The URL can be used to link to this page

Home My WebLink About04 - Modification Permit ProceduresCity Council Meeting November 23, 2004 Agenda Item No. 4 . ORDINANCE NO. 2004 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AN AMENDMENT TITLE 20 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO MODIFICATION PERMIT PROCEDURES [CODE AMENDMENT 2003- 003] WHEREAS, on June 24, 2003, the City Council of the City of Newport Beach initiated an amendment to Title 20 of the Newport Beach Municipal Code to revise the modification permit procedures; and WHEREAS, on November 6, 2003, the Planning Commission of the City of Newport Beach held a duly noticed public hearing regarding this code amendment; RIM WHEREAS, the Planning Commission voted 4 to 3 to recommend approval of this code amendment to the City Council; and WHEREAS, on November 25, 2003 and November 9, 2004, the City Council of the City of Newport Beach held duly noticed public hearings regarding this code FT�Ca'iT ITSTINFTiTJ WHEREAS, pursuant to the California Environmental Quality Act, it has been determined that the proposed amendment is categorically exempt under Class 5, minor alterations in land use limitations. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: Title 20 of the Newport Beach Municipal Code shall be amended as provided in Exhibit "A." 1 SECTION 2: The Mayor shall sign and the City Clerk shall attest to the . passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on November 9, 2004, and adopted on the 23rd day of November 2004, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK 01 • • CHAPTER 20.90 ZONING ADMINISTRATION Sections: 20.90.010 20.90.020 20.90.030 20.90.040 20.90.050 20.90.010 Put Purpose Authority Application Filing Planning Department Review Environmental Review pose Page 20.90 -1 Zoning Administration To establish administrative provisions and procedures forthe implementation of this code. 20.90.020 Authority A. Planning Director. This code shall be administered by the Planning Director • under the administrative authority and direction of the City Manager pursuant to Title 2 of the Municipal Code. S. Zoning Administrator. The Planning Director shall appoint a qualified Planning Department staff member as the Zoning Administrator. The Zoning Administrator shall have the authority to investigate and render decisions on applications as prescribed by the individual chapters of this code. The Zoning Administrator shall serve in that capacity at the discretion of the Planning Director. C. Planning Commission. The Planning Commission established byArticle Vll of the City Charter shall have the authority to investigate and render decisions on applications as prescribed by the individual chapters of this code. 20.90.030 Application Filing A. Required Forms. Applications for discretionary approvals, including but not limited to, amendments, development plans, modifications permits, site plan review, use permits, variances, and coastal permits shall be filed in the office of the Planning Department in writing on forms prescribed by the Planning • Director. EXHIBIT A Page 20.90 -2 Zoning Administration B. Required Materials. Applications for discretionary approvals shall be accompanied by all plans, maps, and other materials required by the prescribed forms, unless specifically waived by the Planning Director. The Planning Director may request additional materials deemed necessary to support the application. C. Required Signatures. Application for discretionary approvals may be made by the owner, lessee, or agent of the owner of the property affected. The application shall be signed by the owner of record or may be signed by the lessee or by an authorized agent if written authorization from the owner of record is filed concurrently with the application. D. Fees. Applications for discretionary approvals shall be accompanied by a fee as established by resolution of the City Council. 20.90.040 Planning Department Review A. Time Limits and Notification. Within 30 days of the filing of an application, the Planning Department shall determine whether the application is complete and notify the applicant in writing if the application is determined to be incomplete. • B. Incomplete Applications. If the application is determined not to be complete, the Planning Department shall notify the applicant in writing and shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information or materials needed to complete the application. Upon the receipt of the information or materials needed to complete the application, or any resubmittal of the application, a new 30 day review period shall begin to determine the completeness of the application. C. Extension of Time Limits. Extensions of the time limits of the review period are permitted when mutually agreed upon by the Planning Department and the applicant. D. Waivers. The Planning Director may waive the submission of items deemed unnecessary. E. Exemption for Environmental Review. This section shall not be construed as limiting the ability of the Planning Department to request and obtain information needed to conduct environmental review under the terms of the California Environmental Quality Act. EXHIBITA Page 20.90 -3 Zoning Administration is 20.90.050 Environmental Review A. A project that is not exempt from the California Environmental Quality Act (CEQA) shall be reviewed and either a Negative Declaration or an Environmental Impact Report (EIR) shall be prepared. B. Time Limits. For projects in which the City is the lead agency, negative declarations shall be completed and ready for approval within 105 days from the date the application is accepted as complete; environmental impact reports shall be completed and certified within 1 year from date the application is accepted as complete. No application for a project shall be deemed to be incomplete for lack of a waiver of the time limits established by this section. C. Extension of Time Limits. The Planning Director may provide for a reasonable extension of the time limits established by this section in the event that compelling circumstances justify additional time and the project applicant consents thereto. 0 • EXHIBIT A Page 20.93 -1 Modification Permits 20.93.010 Purpose This Chapter provides administrative relief through a Modification Permit for certain development proposals where there is a practical difficulty or physical hardship. This article • achieves the purposes of this code by establishing procedures for approval, conditional approval and disapproval for a Modification Permit. Additionally, this Chapter establishes procedures for the administration of minor discretionary items where the authority is assigned to the Zoning Administrator by the individual chapters of the Municipal Code orby action of the Planning Commission or City Council. 20.93.015 Authority A. Modification Permits. The Zoning Administrator shall approve, conditionally approve, or disapprove applications for Modification Permits relating to the following code provisions, subject to the submitted application, plans, materials, and testimony and findings in Section 20.93.030: Required building setbacks in front, side or rear yards; Heights of walls, hedges or fences; Distances between buildings; 4. Area, number and height of signs not requiring an exception permit or limited by Planned Community District regulations; • EXHIBIT A CHAPTER 20.93 MODIFICATION PERMITS Sections: 20.93.010 Purpose 20.93.015 Authority 20.93.020 Application for a Modification Permit 20.93.025 Notice and Public Hearings 20.93.030 Required Findings 20.93.035 Duties of the Zoning Administrator 20.93.040 Conditions of Approval 20.93.045 Effective Date 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation 20.93.055 Amendments and New Applications 20.93.060 Rights of Appeal and Review 20.93.010 Purpose This Chapter provides administrative relief through a Modification Permit for certain development proposals where there is a practical difficulty or physical hardship. This article • achieves the purposes of this code by establishing procedures for approval, conditional approval and disapproval for a Modification Permit. Additionally, this Chapter establishes procedures for the administration of minor discretionary items where the authority is assigned to the Zoning Administrator by the individual chapters of the Municipal Code orby action of the Planning Commission or City Council. 20.93.015 Authority A. Modification Permits. The Zoning Administrator shall approve, conditionally approve, or disapprove applications for Modification Permits relating to the following code provisions, subject to the submitted application, plans, materials, and testimony and findings in Section 20.93.030: Required building setbacks in front, side or rear yards; Heights of walls, hedges or fences; Distances between buildings; 4. Area, number and height of signs not requiring an exception permit or limited by Planned Community District regulations; • EXHIBIT A Page 20.93 -2 Modification Permits 0 5. Roof signs and off -site signs in accordance with Chapter 20.67; 6. Structural appurtenances or projections which encroach into front, side or rear yards; 7. Location of accessory buildings on a site; the construction or installation of chimneys, vents, rooftop architectural features and solar equipment in excess of permitted height limits; 8. Size or location of parking spaces or access to parking spaces; 9. Swimming pool and swimming pool equipment encroachments; 10. Roof parking of automobiles in nonresidential districts; 11. Minor modifications and improvements to nonconforming buildings; B. Other Applications. The Zoning Administrator may approve, conditionally approve, or disapprove the following applications, subject to the submitted application, plans, materials, and testimony and applicable findings in the referenced sections of the Municipal Code: 1. Lot line adjustments, in accordance with Chapter 19.76 of Title 19 (Subdivision Code); 2. Tentative parcel maps, in accordance with Chapter 19.12 of Title 19 (Subdivision Code); 3, Condominium conversions involving four or less units, via approval of a tentative parcel map in accordance with Chapter 20.83 and Title 19 (Subdivision Code); and 4. Such items as may be subsequently set forth by the Planning Commission resolution, subject to a confirming resolution by the City Council. The Zoning Administrator shall also pass upon all requests to extend existing use permits which have been approved by the Planning Commission and exercised by the applicant. 