the total square footage is 3,118 plus a 498 roof deck. • There is a difference of the area between the Building records as shown at 2,968 and as was shown by the architect of 150 square feet plus 498 for the roof deck and the area as claimed by the architect as existing, and the allowable area is 398 square feet. • These calculations are based on the Permit documentation and field measurements. There is no exact information because there are no 'As Built' plans provided by the applicant. Chairperson Tucker noted that the threshold issue before the Planning Commission is, even if we assume that the applicant's calculations were correct, whether so much of the structure was taken out that the applicant needs to comply with the current Codes. We have to get by that issue before we worry about 3,100 feet versus 2,900 square feet, don't we? Mr. Elbettar answered that is correct, and we wanted to show you what we are finding and to put it on record. Chairperson Tucker said tl}e issue is: is there a non - conforming structure or should there be a structure that starts from scratch? Ms. Temple answered the progression is that we need to understand that the structure was non- conforming "because if it is conforming, the rest of the question is not relevant. So, the answer to your question is, yes. The real issue before the Planning Commission is this, the means of determining how much of this structure has been altered per Code and the procedures under which we make that calculation. Chairperson Tucker noted that the appellant has not raised an issue as to whether it is non - conforming or not. INDEX 0 L� 1 • City of Newport Beach Planning Commission Minutes January 17, 2002 Ms. Clauson answered that the appellant has raised the issue with the different interpretation of the Code. This is just providing background information regarding the Planning Director's determination that the building is non- conforming. The applicant is acknowledging that the structure is non- conforming by challenging the Section 20.62.040 (Nonconforming Structures) of the Zoning Code. Mr..Elbettar then stated that above the square footage issue, the intent is to show that there is new foundation constructed along with 'pop outs' in the building above and beyond what the existing building was that may have not been accounted for in the calculations. This building was completely demolished and replaced except for the chimney, although the Permit documents show it as a 'remodel'. Continuing, referencing slides he noted: • Foundation Plan as drawn by the project engineer with areas representing new foundation system. The reason this was highlighted by staff was to analyze and see if in fact the assertion of Mr.YaghV,,-the engineer of the project, that the existing foundation represents 50% of the structure elements of the building. • He then pointed out all the new foundation systems stating this is the first time this type of situation has come up. • He does not agree with this interpretation and supports that every element of the structure is critical and important to the structural system. If we attempt to try to quantify that claim of 50%, it is not possible to do because just as in any remodel or addition engineers do avoid using the existing foundation by building pad footings and post and beam systems because they do not want to get into the existing foundation and perform destructive testing and analyses to determine how good these foundations are. what they do is to try and create a system independent of the existing foundation. • Referring to the exhibit, he pointed out the pad footings supporting columns that support beams that will support the framing of certain areas as well as the steel beams. • He noted it is difficult to determine the contribution, if ever, that remains of the portion of the 'existing' footing and the significance of the structural system. At Commission inquiry, h6 then referred to the Foundation Plan and explained how the columns were constructed with new pad footings below the slab and details of posts sitting on reinforced new portion of foundation with the raised stem wall. Some portions are relying on new foundations and some portions are not. It is very difficult to quantify that and may be why the Planning Department did not include the foundation systems in their calculations for nonconforming structures to determine the extent. He then discussed the new beam supporting portions of the framework and contributions of the foundation to the significance of the structural support. 0 Commissioner McDaniel confirmed that the new posts and such that are being put in there are the mainstay of what is being relied upon for the new structure. INDEX Vlfl r City of Newport Beach . Planning Commission Minutes January 17, 2002 INDEX If they built on the old structure they would not have put these in at all and would not have been required? Mr. Elbettar stated that most engineers, when they design a major remodel or addition, would try to introduce new independent structural system because they are not certain what the existing foundation system is capable of supporting unless they go in and do destructive testing. They would perform an independent structural system to try and envelop the existing system and not rely on it to support major framing components. Commissioner McDaniel stated that if the applicant had done 25 %, they would not have needed to do all the other foundation repair in the front. They would have just taken off 257o and added to it and all the stuff in the front would not have been necessary. Mr. Elbettar answered that is correct; but- if -they fFs–e--fo—repiace– the - flooring system and they changed the floor beam scheme, that is what they have done whether they intended to demolish it from the start is hard to tell. What I am trying to point out is in fact the contribution of the new foundation system is very significant, a lot more than just a little bit here. Commissioner Kiser, referring to the Foundation Plan, asked how much in linear feet of the foundation as presently built what it represents as a percentage of • the entire foundation of the home as presently built? Are the yellowed colored footings new? Mr. Elbettar answered that is hard to quantify. In my opinion, the line footings would be about 25% to 30 %, but again I want to point out that the pad footings contribute a significant amount to the structural integrity and 'support of the building. The yellowed colored footings are new and the footings not colored are the old footings that remain or are abandoned and not used. Commissioner Selich noted that the first thing we are to do is to determine whether the Planning Director's methodology of using the linear footage of wall or the methodology defined by the appellant, which gets into the footings and foundation systems and what it contributes to the structural element. Isn't that the issue we have to determine first and then if we find in favor of the Planning Director then we get into all this stuff as to what is being and not being contributed here? Ms. Clauson answered that the determination supporting the Planning Director, the purpose of this information is to show you the difficulty of taking that type of interpretation. In otherwords, counting the footings as one of the elements. Mr. Elbettar added that in his professional opinion, he supports the Planning Director's determination and the procedure to calculate and use linear walls as the methodology for determining the nonconforming structure because again, it is very difficult to ascertain what portions of the footings in this case would (.P ` b5 City of Newport Beach Planning Commission Minutes January 17, 2002 INDEX have been if the structure would have remained the way it was proposed to be, would -have been still contributing to the support of the structure and secondly, this is all below grade or at eye level. In my opinion, nonconforming deals with massing and walls and not for things buried below grade. Chairperson Tucker then noted footings are structural portion of the building and ultimately is what ties the structure into the ground. However, there is a lot more than that supporting the structure. Mr. Elbettar added that the footings are structural components of the building. He added that the definition of a structure for the purpose of certain procedure, may be a little different in this case. In the Building Code, the definition of a structure talks about things above, or up, or edifices or things built up. If it is a grade beam or caisson that is exposed, then maybe it becomes more of a definition of a structural component. A typical, continuous footing below grade -has never been " thought of or dealt with as a significant structural component that would require even design. It is always a boiler plate standard design available in any Building Code. A contractor or a homeowner can come in and draw a continuous footing and build a wall on it. If this is a structural element that would count towards this procedure or not, or how significant this element is, it is a structural element. • Chairperson Tucker asked staff about the procedure itself. The issue of public health and safety, were you ever contacted to make a decision in terms of the necessity for removing basically the whole above ground structure? Mr. Elbettar answered that he had not been contacted. When the dry rot came up, we did not find out about it. We did find out about the complete removal from our inspector who discovered it on July 6th. At Commission inquiry he noted while referring to the Permit record: • Issue of the removal of the structure came about when a notice was issued by the Building Inspector on July 6th, on a framing inspection. The notice reads, 'Prior to next inspection, all plan changes, i.e., the existing floor and new wall to be reflected on plans and to be approved by the Planning Department and City Plan Checker.' This was issued to the applicant the first time the inspector realized the extent of removal was above and beyond the approved plans. • This inspection was for the sub - flooring. He came out July 2nd and saw an extent of walls being removed above and beyond what he saw the first time when he was doing the foundation inspection. • The foundation inspection was done in May. • July 2nd he signed off the sub floor but put a note pending plan revision. • July 61h, he issued a correction notice to say that the plans must be revised. Chairperson Tucker asked about the plans from the architect, there are notes . that say 'wall demolition not to exceed 25% of existing residence'. The foundation and the framing plan and structural look like it will be more 4� plans b5 City of Newport Beach . Planning Commission Minutes January 17, 2002 INDEX extensive than that. They seem to be inconsistent. How does the inconsistency get flagged at that point? Mr. Elbettar answered that is true and we can show the extent of the inconsistency, if you wish. The extent of the removal of the walls, based on the plans alone, would not have been impossible to be less than 25 %. There is even a note on the plan that states 23% of the roof will be removed and the structural framing plan shows complete new framing of the roof members. There is no way any percent of the roof would have remained. The only reason,-It was an oversight by my plan checking staff even though the attempt was made to coordinate with Planning staff because they did not look at the structural plans as they only look at the plans showing the walls to remain. The architect did not see it also, another point in referring to the demo plan, he showed the walls that were to remain and count as credit toward this calculation. However, the floor framing plan is all new, so it is impossible to keep these walls in place when you intended on removing the floor framings:- If you reconcile the sttuctu-ra�d- - - -- - -` architectural plans and try to come up with a well coordinated set of plans, you'll be able to determine that the percentages that are stated would not have been met. Commissioner Kranzley, referring to page 3 of the staff report, asked about the discussion of meetings of February and March of 2001. Who was in attendance? Ms. Temple answered those meetings would have been held with Marina Morrelli, the plan checker who is here this evening and can respond to questions. Mr. Elbettar continued with the chronology: • After July brh there was no action as far as the inspectors were concerned, the applicant did submit the revised framing plan but not the architectural floor plans showing the walls and extent of revising the scope of work. • The floor framing plan was approved in August. • The inspector went back and issued a 'Stop Work Order' September 11 th to stop work on the project because we realized the magnitude of the situation. , Chairperson Tucker noted that with the approval of the plan in August there would have been an opportunity at that point to halt the work rather than approving that plan because it arguably fell outside of a nonconforming structure. Mr. Elbettar answered it was an opportunity by the applicant because the City does not refuse any approvals that the applicant seeks, whether partial approval or complete approvals. If you intend to work on this project piecemeal and you come in and do the structural and come back again later on with a completely drawn architecturally plan clarifying the scope, that is your • prerogative. It was merely structural revisions to show some members that were �(o City of Newport Beach Planning Commission Minutes January 17, 2002 supposed to have remained existing, they became new. To try to match the field conditions structurally, we stilf have not received to date those revised floor plans showing 'as built' conditions with the new scope of removing all the walls, etc. At Commission inquiry, he noted that the inspector issued a correction notice initially in July 6m to require the plans be revised to reflect the scope as built on site. In July the existing structure was erected but may not have been at its present stage as depicted in the photo because work continued. Sometime between May and July, the structure was torn down completely and the new structure was erected and the work may have continued until the September Stop Work Notice. The original structure was two story with a balcony deck on the second floor. Marina Marrelli, Assistant Planner at Commission inquiry noted: At the March 2001 meeting had indicated that more than 25% of the structural elements were being altered. It looked as if it was a new — — housemen the plans that I reviewed on the second time I saw the plans. Mr. Van Cleve and I went over the plans and I showed him how I came up with the calculations. We agreed to the methodology of the calculations, I recall that he wanted to add height to it even though I was mainly concerned with the linear rather than the whole area of the wall. • The applicant submitted a revised plan, which represented that the • alteration would be limited to 25 % or less of the structural elements not too long after this meeting. • We had discussed the fact that if he were to exceed 25% he would need a modification permit or a Planning Director's Use Permit. We also had a meeting with Jay Garcia, Senior Planner on this matter. Roger Grable, attorney at Buchalter, Nemer, Fields & Younger at 895 Dove Street spoke representing the applicant in this matter. He distributed packets of exhibits to reference during his presentation: • He stated he had not seen the exhibits as presented by staff. • The initial calculations were prepared by our architect based on what was actually on site. • The foundations were pier foundations and had no full footings underneath them. • The wall existed That staff is saying did not. • An independent architect measured what is there on site and his calculations show that there are about 3, 018 square feet. We are only talking about 40 feet difference, which we can fix if we need to at such time this is resolved. • The project was applied for in January 2001, and was characterized as a major remodel. • Several meetings were held with staff to review the plans and how to make the