HomeMy WebLinkAbout01-02-2012_Agenda_PacketCITY OF NEWPORT BEACH
HEARING OFFICER AGENDA
Newport Beach City Hall, Council Chambers
{F09L 3300 Newport Boulevard
February 1, 2012 — 9:30 a.m.
Judge John C. Woolley, Hearing Officer
Staff Members:
Brenda Wisneski, AICP Deputy Community Development Director
Javier Garcia, AICP Senior Planner
1) CALL MEETING TO ORDER
2) PUBLIC HEARINGS
Item No. 1. Abatement Period Extension Request - 500 Jasmine Avenue - Abatement Period
Extension No. PA2011 -012
500 Jasmine Avenue Council District 6
Summary: Application for extension of the abatement period in accordance with Section
20.38.100 of the Newport Beach Municipal Code. The property is occupied by a
1,050 square foot office building. No new development or construction is
associated with this request. The applicant requests to allow the existing
nonresidential use to continue for an extended period of time without abatement.
The property is located in the R -2 (Two -Unit Residential) District.
Recommended
Action: 1) Conduct public hearing; and
2) Hearing Officer determination. Options include continuance, approval of
Abatement Period Extension No. PA2011 -012 with conditions, or denial of
abatement period extension. In the latter two cases, the Hearing Officer
may instruct staff to prepare a Resolution for signature.
CEQA
Compliance: The project is exempt from environmental review pursuant to Section 15301, Class
1 (Existing Facilities) of the Implementing Guidelines of the California Environmental
Quality Act.
This hearing is subject to the Ralph M. Brown Act. Among other things, the Brown Act requires that the Hearing Officer's
agenda be posted at least seventy -two (72) hours in advance of each regular hearing and that the public be allowed to
comment on agenda items before the Hearing Officer and items not on the agenda but are within the subject matter
jurisdiction of the Hearing Officer. The Hearing Officer may limit public comments to a reasonable amount of time,
generally three (3) minutes per person.
It is the intention of the City of Newport Beach to comply with the Americans with Disabilities Act ( "ADA ") in all respects.
If, as an attendee or a participant at this hearing, you will need special assistance beyond what is normally provided, the
City of Newport Beach will attempt to accommodate you in every reasonable manner. If requested, this agenda will be
made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation
thereof. Please contact the Community Development Department at least forty -eight (48) hours prior to the hearing to
inform us of your particular needs and to determine if accommodation is feasible at 949 - 644 -3200.
Item No. 2. Abatement Period Extension Request — 3355 Via Lido- Abatement Period
Extension No. PA2011 -153
3355 Via Lido Council District 1
Summary: Request for extension of the required Abatement Period specified by Section
20.38.100 of the Newport Beach Municipal Code. The property is occupied by a
31,413 square -foot office building. No new development or construction is
associated with this request. The applicant requests to allow the existing
nonresidential use to continue for an extended period of time without abatement.
The property is located in the RM (2178) (Multi -Unit Residential) District.
Recommended
Action: 1) Conduct public hearing; and
2) Hearing Officer determination. Options include continuance, approval of
Abatement Period Extension No. PA2011 -153 with conditions, or denial of
abatement period extension. In the latter two cases, the Hearing Officer
may instruct staff to prepare a Resolution for signature.
CEQA
Compliance: The project is exempt from environmental review pursuant to Section 15301, Class
1 (Existing Facilities) of the Implementing Guidelines of the California Environmental
Quality Act.
Item No. 3.. Abatement Period Extension Request — 1499 Monrovia Avenue- Abatement
Period Extension No. PA2011 -152
1499 Monrovia Avenue Council District 2
Summary: Request for extension of the required Abatement Period specified by Section
20.38.100 of the Newport Beach Municipal Code. The property is occupied by a
17,000 square -foot office building. No new development or construction is
proposed as a part of this request. The applicant requests to allow the existing
nonresidential use to continue for an extended period of time without abatement.
The property is located in the RM (2420) (Multi -Unit Residential) District.
Recommended
Action: 1) Conduct public hearing; and
2) Hearing Officer determination. Options include continuance, approval of
Abatement Period Extension No. PA2011 -152 with conditions, or denial of
abatement period extension. In the latter two cases, the Hearing Officer
may instruct staff to prepare a Resolution for signature.
CEQA
Compliance: The project is exempt from environmental review pursuant to Section 15301, Class
1 (Existing Facilities) of the Implementing Guidelines of the California Environmental
Quality Act.
3) PUBLIC COMMENTS ON NON - AGENDA ITEMS
Public comments are invited on non - agenda items generally considered to be within the subject
matter jurisdiction of the Hearing Officer. Speakers must limit comments to three (3) minutes. Before
speaking, we invite, but do not require, you to state your name for the record. The Hearing Officer
has the discretion to extend or shorten the speakers' time limit on non - agenda items, provided the
time limit adjustment is applied equally to all speakers. As a courtesy, please turn cell phones off or
set them in the silent mode.
4) ADJOURNMENT
2
REV: 12 -7 -11
If in the future, you wish to challenge in court any of the matters on this agenda for which a public hearing
is to be conducted, you may be limited to raising only those issues which you (or someone else) raised
orally at the public hearing or in written correspondence received by the City at or before the hearing.
Any writings or documents provided to the Hearing Officer regarding any item on this agenda will be
made available for public inspection in the office of the Planning Division located at 3300 Newport
Boulevard, during normal business hours.
APPEAL PERIOD: An appeal may be filed with the Director of Community Development or City Clerk, as
applicable, within fourteen (14) days following the date the action or decision was rendered unless a
different period of time is specified by the Municipal Code (e.g., Title 19 allows ten (10) day appeal period
for tentative parcel and tract maps, lot line adjustments, or lot mergers). For additional information on
filing an appeal, contact the Planning Division at 949 644 -3200.
3
REV: 12 -7 -11
ABATEMENT EXTENSIONS
500 JASMINE AVENUE (PA201 1 -012) — Yeo
3355VIA LIDO (PA201 1 -153) — New PortTownhomes LLLC
1499 MONROVIA AVENUE (PA201 1 -152) - Kaplan
HEARING OFFICER
Public Hearing
FEBRUARY I, 2012
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FINDINGS AND RECOMMENDATION
500 JASMINE AVENUE (Office Building
FINDINGS:
*One year is not an adequate period of time.
*The property became nonconforming in 2006, 6 years ago.
*The 1,050 square -foot building is not suitable for conversion to
residential use without significant demolition and building new.
•The property is located in an area with other nonresidential uses;
including office, restaurant and retail uses across Jasmine Avenue and
on Coast Highway and poses no negative impact or harm to the
neighborhood.
RECOMMENDATION:
-PAn abatement extension of ten years (February 1, 2022) is appropriate
in this case.
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FINDINGS AND RECOMMENDATION
3355 VIA LIDO (Office Building
FINDINGS:
*One year is not an adequate period of time to obtain building permit
entitlement through the City and the Coastal Commission for the
construction of the new residential project..
*The property became nonconforming in 2006, 6 years ago and
conformed for 49 years prior to that time.
•The 31,413 square -foot office building is not suitable for conversion to
residential use without significant demolition and building new.
*The property is located in an area with other nonresidential uses and
churches; including office, restaurant and retail uses, and poses no
negative impact or harm to the neighborhood.
*The relocation of the existing 31,413 square feet of tenant space
would be costly and difficult, since there are limited numbers of
comparable vacant storefront units or buildings available in the vicinity.
RECOMMENDATION:
-PAn abatement extension of ten years (February 1, 2022) is appropriate
in this case.
VICINITY MAP - 1499 MONROVIAAVENUE
FINDINGS AND RECOMMENDATION
1499 MONROVIA AVENUE (Office Building)
FINDINGS:
*One year is not an adequate period of time.
*The property became nonconforming in 2006, 6 years ago and
conformed for 49 years prior to that time.
•The 17,000 square -foot office building is not suitable for conversion to
residential use without significant demolition and building new.
*The property is located in an area with other and public institutions;
including the Coastline Community College Project and the proposed
Banning Ranch Project and poses no negative impact or harm to the
neighborhood.
*The relocation of the existing tenant is difficult since there are no
buildings of comparable size in the Newport Mesa Area.
RECOMMENDATION:
-PAn abatement extension of ten years (February 1, 2022) is appropriate
in this case.
CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
February 1, 2012 Meeting
Agenda Item 1
SUBJECT: Abatement Period Extension - 500 Jasmine Avenue - (PA2011 -012)
APPLICANT: Ron and Birgitta Yeo, Property Owners
PLANNER: Javier S. Garcia AICP, Senior Planner
(949) 644 -3206, jgarcia @newportbeachca.gov
PROJECT SUMMARY
Application for extension of the abatement period in accordance with Section 20.38.100
of the Newport Beach Municipal Code. The property is occupied by a 1,050 square foot
office building. No new development or construction is proposed at this time. The
applicant wishes to allow the existing nonresidential use to continue for an extended
period of time without abatement.
RECOMMENDATION
Staff recommends the Hearing Officer conduct a public hearing, receive testimony from
the applicant, the city staff, and members of the public. At the conclusion of the public
hearing, it is recommended that the Hearing Officer:
Adopt the attached Resolution for the property located at 500 Jasmine Avenue,
based on the findings and considerations discussed in this report, approving the
Abatement Period Extension to ten years, February 1, 2022 (See Attachment No.
1).
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 2
LOCATION
GENERAL PLAN
ZONING
CURRENT USE
ON -SITE
Two -Unit Residential
(Two-Unit esidential
Commercial Office Building
NORTH and
RT
R -2
Single -Unit and Two -Unit
EAST
Two -Unit Residential
Two -Unit Residential
Residential Dwellings
SOUTH and
WEST
CC
Commercial Corridor
CC
Commercial Corridor
Commercial Retail and Office
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 3
INTRODUCTION
Project Setting
The subject property is located on the southeasterly corner of Jasmine Avenue and
Second Avenue in the Corona Del Mar Area of the city. It is bounded by residential uses
to the north and east, and commercial office and retail uses to the south and west.
Project Description
The applicant requests an extension of the abatement period of the nonconforming
nonresidential use located in the Two -Unit Residential District (R -2). The property is
occupied by a single -story, 1,050 square -foot office building which the owner occupies
as an architectural business office. The property owner has requested an extension of
the abatement period to fifteen years.
Background
Information submitted by the applicant and available in city records indicates the
building was constructed in 1946 and was purchased by the present owner in 1969.
According to city records, remodel activity and additions were made to the building
between 1969 and 1980.
On July 14, 1969, the City Council adopted Ordinance No. 1308 which changed the
zoning of the subject property from the Two - Family Residential District (R -2) to the APF
District (Administrative, Professional, Financial Commercial) to bring it consistent with
Land Use Element of the General Plan.
On July 25, 2006, the Newport Beach City Council adopted Resolution No. 2006 -76
approving a comprehensive update to the Newport Beach General Plan ( "General Plan
Update "), which changed the Land Use Designation of the subject property from APF
(Administrative, Professional, Financial Commercial) to RT (Two -Unit Residential).
On January 28, 2008, the City Council adopted Ordinance No. 2008 -05, which in addition
to other Zoning Code changes, established the maximum time period for the abatement
and termination of nonconforming uses in residential districts. However, determinations of
nonconformity could not be made until the finalization of the City's Local Coastal Plan
(LCP), which occurred on July 14, 2009, and the subsequent Zoning Code Update which
was effective November 25, 2010 which delayed the implementation of the abatement
provisions.
On October 25, 2010, the City Council adopted a Comprehensive Update to the Zoning
Code (Newport Beach Municipal Code Title 20, NBMC) bringing consistency between the
Zoning Code and the Land Use Element of the General Plan. The result of that action
rendered several properties nonconforming, including the subject property and other
existing commercial uses located within residential districts, which in accordance with
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 4
Ordinance No. 2008 -05 became subject to abatement in accordance with the following
Section of Chapter 20.38 of the NBMC:
20.38.100 Abatement Period.
C. Residential zoning districts involving a structure. In residential zoning
districts or in an area where residential uses are allowed in planned
community districts or specific plan districts, a nonconforming use of land
involving a structure shall be discontinued as follows:
1. Abatement period. A nonconforming use of land involving a structure
in a residential zoning district shall be discontinued on the earliest
date as follows:
a. Within one year; or
b. Upon the expiration of the term of a lease on the property.
Any lease shall be the last lease entered into for the subject
property prior to December 7, 2007; or
C. Upon the expiration of a current operating license that is
required by State law.
The City sent letters to all known properties with uses that are subject to abatement. The
abatement order for the subject properties were issued on January 14, 2011. Staff met
with the owner of the subject property and explained the options available to remedy the
situation. Those remedies include conversion of use or development to a residential use;
request for extension of the abatement period; and /or request to amend the General Plan,
and Zoning Code to allow the continuation of the commercial use. In the case of the
subject application, the owner chose to pursue an extension of the abatement period to
amortize the investment of the current improvements on the subject property.
DISCUSSION
General Plan
The Land Use Element of the General Plan generally guides the future development of
the City and would generally allow the continuation of legally established structures and
uses; and does not specify requirements for abatement of nonconforming uses. The
Zoning Code is the regulatory tool that implements and regulates the provisions of the
General Plan.
Zoning Code
To make the subject properties consistent with the Zoning Code would require the
abatement of the nonresidential uses. However, the Zoning Code allows for a procedure
to grant an extension of the abatement period for the continued use of the existing
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 5
building and use. The approval authority for the extension lies with the Hearing Officer
in accordance with the provisions of Section 20.38.100C 4b of the NBMC. The Hearing
Officer is also required to conduct a public hearing on the request in compliance with
Chapter 20.62 of the NBMC.