20.93.020 Application for a Modification Permit A. Procedure. An application for a modification permit shall be filed and processed in a manner consistent with the requirements contained in Chapter 20.90: Application Filing and Fees. EXHIBIT A Page 20.93 -3 Modification Permits B. Required Plans and Materials. An application for a modification permit shall be accompanied by the following: 1. Plot plans showing all property lines, structures, parking, driveways, other major improvements or facilities and landscaped areas. 2. Elevations of all proposed structures. 3. Other plans such as floor plans as may be required by the Planning Director to assure a proper consideration of the application. 4. In the case of a lot line adjustment, the materials described in Chapter 19.76 of Title 19 (Subdivision Code). 5. In the case of a tentative parcel map, the map and other materials described in Title 19 (Subdivision Code). 20.93.025 Notice and Public Hearing A. Tentative Parcel Maps. Notwithstanding other provisions of this Section, notice and hearing procedures for tentative parcel maps shall be as specified in Chapter 19.08 of Title 19 (Subdivision Code). B. Time of Hearing. Upon receipt of a complete application, a time and place for a public hearing shall be scheduled according to the provisions set forth in Chapter 20.90. C. Required Notice. Mailed or Delivered Notice. a. Residential Districts. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of property within 300 feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of property within 300 feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the EXHIBITA Page 20.93 -4 Modification Permits responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than 2 conspicuous places on or close to the property at least 10 days prior to the hearing. D. Contents of Notice. The notice of public hearing shall contain: A description of the location of the project site and the purpose of the application; A statement of the time, place, and purpose of the public hearing; A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard. E. Continuance. Upon the date set for a public hearing before the Zoning Administrator, the Zoning Administrator may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. 0 20.93.030 Required Findings The Zoning Administrator may approve or conditionally approve a modification permit if, on the basis of the application, plans, materials, and testimony submitted, the Zoning Administrator finds all of the following: A. The granting of the application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. B. The requested modification will be compatible with existing development in the neighborhood. C. The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. 20.93.035 Duties of the Zoning Administrator 0 EXHIBIT A Page 20.93 -5 Modification Permits A. Investigation. The Zoning Administrator shall investigate each application to assure that the proposal is consistent with the intent and purpose of this chapter, all applicable regulations and policies, and sound planning practices. The Zoning Administrator shall refer each application to the Building Department and Public Works Department, and to other city departments as needed. Each department shall make written recommendations to the Zoning Administrator. B. Rendering of Decision. After the conclusion of the hearing on any application for a modification permit, the Zoning Administrator shall render a decision within 15 days unless both the applicant and the Zoning Administrator consent to a later date. When addressing the finding in Section 20.93.030(A), the Zoning Administrator may consider the physical aspects of the property and /or improvements and their relationship to adjacent properties. In addressing the finding in Section 20.93.030 (B), the Zoning Administrator may consider the sum of qualities that distinguish the neighborhood from other areas within the City. However, the Zoning Administrator may only consider such characteristics as they relate to direct impact of the proposed modification on the neighborhood's character and not development rights that would otherwise be enjoyed without the Modification Permit. In addressing the finding in Section 20.93.030 (C), the Zoning Administrator may consider the potential adverse impacts on persons or property in the vicinity. These include, but are not limited to, modifications that would significantly interfere with provision of adequate air and light on an adjacent property, adversely impact use of a public right -of -way, impede access by public safety personnel, result in excessive noise, vibration, dust, odors, glare, or electromagnetic interference, interfere with safe vehicular sight distances, or result in a substantial invasion of privacy. C. Referral to Planning Commission. In the event the Zoning Administrator determines that an application should properly be heard by the Planning Commission, the Zoning Administrator may refer the matter to the Planning Commission for hearing and original determination on the merits. The procedure for notice and hearings held by the Planning Commission on such applications shall be in accordance with the same provisions as set forth in this chapter. D. Administrative Act. The granting of any modification permit, when conforming to the provisions of this code, is hereby declared to be an administrative function, the authority and responsibility for performing which is imposed upon the Zoning Administrator. The action thereon by the Zoning Administrator shall be construed as administrative acts performed for the EXHIBITA Page 20.93 -6 Modification Permits . purpose of assuring that the intent and purpose of this code shall apply in special cases, as provided in this section, and shall not be construed as amendments to the provisions of this code or the districting map of the City. E. Meetings. The Zoning Administrator shall hold at least one regular meeting each month and may hold special meetings as necessary. 20.93.040 Conditions of Approval The Zoning Administrator may impose such conditions in connection with the granting of a modification permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. 20.93.045 Effective Date No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal, which for purposes of modification permits shall be within 14 calendar days after the date of the Zoning Administrator's decision. In the event an appeal is filed, the modification permit shall not become effective unless and until a decision is made by the Planning Commission on such appeal, under the provisions of Chapter 20.95. No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal. 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation A. Expiration. Any modification permit granted in accordance with the terms of this code shall expire within 24 months from the effective date of approval or at an alternative time specified as a condition of approval unless: A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. EXHIBIT A Page 20.93 -7 Modification Permits In cases where a coastal permit is required, the time period shall not begin • until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a modification permit for a period or periods not to exceed 3 years. An application for a time extension shall be made in writing to the Planning Director no less than 30 days or more than 90 days prior to the expiration date. C. Violation of terms. Any modification permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such modification permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A modification permit shall lapse if the exercise of rights granted by it is discontinued for 180 consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96: Enforcement. 20.93.055 Amendments and New Applications A. Amendments. A request for changes in conditions of approval of a . modification permit, or a change to plans that would affect a condition of approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or addition to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. If an application for a modification permit is disapproved, no new application for the same, or substantially the same, modification permit shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. • EXHIBIT A • Page 20.93 -8 Modification Permits 20.93.060 Rights of Appeal A. Appeals. Decisions of the Zoning Administrator may be appealed to the Planning Commission and decisions of the Planning Commission may be appealed to the City Council. B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95: Appeals. EXHIBITA Revise Chapters 20.62, 20.66, 20.67, 20.83, 20.86, and 20.95 to replace all references to the "Modifications Committee' with the "Zoning Administrator." • 0 EXHIBIT A CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT COUNCIL AGENDA • NO. _ i 1 -a3 ay Agenda Item No. 13 November 9, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Senior Planner (949) 644 -3235 Palford(o)city. newpo rt- beach. ca. us SUBJECT: Code Amendment No. 2003 -003 — Amendment to modification permit procedures. (PA 2003 -080) ISSUES: Should the modification permit procedures be revised to (1) require additional findings and (2) replace the Modifications Committee with a Zoning Administrator? RECOMMENDATION: • Conduct public hearing; introduce Ordinance No. 