calculations that were put on the plans that ended up being less than 25% of the alterations of the structural elements of the . building. • Chronology of the Plan Check, Inspections and Construction from 10 INDEX 61 (1 "} City of Newport Beach Planning Commission Minutes January 17, 2002 INDEX January 5, 2001 through September 19, 2001. Chairperson Tucker asked the speaker if when it was decided . that so much of the existing house and foundation had to be altered wouldn't it have been the case, no matter which interpretation you had, it was more than 25% of the existing residence? He was answered, no. Continuing, Mr. Grable noted: • Nothing was done differently than the demolition plan showed at that point. • Extensive damage was uncovered and the contractor was told that it needed to be replaced on a 'board for board' basis in April. • May 2001 revised structural plans were submitted to City. Commissioner Kranzley clarified that the revised plans included demolition of all the dry rot, etc.? He was answered, no. It just addressed the structural elements that were being replaced, basically the floorjoists. Continuing, Mr. Grable noted: • Inspections for footings and foundations - all existing foundations remain, none were removed. New foundations were added in order to address structural issues. • May 31st building areas were deemed unsafe by termites, dry rot and . where had been penetrated by previous construction and were then replaced. This amounted to a replacement of everything above ground except for the chimney. Commissioner Kra nzley stated that even the builder's understanding of 25% was violated at that point in time. The builder had an understanding of what it was and then if you tear down those walls, clearly that is over the 25 %. He had at least a basic understanding of where the limit was. Mr. Grable answered not really. The contractor who did the work has had about 20 years of experience doing remodel. Their custom was when you went through and did a demolition, if you found damaged material, you replaced it. These boards were being replaced on a 'board for board' basis, there was no change in the wall. In his opinion, he did not think he was changing anything because the walls were going back up in exactly the same configuration as they had been existing and as shown on the plans. In hind sight, we should have done something, but we didn't. Discussion then touched on the following: • 'Board for board' replacement. • Roof not part of the calculation of structural alteration. • What may or may not have happened during inspections. • Interpretation of structural elements that were repaired and relevancy. • Applicant's request to have the footings determined to be 50% of the structural elements of the building would then allow them to apply for a . 11 . City of Newport Beach Planning Commission Minutes January 17, 2002 use permit and consideration under that. Ms. Clauson stated this is a Zoning matter and is hard to determine with regards to the structural alterations. The Building Department inspectors are looking at the Uniform Building Code applications. To the extent that the Planning Department staff has indicated that that is the way they have interpreted the Code and the methodology they have used in the past, Mr. Grable is making a claim that that is not, that might be relevant to your determination. Commissioner Selich asked if the claim is that staff has not interpreted consistently in the past or is his point that their method that is submitted of calculating the 25% is the proper method as opposed to the linear footage? What is the issue here? What is the basis of the appeal? Ms. Clauson answered that the issue that Mr. Grable is raising is that they are challenging t o use of inear footage.. - -- - - -_ _ - Commissioner Selich stated that maybe there are two issues, one the method that was used and then the fact that it has not always been applied that way. Is that correct? I find a lot of the information that Mr. Grable is giving interesting, but I would like to get to the heart of what the appeal is and I would be interested in hearing what the arguments are for the Planning Director's methodology being invalid. Your method may be valid as well, but why is hers invalid? Mr. Grable answered that the inspection practices that have occurred on Balboa Island, where you make these kinds of change out, (dry rot, termites, sub- standard construction) these are just considered routinely part of the construction and there is no re- calculation of the percent of the remodel based on that. Continuing, he noted: • July inspection of sub -floor on the property. • Notations by building inspectors. • Dates of inspections. • Timing of removal of old structural elements. • Possible complete tear down and removal of slab. • Removing 400± from existing building and then the building would be conforming. Ms. Clauson added that an option that was discussed during meetings with the appellant and counsel was the remodel of the building and submittal of new plans that would show conforming with regards to the floor area. There were other issues involved with regards to the flood plain and liquefaction and some determinations originally made that they would need a variance to be able to do that and that is where he is referencing that they would have to pull out the whole slab. With regards to the determination tonight, I had suggested that we hold that off to see where we go with this. The flood plain issue is something that . can be addressed in an application once we get past this point. Because this was a remodel, the applicant did not know there was a flood plain issue with 12 INDEX ICJ E� I City of Newport Beach Planning Commission Minutes January 17, 2002 regard to the location of the slab. If it is not a remodel, there are certain provisions in Title 15 that describe under what circumstances you have to come into compliance with the FEMA flood plain regulations. Mr. Grable ..stated that is the problem. If we exceeded the remodel requirements, then we have to come in for a new structure. If we need to come in for a new structure, then the foundation has got to come up. Chairperson Tucker asked Mr. Grable to address the real issue, tell' us why the footings are a structural element that constitutes 25 %, 50 %, or 75% of the structural elements of the house. Mr. Grable answered that the issue is not whether you are modifying the whole building, it is to the extent you are altering the structural elements of the building. The Code does not define structural elements, if does define structure. Structure is a broad definition. The Code contains the definition of 'alteration, structural' as any change or replacement in the supporting members of a building such as bearing walls, columns, beams or girders. Discussion followed on definitions of structural elements and measurements of building perimeter. We are in a situation of having to tear down the building. There is no option of reducing the size, if we are not conforming, we are going to have to tear the building down and raise the footings. We are entitled to a close scrutiny. Commissioner Selich asked what prevents the Planning Director from using a convention of linear footage to make that analysis? Mr. Grable answered because it does not include the specific elements of the Code that are in that definition of what a structural alteration is, it ignores them. Only under certain circumstances does it pick up a few extras. We are entitled to have all of the structural elements included because the Code talks about structural alterations of 25% of the structural elements. Commissioner Selich noted that many times in Zoning as opposed to Building Codes, conventions like this are used, again do you have anything else other than that as to why it is not proper? Mr. Grable answered that used conventions are not adopted by anyone this is just an interpretation. The interpretation has to meet the Code line. If it doesn't, that's why we are here. Commissioner Selich noted that there are many things that the Planning Director and staff interpret, we don't have everything covered by the Zoning Code. Just the two elements highlighted under tabs 3 and 4, that is the extent of your documentation? Mr. Grable answered that is the provisions of the Code that relate to if and behind that are the engineering certificates, which the engineers have certified that these are structural elements. If it is structural element, it has to be counted. 13 INDEX • �U • City of Newport Beach Planning Commission Minutes January 17, 2002 That is where the argument comes from. From there, we have asked the engineers to identify what those structural elements are. Chairperson Tucker asked if this interpretation, I can see on the old buildings on Balboa Island where the footings are a fairly consistent construction and what happened, wouldn't all of them be entitled to be knocked over and re -built as nonconforming structure just based upon the footings being there? Mr. Grable answered that is the way it is in most jurisdictions. These Code provisions are different from other jurisdictions that I am familiar with. In most jurisdictions, if you leave the footings and chimney, you can remodel. If that is not the policy you want, the answer is not to punish Mr. Van Cleve for that, the answer is to change the Code. Commissioner Kranzley asked the speaker if he believed that scraping the entire house except for the chimney represents less-than-257o alteration? _- - — Mr. Grable answered he did not know what the percentage would be. All we have to do is get 25% of the structural elements being this slab, and then we are in the ball park of being able to get a permit to complete the building. The Code provides that you have 25% by right, if you have 257o to 507o you can get a • Modification Permit, and between 50% to 75% you can get a Planning Director's Use Permit, which is what we are trying to get. Discussion followed on: • Narrow lots. • Circumventing the floor area ratio. • Alterations as being a change to something that exists and not an addition of something else making the existing thing non - functional. • Alterations versus addition or alterations versus replacement with something else. • Contention that no function remains, replacing something with a new thing with a new thing that did not alter the old one would not be an alteration. • Abandoned but not touched that would not constitute an alteration. Commissioner Kranzley sbggested that we continue this item to the next meeting since we have been presented a book of information tonight by the applicant's lawyer and have discussed this for over an hour and a half. Discussion followed on continuing this item to later in the evening and /or at the next scheduled meeting; issue of whether or not the footings are a structural element under our Code and if they are what percentage they represent; procedures. Commissioner Kiser noted that Mr. Grable has given a 45 minute presentation, . since he has been here. 14 INDEX 117 I �', City of Newport Beach r T',= Planning Commission Minutes �,, January 17, 2002 Mr. Grable addressed Section 20.62.040 (E -3), the Section that permits modification or repair of the structural elements of the building if it is determined that such modification or repair is immediately necessary to protect the health and safety of the public or occupants of the nonconforming structure, or adjacent property and the cost does not exceed 50% of the replacement cost of the legal nonconforming structure as determined by the Building Director. Staff has declined to consider this exemption on the ground that we did not ask them to do that before we removed the materials. We did not know we needed to and secondly there is nothing in the Code that says it has to be made on a prospective basis. There is nothing that would. prevent this Commission from taking evidence that we could have presented to the Building Department, but they declined to hear it. There is a safety issue that meets the requirement of the Code, and therefore those modifications ought to be excluded from the calculation. -- Chairperson Tucker stated that when there are Codes the general rule is that you follow the Code and if there is an exception to the general rule, that exception is usually fairly, strictly construed in terms of the interpretation issue on the structural elements. Mr. Grable answered that is not necessarily so, you need to read the language of the Code and apply it literally. This is one of the reasons we wanted to go through the chronology of the work done. Discussion continued. Commissioner Gifford asked for information to be provided at the next meeting as to whether there are cases or opinions about whether conventions can be used and are used, i.e., equivalent with the UBC custom and practice. Ms. Clauson stated that part of the interpretation in looking at the structural alterations was also intended to be in the context of 20.62.040(A), which says no structural alterations shall be made which would prolong the life of the supporting members of a structure, except as provided in this Section. That was part of the context of the interpretation that staff made in looking at the certification that the footings were 50% and also of the concept of the 'board for board' change -out of'the structure. Another thing as far as convention, the plans are stamped on the front that basically says, 'approval of the plans does not constitute express or implied authorization to construct any building in violation or in inconsistent with the ordinances, plans and policies of the City of Newport Beach. This approval does not guarantee that these plans are in all respects, in compliance with the City Building and Zoning Ordinances, plans and policies. The City of Newport Beach reserves the right to require any permitee to revise the building structure improvement authorized by these plans before, during or after construction if necessary to comply with the Ordinances, Plans and Policies of the City.' That information is stamped on the plans when the permit is issued. Another point for consideration is that when the note that Mr. Sobek wrote to get Planning Department approval, it is my understanding 15 INDEX • • 11 ol�_ • City of Newport Beach Planning Commission Minutes January 17, 2002 that when they came back with a request for the approval in the change of the floor joists, they went to the Building Department and got them to sign off, but they did not go to the Planning Department or ask a Planning employee to sign off on those changes or that they had Planning Department approval of the change in the walls. Discussions then ensued on: • Equitable relief of misunderstandings. • Interpretation of the Code. • Written submission of Engineer's information. • Additional arguments. Motion was made by Commissioner Kranzley to continue this item to February 7, 2002. Ayes: McDaniel, Kiser, Agajanian, Tucker Gifford, Kranzley,- Selich Noes: None SUBJECT: Lo Salsa; Milestone Management 4341 MacArthur Boulevard, Suite F . • (PA2001 -086) Request to approve a use permit to expand the seating of an existing specialty food establishment from 21 seats with no increase in net public area. The increased seating changes the use classification from specialty food to full service, high turnover, and increases the parking requirement by 7 to 17 spaces. The item was continued from the meetings of August 23, September 20, October 18, and November 8, 2001. Chairperson Tucker recused himself from this matter. Ms. Temple noted that the principle decision for the Planning Commission is whether the denial is with or without prejudice. Public comment was opened then closed. Motion was made by Commissioner Kranzley to deny Use Permit No. 2001 -018 without prejudice. Ayes: McDaniel, Kiser, Agajanian, Gifford, Kranzley, Selich Recused: Tucker The Planning Commission took a five- minute break. 