HomeMy WebLinkAbout20200220_Resolution_HO2020-001Community Development Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3200
newportbeachca.gov/communitydevelopment
VIA EMAIL
February 26, 2020
Balboa Realty
alex@gobalboa.com
Subject: Abatement Period Extension (PA2019-186)
813 East Balboa Boulevard
Balboa Realty Abatement Extension
Dear Balboa Realty,
It was a pleasure working with you on the above referenced application. Please be
advised that the subject application was approved by the Zoning Administrator
on February 26, 2020 and effective on March 12, 2020. A copy of the
approved resolution with findings and conditions is attached. If you have any
questions, please do not hesitate to contact me directly. Thank you and I look
forward to working with you again in the future.
Sincerely,
RESOLUTION NO. HO2020-001
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING AN
ADDITIONAL TEN-YEAR ABATEMENT PERIOD EXTENSION
FOR THE PROPERTY LOCATED AT 813 EAST BALBOA
BOULEVARD {PA2019-186)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Balboa Realty (Applicant); on behalf of Alex Batley, Aaron
Batley, and Arthur Dorr (Owners); requesting approval of an abatement period extension
of 10 years in addition to a previous extension until November 30, 2031, with respect to
property located at 813 East Balboa Boulevard, and legally described as Lot 7, Block 12,
Balboa Tract (Property).
2. Newport Beach Municipal Code (NBMC) Section 20.38.100 (Abatement Periods) requires
nonconforming nonresidential uses in residential zoning districts to be abated and
terminated upon a specified period of time unless that period of time is extended by a
resolution from a Hearing Officer after a noticed public hearing to allow the property owner
to amortize the owner's investment in the nonconforming property or to avoid an
unconstitutional taking of property.
3. The Applicant proposes an extension of the required abatement period specified by
NBMC Section 20.38.100 (Abatement Periods). Since 1946, the site has been improved
with a single-story nonresidential building and use. The Applicant intends to invest in the
existing building through interior and exterior modifications and improvements to support
a commercial office use of the premises. The Applicant requests to allow the existing
nonresidential use to continue for an additional ten year period until November 30, 2031,
without abatement.
4. The Property is designated Two-Unit Residential by the General Plan (RT) Land Use
Element and is located within the Two-Unit Residential Zoning District (R-2). The zoning
designation was requested by a prior owner, but no residential use of the property has
occurred at any time on the premises.
5. The Property is located within the coastal zone. Pursuant to NBMC Subsection
21.52.035(C)(2)(g), (Other Existing Structures), the subject tenant improvement is exempt
from a coastal development permit as the interior remodel and exterior fa9ade work do not
involve an actual or potential risk of substantial adverse environmental impact. The
proposed nonresidential use is of commensurate intensity with that existing on the site and
the improvements do not change the intensity of use of the structure which has always
been a nonresidential use.
Hearing Officer Resolution No. HO2020-001
Page 2 of 7
6. A properly noticed public hearing was held on February 20, 2020, in the Balboa
Conference Room (Bay 28 -Second Floor) located in the Newport Beach City Hall
located at 100 Civic Center Drive, Newport Beach. Evidence, both written and oral,
including a written staff report was presented and considered at this hearing by the
Hearing Officer, William B. Conners. Testimony from two members of the public was
delivered and information presented which has been considered by the Hearing Officer in
making this decision.
SECTION 2. CAL1FORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect
on the environment.
2. Class 1 exempts the operation, repair, maintenance, permitting, leasing, licensing, or
minor alteration of existing public or private structures, facilities, mechanical equipment,
or topographical features, involving negligible or no expansion of use beyond that
existing at the time of the lead agency's determination. In this case, extension of the
abatement period would allow the remodel of an existing single-story commercial structure
to accommodate an office use.
SECTION 3. REQUIRED FINDINGS.
In accordance with NBMC Subsection 20.38.1 00(C)(4 )(c) (Extension of Abatement Period) the
following findings and facts in support of such findings are set forth:
Finding:
1. Is the length of the abatement period appropriate considering the owner's investment in the
use?