Findings and Considerations:
In accordance with the provisions of Chapter 20.38 of the NBMC, the Hearing Officer,
by resolution, shall approve, conditionally approve, or deny the request for an extension
to the abatement period. The resolution shall include: findings of fact; evidence
presented of economic hardship arising from the abatement proceedings; the
nonconformity's impact on the community; and other factors that may affect the length
of the abatement period required to avoid an unconstitutional taking.
In accordance with the provisions of Section 20.38.100 (C -4c), the Hearing Officer in
reviewing an application for an extension to the abatement period shall consider the
following:
(1) Length of the abatement period in relation to the owner's investment in the
use;
(2) Length of time the use was operating prior to the date of nonconformity;
(3) Suitability of the structure for an alternative use;
(4) Harm to the public if the use remains beyond the abatement period; and
(5) Cost and feasibility of relocating the use to another site.
The applicant has submitted information in support of the request (Attachment No. 3).
Staff has reviewed the information submitted by the applicant and has summarized it
below to address the findings and considerations that the Hearing Officer may use in
making his determination.
(1) Length of the abatement period in relation to the owner's investment
in the use.
According to the property owner, he has occupied the site for his architectural firm since
1969, 43 years. The owner will suffer economic hardship if required to abate since he
owns the property and he would have to rent space elsewhere. The owner has
requested an abatement period extension of fifteen years, as discussed below.
The one year abatement period specified by the Municipal Code is not of sufficient
duration to amortize the property owner's investment, since he owns the building debt
free and currently pays no rent. The owner has made improvements and additions to
the building since 1969 and has not incurred any that is secured by the property as
collateral. The applicant indicates that an extension of 15 years for the abatement of the
current use is necessary to avoid an unconstitutional taking of the applicant's property.
Staff recommends that a ten year period will provide adequate time for the owner to
recover any remaining investment in the property. Ten years is an adequate amount of
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 6
time for the owner to evaluate options for his business which may include relocating,
selling the property, redeveloping the property consistent with the current zoning
requirements or applying to amend the zoning and the General Plan.
(2) Length of time the use was operating prior to the date of
nonconformity.
On July 14, 1969, the City Council adopted Ordinance No. 1308 which changed the
zoning of the subject property from the R -2 (Two -Unit Residential) District to the APF
(Administrative, Professional, Financial Commercial) District to bring it consistent with
Land Use Element of the General Plan.
The property became nonconforming with the General Plan in 2006, 6 years ago, when
the City Council adopted Resolution No. 2006 -76 approving the "General Plan Update ".
The existing structure and use conformed to the Land Use Element of the General Plan
for 37 years prior to the 2006 update; and was not subject to abatement.
(3) Suitability of the structure for an alternative use.
The building could be modified to accommodate other commercial or nonresidential
uses. However, the current building is not suitable for conversion from the existing
commercial use to a residential building without demolishing and building new, or major
renovation to provide adequate living areas and residential parking. In order to convert
the building to residential use would require the construction of a new two -car garage
utilizing the current curb cut on the side street. Alley access would require demolishing
a majority of the building. Any new residential use would have to comply with all current
municipal code requirements, including height, floor area and parking.
(4) Harm to the public if the use remains beyond the abatement period.
As seen in the aerial photo on Page 2, the Yeo Property is in an area that is occupied
by other nonresidential uses; including office (across the street) and restaurant and
retail uses across Jasmine Avenue and on Coast Highway. The office building has been
in place for over 43 years and has not posed any negative impact or harm on the
neighboring uses. It is anticipated that the continued commercial use of the subject
property is compatible with the surrounding uses and will not have any negative impact
or pose harm on the neighboring residential and nonresidential uses in the vicinity.
Photos of the site as viewed from Jasmine Avenue are attached (Attachment No. 3).
(5) Cost and feasibility of relocating the use to another site.
The applicant's submittal indicates that the relocation of his present architectural office
use would be costly since he owns his building free and clear, and there are limited
numbers of comparable vacant storefront units or buildings within the vicinity that he
would have to rent. Consequently, relocation of the use would result in the additional
cost of rent for office space at an off -site location.
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 7
RECOMMENDATION
As discussed in Finding and Considerations section above for the property, the
applicant has presented information and a request to extend the abatement period to
fifteen years. Staff recommends an extension period of ten years for 500 Jasmine
Avenue to February 1, 2022 which is consistent with other approved extensions and
appropriate in this case.
Staff recommends that the request for the extension for ten years be approved based
on the following findings and considerations:
1. Since the owner utilizes the building for conducting his architectural business, the
owner would suffer significant economic hardship as a result of the abatement
requirement, because he would have to relocate and rent an off -site location.
2. That one year is not an adequate period of time to amortize the property owner's
investment in the property, especially since he owns the building debt free and
operates his architectural business from this location which is also his primary
source of income.
3. That the property became nonconforming in 2006, 6 years ago, when the City
Council adopted Resolution No. 2006 -76 approving the "General Plan Update ".
The existing structure and use conformed to the Land Use Element of the
General Plan for 43 years prior to the 2006 Update; and was not subject to
abatement.
4. That the building could be modified to accommodate other commercial or
nonresidential uses. However, the current building is not suitable for conversion
from the existing commercial use to a residential building without demolishing
and building new, or major renovation to provide adequate living areas and
provide the required two -car garage parking.
5. That the property is located in an area that is occupied by other nonresidential
uses; including office (across the street) and restaurant and retail uses across
Jasmine Avenue and on Coast Highway. The continued commercial use of the
subject property is compatible with the surrounding uses and will not have
negative impact or pose harm on the neighboring residential and nonresidential
uses in the vicinity.
6. That the relocation of the present architectural office use would be costly since
the applicant owns the subject building free and clear, and there are limited
numbers of comparable vacant storefront units or buildings within the vicinity to
relocate his business. Consequently, relocation of the use would result in the
additional cost of rent for office space at an off -site location.
7. That the abatement extension of ten years (February 1, 2022) is appropriate in
that it will afford the property owner the ability to amortize the value of the
building improvements he has made between 1969 and the present. That without
the extension of the abatement period, the property owner cannot continue to
conduct his occupation and primary source of income, and would suffer
additional economic impacts by relocating and leasing an off -site location.
Abatement Extension - Ron Yeo Property
February 1, 2012
Page 8
CONCLUSION
Based on the information submitted by the applicant, adequate justification has been
presented to extend the period of abatement. Therefore, in accordance with the provisions
of Section 20.38.100 of the NBMC, the Hearing Officer may approve the request for
extension of the abatement period based on the Findings and Consideration and
testimony presented at the hearing. It is recommended that the Hearing Officer take the
following action;
Adopt the attached Resolution for the property located at 500 Jasmine Avenue,
based on the findings and considerations discussed in this report, approving the
Abatement Period Extension to ten years, February 1, 2022 (See Attachment No.
1).
Environmental Review
The project is categorically exempt under Section 15301, of the California
Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities).
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to property owners within
300 feet of the property and posted at the site a minimum of 10 days in advance of this
hearing consistent with the Municipal Code. Additionally, the item appeared upon the
agenda for this meeting which was posted at City Hall and on the City website.
Prepared by:
Supmitted by:
Javier . Garcia, ICP Br n Wisnesk , AICP
Senior Planner D put Communlit Development Director
ATTACHMENTS
PC 1 Draft Resolution Approving the Abatement Extension Request
PC 2 Applicant's Extension Application and Supporting Information
PC 3 Site Photos
FAUsers \PLN \Shared \PA's \PAs - 2011 \PA2011 - 012 \PA2011 -012 - HO Staff Report 02- 01- 2012.docx
DRAFT RESOLUTION APPROVING
THE ABATEMENT PERIOD EXTENSION
500 JASMINE AVENUE
(PA2011 -012)
ATTACHMENT No. 1
RESOLUTION NO. HO 2012-
A RESOLUTION OF A HEARING OFFICER OF THE CITY
OF NEWPORT BEACH APPROVING THE ABATEMENT
EXTENSION PERIOD FOR THE PROPERTY LOCATED AT
500 JASMINE AVENUE (PA 2011 -012)
WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC)
requires nonconforming nonresidential uses in residential zoning districts to be abated
and terminated upon the expiration of time periods identified by the NBMC. Following
the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner
may request an extension of the abatement period in order, to amortize a property
owner's investment in the property and avoid an unconstitutional taking of property; and
WHEREAS, an application was filed by Ronald W. Yeo, the owner of property
located at 500 Jasmine Avenue, and legally described as Lot 2, Block 537, Corona Del
Mar Tract, requesting an extension of the abatement period specified by the NBMC
Section 20.38.100. If granted, the extension will allow the continued operation of existing
commercial use for ten years from the date of the Hearing Officer's approval (February
1, 2022). The property is located in the R -2 Zoning District, where such nonresidential
uses are not permitted; and
WHEREAS, a public hearing was held on February 1, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the NBMC and other
applicable laws. Evidence, both written and oral, was presented and considered at this
meeting; and
WHEREAS, the hearing was presided over by Hon. John C. Woolley, retired
Judge (California Superior Court, Orange County), Hearing Officer for the City of
Newport Beach; and
WHEREAS, the findings and considerations of Section 20.38.100 (C.4(c)) of the
NBMC and facts in support of the findings and considerations are as follows:
1. The length of the abatement period is not appropriate considering the
owner's investment in the use;
Facts in Support of Finding: The one year abatement period specified by the Municipal
Code is not of sufficient duration to amortize the property owner's investment in
improvements and additions made to the building. The information submitted by the
applicant supports staff recommendation that an extension of 10 years for the
abatement of the current uses is necessary to avoid an unconstitutional taking of the
applicant's property. Supporting information has not been presented to justify an
extension period of more than ten years. Subsequently, the ten year period would allow
the owner /tenant additional time to transition out of the building and to pursue other
options to continue the use of the building beyond the 10 years recommended. An
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Ron Yeo
(500 Jasmine Avenue)
Page 2 of 3
extension period of ten years is necessary and adequate to avoid economic hardship
that will result if the owner is required to abate his use of the property which is his
source of income, and would suffer additional economic impacts by relocating and
leasing an off -site location.
2. The length of time the use was operating prior to the date of nonconformity
justifies the extension of the abatement period beyond the code specified
one year.
Facts in Support of Finding: The property became nonconforming with the General Plan
in 2006, 6 years ago, when the City Council adopted Resolution No. 2006 -76 approving
the "General Plan Update ". The existing structure and use conformed to the Land Use
Element of the General Plan for 37 years prior to the 2006 update; and was not subject
to abatement.
3. The existing structure is not suitable for conversion to an alternate use.
Facts in Support of Finding: The building could be modified to accommodate other
commercial or nonresidential uses. However, the current building is not suitable for
conversion from the existing commercial use to a residential building without
demolishing and building new, or major renovation to provide adequate living areas and
provide the required two -car garage parking.
4. No harm to the public will result if the nonresidential use remains beyond
the one year abatement period.
Facts in Support of Finding: The property is located in an area that is occupied by other
nonresidential uses; including office (across the street) and retail and restaurant uses
across Jasmine Avenue and on Coast Highway. The office building has been in place
for over 43 years, and it is anticipated the continued commercial use of the subject
property is compatible with the surrounding uses and will not have any negative impact
or pose harm on the neighboring residential and nonresidential uses in the vicinity.
5. The cost and feasibility of relocating the use to another site cannot be
accommodated within the one -year abatement period.
Facts in Support of Finding: The applicant indicates that the relocation of his present
nonresidential use of the building would be costly since there are limited numbers of
comparable vacant storefront units or buildings within the vicinity. Additionally, he would
have to rent or purchase a new location, whereas he currently owns the subject building
and pays no rent.
WHEREAS, this activity has been determined to be categorically exempt under
the requirements of the California Environmental Quality Act under Class 1 (Existing
F: \Users \PLN \Shared\PA's \PAs - 2011 \PA2011 - 012 \PA2011 -012 - Reso of Approval DRAFT 500 Jasmine- HO 02- 01- 2012.docx
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Ron Yeo
(500 Jasmine Avenue)
Page 3 of 3
Facilities). This class of projects has been determined not to have a significant effect on
the environment and is exempt from the provisions of CEQA. This activity is also
covered by the general rule that CEQA applies only to projects that have the potential
for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA
Guidelines. It can be seen with certainty that there is no possibility that this activity will
have a significant effect on the environment and therefore it is not subject to CEQA.
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby approves the
requested Abatement Period Extension (PA2011 -012), subject to the findings and
considerations set forth above.
Section 2. The Abatement Period Extension for the property located at 500 Jasmine
Avenue, and legally described as Lot 2, Block 537, Corona Del Mar Tract, is hereby
extended for ten years and will expire on February 1, 2022, at which time all nonresidential
use of the property shall cease or the building be demolished, unless an additional
extension of the abatement period is granted; or an appropriate change in the Zoning
District and the General Plan Land Use Designation are approved and adopted; or a
change to the Zoning Regulations pertaining to nonconforming uses or their abatement
are approved and adopted prior to that date.
Section 3. This action shall become final and effective fourteen (14) 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.
APPROVED AND ADOPTED THIS DAY OF 2012.
ATTEST:
City Clerk
Hon. John C. Woolley, retired Judge
(California Superior Court, Orange County)
Hearing Officer for the City of Newport Beach
F: \Users \PLN \Shared\PA's \PAs - 2011 \PA2011 - 012 \PA2011 -012 - Reso of Approval DRAFT 500 Jasmine- HO 02- 01- 2012.docx
APPLICANT'S EXTENSION APPLICATION
AND ADDITIONAL INFORMATION
500 JASMINE AVENUE
(PA2011 -012)
ATTACHMENT No. 2
Tr z
Abatement Period. Extension ApplicOon ot
Planning Department ^� aDs?
