HomeMy WebLinkAboutSPON Letter re City Council Appeal 09062019
Hermosa Beach Office
Phone: (310) 798-2400
San Diego Office
Phone: (858) 999-0070
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Chatten-Brown, Carstens & Minteer LLP
2200 Pacific Coast Highway, Suite 318
Hermosa Beach, CA 90254 www.cbcearthlaw.com
Michelle Black
Email Address:
mnb@cbcearthlaw.com
Direct Dial:
310-798-2400 Ext. 5
September 6, 2019
Via Email jmurillo@newportbeachca.gov
sjurjis@newportbeachca.gov
citycouncil@newportbeachca.gov
Jaime Murillo, Principal Planner
Seimone Jurjis, Community Development Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Re: September 10, 2019 City Council Agenda, Public Hearing Item # 20.
Appeal of Variance No. VA2019-002 for 1113 Kings Road
Honorable Councilmembers:
Stop Polluting Our Newport (SPON) submits these comments in support of its
appeal of the Planning Commission’s May 23, 2019 decision to approve Variance No.
VA2019-002 for the property located at 1113 Kings Road. The Applicant requested the
variance to enable the demolition of the existing, 3,013 square foot residence and
replacement of that home with a building nearly three times larger. Although touted as a
single-family home, the new building would be 10,803 square feet with a 1,508-square
foot garage, itself the size of a 3-bedroom home. The variance is specifically requested
to enable the building to exceed the applicable 29-foot height limit for sloped roofs and
the 24-foot height limit for flat roofs and decks.
The Applicant could easily construct a large, luxurious home on the site, within
the permitted building envelope, without the variance. The property is already in parity
with others in the vicinity, despite its topographical challenges. Accordingly, the City
cannot find that “the strict application of the [height limit] denies the property owner
privileges enjoyed by other property owners in the vicinity” as required by Newport
Beach Municipal Code section 20.52.090. Additionally, the proposed building is
demonstrably incompatible with the neighborhood’s other residences located on Kings
Road and would eliminate treasured public views of the ocean. Finally, SPON is
concerned about the precedent set by permitting unnecessary variances from the City’s
carefully-crafted planning standards. If the City permits the variance at 1113 Kings
Road, where does it end?
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City of Newport Beach
September 6, 2019
Page 2
SPON respectfully requests that the City Council sustain its appeal and reverse the
Planning Commission’s approval.
I. The City Cannot Make the Findings Required for a Variance.
Newport Beach Municipal Code section 20.52.090 A provides that the purpose of
a variance is to “waive or modify certain standards of the Zoning Code when, because of
special circumstances applicable to the property…the strict application of the
development standards otherwise applicable to the property denies the property owner
privileges enjoyed by other property owners in the vicinity and in the same zoning
district.” California Government Code section 65906, authorizing variances, is nearly
identical and emphasizes that variances “shall not constitute a grant of special
privileges.”
On the contrary, variances exist to ensure equity in an area, not to grant special
privileges inconsistent with the limitations applicable to all properties in an area.
(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
511 [“effort to achieve substantial parity”].)
Pursuant to State law and the City’s municipal code, the City must make six (6)
findings to lawfully approve a variance:
1) There are special or unique circumstances or conditions applicable to the subject
property (e.g., location, shape, size, surroundings, topography, or other physical
features) that do not apply generally to other properties in the vicinity under an
identical zoning classification;
2) Strict compliance with Zoning Code requirements would deprive the subject
property of privileges enjoyed by other properties in the vicinity and under an
identical zoning classification;
3) Granting of the variance is necessary for the preservation and enjoyment of
substantial property rights of the applicant;
4) Granting of the variance will not constitute a grant of special privilege inconsistent
with the limitations on other properties in the vicinity and in the same zoning
district;
5) Granting of the variance will not be detrimental to the harmonious and orderly
growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to
the public convenience, health, interest, safety, or general welfare of persons
residing or working in the neighborhood; and
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City of Newport Beach
September 6, 2019
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6) Granting of the variance will not be in conflict with the intent and purpose of this
section, this Zoning Code, the General Plan, or any applicable specific plan.
(Newport Beach Municipal Code section 20.52.090 F.)