Fact in Support of Finding:
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A. Yes. The structure is rather old and in visually unattractive. It was recently purchased
for $1.2 million by Applicants who propose an additional investment of approximately
$300,000 to $500,000 more to refurbish the property and establish an office.
Improvements include structural reinforcement, accessibility compliance, upgrades to
the heating, ventilation and air conditioning (HVAC) and mechanical, electrical and
plumbing (MEP) systems. The amortization period of that requested is reasonable to
financially support an investment of this level.
B. The existing remaining abatement period of one year nine months is insufficient to
allow amortization of the costs of improvement given the condition of the existing
building and proposed renovations, including improvements for structural reinforcement,
accessibility compliance, upgrades to the HVAC and MEP systems. Granting the
Hearing Officer Resolution No. HO2020-001
Page 3 of 7
extension would leave eleven and a half years to make use of the existing structure on
the site without any potential required abatement of the nonconforming use.
C. Based on the information submitted, an extension of an additional ten years for the
abatement of the current uses is necessary to avoid the resultant economic hardship
which might lead to the property remaining in its somewhat dilapidated condition.
D. The abatement extension of an additional ten years is appropriate in this case since
it will afford the property owner the ability to amortize the value of the proposed building
improvements and secure financing of the property that is likely to be impossible if a
potential abatement of current uses is imminent.
Finding:
2. Does the length of time the use was operating prior to the date of nonconformity justify the
extension of the abatement period beyond the code specified one year?
Fact in Support of Finding:
A. Yes. The property has been used for nonresidential purposes since it was
constructed in 1946. There is no evidence of any negative impact to the surrounding
areas, and in the context of surrounding uses it integrates into the commercial and
mixed-use neighborhood.
B. The property became nonconforming in 2003, 17 years ago, when the City Council
adopted Ordinance No. 2003-14 rezoning it to the current residential use. The existing
structure and use conformed to the Land Use Element of the General Plan for 57 years
prior to this, and was not subject to abatement until 2008. At all relevant times, the
commercial use has been compatible with the surrounding land uses and there is no
evidence of any nuisance arising from such use.
C. The substantial period of commercial use without noted problems underscores a
high probability of continued successful integration into the surrounding environs,
supporting the extension sought. Balboa Realty currently operates one block east of the
site and has not been the subject of any concern.
Finding:
3. Would the existing structure be suitable for an alternative use?
Fact in Support of Finding:
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A. No. Transitioning the nonresidential structure for residential use would necessitate
total demolition or unreasonably high costs of converting the existing nonresidential
building to residential dwelling units.
Hearing Officer Resolution No. HO2020-001
Page 4 of 7
B. It is conceivable that the building could be modified to accommodate other
nonresidential uses, but not within reasonably justifiable parameters. The existing
building is currently vacant and was last occupied by an entertainment business.
Conversion to a residential use would require demolishing and building new or major
renovation with significant structural and seismic alterations to provide adequate living
areas and residential garages. The current building has no lot line setbacks, and could
have major issues with respect to windows, doors, or other openings on the exterior of
the building.
Finding:
4. Would remaining at this site beyond the abatement period result in any public harm?
Fact in Support of Finding:
A. No. One member of the public opined that failing to conform to existing zoning harms
the general public. There was no evidence offered in support of that contention, and in
fact the building has existed as nonconforming since 2003 without any incident or
complaint with respect to its continued nonresidential uses. There is no evidence that
extending the nonconforming use has or will result in any negative impact or harm to the
public. There is no evidence that the continued nonresidential use will result in any
negative change whatsoever. In fact, the continued delay of abatement will result in
extension of the commercial use, but with improvements to the exterior of the building
in a way that will benefit surrounding properties that look upon this site.
B. The property is in an area that includes a mix of mixed-use commercial and
residential uses, including Cruisers Pizza Bar and Grill, retail, and the OCSD A Street
Pump Station. 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.
C. See Fact in Support of Finding 2.B.
D. The existing nonresidential building has not posed a negative impact on the
neighboring uses and the proposed upgrades will enhance the site and surrounding
neighborhood.
