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Home My WebLink About19 - Megonigal Residence - 2333 Pacific DriveCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. September 23, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department Patrick J. Alford, Planning Manager (949) 644 -3235 pafford@city.newport-beach.ca.us SUBJECT: Appeal of the Planning Commission's approval of the Megonigal Residence Modification No. 2007 -080 (PA2007 -133) 2333 Pack Drive APPLICANT: David R. Olson, Architect APPELLANT: Council Member Nancy Gardner ISSUES Should the City Council approve, modify, or disapprove Modification Permit No. 2007 -080 to allow planter walls to exceed the 3 -foot height limit in the front yard setback in association with the construction of a new, three -story single - family dwelling? Does the proposed project comply with City Council Resolution No. 2007 -3, which requires that all new development comply with applicable policies of the General Plan, and the Residential Design Criteria of Ordinance 2007 -3? RECOMMENDATION 1. Conduct a de novo public hearing; and, 2. Find that the proposed project complies with applicable policies of the General Plan and is in compliance with City Council Resolution No. 2007 -3 and Ordinance 2007 -3; and, 3. Uphold and affirm the decision of the Planning Commission by approving Modification Permit No. 2007 -080, subject to the findings and conditions of approval included within the attached draft resolution (Attachment A). Megonigal Residence Appeal September 23, 2008 Page 2 Protect Setting and Description The proposed project is a three -story, 3,566- square -foot residence located at the intersection of Begonia Avenue and Pack Drive. The proposed project conforms to all Zoning Code property development regulations, with the exception of the planter walls that exceed the 3- foot front yard setback height limit. Planning Commission Action The Planning Commission reviewed an earlier version of the project on April 3, 2008, for consistency with General Plan policies relating to public view protection and neighborhood compatibility. After receiving a report from staff and testimony from the applicant, and members of the public, the Planning Commission gave the following direction to staff and the applicant to bring the project into conformance with General Plan policies: • Protection of public views has priority over protection of the coastal bluff. • Protection of the Begonia Park view corridor has priority over protection of the Begonia Avenue view corridor. • Reduce the scale and massing of the residence. • Shift portions of the residence above street grade to the west to reduce impacts to the Begonia Park view corridor. • Provide windows on street - facing elevation to visually "open" the residence to the neighborhood. The project was revised in response to the Planning Commission's direction. The Planning Commission held a public hearing on the revised proposed project on August 21, 2008. The Planning Commission focused on the project's consistency with General Plan policies relating to public view protection, neighborhood compatibility, and landform protection. The Planning Commission found that the proposed project was in substantial conformance with the policies of the General Plan. The Planning Commission also found the proposed project in conformance with Criterion No. 7 of Ordinance No. 2007 -3 (Residential Design Criteria), which is used to determine a project's consistency with General Plan policies relating to site planning and resource protection. Therefore, the Planning Commission found the proposed project in compliance with City Council Resolution No. 2007 -3 and Ordinance 2007 -3 and approved the Modification Permit. Following staffs recommendation, the Planning Commission did not approve a proposed water feature that would have encroached into the public right -of -way and limited paving within the public right -of -way to the minimum necessary for the driveway and a walkway to Z Megonigal Residence Appeal September 23, 2008 Page 3 the entry to the residence. A standard public sidewalk was also required to be constructed and all remaining areas would have to be landscaped. The Planning Commission also required that the applicant dedicate a view easement that would restrict the heights of landscaping and accessory structures on the proposed terrace (identified as "Outdoor Room" in the project plans — see Attachment H) and in open areas. Appeal On August 28, 2008, Council Member Nancy Gardner filed an appeal of the decision of the Planning Commission. The stated reason for the appeal was to ensure consistency with the General Plan. Pursuant to Section 20.95.060.C, a public hearing on an appeal is conducted "de novo ", meaning that it is a new hearing and the decision being appealed has no force or effect as of the date the appeal was filed. The appellate body is not bound by the decision being appealed or limited to the issues raised on appeal. Analysis Public Views Begonia Park and Begonia Avenue provide views of Newport Harbor, Peninsula Point, and the Pacific Ocean. The following General Plan policies require new development to protect and, where feasible, enhance public views: ■ 'Protect and, where feasible, enhance significant scenic and visual resources that include open space, mountains, canyons, ridges, ocean, and harbor from public vantage points." (LU 1.6 and NR 20.1) ■ "Require new development to restore and enhance the visual quality in visually degraded areas, when: feasible, and provide view easements or corridors designed to protect public views or to restore public views in developed areas, where appropriate." (NR 20.2) ■ "Protect and enhance public view corridors from the following roadway segments (shown in Figure NR3), and other locations may be identified in the figure." (NR 20.3) ■ "Design and site new development, including landscaping, on the edges of public view corridors, including those down public streets, to frame, accent, and minimize impacts to public views" (NR 20.4) Staff and the Planning Commission concluded that total protection of the public views may not be possible without denying the owner reasonable economic use of the property. The proposed project minimizes impacts to the public views to the maximum extent feasible and is,. therefore, in substantial conformance with the public view protection policies of the General Plan. Megonigal Residence Appeal September 23, 2008 Page 4 Neighborhood Compa66ility Staff and the Planning Commission concluded that by lowering the development down the bluff and limiting street level development to a single story, the proposed project is visually compatible with the surrounding development. Furthermore, the addition of clerestory windows on the street elevation and the proposed planters makes the proposed residence more consistent with other street - facing elevations in the neighborhood. Therefore, the proposed project is in substantial conformance with the neighborhood compatibility policies of the General Plan. Landform Protection The coastal bluff in this area is severely degraded to the extent that it cannot be considered a significant visual resource. Further alteration would not significantly impact the City's environmental character, but would assist in minimizing impacts to public views. Therefore, the project is in substantial conformance with the landform protection policies of the General Plan. Environmental Review This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) as the proposed project is one, single - family residence in a residential zone that contains no environmentally significant resources on site. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site including the applicant, and posted on the subject property at least 10 days prior to this hearing consistent with the provisions of the Municipal Code. Additionally, the item was shown on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Patrick J. Alford Planning Manager Submitted by: David Lepo Planning Director Megonigal Residence Appeal September 23, 2008 Page 5 Attachments: A. Draft City Council resolution. B. Letter from the applicant C. August 21, 2008 Planning Commission staff report with exhibits. D. Draft August 21, 2008 Planning Commission minutes. E. April 3, 2008 Planning Commission staff report with exhibits. F. April 3, 2008 Planning Commission minutes. G. Correspondence. H. Project plans (under separate cover). THIS PAGE LEFT BLANK INTENTIONALLY Attachment Draft Resolution 0 • 49 U RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING THE APPEAL AND UPHOLDING AND AFFIRMING THE DECISION OF THE PLANNING COMMISSION FINDING A PROJECT IN COMPLIANCE WITH CITY COUNCIL RESOLUTION NO. 2007 -3 AND ORDINANCE NO. 2007-3 AND APPROVING MODIFICATION PERMIT NO. 2007 -080 FOR PROPERTY LOCATED AT 2333 PACIFIC DRIVE (PA 2007 -133) WHEREAS, an application was filed by David R. Olson on behalf of Mr. Kim Megonigal, property owner, with respect to property located at 2333 Pacific Drive, requesting a modification permit to exceed the 3 -foot height limitation in the front yard setback to allow for planter walls and a water feature; and WHEREAS, City Council Resolution No. 2007 -3 requires that all new development comply with applicable policies of the General Plan and City Council Ordinance No. 2007 -3 sets forth design criteria to insure that all new single -unit and two -unit residential projects are consistent with the General Plan; and WHEREAS, a public hearing was held on August 21, 2008, in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. The application, plans, staff report, and evidence, both written and oral, were presented to and considered by the Planning Commission at this meeting; and WHEREAS, the Planning Commission found the project in compliance with City Council Resolution No. 2007 -3 and Ordinance No. 2007 -3 and approved Modification Permit No. 2007- 080; and WHEREAS, on August 28, 2008, and application was filed to appeal the decision of the Planning Commission to the City Council; and WHEREAS, on September 23, 2008, the City Council held a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California at which time the appeal was considered. A notice of time, place, and purpose of the aforesaid meeting was given. The application, plans, staff report, and evidence, both written and oral, were presented to and considered by the City Council at this meeting; and WHEREAS, this project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) as the proposed project is one, single -unit residence in a residential zone that contains no environmentally significant resources on site. 1 2of4 NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Newport Beach hereby denies the appeal and upholds and affirms the decision of the Planning Commission to find the proposed project in compliance with City Council Resolution No. 2007 -3 AND Ordinance No. 2007 -3 and approve Modification Permit No. 2007 -080 This resolution shall take effect immediately upon adoption. Passed and adopted by the City Council of Newport Beach at a regular meeting held on the September 23, 2008 by the following vote to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK R 3of4 CONDITIONS OF APPROVAL 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (Except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. Prior to the issuance of a building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Department. 4. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 5. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 6. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise - generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise - generating construction activities are not allowed on Sundays or Holidays. 7. All improvements shall be constructed as required by ordinance and the Public Works Department. 8. An encroachment permit is required for all work activities within the public right -of -way. 9. All improvements shall comply with the City's sight distance requirement. See City Standard 110 -L. 10. In case of damage done to public improvements surrounding the development site by the private construction, additional reconstruction within the public right -of -way could be required at the discretion of the Public Works Inspector. 11. All on -site drainage shall comply with the latest City Water Quality requirements. 12. Water meter and the sewer cleanout will be located in the public right -of -way. If installed at a location that will be subjected to vehicle traffic, each shall be installed with a traffic - grade box and cover. 13. The existing street tree(s) shall be protected in place. Unauthorized tree removal(s) will trigger substantial penalties for all parties involved. Z 14. Paving in the public right -of -way shall be limited to the minimum necessary for the driveway and a walkway to the entry to the residence. A concrete sidewalk be shall be constructed per applicable City Standards. All remaining areas shall be landscaped. Non - standard encroachments within the public right -of -way shall comply with City Council Policy L-6, prior to the issuance of an Encroachment Agreement and Permit. 15. The proposed water feature shall be removed. 16. Prior to the issuance of a building permit, the applicant shall dedicate in perpetuity a view easement over the "Outdoor Room" identified on the approved plans and all open space areas on the project site that shall restrict the maximum height of landscaping and accessory structures to that of the top of the guardrails of the "Outdoor Room." The view easement shall be a three - dimensional space projected vertically from a horizontal plane at the elevation of the top of the guardrails of the "Outdoor Room" and horizontally to all property lines. The restrictions of the view easement shall not apply to the building and structures depicted on the approved project plans or to patio furniture. The form and legal description of the view easement shall be prepared by the applicant and reviewed and approved by the Planning Director. r9 Attachment B Letter from the Applicant September 15, 2008 City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Re: Megonigal Residence 2333 Pacific View Drive Corona Del Mar, CA 92625 PA2007 -133 Modification No. 2007 -080 Honorable Mayor and City Council Members, The above referenced project will be appearing on your agenda for the September 23, 2008 council meeting and we would like to take this opportunity to introduce ourselves and give you a little history in regards to our project and present our arguments for the council to endorse the unanimous approval of the Planning Commission. The appeal to our commission approval stems from neighborhood concerns about view protection from Begonia Park as addressed in the recently adopted General Plan and how that issue relates to private property development rights as also addressed in the General Plan and related Zoning Code. We have been involved in at least eight meetings with staff along with numerous phone calls and email correspondence as well as a meeting with the Planning Commission for "direction" on April 3, 2008. The result of these meetings was three complete design revisions and scope reductions to a design scheme that the Planning Department staff have done everything we can to reduce the impact at street level to the required two car garage, front entry, and vertical circulation to access the lower levels. The previous design was two stories on Pacific Avenue and included a request for a height variance on the back side and a front setback variance. Those requests for variances were originally based on staff recommendations that encroaching into the front setback and pulling everything to the right would have the least impact on the view from the park. The Planning Commission did not prefer that direction so a revised scheme was presented and approved at the August 21, 2008 meeting. The revised scheme removes all requests for variances and complies with the Zoning Code for the building height and setbacks. A modification has been requested for planters in the front which are needed for guardrail purposes and were added to enhance the street scene. In addition to the meetings with city personnel, the Megonigals took the effort of going door to door to personally present their proposal to neighbors. In addition to those meetings, the Megonigals, at the request of the Planning Commission, also went to the 4 7 0 w a I d irvine ca 92618.4638 t 949.450. 0093 f 949.450. 0094 www.olsonamhitmLcom 12 expense of placing story poles on the site even though the envelope was below the allowable building height. Finally at the request of the Planning Commission, the Megonigals agreed to a deed restriction on the site that would prohibit any further construction beyond the envelope that the commission was approving. Key excerpts from the Staff report include: "Because the proposed project now conforms to the height limits of the Zoning Code, it meets all the terms and conditions of Categorical Exclusion Order E -77 -5. Therefore, a coastal development permit is not required. "Total protection of the public views may not be possible without denying the owner reasonable economic use of the property.—To this end, staff concludes that the proposed project minimizes impacts to the public views to the maximum extent feasible. Therefore staff considers the proposed project to be in substantial conformance with the public view protection policies of the General Plan." In terms of bluff protection: "The Planning Commission concluded that protection of the Begonia Park view corridor should have priority over protection of the coastal bluff .....Avoiding the degradation of public views and the scenic quality of the area was considered preferable to the protection of an already degraded landfonn." The requested FAR is equivalent to one home on Pacific and lower than the others. In addition, the height is under 24' and the other homes on Pacific range form 27' to 42' (see Staff Report Exhibit No. 4) Key excerpts from the August 21, 2008 Planning Commission Minutes include; "Access from Bayside Drive — not viable due to the retaining wall on the property; the applicant would have to have a driveway access through Begonia Park" "Coastal view road designation for Begonia Avenue and Bayside Drive — neither have the designation of public view roads in the General Plan" Mr. Harp, noted that "This project is in a categorical exclusion zone, so it is not required to go to the Coastal Commission" Mr. Harp, at Commission inquiry, noted "the primary issue is for a determination of conformance with the General Plan and if you told the applicant that no proiect on this property could comply with the General Plan then you would be in a regulatory taking type of area" Commissioner Toerge (who was a member of the General Plan Update Committee) noted that making a determination of consistency with the General Plan, means the whole plan. Part of the (General) Plan allows building a house on an R -1 lot. �3 Commissioner McDaniel noted that "we mitigated everything we could within the rules and standards. It is my opinion that these people have earned the right to build on their property". Commissioner Unsworth noted that "when Ordinance 2007 -3 was passed, the Zoning Code that created the envelope was in existence. Commissioner Hawkins noted that this based on based on commission determination. We would like to note that there has been much discussion related to the histo of the site, but the current situation is that the property is zoned as an R -1 lot with development rights and we respectfully feel that those rights should be respected. The Megonigals have made considerable compromises in the last year and have finally reached a point where the Planning Commission has unanimously approved their project. We ask that the council endorse the previous approvals of the bodies that they selected to thoroughly review these types of situations. In closing, we urge each of you to visit the site and see the story poles that have been erected as these are the most accurate representation. We are attaching current photos that depict the outline of the proposed envelope as well as the allowable height at the front setback. These outlines were taken directly from the onsite story poles. If you have any questions, please feel free to contact me directly Sincerely, Da id R. Olson Architects David R. Olson, AIA, NCARB Principal CC: Patrick Alford, NB Planning Kim and Carolyne Megonigal Wayne Call, Call Jensen + Ferrell Jay W. Deverich, Deverich and Gillman, LLP Iy _ I s� sF q r da 43l I t � Y _ st 5 } g Y �Cd � t• Y � - _ � �n mss?`. � �• Y f � MK ri t _ i` wqw .. e .sat....... Attachment C 08121108 Planning Commission Staff Report k CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT August 21, 2008 Meeting Agenda Item No. 3 SUBJECT: Megonigal Residence (PA2007 -133) 2333 Pacific Drive ■ Modification No. 2007 -080 APPLICANT: David R. Olson, Architect PLANNER: Patrick J. Alford, Planning Manager (949) 644 -3235, oafford@city.newnort- beach.ca.us PROJECT SUMMARY The application consists of a modification permit to allow planter walls and a water feature to exceed the 3 -1oot height limit in the front yard setback in association with the construction of a new, three -story single - family dwelling. The Planning Department also requests a determination on whether the proposed project complies with City Council Resolution No. 2007 -3 and Ordinance No. 2007 -3, which require that all new development comply with applicable policies of the General Plan. RECOMMMEDATION 1) Conduct a public hearing; and 2) Find that the proposed project complies with applicable policies of the General Plan; and 3) Approve Modification Permit No. 2007 -080 with the findings in the attached resolution (Exhibit No. 1). 2.0 Megoniga! Residence August 21, 2008 Page 2 Z1 Megonigal Residence August 21, 2008 Page 3 INTRODUCTION Background: At the April 3, 2008, meeting, the Planning Commission reviewed an application for a proposed single -unit dwelling on the subject property. The application included a variance to exceed the height limit and modification permit for encroachment into the required front yard setback. The Planning Department brought the application to the Planning Commission to receive guidance on the project's consistency with the General Plan and the Local Coastal Program. After receiving testimony from staff, the applicant, and members of the public, the Planning Commission concluded that the project was inconsistent with policies relating to public view protection and neighborhood compatibility. The Planning Commission gave the following direction to staff and the applicant: • Protection of public views has priority over protection of the coastal bluff. • Protection of the Begonia Park view corridor has priority over protection of the Begonia Avenue view corridor. • Reduce the scale and massing of the residence. • Shift portions of the residence above street grade to the west to reduce impacts to the Begonia Park view corridor. • Provide windows on street facing elevation to visually "open* the residence to the neighborhood. In addition, the Planning Commission requested the following additional information: • Installation of story poles to represent the height of the most distant points of the proposed residence (see Exhibit No. 2). Visual simulation depicting the proposed project and maximum development envelope (see Exhibit No. 3). • Heights, floor area ratios, and variance history of adjacent properties (see Exhibit No. 4). Megonigal Residence August 21, 2008 Page 4 Proiect Descriotion The applicant submitted a revised application on July 24, 2008. The proposed three - story, 3,566 square -foot residence conforms to all Zoning Code property development regulations, with the exception of the planter walls and a water feature that exceed the 3 -foot front yard setback height limit. The proposed variance to exceed the height limit has been withdrawn. Key changes from the previous design of the residence are summarized below: • Conforms to 24 -foot height limit (the previous design exceeded height limit by approximately 4 feet 6 inches to 10 feet 6 inches). • Single story at street level (two stories were previously proposed). • The finished floor of the ground level (Third Floor) is approximately 12 feet lower than the previous design. • Floor area reduced from 3,717 to 3,566 square feet (151 sq. ft. reduction). • Conforms to the 5 -foot front yard setback (previous design encroached 2 to 5 feet). • Clearstory windows added to the front elevation. DISCUS-SION Although the application is nominally for a modification permit, first consideration must be given to the proposed projects consistency with the policies of the General Plan. City Council Resolution No. 2007 -3 requires that all new development comply with applicable policies of the General Plan. In addition, City Council Ordinance No. 2007 -3 sets forth design criteria to insure that all new single -unit and two -unit residential projects are consistent with the General Plan. Implementation of Resolution No. 2007 -3 and Ordinance No. 2007 -3 were delegated to staff. However, given the complexity of the issues, and the high level of public interest, staff requests a determination by the Planning Commission on whether the proposed project complies with Resolution No. 2007 -3 and Ordinance No. 2007 -3. Because the proposed project now conforms to the height limits of the Zoning Code, it meets all of the terms and conditions of Categorical Exclusion Order E -77-5. Therefore, a coastal development permit is not required. Z3 Megonigal Residence August 21, 2008 Page 5 General Plan Consistency Public Views Begonia Park and Begonia Avenue provide views of Newport Harbor, Peninsula Point, and the Pacific Ocean. The following General Plan policies require new development to protect and, where feasible, enhance public views: • "Protect and, where feasible, enhance significant scenic and visual resources that include open space, mountains, canyons, ndges, ocean, and harbor from public vantage points.