The Staff Report relies on the site’s steep topography and the presence of a gully
at the eastern property line to determine that the site has “special or unique circumstances
or conditions applicable to the subject property… that do not apply generally to other
properties.” (Staff Report, p. 4.) While the property is topographically unique, the City’s
inquiry does not end with the first required finding. The City is required to find that the
unique topography prevents the construction of a single-family home similar to others in
the vicinity to the detriment of the Applicant. The City must support these findings with
substantial evidence. (Topanga Assn. for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, 514-515; Cow Hollow Imp. Club v. DiBene (1966) 245 Cal.App.2d
160, 171.) Yet, the evidence in this case does not support the required findings. Instead,
it is clear that the property can (and does) support a single-family home without the
variance, and that the Applicant seeks the variance to maximize the scale and future value
of the proposed building.
A. Strict Compliance with Zoning Code Requirements Would Not
Deprive the Subject Property of Privilege Enjoyed by Other
Properties in the Vicinity and Under an Identical Zoning
Classification.
Strict compliance with the Zoning Code requirements merely limits the Applicant
to a building height of 29 feet and a deck height of 24 feet. It does not prevent
construction of a single-family home on the site. This is illustrated by the existence of a
3,013-square foot single-family home on the property today. Thus, a variance is not
needed to bring parity when the property’s potential uses are compared to others in the
vicinity. Nor do the existing height limits prevent the construction of the largest
residence in the neighborhood. (City Council Staff Report, p. 5 [indicating locations of
planned height exceedence].)
The Planning Commission Staff Report states that eliminating the variance
requires:
Modifying the proposed design to eliminate the height variance for enclosed living
spaces would require eliminating an office on the main level…and eliminating or
significantly reducing the size of an upper level closet, bathroom, and teen room.
Modifying the design to eliminate the height variance for the outdoor living areas
would require eliminating the roof cover over the deck …and reducing the size of
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City of Newport Beach
September 6, 2019
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the upper level deck.
(Planning Commission, May 2019 Staff Report, p. 11.) Other homes in the area average
4,500 square feet – less than half the size of what is proposed at 1113 Kings Road. Thus,
the elimination of luxuries such as additional closets, larger bathrooms, and a teen room
in a nearly 11,000-square foot house, would not deprive the Applicant’s property of
privileges enjoyed by other identically-zoned properties in the vicinity. If anything, the
denial would preserve neighborhood parity.
The City proposes to find hardship in not having the “privilege of designing a two-
level terraced design across the buildable width of the lot” and “the privilege of building
a residence of uniform height.” (Proposed Findings, p. 3.). Neither of these constraints
prevents the construction of a fine and luxurious home. In Broadway, Laguna, Vallejo
Assn. v. Board of Permit Appeals (1967), the California Supreme Court found that a
difference between the sizes of buildings that can be built due to unique conditions is an
insufficient ground for a variance. There, the applicant sought a variance from the
applicable floor to area ratio due to challenging soil conditions that made construction
more expensive. The Court found the city lacked authority to issue the variance, holding:
If the “adversity” to which the board referred were such that enforcement of the
floor area regulations would effectively deprive the developer of the ability to
construct a reasonably profitable multi-unit structure in an area zoned for multi-
unit construction, then the requisite disparity of treatment might be established. As
we have seen, however, that is not this case. At most, the developer here has
suggested that, unless code requirements are relaxed, multi-unit development will
prove somewhat less profitable on his lot than on other lots in the same zone. The
short answer to the developer’s argument is that zoning variances were never
meant to insure against financial disappointments.
(Broadway, Laguna, Vallejo Ass'n v. Board of Permit Appeals of City and County of San
Francisco (1967) 66 Cal.2d 767, 780–781, emphasis added.). No less than the Supreme
Court of California would find a lack of substantial evidence supporting the City’s
finding that the existing height limits “deprive the homeowner privileges of a residence
burdened by the cost, inconvenience, and loss of functionality enjoyed by other properties
in the vicinity.” (Proposed Findings, p. 3.) Here, the Applicant claims that the gully and
steep topography will merely prevent it from constructing a larger office, teen room,
bathroom, and covered deck than it could without a variance. The City could not, and
should not, insure the Applicant against the mild financial disappointment of constructing
“only” a large, ocean view luxury home, with a 4-car garage, in Newport Beach.
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City of Newport Beach
September 6, 2019
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B. Granting of the Variance is Not Necessary for the Preservation and
Enjoyment of Substantial Property Rights of the Applicant.
