HomeMy WebLinkAbout2023-10 - Amending Title 20 (Planning and Zoning) of the Newport Beach Municipal Code to Establish the Special Flood Hazard (VE) Overlay District (PA2018-075)ORDINANCE NO. 2023-10
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING TITLE
20 (PLANNING AND ZONING) OF THE NEWPORT
BEACH MUNICIPAL CODE TO ESTABLISH THE
SPECIAL FLOOD HAZARD (VE) OVERLAY DISTRICT
(PA2018-075)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in
the Charter and the State Constitution, and the power to exercise, or act pursuant to
any and all rights, powers, and privileges, or procedures granted or prescribed by any
law of the State of California;
WHEREAS, on March 21, 2019, new Federal Emergency Management Agency
("FEMA") Flood Insurance Rate Maps ("FIRM") went into effect for Newport Beach and
includes the new designation of a Special Flood Hazard Area ("VE Zone") affecting 166
beachfront properties in the West Newport area between 24t" Street and 48t" Street;
WHEREAS, new development within the VE Zone must meet FEMA
construction design criteria including elevation of structures with pilings, posts, piers, or
columns to raise the main residential structure approximately three to five feet from
existing grade so that these structures are designed and engineered to allow water to
flow below the elevated floor system without damaging the foundation or creating
substantial debris;
WHEREAS, of the 166 affected properties, 27 properties are within the VE 13
Zone and require elevating structures approximately three feet above existing grade while
the remaining 139 properties are within the VE 15 Zone and require elevating structures
approximately five feet above existing grade;
WHEREAS, compliance with the VE Zone design criteria presents several
challenges for new residential development to also meet the requirements of Title 20
(Planning and Zoning) of the Newport Beach Municipal Code ("NBMC") since compliance
with the VE Zone design criteria significantly limits means of access to the dwelling, as
well as the usability of outdoor areas;
Ordinance No. 2023-10
Page 2 of 5
WHEREAS, on March 26, 2019, the City Council adopted Resolution No. 2019-
31 initiating an amendment to Title 20 ("Zoning Code Amendment") and Title 21 ("Local
Coastal Program Amendment") of the NBMC to modify the setback encroachment
regulations for residential properties in the VE Zone;
WHEREAS, since adoption of the new FIRM, the City has received three variance
requests for new residential projects in the VE Zone seeking relief from the setback
standards in Titles 20 and 21 of the NBMC that directly conflict with the ability to comply
with FEMA's VE Zone design criteria;
WHEREAS, approval and implementation of the Zoning Code Amendment and
Local Coastal Program Amendment would facilitate compliance and is likely to result in
fewer variance requests in the VE Zone;
WHEREAS, the affected properties are categorized as RS-D (Single Unit
Residential Detached) and RT (Two Unit Residential) by the General Plan Land Use
Element and are located within the R-1 (Single -Unit Residential) and R-2 (Two -Unit
Residential) Zoning Districts;
WHEREAS, the affected properties are located within the Coastal Zone with a
Coastal Land Use Plan category of RSD-D (Single Unit Residential Detached — 20.0-
29.9 DU/AC) and RT-E (Two Unit Residential — 30.0 — 39.9 DU/AC) and Coastal Zoning
District designations of R-1 (Single -Unit Residential) and R-2 (Two -Unit Residential);
WHEREAS, a draft of this Local Coastal Program Amendment was presented to
the design community on December 2, 2021, and to affected and nearby property owners
on January 19, 2022, via virtual community meetings with comments incorporated into the
proposed amendments to the extent feasible;
WHEREAS, the Planning Commission held a duly noticed public hearing on
May 4, 2023, in the Council Chambers located at 100 Civic Center Drive, Newport
Beach, California. A notice of time, place and purpose of the public hearing was given in
accordance with the California Government Code Section 54950 et seq. ("Ralph M.
Brown Act") and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written
and oral, was presented to, and considered by, the Planning Commission at this public
hearing;
Ordinance No. 2023-10
Page 3of5
WHEREAS, at the conclusion of the public hearing, the Planning Commission
adopted Resolution No. PC2023-022 by a unanimous vote (7 ayes, 0 nays)
recommending approval of the Zoning Code Amendment and Local Coastal Program
Amendment to the City Council, and
WHEREAS, the City Council held a duly noticed public hearing on June 13,
2023 in the Council Chambers located at 100 Civic Center Drive, Newport Beach,
California. A notice of time, place and purpose of the hearing was given in accordance
with the Ralph M. Brown Act and Chapter 20.62 (Public Hearings) of the NBMC.