3300 Newport Boulevard, Newport Beach, CA 92663 Nom''
(949) 644 -3200 Telephone 1(949) 644 -3229 Facsimile 4 10
www.newportbeachca.gov 10
Property Owner /Applicant
Ron &Birgitta Yeo
Name:
Mailing Address:
500 Jasmine, Corona del Mar, CA 92625
Phone:( )
Fax: ( ) _
Ernail Address: ron(o-)ronyeo.com
(949) 644 -8111
none
Owner's Affidavit
Contact (if different) OV
Name:
Mailing Address:
Phone: ( )
Fax: ( )
Email Address:
pY
Ron &Birgitta Yeo
(1) (We) depose and say that (I am) (we are) the owner(s) of the
property (ies) involved in this application. (1) (We) further certify, under penalty of perjury, that the foregoing
statements and answers herein contained and the information here w' tted a[e-in all respects true and
correct to the best of (my) (our) knowledge and belief.
Signature(s) Date
31,,-)011
NOTE: An agent may sign for the owner if, authorization f om the record owner is filed with the application.
Please answer the questions below. Attach additional sheets, if necessary.
0 Please describe how abatement of the use at this time relates to your investment in the use.
Our investment is more than financial.
We have been an integral part of the Corona del Mar residential and Commercial
Village for over 40 years. Our architectural studio provides us with a unique
opportunity to showcase our design principles as well as the ability to walk to
work from our residence one block away at 604 Iris.
The current use of the property is critical to our architectural practice.
PA2011 -012 for Abatemont Period Extension
500 Jasmine Avenue
Ron and Birgitta Yeo
( How long has the use been operating?
We have operated our architectural practice continuously in this location for over
40 years. Our property was rezoned from Residential to Office Professional (AP-
H) in 1969 by a unanimous vote of the City Council.
03. Please describe the suitability of the structure for an alternative use
The existing structure could convert to a single family residence, but would not
meet some of the zoning codes, such as an enclosed garage. Due to it's small
size, this conversion would not be practical. The most logical use would be to
demolish and build a large duplex. We are not developers and this is not one of
our goals. It would be a shame for the community to loose this studio, the
magnificent trees and off street parking.
i14 Please describe way there would be no harm to the public if the use remains beyond the
abatement period. r /
Our current use fits into the Corona del Mar Village context and image far more
than a 3 story duplex would. It is far more compatible to the neighbors than most
of the parking lots that are on residential zoned properties. It does not have the
traffic that is produced by the CdM library, which is in a similar residential area.
We receive many compliments on our studio and no complaints from our use.
We present no problems to the health, safety and welfare of the neighboring
community. We have a unique property and it is safe to say that our studio /office
practice is an asset to the community.
Updated 10105l10
2
OPlease describe the cost and feasibility of relocating the use to another site.
It would be a huge cost, both financially and emotionally for us to relocate. There
is no existing similar commercial properties in Corona del Mar that offer a
comparable situation for us to rent or purchase.
We own the property free and clear and do not have to pay rent. Renting space
somewhere else would be a financial burden to us. It is unlikely that we could
locate an owner that is willing to sell us a commercial property in the Village. If
one was found, there could be a slight possibility for us to purchase, demolish
and rebuild to fit our needs. This would take many years and several million
dollars to accomplish, neither of which we have.
OIs there any other evidence relevant to the determination of whether an extension of the
abatement period is required to avoid an Unconstitutional taking of property?
The termination of our use would amount to forcing us out of business without
compensation. We would not be able to complete the current projects that we
have.
After our compatible studio use for over 40 years, we could think of nothing
worse to happen than this hardship. Denial of an extension would be clearly
arbitrary and unreasonable.
Suitable solutions for us would be for the City to:
1. Determine that the existing property use is compatible with the
surrounding residential zone and is an "existing legal non - conforming use"
due to reclassification and shall be continued in the current use per
section 20.62.020 of the municipal code until the owner decides to change
it to a residential use.
2. Determine that the current use has no substantial relation to the public
health, safety, morals, or general welfare of the neighborhood, and will
agree to change the General Plan and zoning as required in order to be
consistent at no cost or burden to the owner.
Bottom line:
We have been here forever and don't want to move.
Updated 10/06110
3
,.CSIVED eY
COMMUNITY
ADDENDUM TO THE
ABATEMENT PERIOD EXTENSION APPLICATION JUL 1 1 LU11
Ron & Birgitta Yeo
Ron Yeo, FAIA Architect inc. o DEVELOPMENT
500 Jasmine, Corona del Mar, CA 92625 1�1?- G
OA- I?;
This Addendum to the ABATEMENT PERIOD EXTTENSION APPLICATION shall be made a
part of the Abatement Period Extension Application dated 1123/2011.
PURPOSE:
This "ADDENDUM" is submitted in order to clarify and expand on the original answers in the
1/23/11 Abatement Period Extension Application.
ITEM 1. Describe how abatement of the use at this time relates to your investment in the use.
A. We purchased the residential property and The City re -zoned it to office /professional use
in 1969. (City ordinance # 1308)
B. We remodeled and made substantial improvements in 1969.
C. Photographs of the before and after of our office /studio are attached hereto as "Exhibit
A" and are made a part hereof.
D. We own the property free and clear and have used it for our architectural corporation —
"Ron Yeo, FAIA Architects, Inc." since 1969.
E. When the City re -zoned the property to R -2 in 2010, we were led to believe that the
current office use would be "grandfathered" and that we would be able to continue our
office /studio use as long as we desired.
TEM 4. Describe way that there would be no harm to the public if the use remains beyond the
abatement period..
A. In the 42 years of our continuous use of the property, there has not been an incident,
disruption or complaint from the neighbors or the community concerning the operation of
our architectural practice. There would be no change in this situation since this use is not
a detriment to the health, safety, morals or general welfare of the neighborhood.
ITEM 5. Describe the cost & feasibility of relocating the use to another site.
A. We have reviewed potential options of relocating and have come to the conclusion that
the cost and the challenges involved in finding or constructing a suitable facility would be
far too much for us to undertake.
ITEM 6. Other evidence relevant to the determination of whether an extension of the abatement
period is required to avoid an unconstitutional taking of property.
A. Since the City will not take responsibility for the cost of changing the General Plan and
zone change back to office use, we are removing this option (discussed in solution #2.).
B. We are planning to stay in architectural practice for at least another 15 years.
C. Our average yearly income from this use over the past 15 years has been $312,866. If
we are not able to continue our practice for the next 15 years, that would amount to
$4,692,996 at the same rate.
D. Based upon the above information and the potential loss of 4 1/2 million dollars, we
respectfully request that the abatement period be extended for an additional fifteen (15)
years to November 25, 2026.
By
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CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
February 1, 2012 Hearing
Agenda Item 2
SUBJECT: Abatement Period Extension — 3355 Via Lido - (PA2011 -153)
APPLICANT: New Port Beach Townhouse LLLP
PLANNER: Javier S. Garcia AICP, Senior Planner
(949) 644 -3206, jgarcia @newportbeachca.gov
PROJECT SUMMARY
Request for extension of the required Abatement Period specified by Section 20.38.100
of the Newport Beach Municipal Code. The applicant requests to allow the existing
nonresidential use of the 31,413 square -foot office building to continue for an extended
period of time without abatement. No new development or construction is proposed at
this time.
RECOMMENDATION
Staff recommends the Hearing Officer conduct a public hearing, receive testimony from
the applicant, the city staff, and members of the public. At the conclusion of the public
hearing, it is recommended that the Hearing Officer:
1. Adopt the attached Resolution for the property located at 3355 Via Lido, based
on the findings and considerations discussed in this report, approving the
Abatement Period Extension to ten years, February 1, 2022 (See Attachment No.
1).
SHOPPING CENTER
i
COMMERCIAL BUILDING
CITY HALL COMPLEX
FIRE STATION
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 2
VICINITY MAP
COMMERCIAL BUILDINGS
3355 VIA LIDO
NEW PORT TOWNHOUSE LLLP
PROPERTY
RESIDENCES ACROSS STREET
CHURCH BUILDING
CHURCH BUILDING
GENERAL PLAN and ZONING
COASTAL LAND USE
3355 VIA LIDO
NEW PORT TOWNHOUSE LLLP PROPERTY
r v.a $
U.
3355 VIA LIDO
NEW PORT TOWNHOUSE LLLP PROPERTY
c.
LOCATION
GENERAL PLAN/
COASTAL PLAN
ZONING
CURRENT USE
ON -SITE
RM (20DU /AC) /RM -D
Multi -Unit Residential
RM (2178)
Multi -Unit Residential
Office, Retail and Restaurant
North and
West
RM (20DU /AC) /RM -D
Multi -Unit Residential
PI 0.75
Private Institution
Retail and Office
South
PI (Private Institution)/ PI-
B Private Institution
PI 0.75
Private Institution
First Church of Christ, Science
and St Michael's Church Anglican
East
RM (20DU /AC) /RM -D
Multi -Unit Residential
RM (2178)
Multi -Unit Residential
Offices and Residential
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 3
INTRODUCTION
Project Setting
The subject office building is located on the westerly side of Via Lido in the Lido Village
Area of the city. It is bounded by commercial and residential uses to the north, west and
east, and church uses to the south.
Project Description
A request for extension of the required abatement period specified by Section 20.38.100
of the Newport Beach Municipal Code. The 31,413 square -foot office building is located
within the Multi -Unit Residential Zoning District (RM 2178). The building is occupied by
several tenants which include California Beach Sushi (since 1984), an attorney's office
(since 2002), hair salon (since 1996), and telecom facilities and equipment (leases and
options that extend to 2016). The owner intends to construct a residential project on the
subject property. The existing tenants are currently on month -to -month lease terms or
subject to 30 day notice to vacate (telecom facilities occupants). The property owner is
currently in the conceptual design phase for the project, but no application has been
submitted to the City.
The permit entitlement process with the City and the Coastal Commission could take 18
to 24 months, or more. Although, it is anticipated that demolition and construction could
begin as soon as 2014 with approximately a year for completion. Such a timeline is not
a certainty and can be influenced by a number of unforeseeable factors which may
include economic and financial fluctuations, and entitlement processing through the City
and the Coastal Commission. Therefore, in the meantime, in order to maintain rental
income and leases, the applicant requests an extension of the abatement period. Staff
recommends a period of ten years is appropriate in this case to accommodate
unforseeable circumstances that may delay redevelopment of the property.
Background
Information submitted by the applicant and available in city records indicates the subject
building was constructed in 1957 and was purchased by the present owner in October
2011, as well as the property at 3388 Via Lido.
On July 25, 2006, the Newport Beach City Council adopted Resolution No. 2006 -76
approving a comprehensive update to the Newport Beach General Plan ( "General Plan
Update "), which changed the Land Use Designation of the subject property from RSC
(Retail and Service Commercial) to RM 2178 (Multi -Unit Residential).
On January 28, 2008, the City Council adopted Ordinance No. 2008 -05, which in addition
to other Zoning Code changes, established the maximum time period for the abatement
and termination of nonconforming uses in residential districts. However, determinations of
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 4
nonconformity could not be made until the finalization of the City's Local Coastal Plan
(LCP), which occurred on July 14, 2009, and the subsequent Zoning Code Update which
was effective November 25, 2010 which delayed the implementation of the abatement
provisions.
On October 25, 2010, the City Council adopted a Comprehensive Update to the Zoning
Code (Newport Beach Municipal Code Title 20, NBMC) bringing consistency between the
Zoning Code and the Land Use Element of the General Plan. The result of that action
rendered several properties nonconforming, including the subject property and other
existing commercial uses located within residential districts, which in accordance with
Ordinance No. 2008 -05 became subject to abatement in accordance with the following
Section of Chapter 20.38 of the NBMC:
20.38.100 Abatement Period.
C. Residential zoning districts involving a structure. In residential zoning
districts or in an area where residential uses are allowed in planned
community districts or specific plan districts, a nonconforming use of land
involving a structure shall be discontinued as follows:
1. Abatement period. A nonconforming use of land involving a structure
in a residential zoning district shall be discontinued on the earliest
date as follows:
a. Within one year; or
b. Upon the expiration of the term of a lease on the property.
Any lease shall be the last lease entered into for the subject
property prior to December 7, 2007; or
C. Upon the expiration of a current operating license that is
required by State law.
The City sent letters to all known properties with uses that are subject to abatement. The
abatement order for the subject property was issued on January 14, 2011. Staff met with
the owner of the subject property and explained the options available to remedy the
situation. Those remedies include conversion of use or development to a residential use;
request for extension of the abatement period; and /or request to amend the General Plan,
and Zoning Code to allow the continuation of the commercial use. In the case of the
subject property, the entitlement process for permits to construct the residential project
could take up to 24 months or more. Therefore, the applicant requests an extension of the
abatement period.
DISCUSSION
General Plan
The Land Use Element of the General Plan generally guides the future development of
the City and would generally allow the continuation of legally established structures and
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 5
uses; and does not specify requirements for abatement of nonconforming uses. The
Zoning Code is the regulatory tool that implements and regulates the provisions of the
General Plan.
Zoning Code
To make the subject properties consistent with the Zoning Code would require the
abatement of the nonresidential uses. However, the Zoning Code allows for a procedure
to grant an extension of the abatement period for the continued use of the existing
building and use. The approval authority for the extension lies with the Hearing Officer
in accordance with the provisions of Section 20.38.100C 4b of the NBMC. The Hearing
Officer is also required to conduct a public hearing on the request in compliance with
Chapter 20.62 of the NBMC.