- (LU 1.6 and NR 20.9) • "Require new development to restore and enhance the visual quality in visualty degraded areas, where feasible, and provide view easements or corridors designed to protect public views or to restore public views in developed areas, where appropriate." (NR 20.2) • "Protect and enhance public view corridors from the following roadway segments (shown in Figure NR3), and other locations may be identified In the figure., (NR 20.3) • "Design and site new development, including landscaping, on the edges of public view condors, . including those down public streets, to frame, accent, and minimize impacts to public views" (NR 20.4) The Planning Commission recognized that even a project that conforms to Zoning Code height limits would impact public views from the park and street. The Planning Commission concluded that protection of the Begonia Park view corridor should have priority over protection of the Begonia Avenue view corridor and the coastal bluff. The Planning Commission also offered guidance on possible design changes Intended to minimize these impacts. The proposed project generally reflects the direction provided by the Planning Commission. Lowering the development further down the bluff, limiting street level development to a single story, and pulling back elements would lessen impacts to the Begonia Park view corridor. Any street level development would completely block the view from Begonia Avenue at the terminus of the street; however, some views would remain further up Begonia Avenue. Total protection of the public views may not be possible without denying the owner reasonable economic use of the property. "Protection" under the circumstances of this particular application may have to be Interpreted as minimizing the extent of potential Impacts. To this end, staff concludes that the proposed project minimizes impacts to the public views to the maximum extent feasible. Therefore, staff considers the proposed '24 Megonigal Residence August 21, 2008 Page 6 project to be in substantial conformance with the public view protection policies of the General Plan. Neighborhood Compabbildy The General Plan contains the following policies relating to the visual compatibility of new development with the surrounding area: ■ `Require that residential units be designed to sustain the high level of architectural design quality that characterizes Newport Beach's neighborhoods in consideration of the following principles: • Articulation and modulation of building masses and elevations to avoid the appearance of "box-like" buildings • Compatibility with neighborhood development in density, scale, and street facing elevations • Architectural treatment of all elevations visible from public places • Entries and windows on street facing elevations to visually "open" the house to the neighborhood • Orientation to desirable sunlight and views" (t_U 5.9.5) "Require that new and renovated buildings be designed to avoid the use of styles, colors, and materials that unusually impact the design character and quality of their location such as abrupt changes in scale, building fort, architectural style, and the use of surface materials that raise local temperatures, result in glare and excessive illumination of adjoining properties and open spaces, or adversely modify wind patters." (t_U 5.6.2) ■ "Continue to regulate the visual and physical mass of structures consistent with the unique character and visual scale of Newport Beach." (NR 22.9) The Planning Commission described the previous design of the residence as "box - like," "bulky," and "excessively tall" and concluded that it was not compatible with the scale and massing of the neighboring development. The Planning Commission suggested that lowering the residence by excavating further down the bluff face would make it less bulky and reduce the size and massing. The Planning Commission also encouraged the addition of windows on the north elevation to increase the project's openness to the street. The neighborhood is characterized by single -unit dwellings with one or two stories above street grade and development on the bluff face extending down two or three Z5 Megonigal Residence August 21, 2008 Page 7 stories below street grade. Lowering the development further down the bluff and limiting street level development to a single story,. as is now proposed, would make the project more visually compatible with the surrounding development This is particularly true along Bayside Drive, where the visual simulations indicate that the previous design would have visually dominated the surrounding area. Furthermore, the addition of clearstory windows on the street elevation and the proposed planters makes the proposed residence more consistent with other street - facing elevations in the neighborhood. Therefore, staff considers the proposed project to be in substantial conformance with the neighborhood compatibility policies of the General Plan. Landform Protection The subject property is located on a coastal bluff. The General Plan contains the following policies relating to the protection of bluffs and other natural landfonns: `Require that sites be planned and buildings designed in consideration of the property's topography, landfonns, drainage patterns natural vegetation, and relationship to the Say and coastline, maintaining the environmental character that distinguishes Newport Beach." (LU 5.6.4) ■ "Preserve cliffs, canyons, bluffs, significant rock outcropping, and site buildings to minimize alteration of the site's natural topography and preserve the features as a visual resource." (NR 23.1) In addition, Criterion No. 7 of Ordinance No. 2007 -3 (Residential Design Criteria) is used to determine a project's consistency with General Plan policies relating to site planning and resource protection: "Site planning should follow the basic principle of designing development to fit the features of the site rather that altering the site to fit the design of the development. Whenever possible, natural features such as cliffs, canyons, bluffs, significant rock outcroppings, natural vegetation, should avoided or the extent of alteration minimized whenever possible. Adequate buffers should be provided to protect significant or rare biological resources." The Planning Commission concluded that protection of the Begonia Park view corridor should have priority over protection of the coastal bluff. Furthermore, the Planning Commission recommended lowering the development further down the bluff to lessen impacts to the Begonia Park view corridor and to reduce the scale and massing of the residence. Avoiding the degradation of public views and the scenic quality of the area was considered preferable to the protection of an already degraded landform. General Plan Policies LU 5.6.4 and NR 23.1 and Criterion No. 7 of Ordinance No. 2007- 3 require that consideration be given to landform protection in order to maintain the City's environmental character and to preserve visual resources. The coastal bluff in Zb Megonigal Residence August 21, 2008 Page 8 this area is severely degraded to the extent that it cannot be considered a significant visual resource. Further alteration would not significantly impact the City's environmental character, but would assist in minimizing impacts to public views. Therefore, staff considers the proposed project to be in substantial conformance with the landform protection policies of the General Plan. Modification Permit Approval or disapproval of a modification permit application is within the purview of the Zoning Administrator; however, this application is being referred to the Planning Commission so that the proposed project can be considered in its entirety. The subject property is located within the Single - Family Residential (R -1) District. The required front yard setback is 5 feet per Districting Map No. 16. Within the front yard setback, accessory structures are limited to a maximum height of 3 feet from natural grade pursuant to Section 20.060.030.A (Extensions into Yards — Accessory Buildings and Structures and Plantings) of the Zoning Code. The proposed planter walls and water feature exceed the 3 -foot height limit by up to 6 feet 7 inches, as measured from the natural grade. The height of these structures from finished grade would range from 1 foot 6 inches to 5 feet 5 inches. Right -of -Way Encroachment The proposed planter walls and water feature would also encroach up to 13 feet into the Begonia Avenue right -of -way. This will require an encroachment permit from the Public Works Department. The proposed encroachments are inconsistent with City Council Policy L -6 (Private Encroachments in Public Rights -of -Way), which limits such encroachments to 1 foot into the public right - of-way and to a maximum height of 3 feet, measured from the top of curb elevation or from sidewalk elevation. An encroachment permit application for such improvements would have to be referred to the City Council for action. The proposed stone driveway is also inconsistent with City Council Policy L -6. Paving will have to be limited to the minimum necessary for the driveway and a walkway to the entry to the residence. A standard sidewalk will also have to be constructed. All remaining areas will have to be landscaped. Water Feature The proposed water feature encroaches 4 feet 6 inches into the public right -of -way. The water feature includes an area for sculptures (shown as rectangular columns). No details on the sculptures were provided, as they have not been selected by the applicant. The Public Works Department believes that the water feature exposes the Z1 Megonigai Residence August 21, 2008 Page 9 City to unnecessary liabilities and would not support such an encroachment into a public right -of -way. Given this concern, staff recommends that the water feature be removed. Required Findings Section 20.93.030 (Required Findings) of the Zoning Code requires that the following three findings must be made in order to approve a modification permit: 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. Practical Difficulties Finding 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. When addressing this finding, the physical aspects of the property and /or improvements and their relationship to adjacent properties may be considered. In this case, the lot slopes from a curb elevation of 72.5 feet above mean sea level (MSL) down to an elevation of 64 feet MSL at the dwelling. The front portion of the lot needs to be filled in order to provide vehicular access to the residence and landscaping at street grade in a manner that is consistent with the development pattern of the neighboring properties. As a result, any structure in the front yard will exceed the 3 -foot height limit. Neighborhood Compatibility Finding B) The requested modification will be compatible with existing development in the neighborhood. When addressing this finding, Section 20.93.0353 of the Zoning Code states that "the sum of qualifies that distinguish the neighborhood from other areas within the City may be considered;" however, only "such characteristics as they relate to the direct Impact of Megonigal Residence August 21, 2008 Page 10 the proposed modification on the neighborhood's character and not development rights that would otherwise be enjoyed without the modification permit" may be considered. Most properties on Pacific Drive are developed with single - family dwellings with front yard setback designs that include landscaping and accessory structures at street grade. The proposed planters will be at comparable heights when measured from the finished grade. These planters, along with the driveway and entry walkway redesigned to meet City Council Policy L-6, will provide a front yard that is consistent with the character of the neighborhood. Health and Safety Finding 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. When addressing this finding, potential and averse impacts on persons and property in the vicinity may be considered. These include, but are not limited to, modifications that would significantly interfere with the 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 an invasion of privacy. With the recommended removal of the water feature and the driveway, entry walkway, and planters redesigned to meet City Council Policy L-6, the proposed modification 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. CONCLUSION Staff considers the project, as proposed, consistent with the Residential Design Criteria (Ordinance No. 2007 -3) and General Plan policies pertaining to public views protection, neighborhood compatibility, and landform alteration. This project has been determined to be categorically exempt under the requirements of. time California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) as the proposed project is one, single - family residence in a residential zone that contains no environmentally significant resources on site. However, Section 15300.2 (Exceptions) of the CEQA Guidelines provides that a `categorical exemption shall not be used for an activity where there is a reasonable Z4 Megonigal Residence Aught 21, 2008 Page 11 possibility that the activity will have a significant effect on the environment due to unusual circumstances." Should the Planning Commission find there is a reasonable possibility that the projects impact to public views, the neighborhood, or the coastal bluff would result in a significant effect on the environment, the Class 3 cannot be used. No action can be taken on the proposed project and either an negative declaration or an environmental impact report will have to be prepared. PUBLIC NOTICE Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site including the applicant, and posted on the subject property at least 10 days prior to this hearing consistent with the provisions of the Municipal Code. Additionally, the item was shown on the agenda for this meeting, which was posted at City Hall and on the City website. Submitted by: MlB1TS 1. Draft resolution 2. Story Pots Staldrig Plan 3. Proposed project plans 4. Infomnation on adiacent projects 5. Figure NR3 6. Letter from Applicant 7. Correspondence FWSERSIPI.AWhsredRA 'SiPA2 - WGnPA2007- 133VVmn1ng C=M-R *W 2M.M.21 MQ2007.080 PC Ipt FIMAI doe EX Exhibit No. 1 Draft Resolution) S1 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH FINDING A PROJECT IN COMPLIANCE WITH CITY COUNCIL RESOLUTION NO. 2007.3 AND ORDINANCE NO. 2007.3 AND APPROVING MODIFICATION PERMIT NO. 2007 -080 FOR PROPERTY LOCATED AT 2333 PACIFIC DRIVE (PA 2007 -133) WHEREAS, an application was filed by David R. Olson on behalf of Mr. Kim Megonigal, property owner, with respect to property located at 2333 Pacific Drive, requesting a modification permit to exceed the 3 -foot height limitation in the front yard setback to allow for planter walls and a water feature; and WHEREAS, City Council Resolution No. 2007 -3 requires that all new development comply with applicable policies of the General Plan and City Council Ordinance No. 2007 -3 sets forth design criteria to insure that all new single -unit and two -unit residential projects are consistent with the General Plan; and WHEREAS, a public hearing was held on August 21, 2008, in the City Hall Council Chambers, at 3300 Newport Boulevard, Newport Beach, California. A notice of time, place, and purpose of the aforesaid meeting was given. The application, plans, staff report, and evidence, both written and oral, were presented to and oonsidered by the Planning Commission at this meeting; and WHEREAS, the Planning Commission finds as follows: 1. The proposed project is in substantial conformance with the public view protection policies of the General Plan. The proposed project minimizes impacts to the public views to the maximum extent feasible by placing the development further down the bluff, limiting street level development to a single story, and pulling back elements to avoid impacts to the Begonia Park view corridor. 2. The proposed project is in substantial conformance with the neighborhood compatibility policies of the General Plan. Placing the development further down the bluff and limiting street level development to a single story results In a building that is consistent with the scale and massing of the neighborhood. Providing clearstory windows on the front elevation and planters in the front yard opens the project to the Pacific Drive and Begonia Avenue. 3. The proposed project is in substantial conformance with the landform afteration policies of the General Plan. General Plan Policies LU 5.6.4 and NR 23.1 and Criterion No. 7 of Ordinance No. 2007 -3 require that consideration be given to landform protection in order to maintain the City's environmental character and to preserve visual resources. The coastal bluff in this area is severely degraded to the extent that it cannot be considered a significant visual resource. Further Planning Commission Resolution No. _ Page 2 of 5 alteration would not significantly impact the City's environmental character, but would assist in minimizing impacts to public views. WHEREAS, Chapter 20.93 of the Newport Beach Municipal Code requires findings and facts in support of such findings for approval of a modification permit, which are presented as follows: In accordance with the provisions of Chapter 20.93, the granting of this application is necessary due to practical difficulties associated with the property. The strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code for the following reasons: ■ The subject property slopes from a curb elevation of 72.5 feet above mean sea level (MSL) down to an elevation of 64 feet MSL at the dwelling. The front portion of the lot needs to be filled in order to provide vehicular access to the residence and landscaping at street grade in a manner that is consistent with the development pattern of the neighboring properties. Any structure in the front yard will exceed the 3 -foot height limit, which constitutes a practical difficulty. 2. In accordance with the provisions of Chapter 20.93, the requested modification will be compatible with existing development(s) in the neighborhood for the folkwing reasons: ■ Most properties on Pack Drive are developed with single - family dwellings with front yard setback designs that include landscaping and accessory structures at street grade. ■ The proposed planters will be at comparable heights when measured from the finished grade. ■ The proposed planters, along with the driveway and entry walkway redesigned to meet City Council Policy L -6, will provide a front yard that is consistent with the character of the neighborhood. In accordance with the provisions of Chapter 20.93, the granting of this Modification Permit will not adversely affect the health or safety of persons residing or working in the neighborhood of the property and not be detrimental to the general welfare or injurious to property or improvements in the neighborhood based on the following: ■ The proposed water feature will be removed. ■ The proposed driveway, entry walkway, and planters are conditioned to be redesigned to meet City Council Policy L-6. O'Zi3 Planning Commission Resolution No. Pane 3 of 5 WHEREAS, this project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) as the proposed project is one, single - family residence in a residential zone that contains no environmentally significant resources on site. NOW THEREFORE, BE IT RESOLVED: Section 1. The Planning Commission of the City of Newport Beach hereby approves Modification Permit No. 2007-080 subject to the findings herein. Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 215' DAY OF August, 2008. ►,VA NOES: ABSENT: 7W Scott Peotter, , Chairman BY: Barry Eaton, Secretary SIA Planning Commission Resolution No. _ Pace 4 of 5 CONDITIONS OF APPROVAL The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval (Except as modified by applicable conditions of approval). 2. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. Prior to the issuance of a building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Department. 4. Disruption caused by construction work along roadways and by movement of constniction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 5. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 6. Construction activities shall comply with Section 10.28.040 of the Newport Beach Municipal Code, which restricts hours of noise - generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday and 8:00 a.m. and 6:00 p.m. on Saturday. Noise - generating construction activities are not allowed on Sundays or Holidays. 7. All improvements shall be constructed as required by ordinance and the Public Works Department. 8. An encroachment permit is required for all work activities within the public right -of -way. 9. All improvements shall comply with the City's sight distance requirement. See City Standard 110-L. 10. In case of damage done to public improvements surrounding the development site by the private construction, additional reconstruction within the public right -of -way could be required at the discretion of the Public Works Inspector. 11. All on -site drainage shall comply with the latest City Water Quality requirements. 12. Water meter and the sewer cleanout will be located in the public right-of-way. If installed at a location that will be subjected to vehicle traffic, each shall be installed with a traffic- grade box and cover. 13. The existing street tree(s) shall be protected in place. Unauthorized tree removal(s) will trigger substantial penalties for all parties involved. �65 Planning Commission Resolution No. 14. Paving in the public right -of -way shall be limited to the minimum necessary for the driveway and a walkway to the entry to the residence. A concrete sidewalk be shall be constructed per applicable City Standards. All remaining areas shall be landscaped. Non - standard encroachments within the public fight-of-way shall comply with City Council Policy l.-6, prior to the issuance of an Encroachment Agreement and Permit. 15. The proposed water feature shall be removed. 310 Exhibit No. 2 Story Pole Staking Plan 0000000 3 d IS O;s vj Exhibit No. 3 Proposed Project Plans 3h m g o ni a} residence design package . am 11 2333 pacific view d /V8 Corona d,el mar, Ca. 92625 11,410- ! , meganigal residence T333Psd11c �1eudmra, cwana dol mar o:ywl r:;aare 2' hulftmmabohq wane�R ummRao ..u.0 Rr.. -.p.0 aamuum Mr NR grcgmt101lWpNYNe W p9 RNRMRY •�� ftftw m� RRII�M�1 i1FORG rJ.—.'�I.L! LI stir r megonigal residence W 6333 ve��.wadY.. axone Me plan l�. megonigal residence 2353 pacift Waw erlve. wren from elevation E:1 rear elevation megonigal residence 2333 pacl0c vlaw drive, wmrz: left elevation Ic ( megonigal residence �" 2333 Pacific vlow:C 10. � rig ht elevation P�P°1 10 section a � A megan�g�'r��rierucs. Vf ri®e, tlrMa.«xnnatlel rim. rLa 11 C -7 section b 2333 pack vlan dmr .. YEiWIIIil=0 O�.BtlNI #11pl 1naf Yupu•tl, 2MB 12 g� megonlgal residence u1'w 23330Aa11uvifN?J1R . e: COrong C?I�niei section c i1y®4 13 I2TAJ E [LIEVATTONM D24 24' ABOVE E7OSTWC GRADE WX USE OFTERENT COLOR RIBBON ON ENVELOPE STAKES M AT N P NT &2 (tap al curb) STAKE ELEVATIONS O1 GaD' O 67.5' O82.33' ® 825' u ® e5.7 W' (tap of WON © 88.5 (� B &O' NM: CONNECT ALL STAKES WIN STRINGIME AND MOON npCATED BT: —•- NM: STMNHAES ARE NORMA- mou THE LOWEST POLE mLFSS DENOTED MTN'SLOPED" 1 AM 2.5NT A (Top W 2 (t p aT 2.i megonigal residence WMMW 2)39 peulic view du ....... mar d. �i�ii , Making plan rz.pz p of cuA) bullding e- �IWzxw Is •F SR1CK YM1 - mm uw -- UN w VM Yr x If. fWISN m ILWR G<. a•luSf PL[mR COXC. �' TE .A fW6M 5V9fMX lal INY'M6C 1C KMVI.T T.6 E@-p JE RdM SURVEYING INC. a xirnae. L A «ma A.9Ca LYC FMST WVE .• TOPOGRAPHIC SURVEY \'b � 'r \ wIn a<*.rao E.srPwrs •a mr RDTTm v .N. _r _ `fr - y' N]9g9••2.4 59.12 •`' mmcm r« as Y • v o-wP• ei mu Fvlp tL4I1 RiRVT10. pp1 M400 Pram w Pa Pww. ...waa as Ry PP kw,p Pw p I a 31 Tn R =m W cFeWtE1.RLt scare P.Tm Darns tbVLCT1oI uc raxlMRP suavET xm �mw rmury mrrnz Pmass c �wxa. vaunt nrn.. wr�T w.e. w Exhibit No. 4 Information on Adjacent Projects SO INFORMATION ON ADJACENT PROJECTS DATE APPLICATION ADDRESS LOT SIZE (SF) BLDG SIZE (SF) FAR HEIGHT (FT) PROJECT NAME 08/21/2008 MD2007 -080 2333 4412 3566 0.81 Under 24 Megonigal Pacific 08/03/2004 VA2004 -002 2319 5220 4939 0.95 228 24 D'Amato 06/21/2001 VA2001 -002 2315 5391.61 5292 0.98 26 to 35.4 Glabman Pacific 09/18/1986 VA1133 2301 5021.3 4524 0.90 27.5 (Avg) Westover Pacific 07122/1999 VA1228 2215 3140 2550 0.81 42 (Max) Bettingen Pacific J ro Exhibit No. 5 General Plan Map (Figure NR3) w • CTIY of NEWPORT BEACH GENERAL PLAN Figure NR3 COASM VIEWS LoWd ® PuhPC New Point *4r cQOsMNew Road Won Zone ©cap'y 0 as I MW wsw CVnw+pn 1e P0.0.0ClNW®BI: WIWI Omrt Oi/L�95 rT;1S.. �M`� A L !IPA al IRK! \11" Exhibit No. 6 Letter from Applicant W AW -12 -2008 03 :55P FROM: TO:G"3229 P.2 August 11. 2008 Russell Bunim city of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92858 -8915 RE: Magonigai Residence 2333 Pacific Ave. Corone del Mar, CA Dear Russell: M response to our mist;ellaneous meetings and oorwersallons as well as Planning Commission comments and community input we are enclosing a revised design concept for the Megonigai Residence on Pacific Avenue. This omoosel onmolias with the attnwahta harmrta an tha suhia.4 This revised concept Incorporates the following: 1) Mass and bulk were reduced at street level by removing the entire top floor. This square footage was reduced and redistributed so that it cascades down the hillside on the left side of the site as requested. This results In a single story appearance at street level which provides considerably Improved views from Begonle Park when compared to our previous submitted. There is also less impact to the view from Begonia Avenue, particularly from areas up the street where ft topography rises. 