Evidence, both written and oral, was presented to, and considered by, the City Council
at this hearing.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The City Council does hereby approve the Zoning Code
Amendment as set forth in "Exhibit A," based upon the Facts in Support of Zoning Code
Amendment set forth in Exhibit "B," both of which are attached hereto and incorporated
herein by reference.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 3: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Ordinance No. 2023-10
Page 4 of 5
Section 4: The City Council finds this Zoning Code Amendment is not subject
to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2)
(the activity will not result in a direct or reasonably foreseeable indirect physical change
in the environment) and 15060(c)(3) (the activity is not a project as defined in Section
15378) of the California Code of Regulations, Title 14, Division 6, Chapter 3, ("CEQA
Guidelines") because it has no potential for resulting in physical change to the
environment, directly or indirectly.
The City Council also finds this Zoning Code Amendment is categorically exempt
from CEQA pursuant to Section 15305 under Class 5 (Minor Alterations in Land Use
Limitations) of the CEQA Guidelines, because it has no potential to have a significant
effect on the environment. The Class 5 exemption allows minor alterations in land use
limitations in areas with an average slope of less than twenty percent, which do not result
in any changes in land use or density. The Zoning Code Amendment seeks to provide
flexibility for potential encroachments into side, rear, and front setback areas for properties
located within the VE Zone. The proposed changes to the NBMC could result in raised
decks, landings, stairs, and other accessory features in the front, side, and rear setbacks
for the affected properties. All changes are limited in scope and would only alter
regulations for the height of accessory structures, which would not result in any changes to
land use intensity or density.
The exceptions to this categorical exemption under Section 15300.2 are not
applicable. The affected 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 5: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the NBMC shall remain unchanged
and shall be in full force and effect.
Ordinance No. 2023-10
Page 5 of 5
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. This ordinance shall take effect upon certification of Zoning Code
Amendment No. PA2018-075 by California Coastal Commission. The City Clerk shall
cause the ordinance, or a summary thereof, to be published pursuant to City Charter
Section 414.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 13th day of June, 2023, and adopted on the 27th day of
June, 2023, by the following vote, to -wit:
AYES: Mayor Blom, Mayor Pro Tern O'Neill, Council Member Avery, Council
Member Grant, Council Member Kleiman, Council Member Stapleton,
Council Member Weigand
NAYS:
ABSENT:
ATTEST:
LEILANI I. BROWN, CITY CLERK IU
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
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AARON C. HARP, CITY ATTORNEY
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Attachments: Exhibit A - Zoning Code Amendment (PA2018-075)
Exhibit B - Facts in Support of Zoning Code Amendment
(PA2018-075)
ZONING CODE AMENDMENT (PA2018-075)
Section 20.28.010 (Purposes of Overlay Zoning Districts) of the NBMC is amended
to add subsection (E) to read as follows:
E. Special Flood Hazard Area (VE) Overlay Zoning District. The VE Overlay District
is intended to modify certain development standards for properties subject to special
flood hazards as identified by the Federal Emergency Management Agency (FEMA)
in the Flood Insurance Study (FIS) for Orange County, California and Incorporated
Area with accompanying FEMA Flood Insurance Rate Maps (FIRM).
The title of Chapter 20.28 Overlay Zoning Districts (MHP, PM, B, H) shall be
amended to read as follows:
Sections:
20.28.010
Purposes of Overlay Zoning Districts.
20.28.020
Mobile Home Park (MHP) Overlay Zoning District.
20.28.030
Parking Management (PM) Overlay District.
20.28.040
Bluff (B) Overlay District.
20.28.050
Reserved.
20.28.060
Height (H) Overlay District.
20.28.070
Special Flood Hazard Area (VE) Overlay District.
III. Section 20.28.070 (Special Flood Hazard Area (VE) Overlay District) of the NBMC
shall be added to read as follows:
Section 20.28.070 Special Flood Hazard Area (VE) Overlay District.
A. Applicability. This section applies to encroachments for residential properties
located in the coastal high hazard area as defined in Chapter 15.50 (Floodplain
Management) and identified as VE 13 or VE 15 on the adopted FEMA FIS and
FIRM pursuant to Section 15.50.070 (Basis for Establishing the Areas of Special
Flood Hazard). For purposes of this section, "encroachments" are limited to
decks, landings, patios, platforms, porches, steps, raised walkways, or terraces
required for access. With the exception of the encroachments authorized herein,
all development shall comply with the applicable residential development
standards (e.g., floor area limit, setbacks, parking) of the underlying zoning
district set forth in the NBMC. In situations where an inconsistency occurs
between the development standards of the underlying zoning district and the
standards in this section related to encroachments, the standards related to
encroachments in this section shall apply.
The encroachments allowed by this section shall only apply to new
construction, substantial damage, or substantial improvements to the structure
pursuant to Section 15.50.200 (Coastal High Hazard Areas) for residential
properties where the structure is required to raise the foundation above the
design flood elevation.
