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HomeMy WebLinkAboutPA2022-0159_20221110_Resolution_ZA2022-070Community Development Department CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment VIA EMAIL November 10, 2022 John T. Morgan Jr. jtmarchitect14@gmail.com Subject: Coastal Development Permit (PA2022-0159) 3407 and 3407 ½ Finley Avenue Mickool Residence CDP Dear Mr. Morgan, 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 November 10, 2022 and is now within the required City appeal period until November 24, 2022. If no appeals are filed with the City, a Notice of Final Action will be mailed to the California Coastal Commission. Upon receipt of the notice by the Coastal Commission, the action will be subject to an additional 10-working-day appeal period. You may track status of the Coastal Commission appeal period via the following link: Statewide Appealable Projects PDF At the conclusion of both appeal periods, a building permit may be issued for the project. 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, LAW/msw cc: Clifford Mickool cmickool@sbcglobal.net 10-18-2021 RESOLUTION NO. ZA2022-070 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A COASTAL DEVELOPMENT PERMIT TO DEMOLISH AN EXISTING DUPLEX AND CONSTRUCT A NEW 3,285-SQUARE- FOOT, THREE (3)-STORY SINGLE-FAMILY RESIDENCE INCLUDING AN ATTACHED JUNIOR ACCESSORY DWELLING UNIT (JADU) AND ATTACHED TWO (2)-CAR GARAGE LOCATED AT 3407 and 3407 ½ FINLEY AVENUE (PA2022-0159). THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Clifford Mickool, Owner with respect to property located at 3407 and 3407 ½ Finley Avenue, requesting approval of a coastal development permit. 2. The lot at 3407 and 3407 ½ Finley Avenue is legally described as Lot 4 Block 434 of Canal Section. 3. The applicant proposes a coastal development permit (CDP) to allow the demolition of an existing duplex and the construction of a new three (3)-story, 3,285-square-foot, single-unit residence including a 384-square-foot attached junior accessory dwelling unit (JADU). The proposed development includes an attached 463-square-foot-two (2)-car garage. Project implementation includes repairing, reinforcing, and raising the existing bulkhead. The project complies with all applicable development standards and no deviations are requested. The project includes hardscape, walls, landscaping, and drainage facilities. 4. The subject property is designated Two-Unit Residential (RT) by the General Plan Land Use Element and is located within the Two-Unit Residential (R-2) Zoning District. 5. The subject property is located within the coastal zone. The Coastal Land Use Plan category is Two Unit Residential (20.0-29.9 DU/AC) (RT-D), and it is located within the Two-Unit Residential (R-2) Coastal Zoning District. 6. A public hearing was held on November 10, 2022, online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the Newport Beach Municipal Code (NBMC). Evidence, both written and oral, was presented to, and considered by, the Zoning Administrator at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This project is categorically exempt pursuant to Title 14 of the California Code of Regulations, Division 6, Chapter 3, Guidelines for Implementation of the California Environmental Quality Act (CEQA) Section 15303 under Class 3 (New Construction or Conversion of Small Structures) because it has no potential to have a significant effect on the environment. Zoning Administrator Resolution No. ZA2022-070 Page 2 of 11 10-05-2021 2. Class 3 exempts the demolition and construction of up to three (3) single-family residences in urbanized areas. The proposed project consists of the demolition two (2)-units (duplex) and the construction of a new 3,285-square-foot, single-family residence including a 384-square-foot junior accessory dwelling unit and attached 463- square-foot, two (2)-car garage. 3. The exceptions to this categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A. Conforms to all applicable sections of the certified Local Coastal Program. Facts in Support of Finding: 1. The proposed development complies with applicable residential development standards including, but not limited to, floor area limitation, setbacks, height, and parking. a. The maximum floor area limitation is 3,387 square feet and the proposed floor area is 3,285 square feet. b. The proposed development provides the minimum required setbacks, which are 20 feet along the front property line abutting the Rivo Alto (bay), 3 feet along each side property line, and 5 feet along the street frontage (Finely Avenue). Portions of the existing residence that currently encroach up to 4 inches into the north side setback and 1 inch into the south side setback are proposed to be demolished and the residence reconstructed for setback conformance. c. The highest guardrail is less than 24 feet from established grade (9.00 feet NAVD88) and the highest ridge is no more than 29 feet from established grade, which comply with the maximum height requirements. d. The project includes garage parking for a total of two (2) vehicles, complying with the minimum two (2)-car garage parking requirement for single-family residences with less than 4,000 square feet of habitable floor area. No additional parking is required for the JADU. Zoning Administrator Resolution No. ZA2022-070 Page 3 of 11 10-05-2021 2. The project is conditioned to require the recordation of a deed restriction that will prohibit use of the JADU for short term rentals and will also prohibit the sale of the JADU separate from the principal dwelling. The project is also conditioned to require the owner of the Property to reside in either the primary dwelling or in the JADU. Owner occupancy is not required if the owner is another governmental agency, land trust or housing organization within the meaning of Government Code 65852.22 3. The neighborhood is predominantly developed with two (2)- and three (3)-story, single- family and two-family residences. The proposed design, bulk, and scale of the development is consistent with the existing neighborhood pattern of development. 4. A Coastal Hazards Report and Sea Level Rise Analysis including a Bulkhead Conditions Report was prepared by PMA Consulting, Inc. dated July 7, 2022, for the project. The maximum bay water elevation is 7.7 feet NAVD 88 (North American Vertical Datum of 1988 (NAVD 88) and may exceed the current top of bulkhead elevation of 6.23 feet (NAVD 88) during high tide or storm events. The report analyzes future sea level rise scenarios assuming a 3.05-foot increase in the maximum water level over the next 75 years (i.e. the life of the structure). Therefore, the sea level is estimated to reach approximately 10.75 feet NAVD 88 (the likely range for sea level rise over 75-year design life of the structure based on low risk aversion estimates for sea level rise provided by the State of California, Sea Level Rise Guidance: 2018 Update). 5. On March 23, 2021, the City Council approved updated Waterfront Project Design Guidelines and Standards, Harbor Design Criteria Commercial & Residential Facilities. The guidelines require that any structure permitted within the years 2021 through 2025 must have a minimum bulkhead elevation of 10.9 feet (NAVD 88) with a design for adaptability elevation of 14.4 feet (NAVD 88). The project has been conditioned to raise the bulkhead to an elevation of 10.9 feet (NAVD 88). PMA Consulting, Inc. has confirmed the bulkhead can be raised up to 14.4 feet NAVD88 if needed without further bayward encroachment. 6. Once the existing seawall/bulkhead is reinforced/raised per the report’s recommendations, flooding, wave run-up, and erosion will not significantly impact this property over the proposed 75-year economic life of the development. As conditioned, a waterproofing curb or other waterproof material is required and proposed be constructed around the perimeter of the dwelling that would protect against flooding up to an elevation of 10.9 feet (NAVD 88). Flood shields (sandbags and other barriers) can be deployed across the openings to protect and prevent flooding to the structure. The report concludes that the proposed project will be safe from flooding hazards for the next 75 years with the repaired/reinforced and raised bulkhead and a flood protection or waterproofing around the structure. Therefore, the project has been conditioned to repair, reinforce, raise the bulkhead and include flood protection around the structure up to 10.9 feet (NAVD 88). Zoning Administrator Resolution No. ZA2022-070 Page 4 of 11 10-05-2021 7. The finished floor elevation of the proposed single-family residence is 9.0 feet (NAVD 88), which complies with the minimum 9.00-foot (NAVD 88) elevation standard. The Coastal Hazard Report concludes that the bay water elevation (currently 7.7 feet NAVD 88) will not exceed the proposed flood protection around the single-family residence at 10.9 feet (NAVD 88) for the anticipated 75-year life of the structure. 8. The property is in an area known for the potential of seismic activity and liquefaction. All projects are required to comply with the California Building Code (CBC) and Building Division standards and policies. Geotechnical investigations specifically addressing liquefaction are required to be reviewed and approved prior to the issuance of building permits. Permit issuance is also contingent on the inclusion of design mitigation identified in the investigations. Construction plans are reviewed for compliance with approved investigations and CBC prior to building permit issuance. 9. The property is located adjacent to coastal waters. A Construction Erosion Control Plan was provided to implement temporary Best Management Practices (BMPs) during construction to minimize erosion and sedimentation and to minimize pollution of runoff and coastal waters derived by construction chemicals and materials. The project design also addresses water quality through the inclusion of a post-construction drainage system that includes drainage and percolation features designed to retain dry weather and minor rain event runoff on-site. Any water not retained on-site is directed to the City’s storm drain system. 