2) Overall reduction in the size of the proposed home which was already below the allowable size. 3) A greater emphasis was made to modify the OPpearence of the hone to blend more with the development pattern in the neighborhood as requested. This includes reduced bulk. added glazing. enhanced horizontal hies. and added planters to reduce scale and add interest, landscape, and a subtle water, sculpture feature. 4) A greater emphasis was made to break up the massing for a caeosding appearance from Boyside as requested. We believe that these changes strike a reasonable compromise between the Intent of the General Plan and the development rights of the owners and we look forward to a favorable review. As atways. please fag free to canted me if you have any Questions. David R. Olson, AIA, NCARB Principal CC: Patrick Alford, NB Planning Kim and Carolyne Megonigal 47 0 Wald Mina ca 921118A898 t W.45D.0098 1 948.150.0099 �1 WWIVA100801t umm Exhibit No. 7 Correspondence 0 Fw begonia park.txt From: LepO, David Sent: Monday, August 11, 2008 8:46 AM To: 'Earl McDaniel'; 'eaton727 @earthlink.net'• 'Robert C. Hawkins'; bhillgren@highrhodes.com; 'Scott Peotter'; 'Michael Lee Toerge'; 'cwunsworth @roadrunner.com' Cc: Alford, Patrick; varin, Ginger Subject: Fw: begonia park FYI regarding Megonigal residence. David Lepo, Director Planning Department City of Newport Beach (949) 644 -3228 w (949) 644 -3229 f - - - -- original Message---- - From: Kate Kearns [mailto: arykearns@mac.com] Sent: Sunday, August 10, 2008 3:44 PM TO: Lepo, David subject: begonia park Mr Lepo: I am writing because of my concern with the development of the Megonical property on Pacific Drive at the end of Begonia Avenue. I attended the last pplanning meeting this was discussed because of my concern. Unfortunately, I will be out of town on 21st and will not be able to attend. My husband and I are concerned with the major loss of public view from both the park and the Begonia Avenue corridor. The poles that were suggested at the last meeting have been placed and it is distressing to see how much of these views would be destroyed should the Me oinicals be allowed to build as planned. I have to sax it was even worse than we had envisioned. I firmly believe that if allowed to buiid as planned, this building would be against the General Plan adopted by the City of Newport Beach. I understand that the Megonicals have a right to build on their property, but they must do so in accordance with the rules and regulations stipulated by the city including the General Plan. I encourage you and all members of the Planning Commission to come to Begonia Park and view firsthand what the building of the Megonical residence would ruin for the general population should they be allowed to continue as planned. Thank you for your consideration in this matter. Sincerely, Gary and Kate Kearns 423 Begonia Avenue Corona del Mar Page 1 Material(s) received after the Planning Commission packets were distributed, or received at the meeting. These material(s) were distributed to staff, Commissioners and made available to the public. FILE COF Mark & Kristine Simon 2420 First Avenue, Corona del. Mar., CA 92525 April 1, 2008 i�PAftrMENr All City Council Members AUG 2 1 2pQ8 All Planning Commissioners 330 of Newport Beat, CITY OF NE" gEACH 3300 Newport t3{vd. Newport Beach, CA 92663 RE: Application for Variance VA2007-001 and Modification MD2007 -080 Dear Planning Commissioners and Council People, We adamantly oppose the application for Variance VA2007-001 and Modification MD2007-080 to allow the construction of a non conforming structure on the lot at 2333 Pacific Avenue at the end of Begonia and Pacific Avenues adjoining Begonia Park in Corona del Mar. AS you can see from the attached City documents, a similar Variance #1066 was denied by the Planning Commission and again on appeal by the City Council in 1978. Please stick to the precedent already set by the Planning Commission and City Council 30 years ago. Please deny any application for variance that would eliminate Public View from this precious common area for the people, Begonia Park. Thanks, & iCni4rax Sawa V(949),672 - 8322 F(949) 675 - 2156 www.MarkOSimon.com �6 COUNCILMEN MINUTES y kl y .p�yc t^ X 9 2 ;� 4y� step S�iP POLL CALL June 12, 1978 - INDEX Motion Ayes x x x x 1.1Z x x 5. Mayor Ryckoff opened the public hearing regarding the Ptelininarp gat ee prepare .bq the city er for the fiscal year 1978 -79, PutSMRL to Sect 02 of the Newport Beach City L'harsar� A report was prose from the City Manager regarding the 1478 -79 Bo Cheep List. A report from the Friends of OASIS seemed regarding the May 12, 1976 packet addenda. A letter from N. H. Rousselot was presented apposing any reduction in paramedic peraonnel. The hearing was continued to Friday, June 16 at 6:10 P.M. Budget 1978 -79 (2934) 6. Mayor Ryckoff opened the continued public bearing Griswold on the appeal of Mr. and Mra. Donald G. Griswold Appeal from the decision of the Planning CowLasion (2924) denying patience No. 1066, a requaat to permit construction of a single- family dwelling tbat exceeda the height limit In the 24128 Post Height Limitation Diatrict, with encroachment into required front yard setback on property at 2333 Pacific Drive, on the sout:hariy aide of Pacific Drive, adjacent to Begonia Park in Coruna del Mar, zoned R -1. A report vas Presented from the Community Develop- ment Department. _ Croidon Glass, orel,iteet representing Mr. and Mrs. Griswold, stated that the appellants were willing to continue the hearing. Motion x The hearing was continued to June 26. Ayes x X1. x x x x ORDINANCES FOR SECOND RBADIHC AND ADOPTION: 1. Ordinanca No. 1766,'baing, ' AN ORDINANCE OP THE CITY OF NEWPORT SUCH Harbor AMENDING SECTION 17.41.040 OF THE NEWPORT Reps BEACH MUNICIPAL CODE RELATING TO FEES FOR 0 -1766 PffiiITS FOR COI416RCLAL ACTIVITIES ON THE (396) MATERS OF NEWPORT HARBOR, � was prey for second reading. kotion x Ordinance No. 176 adopted. Ayes xxx xIlx xx 2. Ordinance No. 1767, being. - Rea Bldg 1 Records I AN ORDINANCE OP THE t.ITY OF SiESiPOR CH 0-1767 I AMENDING SECTION 15.35.040 OF THE HE (819) Ii I f ji Volume 32 - Page 130 0 , '7i 9 y� gi :ALL CALL pup 9 June 26. 1978 17 No Ay No Ab Ay Be At Al M Al A, Al Al M d' R A M A H d .envV.tS lmh v B Item 97 on the Proposition 13 reduction list for the General Services Department was considered, x and Councilman Relnnia made a motion to restore twice- a-weak trash collection ma the Saturday business collection ($347,983). :ion x Councilmen Hart made a substitute motion to to x restore twits- a-week trash pi'ek -uP In the beach as x x x x x areas - mast Newport to the Peninsula and Balboa Bent x Island, which action failed. as x x x A voce was taken on Co ncilman McInnis' motion, Be x x x ob motion failed. sent x [ion x mayor koff made 'Cl ion to approve the appropris n of $1602 to be held in reserve to provide self - ured retention of $500,000, , Insuring the against public liability up to $5,000,000, rich x Co• ceilwm Heather ma a substitute motion to as x x It appropriate an addLtiona $20,000 #or a 11abi11cy as x x x insurance package up to $1 D,OOD, wbict " Bent x motion failed. es x x x x x x A vote was taken on mayor Kyokoff main motica, sent x which motion a9rried. tion x Item 39 on the Proposition 13 reduction for x % x x the Police Department School Crossing SBSatds ' x x ($12,000). was restored. .seat x Ptdon x Resolution Ho. 9381. extending the terms and R- l Pee x x x x x I conditions of the Compensation Plan and Table of HAS I x Authorization of Permanent baployes Classes for Pseut x Fiscal Ysar 1977 -78 an amended; was adopted, ,tion x Resolution No. 9382. adopting the Budget for the A -9382 me x BE BE x x 1978 -79 Fiscal Year, was adopted. Bee x meat x 6._ Mayor, Ryckoff nyened. -the continued public bearing Griswold on the appeal of Hr. and Mrs. Donald G. Griswold Appeal_ from the decision of the Planning .Cosmession (2924) denying variance Ra. 1066; -a request to permit construction of a single-family dwelling that exceeds.the height limit in the 24128 Foot Height Limitation District, with encroachment into required front yard setback on property at 2333 Pacific Drive, on the southerly side of Pacific Drive, adjacent to Be$onis Park in Coruna del Mar, ronad.R -l. A report was presented from the, Community . Development Department. Volume 32 - Page 153 B 9 _.CALL 9 June 26, 1478 lA 7. Mayor $yckoff opened the public hearing in Gorden Glass, architect representing Mr. and compaction with the Spring. 1978 Weed.Abatement Mrs. Griswold, addressed the Council and stated Program in compliance with Resolution No. 9327.. they would like to have an opportunity to reassess A report was presented from the Piro Department. their plane since the council decided not to Susie Picker addressed the Council regarding the purebase their property, and Baked the Council weed problem on the paninsula. to deny the appeal without prejudice so they Inspector Haskell of the Fire Department gave a . can go back to the Planning Commission and start brief staff report. over. Motion Nation x x The hearing via closed after it vas determined The hearing was closed after it was determined .Ayes Ayes x x x x x x x that no one also desired to be heard.. Absent Absent s x motion x Raso No. 9383, confirming the report of The appeal of Mr. and Mrs. Donald G. Gris4old Ayes x x x x x x from the decision of the Planning Commission Absent x abatement xceds and other nuisenc*i and denying Variance No. 1066 was denied without reQuesting the iCOr- Cootrollar of Orange prejudice. Motion Nation x x Convey to enter emamt of each aseeaeamnt Councilman leather mad* a motion to waive the ,yes 'Absent Ayes x x x x : x x 'second filing fee for the Griswold's, which Noes z' x x x rolls, wax. adopted. motion failed. ' Absent : ORDIVYM FOH SaCOtO± Rwng) PTIOR. 7. Mayor $yckoff opened the public hearing in Weed compaction with the Spring. 1978 Weed.Abatement Abatement Program in compliance with Resolution No. 9327.. .(1SOF) A report was presented from the Piro Department. Susie Picker addressed the Council regarding the weed problem on the paninsula. Inspector Haskell of the Fire Department gave a brief staff report. ' Motion x The hearing via closed after it vas determined .Ayes x x r x x x that no one also desired to be heard. Absent s Raso No. 9383, confirming the report of 8-9389 the Fire of concerning the cost of the abatement xceds and other nuisenc*i and reQuesting the iCOr- Cootrollar of Orange Motion x Convey to enter emamt of each aseeaeamnt ,yes 'Absent x x x x x x referred to fn sal port on the County tax x rolls, wax. adopted. ORDIVYM FOH SaCOtO± Rwng) PTIOR. 1. Ordinance No. 1770, being, AN ORDIMANCa OF THE CITY. OF who Hotel ADDING CdAPM 10.45 ffii nXV "En Loitering LOLTagIWG' TO TITLa 10 OF TER NEWPORT CW .0-1770 MOWICIPAL CODE, (2983) • ' was presented for second reading. °p x Ordinance RD. 1770 was adopted. Ayes x x x x x x Absent x Volume.32 - Page 154. Varin, Ginger From: Lepo, David Sent: Monday, August 18, 2008 7:42 AM : 'Jackie' Cc FILE C O n v Cc: Alford, Patrick; Varin, Ginger �+ I Subject: RE: NO to building on BEGONIA VIEW PARK Ms. Peters Thank you for taking the time to comment on the proposed project. Your e-mail will be distributed to the Planning Commission for their considerationi at Thursday's public hearing. David Lepo, Director Planning Department City of Newport Beach (949) 644 -3228 w (949) 644 -3229 f -- Original Message---- - From: Jackie [mailto.jackie@theworkofart.com] Sent: Thursday, August 14, 2008 10:34 AM To: Lepo, David Cc: Varin, Ginger Subject: NO to building on BEGONIA VIEW PARK hello David, I'm writing to voice my *strong objection to building on the Begonia View Park* (2333 Pacific Drive.) I own the home on 700 Begonia and my friends, family and I enjoy Begonia View Park on a daily basis. *To eliminate this breathtaking view from public access would be like removing a jewel from Corona del Mar (CROWN OF THE SEA)* It has been Begonia View Park for decades and absolutely should remain so. Please make it an official public park and vote against building on this site. Thank you for protecting Corona del Mar's beauty for all to enjoy. Sincerely, Jacqueline Peters 700 Begonia Ave Corona del Mar 949 - 675 -1339 V _.e� J41I PC Ftaalos -- (i".' Page 1 of 1 From: Mark D. Simon [markdsimon@roadrunner.com] C O Sent. Monday, August 18, 2008 5:57 PM L To: Alford, Patrick Subject: FW: Application for Variance VA2007 -001 and Modification MD2007 -080 From: Mark D. Simon [ mairw:markdsimon @roadrunner.com] Sent: Sunday, August 17, 2008 9:57 AM To: 'Megonigal@kanco.corn' Cc: 'gardnemcy @aol.wm'; 'dkiFf@city.newport- beach.ca.us; 'mhenn527 @hotnwt1.com'; 'dwebb@city,newport- beach.ca.&; 'edsellch @adeIphia net'; 'curryk @pfm.corn'; 'parandigm @aol.com'; '1es11ejda1gle0ao1.com'; 'rhawkins @earthlink.neY; 'scott.peotter@taAghter.corr; 'jeff.cole@cushwake.com'; 'eaton727@earthlink net 'strataland@earthlink. net'; ' r. bumin@citp.newport- beach.ca.us'; 'g.varin @city.newport- beach.ca -us'; 'bhillgren@cox.net Subject: Application for Variance VA2007 -001 and Modification MD2007 -080 Dear Mr. & Mrs. Megonigal, Please reconsider your application at 2333 Pacific. It is not what your neighbors and the majority of citizens of Corona del Mar want. We want our Public Viewll Sometimes the benefit of the many out weighs that of the few. Think about what you are doing to your communityl It is not the right thing to build on that lot. Donate it to the City and take the tax right off. Ask the City to buy itl Even if you build the home and sell it, the community will still be scared forever. As homeowners on Waterfront surety you can appreciate the Importance of the view from Begonia Avenue and Begonia Park. Surely you were aware that the Griswold's were denied the right to build at the same location in 1982. The people are willing to fight your application all the way to the City Council; and that is our intention. It is not a personal issue. We just want our Public Viewl Sincerely, i4446 & xWdffim S6 -�J <i_.�me�r_..._�n�anm..... .u„•�_�r�• nnnrnn•nnnn +n�ay... ..�.+ar •..._n__.c_.. c_.. nnrnn�nnnn km -6 pC s(ao(0P dd W 9262528Q9 August 19,2008 Planning Commipsion, City of Newport Beach Barry Eaton, Secretary 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Gentlemens FILE COPY m REs 61egonical Residence Permit No. 2007 -080 (PA 2007 -133) Z 00 P3 I have lived at the above address since 1975. A' request was made to the City of Newport Beach in the Spring of 1979 by our fellow neighbor Donald Grisweldcto develops his property at 2333 Pacific Drive. Mr. Griswold was told the lot was X(T buildable. 0n their evening walks my husband urged Don Griswold to donate his small lot to Begonia Park. Unfortunately, this did not occur before Don died. I agree that 2333 Pacific Drive is _N&I buildable with these additional comments pertaining to Permit No, 2007 -080, Negonical Residence. 1) Do NQT allow curb cutting for 2 driveways. 2) Do NOT allot0 the requested height variance exceeding the 24 ft. height limit. 3) Do NE LT allow frontage set -back of only 5 ft. when the remainOHr of Pacific Drive adheres to .: a 15 ft. set -back. The f4egonocal residence does not bland into the exidt- ing Pacific Drive homes. The 3 story bcx -like structure would stick out like a sore thumb. Please consider the above comments in making your decision on the.Meganical residence and how it would inpsct the Pacific Drive - Begonia landscape. �. e . A-aw x,��,,_ �?Z Mark & Kristine Simon FILE COPY 2420 First Avenue, Corona del Mar, CA 92625 August 21, 2008 CM MAN 40 AUD All City Council Members All Planning Commissioners City of Newport Beach yNi/d34',�q�Y�1d 3300 Newport Blvd. AS 0 Newport Beach, CA 92663 RE: Application for Variance VA2007 =001 and Modification MD2007 -080 Dear Planning Commissioners and Council People, We adamantly oppose the application for Variance VA2007-001 and Modification MD2007 -080 at 2333 Pacific Avenue at the end of Begonia and Pacific Avenues adjoining Begonia Park in Corona del Mar. As avid users of Begonia Park we would like to voice our opposition to the granting of any variances for set back, height limitations, or to the General Plan for the applicants that would allow construction of a structure that would block any portion of the Public View from the Park, and from Begonia Avenue where many citizens come and park their cars and enjoy the view. (Please see attached Photographs from the Slope of the Park where the view Is blocked 100% by the Pink Pales, to First and Carnation at 75%, the two Park benches at 50% and 38%, the Center of the Park at 30 %, First and Begonia 30 %, and from Begonia Avenue at 40%.) We also oppose construction at this site as it would be an extreme and immediate danger to the children in playing in the Park below. A portion of the Park would have to be closed during construction. And, the slope is such that it might undermine the entire roadway. This Park is too important a resource for the residents of the flower streets south of PCH and it is irreplaceable. Please stick to the General Plan rules forbidding new structures from blocking important Public Views. Please deny any application for variance that would eliminate a portion the Public View from this precious common area for the people. Thanks, *4,):3 :i:> rA ")7 ",T-X Vz- i mll�. 'q 1 F From: orc406- nbpc@yahoo.com ��L� COPY Sent: Thursday, August 21, 2008 2:46 PM To: Varin, Ginger Subject: Begonia Park Development and View Our wonderful Begonia Park is a treasured asset for our community. The view from the park is an intrinsic part of what makes it so special and must be preserved for the community to continue to enjoy. I understand that "The view from the top of Begonia Park is designated as a public view in the new General Plan and as such protected." That is good news because it means the city has an obligation to protect the view. Most of the view would be obliterated by the proposed development. The only way to protect the Park's integrity is to stop development. The city apparently stood by for decades, knowing the threat this lot represented to the park. There must have been opportunities to acquire it, as the owners didn't see fit to move forward with development until now. However, the city shouldn't let past failures stand. You have both an obligation and a right to protect the interests of the community. Please stop this development, and begin the process to acquire this lot. (I am a homeowner and resident of Corona del Mar.) Thank you. 'M RECEIVED BY KANNING DEPARTMENT 21 August 2008 FILE COPY AUS212M City of Newport Beach Attn: Planning Commission CITY OF A' pT BE CH Subject Proposed Single Family Residence at 2333 Pacific Drive t`t RI DGHLrR This is the WRONG BUILDING in the WRONG PLACE. I respectively request the Planning Commission categorically deny any and all requests for variances from the established Building Codes I believe that there are significant reasons to deny the applicant requests for variances to the building code that would allow them to build the subject residence. The building violates the policies of the General Plan and CLUP in the protection of the view corridors down Begonia Avenue and the policy that prevents changes in scale, building form and architectural style not in character with the neighborhood. We have lived on Begonia Avenue for over thirty years and have enjoyed the view of the ocean that is available from our front yard and when my wife and I walk to the view point to enjoy the view. This will disappear if and when this building is allowed. The cubist architecture of the building is completely out of character with homes in the neighborhood. . The proposed project plans that were included as Exhibit No. 4 with the Planning Commission Report of the April 3 2008 meeting on this house have several inconsistences that enhances depiction of the house and deceives the viewer. The required fireplace flue that would extend above the roof line is not shown in the elevation view. In the plan view of the third floor the area in front of the house includes a completely surfaced parking area that extends over the sidewalk and parkway all the way to the street. When reduced to the proper size is this intended to be a parking area for cars not in the garage? The garage door will be approximately six (6) feet from the sidewalk. The required curb cut is not shown. Where will rain water coming down Begonia Avenue go when it gets to the curb cut and driveway? Where are the external utilities such as the air conditioner compressor and water softener? Where is the access to these types of equipment? The stairwell is built out to the property line beyond the ridiculous minimum five (5) foot setback. Where else in Newport Beach has a building been allowed to be built to ttte proR2MI line? The entire front of the house is shown as extending some two feet into the required five foot setback. The setback for the house next door is mostly 17 feet. Res ively 0 Richard and 504 Begonia Corona Del mar, California �L Page I of 2 FILE COPY Alford, Patrick From: KELLY NEFF [keWta@mac.com] Sent: Thursday, August 21.200812:05 PM To: eaton727 @earthlink.net; rhawkins @earthlink net; bhillgren @highrtiodes.com; scotkpeotter@tufighter.com; strataland@earthlink.net; cwunsworM@madrunner.com Cc: Gardner. Nancy; 5elich. Edward Subject Save Begonia lookout Point - Meeting 8121 Every day, in every town in America, municipalities, acquire land in order to preserve open space. No protections are more obvious and necessary as right now, for the Begonia Park Lookout Point. Even the poorest towns know the importance of parks and do all they can to create them. But we are not asking for a new park, we are just asking the City to step in and help us not lose a spot on the park that has always been in public use. This spot has been a Lookout Point for all to visit has been designated as such on maps, has been photographed in publications of Newport Beach, and is, quite frankly, totally irreplaceable. Even years ago, before the latest General Plan and quality of life initiatives, the City of Newport Beach had the foresight to prevent construction on this site by continuously denying all variances and modification requests to develop this site. Furthermore, the City decided to acquire the site and was close to consummating a transaction with the owner. Unfortunately, the owner passed away and as part of his estate the property was sold. in any event, the City's policy has always been to retain this Lookout Point as part of the park. Now more than ever with public view protections in the General Plan, the City of Newport Beach should maintain this policy. It is clear that proposed construction on this particular site, 2333 Pacific Drive, is totally conhsry to public view protection, neighborhood compatibility, landform protection, and preservation of the view corridor. Other than the lookout point on Ocean Drive, this is the most visited Lookout Point in the entire area. And while the Ocean Drive lookout point is frequented mostly by tourists, the Lookout Point of Begonia Park is mostly frequented by local taxpaying constituents of Newport Beach. It is our responsibility, right here, right now, not to be the ones who lost the Begonia Park Lookout Point. The old timers will tell you that this was never supposed to be a buildable lot, it just slipped through the cracks when Pacific was subdivided. Since the owners always allowed the space to M Page 2 of 2 be used as part of the connecting park, with a park bench on it just like the rest of the park, as well as steps from this spot to the lower park, there was no need for the City to formally take it over for many years. However, now the need is here, and if the owner's plans are approved it will be too late for the City and the community to do anything, and we will all be partly responsible for allowing this beautiful landmark to be destroyed. This unique and irreplaceable Ocean Lookout Point is a prized and well - publicized landmark of Corona del Mar, which has always been used by the entire community for view - gazing as part of the park. Obviously, construction that obscures this space would completely violate a General Plan which values public view protections particularly on "Ocean Facing" Streets. Any narrow interpretation of the General Plan that fails to preserve this Lookout Point as part of the park misses the spirit and intent of the latest General Plan and is therefore incorrect. There is no way that building on the ocean view Lookout Point can be consistent with the General Plan policies promoting public view protection, neighborhood compatibility and land form protection. Obliterating the Lookout Point is the antithesis of what the General Plan aims to preserve. We must consider the impact that approving these plans will have upon hundreds of local residents who have enjoyed and utilized this space for years, even generations. Since the last meeting in April over 200 additional local residents have signed various petitions urging the Planning Commission and City Council to protect this public view landmark, bringing the total to nearly 400. We urge the Planning Commission to deny the modification request and we encourage CDM Council Representatives to advocate for the rights and beliefs of hundreds of their constituents and recommend that the City make a proposal to the owner/builder to acquire the site so that it can be permanently incorporated into the park. Thank you very much for your