2004- approving Code Amendment No. 2003 -003 and pass to second reading on November 23, 2004 (use Attachment 1 for adoption of the findings only or Attachment 2 for the adoption of the findings and the Zoning Administrator). DISCUSSION: Introduction: Modification permits were established with the intent of providing relief when the strict literal interpretation and enforcement of property development regulations would be inconsistent with the general purpose of the Zoning Code. The Modification Committee, which is composed of staff representatives from Planning, Building, and Public Works, has the authority to approve or deny modification permits. Background: The code amendment resulted from an April 22, 2003 City Council study session on the modification process. A code amendment to revise the required findings was initiated by the City Council on June 24, 2003. The Planning Commission hearing was held on November 6, 2003. The City Council hearing was held on November 25, 2003, and the • City Council continued the hearing for several months in order for the Modification Modification Permit Amendment, November 9, 2004 Page 2 Committee to conduct a parallel review of modification permit applications using the • proposed findings. On October 12, 2004, the City Council held a study session to review the results of the parallel review study. The City Council directed staff to proceed with the code amendment with revisions to proposed Finding No. 1. The City Council also directed staff to present revisions that would replace the Modifications Committee with a Zoning Administrator as an option for City Council consideration. Analysis: Proposed Findings If the proposed amendment is adopted, three findings will be required to approve a modification permit: The granting of the application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. 2. The requested modification will be compatible with existing development in the • neighborhood. 3. The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. The practical difficulty finding (Finding No. 1) is intended to address the Council's concern of abuse of the City's development standards pertaining to setback limitations and building design/configuration. With this finding, the applicant would be required to clearly demonstrate facts that create the need to deviate from the Code. This finding would require consideration of the physical aspects of the property and /or improvements and their relationship to adjacent properties. The neighborhood compatibility finding (Finding No. 2) is intended to address concerns regarding neighborhood preservation. The review of modification permits would have to take into consideration the direct impact of the proposed modification on the qualities that distinguish the neighborhood from other areas within the City. However, consideration can only be given to those characteristics that relate to direct impact of the proposed modification on the neighborhood's character and not development rights that would otherwise be enjoyed without the Modification Permit. The public safety finding (Finding No. 3) is intended to address concerns relating to public safety and impacts to adjacent property. This finding would require consideration of factors such as the potential adverse impacts on persons or property in the vicinity, access L1 Modification Permit Amendment November 9, 2004 Page 3 is for public safety personnel, vehicular sight distances, and impacts to privacy. These factors are included as guidelines in proposed Section 20.93.035 (B). The proposed required findings would only be for those modifications assigned by proposed Section 20.93.015 (B). Applicable findings for lot line adjustments, tentative parcel maps, condominium conversions, and similar applications would not be changed. Zoning Administrator The proposed code amendment could replace the Modifications Committee with a Zoning Administrator. The Zoning Administrator would be a qualified Planning Department staff member, appointed by the Planning Director. The Zoning Administrator's authority to render decisions on applications would be the same as that currently assigned to the Modifications Committee. Likewise, decisions of the Zoning Administrator would be subject to appeal to the Planning Commission or City Council. Public notice and hearing procedures would remain unchanged. The replacement of the Modifications Committee with a Zoning Administrator is intended to improve consultation between the City departments and therefore improve the decision - making process. The Modifications Committee is subject to the Brown Act'. As a result, Modification Committee members are prohibited from discussing is applications outside of open meetings. This has proved to be problematic since it limits the ability of Building, Planning, and Public Works staff members to review an application together, prior to the meeting. In contrast, all other applications (use permits, variances, parcel maps, etc.) are routinely distributed to these and other departments for comments and recommendations before they are submitted to the decision- making body. Thus, the Modifications Committee cannot take full advantage of the review process without risk of violating the Brown Act. Since the decision - making authority would be assigned to a single staff member, the Zoning Administrator would be free to consult with other departments without risk of violating the Brown Act. The discussions among these staff members are more technical than policy- oriented and staff does not view the proposed change to a Zoning Administrator as contrary to the spirit of the Brown Act. Representatives from other departments would continue to attend modification permit hearings, as needed, to advise the Zoning Administrator. A Zoning Administrator could lead to more efficient use of City resources. For example, Modification Committee members must conduct project site visits individually in order to avoid violating the Brown Act. A Zoning Administrator would be free to visit project sites with Building and Public Works staff members prior to the meeting. There could also be a reduction in the number of continued modification permit hearings, since a Zoning is ' The Ralph M. Brown Act establishes the basic requirements for open meetings and notice of hearings for commissions, boards, councils, and other public agencies. Modification Permit Amendment, November 9, 2004 Page 4 Administrator would have the benefit of input from Building and Public Works prior to the hearing. Zoning Administrators are used by numerous communities to serve as a hearing officer and to render decisions on minor discretionary applications. A Zoning Administrator could be assigned other administrative functions. There are approximately a dozen minor administrative actions that require approval by the Planning Director, which could be transferred to a Zoning Administrator in a subsequent code amendment. In addition, a Zoning Administrator could serve as the decision- making authority for coastal development permits for minor projects, after the Local Coastal Program is certified and permit authority is transferred from the Coastal Commission to the City. Staff has prepared alternative exhibits containing provisions for a Zoning Administrator, should the City Council choose to approve this option. Environmental Review: The project has been reviewed pursuant to the California Environmental Quality Act and has been determined to be categorically exempt under Class 5, minor alterations in land use limitations. Public Notice: Public notice was posted in the local Daily Pilot newspaper. In addition, public hearing notices were mailed to approximately 200 individuals on the Building Departments User Group mailing list, homeowners associations, and the chambers of commerce. Public hearing notices were also posted at City Hall in various locations. Prepared by: Patrick J. Afford Senior Planner Attachments: Submitted by: 2 d'A-LIA �( � '2L�d� Patricia L. Temple Planning Director 1. Draft ordinance with proposed revisions to Chapter 20.93 (Exhibit A). 2. ARemative Exhibit A with provisions for a Zoning Administrator. • • • ORDINANCE 2004- AN ORDINANCE OF THE CITY COUNCIL OF THE • CITY OF NEWPORT BEACH APPROVING AN AMENDMENT TITLE 20 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO MODIFICATION PERMIT PROCEDURES [CODE AMENDMENT 2003- 003] WHEREAS, on June 24, 2003, the City Council of the City of Newport Beach initiated an amendment to Title 20 of the Newport Beach Municipal Code to revise the modification permit procedures; and WHEREAS, on November 6, 2003, the Planning Commission of the City of Newport Beach held a duly noticed public hearing regarding this code amendment; and WHEREAS, the Planning Commission voted 4 to 3 to recommend approval of this code amendment to the City Council; and • WHEREAS, on November 25, 2003 and October 26, 2004, the City Council of the City of Newport Beach held duly noticed public hearings regarding this code amendment; and WHEREAS, pursuant to the California Environmental Quality Act, it has been determined that the proposed amendment is categorically exempt under Class 5, minor alterations in land use limitations. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: Title 20 of the Newport Beach Municipal Code shall be amended as provided in Exhibit "A." 1 CJ • SECTION 2: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on October 26, 2004, and adopted on the 9th day of November 2004, by the following vote, to wit: u ATTEST: CITY CLERK • AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR Pj Page 20.93 -1 Modification Permits 20.93.010 Purpose This Chapter provides administrative relief through a Modification Permit for certain development proposals where there is a practical difficulty or physical hardship. This article achieves the purposes of this code by establishing procedures for approval, conditional • approval and disapproval for a Modification Permit. Additionally, this Chapter establishes procedures for the administration of minor discretionary items where the authority is assigned to the Modifications Committee by the individual chapters of the Municipal Code or by action of the Planning Commission or City Council. 