Findings and Considerations:
In accordance with the provisions of Chapter 20.38 of the NBMC, the Hearing Officer,
by resolution, shall approve, conditionally approve, or deny the request for an extension
to the abatement period. The resolution shall include: findings of fact; evidence
presented of economic hardship arising from the abatement proceedings; the
nonconformity's impact on the community; and other factors that may affect the length
of the abatement period required to avoid an unconstitutional taking.
In accordance with the provisions of Section 20.38.100 (C -4c), the Hearing Officer in
reviewing an application for an extension to the abatement period shall consider the
following:
(1) Length of the abatement period in relation to the owner's investment in the
use;
(2) Length of time the use was operating prior to the date of nonconformity;
(3) Suitability of the structure for an alternative use;
(4) Harm to the public if the use remains beyond the abatement period; and
(5) Cost and feasibility of relocating the use to another site.
The applicant has submitted information in support of the request (Attachment No. 3).
Staff has reviewed the information submitted by the applicant and has summarized it
below to address the findings and considerations for the property involved, that the
Hearing Officer may use in making his determination.
(1) Length of the abatement period in relation to the owner's investment
in the use.
According to the property owner's representative, the property was purchased in
October 2011 and the owner was recently made aware of the abatement requirements.
The owner will suffer economic hardship if required to abate the nonresidential uses
since they are not prepared at this time to move forward with the residential project.
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 6
Because of the recent acquisition of the property, architectural design changes and
economic circumstances the residential project has been delayed.
The one year abatement period specified by the Municipal Code is not of sufficient
duration for the property owner to develop construction plans and obtain the necessary
entitlements from the City and the Coastal Commission. Additionally, if the
nonresidential uses are required to abate the owner would suffer a substantial loss of
rental income. Staff recommends that a ten year period would provide the owner
additional time to process the proposed residential project, and is consistent with the
period of extension approved in similar applications.
(2) Length of time the use was operating prior to the date of
nonconformity.
The property became nonconforming with the General Plan in 2006, 6 years ago, when
the City Council adopted Resolution No. 2006 -76 approving the "General Plan Update ".
The existing structure and use conformed to the Land Use Element of the General Plan
for the prior 49 years; and the existing nonresidential uses were not subject to
abatement until 2010.
(3) Suitability of the structure for an alternative use.
The building could be modified to accommodate other commercial or nonresidential
uses. However, the age and configuration of the current building is not suitable for
conversion from the existing commercial use to a residential building without
demolishing and building new, or major renovation to provide adequate living areas and
residential parking. Additionally, the property owner's proposed residential project will
comply with all current municipal requirements and the Lido Village Design Guidelines,
including height, floor area and parking. As stated previously, the building permit
entitlement process with the city and coastal commission will take approximately 18 to
24 months.
(4) Harm to the public if the use remains beyond the abatement period.
As seen in the aerial photo on Page 2, the property is located in an area that is
occupied by other nonresidential uses and churches; including office (across the street),
and restaurant and retail uses across Via Oporto and Via Malaga. It is anticipated that
the continued commercial use of the subject property is compatible with the surrounding
uses and will not have negative impact or pose harm on the neighboring residential and
nonresidential uses in the vicinity. It is also anticipated that until the proposed residential
project constructed, the existing commercial building will be compatible with the future
City Hall and Lido Village Revitalization Plan. Photos of the site as viewed from Via Lido
and Via Oporto are attached (Attachment No. 3).
(5) Cost and feasibility of relocating the use to another site.
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 7
The applicant's submittal indicates that the relocation of the existing uses would be
costly since there are limited numbers of comparable available storefront units or
buildings in the vicinity that could accommodate the 31,413 square feet of commercial
tenant space that comprises the subject property. Consequently, the relocation of the
existing uses would result in the additional costs to existing tenants that would be
required to enter into new and potentially less favorable leases or lease terms.
RECOMMENDATION
As discussed in Finding and Considerations section above for the property, the
applicant has presented information and a request to extend the abatement period to
ten years. Staff recommends an extension period of ten years for 3355 Via Lido to
February 1, 2022 is appropriate in this case and consistent with similar requests.
That the request for the extension for ten years be approved based on the following
findings and considerations:
1. That one year is not an adequate period of time to amortize the property owner's
investment in the property, since it was recently purchased in October 2011. The
owner would suffer significant economic hardship as a result of the abatement
requirement, due to the loss of rental income during the time it would take to
obtain permit entitlement to begin construction of the residential project.
2. That the property became nonconforming in 2006, 6 years ago, when the City
Council adopted Resolution No. 2006 -76 approving the "General Plan Update ".
The existing structure and use conformed to the Land Use Element of the
General Plan for 49 years prior to the 2006 Update; and was not subject to
abatement until 2010.
3. That the building could be modified to accommodate other commercial or
nonresidential uses. However, the current age and configuration of the building is
not suitable for conversion from the existing commercial use to a residential
building without demolishing and building new, or major renovation to provide
adequate living areas and residential parking.
4. That the property is located in an area that is occupied by other nonresidential
uses and churches; including office (across the street), and restaurant and retail
uses across Via Oporto and Via Malaga. It is anticipated that the continued
commercial use of the subject property is compatible with the surrounding uses
and will not have negative impact or pose harm on the neighboring residential
and nonresidential uses in the vicinity.
5. That the relocation of the existing uses would be costly since there are limited
numbers of comparable vacant storefront units or buildings available in the
vicinity to accommodate the 31,413 square feet of on -site tenant space.
Consequently, relocation of the existing uses would result in the additional costs
to existing tenants that would be required to enter into new and potentially less
favorable leases or lease terms.
6. That the abatement extension of ten years (February 1, 2022) is appropriate in
this case since it will afford the property owner the ability to amortize the value of
Abatement Extension — New Port Townhouse LLLP Property
February 1, 2012
Page 8
the building improvements; and maintain rental income during the time required
to obtain building permit entitlement through the city and the coastal commission
for the construction of the new residential project.
CONCLUSION
Based on the information submitted by the applicant, adequate justification has been
presented to extend the period of abatement. Therefore, in accordance with the provisions
of Section 20.38.100 of the NBMC, the Hearing Officer may approve the request for
extension of the abatement period based on the Findings and Consideration and
testimony presented at the hearing. It is recommended that the Hearing Officer take the
following action;
Adopt the attached Resolution for the property located at 3355 Via Lido, based
on the findings and considerations discussed in this report, approving the
Abatement Period Extension to ten years, February 1, 2022 (See Attachment No.
1).
Environmental Review
The project is categorically exempt under Section 15301, of the California
Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities).
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to property owners within
300 feet of the property and posted at the site a minimum of 10 days in advance of this
hearing consistent with the Municipal Code. Additionally, the item appeared upon the
agenda for this meeting which was posted at City Hall and on the City website.
Prepared by: / Su mitted by:
Javi71r'Plan Garcia, ICP Bed Wisnes i, ICP
Senner D �put Communit Development Director
ATTACHMENTS
PC 1 Draft Resolution Approving the Abatement Extension Request
PC 2 Applicant's Extension Application and Supporting Information
PC 3 Site Photos
12/21/11
DRAFT RESOLUTION APPROVING
THE ABATEMENT PERIOD EXTENSION
3355 VIA LIDO
(PA2011 -153)
ATTACHMENT No. 1
RESOLUTION NO. HO 2012-
A RESOLUTION OF A HEARING OFFICER OF THE CITY
OF NEWPORT BEACH APPROVING THE ABATEMENT
EXTENSION PERIOD FOR THE PROPERTY LOCATED AT
3355 VIA LIDO (PA 2011 -153)
WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC)
requires nonconforming nonresidential uses in residential zoning districts to be abated
and terminated upon the expiration of time periods identified by the NBMC. Following
the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner
may request an extension of the abatement period in order, to amortize a property
owner's investment in the property and avoid an unconstitutional taking of property; and
WHEREAS, an application was filed by New Port Townhouse LLLP, the owner of
property located at 3355 Via Lido, and legally described as Portion of Lot 4, Lot 5, and
Portion of abandoned alley of Tract 1117, requesting an extension of the abatement period
specified by the NBMC Section 20.38.100. If granted, the extension will allow the
continued operation of existing commercial use for ten years from the date of the Hearing
Officer's approval (February 1, 2022). The property is located in the RM (2178) Zoning
District, where such nonresidential uses are not permitted; and
WHEREAS, a public hearing was held on February 1, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the NBMC and other
applicable laws. Evidence, both written and oral, was presented and considered at this
meeting; and
WHEREAS, the hearing was presided over by Hon. John C. Woolley, retired
Judge (California Superior Court, Orange County), Hearing Officer for the City of
Newport Beach; and
WHEREAS, the findings and considerations of Section 20.38.100 (C.4(c)) of the
NBMC and facts in support of the findings and considerations are as follows:
1. The length of the abatement period is not appropriate considering the
owner's investment in the use;
Facts in Support of Finding: The one year abatement period specified by the Municipal
Code is not of sufficient duration to amortize the property owner's investment, since the
current owner recently purchased the property and was recently made aware of the
abatement requirements. The information submitted by the applicant supports that a 10
year abatement period is necessary to avoid an unconstitutional taking of the applicant's
property. The ten year period would allow the owner to recover any remaining
investment in the property to avoid an unconstitutional taking, will allow additional time
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — New Port Beach Townhouse LLLP
(3355 Via Lido)
Page 2 of 3
to process the proposed residential project, and maintain rental income during the time
required to obtain building permits. The 10 year extension period is also consistent with
the period of extension approved in similar applications.
2. The length of time the use was operating prior to the date of nonconformity
justifies the extension of the abatement period beyond the code specified
one year.
Facts in Support of Finding: The property became nonconforming with the General Plan
in 2006, 6 years ago, when the City Council adopted Resolution No. 2006 -76 approving
the "General Plan Update ". The existing structure and use conformed to the Land Use
Element of the General Plan for 49 years prior to the 2006 Update; and was not subject
to abatement until 2010.
3. The existing structure is not suitable for conversion to an alternate use.
Facts in Support of Finding: The building could be modified to accommodate other
commercial or nonresidential uses. However, the current building is not suitable for
conversion from the existing commercial use to a residential building without
demolishing and building new, or major renovation to provide adequate living areas and
residential parking.
4. No harm to the public will result if the nonresidential uses remain beyond
the one year abatement period.
Facts in Support of Finding: The property is located in an area that is occupied by other
nonresidential uses and churches; including office (across the street), and restaurant
and retail uses across Via Oporto and Via Malaga. Continued commercial use of the
subject property is compatible with the surrounding uses and will not have any negative
impact or pose harm on the neighboring residential and nonresidential uses in the
vicinity.
5. The cost and feasibility of relocating the uses to another site cannot be
accommodated within the one -year abatement period.
Facts in Support of Finding: The applicant's submittal indicates that the relocation of the
existing uses would be costly since there are limited numbers of comparable vacant
storefront units or buildings available in the vicinity to accommodate the 31,413 square
feet of on -site tenant space. Consequently, relocation of the existing uses would result
in the additional costs to existing tenants that would be required to enter into new and
potentially less favorable leases or lease terms.
F: \Users \PLN \Shared\PA's \PAs - 2011 \PA2011 - 153 \PA2011 -153 - Reso of Approval DRAFT 3355 Via Lido- HO 02- 01- 2012.docx
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — New Port Beach Townhouse LLLP
(3355 Via Lido)
Page 3 of 3
WHEREAS, this activity has been determined to be categorically exempt under
the requirements of the California Environmental Quality Act under Class 1 (Existing
Facilities). This class of projects has been determined not to have a significant effect on
the environment and is exempt from the provisions of CEQA. This activity is also
covered by the general rule that CEQA applies only to projects that have the potential
for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA
Guidelines. It can be seen with certainty that there is no possibility that this activity will
have a significant effect on the environment and therefore it is not subject to CEQA.
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby approves the
requested Abatement Period Extension (PA2011 -153), subject to the findings and
considerations set forth above.
Section 2. The Abatement Period Extension for the property located at 3355 Via Lido,
and legally described as Portion of Lot 4, Lot 5, and Portion of abandoned alley of Tract
1117, is hereby extended for ten years and will expire on February 1, 2022, at which time
all nonresidential use of the property shall cease or the building be demolished, unless an
additional extension of the abatement period is granted; or an appropriate change in the
Zoning District and the General Plan Land Use Designation are approved and adopted; or
a change to the Zoning Regulations pertaining to nonconforming uses or their abatement
are approved and adopted prior to that date.
Section 3. This action shall become final and effective fourteen (14) 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.
APPROVED AND ADOPTED THIS DAY OF 2012.
ATTEST:
City Clerk
Hon. John C. Woolley, retired Judge
(California Superior Court, Orange County)
Hearing Officer for the City of Newport Beach
F: \Users \PLN \Shared\PA's \PAs - 2011 \PA2011 - 153 \PA2011 -153 - Reso of Approval DRAFT 3355 Via Lido- HO 02- 01- 2012.docx
APPLICANT'S EXTENSION APPLICATION
AND ADDITIONAL INFORMATION
3355 VIA LIDO
(PA2011 -153)
ATTACHMENT No. 2
I Y>fi'a
Community Development Department
Planning Division
3300 Newport Boulevard, Newport Beach, CA 92663
(949) 644 -3200 Telephone 1(949) 644 -3229 Facsimile
4v�w��.new�u>r ihcachcr.cfov
Property Owner /Applicant
Name: New Port Beach Townhouse LLLP
Mailing Address: 500 Hogsback Road
Mason, MI 48854
Phono: ( ) . --
Fax: ( )
Email Address:
Owner's Affidavit
Contact (if different)
Name: Steve Mills
Mailing Address: 3120 Sovereign Drive, Suite 411
Lansing, MI 48911
Phone: ( 517 ) 525 -4900
Fax:( 517 ) 244 -3601
Email Address: smills @dartdevelopment.com
(1) (We) New Port Beach Townhouse LLLP depose and say that (I am) (we are) the owner(s) of the property (ies)
involved in this application. (1) (We) further certify, under penalty of perjury, that the foregoing statements and
answers herein contained and the information herewith submitted are in all respects true and correct to the best of
(my) (our) knowledge and belief.