time. Sincerely, Kelly Neff, 401 Begonia Ave. Page 1 of 3 FILE COPY Alford, Patrick From: jcbkd @aol.com Sent: Thursday, August 21, 200812:27 PM To: eaton727@earthlinknet; rhawkins @earthlink .net; bhillgren @highrhodes corn; scot.peotterCtaxfighter.00m; strataland @earthlinknet; cwunsworth @roadrunner.com Subject: Public Notice PA 2007 -133 Ladles and Gentlemen Regarding Public Notice PA2007 -133 Modification Permit No. 2007 -080, please incorporate this latter Into the public record regarding this review. We would like to urge the planning department not m grant the modification permit due to the disproportionately harmful consequences to the community, the other prep" owners, and Me City of Newport Beach, both in the present and future generations. Moreover, any construction on 2333 Pacific, the Lookout Point of Begonia Park, which has always been used by the entire community for view gazing as part of the park, is a well publicized landmark of Corona del Mar, and is completely unique and irreplaceable, would not be consistent with the General Plan which values public view protection and neighborhood compatibility. Any narrow interpretation of the General Plan which fails to preserve the Lookout Pant as part of the park misses the spirit and intent of the latest General Plan and is therefore wrong. It was the intent of the City of Newport Beach as much as 30 years ago to acquire this site if construction were to be contemplated on it Now more than ever, the City should maintain this policy. Hopefully, the Panning Commission will table the discussion of the merit of the plans, and ask the City to make a proposal to the owner/builder to acquire the site so that it can be permanently incorporated into the park This particular site requesting modifications is located at the edge of Begonia Park and appears to be part of the park identified on many different maps as "a lookout point". Because it also has had a park bench on it for over 30 years, identical to all the other park benches along Begonia Park, it was always used by the public as part of the park, and everyone always assumed it was an integral part of Begonia Park to be enjoyed by the public. We are not Just talking about any site. We are talking about a tiny piece of land which to the community has always been one of the best features of Begonia Park, the jewel in the crown of the sea, the jewel of Corona del Mar. For more than 30 years this exact spot, and the city bench on it served as the lookout point for Begonia Park. As The Lookout Point it was featured in countless photographs of Corona del Mar, including the widely marketed book -- 'Newport Beach: Images of America". This is our last chance to save this lookout point from being gone forever. For years, in response to countless modification requests for this lot, the City has denied such requests under the thinking t hat while the owner has the fight to build, the City is not required to help the builder at the expense of everyone else. The owner may have the right to build, and he can and may build without any modifications. However, hopefully, without being granted the modification permit he would be more inclined to do the right thing, and negotiate with the City, the residents, and the community, to resolve the situation. He could trade it for another piece of property owned by the City, as was almost done with the previous owner before he died and his estate sold the lot, or he could sell the property for preservation. Nowadays, this type of open space is rare and worth preserving above ail. Its value for the marry for eternity far exceeds its value to one person. This latest request for modification in the setback area is not justified under any scenario. Encroaching on the setback area will further impair the feeling of openness and space on Pacific and as a result, will not only block the view down the Begonia street corridor and at the Lookout Point but will aggravate the problem by bloddng off the arm right by the sidewalk. In addition, the proposed encroachment also poses serious safety issues due to reducing the visibility and accessibility in an already dangerous blind curve. We are also opposed to the tall %%ter feature" being proposed in the setback area which is bound to be noisy and splash water and possibly cause slipperiness and harm passers by. The point is, considering the fact that the contemplated construction on the Lookout Point is bound to harm the community, the builder should not be allowed to receive any concessions from the city, and not be allowed to exceed any height limits, both on his property, and especially on the front yard setback area which does not belong to him. Any type of height modification has never been an option considered Page 2 of 3 to have any remote justification on this site because it is dearly not a necessity for the development of the site. It would only grant the developer special privileges and advantages over his neighbors, while disadvantaging residents and the general public. This is not equitable or in the spirVintent of the varlance/modificatbn process. Moreover, the City is under no obligation to make any exceptions or special concessions to allow this bu alder to build anything higher or bigger than he is allowed to build with no special approvals. The current owner surely knew the obvious physical constraints of the site when he chose to acquire h. Because variances and modification requests have been repeatedly denied by the City in respect to this site, and it was virtually a certainty based on all precedence that none would be granted in the future, the site has always sold at a discounted price reflecting its limitations. Because of this, no hardships are caused when the variances and the modifications are denied. This preexisting condition has always been reflected in the sales price when the property is sold. The current owner /builder is free to build within the current regulations, and his property rights are not being violated. As a neighbor to the site in question for over 26 years, I was surprised to hear that although the City has repeatedly rejected all variance and modification requests for the site at 2333 Pacific Drive, the currant owner is now asking the City to permit walls that exceed the 3 -foot height limit In the front yard setback. AN ft same reasons for the previous denials still exist and undoubtedly always will. It is against all the rules, and not consistent with the general Alan. Open space =2 Oand views are now dearer and mom precious than ever, and the preservation of the environment and quality of life has become even more of a priority. it Is therefore unthinkable that the City will be more likely to allow variances or modifications at this time as compared with the past Most of the residents and the public are of this opinion. They are sure any requests for exceptions will be denied. However, everyone is weary. They are tired of always being on guard in relation to this lookout point that controls the views and affects their quality of life. Unfortunately the community goes through this ordeal every ten years or so. Each time, during the process, a terrible cloud of anxiety and helplessness engulfs the entire community for once again having to get up in arms to protect the crown jewel of Corona del Mar, the Begonia View Park. The emotional and economical costs of each of these repeated variance application processes are high, for the pubic as well as for the City. Having already repeatedly denied all variance and modification requests on this site, wouldn't it be wise for the City to deny any exceptions on this site on a permanent basis as disproportionately harmful to the entire community, and thus save all the pain and suffering as well as the expense in time and money of this situation? When the current owner acquired the property, he could not have truly expected to gain variances or modifications of any kind based on history--2 Oand precedence. There was widespread knowledge of the denied variances, modification requests and denied plans and consequently the owner paid such a heavily discounted price. He should still be given the opportunity to build within the current constraints as long as his plans are in total conformance and architecturally compatible, or, hopefully, he might consider selling or trading the site to the City and the residents to save as part of the park where it belongs, for future generations to enjoy, respect and appreciate. After all these years, the park bench has just been recently removed from the site, but everyday many still visit the spot to relax and enjoy the view. They are all desperate to do anything possible to save their favorite jewel. In reference to your question regarding compliance with the General Plan, we feel that the proposed new construction is not in compliance with the provisions which protect public view, neighborhood compatibility and land form protection. Construction will block the view along the Begonia street corridor, and also from Begonia Park. Most importantly, being connected to Begonia Park, this property itself has always been used as a park, with a park bench on it, was considered part of the park, and served as the Lookout Point of the20park, so obviously any new development on this small piece of land will not be In compliance with General Plan policies related to any of the above parameters. Keeping this property as open space is clearly compliant with the policies of the General Plan. The City felt this way even years ago when Corona del Mar was much less developed. Even over 20 years ago, before the new and strict General Plan, the City discouraged construction on this property and negotiated to buy it At the time, one of the previous owners of the subject property attempted to gain variances and modifications from the city. Upon review, the City in its wisdom denied all such requests and offered to acquire the subject property to make it a permanent part of the park to the benefit of all the current residents and future generations, as open space for the City. Unfortunately, before the City could consummate the transaction with the owner to acquire the property, the owner passed away and his heirs sold it. Just like the original owner who had acquired the property from the City for very little because of its shortcomings, when his heirs sold the property, the buyer paid a small fraction of the surrounding property values because of its history and the certainly that variances and modifications would not be granted as indicated by precedence. For example, the last publicly recorded sale of this property took place in 1997 when it sold for $300,000 which was clearly significantly less than the market price at the time for a buildable lot with ocean view on Pacific Drive. Although it is before my time, I understand that a similar project was also proposed in the 1960's and was denied by the City. Maybe some of the longer term residents of Corona Del Mar can recall this. fz i Page 3 of 3 In order to adhere to Its latest General Plan which promotes public views and neighborhood compatibility the City needs to make every effort possible to prevent construction on the Begonia Park Lookout Point In line with its longstanding policy regarding this site, the City should not grant any vadanc es or modifications and consummate negotiations with the owneribuilder to either trade or purchase this lot so It can forever stay in the public domain and continue permanently to be used as it has always been, a part of Begonia Park, and the Lookout Point for the entire neighborhood. Thank you for your time and consideration. Sincerely, James Neff Get the MaoQuest Toolbar. Directions, Traffic, Gas Prices & Morel PA2007 -133 COASTAL BLUFF Attachment D Draft 08129108 Planning Commission Minutes Planning Commission Minutes 08/21/2008 Page 2 of 8 )eive to 75% of post- disaster reimbursement costs unless the City incorporates LHMP into the Safety Element. When incorporated, local jurisdictions may ;eive up to 100% of post- disaster reimbursement costs. s. Whelan gave an overview of the staff report. mmissioner Hillgren ascertained having the report by reference was sufficient, which staff replied, yes. iblic comment was opened. iblic comment was closed. Mon was made by Commissioner Hawkins and seconded by Commissioner :Daniel to recommend approval to the City Council to adopt the General Plan nendment incorporating the Local Hazards Mitigation Plan (LHMP) into the ifety Element (PA2008 -131) with the following corrections: • Fifth Whereas clause, after General Plan, insert .... "to incorporate the Local Hazards Mitigation Plan "... • Add a seventh Whereas clause as follows: 'Whereas, the adoption and implementation of the Local Hazards Mitigation Plan (LHMP) will advance the health, safety and welfare of the City and its residents by implementing programs to address disasters, develop educational programs for citizens, preserve natural systems and develop appropriate local partnerships to address disasters." aff agreed to these recommendations. immissioner Unsworth suggested adding in the section of Local Hazards ligation Plan in the second line, ....is and, as updated from time to time, will ntinue to be incorporated in the Safety Element. e maker and second of the motion agreed. Ayes: I Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge and Hillgren �IgNoes: None bsent: None IBJECT: Megonical Residence (PA2007 -133) PA2007 -133 2333 Pacific Drive request for a modification permit to allow planter walls and a water feature to Approved reed the 3 -foot height limit in the front yard setback in association with the nstruction of a new, three -story single - family dwelling. The property is located in Single- Family Residential (R -1) Zoning District. he Planning Department also requests a determination on whether the proposed project complies with City Council Resolution No. 2007 -3, which requires that all new development comply with applicable polices of the General Plan. q4 file: //F: \Users \PLN\Shared \Planning Commission \PC Minutes\mnd08212008.htm 09/16/2008 Planning Commission Minutes 08/21/2008 inning Manager, Patrick Alford, gave an overview of the staff report noting ange from the original application that included a variance, which is no for luested. He added that the origin of the parcel in a subdivision map of 1 )wed that this parcel was once part of the right -of -way of Pacific Drive. R s a street vacation in 1964 that actually created this property. He noted that blic Works has concluded that the water features are in the public right -of i due to the unnecessary liabilities to the City, do not support - roachment. Therefore, staff is asking that this be deleted from the props eject. Staff recommends approval of the modification and determination that eject is in substantial conformance with the policies of the General Plan. ssioner Unsworth asked if the applicant agreed to eliminate for the planters. Alford answered he was not aware of any response. following information was provided by staff as requested by the Commission: • Access from Bayside Drive - not viable due to the retaining wall on thi property; the applicant would have to have a driveway access throug Begonia Park. • Coastal view road designation for Begonia Avenue and Bayside Drive neither have the designation of public view roads in the General Plan. • Discouraging materials that could raise local temperatures - copper roof an tinted windows are fairly common in residential construction and staff is nc aware of these presenting problems with glare or temperature impacts. • Design guidelines - the project has to conform to the site rather tha adjusting the site to accommodate a particular design. Given the directio by the Commission allowing additional alteration to the landform in order t protect or minimize the view impacts. • Use of turf block - a previous project referred to had to do with providin non - standard material in back of sidewalk. An encroachment permit woul be needed for non - standard materials for back of sidewalk to garage. • Bench in the back of park property moved as referred to in a letter receive today - staff is not aware of when or who moved this bench. • A citizen's email referring to countless modifications requests for this lot - a application was made in 1973 for a variance but there are no othe applications for modifications on file. • If this project was disapproved from the standpoint of the view corridor an no development could occur that would not impede the view, what would b the responsibility to the landowner - if there was no use of the property, th City could be sued for fair market value of the highest and best use of th-, property. • If designated as view corridor, how to prioritize over private property rights interpretation of the policy to the site and to the application. Sta recommendation for this site is that protection should be created to minimiz the impacts to the view corridor, recognizing that some impacts may stl occur. • Water feature and raised planter area - encroachment into the setback i why the applicant is asking for a modification. One planter wall wa designed to provide a guardrail from a second living area down below an was a requirement by the Building Department. Page 3 of 8 is- file : //F:1Users\PLN\SharedlPlanning CommissionlPC Minuteslmnd08212008.htm 09/16/2008 Planning Commission Minutes 08/21/2008 The setback is designated on a Districting Map for this block. Megonical, property owner, noted: Agrees with staffs presentation. The water feature was added to make the front of the house presentable. However, if it is determined this is not necessary, we will it out. Olson, architect for the project, noted: We have made changes as requested by both staff and the Commission. A variance request has been removed from the original application. Planter area and water feature in the front were added for visual interest a: there was concern about massing on the front. The driveway and planter layout will be addressed by a landscape architect. The water feature had been added as a result of comments by thi Commission, if it is removed, then we will address the aesthetics in different manner of landscaping. Because of the terrain in the back, the two stairways coming up from thi lower levels are required to satisfy egress and access requirements for fin suppression and safety. ny Brine stated that the planter encroaching into the right -of -way and the plan ight are both covered by Council policy. Staff can not make a determination prove the planters as that would go against Council policy and it is for them ake a determination. Whatever does not comply with Council policy would ha be removed from the plans. Comment was opened. in opposition to this project for similarly stated reasons: Simon, local resident - presented and explained pictures taken from the F i Fleming, local resident - noted a Commissioner should recuse himself i ig decisions on this project due to a conversation she overheard with on Gorrie, local resident - presented and explained pictures taken from that depicts the view hindrance with the proposed built project and he Peters, local resident. Balderston, local resident - presented and explained pictures taken four e years ago. it Bell, local resident. mes Bissill, local resident. lie Sherwin, local resident. If Maerou, local resident. n Vandersloot, local resident. ke Rogan, local resident. illy Neff, local resident. Park is used every day. Page 4 of 8 2A file: //F: \Users \PLN\Shared\Planning Commission\PC Minutes\mnd08212008.htm 09/16/2008 Planning Commission Minutes 08/21/2008 • This project does not protect or enhance the public view and is against t General Plan. • Construction on this site would present danger to the children playing in t park below; and, the park would have to be closed during constructi thereby presenting hardship to all the neighbors. • 5K race goes by there every year. • This is a beloved and cherished location and should be protected as a vi( corridor. If this project is built, there will be a lot of people hurt due to t loss of view. • The City should purchase this lot and keep it as a park. • The view has been enjoyed for 104 years and it should be given to tl people by the City buying the property. • Building on this site should adhere to the size and shape of the lot. • This land is smaller than other properties and was purchased for a small amount. The applicant is not entitled to put a house the same size ai scale as the neighboring lots as the neighbors built their homes before tl adoption of the General Plan. • The wall will encroach into the public right -of -way comer and unacceptable and will be unsafe. • Referencing a book, Newpo Beach. Images of America, noted pictures coastal and historical importance taken from the lookout point at the com of Begonia Avenue and Pacific Drive. This landmark view might not exist future times. • The community wants this to remain a park and is considered the back ya for many surrounding homes. • The impact of this decision will be in force for years to come and irrevocable. • Should have environmental documentation for this project. Pictures we presented depicting environmental sensitive habitat area. This proje should be heard by the Coastal Commission due to the loss of views ai environmental impacts. • Petition presented in favor of protecting this local view. Megonical noted that everyone; including the City, had an opportunity to property. They have a right to build on this property. Story poles led, as directed by the Commission, to depict the impact on the view. A: his rights as a property and homeowner be protected. comment was closed. Toerge noted it is common practice to meet with the applicant a meeting. nmissioner McDaniel noted he discusses issues with people in order to n informed vote on matters. These discussions with the applicant are impo I necessary. He then asked about the square footage that is allowed on Alford answered there is no variance for size and the house is not bigger t would normally be allowed. Harp, at Commission inquiry, noted from a CEQA standpoint without ification there would be no need for CEQA analysis and they would be able Page 5 of 8 7 file: //F: \Users \PLN\Shared\Planning Commission\PC Minutes\mnd08212008.htm 09/16/2008 Planning Commission Minutes 08/21/2008 is in and pull permits. This project is in a categorical exclusion zone, so it required to go to the Coastal Commission. Lepo, at Commission inquiry, noted that the Commission can only approve act for what is up to the public right -of -way, which is a subject of encroachn would have to be heard by the Council. continued on encroachment agreements. , nissioner Unsworth, referring to page 2 of the draft resolution, asked at Council Policy L-6 and if the referencing items should be eliminated ling in the right -of -way is not within Commission purview. Alford stated non - standard improvements can be approved by Council. rence requires meeting City standards or the applicant is subject to L -6. f report identifies the types of permits that are problematic and should continued on the need for modification of the planter within nmissioner Toerge then discussed the slope of the site and the modification grade for the garage and the planter(s). Harp, at Commission inquiry, noted the primary issue is for a determination formance with the General Plan and if you told the applicant that no project property could comply with the General Plan then you would be in a regulatc ig type of area. :ommissioner Toerge noted that making a determination of consistency with the 3eneral Plan means the whole Plan. Part of the Plan allows building a house of an R -1 lot. The people to make a choice to buy this property is the City Council iot the Planning Commission. Our focus is on the planning. By requiring thf applicant to come back with a plan that fits within the height restriction is an effor o protect public views. The property owner has the right to build on this lot that i; n the categorical exclusion zone. 