20.93.015 Modifications Committee A. Composition. A Modifications Committee consisting of three members is hereby established for the purpose of passing upon requests for reasonable use of property not permissible under existing regulations. The Modifications Committee shall have authority to grant, subject to appeal to the Planning Commission under provisions of this code, modifications as provided herein. The Modifications Committee shall be composed of the following members or their designated representatives: 1. The Planning Director, who shall act as Chair 2. The Public Works Director 3. The Building Director EXHIBITA • CHAPTER 20.93 • MODIFICATION PERMITS Sections: 20.93.010 Purpose 20.93.015 Modifications Committee 20.93.020 Application for a Modification Permit 20.93.025 Notice and Public Hearings 20.93.030 Required Findings 20.93.035 Duties of the Modifications Committee 20.93.040 Conditions of Approval 20.93.045 Effective Date 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation 20.93.055 Amendments and New Applications 20.93.060 Rights of Appeal 20.93.010 Purpose This Chapter provides administrative relief through a Modification Permit for certain development proposals where there is a practical difficulty or physical hardship. This article achieves the purposes of this code by establishing procedures for approval, conditional • approval and disapproval for a Modification Permit. Additionally, this Chapter establishes procedures for the administration of minor discretionary items where the authority is assigned to the Modifications Committee by the individual chapters of the Municipal Code or by action of the Planning Commission or City Council. 20.93.015 Modifications Committee A. Composition. A Modifications Committee consisting of three members is hereby established for the purpose of passing upon requests for reasonable use of property not permissible under existing regulations. The Modifications Committee shall have authority to grant, subject to appeal to the Planning Commission under provisions of this code, modifications as provided herein. The Modifications Committee shall be composed of the following members or their designated representatives: 1. The Planning Director, who shall act as Chair 2. The Public Works Director 3. The Building Director EXHIBITA • Page 20.93 -2 Modification Permits The Modifications Committee shall include staff members assigned to aid the • Modifications Committee as necessary. B. Extent of Authority. The Modifications Committee may grant approval of Modification Permits subject to the following regulations and the required findings in Section 20.93.030: a. Required building setbacks in front, side or rear yards; Heights of walls, hedges or fences; C. Distances between buildings; Area, number and height of signs not requiring an exception permit or limited by Planned Community District regulations; e. Roof signs and off -site signs in accordance with Chapter 20.67; Structural appurtenances or projections which encroach into front, side or rear yards; • g. Location of accessory buildings on a site; the construction or installation of chimneys, vents, rooftop architectural features and solar equipment in excess of permitted height limits; h. Size or location of parking spaces or access to parking spaces; Swimming pool and swimming pool equipment encroachments; Roof parking of automobiles in nonresidential districts; k. Minor modifications and improvements to nonconforming buildings; 2. The Modifications Committee may approve or conditionally approve the following applications subject to the submitted application, plans, materials, and testimony and applicable findings in the referenced sections of the Zoning Code: a. Lot line adjustments, in accordance with Chapter 19.76 of Title 19 (Subdivision Code); b. Tentative parcel maps, in accordance with Chapter 19.12 of • Title 19 (Subdivision Code); IXHIBR A Page 20.93 -3 Modification Permits C. Condominium conversions involving four or less units, via • approval of a tentative parcel map in accordance with Chapter 20.83 and Title 19 (Subdivision Code); and d. Such items as may be subsequently set forth by the Planning Commission resolution, subject to a confirming resolution by the City Council. The Modifications Committee shall also pass upon all requests to extend existing use permits which have been approved by the Planning Commission and exercised by the applicant. C. Meetings. The Modifications Committee shall hold one or more regular meetings each month and may hold special meetings as necessary. 20.93.020 Application for a Modification Permit A. Procedure. An application for a modification permit shall be filed and processed in a manner consistent with the requirements contained in Chapter 20.90: Application Filing and Fees. B. Required Plans and Materials. An application for a modification permit shall be accompanied by the following: • 1. Plot plans showing all property lines, structures, parking, driveways, other major improvements or facilities and landscaped areas. 2. Elevations of all proposed structures. 3. Other plans such as floor plans as may be required by the Planning Director to assure a proper consideration of the application. 4. In the case of a lot line adjustment, the materials described in Chapter 19.76 of Title 19 (Subdivision Code). 5. In the case of a tentative parcel map, the map and other materials described in Title 19 (Subdivision Code). 20.93.025 Notice and Public Hearing A. Tentative Parcel Maps. Notwithstanding other provisions of this Section, notice and hearing procedures for tentative parcel maps shall be as specified in Chapter 19.08 of Title 19 (Subdivision Code). EXHIBITA • Page 20.93 -4 Modification Permits B. Time of Hearing. Upon receipt of a complete application, a time and place is for a public hearing shall be scheduled according to the provisions set forth in Chapter 20.90. C. Required Notice. Mailed or Delivered Notice. a. Residential Districts. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of propertywithin 300 feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of property within 300 feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City • the names and addresses of owners as required by this section. 2. Posted Notice. Notice shall be posted in not less than 2 conspicuous places on or close to the property at least 10 days prior to the hearing. C. Contents of Notice. The notice of public hearing shall contain: A description of the location of the project site and the purpose of the application; A statement of the time, place, and purpose of the public hearing; A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard. D. Continuance. Upon the date set for a public hearing before the Modifications Committee, the Modifications Committee may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. • EXHIBITA Page 20.93 -5 Modification Permits 20.93.030 Required Findings • The Modifications Committee may approve or conditionally approve a modification permit if, on the basis of the application, plans, materials, and testimony submitted, the Modifications Committee finds all of the following: A. The granting of the application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. B. The requested modification will be compatible with existing development in the neighborhood. C. The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. 20.93.035 Duties of the Modifications Committee A. Investigation. The Modifications Committee shall cause to be made, by its own members or its respective staffs, such investigation of facts bearing • upon such application as will serve to provide all information necessary to assure that the action on each application is consistent with the intent of this section and sound planning practices. B. Rendering of Decision. After the conclusion of the hearing on any application for a modification permit, the Modifications Committee shall render a decision within 15 days unless otherwise stipulated by the applicant and the Modifications Committee. When addressing the finding in Section 20.93.030(A), the Modifications Committee may consider the physical aspects of the property and/or improvements and their relationship to adjacent properties. In addressing the finding in Section 20.93.030 (B), the Modifications Committee may consider the sum of qualities that distinguish the neighborhood from other areas within the City. However, the Modifications Committee may only consider such characteristics as they relate to direct impact of the proposed modification on the neighborhood's character and not development rights that would otherwise be enjoyed without the Modification Permit. EXHIBITA • Page 20.93 -6 Modification Permits In addressing the finding in Section 20.93.030 (C), the Modifications • Committee may consider the potential adverse impacts on persons or property in the vicinity. These include, but are not limited to, modifications that would significantly interfere with provision of adequate air and light on an adjacent property, adversely impact use of a public right -of -way, impede access by public safety personnel, result in excessive noise, vibration, dust, odors, glare, or electromagnetic interference, interfere with safe vehicular sight distances, or result in a substantial invasion of privacy. C. Referral to Planning Commission. In the event the Modifications Committee determines that an application should properly be heard by the Planning Commission, it may refer the matter to the Planning Commission for hearing and original determination on the merits. The procedure for notice and hearings held by the Planning Commission on such applications shall be in accordance with the same provisions as set forth in this chapter. D. Administrative Act. The granting of any modification permit, when conforming to the provisions of this code, is hereby declared to be an administrative function, the authority and responsibility for performing which is imposed upon the Modifications Committee. The action thereon by the Modifications Committee shall be construed as administrative acts performed for the purpose of assuring that the intent and purpose of this code shall apply in special cases, as provided in this section, and shall not be construed • as amendments to the provisions of this code or the districting map of the City. 20.93.040 Conditions of Approval The Modifications Committee may impose such conditions in connection with the granting of a modification permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. 