B. Allowed Encroachments in Side and Rear Setbacks. An encroachment may be
located within a required side or rear setback area other than those abutting an
alley subject to the following restrictions:
1. The design of the encroachment shall comply with the building standards
set forth in Section 15.05.100 (Amendment to Section R301.2.4) and either
of the following:
a. Chapter 15.50 (Flood Plain Management); or
b. The Flood Resistant Design and Construction publication by the
American Society of Civil Engineers (ASCE 24).
2. Access to the side yard setback shall comply with Section
20.30.110(A)(1)(c) (Access to Side Setback Area).
3. For interior lots, the encroachment may be located in one (1) or more side
or rear setback and may extend to the property line abutting the side or
rear setback. Encroachments in an interior side or rear setback may only
be permitted to the minimum extent necessary to provide access to the
dwelling from both the front and the rear of the property.
4. For corner lots, the encroachment may be located in the interior side or
rear setback. Encroachments in a side or rear setback facing a street may
only be permitted to the minimum extent necessary to provide access to
the dwelling from both the front and the rear of the property. The
encroachment shall comply with all other development standards of the
underlying zoning district including Section 20.30.130 (Traffic Safety
Visibility Area).
5. Excluding required guardrails or handrails, the finished surface of the
encroachment shall not exceed six (6) inches above the finished floor of
the dwelling unit(s).
6. Guardrails and handrails in the side and rear setback shall be constructed
of either transparent material (except for supports) or opaque material (e.g.
decorative grillwork, wrought iron, latticework, or similar materials) so that
at least forty percent (40%) of the guardrail or handrail is open. Handrails
and guardrails shall not exceed the minimum height requirements set forth
in the California Building Code for safety purposes.
C. Allowed Encroachments in Front Setbacks. Encroachments may be located
within a required front setback area subject to the following restrictions:
1. The design of the encroachment shall comply with the building standards
set forth in Section 15.05.100 (Amendment to Section R301.2.4) and either
of the following:
a. Chapter 15.50 (Flood Plain Management); or
b. The Flood Resistant Design and Construction publication by the
American Society of Civil Engineers (ASCE 24).
2. For interior lots, excluding the required guardrails or handrails, the finished
surface of the encroachment shall not exceed six (6) inches above the
finished floor of the dwelling unit(s). A deck, balcony, patio, or terrace
encroachment shall not exceed three (3) feet into the front setback. Stairs,
steps, or landing encroachments required for access may extend to the
front property line.
3. For corner lots, excluding the required guardrails or handrails, the finished
surface of the encroachment shall not exceed six (6) inches above the
finished floor of the dwelling unit(s) and may extend into the front setback
adjacent to the beach, permitted Ocean Front Encroachment areas
(Appendix C Ocean Front Encroachment Policy Guidelines of Title 21), or
Ocean Front Boardwalk. A deck, balcony, patio, or terrace encroachment
shall not exceed three (3) feet into the front setback. Stairs, steps, or
landing encroachments required for access may extend to the front
property line. Encroachments are subject to compliance with all other
development standards of the underlying zoning district including Section
20.30.130 (Traffic Safety Visibility Area).
a. Corner lots shall be developed in a manner that ensures visibility
across the corners of the intersecting streets, alleys, sidewalks,
private driveways, and the Ocean Front Boardwalk. Notwithstanding
the requirements of this subsection (C), no encroachment over thirty
(30) inches in height from existing grade shall be located within the
traffic visibility triangle (i.e. the triangular -shaped area on a corner lot
formed by measuring five (5) feet from the intersection of the front
and street side property lines adjacent to the Ocean Front
Boardwalk).
b. Improvements or structures that exceed the allowable height limit for
visibility in the traffic safety visibility area may be approved by the
City Traffic Engineer if he/she determines that the location and/or
height of the existing or proposed improvement or structure, or other
obstruction allows for the unobstructed view of oncoming traffic
including bicyclists, and pedestrians by a driver, bicyclist, or
pedestrian approaching an intersection.
4. Guardrails and handrails in the front setback shall be constructed of either
transparent material (except for supports) or opaque material (e.g.
decorative grillwork, wrought iron, latticework, or similar materials) so that
at least forty percent (40%) of the guardrail or handrail is open. Handrails
and guardrails shall not exceed the minimum height requirements set forth
in the California Building Code for safety purposes.
D. Third Floor Limitations. All residential structures shall comply with Section
20.48.180 (Residential Development Standards and Design Criteria). For
purposes of determining the number of floors within the principal structure, the
garage shall be considered the first level. In the case of a split-level design, the
Director shall determine which portions of the split-level structure shall constitute
a third floor for the purpose of implementing Section 20.48.180 (Residential
Development Standards and Design Criteria).