'erring to pictures presented by Mr. Gorrie, he suggested that a view ea: top of the property second deck be required in the conditions so that sible a view easement is given. on was made by Commissioner Toerge and seconded by Commissic ran to approve a modification permit to allow planter walls with no w are to exceed the 3 -foot height limit in the front yard setback in associa the construction of a new, three- storey single - family dwelling with Ning additions to the draft resolution: . Require a dedication of a view easement described to be above the area the deck to protect that view in perpetuity from the park beyond the scope this building that is being built within the height restrictions. nissioner Toerge suggested this view easement to protect the view al is being proposed so that nothing else can be built or stationed there block the view. Page 6 of 8 file : //F:1Users\PLN\Shared\Planning Commission\PC Minutes\mnd08212008.htm 09/16/2008 �r A Planning Commission Minutes 08/21/2008 Alford clarified the area described is a patio area, does this incl scaping and restriction on patio furniture height? . Megonical stated if this is what it would take to get this project approved, uld agree to a view easement as what he is proposing is what he wants Id. He recognized that this would include future owners from building up as v restricting tall trees /landscaping. Peotter asked staff how this condition would be crafted and enforced. Lepo answered the applicant would prepare that legal instrument subject oval by the Planning Department and the City Attorney's office with the prol •ences to the plan and within the building envelope. Use of the deck a oor patio furniture are not restricted. ssioner Toerge noted the General Plan calls out where feasible able to seek view easements for the benefit of the public. irman Peotter clarified that this proposed new condition would require cation of a view easement in perpetuity, the form and legal description to ared by the applicant with review and approval by the Planning Departm( City Attorney's office. Trees will not be allowed above the deck height. )mmissioner McDaniel noted his support of the motion stating this is an imps at is difficult to vote on. In this case, we mitigated everything we could within t es and standards. It is my opinion that these people have earned the right ild on their property. mmissioner Unsworth noted his support of the motion. He would hate to los( view if he lived in the community, but it is up to the City Council if they want IN mmission to reduce the building envelope as provided by the Zoning Code t( :)w for public views, then we should have something clearer than we have now. ien Ordinance 2007 -3 was passed, the Zoning Code that created the envelop( is in existence. Statutory construction assumes that legislative body is aware o the existing laws at the time it passes new laws. What we would appreciate is ( sition from the City Council stating whether or not they intend to reduce buildinc velopes in order to enhance public views. iissioner Eaton agreed this is a difficult issue. The City Council has to do more with this situation than the Commission can. nmissioner Hawkins noted this site is owned by a private party who has t under the General Plan and Zoning Code to do what he can based uF nmission determination. The suggestion for the view easement is important are protecting the view as much as possible. He supports the motion. Lepo clarified it is the intent for trees on that lot to be no higher than ation of the top of railing. That plane would be projected all the way to erty lines all the way around. As far as furniture on the deck, it is allowed. answered, yes. Commissioners all noted that they had visited the site. Page 7 of 8 9 file: //F:IUsers\PLNISharedlPlanning CommissionlPC Minutes\mnd08212008.htm 09/16/2008 Planning Commission Minutes 08/21/2008 Page 8 of 8 Ayes: Eaton, Unsworth, Hawkins, Peotter, McDaniel, Toerge and Hillgren Noss: None Excused: None ADDITIONAL BUSINESS: ADDITIONAL BUSINESS a. City Council Follow -up. No report b. Planning Commission reports. Commissioner Eaton noted a meeting of the General Plan Implementation Committee. The topic was the fair share fee updates for street and highway improvements. This item was continued to the first week of September. C. Announcements on matters that Commission members would like placed on a future agenda for discussion, action, or report. None. d. Requests for excused absences. None. ADJOURNMENT: 9:00 p.m. 1A DJOURNMENT BARRY EATON, SECRETARY CITY OF NEWPORT BEACH PLANNING COMMISSION V file: //F: \Users\PLN\Shared\Planning Commission\PC Minutes \mnd08212008.htm 09/16/2008 Attachment E 04103108 Planning Commission Staff Report /0l CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT April 3, 2008 Meeting Agenda Item 5 SUBJECT: Megonigal Residence (PA2007 -133) 2333 Pacific Drive • Variance No. 2007 -001 • Modification No. 2007 -080 APPLICANT: David R. Olson, Architect PLANNER: Russell Bunim, Assistant Planner (949) 644- 3233, rbunim (&citv.newoort- beach.ca.us INTRODUCTION The Planning Department has an application on file for a variance to exceed the height limit and modification permit for encroachment into the required front yard setback for a new, three -story single - family dwelling proposed for a vacant property at 2333 Pacific Drive. This presents a number of issues not only relating to the variance and modifications, but the proposed project's consistency with the General Plan and the Local Coastal Program. The Planning Department is seeking direction from the Planning Commission before bringing the project back for Planning Commission action on the application. Project Setting The project site is located on the bluff (southerly) side of Pacific Drive at the comer of Pacific Drive and Begonia Avenue. Most lots on the bluff side of Pacific Drive are through -lots extending down to Bayside Drive; however, the project site only extends approximately half the distance to Bayside Drive where it abuts two lots that cover the remainder of the slope down to Bayside Drive (See the Vicinity Map). The property is approximately 4,412 square feet in area with a pentagonal shape. The topography of the lot is sloping from Pacific Drive at an elevation of approximately 72.5 feet above mean sea level down to the rear property line at approximately 25 feet above mean sea level. (See Exhibit No. 2 for proposed project plans for a topography survey with elevations) The property is located on a coastal bluff adjacent to a residence to the west, two homes adjacent to Bayside drive to the south, a park to the east, and the intersection of Pacific Drive and Begonia Drive to the north where more residential property exists across the street. The lot is currently undeveloped and vacant. Megonigat Residence April 3, 20D8 Page 2 Project Description The proposed project includes the construction of a new, three -story, single - family dwelling with a total floor area of 3,717 square feet, which includes a 402 square -foot, two -car garage. A description of the rooms and outdoor areas with square footages is provided in Table 1 below. TABLE 1 STRUCTURE OUTDOOR SQ. FT. TOTAL LEVEL ROOM TYPE FT SQ. . AREA (Approx) SQ. FT. Media, Wine, Study, Storage, 2 Terrace 1 FIRST FLOOR Bedrooms,2 1,549 186 1,735 Bathrooms, Stair /Elevator _ Garage, Foyer, Great Room, Bar, SECOND FLOOR Dining, Kitchen, 1,215 Terrace 2 287 1,502 Powder, _ Stair /Elevator j Master Bedroom, THIRD FLOOR Master Bathroom, 953 Terrace 3 124 1,077 spa, Laundry, Stair /Elevator PROPOSED 3,717 597 4,314 TOTAL PERMITTED BY ZONING CODE 4,279 LOT SIZE 4,412 The height of the proposed project ranges from 22 feet at the front (Pacific Drive - facing elevation) to 53 feet 3 inches at the rear (Bayside Drive - facing elevation). The proposed variance would permit the rear portions of the master bedroom and master bath on the third floor to exceed the 24 -foot height limit by approximately 4 feet 6-inches to fO feet 6 inches. The front elevation extends 2 fset'to 5 fiet into the required 5 -foot front yard setback. The proposed project would conform to all the required property development regulations of the Single - Family Residential (R -1) Zoning District, with the exception of height and required setbacks. Megonigal Residence April 3, 2008 Page 3 LOCATION GENERAL PLAN ZONING CURRENT USE ON -SITE Single Unit Residential— Single - Family Residential Vacant, undeveloped land Detached (RS-D) (R -1 NORTH Two -Unit Residential (RT) Two Famillyy Residential Residential SOUTH Multiple -Unit Residential Multiple - Family Residential RM Residential MFR EAST Parks and Recreation R -1 Begonia Park (PR) WEST I RS -D I R -1 Residential Megonigal Residence April 3, 2008 Page 4 DISCUSSION The Variance Variances are sometimes necessary in order to preserve substantial property rights. Variances are limited to those situations where the specific physical characteristics of property make it difficult to develop under standard property development regulations. Such physical characteristics may include the property's size, shape, dimensions, the location of the existing structures, and geographic, topographic, or other physical conditions. The project site would appear to be a likely candidate for a variance: it is below the minimum lot size of 5,000 square feet; it has an unusual, pentagonal shape; and over half the property consists of slopes of 50 percent or more. However, staff is concerned that the obvious physical constraints of the project site may be used to justify exceptions to the height limits even though if they are not unduly constraining the site, thus allowing development in excess of that which would be achieved under ordinary circumstances. A variance can only be granted to bring the disadvantaged property up to the level of use enjoyed by nearby properties in the same zoning district. To do otherwise would constitute a grant of special privileges that is inconsistent with limitations upon the other properties. Conditions must be imposed on a variance when necessary to maintain parity between a variance site and surrounding properties to avoid granting an applicant a special privilege. The applicant states that the 24 -foot height limit creates a severe restriction when applied to a site with a 56 percent slope. However, the proposed project will use extensive grading of the site and a foundation system to create a relatively wide development pad up to 13 feet below the existing grade. This will allow the first and second floors and a significant portion of the third floor to be developed within the 24- foot height limit. This raises the question of whether the variance is truly necessary in order to preserve a substantial property right or to permit additional living area at an elevation that would provide increased view opportunities to the property. The classic example of a variance is where the steep rear portion of a residential lot makes the site otherwise undevelopable; a variance might be approved to reduce the front yard setback to create sufficient room for a home on the lot. However, advances in building design and high property values have lead to situations in this community where the topographic characteristics of a property no longer present •a significant constraint to development. For these reasons, staff requests direction from the Planning Commission on how this, and future requests, for exceptions to property development regulations should be addressed. /bT Megonigal Residence April 3, 2008 Page 5 The Modification Permit Granting of a modification permit to allow projection of the building into the required front yard setback may be warranted by topographic constraints of the site. The extent of the projection will be determined based on the building envelope resulting from the configuration of the building consistent with the Planning Commission's direction. Consistency with General PlaniLCP Policies Resolution No. 2007 -3 requires that all new development comply with applicable polices of the General Plan. Furthermore, because the proposed project does not conform to the height limits of the Zoning Code, the provisions of Categorical Exclusion Order E- 77-5 do not apply; if a variance to height and modification permit are approved, the proposed project will require a coastal development permit and must conform to the policies and requirements of the Local Coastal Program (LCP) Coastal Land Use Plan. Public Views Both the General Plan and the Coastal Land Use Plan (CLUP) contain several policies requiring that new development project and, where feasible, enhance public views: ■ "Protect and, where feasible, enhance significant scenic and visual resources that include open space, mountains, canyons, ridges, ocean, and harbor from public vantage points." (LU 1.& and NR 20.1) ■ "Require new development to restore and enhance the visual quality in visually degraded areas, where feasible, and provide view easements or corridors designed to protect public views or to restore public views In developed areas, where appropriate." (NR 20.2) ■ "Protect and enhance public view corridors from the following roadway segments (shown in Figure NR3), and other locations may be idendfied in the figure.' (NR 20.3) • Design and site new development, including landscaping, on the edges of public view corridors, including those down public streets, to frame, accent, and minimize impacts to public views" (NR 20.4) ■ "Protect and, where feasible, enhance the scenic and visual qualities of the coastal zone, including public views to and along the ocean, bay, and harbor and to coastal bluffs and other scenic coastal areas." (CLUP 4.4.1 -1) • "Design and site new development, including landscaping, so as to minimize impacts to public coastal views." (CLUP 4.4.1 -2) /Of, Megonigal Residence April 3, 2008 Page 6 Where appropriate, require new development to provide view easements or corridors designed to protect public coastal views or to restore public coastal views in developed areas." (CLUP 4.1.1 -3) "Design and site new development, including landscaping, on the edges of public coastal view corridors, including those down public streets, to frame and accent public coastal views." (CLUP 4.4.1 -7) Both Figure NR3 in the General Plan and the Coastal Views Map 4 -3 in the CLUP identify Begonia Park as a public view point Furthermore, the CLUP recognizes that many north -south tending streets provide view corridors to the ocean and bay. Begonia Avenue, which terminates at the project site, provides such a view corridor. The above polices in their totality require the proposed project to protect public views from Begonia Park and the Begonia Avenue view corridor. Furthermore, the proposed project will have to be evaluated in terms of its potential impact to the overall scenic and visual qualities of the area. Staff requests direction from the Planning Commission on how to best address these issues, given the development constraints of the project site. Neighborhood Compatibility Both the General Plan and the CLUP contain polices relating to the visual compatibility of new development with the surrounding area: ■ "Require that residential units be designed to sustain the high level of architectural design quality that characterizes Newport Beach's neighborhoods In consideration of the following principles: • Articulation and modulation of building masses and elevations to avoid the appearance of "box- like" buildings • Compatibility with neighborhood development in density, scale, and street facing elevations • Architectural treatment of all elevations visible from public places • Entries and windows on street facing elevations to visually "open" the house to the neighborhood • Orientation to desirable sunlight and views" (LU 5.1.5) Require tat new and renovated buildings be designed to avoid the use of styles, colors, and materials that unusually impact the design character and quality of their location such as abrupt changes in scale, building form, architectural style, and the use of surface materials that raise local temperatures, raj Megonigal Residence April 3, 2048 Page 7 result in glare and excessive illumination of adjoining properties and open spaces, or adversely modify wind patterns." (LU 5.6.2) ■ "Continue to regulate the visual and physical mass of structures consistent with the unique character and visual scale of Newport Beach." (NR 22. 1, CLUP 4.4.2- 2) ■ Implement the regulation of the building envelope to preserve public views through the height, setback, floor area, lot coverage, and building bulk regulation of the Zoning Code in effect as of October 13, 2005 that limit the building profile and maximize public view opportunities." (CLUP 4.4.2 -3) The visual simulations provided by the applicant indicate that the proposed project would be highly visible from the surrounding area. Therefore, staff requests direction from the Planning Commission regarding the proposed projects consistency with the above policies, particularly those relating to compatibility with the building form, scale, and massing of the surrounding neighborhood. Staff would also like direction as to whether story poles and/or additional visual simulations should be required as part of this application. Land Form Protection Both the General Plan and the CLUP contain polices relating to the projection of natural landforms: "Require that sites be planned and buildings designed in consideration of the property's topography, landforms, drainage patterns natural vegetation, and relationship to the Bay and coastline, maintaining the environmental character that distinguishes Newport Beach. " (LU 5.6.4) ■ "Preserve cliffs, canyons, bluffs, significant rock outcropping, and site buildings to minimize alteration of the site's natural topography and preserve the features as a visual resource." (NR 23.1) "Require all new bluff top development located on a bluff not subject to marine erosion to be set back from the bluff edge in accordance with the predominant line of existing development in the subject area. This requirement shall apply to the principal structure and major accessory, structures such as guesthouses and pools. The setback shall be increased where necessary to ensure safety and stability of the development." (CLUP 4.4.3 -5) "Prohibit development on bluff faces, except private development on coastal bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar determined to be consistent with the predominant line of existing development or public improvements providing public access, protecting coastal resources, or providing for public safety. Permit such improvements only when U Ilr Megonigal Residence April 3, 2008 Page 8 no %asAble alternative exists and when designed and constructed to minimize alteration of the bluff face, to not contribute to further erosion of the bluff face, and to be visually compatible with the surrounding area to the maximum extent feasible. " (CLUP 4.4.3 -8) Were principal structures exist on coastal bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar, require aB new development to be sited in accordance with the predominant line of existing development in order to protect public coastal views. Establish a predominant line of development for both principle structures and accessory improvements. The setback shah be increased where necessary to ensure safety and stability of the development" (CLOP 4.4.3 -9) ■ "Employ site design and construction techniques to minimize alteration of coastal bluffs to the maximum extent feasible, such as: A. Siting new development on the flattest area of the site, except when an alternative location is more protective of coastal resources. 8. Designing buildings to conform to natural contours of the site, and arranging driveways and patio areas to be compatible with the slopes and building design. C. Utfting special foundations, such as stepped, split level, or cantilever designs. D. Requiring any altered slope to blend into the natural contours of the site." (CLOP 4.4.3 -12) The property is located on a coastal bluff as designated by the CLUP. Per CLOP Policy 4.4.3 -8, development is permitted on the bluff face, subject to the provisions of CLUP Policy 4.4.3 -12 to minimize alteration of coastal bluffs. Staff requests direction from the Planning Commission regarding the proposed projects consistency with the above policies. Staff also requests direction on the provisions of CLUP Policies 4.4.3 -9 and 4.4.3 -12 that suggest that alteration of the bluff face is acceptable in order to protect coastal resources (i.e., public views). Environmental Review The project qualities for a Categorical Exemption pursuant to Section 15332 (In -Fill Development Projects) of the Implementing Guidelines of the California Environmental Quality Act (CEQA). This exemption applies to in -fill development projects in urban areas that are consistent with the General Plan and applicable development standards. In addition, the proposed development must occur on a site of no more than five acres, have no value as habitat for endangered, rare or threatened species, and must not /ay Megonigai Residence April 3, 2008 Page 8 result in any significant effects relating to traffic, air quality, water quality, or any other significant effect on the environment due to an unusual circumstance. Public Notice Notice of this hearing was published in the Daily Pilot, mailed to all owners of property within 300 feet of the boundaries of the site including the applicant, and posted on the subject property at least 10 days prior to this hearing consistent with the provisions of the Municipal Code. Additionally, the item was shown on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: Russell Bunim, Assistant Planner EXHIBITS Submitted by: David Lepo, Pla ing Director 1. General Plan Map (Figure NR3) 2. Coastal Land Use Plan Map (Map 4-3) 3. Correspondence 4. Proposed project plans F: USERMPIMISharsdFA ISWAs- 2007fPAM7•Y33120 "d-03 VA2007.001POMt Exhibit No. 1 General Plan Map (Figure NR3) . BSI `� N Ay Mao 0 C E ♦ N BALBOA ISLAND AP `��,\\ >� ommffi 4 Exhibit No. 2 Coastal Land Use Plan Map (Map 4-3) 1�� City of Newport Beach, California (Harbor Area) Local Coastal Program Coastal Land Use Plan Coastal Views Map 4-3 fft;,301' LEGEND A Public Viem, Point Coastal V+ Road Cw,,;W zone Boundary City Boundary shofelve Heghl Limitation Zcine- pfoposed Park Public Beach N park Exhibit No. 3 Correspondence / /,, Page 1 of 1 Alford, Patrick From: Varin, Ginger Sent: Monday, March 24, 2008 3:30 PM To: Alford, Patrick Subject: FW: Begonia Park fYi Ginger Varin, Administrative Assistant Planning Department City of Newport Beach (949) 644 -3232 w (949) 644 -3229 f From: Cherall Weiss [ mailto:cheraII18@sbcglobal.net] Sent: Monday, March 24, 2008 3:27 PM To: Bunim, Russell; Varin, Ginger; Gardner, Nancy Subject: Begonia Park Planning Department & Ms. Gardner: As a resident of the area around Begonia Park, I am greatly disturbed by the proposed home construction at 2333 Pacific Drive. This park is now a meeting place for people from the area to picnic, play ball, have parties, walk dogs, mingle with neighbors and more. The draw is not only the lovely park, but the magnificent view and sense of peace and calm that that amazing view provides. The park greatly enhances the quality of life in the area for residents and visitors alike. I believe that the City, in its own mission statement, strives to be "stewards of the quality of life cherished by those who live, work and visit here." Please maintain our quality of life by not allowing the proposed construction variance at 2333 Pacific Dr. Save the view, and our neighborhood from unnecessary overbuilding. Thank You, Cherall Weiss 949.723.6202 //-7 PATRICIA BELL JANET H. BELL 411 BEGONIA AVENUE, CORONA bEL MAR, CALIFORNIA 92625 ( 714)540 -6830 Ralttatlast @sbgglobal,net March 26, 2008 CITY OF NEWPORT BEACH Planning Commission 330 Newport Blvd. Newport Beach, California 92663 RE: Proposed Plans at 2333 Pacific Drive — Corona del Mar Variance VA2007 -001 and Modification MD2007 -080 HEARING DATE: April 3, 2008 Commissioners: The City of Newport Beach is currently considering the above captioned Variance and Amendment which would negatively effect property at 411 Begonia Avenue that is owned by my Mother, Janet H. Bell and myself. It would also negatively impact the public views from our very popular neighborhood park. In effect, if this huge house is allowed to be built we will lose both the bay and ocean views from our own residence as well as the ability to enjoy bay and ocean views from the park across the street. My Mother is currently 87 years old — she will be 88 in September — and has lived in her current home on Begonia for over 47 years. Mother loves her home and she loves Corona del Mar. She especially enjoys the beautiful view from the patio and second floor and the gorgeous sunsets. In addition to just the loss of enjoyment we would incur, a consultation with a local Real Estates agent confirmed for us that having a view of the ocean replaced with the view of the largest house in the neighborhood would result in significant drop in the value of our house. Mother's living expenses are paid from the equity in the house. I was surprised to learn from a representative of the Planning Department that it is not the City's duty or job to protect private property rights — and that none of us is entitled to an ocean view, no matter how long we have enjoyed it. I found this very surprising and disappointing as I would think that protecting homeowners would be a City priority and directive. I also understand, however, that the General Plan precludes building houses that block public views as the Megonigal house would, and this does concern the City greatly. We know that the homeowner has a right to build on his property at 2333 Pacific Drive and are not disputing that BUT the homeowner does not have an absolute right to obtain a variance in order to build a very large house, especially if: //6 • It is not in parity with the rest of the neighborhood; • A variance is not necessary for the efficient use of his property. He may be entitled to a variance if one is necessary to build on a par with the rest of the homes in the neighborhood BUT HE IS NOT ENTITLED TO MORE; • Even if he has an "unusual' piece of property (unusual in size or shape or topography) if building can be accomplished without a variance and in accordance with the General Plan he is not entitled to a Variance. I looked over the plans for this residence and it is HUGE. The Planting Department confirmed that it would definitely be the largest house in the neighborhood. With only one or two unfortunate exceptions Pacific Avenue consists of original residences — like ours — and cliffside houses that are built into the side of the hill, leaving very little showing at the street level. These houses were my friends houses so I know that they have almost all been re-built and none of these houses found it necessary to build up to a level that would destroy the views of their neighbors across the street A house the size of the proposed Megonigal project would be completely out of place. From what I could tell from the plans the front of the house — what we would all be looking at — was particularly unattractive. Understandably, when there is a view available, a person building a house would want to construct it so that they could obtain the best view possible. This is not the case here. The Megonigals lot has a completely unobstructed 180 degree view of the bay and the ocean no matter what size the house is! There is absolutely Do need to build up from street level as high as they are requesting in order to secure a nice view and it seems selfish and greedy for them to do so at the expense of their neighbors. I also understand that City Planners try to assist homeowners in designing a house on a problem lot — like a strangely shaped lot or one that has topographical problems — by granting variances that might help. The Megonigal lot is certainly a strange lot but it is not unusual in that area. All of the houses on that side of Pacific are built on similar cliffside lots. It may be necessary to build closer to the street as requested as there is not much flat area in front but it is not necessary to build UP so high, As I mentioned before, other houses in the neighborhood managed to construct interesting and beautiful houses on the side on the hill without building multiple stories up from street level. Begonia Park is a small neighborhood park that is beloved by all of us and it is heavily used for all kinds of activities. We have neighborhood parties, baseball games, badminton and other activities. Every day at lunchtime you see people sitting on the bench or sunbathing on a blanket gazing out at the ocean. At 5pm the dogs and dog owners come out and socialize. Frequently we have weddings in the park — with the backdrop always being the beautiful ocean/bay view. It would be a terrible shame to take the view away from this popular neighborhood park. The Megonigal house is larger than it needs to be. It is going to be bigger than any other house in the area and it will be out of parity with the whole neighborhood. It is not necessary for such a large house to be built in order to obtain a view. It is not necessary to obtain a Variance in order to build on the lot I hope the Planning Commission will deny the requested Variance and Amendment and require a more conservative project that does not unnecessarily decimate private and public views. Thank you for your time and consideration. Sincerely, PATRICIA BELL //G Exhibit No. 4 Proposed project plans In megonigal residence design package 2333 pacific view drive corona del mar, ca. 92625 MAR 07 POt)8 ., I.M? meameal residence IWI 2 residence Wwrlo lees sbpe dtwvo. C ..l ttteaGVan(ooNg6 mvun[van�vvpetwve� 'ter. w •�aee sbpe dtwvo. C ..l MA MA mm. � i�f. f. OC�Cfi � ., rncgonigal residence del mar [7 rainbaxx+�, Win ,-b th,Mv�� h megonigal residence 40 .......... f megonigal residence Q.