The City cannot support the finding required by Municipal Code section 20.52.90
F(3). In fact, a single-family home currently occupies the site. While the Applicant
desires to demolish the existing home, the demolition is the Applicant’s choice. Thus,
the City need not grant the variance to preserve the Applicant’s property rights or their
enjoyment of those rights. The Applicant’s preferences for a larger home, an ocean view
office, a large teen room, or a covered patio do not endanger the Applicant’s preservation
or enjoyment of substantial property rights. (Nollan v. California Coastal Com'n (1987)
483 U.S. 825, 834 [“We have long recognized that land-use regulation does not effect a
taking if it ‘substantially advance[s] legitimate state interests’ and does not ‘den[y] an
owner economically viable use of his land’].)
The Staff Report claims, “denial of the variance would significantly impact the
functionality of the home design.” (Staff Report, p. 9.) Again, it was the Applicant’s
choice to design a residence that requires a variance from the City’s land use regulations
in the first place. The need to redesign a luxury home to comply with existing and well-
known regulations applicable to the Project site should not be considered a burden, much
less a deprivation of property rights. The Supreme Court is clear: “[S]elf-imposed
burdens cannot legally justify the granting of a variance.” (Broadway, Laguna, Vallejo
Ass'n v. Board of Permit Appeals of City and County of San Francisco (1967) 66 Cal.2d
767, 778.)
The Staff Report further claims that modification to the design to build without a
variance “would effectively reduce the buildable width from approximately 90 percent of
the lot width to 72 percent of the lot width at those locations.” (Staff Report, p. 9.) A
regulation preventing development of a mere 28 percent of a lot hardly denies the
Applicant an economically viable use of their land. The Applicant’s lot is larger than
most in the neighborhood, and they can build a very large home even using 72 percent of
the frontage.
Of the approximately 100 homes on Kings Road, four have been granted
variances. Variances were granted for 1113 Kings Road to build the existing 3,013-
square foot home. Variances were also granted for homes of 3,767 square feet (1201
Kings Road) and 3,649 square feet (1101 Kings Road). With the exception of the home
located at 1821 Kings Road (8,801 square feet), the variances were sought to construct
residences that are compatible with neighborhood scale.
The California Supreme Court has held that, so long as the property can be put to
effective use consistent with the existing zoning without the variance sought, an agency’s
grant of a variance exceeds its authority. (Broadway, Laguna Assn. v. Board of Permit
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City of Newport Beach
September 6, 2019
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Appeals (1967) 66 Cal.2d 767, 775.) A variance cannot be granted just to increase the
value of an Applicant’s property or to relieve an applicant from undesired costs to
comply with existing regulations. (Ibid.) As a community member asked, “how would
not having an office on the main level…eliminating or significantly reducing the size of
an upper level close, bathroom and teen room…prevent the property from being put to
effective use consistent with existing zoning without the variance sought?” The City
cannot make this finding.
C. Granting of the Variance Will Constitute a Grant of Special
Privilege Inconsistent with the Limitations on Other Properties in
the Vicinity.
As described above, the purpose of a variance is to relieve a property owner of
land use regulations that, due to the unique characteristics of that piece of property,
prevent the landowner from using their property in the same manner as surrounding
property owners. The goal is equity with surrounding landowners. (Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 511.) Here, however,
the variance is not needed to construct a comfortable single-family home. There is
already one located on the property. Instead, the variance is required so that the
Applicant need not undergo the inconvenience of eliminating an office, reducing the size
of a closet, bathroom, or teen room, or reducing the shading over of an outdoor deck.
(City Council Staff Report, p. 5.) The modified building would still be much, much
larger than the average, 4,500-square foot home on the bluff. Even if the entire upper
floor needed removal to avoid a variance, which it does not, the building would still
exceed 7,500 square feet (bottom two levels are 4,177 and 3,361 square feet). The
garage, alone, would remain the size of a typical three-bedroom home.
Instead of helping to achieve parity, granting a variance from the height
requirement to enable larger closets, bathrooms, a teen room, and larger outdoor decks
constitutes a grant of special privilege. Most single-family homes do not have teen
rooms or multiple outdoor decks. Granting a variance on these grounds turns the purpose
of a variance on its head and is unfair. As the Supreme Court found with the denial of
another variance, where the land was already being used as the Applicant sought, “When
the [city] denied petitioners’ application for a variance it did not take away a property
right, but merely refused to grant a favor.” (Rubin v. Board of Directors of City of
Pasadena (1940) 16 Cal.2d 119, 126.) It is the same here. The City cannot support the
finding required by Municipal Code section 20.52.090 F(4).