16 INDEX Item No. 2 PA2001 -086 Denied Without Prejudice 13 1¢WP CITY OF NEWPORT BEACH Hearing Date: January 17, 2002 d PLANNING DEPARTMENT Agenda Item- 1 33o NEWPORT BOULEVARD Staff Person: Patrick J. Alford NEWPORT BEACH, CA 82658 (949) 644 -3235 • (949) 644 -32o ,, FAX (949) 644-3229 REPORT TO THE PLANNING COMMISSION PROJECT: Appeal of Planning Director's Interpretation (PA 2002 -002) 213 Coral Avenue (Van Cleve Property) APPELLANT: Charles Van Cleve T.V.C. Associates, Inc. 177 Riverside Drive Newport Beach, California 92663 SUMMARY: An appeal of the Planning Director's interpretation of Section 20.62.040 (Nonconforming Structures) of the Zoning Code. ACTION: Affirm, modify, or reverse the Planning Director's interpretation. LOCATION: 213 Coral Avenue LEGAL DESCRIPTION: BALBOA ISLAND SEC 2 BLK 8 LOT 7 . GENERAL PLAN: Two Family Residential ZONING DISTRICT: Restricted Two Family Residential (R -1.5) District • jq introduction The City of Newport Beach limits the gross floor area of buildings and structures on • residential development sites. In the R -1.5 District, the total gross floor area of all buildings and structures cannot exceed 1.5 times the buildable area of the site, with the buildable area defined as the area of a development site, excluding any required setback yards. A building that exceeds residential maximum floor area limit and that was legally constructed prior to the adoption of this regulation is deemed to be a legal nonconforming structure. Section 20.62.040 (C) of the Zoning Code establishes limits on the amount of structural alterations that can be conducted on a legal nonconforming structure. Alteration of up to 25 percent of the structural elements within any 12- month period is permitted by right, up to 50 percent requires a modification permit, and up to 75 percent requires a use permit approved by the Planning Commission. Alteration of more than 75 percent of the structural elements is not permitted under Section 20.62.040 (C). Section 20.03.030 of the Zoning Code defines structural alterations as follows: Alteration. Structural: Any change or replacement in the supporting members of a building such as bearing walls, columns, beams or girders. The Zoning Code does not define the methodology for the calculation of the percentage of the structural elements altered. Therefore, since the structural limits provisions were first adopted in 1990, the Planning Department has interpreted that the percentage is . based on linear footage of structural elements, such as load- bearing walls and roof framing. The Planning Director at that time established this methodology based on his authority to determine the intent of the Zoning Code when uncertainty exists. Successor Planning Directors, including the current Planning Director, continued to employ this method without modification. Background In January 2001, the applicant submitted plans for a remodel of a single - family dwelling unit on the subject property. In February 2001, the Planning Department reviewed a revised set of plans. Based on the information contained in the revised plans, it was determined that the existing dwelling unit exceeded the maximum floor area limit by 432 square feet. The dwelling unit was determined to be a legally nonconforming structure and the amount of structural alteration would be restricted by the provisions of Section 20.62.040 (C) of the Zoning Code. In March 2001, the applicant was informed that the plans indicated that more than 25 percent of the structural elements were being altered and that a modification permit or a use permit would be required. The applicant submitted a revised plan, which represented that the alteration would be limited to 25 percent or less of the structural elements. . Van Cleve Appeal (PA 2002 -002 I „ January 77, 2002 �Y Page 3 of 7,` On April 6, 2001, the building permit was issued. In July 2001, a site inspection by a building inspector revealed that the dwelling unit was being completely reconstructed. The inspection report states that prior to the next inspection, all plan changes must be reflected on the plan and approved by Building and Planning Departments (staff estimates that 100 percent of the exterior and interior walls were new). In October 2001, a Stop Work order was issued by the Building Department for exceeding the scope of work on approved plan (a more detailed chronology of events is provided in Exhibit 2). The Appeal The applicant is appealing the Planning Director's interpretation that the calculation of the percentage of the alteration of structural elements should be based on linear footage of exterior and other load- bearing walls. The applicant contends that the Planning Department's method of determining the percentage of structural alteration is inconsistent with City regulations and the City's procedures in the processing and approval of similar projects in the surrounding area. The applicant bases the appeal on three points: First, the applicant believes that the retained existing footings should be included as structural elements. The applicant argues that, since the footings support the entire structure, they should be interpreted as constituting at least 50 percent of the structural elements. Second, the applicant contends that the Planning Director's interpretation only takes into consideration the exterior measurements of a building. The applicant argues that the definition of structural alterations in the Zoning Code refers to "bearing walls, columns, beams or girders," which do not relate to the exterior of a building. Furthermore, the applicant argues that the Planning Director's interpretation disregards the distinctions in the definitions of "building," "structure," and "structural alterations" provided in the Zoning Code. Third, the applicant cites an exception provided for in Section 20.62.040 (E -2) of the Zoning Code, which allows structural elements of a legal nonconforming structure to be modified or repaired if the Building Director determines that such modification or repair is immediately necessary to protect the public health and safety or adjacent property. The applicant contends the existing wood framing was ,unstable due to dry rot and that this represented an immediate public safety hazard. Analysis This appeal relates to an interpretation of Section 20.62.040 (C) of the Zoning Code. Even though the appeal involves a particular project, the outcome has the potential to affect the application of that section of the Zoning Code on future projects. Furthermore, since the appeal also involves the definitions of key terms of the Zoning Van Cleve Appeal (PA 2002-002 1� January 17, 2002 Page 4 of 7- ,' Code, there is also the potential to affect the application of other sections of the Zoning Code as well. Footings as Structural Elements The applicant's contention that the footings should be included because they support the entire structure would require calculation of the percentage of the structural elements based on each element's structural significance. However, there is no established methodology of determining a single element's importance in the structural integrity of a building. Studs, joists, rafters, and beams all work together to support the frame of a building. While it is true that footings transfer the weight of the structure to the ground, this could not occur without bearing walls supporting the roof and floor loads, rafters and ceiling joists transferring weight to bearing walls, and so forth. In short, the structure has to be viewed as a system, with no one element having greater importance than another. In addition, if the applicant's contention that the footings constitute 50 percent or more of the structural elements was accepted, 50 percent or more of a nonconforming building's wall and roof framing could be demolished and completely reconstructed by right. Staff believes that this is not the intent of Chapter 20.62 (Nonconforming Structures and Uses), which is to bring such structures into conformity in an equitable, reasonable and timely manner. Consistency with Zoning Code Definitions The applicant's assertion that the Planning Director's interpretation only takes into . consideration the exterior measurements of a building is incorrect. The procedures used by the Planning Department first calculate the lineal feet of exterior walls. If it is determined that the percentage exceeds 25 percent, then the lineal feet of interior walls identified by the architect as load bearing and the area of roof structural elements are calculated. This methodology tends to favor the property owner because if the initial calculations indicate compliance, demolition of internal load bearing walls and roof elements are not included. As to the applicant's assertion that the Planning Director's interpretation disregards the distinctions in the definitions of "building," "structure," and "structural alterations," staff believes that the Planning Department's procedures are consistent with these terms. The Zoning Code defines these terms as follows: Alteration. Structural: Any change or replacement in the supporting members of a building such as bearing walls, columns, beams or girders. Building: Any structure having a roof supported by columns or walls for the housing or enclosure of persons, animals, chattels, or property of any kind. Structure: Anything constructed or erected, the use of which required location on the ground or attachment to something having location on the ground. X Van Cleve Appeal (PA 2002 -002 1 V January 17, 2002 , Page Sof7j- While not all structures are buildings, all buildings are structures (e.g., a fence is a structure, but not a building, while a house is structure and a building). Therefore, Section 20.62.020 was intended to address nonconforming buildings, but also structures that are not buildings, such as fences, walls, and decks. In this case, the structure is a building and the issue is whether the planned alterations to that building are in conformance with the structural alteration limits specified in Section 20.62.040 (C). The applicant's emphasis appears to be on the alteration of individual structural elements, such as the footings, and not on the structure itself. Under this interpretation, staff would be consigned to counting individual components, such as studs, joists, rafters, and beams. This would present a significant hardship on permit applicants, since they would have to document such facts to obtain a building permit. It would be a particular hardship on permit applicants for remodels, since such information would not be readily available. Remodel permit applicants could be forced to expose wall sections and even excavate around foundations in order to provide this information. This is why staff measures the length of load- bearing walls and does not count the number of sill plates, anchor bolts, and studs that compose that wall. This is consistent with the definition of "structural alteration," which identifies "bearing walls" as an example of the supporting members of a building. Footings are considered a part of a load- bearing wall, but not a separate structural element. Staff believes the current method of calculation is both practical and fulfills the intent of the Zoning Code. Because construction techniques and the Uniform Building Code require regular spacing of elements, staff can reasonably assume that approximately the same number of elements exist within each lineal foot of load- bearing wall. Public Health and Safety Exception The applicant contends that the lumber replaced due to dry rot should not be included in the calculation of structural alterations because this condition presented an immediate public safety hazard. Under the provisions of Section 20.62.040 (E -2), the Building Director determines if modification or repair is immediately necessary to protect the health and safety of the public or occupants of the nonconforming structure, or adjacent property. The Building Director must also determine if the cost does not exceed 50 percent of the replacement cost of the structure. However, the Building Director was not requested to make these determinations. This section is intended to apply to structures that the Building Director has evidence or information must be repaired or maintained to avoid an immediate public health or safety hazard. The fact that the dry rot was discovered while remodeling a vacant structure is not applicable to this provision. When the applicant discovered the dry rot conditions, he did not inform the Building Department and request an exception under the provisions of Section 20.62.040 (E -2). Instead, the applicant continued to replace the lumber until 100 percent of the walls and roof were replaced. Therefore, staff believes that the public health and safety exception is not applicable. It should be noted that the Building Director reviewed photographs of the framing taken by the applicant during the demolition phase. The Building Director stated that there was no indication of dry rotted lumber, or that any dry rotted lumber present was an Van Cleve Appeal (PA 2002 -002 January 17, 2002 Page 6 of 7 Immediate public safety hazard. The Building Director will be present and available for questions at the public hearing. Environmental Review The project has been reviewed pursuant to the California Environmental Quality Act and has been determined to be categorically exempt under Class 21 (Enforcement Actions by Regulatory Agencies). Recommendation It is not appropriate for staff to present a recommendation to the Planning Commission because it is the Planning Director who submits this report on an appeal of a decision of that same official. The Planning Department respectfully requests your determination on this interpretation of the Zoning Code. Staff based this analysis on their understanding of the Zoning Code and the body of interpretations that have occurred over the years. Staff has also verified the precise meaning of the words, definitions, and intent of the Zoning Code relevant to this case. Staff's analysis is also based on applicable prior actions of the Planning Commission. This examination has resulted in a conclusion that the interpretations of Chapter 20.62, and Section 20.62.040 (C) in particular, are correct in this case and consistent with the intent of the City Council in adopting them. Submitted by: Prepared by: PATRICIA L. TEMPLE PATRICK J. ALFORD Planning Director Senior Planner Exhibits 1. Chronology of events. 2. Building permit 3. Zoning corrections sheet for Plan Check No. 0058 -2001. 4. Photographs of the existing building provided by the applicant. 5. Appeal letter. Ir � van Cleve Appeal (PA 2002 -002 V� January 17, 2002 Page 7 o 7`.1 0 213 Coral Avenue (PA 2002 -002) Chronology of Events 01/25/01 Plans submitted and first reviewed by the Planning Department. The applicant was informed that the plans were not complete and was requested to provide additional information to determine compliance with Zoning Code regulations. 02/22/01 Review of revised plans by the Planning Department. Based on the information contained in the revised plans, the Planning Department determined that that the existing house exceeded residential floor area limits and that the work (demolition and replacement of existing exterior walls) constituted a new house rather than a remodel, thus requiring review by the California Coastal Commission. 03/07/01 Review of revised plans by the Planning Department. The applicant was informed that the plans indicated that more than 25 percent of the structural elements were being altered and that a modification permit or a use permit would be required. The applicant submitted a revised plan, which represented that the alteration would be limited to 25 percent or less of the structural elements. • 04/06/01 Building permit is issued. 05/02/01 Pre - construction meeting with Building Department. 05/23/01 Footings and slab inspected and approved by Building Department. 07/02/01 Subfloor inspected and approved by Building Department. 07/06/01 Site inspection by the Building Department. Inspection report states that prior to the next inspection, all changes must be reflected on the plan and approved by Building and Planning Departments (staff estimates that 100 percent of the exterior and interior walls were new). 