HomeMy WebLinkAboutPA2022-118_20220527_Project Justification1
320 BUENA VISTA BOULEVARD
VARIANCE FROM STRICT APPLICATION OF NBMC SECTION 17.35.020.A.7
On May 4, 2022, the City of Newport Beach approved the transfer of Pier Permit No. 115-320,
but denied the transfer of Pier Permit No. 115-322, based on Newport Beach Municipal Code
(“NBMC”) Section 17.35.020.A.7 which states:
“In single-unit and two-unit residential districts, only a single pier
and slip shall be permitted bayward of each parcel or lot...”
The City of Newport Beach claims that only one of two pier transfer permit applications may be
approved for 320 Buena Vista Boulevard. Pursuant to the provisions set forth in NBMC Section
17.05.140.D.2, the applicant now seeks a Variance from NBMC Section 17.35.020.A.7 to allow
Pier Permit No. 115-322 as well as a pier permit for a shared interest in Pier Permit 115-320 to
be issued to the property currently designated as 320 Buena Vista Boulevard.
A. BACKGROUND
1. The Property
The subject property is situated along Buena Vista Boulevard in the City of Newport Beach (the
“City”) at APNs 048-031-15, 048-031-17, and 048-031-41 between Bay Avenue W. to the west
and Edgewater Avenue W. to the east. The APN 048-031-15 and 048-031-17 parcels are zoned
OS (Open Space), and situated bayward of Buena Vista Boulevard. The APN 048-031-041 parcel
consists of two merged lots (320 Buena Vista and 322 Buena Vista), is zoned R-1 (Single-Unit
Residential), and is situated landward of Buena Vista. This landward parcel is currently identified
as 320 Buena Vista Blvd. and is improved with a single-family home.
Property along Buena Vista was originally subdivided in 1906 by the Map of the Subdivision of
Block A East Newport. Along Buena Vista, each of the lots has historically enjoyed ownership and
use of property on the north side of Buena Vista between Buena Vista and the bulkhead line.
Buena Vista is improved as a public walk, not a street. The lots on the north side of Buena Vista
are separately taxed. A copy of Assessor’s Map Book 048, Page 031 is attached as Exhibit A.
As described in more detail below, two pier permits have historically been associated with the
property: Pier Permit No. 115-320 and Pier Permit No. 115-322.
2. Pier Approval History
a. 316-318-320 Buena Vista Shared Pier (Pier Permit No. 115-320)
In 1957, a shared pier was originally constructed in front of the 320 Buena Vista property and
was shared with 316 Buena Vista and 318 Buena Vista. At that time, each of the three properties
were developed with single-family homes. Due to a change in the direction of Buena Vista
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Boulevard at the property line between 318 and 320 Buena Vista, and the curvature of the U.S.
Bulkhead line, the pier which was accessed by a paved walkway from public walkway in front of
320 Buena Vista is located the water areas bayward only from 316 and 318 Buena Vista.
In 1988, Rowe, Ramser and Miller, the owners of 316, 318, and 320 Buena Vista Blvd. applied for
a relocated shared pier to be situated bayward of 316 and 318 Buena Vista Blvd., still to be shared
and available to the same three properties. The City determined that this revised configuration
would allow additional berthing at the location and better use of the water bayward of each of
the three lots. On May 23, 1988, the revised pier location was approved by the City and the new
shared pier for 316, 318, and 320 Buena Vista Blvd. was subsequently constructed.
In 1988, the property owners for 316, 318 and 320 Buena Vista entered into a written agreement
providing for the shared ownership of the pier, allocated costs for construction, provided for
shared maintenance costs, and governed each property’s rights of use on the pier. This
agreement was recorded as Orange County Instrument No. 88-188588. The City issued Pier
Permit No. 115-320 to all three owners and has transferred Pier Permit No. 115-320 to new
owners as all of 316, 318 and 320 Buena Vista have been acquired by new owners since 1988.
The 1988 written agreement among Miller, Ramser and Rowe concerning construction and
ownership of the shared pier associated with Pier Permit No. 115-320 is attached as Exhibit B.
In 2015, Steve Rogers bought the house at 320 Buena Vista and an interest in Pier Permit No.
