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HomeMy WebLinkAbout2009-15 - Approving Zoning Code Amendment No. CA2005-009 for Property Located at 201-205, 207 Carnation Avenue, 101 Bayside Place (PA 2005-196)ORDINANCE NO. 200945 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING ZONING CODE AMENDMENT NO. CA2005 -009 FOR PROPERTY LOCATED AT 201 -205, 207 CARNATION AVENUE 101 BAYSIDE PLACE (PA 2005 -196) WHEREAS, an application was filed by Advanced Real Estate Services, Inc. with respect to property located at 201 -205, 207 Carnation Avenue, and 101 Bayside Place to construct an 8 -unit residential condominium development on a 1.4 acre site. The applications filed are: General Plan Amendment No. GP2005 -006, Coastal Land Use Plan Amendment No. LC2005 -002, Code Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM16882), Modification Permit No. MD2005 -087 and Coastal Residential Development Permit No. CR2005 -002; and WHEREAS, on February 22, 2007, April 5, 2007, and May 17, 2007, the Planning Commission held noticed public hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, project and a draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1723 recommending adoption of a draft Mitigated Negative Declaration (MND) and approval of the applications to the City Council; and WHEREAS, on August 14, 2007, the City Council held a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, project and a draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the City Council at the hearing. At the conclusion of the public hearing the City Council identified the predominant line of existing development ( PLOED) at 50.7 feet North American Vertical Datum of 1988 (NAVD88) after considering the position of existing development on the bluff face in relation to Carnation Avenue and its elevation above Newport Bay. Since the proposed project was not consistent with the PLOED as required by the policies of the 2005 Coastal Land Use Plan, further consideration of the proposed project was postponed until such time that the project was revised to conform to the PLOED; and WHEREAS, subsequent to the August 14, 2007, City Council hearing, the applicant revised the proposed project in accordance with the PLOED as established by the City Council. Additionally, the applicant further revised the project to include a proposed dock structure. A revised Mitigated Negative Declaration was prepared in accordance with the California Environmental Quality Act; and WHEREAS, on February 21, 2008, the Planning Commission held noticed public hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, the revised project and a revised draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1751 recommending adoption of a revised draft Mitigated Negative Declaration (MND) for the revised project and approval of the applications to the City Council; and WHEREAS, on June 19, 2008, the Planning Commission held noticed public hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, the revised project and a revised draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing. At the conclusion of the public hearing, the Planning Commission adopted Resolution No. 1761 recommended adoption of a draft Mitigated Negative Declaration (MND) for the revised project and approval of the applications to the City Council; and WHEREAS, on July 8, 2008, the City Council held a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, revised project and a revised draft Mitigated Negative Declaration were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the City Council at the hearing. The City Council expressed several concerns including the project's potential visual impact on the area and the City Council took no action; and WHEREAS, subsequent to the City Council hearing on July 8, 2008, the City and the applicant mutually agreed that an Environmental Impact Report would be prepared for the project. pursuant to the California Environmental Quality Act; and WHEREAS, a draft Environmental Impact Report (SCH #2007021054) has been prepared pursuant to the Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. The DEIR was circulated for a 45-day comment period beginning on March 20, 2009, and concluding on May 4, 2009. Comments and responses to the comments were considered by the Planning Commission in its review of the proposed project; and WHEREAS, on May 21, 2009, and June 4, 2009, the Planning Commission held a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at which time the applications, project and a draft Environmental Impact Report (SCH #2007021054) were considered. Notice of time, place and purpose of the public hearing was given in accordance with law and testimony was presented to and considered by the Planning Commission at the hearing; and WHEREAS, pursuant to Section 20.94 of the Newport Beach Municipal Code, the City Council held a noticed public hearing on July 14, 2009, to consider the recommendation of the Planning Commission; and WHEREAS, the City Council reviewed the Environmental Impact Report (SCH #2007021054) and all comments related to it, and based on the administrative record, the City Council made findings to certify Environmental Impact Report pursuant to applicable laws prior to approving the project, including Code Amendment No. CA2005 -009. The findings to certify the Environmental Impact Report are contained within City Council Resolution No. 2009 -51 are incorporated herein by reference; and WHEREAS, the City Council approved the proposed project including General Plan Amendment No. GP2005 -006 and Coastal Land Use Plan Amendment No. LC2005 -002 by adopting Resolution No. 2009 -52 and the findings to support this approval are incorporated herein by reference; and WHEREAS, Code Amendment No. CA2005 -009 is necessary to provide a zoning designation for a portion of the property in question that is consistent with the land use designation of the General Plan and Coastal Land Use Plan as modified by General Plan Amendment No. GP2005 -006 and Coastal Land Use Plan Amendment No. LC2005 -002; and WHEREAS, the City Council finds that judicial challenges to the City's CEQA determinations and approvals of land use projects are costly and time consuming. In addition, project opponents often seek an award of attorneys' fees in such challenges. As project applicants are the primary beneficiaries of such approvals, it is appropriate that such applicants should bear the expense of defending against any such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and damages which may be awarded to a successful challenger. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: A revision to Zoning Map depicted in Exhibit "A" is hereby approved; however, the change shall not become effective until Coastal Land Use Plan Amendment No. LC2005 -002 is approved by the California Coastal Commission. SECTION 2. To the fullest extent permitted by law, applicant and property owner shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City's approval of this Project including, but not limited to, the approval of the General Plan Amendment No. GP2005 -006, Coastal Land Use Plan Amendment No. LC2005 -002, Code Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM 16882), Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM 16882), Modification Permit No. MD2005 -087 and Coastal Residential Development Permit No. CR2005 -002 and /or the City's related California Environmental Quality Act determinations, the certification of the Environmental Impact Report, the adoption of a Mitigation Program, and /or statement of overriding considerations for this Project. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by the applicant or property owner, City, and/or the parties initiating or bringing such proceeding. The applicant and property owner shall indemnify the City for all of City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The applicant shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 14"' day of July, 2009, and adopted on the 28r' day of July, 2009, by the following vote, to wit: AYES, COUNCIL MEMBERS Henn, Curry, Webb, Daigle, Mayor Selich NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBER 7 APP OVED AS TO FORM: C. - / 416�� - OFFICE OF THE CIT TTORNEY ATTEST: CITY CLERK Exhibit "A" AERIE Condominiums (PA 2005 -196) 201 -205, 207 Carnation Ave. & 101 Bayside PI Code Amendment No. CA2005 -009 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2009 -15 was duly and regularly introduced on the 14th day of July, 2009, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of July, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Curry, Webb, Daigle, Mayor Selich Noes: Rosansky, Gardner Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of July, 2009. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } as. CITY OF NEWPORT BEACH } L LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2009 -15 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: August 4, 2009. In witness whereof, I have hereunto subscribed my name this 1+r day of 2009. City Clerk I City of Newport Beach, California