09/11/01 Roof Framing inspected by the Building Department. A correction notice was issued requiring that the plan be revised the plan to reflect the new site conditions before any further inspection could be made. 10/04/01 Stop Work order was issued by the Building Department for exceeding the scope of work on approved plan. 10/15/01 Second Stop Work Order issued by the Building Department and the applicant was informed that all changes must be approved on the plan by • Building and Planning Departments before any further work. 12/20/01 Appeal filed. X" D� s • � •s ts:af: •fssco iitfi4 i 1 i r • i •ft • T. •r• N •aa• r••a . e _z O n O m (n N 9 A G • e r a • Hr••• r x a .t: M 050TW M d m A US. O 0 y zzkgo[f�-Cp c 0 0 a �Ca3sm go cm °o °m°.m q Ta as O o w d d T d w w_ +y m o m m n O N O O O d T 3 O o,n o,y N££�= o O' T o d d dOd G °1 n a ?c to F .. � n^ d d z n n. � mom' O + n+ r o m d a r M a a ONO V o °om gf o° -4 OOTMM O >P =w n d y ch n m M w A M � atwaarwa w o 0000in • 0 0 0 0 0 0 O >, N 3 mam m M Z ONO m d d R � T N d O N M > A m M N M M r o + 0 0 0 0 C M N cn v) w N m °d m m ti c d d A A D M a a a a C C C C a n a n OMaC o ER 2•fmi Tm a v O O O O 000 0 0000 R N w N f w z V >ao a0 F v.: v N N n m d m z -4 m z +—I IN Au m� < f mri< xWt OZ n w0<O M m> i2 y 0 ° m a n ° m o O �m> Am> A N A N > Q > = N n N n A A W w O O' n n A N m O T 0 0 -ac O T O* r m r O T go M q Ta w w_ +y m �� \V1 N Eli �', o,n o,y A yw 0 c Z.. N d N n + n+ r 9 m m o O 0 m m 6 m O r_ mM= a wnz +<Cz O m to M N ll >> m �f1O.fm a m z m O u O ^ T go T >m ,n 1 M q yNA w w_ +y y �� \V1 N Eli d •J N � n z O r u, T go T >m T >J� n a> N O + n+ r °Dfmf E °i ^r Z m�L7 O do wO mM= a wnz +<Cz O m to M °Zy gym= >> m �f1O.fm a m z m O u O A O y N N y V N N �Xi X m 3. O c N O � N n 9 S L O O d 7 � C� P o g' F A o m o A � M � 3 M Q° M m m r 2 a < H M z O ° + T o M � N A w N N O N LIP K 0 Z CD i a O CI O 3 W C a 7 A9 3 R cn n M CD Z O N O O • Moll PLANNING DEPARTMENT ( ` ' Q .-RESIDENTIAL ZONING CORRECTIONS' .` , �chone: (949) 634.3200, FAX (949) 644-3250 CHECK NO: 'Ry: O Jay Garcia. Senior Planner arias Marrelli. Assistant Planner jgarcia @city.newport- beach.ca.us (949) 644 -3200 e Ili @city.newport- beach.ca.us (949) 644 -3205 ❑ Gregg Ramirez, Assistant Planner graniirez @city.newport- beach.ca.us (949) 644 -3219 / p VV-04 X�t Date 2001 Address: Al` /, Zone PC Text: S CORRECTIONS REQUIRED: r ✓- Coastal Zone Requirements: Yes: r-� 4-24%1 N/A cmpt, $aeeuse ;*Approval tegorical Exclusioon NNo. (C.E.O.)ale: Building permits maybe issued on In Concept (AIC) No. -I1„ 1r 0 5f-7MI -T. ❑Ale Permits: Fees, ata Entered ❑ O Janet Johns jjolmson @city.: (949) 644 -3236 By: Fxk..L_ K 17 District Map No: /// L.U.E. Designation /0 Effective Date File 3 sets ajplans: sile, floor, and Waiver# Effective Date f^ ISL.v ' Coastal Devel meat Permit N E ec[ive Date j v- I..teal Description Lot Block Section V71fM Tract Verify legal description with Public Works Covenant required. Please have owner's signature notarized on the attached document and return to me. 3o x $ S Lot Size 30 X $5 O Verify with Public Works Dept. Easement(s) on site: O Yes )<No, No. of Units Allowed LtT' Proposed 61LO—� y x -70 Buildable Area &90 ar Maximum Lot Coverage_ Maxim Structural Area ZOO ((Area including exterior walls, stairway(s) on one level and required parking.) _LC _X buildable area. Proposed Structural Area: / x buildable area. Provide tissue overlay of calculations verifying proposed square footage (show calculations on tissue).�� -� Required Open Space Area M Ar cu.ft. (Volume of space equal to buildable width x height limit x six). This area must be at least six feet in any direction (6'x 6'x 6'), and open on at least two sides, or one side and one end, unless otherwise specified in Zoning Code. Required Sethacks (measured from oreDerty line, unless otherwise specified t Front Rear Right Side 31 (I �l �`f 1211 Et7G�A�µm GN>" l wr.voo�% aNe e -- °X,V /YL,J('k ew% L�" +gut A)C-r tJU C ccvv, l rn�l PivtGt ec GC e� (cont'd on next page) (�3i X12 t 0 i .aTRF L 77DENTIAL ZONING CORRECTIONS (Co, 1 Provide floor plan(s), fully dimensioned, showing all room uses. ❑ For All Buildings on site Provide plo Ian, fully dimensioned, showing: - location of all buildings, and distance to property lines distance from face of curb to front property line (verify with Public Works) second and third floor footprints (if applicable) and all projections (i.e. fireplaces, bay windows), label distance(s) to PL(s) .C,,L z distance between buildings _ . tin c44cL ' xa:.+ .6A� Height Limitation Measured from natural grade to mid -point of sloped roof or top of flat roof. ( 5'0" to the peak of the ridge height. Allowable Midpoint/Flat WY/ Allowable Ridge Height 2 Dimension elevations from natural/existing grade to: 9 rooFi4tidpoinT�dg` peak; / ❑` orther see "Remarks" below Label natural grade- ❑existing grade and ❑fnished grad elevations. (x r C 44g e� ❑ building face to Prop Line, ❑ eave overhang to Prop Line on all elevatioi n i/ 2GGvG K keel al-C4, �vr S� Fl &X'aw 2'rGfE( MCAsor[+tm FRvrllrV;-77 �—Tr—! ! am :� Sf-.�L -�-)' z•+- Required Parking: Clear inside minimum -3" X 18', plus 6 inches on any std`e w tere etan obstruction_ z (i.e., post, wall, fence, do r, etc.). The following are dimensions for enclosed parking spaces. 9' -3" x 19' single space t� 17'-¢" x 19' two spaces NOTE: Ask Planning Dept about tandem reqmts Label clear inside dimensions of provided parking spaces &0�vt n-��Ci> �Io deraelitio �� Number of units to be demolished Required Fees (�-Z ...,q- G--a�� j'yli✓'S'll'1 � S i �' fh r L�� L'4' TV 6 S Faushare Contribution :fit= %:: •� .�' L%r'v Oa%� -I San Joaquin Hills Transportation Corridor Dedication SPECIAL APPROVAL REQUIRED: Please indicate any discretionary.approval numbers on the plans and incorporate the following: excerpt of minutes and list of findings and conditions into the blueline drawings ❑ Copy attached approval letter into the blueline drawings ❑ Copy attached iSCRETIONARY ACTION RE UIRED: emu, 07YO 4C Planning Director (PD) Planning Commission (PC) or City Council' Modifications Committee: Use Permit: ❑ PD O PC Variance: Tentative Tract: Site Plan Review: Amendment: Other No._ Indicate Approval No. on Plans No._ Modification No. _ 0 No -_ Resub No._ , No._ Condo Convsn No._ NO.— Lot Line Adjsmt No. (Cont'd on next page) �� r2'`.WDENTIAL ZONING CORRECTIONS ICar 1 • '^' �R DEPARTMENT: ? 1 Public Works/Utilities Departments: 1 Plans Approval by: � EasemenUEncroachment Permit Subdivision Engineer Traffic Engineer Approval.of Landscape Plans Significant Links Building Department Grading Engineer General Services Department: Approval of Landscape Plans Fire/Marine Department: Plans Approval by: Review & Sienature on Final Plans Required • Public Works Dept. ❑ Utilities Dept. • Pu6lie Works Dept. Cl Utilities Dept. El • Sight Distance ❑ Parking Layout etc.. • Pu6lie Works Dept. ❑ Traffic Eng. • Pu6lie Works Dept. i ❑ Urban Forester ❑ Fire Dept. O Marine Dept. AmbMiscellaneou 4&,,e edQ_T - Chimney (and chimney caps etc.) heights permitted only as required by U.B.C. or manufacturer specifications plus additional 12" maximum for cap /spark arrestor. ADD NOTE ON PLANS: ,% A, Pools, spas, walls, fences, patio covers and other freestanding structures require separate reviews and permits." Association Approval (Advisory). Issuance of a Building Permit by the City does not relieve applicant of legal requirement to observe covenants, conditions and restrictions which may be recorded against the property or to REMARK. NOTE: • obtain It he re ponsibility6e applicant to circulate their tfilans an obtain thy' necessary approvals from the departments checked above. If you have questions , regarding your application, please cont; pt me at (949) 644 -3200. J �n ,(phi(/ �x� 2& V FORN�SI,R.ESZNCOR Rev. 01 /05/2000 �et' �')vp"1.2� �H— ZS7� `� •G�i %'tu —�(� `c1t.11� Page 20.62 -2 Nonconforming Structures and Uses 20.62.040 Nonconforming Structures A. Maintenance and Repairs. Ordinary maintenance and repairs maybe made to legal nonconforming structures. No structural alterations shall be made which would prolong the life of the supporting members of a structure, except as provided in this section. B. Interior Alterations. Changes to interior partitions or other nonstructural improvements and repairs may be made to a legal nonconforming structure, provided that the cost of the desired improvement or repair shall not exceed 50 percent of the replacement cost of the nonconforming structure, as determined by the Building Director, over any consecutive 12 month period. C. Structural Alterations. Structural elements of a legal nonconforming structure may be modified or repaired subject to the following provision: Alteration of up to 25 percent of the structural elements within any 12 month period may be permitted by right. 2. Alteration of up to 50 percent of the structural elements within any 12 month period may be permitted upon the approval of a modification permit. �3. Alteration of up to 75 percent of the structural elements within any 12 month tlt�l'nrN period may be permitted upon the approval of a use permit by the Planning Director, subject to the findings and provisions contained in Section 20.62.040 (F). D. Additions. Structures legally nonconforming for reasons other than for parking, open space, floor area, or building bulk, may be enlarged, extended or expanded subject to the following provisions: A increase of up to 25 percent of the gross floor area within any 12 month period may be permitted by right. An increase of up to 50 percent of the gross floor area within any 12 month period may be permitted upon the approval of a modification permit. 3. An increase of up to 75 percent of the gross floor area within any 12 month period may be permitted upon the approval of a use permit by the Planning Director, subject to the following findings and provisions contained in Section 20.62.040 (F). 11/24/99 11 • I'1 e Jr F( 0-o2 IF WE ALLOW ALL Ta Pc of-Fri 0n1 F,es- FL - zs� $.n= 75,s7zsA) CPA'iYO -r�a� GoeS ,b sky) 1 S 10, 3Z-7S a Isr�i �ri� 0 pa�z) J� yq 7S',5-72-5y u.l qx /-2 (S�llt25� \ y 32- 75 j 3ra-L- GrerR t,)-rRr, �joo(�,(,SS ra� Z�J4S,2z�SCi> / �1 157 7aTA,_ ,"s lNG3.9lk zs� $.n= 75,s7zsA) CPA'iYO -r�a� GoeS ,b sky) 1 S 10, 3Z-7S a Isr�i �ri� 0 pa�z) J� yq 7S',5-72-5y u.l qx /-2 (S�llt25� \ y 32- 75 j 3ra-L- GrerR t,)-rRr, �joo(�,(,SS ra� Z�J4S,2z�SCi> / �1 I 0 0 h ,,,iii ♦. Ar t_ .f rtt�4 , t l!� } . It f 4h Buchalter 895 DOVE STREET, SUITE 400, P.O. BOX 8129, NEWPORT BEACH, CALIFORNIA 92658 -8129 TELEPHONE (949) 760 -1121 / FAX (949) 720 -0182 Nemer Fields File Number: T9118 -001 & Younger Direct Dial Number: (949) 224 -6251 E -Mail Address: rgrable @buchalter.com A Professional Law Corporation December 20, 2001 RECEIVED BY PLANNING DEPARTMENT Patty Temple CITY OF NFIVD'iDT "EACH Planning Director DEC 2 City of Newport Beach AM 2001 FM P.O. Box 1768 789101112123456 Newport Beach, CA 92658 -8915 I I I 1 1 1 1 1 1 I I Re: 213 Coral Avenue - Appeal of Director's Determination Dear Ms. Temple: This letter shall serve as an appeal of your determination with respect to the interpretation of the provisions of the Zoning Code relating to Mr. Van Cleve's construction of his home at 213 Coral Avenue as reflected in the letter from Robin Clauson to me dated December 13, 2001. (Attachment No. 1) As indicated in my previous letter to Mr. Elbettar, a copy of which is attached hereto as Attachment No. 2, we believe that the interpretations attributed to you in Ms. Clauson's letter are inconsistent with the applicable City regulations and are in fact not consistent with your Department's processing and approval of similar projects on Balboa Island. Mr. Elbettar's original determination letter dated November 9, 2001, is attached hereto as Attachment No. 3. The basis of our appeal are as follows: 1. Degree of reconstruction. You provided us with no basis or explanation for your rejection of the evidence we submitted that the retained footings are conservatively equivalent to 50% of the structural elements of the building. If not 50 %, what percentage would you agree that they represent? If the value is between 25% and 50% we would have the right to seek a modification permit pursuant to Section 20.62.040(C)2 of the Code. If they constitute at least 25% of the structural elements of the building in which event we could apply for a use permit in accordance with Section 20.62.040(C)3. 2. Interpretatiori of Section 20.62 . While you may have authority to interpret the provisions of the Code, that interpretation cannot ignore the plain meaning of the Code itself. The exterior of the building bears no relationship to the definition of "alterations, structural" as defined in Section 20.03.020 which specifically references "bearing walls, columns, beams or girders," none of which relate to the exterior measurements of a building. The Code makes a specific distinction among the definitions of "Building ", "Structures" and "Alteration, structural." (Attachment Nos. 4, 5 and 6). The interpretation you have adopted disregards these distinctions. 3. Exception for Public Safety Purposes. You are correct that we did not request the Building Director to examine the structure before replacement of the damaged material. This is because we were not aware that this was an issue and apparently neither were the City's building Los Angeles • Newport Beach - San Francisco Buchalter Nemer Fields & Younger . Patty Temple December 20, 2001 Page 2 inspectors who never advised us that this was an issue as they continued to approve the work as construction progressed. We can, however, provide written and verbal evidence of these conditions which would enable the Building Director to make that determination now if permitted to do so. While Ms. Clauson's letter acknowledges the fact that Mr. Van Cleve was proceeding in good faith, it fails to note that he addressed all of these issues extensively with City staff prior to the issuance of building permits and believed that he was proceeding in accordance with standard City practices. All of the inspections to the point of the work stoppage reinforced that view. As indicated in my earlier letter to Mr. Elbettar, there is ample evidence to demonstrate that the inspectors were acting in conformance with previous practices on Balboa Island as it relates to the replacement of dry rot incurred in the course of construction. Moreover, it is important to note that as set forth in Paragraph 6 of Mr. Yaghi's certification, the condition of the studs which were replaced would have compromised the effectiveness of the plywood sheer walls which were required to be attached to them in accordance with the existing code. Mr. Van Cleve should be treated no differently than other builders in the City. We believe that there is ample flexibility in the City's Code to permit Mr.Van Cleve to complete the construction of his home. He has gained nothing by the replacement of the dry rot in terms of additional space or altered design from the plans he submitted and the City approved. The interpretation you have adopted will result in extreme hardship to him despite his acknowledged good faith. We respectfully request that this matter be agendized for consideration by the Planning Commission at the earliest possible date. With the exposure of the structure to the elements and the significant carrying costs Mr. Van Cleve is incurring, we deserve an expeditious resolution of this matter. We are enclosing a check in the amount of $741.00 for the appeal fee. Very truly yours, BUCHALTER, NEMER, FIELDS & YOUNGER A Professional orporation By (/2 ROGER A. GRABLE RG:RAG cc: Charles Van Cleve Steven Bromberg, City Council Member Homer Bludau, City Manager Robin Clauson, Assistant City Attorney Sharon Wood, Assistant City Manger Jay Elbettar, Building Director �� CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (949) 644 -3131 December 13, 2001 Roger A. Grable, Esq. VIA FACSIMILE (949) 720 -0182 BUCHALTER, NEMER, FIELDS & YOUNGER 895 Dove Street Suite 400 Newport Beach, CA, 92658 -8129 RE: Your letter dated November 26, 2001 ....._ ___._... 