115-320 was transferred to Rogers.
b.322 Pier (Pier Permit No. 115-322)
A pier and dock at 322 Buena Vista were originally permitted in or around 1981. At that time, 322
Buena Vista was developed with a single-family home.
In November 1998, an application was approved to remove and replace the pier and dock with a
pier, gangway, and new dock in the same location. In addition, the City approved at this time the
removal and replacement of pilings in different locations to accommodate the new pier length.
This 322 pier exists today. The 322 pier is the only pier which is bayward of the merged 320 and
322 Buena Vista lots as described in Sections 3 and 4 below.
In sum, since in or around 1957, 320 Buena Vista has had enjoyed the ownership and use of the
pier shared with 316 and 318 Buena Vista (Pier Permit No. 115-320) and located entirely bayward
of 316 and 318 Buena Vista. In addition since in or around 1981, 322 Buena Vista has had its own
pier (Pier Permit No. 115-322) for a pier located entirely bayward of 322 Buena Vista and the only
pier located entirely bayward of the merged 320 and 322 Buena Vista parcel.
In 2016, Rogers purchased the house at 322 Buena Vista and Pier Permit No. 115-322 was
transferred to Rogers.
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3.320 and 322 Buena Vista Blvd. Merger
After purchasing both 320 Buena Vista and 322 Buena Vista, Rogers applied to the City for
approval to merge 320 Buena Vista with 322 Buena Vista. On October 27, 2016, the City
approved PA2016-158 to merge 320 (Lot 158) and 322 Buena Vista Blvd. (Lot 157). The assessor
assigned a new APN 048-031-041 to the merged parcel. The merger did not include the separate
parcels situated bayward of Buena Vista Blvd. (APN 048-031-15 and APN 048-031-17). The City
identifies the merged lots by the address of 320 Buena Vista. The Staff Report dated October 27,
2016 for PA2016-158 is attached as Exhibit C.
The City approved the Lot Merger on October 27, 2016. The Lot Merger Map approved by the
City was not signed by City Engineer Mark Vukojevic until August 30, 2017 and was recorded on
September 21, 2017 as Instrument No. 2017000401498, Orange County Records. The recorded
Lot Merger is attached as Exhibit E.
The lot merger combined two substandard lots into a 4,650 square foot parcel that is
approximately 60’ wide where it abuts Buena Vista. But the side lines of 320 Buena Vista are not
parallel because Buena Vista going west to east jogs at the west property line of 320 Buena Vista.
The west line has a course of N 35⁰ 59’ 05” W and the east line has a course of N 46⁰ 28’ 06” W.
The difference is an angle of approximately 10.5⁰. As a result of the long distance between the
house and the bulkhead line and then to the pierhead line, when the property lines are projected
from Buena Vista to the pierhead line, the water area is only 31.75’ wide at the pierhead line.
The City’s 2016 action merging the lots did not restrict the merged property to a single pier.
4.New Home at 320 Buena Vista Blvd.
On June 15, 2017, the City approved PA2017-068 to demolish the house at 322 Buena Vista and
remodel the house at 320 Buena Vista extending onto the 322 Buena Vista property. The address
assigned to the new home was 320 Buena Vista. In reliance on the conditions of approval for PA
2016-158 for the Lot Merger and on PA 2017-068 for the expansion of the 320 house onto 322
Buena Vista. Drawing C2 of the plans attached at pdf page 27 to the City Staff Report shows the
existing two piers associated with the two lots over which the single home will be built. The Staff
Report dated June 15, 2017 for PA2017-068 is attached as Exhibit D.
On September 25, 2017, the City issued Building Permit X2016-4132 for Rogers remodeling.
Rogers proceeded with his plans and completed the remodeled house. Tragically, Rogers passed
away on October 5, 2021. His daughters, Christy Rogers Lucia and Jennifer Rogers placed 320
Buena Vista up for sale and entered into an escrow for sale. It was only at this time that pier
permit transfer applications were made that Christy and Jennifer learned that only one pier
permit would be allowed to be transferred. The City Building Permit X2016-4132 showing the
September 25, 2017 issue date is attached as Exhibit F
The City’s 2017 action approving the home did not restrict the new residence to a single pier.