Finding:
5. Would relocation of the facility to another site be overly costly and infeasible?
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1. Yes. This building and underlying land cost almost $1.2 million to purchase. The
Applicant explained there is no evidence of other suitable properties for sale within
this specific area of Newport Beach, This would be especially difficult to accomplish
within the remaining existing abatement period.
Hearing Officer Resolution No. HO2020-001
Page 5 of 7
2. The relocation of the proposed use is difficult since there are no commercial buildings
of comparable size in the Balboa Village area to accommodate the occupant's
needs. Balboa Village is part of Balboa Realty's brand identity, having operated in
this area for over ten years just one block east of the subject site.
3. The property owner's investment with the purchase of the property would result in a
substantial loss of revenue to the property owner if the existing building could not
continue to be used for nonresidential purposes. As noted above, it would be
extremely costly to convert this existing structure to residential use, probably
requiring demolition and reconstruction. This would be an unreasonable expenditure
to expect the owner to shoulder.
4. If the owner were to be required to abate the property to residential use, a taking of
the premises without payment of adequate compensation may result. The lack of
suitable site alternatives and extremely high costs of converting the existing facility
to residential might prove unfair for the Applicant to bear in the remaining extension
time.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Hearing Officer of the City of Newport Beach hereby finds this project is exempt from the
California Environmental Quality Act (CEQA) pursuant to Section 15301 under Class 1
(Existing Facilities) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter
3, because it has no potential to have a significant effect on the environment.
2. The Hearing Officer of the City of Newport Beach hereby conditionally grants and approves
the requested Abatement Period Extension (PA2019-186) for the subject property located
at 813 East Balboa Boulevard, Newport Beach, CA, subject to the findings and
considerations set forth above and the condition set forth in Exhibit "A," which is attached
hereto and incorporated by reference for a period of 10 additional years until November 30,
2031.
3. This action shall become final and effective 14 days following the date this Resolution was
adopted unless within such time the decision is appealed or called for review to the Planning
Commission in accordance with the provisions of Title 20, Planning and Zoning, of the
NBMC.
4. This Resolution is intended to apply at the conclusion of the extension previously granted
by Hearing Officer Resolution No. HO2020-001 (PA2019-186), and is additive to that
determination, and does not in any way nullify or void that decision.
5. In reaching this Decision, the opinions and conclusions of members of the public that attended
the hearing were expressly studied and analyzed before granting this extension. While the
issues were well researched and discussed, they failed to offer any substantial evidence that
the current use of the premises has been problematic in any way, or that extension of this use
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Hearing Officer Resolution No. HO2020-001
Page 6 of 7
will lead to any such negative issues. After due deliberation, the reasons for extension prevail
over counter arguments.
PASSED, APPROVED, AND ADOPTED THIS 24rH DAY OF FEBRUARY, 2020.
BY:
William B. Conners, Municipal Law Consultant
Hearing Officer for the City of Newport Beach
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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Hearing Officer Resolution No. HO2020-001
Page 7 of 7
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 abatement extension granted herein shall be conditional upon the Applicant
demonstrating an actual intent to construct the improvements to the internal and external
portions of the structure by securing appropriate permits and commencing such
construction within 12 months of the date of this Resolution, with completion to occur within
24 months after construction commences unless such limits are extended after a
reopening and modification of this Decision. It is the intent of this condition that applicant
actively commence and continue construction of the improvements to ensure that the
extension remains justified based on economic conditions related to such improvements.
Should the Applicant fail to comply with this condition of approval, the grant of extension is
automatically withdrawn and denied, subject to further review of the matter by a hearing
officer at that time.
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. A copy of the Resolution, including conditions of approval set forth in this Exhibit "A",
shall be incorporated into the Building Division and field sets of plans prior to issuance
of building permits.
5. 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
including the Hearing Officer, 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 Balboa Realty Abatement Extension including,
but not limited to, Abatement Extension No. PA2019-186. 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 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.
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