213 Coral Avenue Dear Mr. Grable: Staff has reviewed your letter of November 26, 2001, and has asked me to respond. Staff understands the letter to assert that because foundation footings that were left in place are "equivalent to 50% of the structural elements of the building," that Mr. Van Cleve should be able to continue construction of the residence. Neither the Planning Director or Building Director are persuaded that the footings alone equal 50% of the building's structural elements. You have also challenged the Planning Department's method of calculating the percentages of the structural elements be altered. The Planning Director has authority under the Zoning Code to interpret the Zoning Code provisions and to determine the conformity of any use, building structure or lot. The Planning Director has determined that the Planning Department's process meets with the intent of Chapter 20.62. Because the Building Code requirements result in standard repetitive spacing requirements for studs within walls, the linear length of walls altered is a'good representative measure of the amount of structural alteration. The presence of conditions such as dry rot are anticipated by section 20.62.040, which allows ordinary maintenance and repairs to nonconforming structures to be made. However, repairs are limited so that "no structural alteration shall be made which would prolong the life of the supporting members of a structure, except as provided in this section." Mr. Van Cleve was aware of the restrictions of this section and, through his architect, represented to the Building and Planning Department that only 25% of the structural walls would be replaced. When he or his contractor discovered extensive dry rot conditions, it was his responsibility to inform the Planning Department the percentages could not be met and obtain approvals to exceed the percentages provided in the application. 3300 Newport Boulevard, Newport Beach Mr. Grable, Esq. December 13, 2001 • Page 2 Mr. Van Cleve instead continued to replace walls until 100% of the walls of the structure and the roof were replaced. The Zoning Code provides in section 20.01.025 that "No building or structure shall be erected, reconstructed or structurally altered in any manner ... other than as permitted by and in conformance with the Code and all other ordinances, laws maps referred to therein." While we recognize Mr. Van Cleve's good intentions to replace rotted wood, the building permit approved by the Planning Department did not authorize the extensive replacement of the walls and roof of the house. Your reference to section 20.62.040(E)(2) is inapplicable to this situation. First, the Building Director was never given an opportunity to review or to examine the structure prior to replacement of all the walls. No application was made for him to determine whether the extensive modifications were immediately necessary to protect the health and safety of the public or occupants of the structure. The issue with regards to the flood plain and improvements and liquefaction mitigation must now be put aside until the question of the excess floor area is resolved. It is the Planning Director's determination that the structure does not • conform with the Zoning Code as it relates to the residential floor area limit. The Building Director has determined that it does not conform to the permit that was issued. Mr. Van Cleve's options are to either redesign the building to comply with the Code or to begin with a new structure. The decision of the Planning Director may be appealed to the Planning Commission under the provisions of Chapter 20.95. Mr. Van Cleve has 14 days from the date of this letter to file an appeal. The appeal must be made in writing and submitted to the Planning Director. The fee for appeal from decision of the Planning Director is $741.00. Very truly yours, Robin L. Clauson, Assistant City Attorney RLC:da cc: Steve Van Cleve Via Facsimile (949) 640 -6486 Steve Bromberg, Councilmember Homer Bludau, City Manager Sharon Wood, Assistant City Manager . Jay Elbettar, Building Department Patty Temple, Planning Department Q F:\ users\ CodeEnforce \VanCleve \letter\RG11261tr.doc `� I Buchalter 895 DOVE STREET, SUITE 400. P.O. BOX 8129, NEWPORT BEACH, CALIFORNIA 926:: -51'_9 TELEPHONE (949) 760 -1121 / FAX (949) 720 -0182 Nemer�ieldS File Number T91I; -001 . & Younger Direct Dial Number: (949) 224 -6251 E -Mail Address: rgrab/e @bucha/ter.cont A Professional Law Corporation November 26, 2001 Jay Elbettar Building Director City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Re: 213 Coral Avenue Dear Mr. Elbettar Mr. Van Cleve has asked me to respond to your letter of November 9, 2001, with respect to the + status of the construction of his home at 213 Coral Avenue. Thank you for fully explaining your{ position with respect to your interpretation of the City regulations and your view of the • regulations that apply to this situation. We have spent considerable time reviewing the City's development standards and the practices of the Building Department with respect to projects on Balboa Island which are similar to the project at 213 Coral. We believe that the interpretations set forth in your letter are inconsistent with the applicable City regulations and are in fact not consistent with your Department's processing and approval of similar projects on Balboa Island. Our specific responses are as follows: 1. Degree of reconstruction. Contrary to your letter, Mr. Van Cleve has never informed the City that 100% of the house has been rebuilt. As your next statement indicates, all of the original foundations remain. In addition the existing fireplace and chimney has been retained. Where portions of the concrete slab were removed to accommodate reductions in the floor area of the home, the footings were abandoned in place. The project was constructed substantially in accordance with the plans reviewed and approved by the City with the single exception that as construction proceeded, rotted wood and cut down supporting members, which were discovered after construction commenced, were replaced at the exact location with equivalent materials. Neither Mr. Van Cleve or his architect was aware of these conditions when the plans were prepared and submitted to the City. The only other deviations from the approved plans were a minor widening of the atrium on the first and second floor (reducing overall square footage), the addition of a skylight above the stairs to the roof deck, the curved wall between the breakfast room and garage was straightened from a curved wall under the observation and sanction of the engineer, and a covering, open on two . sides over the roof deck landing. These minor modifications are typical during a construction project of this type and can be, but usually are not required to be, confirmed by "as- built" plans. Buchalter Nemer Fields & Younger • Jay Elbettar November 26, 2001 Page 2 You have also commented on several occasions that the structural plans do not match the architectural plans. We have reviewed this issue with Mr. Van Cleve's architect and engineer and they have advised us that the apparent difference is a CAD error inherent in the use of two different programs. The structural plans are not dimensioned. The project was built utilizing the structural plans and design but in accordance with the architect's dimensions. We have determined that dry rot and the unpermitted alterations of structures is a pervasive condition on Balboa Island. It is a universal practice to replace these materials once a project has commenced. We can cite numerous examples of where the extensive replacement of these materials occurred without objection by the City and without requiring "as built" plans, or in this circumstance, a reconsideration of the remodel status as the City is requesting of Mr. Van Cleve. Attached hereto is a certified statement from Mr. Van Cleve's consulting engineer, Shucri Yaghi, certifying the state of the retention of the foundations and the slab removal, as well as his opinion that the retained footings are conservatively equivalent to 50% of the structural elements of the building. • 2. Interpretation of Section 60.62 . You have indicated that the City does not consider i concrete slab on grade foundations as "structural elements" of a building. In support of this position you reference Department plan check procedures utilized to interpret Section 20.62.040(C). This procedure, which has not been adopted by the City Council, simply measures the percentage of the exterior walls to be modified in determining the extent of "structural alterations" for the purpose of this Section. This interpretation, while perhaps convenient, is entirely inconsistent with the explicit provision of the City Code. The term "structural alterations" is a defined term in the City Code. Section 20.03.020 defines "Alteration, structural" as "any change or replacement in the supporting members of a building, such as bearing walls, columns, beams or girders." The plan check procedure does not conform to this definition. Please refer to the attached certification from Mr. Yaghi which includes his opinion that the retained foundations alone represent more than 50% of the structural elements of the building. In addition to incorrectly interpreting the adopted Code, you have not considered the balance of Section 20.62.040 that includes several significant exceptions to the requirements of Section 20.62.040. Section 20.62.040(E)(2) provides that "structural elements of a legal nonconforming structure may be modified or repaired if the Building Director determines that such modification or repair is immediately necessary to protect the health and safety of the public or occupants of the nonconforming structure, or adjacent property and the cost does not exceed fifty (50) percent of the replacement cost of the legal nonconforming structure, as determined by the Building Director." Attached hereto is a second certification from Mr. Yaghi certifying that he visited the site during construction and that in his opinion the lumber replacement did in fact represent an immediate public safety hazard. Photographs documenting his opinion are attached to his certification. The cost of this lumber replacement is estimated in the attached exhibit as 53,370.07. This cost is insignificant when compared to the replacement cost of the legal nonconforming structure which was estimated by the City to be S 150,000.00. R Buchalter Nemer Fields & Younger Jay Elbettar — November 26, 2001 Page 3 As can be seen from the above, there is ample evidence to support a finding that the original permit as issued was in compliance with the applicable regulations of the City and that the work that was undertaken to replace the rotted and cut down structural members was exempt from the provisions of Section 20.62.040. 3. Flood Plain/Liquefaction Improvements. You have also indicated that additional review may be required to determine whether flood plain improvements and liquefaction mitigation may be required. Neither of these issues were ever raised during the permitting process even though they could have potentially rendered the issuance of the permit applied for inappropriate. Our investigation reveals why this is the case. We have discovered no instance where liquefaction mitigation was considered an issue with respect to projects on Balboa Island. We do not believe this is an issue, but we will submit additional engineering documentation of this fact if necessary. • Secondly, and more significantly, we have found no instance where a development permit or a variance from the-provisions of Section 15.50.130 was ever required for a remodel on Balboa Island. This too is for good reason. We have been able to determine that less than three (3)% of the structures on the Island are new structures that have been subject to this requirement. Even { with the El Nino storms of 1997 nonsignificant flooding or flood damage occurred on the Island. • We are more than willing to provide the City with a release of liability that would be binding on any future purchaser of the home, but we do not believe that this property should be treated differently than all other properties on Balboa Island under similar circumstances. Had this been raised as an issue at the outset, the improvements to this residence would not have been undertaken since it would require the removal of all improvements on the property including the slab, the foundations and the fireplace and chimney. But this would also be true for virtually every remodel approved on Balboa Island. With the quality of the upgrades proposed in virtually every remodel, the cost of the remodel would exceed 50% of the market value of the structure before commencement of construction in almost every case and a variance would be required. ' Based on the foregoing, w9 ask that you reconsider your position in this matter and reinstate the permit so that construction can be completed. As you are aware, with the coming of winter storms, the existing construction is exposed to considerable damage in its unprotected state. With the limited protection options you have approved, it is likely that considerable damage will occur if the permit is not reinstated and the construction completed. We will be more than happy to provide you with "as- built" plans to document the minor alterations noted above. • q� • Buchalter Nemer Fields & Younger Jay Elbettar November 26, 2001 Page 4 Thank you for your consideration. We look forward to resolving this matter in the most expeditious fashion. Very truly yours, BUCHALTER, NEMER, FIELDS & YOUNGER A Professional Corp ration By 610zl ROGERA. G � . RG:RAG cc: Charles Van Cleve Steven Bromberg, City Council Member Home Bludau, City Manager Robin Clauson, Assistant City Attorney Sharon Wood, Assistant City Manger Patricia Temple, Planning Director Shucri I. Yaghi, Consulting Engineer Gl \c• CC% -rev .g;d�wa �ay t o JO\nN', Ne��' q1 EXHIBIT • COST TO REPLACE DAMAGED LUMBER UNIT COST: 2 X 4 — 10' $ 3.18 2X4 -8' 2.66 2X10 -10' 8.23 2X10 -12' 9.88 2X10 -16' 13.49 2X12 -22' 25.52 ITEMIZED COST: 86 — 2 X 4 —10' exterior walls, 1" floor $ 273.48 15 — 2 x 12 — 22' floor joists, 2" floor framing 382.80 26 — 2 x 10 —10' floor joists, 2" floor framing 213.98 10 — 2 x 10 —12' floor joists, 2`1 floor framin2 98.80 14 — 2 x 10 —16' floor joists, 2" floor framing 188.86 110 — 2 x 4 — 8' exterior walls, 2" floor 292.60 25 — 2 x 10 —16' roof deck framing 337.25 10 — 2'x 10 — 10' roof deck framing 82.30 Labor $1870.07 1500.00 TOTAL: $3370.07 0 l� SHUCRI "CHUCK" I. YAGHI Consulting Engineers: Residential & Commercial 112 E. Chapman Ave., Suite D, Orange CA 92866 Tel. 7141997 -9120 Fax 7141744 -3676 DATE: November 9, 2001 TO: City of Newport Beach Building Department PROJECT: 213 Coral Avenue Balboa Island, CA 92662 SUBJECT: Existing Building Foundation Renovation Findings The slabs were removed in areas but the footings stayed intact. Even where no wall above occured anymore, the footings were abandoned in place and not removed to preserve existing foundation integrity. The slab. is not a post tension slab and it only serves as a floor covering and it is not a structural element of the building. J� 213 Coral Avenue, Balboa Nand The footings support all the dead and live loads of the structure as well as the lateral loads seismic and wind loads. Both vertical and lateral loads have to travel a path down to the footings. Anchor bolts and holdowns tie down seismic resisting elements to the footings. In reality, the footings support 100% of the structure and it can be assumed conservatively as equivalent to 50% of the structural elements of the building. 'iHUGRI 1. YAGNI, RE Page 2 of 2 0 • `bb SHUCRI "CHUCK" 1. YAGHI Consulting Engineers: Residential & Commercial 112 E. Chapman Ave., Suite D, Orange CA 92866. Tel. 714/997-9120 Fax: 7141744 -3676 DATE: November 9, 2001 TO: City of Newport Beach Building Department PROJECT: 213 Coral Avenue Balboa Island, CA 92662 SUBJECT: Lumber Replacement of an Existing Wood Structure 0 Findings I had visited the site during demolition phase and observed the existing framing mainly the second floor framing and the first floor wall framing which exhibited signs of instability which could jeopardize the safety of the occupants in the event of a major seismic activity or high winds due to the following conditions: 1. Existing 6x16 beams supporting floor and roof loads were beveled down to 5" which creates an unsafe condition since the beams could shear off at the support and causes the floor to fail. And they can also twist and warp. Please see photographs attached. 