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5.Pier Permit Transfer Applications
In connection with the April 2022 sale of 320 Buena Vista Blvd., two Harbor Permit Transfer
applications were submitted to the City on April 29, 2022 as follows:
a)Request to transfer Pier Permit No. 115-320 jointly held by the owners of 316-
318-320 Buena Vista Blvd. (of which the transferor (seller) holds the 320 Buena
Vista interest); and
b)Request to transfer Pier Permit No. 115-322 associated with 322 Buena Vista
Blvd.1
On May 4, 2022, the City took the following action on the Harbor Permit Transfer applications:
a)Application for transfer of Pier Permit No. 115-320 - APPROVED; and
b)Application for transfer of Pier Permit No. 115-322 – DENIED.
B.PROJECT DESCRIPTION
The subject Variance Application was prompted by the City’s May 4, 2022 decision to approve
the transfer of Pier Permit No. 115-320, but to deny the transfer of Pier Permit No. 115-322, for
the successor owner of 320 Buena Vista Blvd.
Section 20.70 of the NBMC defines “project” as “an enterprise involving the development,
structural modification, or redevelopment of commercial, industrial, mixed-use, residential, or
other properties.” There is no “project” proposed by the applicant because the Variance
application does not involve any development/construction, structural modification, or physical
changes.
Specifically, the applicant seeks approval for the continued use and maintenance of two piers,
one pier associated with Pier Permit No. 115-322 and the second pier associated with Pier Permit
No. 115-320 which the owner shares with the owners of 316 and 318 Buena Vista. These piers
have both existed in the current form since at least 1988. The subject Variance Application seeks
a variance from Municipal Code §17.35.020A.7 which provides as follows:
1 Prior to the merger, 320 Buena Vista Blvd. was designated with the addresses of 320 Buena Vista Blvd. and 322
Buena Vista Blvd.
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“In single-unit and two-unit residential districts, only a single pier
and slip shall be permitted bayward of each parcel or lot. For
multi-unit or mixed-use districts, only a single pier and slip shall be
permitted bayward of each parcel or lot unless permitted by the
reviewing authority.” [Emphasis added.]
The variance would allow the merged parcels at 320 Buena Vista to be issued both Pier Permit
No. 115-320 for the 1/3 shared interest in the pier bayward of 316 and 318 Buena Vista and to
Pier Permit No. 115-322 for the pier bayward of 320 Buena Vista.
C.VARIANCE JUSTIFICATION AND FINDINGS
The Harbor Commission is authorized to approve, conditionally approve, or disapprove
applications for a Variance. (NBMC Section 17.05.140.D.2) The Variance process is authorized by
NBMC Section 17.05.140.D.2 to vary from the strict application of Section 17.35.020.A.7 which
limits a single-unit residential parcel to a single pier.
To approve or conditionally approve a Variance, the Harbor Commission must make the findings
set forth below.
Finding:
A.The strict application of this title, the design criteria and other applicable standards and
policies otherwise applicable to the property would deny the property owner privileges
enjoyed by other property owners in the vicinity, based on special circumstances
applicable to the property, including location, shape, size, surrounding topography or
other physical features;
Facts in Support of Finding:
1.The 320 Buena Vista property currently is an approximately 4,650 square feet parcel, the
result of two substandard lots that were merged in 2016. The resulting parcel is 60.10
feet in frontage along Buena Vista Boulevard.
2.Due to the angle of projection of the 320 Buena Vista west property boundary, the water
usage for the 320 Buena Vista bayward frontage is much less than normally would exist.
Typically, an owner has as much water area as street frontage. Throughout most of
Newport Beach, waterfront properties have generally parallel boundaries between
neighbors. But here, 320 Buena Vista is approximately 60’ wide where it abuts Buena
Vista, but only 31.75’ wide at the pierhead line. This arises from the 10.5⁰ angle
associated with the jog in Buena Vista at that westerly property line. The westerly
property line therefore has a 79.5⁰ angle relative to the easterly property line. Projecting
the angled westerly property line to the pierhead line results in only 31.75 feet of width
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along the pierhead line. Swiftslips provided a drawing showing this difference which is
attached as Exhibit G. The Swiftslips drawing is consistent with the drawing of the pier
approval for the shared pier which is attached as Exhibit H.