-» 1=1 7 . . .... ..... 11 Attachment F 04103108 Planning Commission Mintues /3/ Planning Commission Minutes 04/03/2008 Page 2 of 1z otion was made by Commissioner Toerge and seconded by Commissions cDaniel to approve this item as corrected. yes: Eaton, Peotter, Cole, Hawkins, Toerge, McDaniel and Hillgren oes: None UBJECT: Fury Rok & Rol Sushi Lounge (PA2005 -087 ITEM NO. 3 4221 Dolphin Striker Way PA2005 -087 Update on the revocation of Use Permit No. 3162 and Use Permit No. 2005 -018. Received and filed Lieutenant Craig Frizzell, Detective Services Commander, noted they had me with the operators of Fury and a security company on February 27, 2008 as directed by the Planning Commission to sign a security plan and have it in place by February 27, 2008. The operators have complied with that and the plan was instituted on February 29, 2008. The name of the security company is Brand Paragon Protection and it is owned by Michael Boone, who is well known in the area for security for these types of establishments. Calls for service have ecreased since the security plan was implemented; however, there have been o fights as well as other calls for service since the new security plan went into ffect. Two main things that have taken effect are controlling the doors an etching for under -age drinkers who are attempting to gain entrance They are olding the occupancy at 297, which is the maximum for that location. Mr. Bums noted that each attorney believed it was not necessary that they be resent and that they had met the Police Departments requirements, at least in e interim. That is why they are not here tonight. Motion was made by Commissioner Peotter and seconded by Commissioner ill ren to receive and file. yes: Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge, and Hillgren oes: None ITEM NO. 4 UBJECT: Seashore Village (PA2007 -100) PA2007 -100 5515 River Ave Continued to April se Permit for building height exemption; Modification Permit for setbacks and 17, 2008 ilding separation; Tentative Tract Map established for condominium purposes; oastal Residential Development Plan for compliance with CA Government Cod Section 65590 and Chapter 20.86 of the City's Municipal Code; and Mitigated egative Declaration (MND). Or. Lepo suggested this item be heard on April 17, 2008 due to needed revisions the Mitigated Negative Declaration. otion was made by Commissioner McDaniel and seconded by Commissions iltgren to continue this Rem to April 17, 2008. Ayes: Eaton, Peotter, Cole, Hawkins, McDaniel, Toerge and Hillgren Noes: None ITEM NO. 5 UBJECT: Megonical Residence (PA2007 -133) PA2007 -133 2333 Pacific Drive t' ci__tll➢. %T T ---- 1"Y an m._.._�,m _.___:.._ rY.____:__- _ - -knl T i:.___ — i...._ nnnz,nnnc Planning Commission Minutes 04/03/2008 application consists of a variance to allow a new 53 -foot 3 -Inch high s !y dwelling unit to exceed the 24 -foot height limit and a modification per i the dwelling unit to encroach 5 feet into the required 5-foot front ack. The property is located in the Single - Family Residential (R -1) Z Ir. Patrick Alford noted that staff is not asking the Commission to take action < ie application tonight. This application is for a unique site and a unique set rcumstances and staff is asking for guidance on how to apply the findings for ariance and the General Plan and Local Coastal Plan policies to this particub pplication. He than gave an overview of the staff report referencing exhibits PowerPoint presentation: • Over 50% of the site is covered by slopes of 20% or more; • Projections into height limits and encroachments into the front setback; • Variance findings; . Proposed project is based on substantial alteration of the site and elaborate foundation system that would create a fairly wide graded pad the site; . Questioned if a variance for height is needed for the enjoyment substantial property rights; or, is this a granting of a special privilege; • Protection of public view sheds and public view corridors; • Obligation to design and site development to protect those public views; . Neighborhood compatibilities with respect to scale and massing project and the use of interim guidelines; . Landform protections on bluff face that minimize alteration to the bluffs this area has been altered by past development. Lepo noted one of the guidelines regarding designing and fitting the build the site rather than altering the site to fit a building had been discussed v 3 applicant; however, the proposed project does not comply. It is a at( Worm and there has to be some radical design as to how quickly you s wn the slope. Looking from Back Bay Drive, this is going to be a v trusive structure built as is and a variance will require relief of about 20 feet 3 back of the second story. The proposed project does not step stee in Hawkins noted the importance of the design in Connection with issues as well as the mass, breaks, and compatibility in rmissioner Toerge asked if this was rented another project recently reviewed not request a height variance because e. He is more inclined to accept bench de and exposed and is not on the water. considered an ocean bluff by the Planning Commission they excavated a bench into excavation as this bluff is no Page 3 of 14 Continued to May 22, 2008 F3 �3 ri__inr_Arr____mr an m____��n�_..._:.._!+_.__._. _[__inn mac..__.. _�... ..n �nnnnnn v.__ nnis rinnnc Planning Commission Minutes 04/03 /2008 Alford answered certain areas have been identified where development nitted on the bluff face such as Ocean Boulevard, Camation, and Pad e. There are two types of coastal bluffs identified, those that are subject ine erosion and those that aren't, and this site fails into the latter category. Toerge noted the issue is the public view protection. McDaniel noted his concern of the view corridors from the imissioner Peotter asked about the property line in relation to the park. missioner Toerge suggested the use of story poles, certified by o pendent civil engineer, to show the perimeter of the project as proposed ai show the height limitation as allowed. If the home was built within the heig iction it would not need a discretionary permit with any public input. The or on this is here tonight is that the applicant is requesting a variance for tl it. He noted the issue of what could be done without a variance and with ince and what impacts are involved. Commission inquiry, Mr. Alford noted policies in the General Plan and Coa: id Use Plan that speak to views and view corridors as well as vis iources identified as views to particular land forms such as the harbor, blu Vs and coast line as well as the overall visual quality of the area. The ad w corridor identified is the bench at Begonia Park as well as other numen to points. North and south streets offer view corridors and these need to elected as well as views from Bayside Drive and surrounding streets. Lepo noted one of the ways to keep a corridor towards the water is to m garage to the east to allow the view corridor toward the water between age and the house. ;toner Toerge noted a homeowner developing his property should not I to expand the view corridor, however, they should not have the spec of exceeding the height restrictions to the detriment of the public view. view corridors were discussed. on Hawkins asked about the project being within the Zone. Alford answered it meets the criteria for the categorical exclusion, but it is scion of the applicant asking for a modification of the setbacks and the he irpenaon Hawkins noted staffs concerns with the proposed project sistency with land use regulations. He questioned if there is a question as project's consistency with these land use regulations. The proper approa d be to do an initial study to make that determination. If there is a potential de significant environmental impacts then an environmental impact rep be required. Lepo answered the initial study would be done at staff level and we woi that this is not consistent with the land use regulations. We have come saying staff does not believe this proposed project is consistent and ask Page 4 of 14 m.. I n 7., r T... ... , TT Inn, 11 T' . I . . 'pniI . 1 n.n..nnnn, ^111 1 nnn Planning Commission Minutes 04/03/2008 direction as to what you find needs to be changed to make it consistent. d on that, staff will proceed with the categorical exemption. airperson Hawkins noted staff believes there is a design consistent ulations therefore, that would void a need to do an initial study. Staff is a direction that would support this. lion proceeded on visual resources from the bay to the site and the of the immediate area. Megonical, applicant, noted the following: • The size of the lot, zoning, unusual shape, topography, and history of piss; • The suggested location of the house as depicted on the plans to minim impact on the bluff while preserving the harbor view from the park; • He has the ability to put two stories at street level without a hail variance; most of the homes on Pacific Drive are two or three stories total; . The current design is 3,315 square feet with a 402 square foot garage; thi height of the home is 22 feet at the street, which is two feet below the limit. . We are not going further down the bluff than our neighbors; request variance for the back comers because the lot is a severe slope; withc the variance we will be forced to cascade down the bluff and impact ti view and bluff coverage to a greater extent. iissioner McDaniel asked why there is a need for a variance as this is new home that could be designed without one. Megonical answered he is trying to preserve the view from the park and ig down the bluff. Olson, architect for the project, at Commission inquiry, noted: . The Building Code prohibits openings within three feet of a property line fire safety reasons and pulling the house closer to the properly prevented windows in the front of the structure; . Vacation of excess right -of -way in order to have the windows was discussed with staff. Commission inquiry, Mr. Lepo stated staff is asking for direction so that hitect could get to a building that would be able to be found in conformity General Plan and the Coastal land Use Plan. That design would be rev! brding to Commission direction for compliance and the project will be broi * at a subsequent meeting for Commission action. •. Olson noted he has received differing direction for this project. Staff decid come to you for direction to be presented in the formal submittal to be voted d be in compliance with those guidelines. He noted the several scenarios necting bluff development and view from the park while providing adequi at,../tsr.trr.. --%Dr i nQU-- L. Page 5 of It n "n ennnc Planning Commission Minutes 04/03/2008 space. He then referenced the exhibits and explained the reason for Lepo noted that in this case it is suggested to build down the bluff face ch as possible so you can protect or enhance view corridors. It w Igested to the architect to build further down the bluff to protect the view fn rvs. We would work to get an easement through the bottom of Begonia Pi provide access from below rather than up on Begonia Avenue. This isistent with those policies that apply to Ocean Boulevard, Camation Aver J Pacific Drive. However, the architect told staff they did not want to to xss from below. nissioner Hillgren asked if a two-story home could be built as opposed to -story home to get the 4,000 square feet at a wider footprint towards tt as opposed to being more vertical and to the west. Lepo answered referring to an exhibit and stated going horizontal instead cal would not help. arencing the exhibits, the Commission and applicant discussed the areas Me:d with the height variance and the view impact from the park, and the sibility of shitting the site of the home with or without impacting the view frory park; use of story poles showing the current and potential structure and those Lepo noted that with a variance, this project would have to be sent to the istal Commission with an approval in concept. We had stressed the isrence to build down the bluff with the roofline below or at curb line to keen view. This is why we suggested the City could grant an easement to access i Carnation across the lower end of the park, the applicant's answer was no. I believes if the applicant builds down the bluff to protect the view, Coasts Id find the project in compliance with the policies. comment was opened. Yeo, presented a picture and stressed the vista point at the end of Begoi ue needs to be kept open for views to the bay and ocean. It is important !ct the upper view. k Simon, presented pictures he had taken and noted that there will be about to 40% loss of public view from the park if this project is built. He asked f story poles. He added that this lot is very difficult to build on due to tt rgraphy and the enormity. of the foundation to be laid is above the playgrour t in the park 'icia Bell, representing her mother, referenced her letter in the packet ad the houses on Pacific Drive, except for one, has been built down the sh is ideal. She noted that with no windows on the front of the house, it Ic a box. This design needs to be changed. aren Fleming, noted she does not favor a variance for this project. She sat at the view from the city public park not be impeded. She agreed that oject should be built down the face of the slope. nne Balderston, stated that everyone comes to the park to enjoy the views. resented a 1977 photograph that depicts the pepper tree and view that I Page 6 of 14 136 ...... a__ \._..n,,n�nnnn 1.... ^^II a MA". Planning Commission Minutes 04 /03/2008 enjoyed for many years. This Is an impractical lot to build. Jaggers, stated his agreement of the use of story poles to see what at is going to be on the views. Gorrie, noted his concern of the impact to the views. i Kenney, stated this is a property rights issue. It Is the view from the these people are trying to protect. ;colt Cameron, resident of Costa Mesa, noted he enjoys the view from his car. le suggested looking at the Planning Commission meeting minutes from the 970's for the history on this location. Kelly presented a petition that was left at the park that has 150 signatures. Is a community issue. Dn Tingley stated that he would like to seethe home built down the bluff as ild save the public views. The story poles will show how intrusive the proje be if it is built as proposed. comment was closed. ,person Hawkins noted the issues that have been raised are nelghborhooc ratibility, impacts on visual resources, public views, design compatibility consistency with regulations regarding bluff development. discussion that followed gave guidance to staff to include the ional information and considerations for the next meeting: • How the height limits are viewed from the Begonia Avenue and Park angles; • Table of adjacent homes relative to heights, sizes and variances Pacific; • Visual simulations to distinguish the extent of development in neighborhood; • Focus on views of what will happen to the view corridors from the up levels as well as from the back side facing Bayside; • Standard distance of the front property fine and the curb for the rest of street and the extent of the encroachment in the right -of -way; • Story poles to see adherence to the height restriction or with a varia and what the impacts could be; • The majority of the Commission stated that the scale and massing of Proposed residence were not consistent with the character of surrounding neighborhood; • The majority of the Commission stated they would allow for the bluff encroachment in turn for reduced height on the street; Lnm --- d101--t— Page 7 of 14 M f 4 G ^^Am Planning Commission Minutes 04/03/2008 • The Commission indicated that they preferred the protection of public from Begonia Park over protection of the landform of the coastal bluff; • The Commission expressed their concern with the bulk and mass of proposed project and the plan as proposed is not supported; and, The lot can not be built with a 4,200 square foot project due to topographical constraints and compliance with codes. was made by Commissioner Cole and seconded by to continue this item to May 22, 2008. applicant agreed to the continuance. 311 Fern leaf Avenue Appeal (PA2008 -009) appeal filed by Carol Pangburn of the Zoning Administrator's decision for t )royal of Modification Permit No. 2008 -007 on property located in t I ifamily Residential (MFR) District at 311 Femleaf Avenue. Modificati rmit No. 2008 -007 would permit the remodel and 1,235 square -foot addition existing non - conforming 3 -unit residential condominium structure. mer McDaniel stated that he had been given a letter to give to Ms. Pangbum. r. Alford gave an overview of the staff report. He noted the propose( odification Permit would permit the remodel and addition to the front unit of thn mconforming triplex. The nonconformity is the encroachment into the side yan attack and short one guest parking space that is required for a multifamil, plex. Staff is concerned that the application provides the bulk of the floor area ring to one unit, thereby lessening the likelihood for a remodel to the rea rrtion of the building where the actual nonconformities exist Dealing with tha 3ighborhood compatibility issue, particularly the regulations dealing with abrup ranges in building form and scale, the previous development pattern had singk cry portions of buildings in the front and going up to two stories in the rear. ere are a number of homes in the block and in the area that are taller than twr ones occurring in the area. This project is providing a distinct third level that is departure from the pattern of the area and this does present an abrupt change building form and scale with the adjacent properties and to the middle unit o e triplex, which would have two levels above its single story. He noted then oukl be adequate space to provide light and air. For the issue of consistent ith the General Plan policies, staff recommends that the decision of the Zoning dministrator be reversed and the Modification Permit be denied. noted one finding in the staff report that dealt with the validity of the Acation. It was noted that the modification would clearly involve modification the foundation and the roof, which appear to be held in common for tha rdomi nium plant. However, we were presented with CC &Rs from the Acant, which seem to indicate he does have development rights to the area! ere he has partial ownership. This Is apparently justification of his ability tr n the application without the consent of the other two property owners. arefore, the firming included in the draft resolution being based on false arm ;leading information may not be valid. aae.uv.lTr�e...�nr rner...,.satnr......:,.,. n ........:....:....�nn n.r:_.....,a...,.nnn��nn• r,«,. Page 8 of 14 ITEM NO.6 PA200"09 Modification is denied 0 A -7r1 4 nnno Attachment G Correspondence /3, Attachment H Project Plans (Under Separate Cover) /Y% PUBLIC HEARING Megonigal Residence Appeal 2333 Pacific Drive Modification Permit No. 2007 -080 (PA2007 -133) NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a public hearing on the following item An appeal of the Planning Commission's decision on a modification permit and a determination that the proposed project complies with City Council Resolution No. 2007 -3, which requires that all new development comply with applicable policies of the General Plan. The Planning Commission approved Modification Permit No. 2007 -080 to allow planter walls to exceed the 3 -foot height limit in the front yard setback in association with the construction of a new, three -story single - family dwelling. The Planning Commission also found the project to be in substantial conformance with the policies of the General Plan. The appeal was filed by Council Member Nancy Gardner. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) as the proposed project is one, single - family residence in a residential zone that contains no environmentally significant resources on site. NOTICE IS HEREBY FURTHER GIVEN that said public hearing will be held on September 23. 2008, at the hour of 7:00 p.m. in the Council Chambers of the Newport Beach City Hall, 3300 Newport Boulevard, Newport Beach, California, at which time and place any and all persons interested may appear and be heard thereon. If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice or in written correspondence delivered to the City at, or prior to, the public hearing. For information call (949) 644 -3200. 6�s-� 141-�- is/� LaVonne M. Harkless, City Clerk City of Newport Beach Howett Isaza Law Group LLP P k arho-1- t'' 'S Attn: Timothy Howett Y16 56 E. Holly Street, Ste 220 Pasadena, California 911030 932-87021 932 87022 Bob Pow Theresa Peuale Mrs. Franklin 2502 Seaview Ave 2604 Seavlew Ave 434 Acacia Avenue Coma Del Mar CA 92826 Corona Del Mar CA 92825 Corona del Mar, CA 92625 062 041 01 CM 011 03 082 01104 Carolyn Paulsch Barbara Dawkins Anthony & Joni Dameto Jr. 2204 Waterfront Dr 2829 Peaft Or 25212 Derbyhi8 Or Corona Dal Mar CA 92625 Canna Del Mar CA 92825 Laguna Hi9s CA 92853 052 01105 052 011 07 052 01108 Febriosat Mk*" A Boyer Paul Maces 2316 People Or 2286 Paoft Or 2231 Peoft Or Corona Dal Mar CA 2M Carona DM Mar CA 92826 Carona Dal Mar CA 92626 052 0112,2 062 01123 052 01124 Gregory Charles. Bstzbr B & J ootu MARSH DEV CO INC PO Elax am 1300 00" $t 400 Wastcheeter PI Sierra Madre CA 91025 Newpod Such CA 92680 Fuuerion CA 98836 052 01126 062 01205 052 012 06 MARSH DEVELOPMENT COMPANY 2233 Beyelde Drive Lauds Ann Burg MkrewW 400 Wealohader PI 2233 Bayskie Or 2301 Sayslde Or Fullerton CA WUI Corona Dal Mar CA 92836 Comma Del Mar CA 92826 052 012 07 062 019 00 052 01209 James Flaherty 'Pray & PenreM Rayne Whllakw 2307 Bayslde Or 2315 Boysids Or 2319 Bsyside Or Corona Del Mau CA 02826 Comm Del Mar CA 92825 Corona Del Mar CA 92628 002 01210 052 01308 062 013 07 I Miuheel $*gig Jug@ Pkenan Linda Martin 2523 Sayalde Or 301 Carnation Ave 239 Carnation Ave Carona Del Mar CA 92626 Come Dell Mar CA 92826 Corona Dal Mar CA 9262$ 062 013 08 052 01317 063 01323 Rlahard Joseph Baf elm Carolyn Martin PJdu d Frank i am Via Lkkr 81111$ Pasadens Ave 234 B Colorado Blvd 0600 Newport Beach CA 92863 sea WWW CA 91106 Pasadena CA 91101 051! 