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City of Newport Beach
September 6, 2019
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D. Granting of the Variance Will Be Detrimental to the Harmonious
and Orderly Growth of the City and Constitute a Hazard to the
Public Convenience, Interest, and General Welfare of Persons
Residing and Working in the Neighborhood.
Members of the community have presented evidence that the residence enabled by
the variance would block public views of the ocean from Kings Road. The City is correct
that it does not protect private views, but it does prioritize public views for the
pedestrians, bikers and others on Kings Road. The variance’s contributions to these lost
public views are a hazard to the public convenience and interest of those in the
neighborhood. The lost views further prevent the City from making the variance findings
required by the Municipal Code.
Moreover, it is clear that the controversy over this variance has rocked the
neighborhood and damaged notions of neighborhood harmony. Given that a very large
and luxurious home may be designed and constructed at the subject property without the
variance, the grant of this variance is detrimental to the harmonious and orderly growth
of the City. As discussed further below, the grant of this unnecessary variance sets up a
situation where property owners will feel entitled to seek a variance from the City’s
height limits, setbacks, and other regulations imposed for neighborhood compatibility and
harmony. Privacy will be lost. Conflicts about views will continue. The potential
precedent the City is setting by finding a hardship when a mansion’s extra bathrooms,
teen room, closet, office, and deck must be downsized because an applicant chose to
design outside the permissible building envelope jeopardizes future harmonious and
orderly growth. The variance is also incompatible with policies of the General Plan and
Zoning Code promoting orderly development and neighborhood compatibility. The City
cannot make the finding required by 20.52.090 F(5).
E. Granting of the Variance Conflicts with the Intent and Purpose of
the Zoning Code and the General Plan.
By enabling development of a gully in a coastal bluff, the variance conflicts with
the General Plan. All projects approved in a city must be consistent with the general plan
and its elements. “The general plan is atop the hierarchy of local government law
regulating land use.” (Neighborhood Action Group v. County of Calaveras (1984) 156
Cal.App.3d 1176, 1183.) The General Plan has been described “the constitution for
future development.” (DeVita v. Napa (1995) 9 Cal.4th 763, 773, internal citations
omitted.) Goal Natural Resources 23 of the General Plan’s Natural Resources Element
includes policies directed at preserving Newport Beach’s natural coastal bluffs. Policy
Natural Resources 23.1 directs the City to “Preserve cliffs, canyons, bluffs, and site
buildings to minimize alteration of the site’s natural topography.” The City Council Staff
Report acknowledges this policy applies to the site. (Staff Report p. 7.) However, the
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September 6, 2019
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Staff Report claims, without evidence, that the Zoning Code allows “by-right,
development down the entire slope” of the property because “the hillside has been
significantly altered throughout the years.” (Ibid.) The Staff Report cites nothing in the
General Plan that exempts the entire neighborhood from the operation of the General
Plan due to development of Pacific Coast Highway that occurred prior to the General
Plan’s adoption. Moreover, the coastal bluff gully on the property at issue has not been
removed through years of development. Approval of the variance conflicts with the
General Plan’s intent and purpose of protecting coastal bluffs and canyons. The City
cannot support the finding required by Municipal Code section 20.52.090 F(6).
Additionally, the General Plan and Zoning Code were implemented to promote
harmony and neighborhood compatibility through orderly development. The Project that
would be authorized by the variance is incompatible with the neighborhood.
Construction of the variance-enabled Project would conflict with the City’s planning
goals related to promoting land use compatibility. Land Use Element Policy 5.1.1
requires the City to, “Establish property development regulations for residential projects
to create compatible and high-quality development that contributes to neighborhood
character.” This use of the variance diminishes compatibility and does not promote it.
Land Use Policy 5.1.5 specifically promotes “Compatibility with neighborhood
development in density, scale, and street facing elevations.” This residence is out of
scale with the neighborhood. The variance should be denied.
II. The Building Proposed for 1113 Kings Road is Incompatible with the
Neighborhood.