3. The physical distance between the 320 Buena Vista property frontage and the pierhead
line is 156 feet 5 inches. This distance is substantially greater than the distance from the
property line of most waterfront homes to the pierhead line. Most waterfront property
lines are along the established bulkhead line. But from historical circumstances, the
houses along Buena Vista have a bulkhead line far distant from the property line where
homes are built.
4. The 320 Buena Vista Blvd. property has had a shared pier permit with 316 and 318 Buena
Vista since 1957 for the pier located bayward only of 316 and 318 Buena Vista. The 322
Buena Vista Blvd. property as had a pier permit since at least 1981 for the pier located
bayward only of the merged 320 Buena Vista. There are not two piers bayward of 320
Buena Vista. There is a difference between the location of the pier and what property
owner can enjoy an agreed joint pier permit for that pier. The application of Section
17.35.020 is too strictly applied when it denies to the applicant a pier permit associated
with both piers, neither of which exceeds the limitation to only one pier being bayward
of any lot or parcel.
5. The City reviewed and approved a lot merger (2016) and new home (2017) and never
restricted the property to one pier permit and never previously required that one of the
two pier permits be effectively surrendered. The previous 320 Buena Vista Blvd. owner
and the new owner reasonably relied on the legitimacy of both pier permits.
6. The subject property is uniquely situated; it does not enjoy the same extent of water
rights as a property of similar frontage generally enjoys in Newport Harbor. A typical
parcel has water rights to the same width as its street frontage, whereas the subject
property has almost 50% less water (31.75’ wide) than it does frontage width (60’ wide).
7. The property is located on a concave curve, which is unusual within the Harbor. As a
result, the width at the pierhead line is restricted.
8. Due to the shape of the property and the pier water areas, the owner has significantly
less available water than in a normal situation where 60 feet of street frontage results in
60 feet of water area at the pierhead line. An example can be seen on the Exhibit G at 328
Buena Vista Boulevard which has parallel property lines with its neighbors and is 60 feet
in width. At the pierhead line, 328 Buena Vista enjoys 60 feet of water area. Similarly
sized parcels with similar street frontage in the vicinity have greater water area available
than the subject property.
9. The shape of the property does not provide the owner with the water use normally
associated with other properties of similar size (see 328 Buena Vista) The right to a water
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area use which is more in proportion to the street frontage justifies varying from the
provisions of Section 17.35.020.A.7.
10.There are unique historical facts specifically limited to Buena Vista Boulevard that create
the physical circumstance which exist today. When the Map of the Subdivision of Block
A East Newport was recorded in 1906, the 320 Buena Vista property was separated from
the water by Buena Vista Boulevard. A copy of the 1906 Map is attached as Exhibit I.
11.Subsequently, the actual property line was established by a 1928 Orange County Superior
Court Judgment in City of Newport Beach v. Bay Island Club, Inc., Case No. 24080,
recorded on September 19, 1928 in Book 203, Page 95, Orange County Official Records.
A copy of the 1928 Judgment is attached as Exhibit J. The actual property line was along
the bulkhead line established by the Corps of Engineers on January 18, 1917 under the
Rivers and Harbors Act of 1899. As a result of the establishment of the property line, the
owners fronting on the south side Buena Vista Boulevard gaining title to the property
between Buena Vista Boulevard and the adjudicated property line.
12.In 1968, the retired City Engineer R. L. Patterson prepared a map entitled Harbor Lines
and Ordinary High Tide Lines which included identification of the bulkhead and pierhead
lines as well as reference to all adjudications of boundaries throughout the entire Lower
Newport Bay. Patterson had been with the City since the 1930’s. This colored map is 30
inches wide and over 7 feet long and includes a wealth of historical information and
identification of features and documents that might otherwise be lost to memory. A copy
of the portion of this map which encompasses the area of the Applicant’s property is
attached as Exhibit K. The location of the Applicant’s Property is shown in red. Buena
Vista Boulevard is marked as Edgewater Avenue.