Signature(s) ���!/ l�L�t_ - Date /X:
NOTE: An agent may sign for the owner if written authorization from the record owner is filed with the application.
Please answer the questions below. Attach additional sheets, if necessary.
Site Address: 3355 Via Lido, Newport Beach, CA 92663
1. Please describe how abatement of the use at this time relates to your investment in the use and
the abatement period requested.
^�JEu rly
¢-c IMUe
PA2011 -153 for Abatement Period Extension aw
Bayfronrt Holdings LP pF��p
M Q'l��
Abatement Period Extension Application
Community Development Department `
Planning Division
3300 Newport Boulevard, Newport Beach, CA 92663
(949) 644 -3200 Telephone 1(949) 644 -3229 Facsimile
www.newportbeache.g.gov
Property Owner /Applicant
Contact (if different)
Name: IbL'tyti(.5, I-P Name: ,fir tt�o�rr"6o�►1&TLV
Mailing Address: _ Mailing Address: jq . — jWL6&'� }4, P '
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Phone:
Fax: (
Email Address:
Owner's Affidavit
Phone: (Je1 j) 82, 5 - on t k
Fax: (
Email Address: Mrs r,-. Go rv�
(1) (We) BzN r-eonl,— t roc-D1Ae.. e- P depose and say that (I am) (we are) the owner(s) of the
property (ies) involved in this application. (1) (We) further certify, under penalty of perjury, that the foregoing
statements and answers herein contained and tbe- ftqefmatlon herewith submitted are In all respects true and
correct to the best of (my) (our) knowlec*,andAlief. /
Signature(s) 04& Date 9-1 -11
NOTE: An agent may sign for the owner if writteri authorization from the record owner is filed with the application.
Please answer the questions below. Attach additional sheets, if necessary.
W ► ,
1. Please describe how abatement of the use at this time relates to your investment in the use and
the abatement period requested.
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5. Please describe the cost and feasibility of relocating the use to another site.
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6. Is there any other evidence relevant to the determination of whether an extension of the
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CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
February 1, 2012 Hearing
Agenda Item 3
SUBJECT: Abatement Period Extension — 1499 Monrovia Avenue - (PA2011 -152)
APPLICANT: Kenneth M. Kaplan, Property Owner
PLANNER: Javier S. Garcia AICP, Senior Planner
(949) 644 -3206, jgarcia @newportbeachca.gov
PROJECT SUMMARY
Request for extension of the required Abatement Period specified by Section 20.38.100
of the Newport Beach Municipal Code. The applicant requests to allow the existing
nonresidential use of the 17,000 square -foot office building to continue for an extended
period of time without abatement. No new development or construction is associated
with this application.
RECOMMENDATION
Staff recommends the Hearing Officer conduct a public hearing, receive testimony from
the applicant, the city staff, and members of the public. At the conclusion of the public
hearing, it is recommended that the Hearing Officer:
1. Adopt the attached Resolution for the property located at 1499 Monrovia Avenue,
based on the findings and considerations discussed in this report, approving the
Abatement Period Extension to ten years, February 1, 2022 (See Attachment No.
1).
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 2
LOCATIO
I GENERAL PLAN
ZONING
CURRENT USE
ON -SITE
RM (18DU /AC)
RM (2420)
Commercial Office Building
Multiple Unit Residential
Multi -Unit Residential
North
RM (18DU /AC)
RM (2420)
Community College Project
Multiple Unit Residential
Multi -Unit Residential
West
RM (18DU /AC)
Multiple Unit Residential
RM (2420)
Multi -Unit Residential
Banning Ranch Project
South and
RM (18DU /AC)
RM (2420)
Residential and
East
Multiple Unit Residential
Multi -Unit Residential
Mobile Home Park
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 3
INTRODUCTION
Project Setting
The subject office building is located on the west side of Monrovia Avenue in the West
Newport Mesa Area of the city. It is bounded by the Coastline Community College
District Project (currently under construction) to the north and the proposed Banning
Ranch Project to the west; and residential uses and a mobile home park to the east and
south.
Project Description
A request for extension of the required abatement period specified by Section 20.38.100
of the Newport Beach Municipal Code. The two- story, 17,000 square -foot office building
is located within the Multi -Unit Residential Zoning District (RM 2420). According to the
applicant, the building was constructed for and has been occupied by publishers of
Road and Track magazine and more recently by Hatchette Magazines Inc, which
publishes Road & Track, Cycle World and Car and Driver magazines, since 1998. The
applicant requests an extension of the abatement period to allow the existing
nonresidential use to continue.
Background
Information submitted by the applicant and available in city records indicates the
building was constructed in 1957 and was purchased by the present owner in
December 2007.
On July 25, 2006, the Newport Beach City Council adopted Resolution No. 2006 -76
approving a comprehensive update to the Newport Beach General Plan ( "General Plan
Update "), which changed the Land Use Designation of the subject property from M-1 -A
(Light Industrial) to RM (Multi -Unit Residential, 18DU /AC).
On January 28, 2008, the City Council adopted Ordinance No. 2008 -05, which in addition
to other Zoning Code changes, established the maximum time period for the abatement
and termination of nonconforming uses in residential districts. However, determinations of
nonconformity could not be made until the finalization of the City's Local Coastal Plan
(LCP), which occurred on July 14, 2009, and the subsequent Zoning Code Update which
was effective November 25, 2010 which delayed the implementation of the abatement
provisions.
On October 25, 2010, the City Council adopted a Comprehensive Update to the Zoning
Code (Newport Beach Municipal Code Title 20, NBMC) bringing consistency between the
Zoning Code and the Land Use Element of the General Plan. The result of that action
rendered several properties nonconforming, including the subject property and other
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 4
existing commercial uses located within residential districts, which in accordance with
Ordinance No. 2008 -05 became subject to abatement in accordance with the following
Section of Chapter 20.38 of the NBMC:
20.38.100 Abatement Period.
C. Residential zoning districts involving a structure. In residential zoning
districts or in an area where residential uses are allowed in planned
community districts or specific plan districts, a nonconforming use of land
involving a structure shall be discontinued as follows:
1. Abatement period. A nonconforming use of land involving a structure
in a residential zoning district shall be discontinued on the earliest
date as follows:
a. Within one year; or
b. Upon the expiration of the term of a lease on the property.
Any lease shall be the last lease entered into for the subject
property prior to December 7, 2007; or
C. Upon the expiration of a current operating license that is
required by State law.
The City sent letters to all known properties with uses that are subject to abatement. The
abatement order for the subject properties were issued on January 14, 2011. Staff
contacted the owner of the subject property and explained the options available to remedy
the situation. Those remedies include conversion of use or development to a residential
use; request for extension of the abatement period; and /or request to amend the General
Plan, and Zoning Code to allow the continuation of the commercial use. In the case of the
subject application, the owner chose to pursue an extension of the abatement period. If
the extension is granted, the owner may pursue any of the remedies mentioned above at a
future date. The extension will also provide the owner additional time to amortize the
investment of the current improvements on the property, as well as negotiate leases, in
order to maintain the rental income.
The applicant has filed a claim that alleges down zoning of the subject property which
occurred as a result of the 2006 General Plan Update. The amendment changed the
Land Use Designation of the subject property from M -1 -A (Light Industrial) to RM (Multi -
Unit Residential, 18DU /AC). The City intends to defend itself against this lawsuit.
DISCUSSION
General Plan
The Land Use Element of the General Plan generally guides the future development of
the City and would generally allow the continuation of legally established structures and
uses; and does not specify requirements for abatement of nonconforming uses. The
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 5
Zoning Code is the regulatory tool that implements and regulates the provisions of the
General Plan.
Zoning Code
To make the subject properties consistent with the Zoning Code would require the
abatement of the nonresidential uses. However, the Zoning Code allows for a procedure
to grant an extension of the abatement period for the continued use of the existing
building and use. The approval authority for the extension lies with the Hearing Officer
in accordance with the provisions of Section 20.38.100C 4b of the NBMC. The Hearing
Officer is also required to conduct a public hearing on the request in compliance with
Chapter 20.62 of the NBMC.
Findinas and Considerations:
In accordance with the provisions of Chapter 20.38 of the NBMC, the Hearing Officer,
by resolution, shall approve, conditionally approve, or deny the request for an extension
to the abatement period. The resolution shall include: findings of fact; evidence
presented of economic hardship arising from the abatement proceedings; the
nonconformity's impact on the community; and other factors that may affect the length
of the abatement period required to avoid an unconstitutional taking.
In accordance with the provisions of Section 20.38.100 (C -4c), the Hearing Officer in
reviewing an application for an extension to the abatement period shall consider the
following:
(1) Length of the abatement period in relation to the owner's investment in the
use;
(2) Length of time the use was operating prior to the date of nonconformity;
(3) Suitability of the structure for an alternative use;
(4) Harm to the public if the use remains beyond the abatement period; and
(5) Cost and feasibility of relocating the use to another site.
The applicant has submitted the attached letter in conjunction with the application for
extension of the abatement period (Attachment No. 2). Staff has reviewed the
information submitted by the applicant and, where applicable, has summarized it below
to address the findings and considerations for the property involved, that the Hearing
Officer may use in making his determination.
(1) Length of the abatement period in relation to the owner's investment
in the use.
According to the property owner, he has owned the property since December 2007. Per
the owner, the current tenant has occupied the building since he purchased the property
and city records indicate the tenant occupied the building since 1998. Although the
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 6
owner has not specified a particular duration for the extension, staff recommends that
the one year abatement period specified by the Municipal Code is not sufficient duration
to amortize the property owner's investment in the building and other on site
improvements (parking lot and landscape improvements), the ability to negotiate leases
(which will expire in September 2012), or to renegotiate the financing of the property
(which will come due in the next year). Based on the information submitted by the
applicant, staff recommends that an extension of 10 years for the abatement of the
current uses is necessary to avoid an unconstitutional taking of the applicant's property;
and to avoid the economic hardship that will result by the abatement of the
nonresidential use which provides a stable revenue stream. The ten year extension
period is also consistent with the period of extension approved in other applications.
(2) Length of time the use was operating prior to the date of
nonconformity.
The property became nonconforming with the General Plan in 2006, 6 years ago, when
the City Council adopted Resolution No. 2006 -76 approving the "General Plan Update ".
The existing structure and use conformed to the Land Use Element of the General Plan
for 49 years prior to the 2006 update; and was not subject to abatement until 2008.
(3) Suitability of the structure for an alternative use.
The building could be modified to accommodate other commercial or nonresidential
uses. The existing building is occupied by an editorial and publishing business, and
constructed to commercial building code requirements that are not suitable for
conversion to a residential building or use. Such conversion would likely require
demolishing and building new; or major renovation with significant structural and
seismic alterations to provide adequate living areas and residential parking, which
includes garage parking.
(4) Harm to the public if the use remains beyond the abatement period.
As seen in the aerial photo on Page 2, the property is in an area that is occupied by
other nonresidential uses and public institutions; including the Coastline Community
College Project, Banning Ranch Project; and residential and mobile home park uses
(across Monrovia Avenue). It is anticipated that the continued commercial use of the
subject property is compatible with the surrounding uses and will not have any negative
impact or pose harm on the neighboring residential and nonresidential uses in the
vicinity. Photos of the site as viewed from Monrovia Avenue are attached (Attachment
No. 3).
(5) Cost and feasibility of relocating the use to another site.
The relocation of the existing tenant is difficult since there are no buildings of
comparable size (17,000 square feet) in the Newport Mesa Area to accommodate the
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 7
tenant's needs. Consequently, relocation of the existing uses would result in the
additional costs to existing tenant and result in a substantial loss of revenue to the
property owner.
RECOMMENDATIONS
As discussed in Finding and Considerations section above for the property, the
applicant has presented information and a request to extend the abatement period. Staff
recommends an extension period of ten years for 1499 Monrovia Avenue to February 1,
2022 is consistent with other extension requests previously approved and appropriate in
this case.
That the request for the extension for ten years be approved based on the following
findings and considerations:
1. That one year is not an adequate period of time to amortize the property owner's
investment in the property.
2. That the property became nonconforming with the General Plan in 2006, 6 years
ago, when the City Council adopted Resolution No. 2006 -76 approving the
"General Plan Update ". The existing structure and use conformed to the Land
Use Element of the General Plan for 49 years prior to the 2006 Update; and was
not subject to abatement until 2008.
3. That the building could be modified to accommodate other commercial or
nonresidential uses. However, the current building is not suitable for conversion
from the existing commercial use to a residential building without demolishing
and building new, or major renovation to provide adequate living areas and
residential parking.
4. That the property is located in an area that is occupied by other nonresidential
uses and public institutions; including the Coastline Community College Project
and the proposed Banning Ranch Project, residential and mobile home park uses
(across the street). It is anticipated that the continued commercial use of the
subject property is compatible with the surrounding uses and will not have
negative impact or pose harm on the neighboring residential and nonresidential
uses in the vicinity.
5. That the office building has not posed negative impact on the neighboring uses.
6. That the relocation of the existing tenant is difficult since there are no buildings of
comparable size in the Newport Mesa Area. Consequently, relocation of the
existing uses would result in the additional costs to existing tenants and result in
a substantial loss of revenue to the property owner as a result of the loss of rent.