10. Pursuant to Municipal Code Section 21.35.050 (Water Quality and Hydrology Plan), due to the proximity of the development to the shoreline and the development containing more than 75 percent of impervious surface area, a preliminary Water Quality and Hydrology Plan (WQHP) is required. A preliminary WQMP has been prepared for the project by Aaron Albertson, September 21, 2022. The WQHP includes a polluted runoff and hydrologic site characterization, a sizing standard for BMPs, use of an LID approach to retain the design storm runoff volume on site, and documentation of the expected effectiveness of the proposed BMPs. Construction plans will be reviewed for compliance with the approved WQHP prior to building permit issuance. 11. Proposed landscaping complies with Implementation Plan Section 21.30.075 (Landscaping). A condition of approval is included that requires drought-tolerant species. Prior to issuance of building permits, the final landscape plans will be reviewed to verify invasive species are not planted. Finding: B. Conforms with the public access and public recreation policies of Chapter 3 of the Coastal Act if the project is located between the nearest public road and the sea or shoreline of any body of water located within the coastal zone. Zoning Administrator Resolution No. ZA2022-070 Page 5 of 11 10-05-2021 Facts in Support of Finding: 1. The project site is located between the nearest public road and the sea or shoreline. Implementation Plan Section 21.30A.040 (Determination of Public Access/Recreation Impacts) requires that the provision of public access bear a reasonable relationship between the requirement and the project’s impact and be proportional to the impact. In this case, the project replaces an existing non-conforming duplex located on a standard R-2 lot with a new single-family residence and attached junior accessory dwelling unit. Therefore, the project does not involve a change in land use, density or intensity that will result in increased demand on public access and recreation opportunities. Furthermore, the project is designed and sited (appropriate height, setbacks, etc.) so as not to block or impede existing public access opportunities. 2. Vertical and lateral access to the bay is available approximately 90 feet to the south at the terminus of 34th Street where there is a small grass area adjacent to the bay. There is also vertical and lateral access to the bay 90 feet to the north at the terminus of 35th Street where the is a small sandy beach adjacent to the bay. The project does not include any features that would obstruct access along these routes. 3. The project site is not adjacent to a coastal view road, public access way, or Coastal Viewpoint as identified in the Coastal Land Use Plan. The nearest coastal viewpoint is on 38th Street on Newport Island approximately 800 feet northwest and the nearest coastal view road is Newport Boulevard north of Via Lido, approximately 600 feet northeast. Neither are visible from the site. As currently developed, the existing property and other residences along Finley Avenue are not located within the view shed of the park. The residences along Finley Avenue are within the viewshed of Rivo Alto (bay) and slightly from the Coastal View Road portion of Newport Boulevard. However, the proposed single- family residence with a junior accessory dwelling unit complies with all applicable Local Coastal Program (LCP) development standards and maintains a building envelope consistent with the existing neighborhood pattern of development. Additionally, the project does not contain any unique features that could degrade the visual quality of the coastal zone. 4. The front of the residence, which is visible from the bay, provides additional setbacks for the second floor and third floor areas with open decks, providing modulation of volume. The design includes modulation of volume throughout the structure and low front site walls that prevent the appearance of the site being walled off from the bay. Therefore, the project does not have the potential to degrade the visual quality of the Coastal Zone or result in significant adverse impacts to existing public views. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Zoning Administrator of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act pursuant to Section 15303 under Class 3 (Construction or Conversion of Small Structures) of the CEQA Zoning Administrator Resolution No. ZA2022-070 Page 6 of 11 10-05-2021 Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3 because it has no potential to have a significant effect on the environment. 2. The Zoning Administrator of the City of Newport Beach hereby approves Coastal Development Permit (PA2022-0159), subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated by reference. 