13.The Buena Vista Boulevard property owners, including the applicant’s predecessor,
acquired a portion of the unimproved right of way for Buena Vista Boulevard shown on
the 1906 subdivision map when the City vacated a portion of Buena Vista Boulevard in
2015. A copy of the City’s Resolution No. 2014-89 recorded on March 9, 2015 as
Instrument No. 2015000119954 is attached as Exhibit L.
14.The two piers were permissible when there were two separate single-family residences.
The fact that two lots were merged and the number of homes has decreased from two to
one in no way changes the physical use of the water or existing piers.
15.Access to the north side of the 320 pier offsets the lack of water usage normally available
to a property of similar street frontage width.
16.The strict application of Section 17.35.020.A.7 would deny the property owner privileges
enjoyed by other property owners in the vicinity, based on the aforementioned special
circumstances and physical features applicable to the property.
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Finding:
B. Strict compliance with this title, the design criteria and other applicable standards and
policies applicable to the property would deprive the subject property of privileges
enjoyed by other properties in the vicinity;
Facts in Support of Finding:
1. The property is within the R-1 zone district and is designated for RSD-C Single-Unit
Residential Detached uses. It is situated on Newport Harbor, along Buena Vista Boulevard
The property complies with the Zoning Code requirements but seeks relief from Section
17.35.020.A.7 of the Harbor Code that restricts one pier per residential lot.
2. The subject property is uniquely situated; it does not enjoy the same water related
privileges as an R-1 property of similar frontage generally enjoys in Newport Harbor. A
typical parcel has water rights to the same width as its street frontage, whereas the
subject property has significantly less water (31.75’ wide) than it does frontage width (60’
wide).
3. The property is located on a concave curve, which is unusual within the Harbor’s R-1 zone.
As a result, the width at the pierhead line is restricted.
4. Due to the shape of the property and the pier water areas, the owner has significantly
less available water than in a normal situation where 60 feet of street frontage results in
60 feet of water area at the pierhead line (see 328 Buena Vista Blvd.). Other similarly sized
R-1 parcels in the vicinity have greater water area available than the subject property.
5. The shape of the property does not provide the owner with the water use normally
associated with other R-1 zoned properties of similar size (see 328 Buena Vista Blvd.) The
right to a water area use which is more in proportion to the street frontage justifies
varying from the provisions of Section 17.35.020.A.7.
Finding:
C. Granting of the Variance is necessary for the preservation and enjoyment of substantial
property rights of the applicant;
Facts in Support of Finding:
1. The granting of the Variance is necessary for the preservation and enjoyment of
substantial property rights. Relief from Section 17.35.020A.7 will allow the continued use
and maintenance of two piers for a property that enjoys only about 50% of the water area
as compared to its lot frontage.
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2.Under the 1988 Agreement among the 316, 318 and 320 Buena Vista property owners,
which both benefits and binds successors, the Applicant has an actual 1/3 ownership
interest in the physical structure of the 320 pier and property rights property to access
and use the 316 and 318 property appurtenant to the applicant’s. The applicant also has
ownership of the physical improvements of the 322 pier. Approval of the variance is
necessary to protect the applicant’s property rights. See Exhibit B, p. 7-8, ¶7.
3.Under the 1988 Agreement, the applicant’s predecessor granted usage of portions of the
320 Buena Vista water area to be accessible to vessels moored at the shared 320 pier.
This license of use may be enforceable against the applicant and impair his property rights
to access to that water from a pier at 322 Buena Vista. Approval of the variance is
necessary to protect the applicant’s property rights. See Exhibit B, p. 6, ¶5.
4.Under the 1988 Agreement, each property owner agreed to cooperate in the transfer of
the pier permit to any new property owner. See Exhibit B, p. 10, ¶12.
5.Approval of the Variance is necessary to preserve the property right the applicant has in
the interest of two separate pier permits and which the successive owners have
reasonably relied upon for decades.
6.Facts in support of Findings A and B support this finding and are incorporated herein by
reference.
Finding:
D.Granting of the Variance will not constitute a grant of special privilege inconsistent with
the limitations on other properties in the City;
Facts in Support of Finding:
1.The Variance does not constitute a grant of a special privilege as it allows the property
owner to enjoy the full width of water area available to the property. Maximizing the
water area with two piers helps to compensate for a much smaller area of water than the
width of the lot frontage. Other homes in the R-1 zone located in the Harbor area enjoy
water area that is more commensurate with lot width, but that is not the case for 320
Buena Vista Ave.