7. That the abatement extension of ten years (February 1, 2022) is appropriate in
this case since it will afford the property owner the ability to amortize the value of
the building and other on site improvements (parking lot and landscape
improvements), and the ability to negotiate leases, or to renegotiate the financing
of the property.
Abatement Extension - Kaplan Property
1499 Monrovia Avenue
February 1, 2012
Page 8
CONCLUSION
Based on the information submitted by the applicant, adequate justification has been
presented to extend the period of abatement. Therefore, in accordance with the provisions
of Section 20.38.100 of the NBMC, the Hearing Officer may approve the request for
extension of the abatement period based on the Findings and Consideration and
testimony presented at the hearing. It is recommended that the Hearing Officer take the
following action;
• Adopt the attached Resolution for the property located at 1499 Monrovia Avenue,
based on the findings and considerations discussed in this report, approving the
Abatement Period Extension to ten years, February 1, 2022 (See Attachment No.
1).
Environmental Review
The project is categorically exempt under Section 15301, of the California
Environmental Quality Act (CEQA) Guidelines - Class 1 (Existing Facilities).
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to property owners within
300 feet of the property and posted at the site a minimum of 10 days in advance of this
hearing consistent with the Municipal Code. Additionally, the item appeared upon the
agenda for this meeting which was posted at City Hall and on the City website.
Prepared by:
S4mitted by:
Javier . Garcia, ICP B
Senior Planner D
ATTACHMENTS
12/21/11
WisneA, AICP
CommunI Development Director
PC 1 Draft Resolution Approving the Abatement Extension Request
PC 2 Applicant's Extension Application and Supporting Information
PC 3 Site Photos
DRAFT RESOLUTION APPROVING
THE ABATEMENT PERIOD EXTENSION
1499 MONROVIA AVENUE
(PA2011 -152)
ATTACHMENT No. 1
RESOLUTION NO. HO 2012-
A RESOLUTION OF A HEARING OFFICER OF THE CITY
OF NEWPORT BEACH APPROVING THE ABATEMENT
EXTENSION PERIOD FOR THE PROPERTY LOCATED AT
1499 MONROVIA AVENUE (PA 2011 -152)
WHEREAS, Chapter 20.38.100 of the Newport Beach Municipal Code (NBMC)
requires nonconforming nonresidential uses in residential zoning districts to be abated
and terminated upon the expiration of time periods identified by the NBMC. Following
the issuance of an Abatement Order, Chapter 20.38.100 provides that a property owner
may request an extension of the abatement period in order, to amortize a property
owner's investment in the property and avoid an unconstitutional taking of property; and
WHEREAS, an application was filed by Kenneth M Kaplan, the owner of property
located at 1499 Monrovia Avenue, and legally described as Parcel 2 of Lot Line
Adjustment 2007 -002, requesting an extension of the abatement period specified by the
NBMC Section 20.38.100. If granted, the extension will allow the continued operation of
existing commercial use for ten years from the date of the Hearing Officer's approval
(February 1, 2022). The property is located in the RM (2420) Zoning District, where
such nonresidential uses are not permitted; and
WHEREAS, a public hearing was held on February 1, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the NBMC and other
applicable laws. Evidence, both written and oral, was presented and considered at this
meeting; and
WHEREAS, the hearing was presided over by Hon. John C. Woolley, retired
Judge (California Superior Court, Orange County), Hearing Officer for the City of
Newport Beach; and
WHEREAS, the findings and considerations of Section 20.38.100 (C.4(c)) of the
NBMC and facts in support of the findings and considerations are as follows:
1. The length of the abatement period is not appropriate considering the
owner's investment in the use;
Facts in Support of Finding: The one year abatement period specified by the Municipal
Code is not of sufficient duration to amortize the property owner's investment and the
ability: to negotiate leases (which currently expire in September 2012), or to renegotiate
the financing of the property (which will come due within the next year). Based on the
information submitted by the applicant, staff recommends that an extension of 10 years
for the abatement of the current use is necessary to avoid an unconstitutional taking of
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Kaplan Property
(1499 Monrovia Avenue)
Page 2 of 3
the applicant's property; and to avoid the economic hardship that will result by the
abatement of the nonresidential use which provides rental income.
2. The length of time the use was operating prior to the date of nonconformity
justifies the extension of the abatement period beyond the code specified
one year.
Facts in Support of Finding: The property became nonconforming with the General Plan
in 2006, 6 years ago, when the City Council adopted Resolution No. 2006 -76 approving
the "General Plan Update ". The existing structure and use conformed to the Land Use
Element of the General Plan for the 49 years prior to the 2006 update; and was not
subject to abatement until 2008.
3. The existing structure is not suitable for conversion to an alternate use.
Facts in Support of Finding: The building could be modified to accommodate other
commercial or nonresidential uses. However, the age and configuration of the current
building is not suitable for conversion from the existing commercial use to a residential
building without demolishing and building new, or major renovation to provide adequate
living areas and residential parking.
4. No harm to the public will result if the nonresidential uses remain beyond
the one year abatement period.
Facts in Support of Finding: The property is located in an area that is occupied
nonresidential uses, residential uses and public institutions; including the Coastline
Community College Project and Banning Ranch Project, and residential and mobile
home park uses (across Monrovia Avenue). Continued commercial use of the subject
property is compatible with the surrounding uses and will not have negative impact or
pose harm on the neighboring residential and nonresidential uses in the vicinity.
5. The cost and feasibility of relocating the uses to another site cannot be
accommodated within the one -year abatement period.
Facts in Support of Finding: The relocation of the existing uses would be costly since
there are no buildings of comparable size (17,000 square feet) in the Newport Mesa
Area to accommodate the tenant's needs. Consequently, relocation of the existing uses
would result in the additional costs to the existing tenant and result in a substantial loss
of revenue to the property owner.
WHEREAS, this activity has been determined to be categorically exempt under
the requirements of the California Environmental Quality Act under Class 1 (Existing
F: \Users \PLN \Shared\PA's \PAs - 2011 \PA2011 - 152 \PA2011 -152 - Reso of Approval DRAFT 1499 Monrovia Ave- HO 02- 01- 2012.docx
City of Newport Beach
Hearing Officer Resolution
Abatement Extension — Kaplan Property
(1499 Monrovia Avenue)
Page 3 of 3
Facilities). This class of projects has been determined not to have a significant effect on
the environment and is exempt from the provisions of CEQA. This activity is also
covered by the general rule that CEQA applies only to projects that have the potential
for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA
Guidelines. It can be seen with certainty that there is no possibility that this activity will
have a significant effect on the environment and therefore it is not subject to CEQA.
NOW THEREFORE, BE IT RESOLVED:
Section 1. The Hearing Officer of the City of Newport Beach hereby approves the
requested Abatement Period Extension (PA2011 -152), subject to the findings and
considerations set forth above.
Section 2. The Abatement Period Extension for the property located at 1499 Monrovia
Avenue, and legally described as Parcel 2 of Lot Line Adjustment 2007 -002, is hereby
extended for ten years and will expire on February 1, 2022, at which time all nonresidential
use of the property shall cease or the building be demolished, unless an additional
extension of the abatement period is granted; or an appropriate change in the Zoning
District and the General Plan Land Use Designation are approved and adopted; or a
change to the Zoning Regulations pertaining to nonconforming uses or their abatement
are approved and adopted prior to that date.
Section 3. This action shall become final and effective fourteen (14) 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.
APPROVED AND ADOPTED THIS DAY OF 2012.
ATTEST:
City Clerk
Hon. John C. Woolley, retired Judge
(California Superior Court, Orange County)
Hearing Officer for the City of Newport Beach
F: \Users \PLN \Shared\PA's \PAs - 2011 \PA2011 - 152 \PA2011 -152 - Reso of Approval DRAFT 1499 Monrovia Ave- HO 02- 01- 2012.docx
APPLICANT'S EXTENSION APPLICATION
AND ADDITIONAL INFORMATION
1499 MONROVIA AVENUE
(PA2011 -152)
ATTACHMENT No. 2
Y
. - 4�X4\vl�
Abatement Period Extension Applieatt'�RO 6y
Planning Department COMMUNITY
3300 Newport Boulevard, Newport Beach, CA 92663
(949) 6443200 Telephone 1(949) 6443229 Facsimile AUG 10 2011
www. newportbeachca. gov
Property Owner /Applicant
Name: Kenneth �1. Kaplan
vc v cLv!'M t: Furl
Contact if different °
Contact ( if R NEb+rnOR'
Name:
Mailing Address: 361 Forest Avenue, Suite 204 I Mailing Address:
Laguna Beacli, CA 92651
Phone:(949) 715 -0770
Fax: (949) 715-0773
Email Address: kaplankm@gmail.com
Owner's Affidavit
Phone:( )
Fax: ( )
Email Address:
(1) Mts) Kenneth M. Kaplan depose and say that (I am) (+nae z* the owner(a) of the
property (ies) involved in this application. (1) (Z" further certify, under penalty of perjury, that the foregoing
statements and answers herein contained and the information herewith submitted are in all respects true and
correct to the hest of (my) (aio knowledge�3nd belief.
Signature(s) G,�iu.�. ! —T Date 08/08/11
Kenneth M. Kaplan
NOTE: An agent may sign for the owner if written authorization from the record owner is filed with the application.
Please answer the questions below. Attach additional sheets, If necessary.
1. Please describe how abatement of the use at this time relates to your investment In the use.
See letter dated August 8, 2011 from Peter D. Collisson, Esq. to James Campbell,
Acting Planning Director (the " Collisson Letter ").
PA2011 -152 for Abatoment Period Extension
1499 Monrovia Avenue
Kenneth M. Kaplan
N
2. How long has the use been operating?
See Collisson Letter.
3. Please describe the suitability of the structure for an alternative use.
The building is suitable for office use only.
4. Please describe way there would be no harm to the public if the use remains beyond the
abatement period.
See Collisson Letter.
Updated 10106/10
2
5. Please describe the cost and feasibility of relocating the use to another site.
See Collisson Letter.
6. Is there any other evidence relevant to the determination of whether an extension of the
abatement period is required to avoid an unconstitutional taking of property?
See Collisson Letter..
Updated 10106/10
3
PETER D. COLLISSON
PROF, CORP.
ATTORNEY AT LAW
361 Fo11Es-r AVENUE, SUi I E 204
LAGUNA BEACH, CA 92651-2 148
TLEFNW:F 949/25C,-14'/4
FacS'U.!ll.r.''J4D /r3e;O t3G0 ;
:August 8, 2011
CERTIFII;D MAIL RV I'L'RN
1ZF;Cl?1P'1' 1tl�QUl ?S "1'l�l�
NO.7009096000042972764
AND FIRST CLASS MAIL
James Campbell
Acting Plainning Director
Planning Department
3300 Newport Boulevard, Building C
Newport Beach, CA 92663
EMAIL
FILE'NO.: 1 102 ::? A-1
Re: 1499 MO/VROV1A AVENUE, NEIVPORT BEACH, CA (424- 401 -014)
D01VNZ0N1iVG FROM M-1 -A TO RM (2420,
Dear N1r. Campbell:
I am writing on behalf of Kenneth M. Kaplan ( "Nifr. Kaplan" or "Kaplan "),
owner of 1499 Monrovia Avenue, Who retained my firm after receiving your letter of
January 14, 2011 advising him that the zoning classification for Ills property had hecn
changed from NI -1- A to IL\I (2420). This letter addresses )lour position that "[t]he
Current non - residential Use is -no longer a permitted use" and "is subject to
abatement."
The tenor of your January 14 letter is that you are prepared to meet \vtth
Mr. Kaplan to discuss a (itne extension of the abatement period and /or conversion
of the use of the property to a residential use. Neither approach is consistent With
applicable law. Mr. Kaplan and I have made a thorough Analysis of the regulatory
takings cases. Your legal advisors have undoubtedly told you about the limitations
placed oil municipal governments that want to do >wnvone properties or force a
change in their use through restrictive zoning. A careful and complete statement of
these litil- itadons Was expressed in Tahoe Ke s PgPerly Onme sAcsociallou 14 Sinle If "'Wer
Resoilrov Coi1l1n1 Board, 23 Cal, App. 4th 1459, 1483 -4 (1994) as follows:
PA2011 -152 for Abatement Period Extension
1499 Monrovia Avenue
KPnnalh M Kanlan
LETTER TO JAMI S CAMPBELL_
AUGUST 8, .2.01 1
PAGE 2 OF 3
"... land use regulation must be prospective in nature
because the state is Cot tstitutionalh' limited in the extent to
Which it MaV, through land use regulation, ,effect prior
existing uses. Accordingly, preexisting use is a
constitutional line of denlarca6on in hued -use regulation
and prior uses are protected while expectations and
aspirations are not."
Mr. Kaplan purchased the property on December 20, 2007 for S5.8 trillion.
The property is improved with an architectura11N' signiticatit building; that was built for
and sub,cque,-1dy has been leased tc, Road and Track Magi inc ( "1Zoad & 'Track ") for
approximately 40 ),cars. Needless to sa)., the Road & "Track lease payments are
substantial. In your letter to Road & Track, also on .January 14, 2011, you have
essentially told them to vacate the property by Novcnibcr 25, 2011 unless they engage
in the expensive, time - consuming and uncertain process of appeahng to your
Department. The loss of Road & 'Track as a tenant would be devastating to Mr.
Kaplan. I lis investment would provide him with no return at the same time lie must
malnumi the payments on leis loan. The downzoning would eliminate all expectations
he had when he invested in the property. Peon Cenlral7 innshoi-lalron C moany P. Go of
1Tew York, X138 U.S. 104, l3G (1978 }. further, Calitolnia Code of (,lull Procedure
J 1263.205 makes it clear that the forced deniolition of the building is a total taking of
that asset.