2. Existing wall framing has a hinge at the top which is unstable when the seismic or wind forces are normal to the wall. It appears that the house was a one -story structure and they extend the wall by adding a single 2x6 which could . roll over very quickly. Please see photographs attached. X0 41 213 Coral Averwe, Baboa Island 3. Existing top plates lacked conformity and had large bored holes which compromises the chord stresses in tension and compression. 4. Existing (3) 2x floor beams were side loaded and not bolted together which could fail if live loads are fully applied. 5. Existing 3x beams are supported on a single 2x flat which could easily fail. 6. Applying plywood shear walls to existing beat up studs with lots of holes and notches as well as splits will compromise the effective shear value of the walls. f It is our opinion that the existing wood framing, if left in place, could have caused serious. life safety issues in the event of a major �- seismic activity. SHUCRI 1. YAGHI,.P.E. Att.: a/s Page 2 of 2 0 1. ALAM 4r X, .; I _ t On IP g�._ . 71 %l r NOV. 9.2001 3:18PM BUILDING DEPT CNB NO.321 CITY OF NEWPORT BEACH _ SUILDING DEPARTMENT 3300 NEWPORT BLVD. P.O.BOX 1768, NEWPORT BEACH, CA (949) 644 -3275 November 9, 2001 Mr. Charles Van Cleave T.V.C. Associates Inc. 177 Riverside Drive Newport Beach, CA 92663 Re: 213 Coral Avenue Dear Mr. Van Cleave: P.2 This letter will follow up our recent meetings regarding the status of the building permit for the construction at 213 Coral Avenue on Balboa Island. In our meeting we discussed the Issues raised in the October 17, 2001 letter and with your attorney discussed options for resolving the problems with the permit. You have informed us, that although . the house has been 100% rebuilt, you believe that the original foundation of concrete slab on grade constitutes a structural element and therefore should be counted towards the calculation of altered structural elements. it is your belief that If the slab constitutes 25% of the structural elements of the house, then only 75% of the structural elements will have been deemed altered and therefore they qualify for consideration of a use permit per Section 20.62.040(C)(3). As we discussed, the City does not consider concrete slab on grade foundations as structural elements and so have not included it into the calculation of the percentage of altered structural elements in the administration of Section 20.62 of the Newport Beach NIM019jpal Code. Attached for your reference is a description of the Planning Department's plan deck procedures utilized to interpret the provisions of Section 20.62.040(C). As you will note, the City has always used lineal feet as the basis for calculation in interpreting the section. If the slab on grade were identified as a structural element, then the calculation would have to be adapted to create a common denominator in terms of square feet and then the percentage would be based on surface area. You have asked for an opportunity to provide an application that will show the house as constructed represents not more than 75% alteration of the structural elements. The Planning Director has agreed to consider such an application. In order to provide for that opportunity, and because I have determined that the building permit was Issued in • error, and the structure as built does not conform to the plans, building permit number 82001 -0051 will be suspended for a sixty (60) day period. This should provide sufficient amen: cub— bl6@dty.eewpart- beach.CD.ua ♦ Wc*P: WWw clty.ncMwr14 ch.mud4uldiag Ill NOV. 9.2001 3 :19PM BUILDING DEPT CNB NO.321 P.3 Mr. Charles Van Cleeve November 9, 2001 Page Two time to submit accurate plans for review to determine whether the necessary Planning and Building (flood plain elevation and liquefaction mitigation) approvals can be obtained. If all required approvals cannot be obtained then the permit will be revoked. This decision is based upon the authority in Section 303.5 of the Uniform Administrative Code. I have also determined as the designated Flood Plain Administrator that you will be required to apply for a development permit in compliance with section 15.50.130. Information required as part of that application will be necessary prior to making a determination whether a variance will be necessary under the provisions of the same Chapter. You have asked for authorization to take necessary steps to protect the structure from potential inclement weather. The Building Department inspector has visited the site and determined that you may employ temporary measures to protect the structure and materials at the site in a manner that will not impair inspections. Because tarpaper on the roof will require framing inspections we do not consider it a temporary measure. 'If you have any questions regarding this letter please do not hesitate to contact me �r Patty Temple. Very truly yours, /1 6Elbettar, Building Director cc., Steven Bromberg, City Council Member Homer Bludau, City Manager Robin Clauson, Assistant City Attorney Sharon Wood, Assistant City Manager Patricia Temple Planning Director Rodger Grable, Esq. Attachment P01radoNeneral IeftW219Coraf • 16 (, l NOV. 9.2001 3419PM BUILDING DEPT CNH 20.62.040 Nonconforming Structures NO. 321 PA • C. structural Alterations. Structural elements of a legal nonconforming structure may be modified or repaired subject to the following provision; Alteratlon of up to 25 percent of the structural elements within any 12 month period may be permitted by right. Steps to determine the percentage of structural alterations: The measurement is flrst performed as a percentage of the linear footage of the exterior walls: (A)- Measure the length of all exterior walls idendlied by the architect to be altered for - structural purposes or replaced (B)- Measure the total length of all exterior walls (C)- Divide (A) by (B) to determine the percentage of wall to be altered if the percentage exceeds 25% then more detailed calculations may bei made to reduce the percentage to 25% or below utilizing roof related structural • elements or lineal feet of Interior walls identified by architect as structural. If the calculations exceed 25% then a modification permit must be approved per the provisions of Chapter 20.98. If the calculations exceed 50% then a use permit reviewed by the Planning Director must be approved per the provisions of Chapter 20.93 and findings in Section 20.62.040(F) If the calculations exceed 75% then the building is no longer legal non - conforming. A variance approved by the Planning Commission per the provisions of Chapter 20.93. is required for the building to exceed the allowable floor area F:lUsersIPLN%3haredll pincM213CORALrINFO.DOC • { "MFR (28 du)" shall indicate that a.total of twen- ty-eight (28) dwelling units are permitted in the area specified. C. Notwithstanding dwelling unit limitations defined on the districting traps 'enabled above, dwelling unit limits for senior citizen housing facili- ties (where residency is limited to elderly persons) shall be as specified at the time a use permit is granted for a senior citizen housing facility. (Ord. 97 -09 Exh. A (part), 1997) 20.01.060 Illustrations. A. Authority. The Planning Commission, in accordance with City Council policy, may authorize the Planning Director to provide diagrams or images to assist in conveying the information contained in this Code. B. Procedure. The Planning Commission shall approve the addition, modification or deletion of any diagram or image published in conjunction with the Zoning Code. C. Conflicts. In case of conflict between the Zoning Code text and any diagram or image pub- lished in conjunction with the Zoning Code, the text shall control. (Ord. 97-09 Exh. A (part), 1997) 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 Plan- ning Director shall determine the intent of the provi- sion. B. Districting Map. Where uncertainty exists regarding the boundary of a zoning district, the following rules shall apply; 1. District boundaries shown as approximately following the property line of a lot shall be con- strued to follow such property line. 2. On unsubdMided land, or where a district boundary divides a lot, the location of the district boundary shall be determined by using the scale appearing on the districting map, unless the bound- ary location is indicated by dimensions printed on the map or established by reference. 20.01.055 3. District boundaries shown as approximately following right -of -way lines of freeways, streets, alleys, railroads, or other identifiable boundary lines shall be construed to follow such right -of -way or boundary lines. 4. District boundaries shown as lying with right - of -way lines of freeways, streets, alleys, railroads, or other identifiable boundary lines shall be con- strued to follow the centerline of such right -of -way or boundary lines. 5. District boundaries shown as approximately following the shoreline of the Pacific Ocean shall be construed to follow the mean high tide line. 6. District boundaries shown as approximately following the waterfront of Newport Bay shall be construed to follow the bulkhead line. 7. Should any uncertainty remain as to the loca- tion of a district boundary or other feature shown on the districting map, the location shall be determined by the Planning Director. ' C. Appeals. An interpretation of the zing regulations or districting map by the Planning Direc- tor may be appealed to the Planning Commission, • as provided in Chapter 20.95. (Ord. 97 -09 Exh. A (part), 1997) 0 681 (Mewpon Bewh 3 -917) / 1D U�/ 0 U • "Animal, exotic" means any wild animal not customarily confined or cultivated by man for do- mestic or commercial purposes but kept as a pet or for display. "Animal, large" means an animal larger than the largest breed of dogs. This term includes horses, cows, and other mammals customarily kept in cor- rals or stables. "Animal, small" means an animal no larger than the largest breed of dogs. This term includes fish, birds, and mammals customarily kept in kennels. "Applicant" means owner(s) or lessee(s) of prop- erty, or person(s) who have contracted to purchase or lease property contingent upon their ability to acquire the necessary permits, applying for permits under this Code, or the agent(s) of such persons. This term includes the successor(s) of such persons. "Area, buildable" means the area of a develop- ment site, excluding any basic minimum side, front and rear yard spaces, required for buildings three stories or less in height. Area, Floor. (See "Floor area, net' and "floor area, gross "). "Area, lot, parcel, or site" means the horizontal area within the property lines excluding public -ac- cess corridors, vehicular easements, and areas to be included in future street rights -of -way as established by easement, dedication, or ordinance. "Area, net public" means the total area used to serve customers, including, but not limited to, cus- tomer sales and display areas, customer seating areas, service counters, and service queue and wait- ing areas, but excluding restrooms and offices, kitchens, storage and utility areas, and similar areas used by the employees of tjte establishment. "Awning" means an ornamental roof -like cover attached to a building and projecting over a window, doorway, or pedestrian walkway. "Balcony" means a platform that projects from the wall of a building, typically above the first level. and is surrounded by a rail balustrade or parapet "Basement" means that portion of a building between floor and ceiling, which is partly below and partly above grade as defined in this Code, but so located that the vertical distance from the floor 20.03.030 below is less than the vertical distance from grade to ceiling. "Bay window" means a window or series of windows that project outward from a wall of a building forting a bay or alcove in a room within. This definition includes bow, oriel and similar projecting windows. (See "Greenhouse window "). "Berm" means a mound or embankment of earth. "Blockface" means the properties abutting on one side of a street and lying between the two nearest intersecting or intercepting streets, or nearest inter- secting or intercepting street and railroad right -of- way, unsubdivided land, water - course, or City boundary. Build g'!£.means any structure having a roof supported by columns or walls for the housing or enclosure of persons, animals, chattels, or property of any kind. "Building, accessory" means a subordinate build- ing, the use of which is incidental to that °f the main building on the same lot and/or development site. 'Building, main or principal' means a building in which is conducted the principal use of the lot and/or development site on which it is situated. "Building, relocatable" means a structure de- signed for human occupancy for industrial, commer- cial or professional purposes in such a manner as to be readily transportable from site to site. "Building bulk" means the visual and physical mass of a building, calculated in accordance with Section 20.63.070. "Bulkhead" means a retaining wall or similar structure constructed along a waterfront. "Bulkhead line" means a line established to de- fine the bayward limit for solid -filling or solid struc- tures. "California Environmental Quality Act (CEQA)" means the California Public Resources Code, Sec- tion 2100 et seq. "Caliper" means the thickness of trees as mea- sured in inches, feet, etc. Trunk diameter for trees up to four inches shall be measured six inches above the soil line, and all trees over four inches in diame- 683 (x Bin, -00) 1� 20.03.030 floor and the ceiling-or roof above. If the finished floor level directly above a basement, cellar or un- used underfloor space is more than six feet above grade as defined herein for more than fifty (50) percent of the total perimeter or is more than twelve (12) feet above grade as defined herein at any point, such basement, cellar or unused underfloor space shall be considered as a story. "Street" means any public or private thoroughfare which affords principal means of access to abutting property, including avenue, place, way, drive, lane, boulevard, highway, road and any other thorough- fare except an alley as defined herein. ;means anything constructed or erect- ed, the use of which required location on the ground Or attachment to something having location on the ground. "Structure, accessory" means structures that are incidental to the principal structure on a site. This classification includes fences, walls, decks, landings, patios, platforms, porches and terraces and similar minor structures other than buildings (see "Building, accessory"). "Submerged area" means an area which is below "Mean Higher High Water." "Surface, finished" means the surface of a struc- ture after the final installation or application of stucco, sliding, stone, brick, tile, shingles, or other surfacing or roofing materials. "Swimming pools and hot tubs" means any con- fined body of water, located either above or below the existing finished grade of the site which exceeds eighteen (18) inches in depth and is designed, used or intended to be used for swimming or bathing purposes. "Transmission line" means an electric power line bringing power to a receiving or distribution substa- tion. "Tree" means a plant having at least one well- defined stem or trunk and normally attaining a ma- ture height of at least fifteen (15) feet, with an aver- age mature spread of fifteen (15) feet, and having a trunk that shall be kept clear of leaves and branch- es at least six feet above grade at maturity. Tree, Fifteen Gallon. "Fifteen gallon tree" means a fifteen (15) gallon container tree shall be no less than one -inch caliper and at least 6 feet in height above grade at the time of planting. Tree, Mature. "Mature tree" means any tree with a trunk with a diameter of ten (10) inches or more, measured twenty -four (24) inches above existing grade. Tree, Twenty-Four Inch Box. "Twenty-four