2.The circumstances of the merger of 320 and 322 Buena Vista differ from the case where
two lots are merged which have two separate piers solely owned by the fronting property
owner. In those circumstances, one of the two piers can be removed and the water can
be accessed from a single pier. In the applicant’s case, the 320 pier will not be removed
but the applicant lacks the right to access to the water area fronting 322 Buena Vista from
the 320 pier. Having a 1/3 interest in the 320 pier recognized by obtaining both Pier
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Permit 115-320 and Pier Permit 115-322 will not be a special privilege. Rather it is a
recognition of existing property rights.
3.Facts in support of Findings A and B support this finding and are incorporated herein by
reference.
Finding:
E.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 vicinity; and
Facts in Support of Finding:
1.The granting of the Variance will not be detrimental to the harmonious growth of the City
or endanger the public convenience, health, interest, safety, or general welfare of persons
residing or working in the neighborhood.
2.No physical changes are proposed. The two piers have existed for decades (1957 and
1981).
3.Both piers were reviewed and permitted by the City and continue to be in compliance
with the requirements of the Harbor Code.
4.No complaints have been lodged regarding the existence of two piers at this location.
5.Adjoining property owners are not impacted, and the piers do not 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.
Finding:
F.Granting of the variance will not be in conflict with the intent and purpose of this title,
the design criteria and any applicable standards and policies approved by the City
Council.
Facts in Support of Finding:
1.The subject property is designated for single-unit residential use with one pier and the
granting of the Variance would not conflict with the intent and purpose of this title, design
criteria, or any other standards and policies approved by the City Council. Furthermore,
the granting of the Variance will not conflict with the Harbor Code because transferring
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Pier Permit No. 115-322 does not result in physical changes to the existing improvements
or demand for other services.
2.The 320 pier is entirely located bayward of 316 and 318 Buena Vista. See Exhibit H. The
322 pier is entirely located bayward of 320 Buena Vista. The provisions of the Harbor
Code from which this variance is requested limits piers by their location in bayward of
parcels or lots. The requested variance does not create two piers bayward of 320 Buena
Vista. The requested variance allows 320 Buena Vista to enjoy its rights in the pier
bayward of 316 and 318 Buena Vista as fully approved by the City. To enjoy those rights,
the applicant is entitled to hold a 1/3 interest in Pier Permit No. 115-320 while also
holding its interest in Pier Permit No. 115-322.
3.The Variance is consistent with the goals and policies of the Harbor and Bay Element of
the General Plan; both pier permits were issued by the City years ago and reviewed and
deemed consistent with the General Plan and Harbor Code at that time.
4.Section 17.05.140.D.2 of the Harbor Code provides the flexibility in application of the
Harbor Code regulations through the Variance review process. The Variance procedure is
intended, in part, to resolve practical physical hardships resulting from the unique
topography and lot configurations that exist in the City and on this property. Due to the
lot configuration in conjunction with the curvature of the coastline, a Variance from the
strict application of NBMC Section 17.35.020.A.7 is appropriate for this location.
D.Reservation of Right to Additional Evidence and Argument.
The Appellant reserves the right to provide additional evidence and argument in support of this
appeal prior to or at the Harbor Commission hearing on the Appeal.
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EXHIBITS
A County Assessor’s Map Book 048, Page 031
B Agreement among Miller, Ramser and Rowe recorded April 25, 1988 as Instrument No.
88-188588.
C City Staff Report for PA2016-158 dated October 27, 2016
D City Staff Report for PA2017-068 dated June 15, 2017
E Recorded Lot Merger, dated September 21, 2017
F City Building Permit X2016-4132 issued September 25, 2017
G Drawing Prepared by Swift Slip, dated May 9, 2022
H 1988 Shared Permit Drawing for Pier Permit No. 115-320
I 1906 Subdivision Map of Block A of East Newport
J 1928 Judgment in City of Newport Beach v. Bay Island Company, Inc.
K Excerpt from 1968 Patterson Map of Lower Newport Harbor
L Newport Beach City Council Resolution No. 2014-89
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