It is unclear why this property, which has a building of approximately 17,000
square feet, is subject to down2oning at the same time that the City of Newport
Beach ( "City ") is permitting Coast Com uullty College, the adjoining property owner
to the north, to build a large I, earning (,enter of approxi matety 55,000 square feet.
Mr. Kaplan bclicVcs that the Kaplan /Road & Track property has been singled-Uut for
no rational reason.)
Simply put, the City's action in sending the January 14, 2011 letters to both
'fir. Kaplan and to Road & "Track are discriminatory and functionally rendered
_fir. Kaplan', property unmarketable, unftnanceable and unrentable.
I In fact, the City's attempt to impair the value of Mr. Kaplan's property dill not start m-ith your
).uua.url•I, 201 1 letter. The Oty approved the Coast Community Collcge project on then undeveloped land
v6thom requiring dedications for the extension of 15"' Street to the boundary of the Banning Ranch on the
then undeveloped property. As a result, any Curare cstcusion of I i'" Stmct \%rill raluirc a taking of st
significant portion of the parking area of the Kaplan /Road & Track property resulting in severance damages
that equal or approximate a total taking.
L=- ER TO JAMES CAMPBELL
AUGUST 8, 201 1
The simplest way for the City to get what it wants is to pay for.it and, given
VOUr tM10 January 14 letters, that is what it is obligated to do. .-I's noted, \Ir. Kaplan
bought the property at the end of 2007 for $5.8 million. The purchase price reflects a
first class building with a high quality tenant producing a substantial income stream,
Based on your assertion to each letter that "[t]he current non-residential use is no
longer a permitted use," you are denying Mr. Kaplan any reasonable and beneficial
use of the property.
In summary, the property has not changed since Mr. Kaplan purchased it —
same land, same building, same tenant, same rental stream. The property has been
functionally condemned by the Cite. the City should buy the property for
$5.8 million. This is the only way to allow the City to achieve its goal consistent with
,N-1r. Kaplan's rights. While Mr. Kaplan is willing to meet with the City to discuss
rescission of the actions taken by the City on November 25, 2010 and with respect to
the Coastline Community College development adjacent to Mr. Kaplan's property, it
is out belief that the City's actions have irrevocably harmed Mr. Kaplan to a manner
that cannot be undone by either rescission or amendments to its general plan and
zoning code to permit the existing use and the uses afforded Coastline Community
College next door.
We hope to meet with you as soon as possible, because if you and i\Ir. Kaplan
cannot reach a solution, IMr. Kaplan will take affirmative steps to protect lus
investment,
`fiery truly yours,
Ora"-
Peter D, Collisson
PDC /cm
cc: Mr. I {enneth M. Kaplan
SITE PHOTOS
1499 MONROVIA AVENUE (PA2011 -152)
VIEWS FROM MONROVIA AVENUE
ATTACHMENT No. 3
Garcia, Jay
From: Betsy Malone [betsybythebeach @gmail.coml
Sent: Saturday, January 28, 2012 2:33 PM
To: Garcia, Jay
Subject: Abatement Period Extension for 1499 Monrovia Avenue
Hearing Date: February 1, 2012
Project File No.: PA2011 -152
Abatement Period Extension
1499 Monrovia Avenue
Mr. Javier Garcia:
Pursuant to the public hearing notice received for an Abatement Period Extension for 1499 Motu•ovia
Avenue, the Newport Knolls condominium conullunity (located at the end of Monrovia Avenue and Halyard)
supports the extension.
The current tenants, Car and Driver /Hearst Communications, and Kenneth Kaplan (owner) have been good
neighbors for the past 10 plus years. The property is kept well maintained and there have been no complaints
irom our residents.
Best Regards,
Betsy Malone
Newport Knolls HOA, President
874 Halyard
Newport Beach, CA 92663
G�VED By
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Peter D. Collisson, Esq /SBN 053322
PETER D. COLLISSON PROF. CORP.
361 Forest Ave., Ste 204
Laguna Beach, CA 92651 -2148
Tel.: (949) 250 -7474; fax: (949) 660 -8001
Email: Pete e,pdclaw.coin
Attorney for Plaintiff Kenneth M. Kaplan
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE, CENTRAL JUSTICE Q ff�bEI Aj
KENNETH M. KAPLAN, an individual,
Plaintiff,
vs.
CITY OF NEWPORT BEACH, a municipality,
and DOES 1 -50, inclusive,
Defendants
Plaintiff alleges for causes of action:
CASE NO. 0 0 5 31 6 6 7
UNLIMITED JURISDICTION
Assignedjo:lHoij : V 1, R I1_!,;; i
COMPLAINT IN INVERSE
CONDEMNATION
Hearing Date:
Time:
Dept.: C-
Complaint Filed: , 2011
Trial Date: IWA
FIRST CAUSE Or ACTION
(Inverse Contlemration under California Constitution,
Article 1, Section 19; Against All Defen(lants)
1. Plaintiff is an individual who is a resident of the County of Orange and at all
times relevant hereto is and has been since December 2007 the owner in fee simple of that
certain real property located at 1499 Monrovia Avenue, Newport Beach, California which is
referred to hereinafter as the "Real Property."
2. Plaintiff is informed and believes, and thereupon alleges, that Defendant City
1
COMPLAINT PA2011 -152 for Abatement Period Extension
1499 Monrovia Avenue
Kenneth M. Kaplan
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of Newport Beach is a municipality organized and existing pursuant to the laws of the State
of California.
3. Plaintiff is ignorant of the true names and capacities of those defendants sued
herein as Does 1 -50, inclusive, and therefore sues said defendants by those fictitious names.
Plaintiff will amend this complaint to allege their true names and capacities when
ascertained. Plaintiff is informed and believes and thereupon alleges, that each of the
fictitiously -named defendants is in some manner responsible for the injury and damage to
Plaintiff alleged herein.
4. The Real Property is more particularly described:
PARCEL 2 AS SHOWN ON EXHIBIT "A" OF LOT LINE ADJUSTMENT NO. LA 2007-
002, RECORDED OCTOBER 4, 2007 AS INSTRUMENT NO. 2007 - 598931 OF
OFFICIAL RECORDS, BEING A PORTION OF THE FOLLOWING DESCRIBED
PROPERTY:
LOT 1017 OF THE FIRST ADDITION TO NEWPORT MESA TRACT, AS SHOWN ON
A MAP RECORDED IN BOOK 8, PAGE 61 OF MISCELLANEOUS MAPS, RECORDS
OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH THAT PORTION OF THE
SOUTH ONE -HALF OF 15TH STREET, 60.00 FEET WIDE, ADJOINING SAID LOT
1017 ON THE NORTH, AS SAID 15TH STREET WAS VACATED AND ABANDONED
BY RESOLUTION NO. 67 -863 OF THE BOARD OF SUPERVISORS OF ORANGE
COUNTY, CALIFORNIA, A CERTIFIED COPY OF WHICH WAS RECORDED
AUGUST 11, 1967 IN BOOK 8339, PAGE 801 OF OFFICIAL RECORDS OF SAID
ORANGE COUNTY, SAID PORTION LIES WESTERLY OF A LINE THAT RUNS
SOUTHERLY IN A DIRECT LINE FROM THE SOUTHEAST CORNER OF LOT 1016
OF SAID FIRST ADDITION TO NEWPORT MESA TRACT TO THE NORTHEAST
CORNER OF SAID LOT 1017.
TOGETHER WITH THE NORTH ONE -HALF OF 15TH STREET (60.00 FEET WIDE)
ADJOINING SAID LOT 1016 ON THE SOUTH, AS SAID 15TH STREET WAS
VACATED AND ABANDONED BY RESOLUTION NO. 67 -863 OF THE BOARD OF
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SUPERVISORS OF ORANGE COUNTY, CALIFORNIA, A CERTIFIED COPY OF
WHICH WAS RECORDED AUGUST 11, 1967 IN BOOK 8339, PAGE 801 OF OFFICIAL
RECORDS OF SAID ORANGE COUNTY, SAID PORTION LIES WESTERLY OF A
LINE THAT RUNS SOUTHERLY IN A DIRECT LINE FROM THE SOUTHEAST
CORNER OF SAID LOT 1016 TO THE NORTHEAST CORNER OF LOT 1017 OF SAID
FIRST ADDITION TO NEWPORT MESA TRACT.
A PORTION OF APN: 424-40 1 -11
5. Plaintiff purchased the Real Property in December 2007 for a price that
reflected then - current conunercial values for an architecturally significant two (2) story
conunercial office building that was adequately parked, had dramatic views of the Pacific
Ocean and, most importantly, had a seasoned substantial income stream from a credit- worthy
tenant. The building had been constructed approximately 40 years ago by the then owners of
ROAD & TRACK MAGAZINE. That magazine has remained the sole occupant of that building
since its construction and has used the building continuously for the conunercial,
nonresidential operation of publication of a magazine for auto enthusiasts. (Following initial
construction of the building, the original magazine owners sold and leased back the
building.) Plaintiff's lease with the owner of ROAD AND TRACK MAGAZINE enabled plaintiff
to obtain the financing needed for his purchase of the Real Property in 2007 (60% of the
purchase price paid by plaintiff for the Real Property). The lease also enabled plaintiff to
service that loan and afforded plaintiff a reasonable return on invested capital.
6. On October 26, 2010 defendants altered the zoning classification for the Real
Property and some of the surrounding area, changing it from M -1 -A (cormnercial use) to
RM2420 (residential use), effective November 25, 2010. In January 2011, defendants
advised plaintiff and ROAD & TRACK MAGAZINE that the existing usage of the building on
the Real Property, which was nonconforming in terms of the revised zoning designation,
would have to cease on or before November 25, 2011. As a practical matter this meant that
the tenant, a conunercial business, would have to vacate the premises, and that the sole
structure — the conunercial office building — on the Real Property would have to be
3
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demolished because of its incompatibility with the revised zoning for the Real Property. That
office building is an "improvement pertaining to the realty," as that term is used in
CCP §§ 1263.205(a), et seq. The impact of the zoning change by defendants is not
prospective in effect only, but absolutely terminates pre - existing rights of usage of the Real
Property by plaintiff and plaintiff's tenant, ends plaintiffs income stream and, therefore,
imposes an economic impact that is both severe and that totally destroys the investment -
backed expectations held by plaintiff when he acquired the Real Property. The actions taken
to date by defendants have destroyed plaintiff's ability to lease, finance, improve, or sell the
Real Property.
7. At the time of the zoning change, the real property adjoining plaintiff's Real
Property (1515 Monrovia Avenue) was owned by Coastline Conununity College, which was
then and still is in the process of constructing a campus facility, for nonresidential purposes,
specifically for the operation of a post- secondary and vocational school. Defendants,
however, did not require a comparable demolition or cessation of construction of conunercial
improvements on that adjoining property or require its owner to cease those nonresidential
activities thereupon. Thus, plaintiff's Real Property has been singled out by defendants for
disparate treatment, which is neither reasonable nor required for the achievement of the goals
ostensibly justifying the zoning change implemented by defendants and affecting that
property.
8. In January 2011 defendants notified plaintiff of the aforesaid zoning change,
but also invited plaintiff to request an extension of the abatement period before the zoning
change would become effective. Plaintiff made a timely application for such an extension on
August 8, 2011; a true and correct copy of that application is attached hereto as Exhibit "1"
and is incorporated herein by this reference. At no time have defendants responded to that
application in any fashion whatsoever, aside from acknowledging their receipt of timely
application. Accordingly, plaintiff has exhausted all administrative remedies available to
him. No administrative claim by plaintiff of defendants is required by virtue of Gov't
Code § 905.1. Plaintiff has advised defendants that the destruction of the improvements
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upon the Real Property will destroy plaintiff's ability to generate rental income sufficient
either to pay the existing mortgage loan on that property or to construct new structures
consistent with the revised zoning on that property. Moreover, without first eliminating the
existing loan that encumbers the Real Property, plaintiff could not obtain a construction loan
that would be a prerequisite to any ability by plaintiff to construct new residential structures
upon the Real Property. Thus, the action by defendants, as aforesaid, eliminates the ability
by plaintiff to obtain any reasonable return on his investment in the Real Property, and has
the practical effect of leaving plaintiff with raw land encumbered by a mortgage that plaintiff
cannot service.
9. The aforesaid action by defendants imposes a permanent, substantial
diminution in value of plaintiff's Real Property. That change was both unreasonable and
unnecessary, in that defendants concurrently allowed the adjoining property to remain
exempt from the overall zoning change that defendants applied to plaintiff's property.
10. As a direct and proximate result of the aforesaid action by defendants to
plaintiff's Real Property, defendants have taken plaintiff's Real Property without tendering
just compensation therefor, in violation of plaintiff's rights under Article 1, Section 19, of the
California Constitution. Accordingly, plaintiff has been damaged in an arnount in excess of
the minimum jurisdictional limit of this Court.
11. Plaintiff has received no compensation for the darnnage to the Real Property.
12. Plaintiff has incurred and will incur attorney's, appraisal and related fees
because of this proceeding in amounts that cannot yet be ascertained, which are recoverable
in this action Linder the provisions of CCP § 1036.
SECOND CAUSE OF ACTION
(Invef•se Condemnation imclei• California Constitution,
Article 1, Section 19; Against All Defen(lants)
13. Plaintiff realleges and incorporates herein by this reference those allegations
appearing above in paragraphs 1 -12, inclusive, as though set forth herein at length.