inch box tree" means a twenty -four (24) inch box tree shall be no less than 1.75 -inch caliper and at least 7 feet in height above grade at the time of planting. "Unit" means the particular area of land or air- space that is designed, intended or used for exclu- sive possession or control of individual owners or occupier. "Use" means the purpose for which land or pre- mises of a building thereon is designed, arranged, or intended or for which it is or may be occupied or maintained. t "Use, accessory" means a use that is appropriate,1 subordinate, and customarily incidental to the main use of the site and which is located on the same site as the main use. "Use, ancillary" means a use that is clearly inci- dental to and customarily found in connection with the principal use; is subordinate to and serves the principal use; is subordinate in area, extent, or pur- pose to the principal use served; contributes to the comfort convenience, or necessity of the operation, employees, or customers of the principal use served. An ancillary use may be located on a property sepa- rate from the principal use. "Use, principal" means the primary or predomi- nant use of any lot, building, or structure. Used This term includes the following meanings: arranged, designed, constructed, altered, rented, leased, sold, occupied, and intended to be occupied. "Vending machine" means any unattended self - service device which, upon insertion of a coin, coins, or token, or by similar means, dispenses anything of value including any food, beverage, goods, wares, merchandise or services. "Visible" means likely to be noticed by a person of average height walking on a street or sidewalk. E • 0 cm Bah 2 -007 690 �(b rr1 �J TO FROM: CITY OF NEWPORT BEACH CITY ATTORNEY'S OFFICE Chairman and Members of Planning Commissions Robin L. Clauson, Assistant City Attorney RE Appeal of Charles Van Cleve, 213 Coral Avenue DATE: January 11, 2002 This Memorandum will provide the Planning Commission with various provisions of law that may assist the Commission in making their decision on this appeal. This is not intended to be a legal brief, but it is intended to provide the simple tenets of law and related facts relevant to the decision. As described in the Staff Report the City's Zoning Ordinance sets forth floor area limitations to establish maximum floor area allowed for residentially zoned property. If a building exceeds the allowed floor area because it was permitted to be built under previous zoning the building becomes a non - conforming structure and is legally permitted to continue so long as the non - conformity of the structure is not enlarged or its life extended. General Provisions: Section 20.01.025 of the General Provisions Chapter of the Zoning Code provides that: "No building or structure shall be erected, reconstructed or structurally altered in any manner, nor shall any building or land used for any purpose, other than as permitted by and in conformance with this Code and all other ordinances, laws and maps referred to therein." In 1990 the City amended its regulations for non - conforming structures. The purpose of the Chapter 20.62 is set forth in section 20.62.010 as follows: "This chapter establishes procedures for the continuance or abatement of existing structures and uses that do not conform to the provisions of the Zoning Code and the goals and policies of the general plan, and which may be detrimental to the orderly development of the City and adverse to the general welfare of persons and property. This chapter is intended to limit the expansion of the nonconforming structures... and to bring these structures and uses into conformity in an equitable, reasonable and Chairman and Members of Planning Commissions January 11, 2002 Page: 2 timely manner, without infringing upon the Constitutional • Rights of property owners." The courts regularly uphold these provisions or provisions like them. Land Use law recognizes that the purposes of zoning is to confine certain classes of buildings and uses to particular localities and reduce all non - conforming uses within the zone to conformity as speedily as consistent with proper safe guards for the interest of those effected. Any change, which tends to give permanency to or expand the non- conforming structure, would not be consistent with this purpose. This objective of zoning to eliminate non - conforming uses has been upheld by courts throughout the country and in particular in the State of California. Planning Directors Authority: The Planning Director has determined that the building at 213 Coral Avenue as constructed is non - conforming because it does not comply with the floor area limitations for the zone in which it is located. This determination, and the Planning Department's methodology for determining percentages of structural alterations under section 20.62.040(C) is within the purview of the Planning Director's authority per the following sections of the code: Section 20.01.065 provides that: "Where uncertainty exists regarding the interpretation of any provisions of this Code or its application to a specific site, the Planning Director shall determine the intent of provision." Section 20.62.030 provides that: "The Planning Director shall determine the nonconformity of any use, building, structure, or lot. Any use, building, structure, or lot found to be inconsistent with the provisions of the Zoning Code shall be deemed to be nonconforming." Courts will uphold the interpretation of the Planning Director as well as any review of that interpretation by the Planning Commission, and \or City Council on appeal, if such interpretation is reasonable and not arbitrary and capricious. In fact courts will give great deference and weight to an administrative agency's . construction of statutes that the agency is charged with implementing and enforcing. Deference is also accorded to a contemporaneous administrative interpretation that is long acquiesced in by all persons who could possibly have an interest in the matter. �' Chairman and Members of Planning Commissions January 11, 2002 Page: 3 Estoppel Doctrine: The building permit was approved by the Planning Department and was granted based upon representations in the plans that said the exterior and interior wall alterations would not exceed twenty -five percent of the structure and only twenty -three percent of the roof would be replaced. Senior Planner, Jay Garcia and Associate Planner, Marina Marrelli explained the provisions of Chapter 20.62 to Mr. Van Cleve. The plans were stamped prior to issuance of the permit with a statement that clearly informed Mr. Van Cleve that the approval of the permit does not authorize the violation of the City's codes. There is no representation that Mr. Van Cleve ever returned to the Planning or Building Department Staff to inform them that due to the amount of dry rot in the building the percentages could not be met. Mr. Van Cleve believed that because there was approval by the Building Department staff of a change in plans for the floor joists that this constitutes approval of all other changes. He also believes that the failure of the building inspector to stop him from exceeding those percentages or to adequately specify the problems should provide a sufficient authorization for him to have continued replacing the walls and the roof of the building. He also believes that other alleged or perceived actions by building inspectors to allow replacement of dry rot in other properties in the City led him to believe that he was proceeding in accordance with standard City practices and therefore his decision to replace all the walls was authorized. The issuance of a permit to remodel a structure so that no more than twenty -five percent of the walls and twenty -three percent are removed does not grant a permit to remove 100 percent of the walls and replace the entire roof. Even if accurate, the inactions or inadequate action of staff has not been held by the courts to be sufficient to overcome a strong rule of policy adopted for the benefit of the public. The doctrine of estoppel (that a City should not be able to enforce its laws because of reliance on representations of staff) only occurs when four elements are present. 1. The Party tp be estopped must be apprised of the facts. 2. He must intend that his conduct shall be acted upon, or must so act if the Party asserting the estoppel had a right to believe it was so intended. 3. The other party must be ignorant of the true state of facts. 4. He must rely on the conduct to his injury. Generally, the reason for estoppel in the face of a government zoning ordinance or other strong rule of public policy must be of sufficient dimension to justify any effect upon public interest or policy that would result from raising the estoppel. Therefore, the injustice to Mr. Van Cleve would have to be such that it would overcome the injustice to �� Chairman and Members of Planning Commissions January 11, 2002 Page: 4 the health, safety and welfare of the City and the integrity of the zoning ordinance, which is intended to limit the floor area of all new buildings on Balboa Island. Courts will only invoke estoppel against the government in rare circumstances. "When considering the application of the doctrine with respect to zoning laws and permits, courts must balance the individual's interest against the interest of the public and the community in preserving the community pattems established by zoning laws. "All the residents of the community have a protectable property and personal interest maintaining the character of the area as established by comprehensive and carefully considered zoning plans in order to promote the orderly physical development of the district and__the City_and_to__ prevent the property of one person from being damaged by the use of neighboring property in a manner not compatible with the general location of the two parcels. These protectable interests further manifest themselves in the preservation of land values, in esthetic considerations and in the desire to increase safety by lowering traffic volume. To hold that a City can be estopped would not punish the City but it would assuredly injure the area residents who in no way can be held responsible for the City's mistake." County Of Sonoma v. Rex 231 Cal App 3d 1289 The Courts have upheld this concept in various contexts. Also allegations that inaction or non - enforcement by the City staff of other violations in the community is also not sufficient to support non - enforcement of the Zoning Code in this case. The general rule of law is that the mere fact that city officials have failed to enforce a zoning ordinance against a violator will not estop the City from subsequently enforcing the code against him. No vested right to violate a City ordinance may be acquired by continued violations. Other Considerations: Other statutes that may be applicable to the Commission's decision at the hearing are as follows: 1. Business and Professions Code Section 5536.1 provides that an Architects stamp on plans is evidence of responsibility for those plans. 0 �iq Chairman and Members of Planning Commissions January 11, 2002 Page: 5 2. Business and Professions Code Section 5536.2 provides that a City must require as a condition of a issuance of a permit a signed statement of the person who prepared the plans or who was responsible for those plans. An Architects stamp is considered compliance with this requirement. As always I will be available at the hearing to address other issues that may arise. Robin L. Clauson, Assistant City Attorney RC:da 0 F: \users\cat\sha redlcplcod eenforce \VanClev eXmemo\appeal.doc u ��5 �+EW�Rr CITY OF NEWPORT BEACH O� ,e PLANNING DEPARTMENT t 3300 NEWPORT BOULEVARD u d, NEWPORT BEACH, CA 92658 +ceroa� (949) 644-3200; FAX (949) 644-3229 TO: Planning Commission FROM: Planning Department DATE: January 15, 2002 M(einn oi)ratin dluinn) 0 SUBJECT: Van Cleve Appeal (PA 2002 -002) -Supplemental Information The Chronology of Events attached to the staff report contained two errors. The first stop work order was issued on September 19, 2001, not October 4, 2001. Also, a second Stop Work Order was not issued on October 15, 2001. The error was due to a duplicate entry of the September 19, 2001 Stop Work Order into the permit tracking system. A corrected Chronology of Events is attached. Also attached are copies of Building Permit 82001 -0051 (front and back), the July 6, 2001 Building Department Inspection Report, and the September 19, 2001 Stop Work Order. If you have any questions, please call Patrick Alford at (949) 644 -3235 or e-mail to palford@city.newport• beach.ca.us. 0 0 11 0 213 Coral Avenue (PA 2002 -002) Chronoloav of Events 01/25/01 Plans submitted and first reviewed by the Planning Department. The applicant was informed that the plans were not complete and was requested to provide additional information to determine compliance with Zoning Code regulations. 02/22/01 Review of revised plans by the Planning Department. Based on the information contained in the revised plans, the Planning Department determined that that the existing house exceeded residential floor area limits and that the work (demolition and replacement of existing exterior walls) constituted a new house rather than a remodel, thus requiring review by the California Coastal Commission. 03/07/01 Review of revised plans by the Planning Department. The applicant was informed that the plans indicated that more than 25 percent of the structural elements were being altered and that a modification permit or a use permit would be required. The applicant submitted a revised plan, which represented that the alteration would be limited to 25 percent or less of the structural elements. 04/06/01 Building permit is issued. 05/02/01 Pre - construction meeting with Building Department. 05/23/01 Footings and slab inspected and approved by Building Department. 07/02/01 Subfloor inspected and approved by Building Department. 07/06/01 Site inspection by the Building Department. Inspection report states that prior to the next inspection, all changes must be reflected on the plan and approved by Building and Planning Departments (staff estimates that 100 percent of the exterior and interior walls were new). 09/11/01 Roof Framing inspected by the Building Department. A correction notice was issued requiring that the plan be revised the plan to reflect the new site conditions before any further inspection could be made. 09/19/01 Stop Work order was issued by the Building Department for exceeding the scope of work on approved plan. The applicant was informed that all changes must be approved on the plan by Building and Planning Departments before any further work. 12/20/01 Appeal filed. • ��l T N 0 9 r MN W Z E d a a IL in W C E t R Q 4) C W L V R W t O C d Z O T r LOA, PAt y .y /I N e m V A c t d H N N d 0 U d w C m a d A T d 0 d N f N U E C 0 J G I N FO W o` Z O Q N Oj wa C' W ad y s W � C o ar O am � o Y O 3 O c O a V d J O N y Ip N A p n 5 N N c W U. W O N c L C VJ d N E L V ° d n •y .. 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Z Y.r V_ a dY x 3 V d W m D d a_ b b m U m U m Z Q Z Q U U > awa awa J U O w o V G w o r z m H a m m w m01 ¢wzm Nwsm 5i O Z O Q> O O "m %^wy _`p E3 N NI H a l m H—Z W� N y C M H H N O R O T 3 3 d v w c H o V cmm Z 0 0 a9 I a a �� a UFO¢QZZ 0 o e o O O O O O O O O w w w w N : c E E K m A p d U m d OI QW c V 'c d c Q1 p c 0 7 N W O a a o a U 0 o a o (Y ir a: 'm m3 m )ncc to N U7 (n O o o O C! O O a e o o e N N N N d lr N O V d A O • A ti C M O O O N O O O { O O O O e w w w N E .. Ol % yi a y Q r Q N _ V V Y W % A � �wavt oyme o mmo A O C! O m n w O1 1� N N N N ui d Y LL m U E i c c A V a a d d d 79 ac c E o C3 S O _>c V 0 �i•e .Ji i \• 4 t till:) ettrlt ilt:.r a•e •eie t 1 - . a N � y O d '41 b all CiA m �PPp y Y ' O v J �J BUILDING DEPARTMENT INSPECTION REPORT INFORMATION: 644-3275 INSPECTIONS: 644-3210 JOB ADDRESS: L 13 (::-ot<'ll L INSPECTION TYPE: L/!