013 25 062 01396 062 01336 34 CARNATION AVENUE MMT R Joseph Comm Gart & Randa Sufton PO Box 6302 301 Carnation Ave 8 Alsesandria Ne&Wd Beach CA 92666 ,Corona Dal Mar CA 928'26 Nswport Coast CA 92867 Easy Peel Labels i ♦ See Instruction Sheet , ® AVERY ®52601" i Use Avery®TEMPLATE 51609 !Feed Paper for Easy Peel Featurel 1 052 021 01 Ross Billings 314 Carnation Ave Corona Del Mar CA 92625 052 021 20 David Taboralli 308 lWamation Ave Corona Del Mar CA 92625 459102 06 459 102 07 SHEPHERDSON PROPS LLC Michael Mann PO Box 2447 2304 Pacific Dr Newport Beach CA 92659 Corona Del Mar CA 92625 459 102 09 459102 10 Elizabeth Delamaler Annette Whitehead 2312 Pacific Dr 2316 Pacific Dr Corona Del Mar CA 92625 Corona Del Mar CA 92625 459102 12 459 10213 Me" Orr James Neff 2324 Pacific Dr 3 Longview Rd Corona Del Mar CA 92625 Westport CT 06860 459 103 01 459 114 22 CITY OF NEWPORT BEACH Edward Faster PO Box 1768 2501 1st Ave Newport Beach CA 92658 Corona Del Mar CA 92625 469 117 01 932 660 01 CITY OF NEWPORT BEACH Richard Biatterman PO Box 1768 115 Bayside PI Newport Beach CA 92658 Corona Del Mar CA 92625 932 660 16 932 660 17 Jeffrey & Marilyn Beck Harley Broviak 11 303 Ca TMW Ave 307 Carnation Ave Corona Del Mar CA 92625 Corona Del Mar CA 92625 932 860 19 932 660 24 Sylvia Burnett Thomas Phillips 309 Carnation Ave 1 Massachusetts Ave NW Corona Del Mar CA 92625 Washington DC 20001 932 660 26 932 66027 Linda Hancock Ginsberg 315 Camation Ave #3 317 Carnation Ave Coruna Del Mar CA 92625 Corona Del Mar CA 92625 932 870 18 932 870 19 Rarn Wlllner Shirley Made Roeder 302 Carnation Ave 300 Carnation Ave Corona Del Mar CA 92625 Corona Del Mar CA 92625 EBiquettes fatties 5 peter Utilisez Is gabarit AVERY® 51600 Sens de chargement 052 021211 Carnation Village Association 2744 E Pacific Coast Hwy 05 Corona del Mar CA 92625 459102 08 Wiliam & Barbara Yingling III 2308 Pacific Dr Corona Del Mar CA 92625 459 102 11 Jahn Davison 2320 Pacific Dr Corona Del Mar CA 92625 459 102 14 Janet Bel 411 Begonia Ave Corona Del Mar CA 92625 459 114 24 Edward Foster 2501 1st Ave Corona Del Mar CA 92625 932 660 02 Terry Lee Bellardl 117 N Bayslde Dr #117 Newport Beach CA 92660 932 660 18 Waseem Ibrahim 6909 Royal Hunt Ridge Dr Riverside CA 92506 932 660 25 Thomas Phillips 626 Chain Bridge Rd Mclean VA 22101 932 87D 17 Nancy Allan 304 Carnation Ave Corona Del Mar CA 92625 932 870 20 Jerry Sebag 7677 Center Ave 9400 Huntington Beach CA 92647 Gonsukez to faul le www sverycom d'instructlon 1- 800 -GO -AVERY CITY OF NEWPORT BEACH..,,. Application No. 7-13 3 Name of Appellant n p� p or person filing: I \J ul � �InV�� Phone: .' d 2d 6 Address: �oDate of Planning Commission decision: 1 Zi , 20 Regarding application of: (Description of filed with Planning Commission) Reasons for Appeal: d /�a C /l) G✓/2� !7 for FOR OFFICE USE ONLY Date Appeal filed and Administrative Fee received: o 0 , 20 U /) Hearing Date. An appeal shall be scheduled for a hearing before (he City Council within sixty (60) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.060) cc: Appellant Plannin (fumish one set of mailing laVAls for mailing) File APPEALS: Municipal Code Sec. 20. 050 B) Appeal Fee: $340 piars ua�lt t6Resolution No. 2006 -4 adopted on 1- 10 -06. (Deposit funds with Cashier in Account #2700 -5000) Authorized to Publish Advertisements of all kinds including public notices by Decree of the Superior Court of Orange County, California. Number A -6214. September 29, 1961, and A -24831 June 11, 1963. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the NEWPORT BEACH - COSTA MESA DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: September 13, 2008 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on September 15, 2008 at Costa Mesa, California. Signature RFCFNED 2LS S1:P 17 AM 7 14 NONE OF PUBOC HUM Me9miyygl Residence AMW Modilication Permit Ne. 2007080 (PA2007 -133) NOTICE IS HEREBY GIV- EN that the City Council of the City of Newport Beach will hold a public hearing on the following item: An appeal of the Plan. ning Commission's de. clsion on a modification permit and a determine. lion that the proposed project complies with City Council Resolution No. 20073, which re- quires that all new de. velopment comply with applicable policies of the General Plan. The Plan. ning Commission ap. proved Modification Per mit No. 2007 090 to allow planter walls to exceed the 3 -foot height limit in the front yard setback in association with the construction of a new. three -story single - family dwelling. The Planning Commis- sion also found the Project to be in substan- tial conformance with the policies of the Gem eral Plan. The appeal was filed by Council Member Nancy Gardner. This project has been determined to be cafe gorically exempt under the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) as the pro- posed project is one, single - family residence in a residential zone that contains no environmen- tally significant re- sources on site. NOTICE IS HEREBY FUR- THER GIVEN that said public hearing will be held on September 23. 2008, at the hour of 7:00 p.m, in the Council Chambers of the New. port Beach City Hall. 3300 Newport Boulevard. Newport Beach, Califon, ne, at which time and place any and all per- sons interested may ap- pear and be heard thereon, If you challenge this project in court, you may be limited to raising only those issues you or someone else raised at the public hearing de- scribed in this notice or in written corre. spondence delivered to the City al, or prior to, the public hearing. For information call (949) 6943200. LaVonne M. Harkless, City Clerk City of Newport Beach Published Newport Beach /Costa Mesa Daily Pilot September 13. 2008 50536 "RECEIY AFTER AG DA PRIWEV RECEI \ /ED Robert A. Hamilton ?T? SEP 23 M 7- 55 September 22, 2008 CFF'CE Ct T: ',TY CI_C K Mayor Ed Selich & Members of the City Council Cdr' City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Subject: Re: September 23 Appeal Hearing on the Megonigal Property Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA Honorable Mayor Selich and City Council Members, At the request of Friends of Begonia Park, I evaluated biological resources at a property located at 2333 Pacific Drive in the City of Newport Beach (City; see Figure 1). Specifically, the Friends asked my opinion regarding whether the property supports any biological resources that could be subject to local, state, or federal regulation due to their ecological sensitivity. The concem is that the City could attempt to find that these areas have no potentially sensitive biological resources without preparing, or requiring to be prepared, biological reports evaluating these issues. I have not conducted a full biological assessment of this property but did evaluate the plant communities present in order to determine whether any sensitive resources could be present that might warrant preparation of a thorough biological report. I also recorded all vertebrate wildlife that I observed during my field visit. My qualifications to conduct this evaluation are provided in the attached Curriculum Vitae. re 1. Aerial photo showing the location of Pacific Drive and adjacent Begonia Park .e Corona del Mar section of the City of port Beach. All aerial photos in this report rom Google Earth Pro. 316 Monrovia Avenue --- ' Long Beach, CA 90803 ' Y" 562 -477 -2181 "- Fax 562 -433 -5292 Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA Robert A. Hamilton, Consulting Biologist September 22, 2008 Page 2 of 9 Methods I visited 2333 Pacific Drive and adjacent Begonia Park from 09:05 to 10:15 a.m. on Saturday, 20 September 2008. The weather was sunny and still, and the temperature was approxi- mately 70 °F. "Story poles" and flagging showed the location of the proposed development boundaries in the field, the perimeter of the property was not fenced. I made observations of the plant communities present there, obtained representative photos, and recorded all native plants that I observed at either property. I also recorded all native vertebrates that I saw during the field visit. I determined the area of native plant communities using Google Earth Pro. Results Plant Communities The property at 2333 Pacific Drive features a natural bluff that separates the northerly upper level from the southerly lower level. As Figure 2 shows, the upper level has evidently been completely disturbed in the recent past, and supports only a very sparse growth of Russian Thistle (Salsola tragus). The upper level covers approximately 0.03 acre. Figure 2. The upper level at 2333 - _ 2333 Pacific Drive has been com- pletely disturbed, leaving only scattered small plants of non - native Russian Thistle. A low k chain -link fence, visible in the J background, is set back a short distance from the top of the bluff. Low, gray vegetation visible im- mediately behind the fence is a narrow band of southern coastal bluff scrub. A narrow band of native vegetation, classified as southern coastal bluff scrub, grows along the top of the bluff and covers 0.02 acre (Figure 3). As described by R. F. Holland, southern bluff scrub consists of woody and /or succulent shrubs up to 2 m tall that occur at coastal sites with shallow, rocky soils that are subject to moisture -laden winds'. Holland listed several plant species as being characteristic of this community, five of which occur at 2333 ' Holland, R. F. 1986. Preliminary descriptions of the terrestrial natural communities of California. Sacramento. California Dept. Fish and Game, Natural Heritage Division. Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA September 22, 2008 Robert A. Hamilton, Consulting Biologist Page 3 of 9 Pacific Drive: California Sunflower (Encelia caiifornica), California Buckwheat (Eriogonum fasciculatum), Cliff Aster (Malacothrix saxatilis), Coastal Prickly-pear (Opuntia littoralis), and Lemonade Berry (Rhus integrifolia). Figure 3. View of the bluff at 2333 Pacific Drive, looking up to the north from the lower level. This photo was taken on 20 September 2008, in early fall when the shrubs are brittle and dry. The shrubs visible in this photo are California Sunflower, California Buckwheat, and Coastal Prickly- year, all species characteristic of southern coastal bluff scrub. The property's lower level consists of approximately 0.06 acre of highly disturbed southern coastal bluff scrub. The vegetation consists of various non - native weeds and grasses growing together with Cliff Aster and Lemonade Berry, two native species that Holland (1986) listed as being characteristic of southern coastal bluff scrub (Figures 3 -6). hoto taken on 20 Sep - 8, facing north, show - )perty at 2333 Pacific southern coastal bluff m in Figure 2 is visible of the bluff. Below is coastal bluff scrub by various non - native I native Cliff Aster. I :monde Berry plants Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA September 22, 2008 Robert A. Hamilton, Consulting Biologist Page 4 of 9 Figure 6. This specimen of Lem- onade Berry is growing among non - native grasses and weeds in the highly disturbed coastal bluff scrub in the southern portion of the property at 2333 Pacific Drive. tis photo, taken at :)rive on 20 Septem- ws Cliff Aster, a tall :eristic of southern scrub. This species is in the highly dis- growing at the base t this property. Figure 7 on the following page shows the plant communities that I delineated at 2333 Pacific Drive. Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA September 22, 2008 Robert A Hamilton, Consulting Biologist Page 5 of 9 7. The property at cific Drive includes that is completely ad in its northern a band of southern bluff scrub, and disturbed coastal rub in the southern of the site. Thus, despite having undergone extensive disturbance, the property at 2333 Pacific Drive retains a small area of southern coastal bluff scrub on the bluff and a somewhat larger area of highly disturbed coastal bluff scrub at the base of the bluff; these two areas make up more than half the site's total area. Wildlife Observed I observed the following vertebrate wildlife species during my field visit on 20 September 2008. Side - blotched Lizard ....................I Cooper's Hawk ........................ 1 Red - shouldered Hawk ..................I 3 Rock Pigeon ...........................3 I Anna's Hummingbird .................. 2 Black Phoebe ..........................1 American Crow ........................2 Bushtit .. .............................20 House Wren ...........................1 Northern Mockingbird .................. 1 Orange- crowned Warbler ............... 3 Common Yellowthroat .................. I California Towhee ...................... 2 Lesser Goldfinch .......................2 Audubon Cottontail .................... 1 Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA September 22, 2008 Discussion Natural Resources Element of the General Plan Robert A. Hamilton, Consulting Biologist Page 6 of 9 Goal NR 10 of the Natural Resources Element is "Protection of sensitive and rare terrestrial and marine resources from urban development." City policies that further this goal, and that may be relevant to this project, include: NR 10.1 Terrestrial and Marine Resource Protection: Cooperate with the state and federal resource protection agencies and private organizations to protect terrestrial and marine resources. (Imp 14.7, 14.11, 14.12, 14.16) NR 10.4 New Development Siting and Design: Require that the siting and design of new development, including landscaping and public access, protect sensitive or rare resources against any significant disruption of habitat values. (Imp 2.1) NR 10.5 Development in Areas Containing Significant or Rare Biological Resources: Limit uses within an area containing any significant or rare biological resources to only those uses that are dependent on such resources, except where application of such a limitation would result in a taking of private property. If application of this policy would likely constitute a taking of private property, then a non - resource - dependent use shall be allowed on the property, provided development is limited to the minimum amount necessary to avoid a taking and the development is consistent with all other applicable resource protection policies. Public access improvements and educational, interpretative and research facilities are considered resource dependent uses. (Imp 2.1) California Coastal Act Section 30107.5 of the California Coastal Act defines "environmentally sensitive area' as: ... any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments. Section 30240 of the Coastal Act requires protection of ESHAS against any significant disruption of habitat values. Only uses dependent upon those resources are allowed within ESHAs and adjacent development must be sited and designed to prevent impacts that would significantly degrade the ESHA and must be compatible with the continuation of the ESHA. The City of Newport Beach Local Coastal Program Coastal Land Use Plan (LCP /CLUP), which interprets the California Coastal Act within the City, contains several policies that mandate protection of "environmentally sensitive habitat areas' (ESHAs). As explained on Page 4 -3 of the LCP /CLUP: Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA Robert A Hamilton, Consulting Biologist September 22, 2008 Page 7 of 9 Several of the natural communities that occur in Newport Beach are designated rare by the CDFG [California Department of Fish & Game] and are easily disturbed or degraded by human activity and therefore are presumed to meet the definition of ESHA under the Coastal Act. These include southern dune scrub, southern coastal bluff scrub... [emphasis added] Policy 4.1.1 -1 of the LCP /CLUP identifies potential attributes of an ESHA that are to be evaluated during a site - specific biological survey, including: The presence of natural communities that have been identified as rare by the California Department of Fish and Game," and the potential presence of plants on California Native Plant Society (CNPS) List 1B or List 2. As noted above, southern coastal bluff scrub is identified as a rare community by the California Department of Fish and Game. This community has potential to support rare plant species, such as Coulter's Saltbush (Atriplex coulten), a species placed on CNPS List 1B. Policy 4.1.1 -2 of the LCP /CLUP states that the City shall "Identify ESHA as habitats or natural communities listed in Section 4.1.1 [including southern coastal bluff scrub] that possess any of the attributes listed in Policy 4.1.1 -1" [emphasis added]. Whereas it appears that the LCP / CLUP requires an ESHA determination in this instance, Page 4 -5 of the LCP /CLUP allows for possible exceptions: Where the habitats discussed above [including southern coastal bluff scrub] occur in the City of Newport Beach the presumption is that they are ESHA and the burden of proof is on the property owner or project proponent to demonstrate that the presumption is rebutted by site- specific evidence. I do not represent the property owner or project proponent, and in any case I am not in a position to render an opinion because nobody has completed a thorough biological investigation. I consider the following items relevant in making this determination: This letter report documents thatthe property supports southern coastal bluff scrub, a plant community that CDFG recognizes as rare. • No sensitive plant surveys have been conducted on the property to determine whether any listed or otherwise highly sensitive plant species may be present. • The property is contiguous with Begonia Park, and this block of vegetation provides habitat for a variety of native wildlife species. For example, I saw 15 vertebrate species, including two types of raptor, during a brief visit to this area. • The area of southern coastal bluff scrub delineated is not extensive, but additional areas of southern coastal bluff scrub do exist within 200 feet (Figures 8, 9). Potential exists to expand upon those areas by removing exotic vegetation from the bluff and from Begonia Park and then undertaking ecological restoration. Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA September 22, 2008 Robert A. Hamilton, Consulting Biologist Page 8 of 9 ito taken on 20 Sep - showing a patch of stal bluff scrub ap- 200 feet southwest of Drive, on the south - cross the streetfrom Drive. Most of this t planted with exotic but this photo ,h of native Coastal and California Sun- Figure 9. Photo taken tember 2008 showing southern coastal bluff proximately 90 feet so 2333 Pacific Drive, on facing bluff across the 2319 Bayside Drive. A 8, this photo shoe Coastal Prickly -pear a nia Sunflower. Conclusion At 2333 Pacific Drive, and in nearby areas, I have documented the existence of southern coastal bluff scrub, a plant community identified as rare by the California Department of Fish and Game. The property could also support listed or otherwise sensitive plant species. Given that no site - specific biological study has been completed on this site, inadequate information is available to determine whether protection of some portion of the property would be necessary in order to achieve consistency with Policies NR 10.1, 10.4, and 10.5 of the Natural Resources Element of the City's General Plan. Biological Evaluation, 2333 Pacific Drive, Newport Beach, CA September 22, 2008 Robert A. Hamilton, Consulting Biologist Page 9 of 9 Under the City's LCP /CLUP, southern coastal bluff scrub is presumed to meet the requirements of ESHA under the Coastal Act. The property could also support listed or otherwise sensitive plant species that would also require protection under the LCP /CLUP. If any recipient of this letter wishes to further discuss any matters, please call me at 562- 477 -2181 or send e-mail to robb@rahamilton.com. Sincerely, Robert A. Hamilton Consulting Biologist cc: Robin Clauson, City Attorney David Lepo, City Planning Director Patrick Alford, City Planning Manager Friends of Begonia Park c/o Howett Isaza Law Group LLP Attachment: Curriculum Vitae Robert A. Hamilton Curriculum Vitae 316 Monrovia Avenue Long Beach, CA 90803 Expertise CEQA Analysis General Biological Surveys Endangered Species Surveys 562 -477 -2181 562 -433 -5292 fax robb @rahamilton.com Avian Population Monitoring Open Space Planning Natural Lands Management Education 1988. Bachelor of Science degree in Biological Sciences, University of California, Irvine. Professional Experience 1995 to Present. Independent Biological Consultant. 1988 to 1995. Biologist, LSA Associates, Inc. 1987 to 1988. Independent Biological Consultant. Other Relevant Experience Field Ornithologist, San Diego Natural History Museum Scientific Collecting Expedition to Cen- tral and Southern Baja California, October/ November 1997 and November 2003. Field Ornithologist, Island Conservation and Ecology Group Expedition to the Tres Marias Is- lands, Nayarit, Mexico, 23 January to 8 February 2002. Field Ornithologist, Algalita Marine Research Foundation neustonic plastic research voyages in the Pacific Ocean, 15 August to 4 September 1999 and 14 to 28 July 2000. Field Assistant, Bird Banding Study, Rio llambi Reserve, Colombia, January to March 1997. Board Memberships, Advisory Positions, Etc. Coastal Cactus Wren Working Group (2008) American Birding Assoc.: Baja Calif. Peninsula Reg. Editor, North American Birds (2000 -2006) Western Field Ornithologists: Associate Editor of Western Birds (1999 -2008) California Bird Records Committee (1998 -2001) Nature Reserve of Orange County: Technical Advisory Committee (1996 -2001) California Native Plant Society, Orange County Chapter: Conservation Chair (1992 -2003) Other Professional Affiliations American Ornithologists' Union Cooper Ornithological Society Institute for Bird Populations Southern California Academy of Sciences Western Foundation of Vertebrate Zoology Permits Federal 10(A)1(a) Permit No. TE- 799557 to survey for the Coastal California Gnatcatcher and Southwestern Willow Flycatcher (expires 5 March 2012) Federal Bird Banding Subpermit No. 20431 (expires 31 January 2011) State of California Scientific Collecting Permit No. SC- 001107 (expires 15 March 2009) Insurance $2,000,000 general liability policy (Hartford) $1,000,000 auto liability policy (State Farm) Curriculum Vitae, Page 2 Principal Professional Qualifications Robert A. Hamilton Perform field work throughout southern California, including 1) floral and faunal surveys, 2) directed surveys for sensitive plant and animal species, including the California Gnatcatcher, Southwestern Willow Flycatcher, and Least Bell's Vireo, 3) open space monitoring and manage- ment, 4) vegetation mapping, and 5) bird banding. Recent experience includes: Since 2007, have reviewed biological resources sections of CEQA documents submitted to the County of Los Angeles Department of Regional Planning. Prepared the Department's approved list of drought - tolerant native plants for use in landscaping throughout Los Angeles County. Worked with study- design specialists and resource agency representatives to develop the long- term passerine bird monitoring program for the Nature Reserve of Orange County, and have directed its implementation since 1996. This includes 1) annual monitoring of 40 California Gnatcatcher and Cactus Wren study sites, 2) oversight of up to 10 constant - effort bird banding stations from 1999 to 2003 under the Monitoring Avian Productivity and Survivorship (MAPS) program, and 3) focused surveys for the Cactus Wren throughout the NROC's coastal reserve in 2006 and 2007. Served as the City of Orange's Project Biologist for the Santiago Hills II /East Orange Planned Community project, developed by The Irvine Company near Irvine Lake in central Or- ange County (SEIR /EIR certified in November 2005). Having prepared biological technical reports for numerous CEQA documents for projects throughout southern California, I am highly qualified to provide professional, third -party re- view of CEQA documents. Apart from my work under contract to the County of Los Angeles Department of Regional Planning, I have professionally reviewed EIRs and other project docu- mentation for the following projects: The Ranch Plan (residential/ commercial, County of Orange) Southern Orange County Transportation Infrastructure Improvement Project (Foothill South Toll Road, County of Orange) Tonner Hills (residential, City of Brea) Villages of La Costa Master Plan (residential/ commercial, City of Carlsbad) Whispering Hills (residential, City of San Juan Capistrano) Santiago Hills II (residential/ commercial, City of Orange) Rancho Potrero Leadership Academy (youth detention facility/road, County of Orange) Saddle Creek /Saddle Crest (residential, County of Orange) Frank G. Bonelli Regional County Park Master Plan (County of Los Angeles) References provided upon request. Selected Presentations Hamilton, R. A., Miller, W. B., Mitrovich, M. J. 2008. Cactus Wren Study, Nature Reserve of Orange County. Twenty- minute Powerpoint presentation given at the Nature Reserve of Orange County's Cactus Wren Symposium, Irvine, California, 30 April 2008. Curriculum Vitae, Page 3 Robert A. Hamilton Hamilton, R. A. 2006. 1999 -2004 Results of Annual California Gnatcatcher and Cactus Wren Monitoring in the Nature Reserve of Orange County. Twenty- minute Powerpoint presentation given at the Partners In Flight meeting: Conservation and Man- agement of Coastal Scrub and Chaparral Birds and Habitats, Starr Ranch Audubon Sanctuary, 21 August 2004. Hamilton, R. A. and K. Messer. 1999 -2004 Results of Annual California Gnatcatcher and Cactus Wren Monitoring in the Nature Re- serve of Orange County. Twenty- minute Powerpoint presentation given at the Partners In Flight meeting: Conservation and Management of Coastal Scrub and Chaparral Birds and Habitats, Starr Ranch Audubon Sanctuary, 21 August 2004; and at the Nature Reserve of Orange County 10'" Anniversary Symposium, Irvine, California, 21 November 2006. Hamilton, R.A. and K. Messer. 1999 -2001 Results of Annual California Gnatcatcher Monitoring in the Nature Reserve of Orange County. Twenty- minute Powerpoint presentation given at the Western Field Ornithologists' annual meeting, Costa Mesa, California, 11 October 2002- Hamilton, R.A. Preliminary results of reserve -wide monitoring of California Gnatcatchers in the Nature Reserve of Orange County. Twenty - minute Powerpoint presentation given at the Southern California Academy of Sciences annual meeting at Califor- nia State University, Los Angeles, 5 May 2001. Publications Erickson, R. A., R. A. Hamilton, and S. G. Mlodinow. 2008. Status review of Belding's Yellowthroat Geofhlypis beidingi, and implica- tions for its conservation. Bird Conservation International 18:219 -228. Hamilton, R. A. 2008. Fulvous Whistling -Duck (Dendrocygna bicolor). Pp. 68 -73 in Shuford, W. D. and T. Gardah, eds. 2008: California Bird Species of Special Concern: A ranked assessment of species, subspecies, and distinct populations of birds of immedi- ate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, CA, and Cali- fornia Department of Fish and Game, Sacramento, CA. California Bird Records Committee (R. A. Hamilton, M. A. Patten, and R. A. Erickson, editors.). 