At nearly 11,000 square feet, excluding the 1,508 square foot garage, the proposed
residence is significantly larger than surrounding homes, even when compared to other
large homes on the bluff side of Kings Road. Currently, the largest home on the bluff
side of Kings Road is approximately 8,800 square feet. The average home on the bluff is
4,500 square feet. By comparison, the proposed residence would include 10,803 square
feet and an additional 1,508-square foot, four-car garage. The residence would include
three large levels: a 4,177 square foot lower level, a 3,361 square foot main level, and a
3,265 square foot upper level. The building is clearly incompatible with others in the
neighborhood. The construction permissible on the lot without a variance could still
produce one of the largest homes in the neighborhood.
Community members analyzed the approximately 100 homes located on Kings
Road and the City’s history of granting variances. They determined that 96 percent of
homes on Kings Road have been constructed within the allowable building envelope.
Only 4 homes were granted a variance, and most of those homes maintained a low profile
and articulated their design to preserve views and surrounding property values. Drone
footage demonstrates that many of the homes on the bluffs have hills and gullies, yet few
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City of Newport Beach
September 6, 2019
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of those homes requested variances. Why? They were not necessary. Nor is the
variance requested here necessary to build a house with the amenities or advantages of
other homes on Kings Road.
The City’s grant of a variance to enable a home three times the size of neighboring
homes to exceed height limits promotes neighborhood incompatibility in conflict with the
City’s zoning regulations and General Plan. (See LU Policy 5.1.5.)
III. The City’s Grant of this Unnecessary Variance Endangers the
Integrity of Newport Beach’s Planning Decisions.
The City established height limits of 29 feet for sloped roofs and 24 feet for decks
and flat roofs on Kings Road in order to promote neighborhood compatibility and
harmony. This uniformity maintains community character and prevents the conflicts that
invariably arise when a residence’s excessive height invades a neighbor’s privacy, blocks
sunlight, or impedes views. For the most part, homes on the bluff side of Kings Road are
low-rise to permit ocean views from homes on the inland side of Kings Road. The City’s
failure to grant SPON’s appeal will set a precedent for other property owners that do not
wish to comply with the City’s land use controls. In the residential context, such a
precedent could effectively result in the relaxation of height limits and prohibitions of
oversized development throughout Newport Beach’s treasured single-family
neighborhoods. Variances exist to “minimize the acknowledged evils of ‘spot zoning’ by
amendment of the zoning ordinance.” (Rubin v. Board of Directors of City of Pasadena
(1940) 16 Cal.2d 119, 124.). But this variance promotes spot-zoning-like results and
would negatively affect the quality of life of many Newport Beach residents.
Additionally, oversized residences could result in significant new growth, mass,
bulk and height inconsistent with surrounding neighborhoods that has never been
analyzed under the California Environmental Quality Act (CEQA) or in connection with
the City’s Land Use Element or other planning documents. The Project claims a CEQA
Class 3 exemption for conversion of small structures, but a Class 3 exemption is
unavailable for wholesale changes to Newport’s residential neighborhoods. SPON urges
the City to carefully consider the substantial likelihood that the Project’s proposal to use a
variance to enable an ocean view office and larger decks will set a precedent for ignoring
the City’s well-considered land use plans.
Conclusion
SPON respectfully requests that the City Council reverse the Planning
Commission’s grant of Variance No. VA2019-002 because it is not necessary to
construct a single-family home at 1113 Kings Road with the privileges of other homes on
the street. The City’s grant of this variance would set an unwelcome precedent that
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September 6, 2019
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undermines all past efforts to protect the City’s single-family neighborhoods and the
integrity of its long-range planning documents, standards, and regulations. Thank you for
your consideration of these comments. We look forward to Tuesday’s hearing on the
appeal.
Sincerely,
Michelle N. Black
cc: Councilmember Diane B. Dixon, ddixon@newportbeachca.gov
Councilmember Brad Avery, bavery@newportbeachca.gov
Councilmember Duffy Duffield, dduffield@newportbeachca.gov
Councilmember Kevin Muldoon, kmuldoon@newportbeachca.gov
Councilmember Jeff Herdman, jherdman@newportbeachca.gov
Councilmember Joy Brenner, joy@newportbeachca.gov
Councilmember Will O’Neill, woneill@newportbeachca.gov