-: - *.16 n T fcl ef PERMIT NO. 3 DATE. INSPECTOR: PHONE: 644- „C REINSPECTION IS REQUIRED REINSPECTION FEE DUE ❑ I HAVE THIS DAY INSPECTED THIS STRUCTURE AND THESE PREMISES AND FOUND THE FOLLOWING: r 7:1 THE ABOVE DISCREPANCIES SHALL NOT BE COVERED UNTIL CORRECTIONS HAVE BEEN MADE, REINSPECTION REQUESTED, AND WORK APPROVED. pb L 0 • THIS NOTICE TO BE REMOVED ONLY BY THE BUILDING DEPARTMENT YCU MUST AFFLY FOR A PERMIT AT THE Ci7! OF NONPORT BEACH BOIL ^_ING CEFART,MENT, WITHIN 13 HC UPS. , __-. a-7 C: , = 35S'PiIL 8E CHAPC =_ =:P' %;f'FK STAFTc_ C7( OF NEWPORT BE -.CH BUILDING DEPA.RTNIENT ? -= _L''iD. PiEPlFC� - =?.= CA 2E6 3 CNE: 3-1 5 -- 32- NO 914 -e 3:30 4 _CCCc ]i 'ili::r %:== -lring H ceuT.![: Av- lib4+G63 myi% ks ,►tp�!c�, dry; , pL,w T avo Qsr�- s eTtra e.J ,ap�erc,�y �[� a FILE UPY C +TYOATTONEWPORT BEACH RNEY'S OFFICE TO: Chairman and Members of Planning Commission FROM: Robin L. Clauson, Assistant City Attorney kx RE. Interpretation of Nonconforming Provisions of City Zoning Code, Van Cleve appeal DATE: February 1, 2002 At the last meeting, the Planning Commission asked for clarification regarding the issues raised by the appeal. The Planning Commission's jurisdiction is limited to deciding if the Planning Director has properly interpreted the Zoning Code related to the method of calculating the extent to which "structural elements' were altered in conjunction with the remodel of the structure at 213 Coral. Percentages of alteration of structural elements are calculated by measuring lineal feet of the exterior walls of the building. The calculation is done when the plans are submitted for a building permit. Under circumstances when the percentages exceed, but are close to 25 %, staff will consider the lineal feet of interior walls identified by the architect to be load bearing. In some cases staff may consider roof elements. In this case when it was discovered that all of the exterior and interior walls and roof of the structure had been altered, the Planning Director determined that 100% of the structural elements had been altered and unless a variance is approved, the legal non - conforming building must be either remodeled or reconstructed to become conforming with the Code. As set forth in more detail in the January 17, 2002 staff report, the current method is a reasonable interpretation of the Code because measuring lineal feet of bearing walls is consistent with the definition of structural alteration, which identifies "bearing walls" as an example of the supporting members of a building. There are many - individual structural elements such as sill plates, anchor bolts and studs that compose the walls. Further support for this method is found when read in the context of Section 20.62.040 (A), which allows for repairs and maintenance of non - conforming buildings but prohibits structural alterations that would prolong the life of the supporting members of the structure except as provided in Section 20.62. 040. Mr. Van Cleve has asserted the method is inconsistent with the definitions contained in the Zoning Code because the method does not consider the footings. He notes that the definition of structural alteration uses the non - limiting words "such as" to identify examples of structural members._ He asserts that because a footing is a structural member it should be considered when 0 u • 9?_ Chairman and Members of Planning Commission February 1, 2002 Page 2 determining percentages of structural alterations. Based upon his structural engineer's certification, he asserts that if the retained footings were considered then the retained footings at 213 Coral would qualify as at least 50% of the structural elements of the building because the footings support 100% of the structure. Then the Planning Director could determine that the footings make up at least 25% of the structural elements, which would allow him to apply for a use permit to retain the non - conforming floor area. The Planning Director has not adopted Mr. Van Cleve's interpretation because it would allow replacement of 100% of the above ground structure so long as the footings remain. It also does not take into consideration to what extent the new footings as opposed to retained footings support 100% of the structure. This is inconsistent with the Planning Director's understanding of the purpose of the Code and the way the Chapter 20.62 has been complied with since the provisions of Section 20.62.040 were adopted in 1990. - If the Planning Commission determines the Code requires consideration of the footings contribution to the structure of a building or that individual structural elements of a building including footings should be counted then the Planning Director's method of implementing the Code will be changed to be consistent . with that interpretation because Planning Commission's determination will be one of general application for all remodels of legal nonconforming structures. With either interpretation staff intends to bring to the Commission an amendment to the Code to codify the procedure. Information staff provided regarding the area of the structure is relevant only for purposes of establishing that the original structure was non - conforming and the factual context of the Planning Director's interpretation of Section 20.62.040. Also, at the hearing, Mr. Van Cleve's attorney mentioned that if there was no relief for Mr. Van Cleve, that the framing would have to be removed. The Building Director (also the Flood Plain Administrator) has not made any determination relative to the requirements of Chapter 15.50 (Flood Damage Prevention). Accordingly, the Planning Commission should not, in deciding this appeal, consider any information relative to potential compliance or non- compliance with Chapter 15.50. Once the Planning Commission interprets the Code and upholds or modifies the Planning Director's method of implementing the Code, then application of City codes to the structure, including Chapter 15.50 can be addressed. RC:.da • F: Wsersicat \sharedWMCodeEnforceNanCleve \memo \PCinterpretdoc 0 CITY OF NEWPORT BEACH CITY ATTORNEY'S OFFICE TO Chairman and Members of Planning Commissions FROM: Robin L. Clauson, Assistant City Attorney RE Appeal of Charles Van Cleve, 213 Coral Avenue DATE : January 11, 2002 This Memorandum will provide the Planning Commission with various provisions of law that may assist the Commission in making their decision on this appeal. This is not intended to be a legal brief, but it is intended to provide the simple tenets of law and related facts relevant to the decision. As described in the Staff Report the City's Zoning Ordinance sets forth floor area limitations to establish maximum floor area allowed for residentially zoned property. If a building exceeds the allowed floor area because it was permitted to be built under previous zoning the building becomes a non - conforming structure and is legally permitted to ccntinue so long as the non - conformity of the structure is not enlarged or its life extended. General Provisions: Section 20.01.025 of the General Provisions Chapter of the Zoning Code provides that: "No building or structure shall be erected, reconstructed or structurally altered in any manner, nor shall any building or land used for any purpose, other than as permitted by and in conformance with this Code and all other ordinances, laws and maps referred to therein." In 1990 the City amended its regulations for non - conforming structures. The purpose of the Chapter 20.62 is set forth in section 20.62.010 as follows: "This chapter establishes procedures for the continuance or abatement of existing structures and uses that do not conform to the provisions of the Zoning Code and the goals and policies of the general plan, and which may be detrimental `c the orderly deve!cpment of th:e City and adverse to the general welfare cf persons and property. This chapter is intended to limit the expansion of the nonconforming structures... and to bring these structures and uses into conformity in an equitable, reasonable and 0 L� a Chairman and Members of Planning Commissions January 11, 2002 Page: 3 Estoppel Doctrine: The building permit was approved by the Planning Department and was granted based upon representations in the plans that said the exterior and interior wall alterations would not exceed twenty -five percent of the structure and only twenty-three percent of the roof would be replaced. Senior Planner, Jay Garcia and Associate Planner, Marina Marrelli explained the provisions of Chapter 20.62 to Mr. Van Cleve. The plans were stamped prior to issuance of the permit with a statement that clearly informed Mr. Van Cleve that the approval of the permit does not authorize the violation of the City's codes. There is no representation that Mr. Van Cleve ever returned to the Planning or Building Department Staff to inform them that due to the amount of dry rot in the building the percentages could not be met. Mr. Van Cleve believed that because there was approval by the Building Department staff of a change in plans for the floor joists that this constitutes approval of all other changes. He also believes that the failure of the building inspector to stop him from exceeding those percentages or to adequately specify the problems should provide a sufficient authorization for him to have continued replacing the walls and the roof of the building. He also believes that other alleged or perceived actions by building inspectors to allow replacement of dry rot in other properties in the City led him to believe that he was proceeding in accordance with standard City practices and therefore his decision to replace all the walls was authorized. The issuance of a permit to remodel a structure so that no more than twenty-five percent of the walls and twenty-three percent are removed does not grant a permit to remove 100 percent of the walls and replace the entire roof. Even if accurate, the inactions or inadequate action of staff has not been held by the courts to be sufficient to overcome a strong rule of policy adopted for the benefit of the public. The doctrine of estoppel (that a City should not be able to enforce its laws because of reliance on representations of staff) only occurs when four elements are present. 1. The Party to be estopped must be apprised of the facts. 2. He must intend that his conduct shall be acted upon, or must so act if the Party asserting the estoppel had a right to believe it was so intended. 3. The other party must be ignorant of the true state of facts. 4. He must rely on the conduct to his injury. Generally, the reason for estoppel in the face of a government zoning ordinance or other strong rule of public policy must be of sufficient dimension to justify any effect upon public interest or policy that would result from raising the estoppel. Therefore, the injustice to Mr. Van Cleve would have to be such that it would overcome the injustice to i�� Chairman and Members of Planning Commissions January 11, 2002 Page: 5 �. 2. Business and Professions Code Section 5536.2 provides that a 01 City must require as a condition of a issuance of a permit a signed statement of the person who prepared the plans or who was responsible for those plans. An Architects stamp is considered compliance with this requirement. As always I will be available at the hearing to address other issues that may arise. Robin L. Clauson, Assistant City Attorney RC:da F: \users\ cat\ shared \cp \codeenforce \VanCleve\memo\a p peal. doc 0 IN 0 L1 Van Cleve Appeal 213 Coral Avenue Appeal of the Planning Director's interpretation that the calculation of structural elements should be based on the linear footage of load - bearing walls • Retained footings should be Included as structural elements. • Since footings support the entire structure, they constitute at least 50% of the structural elements. • Interpretation only considers exterior walls. • Interpretation disregards distinctions in the definitions of "building," "structure," and "structural alterations. • Public safety exception should be granted due to dry rot. Footings As Structural Elements • No established methodology for determining a single element's importance In the structural integrity of a building. • Studs, joists, rafters, and beams all work together to support the frame of a building. • Structure has to be viewed as a system. �a� Planning Department Interpretation .. ,l, .. percentage of alteration based onlinearfootage afthe struchrral bearing well) _Consequences Of The Applicants Interpretation • The applicant has not identified the basis on which his estimate of the percentage of the structural elements that the footings constitute (i.e., load, area, volume). • The percentage (25 -50 %) is arbitrary. • The applicant's interpretation can not be applied consistently to other projects. Definition Of Structural Alteration Alteration. Stmctural: Any change or replacement in the supposing members of a building such as bearing walls, columns, beams or girders. Applicant's Interpretation percentage of alteration based the role an individual component plays in supporting the load of the structure Consequences Of The Applicant's Interpretation fCont.1 • Not always possible to document. • Requires exposing wall sections and excavations of foundations. • Places a hardship on remodel permit applications. u 1a`� 0 • E Conseauences Of The Applicant's Interpretation Mont.) • 50% or more of a nonconforming building could be demolished and completely reconstructed by right • Inconsistent with Chapter 20.62, which requires that nonconforming structures be brought into conformity in an equitable, reasonable, and timely manner. Public Health and Safety Exception • Building Director must determine that modification or repair is immediately needed to protect the public health or safety. • Building Director must must determine that the cost does not exceed 50% of the replacement cost of the structure. Plan Check No. 0058 -2001 Sheet A -1 02/12101 Revision Consistency with Zoning Definitions • The assertion that only exterior walls are measured is incorrect - interior bearing walls and roof structural elements are also calculated. • Consistent with the definition of 'structural alteration," which identifies "bearing walls" as an example of the supporting members of building. • Footings are a part of the bearing wall, not a separate element. • Current method is practical and fulfills the intent of the Zoning Code. t C9LfFORN,P Plan Check No. 0058 -2001 Sheet A -1 02/12/01 Revision a° 1 rl " �.1 _V ICI NII Y- AAAI -�"�` J�� 3 Plan Check No. 0058 -2001 Sheet A -15 02112101 Revision Plan Check No. 0058-2001 .- ...3c`•- ::-:.= +...._.._,.,ever �...... Paget 03/07/01 Remark Plan Check No. 0056 -2001 Attachment -•• - -- Zoning Cate �..m.Y •.� SKO" 20.62.040 CC) I�% ...k.,• "'m •`.•` . ».._.... Plan Check No. 0058 -2001 Sheet A-15 02/12/01 Revision u IF F IF IL I, . 111. y Y J:Y MR -fHI H - -u 3%0 Plan Check No. 0058 -2001 Page 2 .......... Wm�M ^03/07101 Remark-M " Call (949) 644 -3200 & ask secretary to make appointment to see 3AY GARCIA regarding a Modification Permit or Use Permit. See attached sheet from Zoning Code. Is Li �i Plan Check No. 0058-2001 .- ...3c`•- ::-:.= +...._.._,.,ever �...... Paget 03/07/01 Remark Plan Check No. 0056 -2001 Attachment -•• - -- Zoning Cate �..m.Y •.� SKO" 20.62.040 CC) I�% ...k.,• "'m •`.•` . ».._.... Plan Check No. 0058 -2001 Sheet A-15 02/12/01 Revision u IF F IF IL I, . 111. y Y J:Y MR -fHI H - -u 3%0 Plan Check No. 0058 -2001 Page 2 .......... Wm�M ^03/07101 Remark-M " Call (949) 644 -3200 & ask secretary to make appointment to see 3AY GARCIA regarding a Modification Permit or Use Permit. See attached sheet from Zoning Code. Is Li • Plan Check No. 0058-2001 Page 3 03/07101 ft.a,k 6. ,A Building Dept engineer advised me that even looking at the revised demo plan, he believes that more than 25% of structural elements will be altered. Please see 'Jay Garcia for Modification Permit or Use Permit if in � excess of so% SFP Permit No. B2001-0051 Issued 04/06/01 Eapadrn.nt SFP P..ft N. 820111V9051 Stop Work Order Issued 09/19/01 € b7- 17 nP W ii C$ pMt V3 (mnL J--a; 444 am, AN, ............ SFP Permit No. 82001-0051 Issued 04/06101 Q ---- Inspection Report Issued 07/06/01 ol Van Cleve Appeal 213 Coral Avenue 0 11 1337 a .usL 'V t —� r 0 11 1337 [ -I • E - - --------- t.......... . . ... ........ tF \33 t.......... . \33 • I3* 3 3 °t (p • I3* 3