20.93.045 Effective Date No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal, which for purposes of modification permits shall be within 14 calendar days after the date of the Modifications Committee's decision. In the event an appeal is filed, the modification permit shall not become effective unless and until a decision is made by the Planning Commission on such appeal, under the provisions of Chapter 20.95. No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal. • EXHIBITA Page 20.93 -7 Modification Permits 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation • A. Expiration. Any modification permit granted in accordance with the terms of this code shall expire within 24 months from the effective date of approval or at an alternative time specified as a condition of approval unless: 1. A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. B. Time Extension. The Planning Director may grant a time extension for a modification permit for a period or periods not to exceed 3 years. An • application for a time extension shall be made in writing to the Planning Director no less than 30 days or more than 90 days prior to the expiration date. C. Violation of terms. Any modification permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such modification permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A modification permit shall lapse if the exercise of rights granted by it is discontinued for 180 consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96: Enforcement. 20.93.055 Amendments and New Applications A. Amendments. A request for changes in conditions of approval of a modification permit, or a change to plans that would affect a condition of approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not • EXHIBIT A Page 20.93 -8 Modification Permits involve substantial alterations or addition to the plan or the conditions of • approval, and are consistent with the intent of the original approval. is • B. New Applications. If an application for a modification permit is disapproved, no new application for the same, or substantially the same, modification permit shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. 20.93.060 Rights of Appeal A. Appeals. Decisions of the Modifications Committee may be appealed to the Planning Commission and decisions of the Planning Commission may be appealed to the City Council. B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95: Appeals. EXHIBrr A Page 20.93 -1 Modification Permits • CHAPTER 20.93 MODIFICATION PERMITS Sections: 20.93.010 Purpose 20.93.015 Authority 20.93.020 Application for a Modification Permit 20.93.025 Notice and Public Hearings 20.93.030 Required Findings 20.93.035 Duties of the Zoning Administrator 20.93.040 Conditions of Approval 20.93.045 Effective Date 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation 20.93.055 Amendments and New Applications 20.93.060 Rights of Appeal and Review 20.93.010 Purpose This Chapter provides administrative relief through a Modification Permit for certain development proposals where there is a practical difficulty or physical hardship. This article • achieves the purposes of this code by establishing procedures for approval, conditional approval and disapproval for a Modification Permit. Additionally, this Chapter establishes procedures for the administration of minor discretionary items where the authority is assigned to the Zoning Administrator by the individual chapters of the Municipal Code or by action of the Planning Commission or City Council. 20.93.015 Authority A. Modification Permits. The Zoning Administrator shall approve, conditionally approve, or disapprove applications for Modification Permits relating to the following code provisions, subject to the submitted application, plans, materials, and testimony and findings in Section 20.93.030: Required building setbacks in front, side or rear yards; Heights of walls, hedges or fences; 3. Distances between buildings; 4. Area, number and height of signs not requiring an exception permit or limited by Planned Community District regulations; • ALT. EXHIBIT A Page 20.93-2, Modification Permits 5. Roof signs and off -site signs in accordance with Chapter 20.67; • 6. Structural appurtenances or projections which encroach into front, side or rear yards; 7. Location of accessory buildings on a site; the construction or installation of chimneys, vents, rooftop architectural features and solar equipment in excess of permitted height limits; 8. Size or location of parking spaces or access to parking spaces; 9. Swimming pool and swimming pool equipment encroachments; 10. Roof parking of automobiles in nonresidential districts; 11. Minor modifications and improvements to nonconforming buildings; B. Other Applications. The Zoning Administrator may approve, conditionally approve, or disapprove the following applications, subject to the submitted application, plans, materials, and testimony and applicable findings in the referenced sections of the Municipal Code: Lot line adjustments, in accordance with Chapter 19.76 of Title 19 • (Subdivision Code); 2. Tentative parcel maps, in accordance with Chapter 19.12 of Title 19 (Subdivision Code); Condominium conversions involving four or less units, via approval of a tentative parcel map in accordance with Chapter 20.83 and Title 19 (Subdivision Code); and 4. Such items as may be subsequently set forth by the Planning Commission resolution, subject to a confirming resolution by the City Council. The Zoning Administrator shall also pass upon all requests to extend existing use permits which have been approved by the Planning Commission and exercised by the applicant. 20.93.020 Application for a Modification Permit A. Procedure. An application for a modification permit shall be filed and processed in a manner consistent with the requirements contained in Chapter 20.90: Application Filing and Fees. ALT. EXHIBIT • Page 20.93 -3 Modification Permits B. Required Plans and Materials. An application for a modification permit shall • be accompanied by the following: Plot plans showing all property lines, structures, parking, driveways, other major improvements or facilities and landscaped areas. 2. Elevations of all proposed structures. 3. Other plans such as floor plans as may be required by the Planning Director to assure a proper consideration of the application. 4. In the case of a lot line adjustment, the materials described in Chapter 19.76 of Title 19 (Subdivision Code). 5. In the case of a tentative parcel map, the map and other materials described in Title 19 (Subdivision Code). 20.93.025 Notice and Public Hearing A. Tentative Parcel Maps. Notwithstanding other provisions of this Section, notice and hearing procedures for tentative parcel maps shall be as specified in Chapter 19.08 of Title 19 (Subdivision Code). is B. Time of Hearing. Upon receipt of a complete application, a time and place for a public hearing shall be scheduled according to the provisions set forth in Chapter 20.90. C. Required Notice. Mailed or Delivered Notice. a. Residential Districts. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of property within 300 feet of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. It shall be the responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. b. Nonresidential Districts. At least 10 days prior to the hearing, notice shall be mailed to the applicant and all owners of property within 300 feet, excluding intervening rights -of -way and waterways, of the boundaries of the site, as shown on the last equalized assessment roll or, alternatively, from such other • records as contain more recent addresses. It shall be the ALT. EXHIBrr A Page 20.93 -4 Modification Permits responsibility of the applicant to obtain and provide to the City the names and addresses of owners as required by this section. • 2. Posted Notice. Notice shall be posted in not less than 2 conspicuous places on or close to the property at least 10 days prior to the hearing. C. Contents of Notice. The notice of public hearing shall contain: A description of the location of the project site and the purpose of the application; 2. A statement of the time, place, and purpose of the public hearing; 3. A reference to application materials on file for detailed information; 4. A statement that any interested person or authorized agent may appear and be heard. D. Continuance. Upon the date set for a public hearing before the Zoning Administrator, the Zoning Administrator may continue the hearing to another date without giving further notice thereof if the date of the continued hearing is announced in open meeting. 