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal or call for review is filed with the Community Development Director in accordance with the provisions of Title 21 Local Coastal Program (LCP) Implementation Plan, of the Newport Beach Municipal Code. Final action taken by the City may be appealed to the Coastal Commission in compliance with Section 21.64.035 (Appeal to the Coastal Commission) of the City’s certified LCP and Title 14 California Code of Regulations, Sections 13111 through 13120, and Section 30603 of the Coastal Act. PASSED, APPROVED, AND ADOPTED THIS 10TH DAY OF NOVEMBER, 2022. Zoning Administrator Resolution No. ZA2022-070 Page 7 of 11 10-05-2021 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. Prior to final of building permits, the existing seawall shall be reinforced and capped to 10.90 feet (NAVD 88) and capable to be raised up to 14.4 feet (NAVD 88), in compliance with the City of Newport Beach Waterfront Project Guidelines and Standards, Harbor Design Criteria Commercial & Residential Facilities and the recommendations provided in the Coastal Hazards Report and Sea Level Rise Analysis prepared by PMA Consulting dated July 7, 2022. 3. Prior to issuance of building permits, a waterproofing curb or similar waterproofing design feature shall be constructed around the proposed residence as an adaptive flood protection device up to a minimum of 10.9 feet (NAVD88). Flood shields (sandbags and other methods) can be deployed across the openings to protect and prevent flooding to the structure. 4. Prior to final building permit inspection, an agreement in a form approved by the City Attorney between the property owner and the City shall be executed and recorded waiving rights to the construction of future shoreline protection devices including the repair and maintenance, enhancement, reinforcement, or any other activity affecting the bulkhead, that results in any encroachment seaward of the authorized footprint of the bulkhead or other shoreline protective device. The agreement shall be binding against the property owners and successors and assigns. 5. Prior to the issuance of a building permit, the property owner shall submit a notarized signed letter acknowledging all hazards present at the site, assuming the risk of injury or damage from such hazards, unconditionally waiving any claims of damage against the City from such hazards, and to indemnify 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 development. This letter shall be scanned into the plan set prior to building permit issuance. 6. Prior to the issuance of a building permit, the Junior Accessory Dwelling Unit (JADU) shall require a deed restriction that prohibits the sale of the JADU separately and prohibits rental or leasing of the ADU for 30 days or less. The deed restriction will also require the owner of the Property to reside in either the primary dwelling or in the JADU. Owner occupancy is not required if the owner is another governmental agency, land trust or housing organization within the meaning of Government Code 65852.22. Zoning Administrator Resolution No. ZA2022-070 Page 8 of 11 10-05-2021 7. This approval does not authorize any new or existing improvements (including landscaping) on California Coastal Permit Jurisdiction, State tidelands, public beaches, or the public right-of-way. Any improvements located on tidelands, submerged lands, and/or lands that may be subject to the public trust shall require a coastal development permit (CDP) approved by the California Coastal Commission (Coastal Commission). Prior to the issuance of building permits, the applicant shall provide a copy of said coastal development permit or CDP waiver or documentation from the Coastal Commission that subject improvements are not subject to the permit requirements of the Coastal Act and/or not located within the permit jurisdiction of the Coastal Commission. 8. No demolition or construction materials, equipment debris, or waste, shall be placed or stored in a location that would enter sensitive habitat, receiving waters, or a storm drain or result in impacts to environmentally sensitive habitat areas, streams, the beach, wetlands or their buffers. No demolition or construction materials shall be stored on public property. 9. This Coastal Development Permit does not authorize any development seaward of the private property. 10. The applicant is responsible for compliance with the Migratory Bird Treaty Act (MBTA). In compliance with the MBTA, grading, brush removal, building demolition, tree trimming, and similar construction activities shall occur between August 16 and January 31, outside of the peak nesting period. If such activities must occur inside the peak nesting season from February 1 to August 15, compliance with the following is required to prevent the taking of native birds pursuant to MBTA: a. The construction area shall be inspected for active nests. If birds are observed flying from a nest or sitting on a nest, it can be assumed that the nest is active. Construction activity within 300 feet of an active nest shall be delayed until the nest is no longer active. Continue to observe the nest until the chicks have left the nest and activity is no longer observed. When the nest is no longer active, construction activity can continue in the nest area. b. It is a violation of state and federal law to kill or harm a native bird. To ensure compliance, consider hiring a biologist to assist with the survey for nesting birds, and to determine when it is safe to commence construction activities. If an active nest is found, one or two short follow-up surveys will be necessary to check on the nest and determine when the nest is no longer active. 