2007. Rare Birds of California. West - em Field Ornithologists, Camarillo, CA. Hamilton, R. A. and P. A. Gaede. 2005. Pink -sided x Gray- headed Juncos. Western Birds 36:150 -152. Mlodinow, S. G. and R. A, Hamilton. 2005. Vagrancy of Painted Bunting (Passerine ciris) in the United States, Canada, and Bermuda. North American Birds 59:172 -183. Erickson, R. A., R. A, Hamilton, S. GonzSlez- GuzmSn, G. Ruiz-Campos. 2002. Primeros registros de anidacibn del Pato Friso (Anus strepera) en Mexico. Anales del Instituto de Biologfa, Universidad Nacional Autdnoma de Mexico, Serie Zoologfa 73(1): 67- 71. Hamilton, R. A. and J. L. Dunn. 2002. Red -naped and Red - breasted sapsuckers. Western Birds 33:128 -130. Hamilton, R. A. and S. N. G. Howell. 2002. Gnatcatcher sympatry near San Felipe, Baja California, with notes on other species. West- ern Birds 33:123 -124. Hamilton, R. A., R. A. Erickson, E. Palacios, and R. Carmona. 2001+. North American Birds quarterly reports for the Baja California Peninsula Region starting with the Fall 2000 season. Hamilton, R. A. 2001. Book review: The Sibley Guide to Birds. Western Birds 32:95 -96. Hamilton, R. A. and R. A. Erickson. 2001. Noteworthy breeding bird records from the Vizcafno Desert, Baja California Peninsula. Pp. 102 -105 in Monographs in Field Ornithology No, 3, American Birding Association, Colorado Springs, CO. Hamilton, R. A. 2001. Log of bird record documentation from the Baja California Peninsula archived at the San Diego Natural His- tory Museum. Pp. 242 -253 in Monographs in Field Ornithology No. 3. American Birding Association, Colorado Springs, CO. Hamilton, R. A. 2001. Records of caged birds in Baja California. Pp. 254 -257 in Monographs in Field Ornithology No. 3. American Birding Association, Colorado Springs, CO. Erickson, R. A., R. A. Hamilton, and S. N. G. Howell. 2001. New information on migrant birds in northern and central portions of the Baja California Peninsula, including species new to Mexico. Pp. 112 -170 in Monographs in Field Ornithology No. 3. Amer- ican Birding Association, Colorado Springs, CO. Howell, S. N. G., R. A. Erickson, R. A. Hamilton, and M. A. Patten. 2001. An annotated checklist of the birds of Baja California and Baja California Sur. Pp. 171 -203 in Monographs in Field Ornithology No, 3. American Birding Association, Colorado Springs, CO- Ruiz-Campos, G., GonzAlez- Guzm6n, S., Erickson, R. A., and Hamilton, R. A. 2001. Notable bird specimen records from the Baja California Peninsula. Pp, 238 -241 in Monographs in Field Ornithology No. 3. American Birding Association, Colorado Springs, CO. W urster, T. E., R. A. Erickson, R. A. Hamilton, and S. N. G. Howell. 2001. Database of selected observations: an augment.to new information on migrant birds in northern and central portions of the Baja California Peninsula. Pp. 204 -237 in Monographs in Field Ornithology No. 3. American Birding Association, Colorado Springs, CO. Curriculum Vitae, Page 4 Robert A. Hamilton Erickson, R. A. and R. A. Hamilton, 2001. Report of the California Bird Records Committee: 1998 records. Western Birds 32:13 -49. Hamilton, R. A., J. E. Pike, T. E. W urster, and K. Radamaker, 2000. First record of an Olive- backed Pipit in Mexico. Western Birds 31:117 -119. Hamilton, R. A. and N. J. Schmitt. 2000. Identification of Taiga and Black Merlins. Western Birds 31 :65 -67. Hamilton, R. A. 1998. Book review: Atlas of Breeding Birds, Orange County, California. Western Birds 29:129 -130. Hamilton, R. A. and D. R, W Black. 1996. The Birds of Orange County, California: Status and Distribution. Sea & Sage Press, Sea & Sage Audubon Society, Irvine. Hamilton, R. A. 1996 -98. Photo Quizzes. Birding 27(4):298,301, 28(1):4650, 28(4):309,313, 29(1): 59-64,30(1):55-59. Erickson, R. A., and Hamilton, R. A. 1995. Geographic distribution: Lampmpeltis getula cnliforniae (California Kingsnake) in Baja Cali- fornia Sur. Herpetological Review 26(4):210. Bontrager, D. R., R. A. Erickson, and R. A. Hamilton. 1995. Impacts of the October 1993 Laguna fire on California Gnatcatchers and Cactus Wrens. in J. E. Keeley and T. A. Scott (editors). Wildfires in California Brushlands: Ecology and Resource Manage- ment, International Association of W ildland Fire, Fairfield, Washington. Erickson, R. A., R. A. Hamilton, S. N. G. Howell, M. A. Patten, and P. Pyle. 1995. First record of Marbled Murrelet and third record of Ancient Murrelet for Mexico. Western Birds 26: 39-45. Erickson, R. A., and R. A. Hamilton. 1993. Additional summer bird records for southern Mexico. Euphonia 2(4):81 -91. Erickson, R. A., A. D. Barron, and R. A. Hamilton. 1992. A recent Black Rail record for Baja California. Euphonia 1(1): 19 -21. HOWBTT ISAZA LAW GROUP LLP www.HtLawGroup.com "RECEIV D AFTER AGE DA PRINTED:" - � o Pasadena Office 56 E. Holly Street, Suite 220 Pasadena, CA 91103 ph 626 564 9400 fa 626 564 9401 thowett@HiLawGroup.com September 22, 2008 VIA EMAIL AND PERSONAL DELIVERY Mayor Ed Selich and Members of the City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Reply to Orange County Office 19742 MacArthur Boulevard, Ste. 25o Irvine CA 92612 ph 949 632 386o fz 949 2o9 3969 jisaza@I4iLawGroup.com Re: September 23.2008 Hearing on Appeal of Planning Commission Approval of Megonigal Residence (2333 Pacific Drive, Corona del Mar) Dear Mayor Selich and City Council: This firm represents the Friends of Begonia Park ( 'Friends'), a group of several hundred concerned neighbors and citizens in the City of Newport Beach, in connection with Friends' efforts to preserve the historic and cherished public views from Begonia Lookout Point, Begonia Park, and Begonia Avenue in Corona del Mar. These spectacular views of the Pacific Ocean, its beaches - Big Corona, the Wedge and the Balboa Peninsula - to the South and the Harbor entrance and Newport Harbor to the West, are unparalleled on the Southern California Coast, and provide Newport Beach, and the Begonia Park neighborhood, with its unique character. Those important public views will be virtually destroyed by the proposed construction of a single family residence at the South edge of Begonia Park, at the intersection of Begonia Avenue and Pacific Avenue, generally referred to as 2333 Pacific Avenue, or the Megonigal residence, which was approved by the Planning Commission on August 21, 2008. The Planning Commission approval was appealed at Friends' request by Corona del Mar's councilperson, Nancy Gardner, on August 28, 2008. The appeal has been scheduled for hearing before the full Council this Tuesday, September 23, 2008. We write to assert our client's objections to the approval of any structure at 2333 Pacific Avenue which would interfere with the public views from the Lookout Point, the Park, and Begonia Avenue. Friends believe the Council must not permit these views to be appropriated by a private landowner, but must ensure that these views are preserved for the enjoyment of all, as required by applicable statutory law and local ordinance. c:7. -iJ to 1 LAi ' 1 co Re: September 23.2008 Hearing on Appeal of Planning Commission Approval of Megonigal Residence (2333 Pacific Drive, Corona del Mar) Dear Mayor Selich and City Council: This firm represents the Friends of Begonia Park ( 'Friends'), a group of several hundred concerned neighbors and citizens in the City of Newport Beach, in connection with Friends' efforts to preserve the historic and cherished public views from Begonia Lookout Point, Begonia Park, and Begonia Avenue in Corona del Mar. These spectacular views of the Pacific Ocean, its beaches - Big Corona, the Wedge and the Balboa Peninsula - to the South and the Harbor entrance and Newport Harbor to the West, are unparalleled on the Southern California Coast, and provide Newport Beach, and the Begonia Park neighborhood, with its unique character. Those important public views will be virtually destroyed by the proposed construction of a single family residence at the South edge of Begonia Park, at the intersection of Begonia Avenue and Pacific Avenue, generally referred to as 2333 Pacific Avenue, or the Megonigal residence, which was approved by the Planning Commission on August 21, 2008. The Planning Commission approval was appealed at Friends' request by Corona del Mar's councilperson, Nancy Gardner, on August 28, 2008. The appeal has been scheduled for hearing before the full Council this Tuesday, September 23, 2008. We write to assert our client's objections to the approval of any structure at 2333 Pacific Avenue which would interfere with the public views from the Lookout Point, the Park, and Begonia Avenue. Friends believe the Council must not permit these views to be appropriated by a private landowner, but must ensure that these views are preserved for the enjoyment of all, as required by applicable statutory law and local ordinance. For the reasons set forth below, Friends respectfidly ask the-Council to act as a responsible steward of these irreplaceable public assets and deny approval of the Megonigal project as proposed, or, in the alternative, condition its approval on preservation of the public view and other protections provided in the City's General Plan and Local Coastal Plan, as well as California's Coastal Act and Environmental Quality Act. L Legal Protections of Views from Begonia Park A. Historic Overview Begonia Park was established by the City of Newport Beach in 1904. The park contains three distinct public views from the upper portion of the park (at the top of the bluff) which have therefore taken on historical significance. The first is the view from the park itself The second is from Begonia Avenue, which borders the Western edge of the park. The third is the Begonia Park Lookout Point, at the Southern edge of the bluff. In fact, until recently the City had placed a bench at Lookout Point, above a set of stairs that led down the bluff face to the lower portion of the park, so that all could enjoy the incredible view of the ocean, the beaches, and the harbor below. The parcel which now constitutes the Megonigal property was created in 1964 by the city's abandonment of a public road easement which was to be the extension of Pacific Avenue down the bluff to connect with Bayside Avenue. Presumably the City decided to abandon the Pacific Avenue extension in order to preserve the park and its bluff -top views. The fast owners of the parcel created by the City's abandonment of the easement, the Griswolds, tried to develop the property in the late 1970s. However, the City denied the Griswolds' proposal to construct a house on the site on the basis that it would impact the public view. At the time we understand that there was some discussion between the City and the Griswolds that the City would acquire the parcel through its power of eminent domain in order to preserve the public views from the park, but budget constraints at the time left these efforts unresolved. As a result, though the parcel remains privately owned (now owned by the applicants the Megonigals), the public views from Begonia Park have remained unencumbered for more than 100 years. A picture speaks a thousand words. We encourage each Council member to visit Begonia Park and enjoy its viewpoints. For the benefit of those who have not yet had the opportunity to do so, attached as Exhibit "1" please find a photograph which depicts the Begonia views that will be impacted (as indicated by the story poles erected on the property last month). We acknowledge that the photograph on which the height of the Megonigal story poles is plotted was taken several years ago (the bench in the foreground has since been changed by the City), but the point is to illustrate the public views which will no longer exist if the house is constructed as proposed 2 B. The Proposed Construction Violates the City's General Plan The General Plan provides the following unambiguous protections of public view as an historic, aesthetic or open space public asset (all finihher citations to the City's General Plan will be to the Natural Resources Element, and are designated "NR" ). "NR 17 Maintenance and expansion of designated open space resources. NR 17.1 Open Space Protection Protect, conserve, and maintain designated open space areas that define the City's urban form, serve as habitat for many species, and provide recreational opportunities. NR 17.2 Other Uses of Public Sites Designated for Open Space Consider conversion of public sites designated for open space to other uses only when a conversion will meet a significant need, and there are no alternative sites that could feasibly meet that need. (Emphasis added; also see NR 17.3) NR 20 Preservation of significant visual resources. NR 20.1 Enhancement of Significant Resources Protect and, where feasible, enhance significant scenic and visual resources that include open space, mountains, canyons, ridges, ocean, and harbor from public vantage points, as shown in Figure NR3. NR 20.2 Require new development to restore_and enhance the visual uaatity in visually deeraded areas, where feasible, and _provide view easements or corridors desiened to protect public views or to restore -public views in developed areas, where appropriate. NR 20.3 Protect and enhance public view corridors from the following roadway segments (shown in Figure NR3), and other locations (which] may be identified in the future." Approval of the Megonigal project as proposed violates the General Plan public view preservation policies. C. The Proposed Construction Violates the Coastal Land Use Plan (CLUP) The CLUP, specifically Sections 4.1 and 4.4, consistent with the Coastal Act (Section 30251), also contains unambiguous protections of public view which mirror the General Plan: "CLUP 4.4.1 Coastal-Views Newport Beach is located in a unique physical setting that provides a variety of spectacular coastal views, including those of the open waters of the ocean and bay, sandy beaches, rocky shores, wetlands, canyons, and coastal bluffs. The City has historically been sensitive to the need to protect and provide access to these scenic and visual resources and has developed a system of public parks, piers, trails, and viewing areas. Coastal views are also provided from a number of streets and highways and, due to the grid street pattern in Western Newport, Balboa Peninsula, Balboa Island, and Corona del Mar, many north -south tending streets provide view corridors to the ocean and bay. CLUP 4.4.1 -1 Protect and, where feasible, enhance the scenic and visual Approval of the Megonigal project as proposed violates the CLUP public view preservation policies. D. Further Existing Protections In fact, the Begonia Park Lookout Point is already formally designated by the City as a public view point. Coastal View Map 4-3, prepared in accordance with the General Plan and the CLUP, specifically designates Begonia Park and Begonia Park Lookout Point as a Public View Point. A copy of Map 4 -3, from the City's website, is attached as Exhibit 2. qualities of the coastal zone including public views to and along the ocean bay, and harbor and to coastal bluffs and other scenic coastal areas. CLUP 4.4.1 -2 Design and site new development including landscning so as to minimize impacts to public coastal-views. CLUP 4.4.14 Where appropriate, require new development to provide view easements or corridors designed to protect public coastal views or to restore public coastal views in developed areas. CLUP 4.4.1 -7 Design and site new development, including landscaping, on the edges of public coastal view corridom including those down public streets, to frame and accept public coastal views CLUP 4.4.1 -9 Where feasible, provide public trails recreation areas An viewing areas adjacent to public coastal view corridors " Approval of the Megonigal project as proposed violates the CLUP public view preservation policies. D. Further Existing Protections In fact, the Begonia Park Lookout Point is already formally designated by the City as a public view point. Coastal View Map 4-3, prepared in accordance with the General Plan and the CLUP, specifically designates Begonia Park and Begonia Park Lookout Point as a Public View Point. A copy of Map 4 -3, from the City's website, is attached as Exhibit 2. In addition, the City's Zoning Code also offers specific protections of public view during the planning process. Section 20.65.030(B)(3)(b) provides that in establishing grade for any residential project the Planning Commission "shall make the following findings ": "That the proposed grade and related development will not result in the loss of any public views." The Planning Commission did not make this finding in approving the Megonigal project on August 21. In conjunction with this proceeding, Friends also now formally request that the ocean and harbor views from Begonia Avenue be specifically designated as a public view corridor consistent with the General Plan and the CLUP. It is our understanding that this request is typically made to the Planning Commission, but as these issues are being considered by the full Council, Friends make this request at this time. E. Coastal Development Permit The Planning Commission, in accepting the Staff Report recommendation to approve the Megonigal application on August 21, apparently relied on staffs belief that the Categorical Exclusion Order E -77 -5 (the "CatX ") applies, and therefore no Coastal Development Permit is required for this project. Friends disagree. We believe that the CatX expired on adoption of the CLUP in December of 2005. Therefore, the applicant should be required to obtain a Coastal Development Permit from the Coastal Commission prior to continuing with this project. Il. Legal Protections of the Coastal Bluff Landform A. The Proposed Construction Violates the City's General Plan The General Plan also provides the following protections of the coastal bluff landforms and biological diversity on the bluffs as a significant public asset. [See specifically NR 23 (landform) and NR 10 (biological) policies, portions of which are quoted below.] "NR 23.1 Maintenance of Natural Topography Preserve cliffs, canyons, bluffs, significant rock outcroppings, and site building to minimize alteration of the site's natural topography and preserve the features as a visual resource. NR 23.7 New Development Design and Siting Design and site new development to minimize the removal of native vegetation, preserve rock outcroppings, and protect coastal resources. W NR 10.3 Analysis of Envimumentai Study Areas Require a site - specific survey anted yaWis preawred by a qualified biologist as a filing requirement for an development permit applications where development would occur within or contigpous to areas identified as ESAs. NR 10.4 New Development Siting and Design Require flint-the siting and design of new developmeut. iacludieg landscaping and public access. protect sensitive or rare resources ggaius any si gnificaut disruption of habitat values." Approval of the Megonigal project as proposed violates these General Plan landform and biological diversity preservation policies, as is set forth in the reports of Friends' biologist, Robb Hamilton, and Mr. Jan Vandersloot, discussed below. B. The Proposed Construction Violates the Coastal Land Use Plan The CLUP also provides the following protections of the coastal bluff landforms and biological diversity on the bluffs as a significant public asset. [See generally CLUP 4.1 and specifically 4.1.1 -1 and 4.1.1 -2, 4.4 and specifically 4.4.3 (excerpted below), 4.6, and 4.71 "CLUP 4.43 -12 Employ site design and construction techniques to minimize alteration of the coastal bluff's to the maximum extent feasible. CLUP 4.43 -15 Design anti site new development to minimize the removal of native vegetation. preserve_rock outcroppings. and protect coastal resources." Approval of the Megonigal project as proposed violates these CLUP landform and biological diversity preservation policies, as is set forth in the reports of Friends' biologist, Robb Hamilton, and Mr. Jan Vandersloot, discussed below. C. Both View and Landform Protections Must be Considered In reviewing the Megonigal project in April of this year, and in approving it on August 21, the Planning Commission tried to strike a balance between public view protection and coastal bluff protection, finding that the latter could be subjugated to the former if necessary under the circumstances. Friends do not disagree that public view protection is a preeminent public resource which must be preserved here, but note that it is uncertain that the General Plan and the CLUP, or the Coastal Act and CEQA for that matter, consider one less important than the other. Both, in our view, must be evaluated, and protected, separately. III. An Environmental Impact Report Is Required The Staff Report provided to the Planning Commission in conjunction with the August 21, 2008 hearing at which it issued its approval contends that the Megonigal project is categorically exempt under CEQA in that it "contains no environmentally significant resources on site." However, it notes that this exemption does not apply for any construction `where there is a reasonable possibility that the activity will have a significant effect on the environment." Therefore, either a negative declaration or an Environmental Impact Report will have to be prepared. Friends assert that the site should be designated as an environmental study area, and that either a negative declaration or an EIR should be prepared before the project is permitted to proceed further. Friends disagree with the assertion that the site contains no environmentally significant resources. On the contrary, ample evidence exits to suggest that the site contains environmentally significant resources. Friends' biologist Robb Hamilton has indicated in his letter of this date to the City Council that he has found the existence of protected plant species on the site, including coastal bluff shrub, which require further study. Mr. Jan Vandersloot, in his September 15, 2008 letter to the City Council in connection with this hearing, has provided evidence of similar findings. At a minimum, the evidence before the City Council suggests that there is a `reasonable possibility" that the construction will significantly impact environmental resources on the site. IV. Alternatives to the Proposed Construction As can be seen from the points raised above, the City Council's approval of this project will ensure an appeal to the Coastal Commission, and possibly subsequent litigation. Friends contend that the project should be denied. It violates the City's General Plan and the Coastal Land Use Plan. Further, it requires the preparation of an EIR. Friends point out that other alternatives may exist, however. A. Acquire the Property The simplest solution to this conundrum is for the City to acquire the Megonigal property and dedicate it as a part of Begonia Park, thus assuring its use by all residents, and the public, in perpetuity. The City can do this via its power of eminent domain or by entering into discussions with the property owner to donate or trade the property. Such an investment in the preservation of this important public resource is warranted here. In considering this alternative, the City should evaluate the potential diminution in value of this public asset which would occur as a result of the destruction of the public views from Begonia Park, the Lookout Point, and Begonia Avenue. According to Mr. Dan Spletter, a local commercial real estate broker, longtime resident and one of Friends' Board members, approving the Megonigal project as proposed, with the resulting loss of public views, could result in a potential diminution in value of the Begonia Park on the order of $1 million to $3 million dollars. Mr. Spletter will offer testimony on this subject at the Council hearing tomorrow. B. Require Entry at Base of Bluff The City also could deny the project and investigate alternatives with the property owner concerning a redesign to accommodate access at the base of the Begonia Park bluff. This could eliminate the need for the garage portion of the property at Begonia and Pacific which would block public views from the Park, the Lookout Point, and Begonia Avenue. A land owner is only entitled to "reasonable economic use" of his property, not "maximum economic use." The City could consider granting an easement to the property owner through the lower portion of Begonia Park, which does not have the same public view issues or potential environmental issues, off of Bayside Drive, for access to a garage at the lower portion of the property. It is our understanding that two homes at the base of the slope already have easements through the lower portion of the Park for such access. We therefore ask that the Council direct the Planning Department to investigate this alternative and make recommendations on its feasibility. We thank you for your consideration of our objections, and look forward to discussing them with you at the September 23, 2008 Council Meeting. Please do not hesitate to contact us should you have any questions or comments. Very truly yours, Timothy M. Howett cc: Ms. Robin Clauson, City Attorney (via E Mail only) Mr. David Lepo, Planning Director (via E Mail only) Mr. Patrick Alford, Planning Manager (via E Mail only) Friends of Begonia Park EXHIBIT 661" Ilk, Lmill�; -Flqw A EXHIBIT " 2" i 4Ad , 4 e" MlWtd Xmd pefodoid euol uognwl 14boN ammeus ' fivow" Apo AlepUm q — 116MOO ^v oeoa m A InssoO luod man NWId aN3`J3l £-4 deal SMOIA fe)se0Z) �1 \ 'r � K- ueld ash puel lelseoO weJ8oid le)seoo leoo-I ee,v ao.e., e p a-eeg l,comeN Ic VMS ,i� ='k ueld ash puel lelseoO weJ8oid le)seoo leoo-I ee,v ao.e., e p a-eeg l,comeN Ic VMS