20.93.030 Required Findings • The Zoning Administrator may approve or conditionally approve a modification permit if, on the basis of the application, plans, materials, and testimony submitted, the Zoning Administrator finds all of the following: A. The granting of the application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code. B. The requested modification will be compatible with existing development in the neighborhood. C. The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. ALT. EXHIBIT • Page 20.93 -5 Modification Permits 20.93.035 Duties of the Zoning Administrator • A. Investigation. The Zoning Administrator shall cause to be made, by its own members or its respective staffs, such investigation of facts bearing upon such application as will serve to provide all information necessary to assure that the action on each application is consistent with the intent of this section and sound planning practices. B. Rendering of Decision. After the conclusion of the hearing on any application for a modification permit, the Zoning Administrator shall render a decision within 15 days unless otherwise stipulated by the applicant and the Zoning Administrator. When addressing the finding in Section 20.93.030(A), the Zoning Administrator may consider the physical aspects of the property and /or improvements and their relationship to adjacent properties. In addressing the finding in Section 20.93.030 (B), the Zoning Administrator may consider the sum of qualities thatdistinguish the neighborhood from other areas within the City. However, the Zoning Administrator may only consider such characteristics as they relate to direct impact of the proposed modification on the neighborhood's character and not development rights that would otherwise be enjoyed without the Modification Permit. • In addressing the finding in Section 20.93.030 (C), the Zoning Administrator may consider the potential adverse impacts on persons or property in the vicinity. These include, but are not limited to, modifications that would significantly interfere with provision of adequate air and light on an adjacent property, adversely impact use of a public right -of -way, impede access by public safety personnel, result in excessive noise, vibration, dust, odors, glare, or electromagnetic interference, interfere with safe vehicular sight distances, or result in a substantial invasion of privacy. C. Referral to Planning Commission. In the event the Zoning Administrator determines that an application should properly be heard by the Planning Commission, it may refer the matter to the Planning Commission for hearing and original determination on the merits. The procedure for notice and hearings held by the Planning Commission on such applications shall be in accordance with the same provisions as set forth in this chapter. D. Administrative Act. The granting of any modification permit, when conforming to the provisions of this code, is hereby declared to be an administrative function, the authority and responsibility for performing which is imposed upon the Zoning Administrator. The action thereon by the Zoning Administrator shall be construed as administrative acts performed for the • purpose of assuring that the intent and purpose of this code shall apply in ALT. EXHIBIT A Page 20.93 -6 Modification Permits special cases, as provided in this section, and shall not be construed as amendments to the provisions of this code or the districting map of the City. E. Meetings. The Zoning Administrator shall hold one or more regular meetings each month and may hold special meetings as necessary. 20.93.040 Conditions of Approval The Zoning Administrator may impose such conditions in connection with the granting of a modification permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. 20.93.045 Effective Date No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal, which for purposes of modification permits shall be within 14 calendar days after the date of the Zoning Administrator's decision. In the event an appeal is filed, the modification permit shall not become effective unless and until a decision is made by the Planning Commission on such appeal, under the provisions of Chapter 20.95. No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal. 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation A. Expiration. Any modification permit granted in accordance with the terms of this code shall expire within 24 months from the effective date of approval or at an alternative time specified as a condition of approval unless: A grading permit has been issued and grading has been substantially completed; or 2. A building permit has been issued and construction has commenced; or 3. A certificate of occupancy has been issued; or 4. The use is established; or 5. A time extension has been granted. In cases where a coastal permit is required, the time period shall not begin until the effective date of approval of the coastal permit. ALT. EXHIBIT A • LJ • Page 20.93 -7 Modification Permits • B. Time Extension. The Planning Director may grant a time extension for a modification permit for a period or periods not to exceed 3 years. An application for a time extension shall be made in writing to the Planning Director no less than 30 days or more than 90 days prior to the expiration date. C. Violation of terms. Any modification permit granted in accordance with the terms of this code may be revoked if any of the conditions or terms of such modification permit are violated, or if any law or ordinance is violated in connection therewith. D. Discontinuance. A modification permit shall lapse if the exercise of rights granted by it is discontinued for 180 consecutive days. E. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96: Enforcement. 20.93.055 Amendments and New Applications A. Amendments. A request for changes in conditions of approval of a modification permit, or a change to plans that would affect a condition of • approval shall be treated as a new application. The Planning Director may waive the requirement for a new application if the changes are minor, do not involve substantial alterations or addition to the plan or the conditions of approval, and are consistent with the intent of the original approval. B. New Applications. if an application for a modification permit is disapproved, no new application for the same, or substantially the same, modification permit shall be filed within one year of the date of denial of the initial application unless the denial is made without prejudice. 20.93.060 Rights of Appeal A. Appeals. Decisions of the Zoning Administrator may be appealed to the Planning Commission and decisions of the Planning Commission may be appealed to the City Council. B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95: Appeals. • ALT. EMBIT A Page 20.91 -1 Zoning Administration CHAPTER 20.91 ZONING ADMINISTRATION • Sections: 20.91.010 Purpose 20.91.020 Authority 20.91.030 Application Filing 20.91.040 Planning Department Review 20.91.050 Environmental Review 20.91.010 Purpose To establish administrative provisions and procedures for the implementation of this code. 20.91.020 Authority A. Planning Director. This code shall be administered by the Planning Director under the administrative authority and direction of the City Manager pursuant to Title 2 of the Municipal Code. • B. Zoning Administrator. The Planning Director shall appoint a qualified Planning Department staff member as the Zoning Administrator. The Zoning Administrator shall have the authority to investigate and render decisions on applications as prescribed by the individual chapters of this code. The Zoning Administrator shall serve in that capacity at the discretion of the Planning Director. C. Planning Commission. The Planning Commission established by Article VII of the City Charter shall have the authority to investigate and render decisions on applications as prescribed by the individual chapters of this code. 20.91.030 Application Filing A. Required Forms. Applications for discretionary approvals, including but not limited to, amendments, development plans, modifications permits, site plan review, use permits, variances, and coastal permits shall be filed in the office of the Planning Department in writing on forms prescribed by the Planning Director. ALT. EXHIBIT • Page 20.91 -2 Zoning Administration • B. Required Materials. Applications for discretionary approvals shall be accompanied by all plans, maps, and other materials required by the prescribed forms, unless specifically waived by the Planning Director. The Planning Director may request additional materials deemed necessary to support the application. C. Required Signatures. Application for discretionary approvals may be made by the owner, lessee, or agent of the owner of the property affected. The application shall be signed by the owner of record or may be signed by the lessee or by an authorized agent if written authorization from the owner of record is filed concurrently with the application. D. Fees. Applications for discretionary approvals shall be accompanied by a fee as established by resolution of the City Council. 