11. Best Management Practices (BMPs) and Good Housekeeping Practices (GHPs) shall be implemented prior to and throughout the duration of construction activity as designated in the Construction Erosion Control Plan. 12. The discharge of any hazardous materials into storm sewer systems or receiving waters shall be prohibited. Machinery and equipment shall be maintained and washed in confined areas specifically designed to control runoff. A designated fueling and vehicle Zoning Administrator Resolution No. ZA2022-070 Page 9 of 11 10-05-2021 maintenance area with appropriate berms and protection to prevent spillage shall be provided as far away from storm drain systems or receiving waters as possible. 13. Debris from demolition shall be removed from work areas each day and removed from the project site within 24 hours of the completion of the project. Stockpiles and construction materials shall be covered, enclosed on all sites, not stored in contact with the soil, and located as far away as possible from drain inlets and any waterway. 14. Trash and debris shall be disposed in proper trash and recycling receptacles at the end of each construction day. Solid waste, including excess concrete, shall be disposed in adequate disposal facilities at a legal disposal site or recycled at a recycling facility. 15. Revisions to the approved plans may require an amendment to this Coastal Development Permit or the processing of a new coastal development permit. 16. The project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 17. 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 Coastal Development Permit. 18. This Coastal Development 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. 19. Prior to the issuance of building permits, the applicant shall submit a final construction erosion control plan. The plan shall be subject to the review and approval by the Building Division. 20. Prior to the issuance of building permits, the applicant shall submit a final drainage and grading plan. The plan shall be subject to the review and approval by the Building Division. 21. Prior to issuance of a building permit, a copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans. 22. Prior to issuance of a building permit, the applicant shall submit a final landscape and irrigation plan. These plans shall incorporate drought tolerant plantings, non-invasive plant species and water efficient irrigation design. The plans shall be approved by the Planning Division. 23. Prior to issuance of building permits, the final WQHP/WQMP shall be reviewed and approved by the Building Division. Implementation shall be in compliance with the Zoning Administrator Resolution No. ZA2022-070 Page 10 of 11 10-05-2021 approved CPPP and WQHP/WQMP and any changes could require separate review and approval by the Building Division. 24. Prior to the issuance of building permits, the applicant shall submit a final landscape and irrigation plan. These plans shall incorporate drought tolerant plantings, non-invasive plant species and water efficient irrigation design. The plans shall be approved by the Planning Division. 25. All landscape materials and irrigation systems shall be maintained in accordance with the approved landscape plan. All landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing, and trimming. All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall be kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 26. Construction activities shall comply with Section 10.28.040 (Construction Activity— Noise Regulations) of the Newport Beach Municipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday. Noise-generating construction activities are not allowed on Saturdays, Sundays or Holidays. 27. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified time periods unless the ambient noise level is higher: Between the hours of 7:00AM and 10:00PM Between the hours of 10:00PM and 7:00AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 28. Prior to the issuance of building permit, the applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 29. 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 the current property owner or agent. 30. This Coastal Development Permit (PA2022-0159) shall expire unless exercised within 24 months from the date of approval as specified in Section 21.54.060 (Time Limits and Extensions) of the Newport Beach Municipal Code, unless an extension is otherwise granted. Zoning Administrator Resolution No. ZA2022-070 Page 11 of 11 10-05-2021 31.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 Mickool Residence including, but not limited to, Coastal Development Permit (PA2022-0159). 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.