HomeMy WebLinkAboutZA2014-018 - MODIFICATION PERMIT - 444 De Sola TerRESOLUTION NO. ZA2014 -018
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING MODIFICATION
PERMIT NO. MD2014 -003 TO ALLOW A SOLID RETAINING
WALL WITHIN THE FRONT SETBACK TO EXCEED THE 42-
INCH HEIGHT LIMIT FOR PROPERTY LOCATED AT 444 DE
SOLA TERRACE (PA2014 -040)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by Robert W. Hughes, with respect to property located at 444 De
Sola Terrace, and legally described as Lot 115, Tract 1237, requesting approval of a
Modification Permit.
The applicant requests a Modification Permit to allow a 5 -foot high, solid retaining wall
to exceed the 42 -inch height limit within the front setback along Cabrillo Terrace. The
proposed wall would serve as the Building Code - required pool protection fencing. The
Zoning Code allows pool protection fencing to be 5 feet high within the front setback if
it is at least 40 percent open (e.g., wrought iron or Plexiglas); however, the subject wall
does not meet the 40 percent open standard.
The subject property is located within the Single -Unit Residential (R -1 -6000) Zoning
District and the General Plan Land Use Element category is Single -Unit Residential
Detached (RS -D).
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Single -Unit Residential Detached (RSD -A).
5. A public hearing was held on June 12, 2014, in the Corona del Mar Conference Room
(Bay E -1 st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the
Zoning Administrator at this meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITYACT DETERMINATION.
This project has been determined to be categorically exempt pursuant to Title 14 of the
California Code of Regulations (Section 15315, Article 19 of Chapter 3, Guidelines for
Implementation of the California Environmental Quality Act) under Class 3 (New
Construction or Conversion of Small Structures).
2. Class 3 exempts the construction of limited numbers of new, small facilities or
structures and the installation of small new equipment and facilities in small structures.
Class 3 includes accessory structures including swimming pools and fences.
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SECTION 3. REQUIRED FINDINGS.
In accordance with Section 20.52.050 of the Newport Beach Municipal Code, the following
findings and facts in support of such findings are set forth:
Finding:
A. The requested modification will be compatible with existing development in the
neighborhood.
Facts in Support of Finding:
Several properties in the area have walls, tall landscaping and hedges, decks, and
terraced yards within the front setback that are visible from the street. The proposed
retaining wall for the pool would be compatible with the existing development.
Finding:
B. The granting of the modification is necessary due to the unique physical
characteristic(s) of the property and /or structure, and /or characteristics of the use.
Facts in Support of Finding:
The 15 -foot front setback area adjacent to Cabrillo Terrace slopes down with a steep
slope thereby limiting the amount of usable yard area. By allowing the retaining wall to
be 5 feet high and not 40 percent open, more usable yard space can be captured for
the pool and patio, while still preserving the open yard area and maintaining the
characteristics of the neighborhood.
Finding:
C. The granting of the modification is necessary due to practical difficulties associated
with the property and that the strict application of the Zoning Code results in physical
hardships that are inconsistent with the purpose and intent of the Zoning Code.
Facts in Support of Finding:
The subject property has two street frontages with required front setbacks, thereby
limiting the location of pools, pool protection fencing, and related equipment.
2. Strict application of Zoning Code Chapter 20.30.030 (Fences, Hedges, Walls, and
Retaining Walls) limits the height of fences in the front setback area to a maximum of
42 inches or five feet for pool protection fencing that is 40 percent open. Limiting the
retaining wall height to 42 inches or requiring the wall to be 40 percent open would
preclude the property owner from having a pool and patio in the front yard due to the
location of the house, finished floor elevation of the house, size of the front setback
area, and slope of the yard.
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Zoning Administrator Resolution No. ZA2014 -018
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Finding:
D. There are no alternatives to the modification permit that could provide similar benefits
to the applicant with less potential detriment to surrounding owners and occupants, the
neighborhood, or to the general public.
Facts in Support of Finding:
1. The project site is topographically - constrained and alternatives to the increased height
and solid design of the retaining wall would limit reasonable use of the yard and
preclude the ability to construct a lap pool of sufficient length to be useful.
2. Moving the swimming pool closer to the house would result in a compliant wall;
however, it would result in no patio and a less than three -foot path around the pool that
could create an unsafe condition for use of the pool and patio.
Finding:
E. The granting of the modification would not be detrimental to public health, safety, or
welfare, to the occupants of the property, nearby properties, the neighborhood, or the
City, or result in a change in density or intensity that would be inconsistent with the
provisions of this Zoning Code.
Facts in Support of Finding:
1. The proposed retaining wall would not result in change in density or intensity of
development on the project site; the single -unit residence will have a building height
and floor area that is consistent with the provisions of the Zoning Code.
2. The retaining wall would not affect the flow of air or light to adjoining residential
properties and will not have any impact on noise, population density, traffic congestion,
and other adverse environmental effects as these issues are typically not associated
with the construction of accessory structures.
3. The proposed retaining wall would meet the Building -code required pool protection
fencing requirements and will provide privacy and added safety for use of the
swimming pool.
4. The proposed retaining wall would be located 18 inches from the property line and
landscaping would be provided in this area to soften the view of the wall from the
street.
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Zoning Administrator Resolution No. ZA2014 -018
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
The Zoning Administrator of the City of Newport Beach hereby approves Modification
Permit No. MD2014 -003, subject to the conditions set forth in Exhibit A, which is attached
hereto and incorporated by reference.
2. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal is filed with the Community
Development Director in accordance with the provisions of Title 20 Planning and
Zoning, of the Newport Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 12TH DAY OF JUNE, 2014.
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EXHIBIT "A"
CONDITIONS OF APPROVAL
1. The development shall be in substantial conformance with the approved site plan, floor
plans and building elevations stamped and dated with the date of this approval, except
as modified by applicable conditions of approval.
2. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
3. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
4. This Modification Permit may be modified or revoked by the Zoning Administrator if
determined that the proposed uses or conditions under which it is being operated or
maintained is detrimental to the public health, welfare or materially injurious to property
or improvements in the vicinity or if the property is operated or maintained so as to
constitute a public nuisance.
5. A copy of the Resolution, including conditions of approval (Exhibit "A ") shall be
incorporated into the Building Division and field sets of plans prior to issuance of the
building permits for the retaining wall.
6. Should the property be sold or otherwise come under different ownership, any future
owners or assignees shall be notified of the conditions of this approval by either the
current business owner, property owner or the leasing agent.
7. This approval shall expire and become void unless exercised within 24 months from the
actual date of review authority approval, except where an extension of time is approved
in compliance with the provisions of Title 20 Planning and Zoning of the Newport Beach
Municipal Code.
8. To the fullest extent permitted by law, applicant 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 the Hughes Retaining Wall including, but not limited to,
the Modification Permit No. MD2014 -003. 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 applicant, City, and /or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
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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.
9. Landscaping shall be provided'along the base of the retaining wall to buffer the view from
Cabrillo Terrace.
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