IV. Subsection (f) shall be added to Section 20.30.110(D)(1) (General Regulations) of
the NBMC to read as follows:
f. Special Flood Hazard Area (VE) Overlay. Encroachments allowed by this
subsection shall apply to properties within the VE Overlay except as modified by
Section 20.28.070 (VE Overlay). See Section 20.28.070 (VE Overlay) for setback
regulations and additional authorized encroachments.
*A:II-311M-]h
FACTS IN SUPPORT OF CODE AMENDMENT (PA2018-075)
An amendment to Title 20 (Planning and Zoning) of the NBMC is a legislative act.
Neither Chapter 20.66 (Planning and Zoning, Amendments) of Title 20 (Planning and
Zoning) of the NBMC, or Article 2 (Adoption of Regulations) of Chapter 4 (Zoning
Regulations) of Division 1 (Planning and Zoning) of Title 7 (Planning and Land Use) of
the California Government Code set forth any required findings for either approval or
denial of such amendments.
Notwithstanding the foregoing, the Zoning Code Amendment is consistent with the City
Council's initiation and allows for orderly residential development while protecting
property rights, as identified below.
1. The Zoning Code Amendment is consistent with Coastal Land Use Plan Policy
2.7-1 and General Plan Land Use Element Policy LU 5.1.6, which require
development to maintain appropriate setbacks for residential development to
protect the character of established neighborhoods and to protect coastal access
and coastal resources. The proposed amendments would only apply to private
residential single -unit and two -unit properties and do not authorize any changes
to public property.
2. The Zoning Code Amendment does not authorize any new development that will
block coastal access, nor does it change the dimensions of setbacks. Instead, it
will provide flexibility in the application of height requirements for accessory
structures within front, side, and rear setbacks. No changes to density or to
maximum height limits of principal structures are proposed as part of this
amendment. All new residential development in the VE Zone will require approval
of a coastal development permit to evaluate compliance with the Coastal Act,
including potential impacts to views and access related to the proposed design
and location.
3. Typical residential properties along the beach and boardwalk can achieve
seamless indoor and outdoor living with front patios along the sand or boardwalk.
As of the effective date of the new FIRMs, properties in the VE Zone are no
longer able to achieve this design, as their finished floors are elevated well above
the beach or boardwalk. The existing residential development standards in the
NBMC limit accessory structures to 42 inches maximum within the front setback.
However, in the VE Zone, no patios or decks attached to the principal structure
can be located below the first -floor elevation. This significantly limits outdoor
living space for the affected properties. Furthermore, no direct access to the
ground is provided, as the required stairs and handrails or guardrails exceed
height limits in the front setback. The Zoning Code Amendment is therefore
necessary to provide parity between residential properties located in the VE Zone
and typical residential properties throughout Coastal Zone. The changes will
allow for raised landings, decks, patios, platforms, stairs, railings, and terraces to
exceed the maximum height limits for accessory structures within front, side, and
rear yard setbacks for new residential construction within the VE Zone.
4. New residential construction and substantial improvements in the VE Zone are
required to be elevated approximately three to five feet above existing grade and
stairs are necessary to access the dwelling from the ground. Currently, the
NBMC limits steps, landings, platforms, and similar features to 18 inches from
existing grade in the side and rear setback. An 18-inch-high platform is not
sufficient to reach the first floor of the new structure. The Zoning Code
Amendment and Local Coastal Program Amendment would allow new residential
construction to provide direct access to the dwelling from the side or rear setback
without the need to reduce the floor area of the dwelling to accommodate the
stairs. The required handrails or guardrails would also be allowed as part of the
amendment to accommodate access in the side and rear setback areas.
5. With exception of the changes to allowable setback encroachments, all future
development within the VE Zone would remain consistent with unchanged
applicable standards of the R-1 and R-2 Zoning Districts. These include
setbacks, height, floor area limitations, and parking standards.
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2023-10 was duly introduced on the 13th day of June, 2023, at a regular meeting, and adopted by the
City Council at a regular meeting duly held on the 27th day of June, 2023, and that the same was so passed
and adopted by the following vote, to wit:
AYES: Mayor Noah Blom, Mayor Pro Tem Will O'Neill, Council Member Brad Avery, Council
Member Robyn Grant, Council Member Lauren Kleiman, Council Member Joe Stapleton,
Council Member Erik Weigand
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said
City this 28th day of June, 2023.
STATE OF CALIFORNIA }
COUNTY OF ORANGE }
CITY OF NEWPORT BEACH }
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Leilani I. Brown, MM
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
ss.
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2023-10 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
Introduced Ordinance: June 17, 2023
Adopted Ordinance: July 1, 2023
In witness whereof, I have hereunto subscribed my name this 3A day of July, 2023.
Ito Leilani I. Brown, MMC
City Clerk
w= .Z City of Newport Beach, California
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