20.91.040 Planning Department Review A. Time Limits and Notification. Within 30 days of the filing of an application, the Planning Department shall determine whether the application is complete and notify the applicant in writing if the application is determined to be incomplete. • B. Incomplete Applications. If the application is determined not to be complete, the Planning Department shall notify the applicant in writing and shall specify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete, including a list and thorough description of the specific information or materials needed to complete the application. Upon the receipt of the information or materials needed to complete the application, or any resubmittal of the application, a new 30 day review period shall begin to determine the completeness of the application. C. Extension of Time Limits. Extensions of the time limits of the review period are permitted when mutually agreed upon by the Planning Department and the applicant. D. Waivers. The Planning Director may waive the submission of items deemed unnecessary. E. Exemption for Environmental Review. This section shall not be construed as limiting the ability of the Planning Department to request and obtain information needed to conduct environmental review under the terms of the California Environmental Quality Act. . ALT. EXHIBIT Page M91 -3 Zoning Administration 20.91.050 Environmental Review A. A project that is not exempt from the California Environmental Quality Act • (CEQA) shall be reviewed and either a Negative Declaration or an Environmental Impact Report (EIR) shall be prepared. B. Time Limits. For projects in which the City is the lead agency, negative declarations shall be completed and ready for approval within 105 days from the date the application is accepted as complete; environmental impact reports shall be completed and certified within 1 year from date the application is accepted as complete. No application for a project shall be deemed to be incomplete for lack of a waiver of the time limits established by this section. C. Extension of Time Limits. The Planning Director may provide for a reasonable extension of the time limits established by this section in the event that compelling circumstances justify additional time and the project applicant consents thereto. • ALT. EXHIBIT • Revise Chapters 20.62, 20.66, 20.67, 20.83, 20.86, and 20.95 to replace all • references to the "Modifications Committee" with the "Zoning Administrator." • • ALT. EXHIBIT CITY OF NEWPORT BEACH COUNCIL A E DA • CITY COUNCIL STAFF REPORT Study Session Agenda Item No. ss2 October 12, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Senior Planner (949) 644 -3235 palfordecity. newport- beach.ca. us SUBJECT: Potential Revisions to Modification Permit Procedures ISSUES: Should the modification permit procedures be revised to require additional findings and replace the Modifications Committee with a zoning administrator? is Review staff report and provide direction to staff. DISCUSSION: Background: On November 25, 2003, the City Council held a public hearing on Code Amendment 2003- 080, which would revise the findings required to approve a modification permit. The City Council continued the hearing for several months in order to have the Modification Committee conduct a parallel review of modification permit applications using the proposed findings. The intent was to provide an indication of the effect on the proposed findings on actions by the Modifications Committee. The parallel review exercise also revealed ongoing difficulties with the modification process, which could be remedied by replacing the Modifications Committee with a zoning administrator. • Modification Permit Procedures October 12, 2004 Page 2 Introduction: Modification permits were established with the intent of providing relief when the strict literal interpretation and enforcement of property development regulations would be inconsistent with the general purpose of the Zoning Code. The Modification Committee, which is composed of staff representatives from Planning, Building, and Public Works, has the authority to approve or deny modification permits. Currently, only one finding is required to approve a modification permit: In order to grant relief to an applicant through a modification permit, the Modifications Committee shall find that the establishment, maintenance or operation of the use of the property or building will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed modification is consistent with the legislative intent of this code. If the proposed amendment is adopted, three findings would be required to approve a modification permit: • 1. The granting of the application is necessary due to the physical constraints of the • property, such as legal nonconforming structures, size, shape, topography or lot orientation, and that the strict application of the Zoning Code results in hardships that are inconsistent with the purpose and intent of the Zoning Code. 2. The requested modification will be compatible with existing development in the neighborhood. 3. The granting of such an application will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and will not be detrimental to the general welfare or injurious to property or improvements in the neighborhood. Analysis: The Parallel Review Beginning on January 1, 2004, applicants for modification permits were required to provide a written statement incorporating the three proposed findings to justify the modification. At the end of each meeting, the Modifications Committee remained in session and reviewed each application on the agenda for a second time using the project justification statement to determine if the three proposed findings could be made. • Modification Permit Procedures October 12, 2004 Page 3 is From January 28, 2004 to May 26, 2004, the Modifications Committee reviewed 34 modification permit applications that would have been subject to the proposed findings'. Using the existing findings, only one of 34 applications (2.9 %) was denied. Using the proposed findings, 16 applications (47 %) would have been denied. It should be noted that the applicants did not actively participate in the parallel review process. The Modifications Committee conducted the parallel review using only the project justification statement provided by the applicant and information disclosed during the public hearings. In an actual public hearing situation, an applicant might be able to provide additional information that could result in a different outcome. Likewise, applicants might also opt to revise their applications to make them more likely to meet all of the proposed required findings. Therefore, the high percentage of denials may not be indicative of the outcome of future modification permit hearings, should the proposed findings be adopted. Nearly all (87.5 %) of the applications were denied in the parallel review only because they failed to meet Finding No. 1. This finding is intended to address the Council's concem of abuse of the City's development standards pertaining to setback limitations and building design /configuration. With this finding, an applicant would be required to clearly provide facts that demonstrate the need to deviate from the Code. Specifically, an applicant would need to show the modification is necessary due to physical limitations • present on a particular property, as opposed to simply wanting the modification to accommodate a particular design. The Modifications Committee would be directed to consider the physical aspects of the property and /or location of existing structures that do not generally apply to other properties in the immediate vicinity. Staff recently met with three architects who regularly represent modification permit applicants to discuss the proposed changes to the modification permit process. All three expressed concerns over Finding No.1. Specifically, they believed that Finding No. 1 requires that the property be unique and that this would preclude the approval of modifications that are consistent with the development pattern in the surrounding area. To address these concerns, the City Council may consider revising Finding No. 1 to remove the references to size, shape, topography, and other the physical constraints of the property to read as follows: 1. The granting of the application is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in hardships that are inconsistent with the purpose and intent of the Zoning Code. • ' Required findings for lot line adjustments, tentative parcel maps, condominium conversions, and similar applications assigned to the Modifications Committee would not be changed. Modification Permit Procedures October 12, 2004 Page 4 Zoning Administrator The Modifications Committee is subject to the Brown Act2. As a result, Modification Committee members are prohibited from discussing applications outside of open meetings. This has proved to be problematic since it precludes Building, Planning, and Public Works staff members from reviewing an application together in advance of the meeting. In fact, staff members must visit project sites individually. In contrast, all other applications (use permits, variances, parcel maps, etc.) are routinely distributed to these departments for comments and recommendations before they are submitted to the decision- making body. Thus, the Modifications Committee cannot take full advantage of the review process without risk of violating the Brown Act. Furthermore, the Modification Committee's review of the application at the hearing has been said to appear as "deal making" as they attempt to reach a consensus. One solution to this problem is to replace the Modifications Committee with a zoning administrator. Zoning administrators are used by numerous communities to serve as a hearing officer and to render decisions on minor discretionary applications. The zoning administrator would be a qualified Planning Department staff member, appointed by the Planning Director. Since the decision - making authority would be assigned to a single staff member, the zoning administrator would be free to consult with other departments without violating the Brown Act. The zoning administrator would have the authority to render decisions on applications currently assigned to the Modifications Committee. In addition, there are approximately a dozen duties requiring approval authority assigned to the Planning Director by the Zoning Code, which could be transferred to the Zoning Administrator. Public notice and appeal procedures would not be affected. Prepared by: Patrick J. Afford Senior Planner Attachments: 1. Modification Permit Findings Study. 