5
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14. To compound the injustice to plaintiff, defendants plan to take the entire
parking field in front of the building on plaintiff's Real Property for the planned extension of
15 "' Street in accordance with the conceptual plan attached hereto as Exhibit "2" (the 15 "'
Street Extension "). Such a taking will result in the inability of plaintiff to provide ROAD &
TRACK MAGAZINE (or any fi►tu•e tenant of the building) sufficient on site parking for the
building to either meet defendants' parking requirements for office buildings or to otherwise
satisfy the needs of ROAD & TRACK MAGAZINE. Defendants could have avoided this
prospective taking, which imposes an additional cloud on plaintiff's ability to either extend
the term of its lease with ROAD & TRACK MAGAZINE, find a new tenant, extend the terns of
the existing financing, obtain new financing or market the Real Property for sale. Defendants
could have avoided this severe impact on plaintiff by moving the 15 "' Street Extension to the
then unimproved Coastline Convnunity College site.
15. The aforesaid action by defendants will, when effectuated, impose a
permanent, substantial diminution in value of plaintiff's Real Property. That diminution is
both unreasonable and unnecessary.
16. As a direct and proximate result of the aforesaid action by defendants to
plaintiffs Real Property, defendants have taken plaintiffs Real Property without tendering
just compensation therefor, in violation of plaintiffs rights under Article 1, Section 19, of the
California Constitution. Accordingly, plaintiff has been damaged in an amount in excess of
the minimum jurisdictional limit of this Court.
17. Plaintiff has received no compensation for the inuninent damage to the Real
Property.
18. Plaintiff has incurred and will incur attorney's, appraisal and related fees
because of this proceeding in amounts that cannot yet be ascertained, which are recoverable
in this action under the provisions of CCP § 1036.
COMPLAINT
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THIRD CAUSE OF ACTION
(Inverse Condemnation under United States Constitution,
5' & 14" Amendments; 42 U.S.C. § 1983; Against All Defendants)
19. Plaintiff realleges herein as though set forth at length those allegations
appearing in paragraphs 1 -12, supra.
20. The aforesaid actions by defendants have also violated plaintiff's rights under
the fifth and fourteenth amendments to the U.S. Constitution, and have deprived him of due
process and equal protection of the law and just compensation, in violation of Section 1983
of Title 42 of the U.S. Code. Plaintiff is, therefore, entitled to recover, in addition to just
compensation for the lost value of the Real Property, his attorney's, appraisal, and related
fees, and costs of suit incurred herein pursuant to 42 U.S.C. § 1988.
FOURTH CAUSE OF ACTION
(Inverse Condemnation wider United States Constitution,
5 "' & 14`x' Amendments; 42 U.S.C. § 1983; Against All Defendants)
21. Plaintiff realleges and incorporates herein by this reference those allegations
appearing above in paragraphs 1 -12, 14 -15, 17 -18, & 20, inclusive, as though set forth herein
at length.
22. The aforesaid action by defendants will, when effectuated, impose a
permanent, substantial diminution in value of plaintiff's Real Property. That change is both
unreasonable and unnecessary.
23. As a direct and proximate result of the aforesaid action by defendants to
plaintiff's Real Property, defendants have taken plaintiff's Real Property without tendering
just compensation therefor, in violation of plaintiff's rights under the U.S. Constitution, 5 "' &
14 "' Amendments, and Title 42 of the U.S. Code.
24. Plaintiff has incurred and will incur attorney's, appraisal and related fees
because of this proceeding in amounts that cannot yet be ascertained, which are recoverable
in this action under the provisions of 42 U.S.C. § 1988.
7
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FIFTH CAUSE OF ACTION
(Declaratory Relief,• To All De
feudants)
25. Plaintiff realleges herein as though set forth at length those allegations
appearing in paragraphs 1 -11, supra.
26. By virtue of the aforedescribed zoning change, defendants have effected a total
taking without compensation of plaintiffs Real Property. By so doing, defendants have
enacted a regulation (the zoning change) that, when applied to plaintiff's Real Property,
unconstitutionally deprives plaintiff of his protected rights. Accordingly, in the absence of
payment of just compensation to plaintiff for said deprivation, the zoning change described
above should be declared by this Court to be unconstitutional insofar as it applies to the Real
Property.
27. Plaintiff is informed and believes, and thereupon alleges, that defendants
contend otherwise and, therefore, a judicial declaration by this Court of the respective rights
and duties of the parties is needed. Plaintiff has no available administrative remedies.
SIXTH CAUSE OF ACTION
(Declaratoiy Relief, To All Defendants)
28. Plaintiff realleges and incorporates herein by this reference those allegations
appearing above in paragraphs 1 -11, 14 -15, 17 -18, & 20, inclusive, as though set forth herein
at length.
29. By virtue of the aforedescribed taking of the portion of the Real Property
needed for the street extension, defendants have effected a total taking without compensation
of plaintiff's Real Property. By so doing, defendants are extending a street and in the process
taking a portion of plaintiff's Real Property and rendering the remaining portion valueless,
which unconstitutionally deprives plaintiff of his protected rights. Accordingly, in the
absence of payment of just compensation to plaintiff for said deprivation, the taking
described above should be declared by this Court to be unconstitutional insofar as it applies
to the Real Property.
COMPLAINT
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30. Plaintiff is informed and believes, and thereupon alleges, that defendants
contend otherwise and, therefore, a judicial declaration by this Court of the respective rights
and duties of the parties is needed. Plaintiff has no available administrative remedies.
WHEREFORE, plaintiff prays judgment against defendants as follows:
1. For damages in an amount according to proof, and in excess of the minimum
amount required for the jurisdiction of this Court, with interest thereon at the
legal rate from the date of the damages;
2. For a declaration of the parties' rights and duties, as described above;
3. For reasonable attorney's, appraisal, and other related fees according to proof,
4. For costs of suit incurred liereiil; and
5. For such other and further relief as this Court may deem just and proper.
DATED: December 20, 2011 PETER D. COLLISSON PROF. CORP.
By:
Peter D. Collis-soil
Attorney for Plaintiff
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VERIFICATION
I, the undersigned, declare that I have personal knowledge of each of the facts set
forth in the foregoing complaint and know the same to be true, except as to those facts
alleged upon information and belief, and as to those I believe the same to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this verification was executed on this 20 °i day of
December 2011.
C lei
14 � �?
ennet 1 M. I ap an
10
COMPLAINT
PETER D. COLLISSON
PROF. CORP.
ATTORNEY AT LAW
361 FOREST AVENUE, SUITE 204
LAGUNA BEACH, CA 92651-2148
TELEPHONE: 949/250-7474
FAcsIMILE 949 /660 -8001
August 8, 2011
CERTIFIED MAIL RETURN
RECEIPT REQUESTED
NO.7009096000042972764
AND FIRST CLASS MAIL
James Campbell
Acting Planning Director
Planning Department
3300 Newport Boulevard, Building C
Newport Beach, CA 92663
EAIA /L' PETE @PDCLAW.COM
FILE NO.: 1 102.004-1
Re: 1499 MONROVIA AVENUE, NEWPORT BEACH, CA (!24- 401 -014)
DoWNZONING FROMM -I -A To RM (2420,)
Dear Mr. Campbell:
I am writing on behalf of Kenneth M. Kaplan ( "Mr. Kaplan" or "Kaplan "),
owner of 1499 Monrovia,Avenue, who retained my firm after receiving your letter of
January 14, 2011 advising him that the zoning classification for his property had been
changed from M -1 -A to RM (2420). This letter addresses your position that "[t]he
current non - residential use is no longer a permitted use" and "is subject to
abatement."
The tenor of your January 14 letter is that you arc prepared to meet with
Mr. Kaplan to discuss a time extension of the abatement period and /or conversion
of the use of the property to a residential use. Neither approach is consistent with
applicable law. Mr. Kaplan and I have made a thorough analysis of the regulatory
talcings cases. Your legal advisors have undoubtedly told you about the limitations
placed on municipal governments that want to downzone properties or force a
change in their use through restrictive zoning. A careful and complete statement of
these limitations was expressed in Tahoe Keys Properly 0imersAssociatio» a State Water
Resources Control Board, 23 Cal. App. 4th 1459, 1483 -4 (1994) as follows:
LEI TER TO JAMES CAMPBI
AUGUST 8. 201 1
PAGE 2 OF 3
"... land use regulation must be prospective in nature
because the state is constitutionally linuted in the extent to
which it may, through land use regulation, affect prior
existing uses. Accordingly, preexisting use is a
constitutional line of demarcation in land -use regulation
and prior uses are protected while expectations and
aspirations are not."
Mr. Kaplan purchased the property on December 20, 2007 for $5.8 million.
The property is improved with an architecturally significant building that was built for
and subsequently has been leased to Road and Track Magazine ( "Road & Track') for
approximately 40 years. Needless to say, the Road & Track lease payments are
substantial. In your letter to Road & Track, also on January 14, 2011, you have
essentially told them to vacate the property by November 25, 2011 unless they engage
in the expensive, time - consuming and uncertain process of appealing to your
Department. The loss of Road & Track as a tenant would be devastating to Mr.
Kaplan. His investment would provide hitn with no return at the same time he must
maintain the payments on his loan. The downzoning would elinvnate all expectations
he had when he invested in the property. Peng Central Ticrnr orlariotr C"arl y V City of
Neu York, 438 U.S. 104, 136 (1978). Further, California Code of Civil Procedure
5 1263.205 makes it clear that the forced demolition of the building is a total taking of
that asset.
It is unclear why this property, which has a building of approximately 17,000
square feet, is subject to downzoning at the same time that the City of Newport
Beach ( "City") is permitting Coast Community College, the adjoining property owner
to the north, to build a large Learning Center of approximately 55,000 square feet.
Mr. Kaplan believes that the Kaplan /Road & Track property has been singled -out for
no rational reason.]
Simply put, the City's action in sending the January 14, 2011 letters to both
Mr. Kaplan and to Road & Track are discriminatory and functionally rendered
Mr. Kaplan's property unmarketable, unfinanceable and unrentable.
' In fact, the City's attempt to impair the value of Mr. Kaplan's property did not start with your
January14, 2011 letter. The City approved the Coast Community College project on then undeveloped land
without requiring dedications for the extension of 15`h Street to the boundary of the Banning Ranch on the
then undeveloped property. As a result, any future extension of 15`h Street will require a taking of a
significant portion of the parking area of the Kaplan /Road & Track property resulting in severance damages
that equal or approximate a total taking.
LETTER TO .JAMES CAMPB
AUGUST 8. 201 1
PAGE 3OF3
The simplest way for the City to get what it wants is to pay for. it and, given
your two January 14 letters, that is what it is obligated to do. As noted, Mr. Kaplan
bought the property at the end of 2007 for $5.8 million. The purchase price reflects a
first class building with a high quality tenant producing a substantial income stream.
Based on your assertion in each letter that "[t]he current non - residential use is no
longer a permitted use," you are denying Mr. Kaplan any reasonable and beneficial
use of the property.
In summary, the property has not changed since Mr. Kaplan purchased it —
same land, same building, same tenant, same rental stream. The property has been
functionally condemned by the City. The City should buy the property for
$5.8 inillion. This is the only way to allow the City to achieve its goal consistent with
Mr. Kaplan's rights. While Mr. Kaplan is NV lling to meet with the City to discuss
rescission of the actions taken by the City on November 25, 2010 and with respect to
the Coastline Community College development adjacent to Mr. Kaplan's property, it
is out belief that the City's actions have irrevocably harmed Mr. Kaplan in a manner
that cannot be undone by either rescission or amendments to its general plan and
zoning code to perinit the existing use and the uses afforded Coastline Commulzity
College next door.
We hope to meet with you as soon as possible, because if you and Mr. Kaplan
cannot reach a solution, Mr. Kaplan will take affirmative steps to protect his
investment.
Very truly yours,
Peter D. Collisson
PDC /cm
cc: Mr. Kenneth M. Kaplan
Abf, meat Period Extens i Application
Planning Deparbnent
3300 Newport Boulevard, Newport Beach, CA 92663
(949) 6443200 Telephone 1(949) 644 -3229 Facsimile
www. newoortbeachca.gov
Property Owner /Applicant Contact (if different)
Name: Kenneth M. Kaplan Name:
Mailing Address: 361 Forest Avenue, Suite 204 Mailing Address:
Laguna Beach, CA 92651
Phone: (949) 715 -0770
Phone:( )
Fax: (949) 715 -0773 Fax:( ) _
Email Address: kaplankm @gmail . con' Email Address:
Owner's Affidavit
(1) ) Kenneth M. Kaplan depose and say that (I am) (me) the owner(a) of the
property : (ies) involved in this application. (1) (11Q o further certify, under penalty of perjury, that the foregoing
statements and answers herein contained and the information herewith submitted are in all respects true and
correct to the best of (my) (rain knowledge Vd belief. �
Signature(s) / f ' �°"` Date 08/08/11
Kenneth M. Kaplan
NOTE: An agent may sign for the owner if written authorization from the record owner is filed with the application.
Please answer the questions below. Attach additional sheets, if necessary.
1. Please describe how abatement of the use at this time relates to your investment in the use.
See letter dated August 8, 2011 from Peter D. Collisson, Esq. to James Campbell,
Acting Planning Director (the " Collisson Letter ").
2. How long has the use been operating?
See Collisson Letter.
3. Please describe the suitability of the structure for an alternative use.
The building is suitable for office use only.
4. Please describe way there would be no harm to the public if the use remains beyond the
abatement period.
See Collisson Letter.
Updated 10/06/10
2
5. Please describe the cost and feasibility of relocating the use to another site.
See Collisson Letter.
6. Is there any other evidence relevant to the determination of whether an extension of the
abatement period is required to avoid an unconstitutional taking of property?
See Collisson Letter.
Updated 10 /O6 /10
3
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