2. Correspondence. Submitted by: P"U;2k7 Patricia L. Temple Planning Director • • 2 The Ralph M. Brown Act establishes the basic requirements for open meetings and notice of hearings • for commissions, boards, councils, and other public agencies. • 0 'i v a a a t S S 3 o d N 4) mw 4) my � N t c n L ¢E ¢� Nvv v v v v v vvvvv vv E 0 N >> 0 N 'O N> N 'O N N 'O N> •E N o 'O N •EE 'O N> N 'O N> N 'O N 'O N 'O N 'O d 'O d N >> N N > 0 'O N •EE 'O N N >>> N N N > 'O N .E N >> N 'O N> N 0E of of oEEEE co Nil 0 O a O s O a O O Oo .V- � N N n N N N N N N N N N N N N 0 6 6 Q 6 6 6 6 6 6 6 6 6 6 6 6 6 6 cr o } } } } } }Z Z } } } } } } } }} 4) c w LL N N aOE } } } }} } } }} } } } } } }} } } } } } } }Z Z } } } } } } } }} C LL } r — CO } }Z }Z } ZY Z Z }Z }ZZZ Z ZZ } } } }Z Z } } } }Z } }Z} H U) C U) LL 'O V'OV V v vv v vvvvvvv v v v v v v v v vvvvvvvvv z N N N N N N N N N N N N N N N N N N N N N N N N N > N N N> N > N N N > N O 0 0 0 0 0 0 O 0 0 O 0 0 0 0 0 0 0 O 0 0 0 0 0 0 0 y 0 0 0 0 0 0 0 0 0 LL Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q 0 Q Q Q Q Q Q Q Q Q F O R W O Y) N O > V N LL NN 2 O y N 4) 0 , l L w N O N ~ N > . CO O _ 2 N N w ca C CL C— - Q N 0 O d U N> d M C N N C N — y N � 3 N N N C b NE J N LL 'OC a 6 Q, =L Nd 2 � CN 4. 0 Q N N N V N O �c CO � N O O 0 O �z H m N EmCt ca 4 4. . � E �y r O N M ,E C yN ° N N N N Sul N U 3 N O a ZDN N N oM N N vSa0 o a ma O 0M(9M0 N N N> o0 NU mm(n }N N0 D 940 NO h 0000 CO 0000 NO M Un 00) 000) 0 t0 2 M~ a n N� V �-0 V YO O 00 O O__N O 0 �0 h Now 0000 NNM O Y0000 N Y) h V Y00 O O M �tpp lO C-4 NNN 'T M LO pp 0)N00 N Q NY000 , N" V N Y) N� N NM NN MN N �-• (0 O V (0 a0 O) V O) O M aONMha00 V)(OMMONO O) O h n M�tp 0 O N Cl N O M 00 M V y V y LO 0 V) O Y) 0 LO 0 0 n to 00 h O O) 00 O O) 0 �y- • p Z �y- U 0 0 y999 y 0 0 QQ 5 yO O yO O O aO O O 00` p0 y0` p00Q y0 O O 00` O O y000 O A y O O yO O yO O oA yO O ��• O O O A N 0 0 0 0 O O O 00 000 S O S O O O O S O O O O O 0 0 0 0 000 O t0 N O LO O t0 O n O 00 O O O O 1 N IT Y) (D 00 O) O N N N N t0 N (0 N h N LO N O) N a0 N M N M O M aa t n Y) M �p t 7 00 M h M O) M Z-• 0��0 0 0 O O O O Q O 9090900 O O0O00 p O 0 Oogg&4 0 0 0 0 0 0 daO O O O O O O O O A .50000 0 O 00000000 0 0 0 0 0 0 0 00 0 0000000 0 0000000 0 0 0 0 0 210 0 0 0 Q2222 2 22 2 2222222 222222 2 212222212 2 M m mO mmn m m m O O O O S O O 0y a 0g 2O O 00 y a O a O O O y 8 C N N N N N N N O N O N O N O N O N N N O N O N O N O N O N N O N O N O N O N N O N O N O N O N N 0 N 0 N N 0 N m 00 06 -- 00 00 00 YO M M M O h � V V v h Ih h V 00 00 Y6 Y6 Y6 � ^ M- O) t0 t0 yNN" rL �-• N L L �-• NNN = C —_"• NNN � �" NN _ — >1> >1 •. O N >> N N N N N N N N N �L) Q Q Q N N N N N N N 2 2 2 pL!mm 'i 9- 29 -04; 3c09AM;Brlon S. Jeannette SUPPLEMENTAL APPLICATION: PtOJECTJUSTiFICATION REQUEST 9496455963 # t/ .'1 The City Council has directed the Modifications Committee to study and document the following: Review and evaluate all newly submitted Modification Permit Applications utilizing the three project criteria listed below. The study will encompass Modifications Committee agenda items for approximately four rr,onths. The supplemental application information will be discussed and evaluated by the Modifications Committee at the end of the meeting, separately and apart of the decision making process. This case study information will be presented to the City Council as supporting -documentation in their review of a proposed Code Amendment (Amendment to the Zoning Code). The intent of the code amendment is to establish objective findings or revise current Modification Permit Findings utilized by the Modifications Committee in the decision making process Therefore, effective January 1, 2004, all Modification Permit applications received in the Planning Department shall include a written applicant's statement addressing the three project criteria listed below (applications submitted without the accompanying statement may be deemed in ornplete which may cause a delay in the processing of the application). yp� Additional Information Request: Please provide a detailed description of the proposed request in relation to each of these criteria and clearly state only the objective reasons for requesting a Modification Permit. (Attach additional sheets if necessary). .w Project Criteria:. r7t#Qc -j (A�,� fit° � °D• �� W� �� A%tAuyb � Fir 4jW 61V0tt49J1A('/9 ( tea* A, NrrAWh,r41ZIFr5J*"rfipfe dfAt trr ""at A, inq of th o.4 nrnnart� a .r h -ac legal how does strict application of the Zoning Code result in hardships that are inconsistent with the purpose and intent of the Zoning Code? ' <, MA446ffi — -cv�`ti Neff B. How will the requested modification be compatible with existing developrnent(s) in the neighborhood? /ADP . v I — M N'i -_rtJE fE' I t fi^ _+! /rt G1Vt6r9iFN7 Mil i%cE�7/ /l+c' n t C. How and why will the granting of such an application not adversely affect the health or safety of persons residing or working in the neighborhood of the property MO dtad 16Velrimental to the general welfaw or r injurious to property or improvements in the neighborhood? PLI 1,k4 &m1VrMwa p>=tki4mop k- - . ti�uiiii Z ��yfit»Nti G � Application Identification (For Office Use Only) • F %tJSERS \FLN \Shero.d\Mods 2003 \Sl1PP -APP Crileria'12$0•ll ;i.doC L Alford, Patrick From: Sk000ler @aol.com a t: Wednesday, September 22, 2004 11:30 AM palford @city.newport- beach.ca.us; email @customarchitecture.com Subject: Mod squad Hi Pat. If I don't do this know it won't get done. After reviewing the findings or project criteria I like what I see except # A. I believe a simpler aproach would solve my concerns. Something like this A. How is the granting of this application consistant with the purpose and intent of the Zoning Code. Thanks Todd Schooler • J 1 7 Page 2193 -5 Modification Permits • ' ;RECEWD AFTER AG N � 20.93.035 Duties of the Zoning Administrator A. Investigation. Thn n 61se .n be made, by its qwn cnnh n nGn.hinn as. will non.n t9 .. :rJc all 'nfn -Rtn .ta assLiFe that �hw 4i�nn nh vnl'n is a siste_with the to } oQh'& r°t' l. andiseund planl?+ag pras!icec. The Zoninq Administrator shall investigate each application to assure that the proposal is consistent with the intent and purpose of this chapter, all applicable regulations and policies, and sound planning practices. The Zoning Administrator shall refer each application to the Building Department and Public Works Department, and to other city departments, as needed. Each department shall make written recommendations to the Zoninq Administrator. B. Rendering of Decision. After the conclusion of the hearing on any application for a modification permit, the Zoning Administrator shall render a decision within 15 days unless oti ;eP 'se stipulated by both the applicant and the Zoning Administrator consent to a later date. When addressing the finding in Section 20.93.030(A), the Zoning Administrator may consider the physical aspects of the property and /or improvements and their relationship to adjacent properties. In addressing the finding in Section 20.93.030 (B), the Zoning Administrator may consider the sum of qualities thatdistinguish the neighborhood from other areas within the City. However, the Zoning Administrator may only consider such characteristics as they relate to direct impact of the proposed modification on the neighborhood's character and not development rights that would otherwise be enjoyed without the Modification Permit. In addressing the finding in Section 20.93.030 (C), the Zoning Administrator may consider the potential adverse impacts on persons or property in the vicinity. These include, but are not limited to, modifications that would significantly interfere with provision of adequate air and light on an adjacent property, adversely impact use of a public right -of -way, impede access by public safety personnel, result in excessive noise, vibration, dust, odors, glare, or electromagnetic interference, interfere with safe vehicular sight distances, or result in a substantial invasion of privacy. • Page 20.93 -6 Modification Permits C. Referral to Planning Commission. In the event the Zoning Administrator determines that an application should properly be heard by the Planning Commission, 4the Zoning Administrator may referthe matterto the Planning Commission for hearing and original determination on the merits. The procedure for notice and hearings held by the Planning Commission on such applications shall be in accordance with the same provisions as set forth in this chapter. D. Administrative Act. The granting of any modification permit, when conforming to the provisions of this code, is hereby declared to be an administrative function, the authority and responsibility for performing which is imposed upon the Zoning Administrator. The action thereon by the Zoning Administrator shall be construed as administrative acts performed for the purpose of assuring that the intent and purpose of this code shall apply in special cases, as provided in this section, and shall not be construed as amendments to the provisions of this code or the districting map of the City. E. Meetings. The Zoning Administrator shall hold at least one 9r -rnefe regular meetings each month and may hold special meetings as necessary. 20.93.040 Conditions of Approval The Zoning Administrator may impose such conditions in connection with the granting of a modification permit as they deem necessary to secure the purposes of this code and may require guarantees and evidence that such conditions are being or will be complied with. 20.93.045 Effective Date No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal, which for purposes of modification permits shall be within 14 calendar days after the date of the Zoning Administrator's decision. In the event an appeal is filed, the modification permit shall not become effective unless and until a decision is made bythe Planning Commission on such appeal, under the provisions of Chapter 20.95. No permit or license shall be issued for any use or property modification until the decision shall have become final by reason of the expiration of time to make an appeal. 20.93.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation A. Expiration. Any modification permit granted in accordance with the terms of this code shall expire within 24 months from the effective date of approval or at an alternative time specified as a condition of approval unless: •