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HomeMy WebLinkAboutZA2025-019 - APPROVING A MODIFICATION PERMIT FOR RETAINING WALLS THAT EXCEED 8-FEET IN HEIGHT AS MEASURED FROM FINISH GRADE LOCATED AT 10 WHITESANDS DRIVE (PA2025-0012)RESOLUTION NO. ZA2025-019 A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH, CALIFORNIA, APPROVING A MODIFICATION PERMIT FOR RETAINING WALLS THAT EXCEED 8-FEET IN HEIGHT AS MEASURED FROM FINISH GRADE LOCATED AT 10 WHITESANDS DRIVE (PA2025-0012) THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Mark Valencia (Applicant), with respect to property located at 10 Whitesands Drive, and legally described as Lot 17 of Tract No. 14912 (Property) requesting approval of a modification permit. 2. The Applicant proposes a modification permit to allow the construction of retaining walls in the rear and side setback with a maximum height of 17 feet when measured at the base of the wall from finish grade where the Newport Beach Municipal Code (NBMC) limits the height to 8 feet maximum. The higher retaining walls will allow the Applicant to excavate the sloping hillside in the rear of the Property for future development and accessory structures (Project). The retaining walls will be approximately 1.5 feet from the existing grade of neighboring properties to the rear and side. 3. The Property is designated Single Unit Residential Detached (RS-D) by the General Plan Land Use Element and is located within the Newport Ridge (PC53) Planned Community Zoning District within Residential Planning Area 1. 4. The Property is not located within the coastal zone. 5. A public hearing was held on April 24, 2025, online via Zoom. A notice of time, place and purpose of the hearing was given in accordance with the 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 exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA 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 Class 3 exemption allows for the construction and location of limited numbers of new, small facilities or structures that include, but are not limited to, accessory (appurtenant) structures including garages, carports, patios, swimming pools, and fences. The Project proposes to construct retaining walls along the rear and side yards of the Property to allow for future development in the rear. Zoning Administrator Resolution No. ZA2025-019 Page 2 of 8 10-18-21 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. Modification Permit In accordance with Section 20.52.050(E) (Modification Permits – Required Findings) of the NBMC, the following findings and facts in support of such findings are set forth: Finding: A. The requested modification will be compatible with existing development in the neighborhood; Facts in Support of Finding: 1. The Property is located in Newport Ridge, which is a community northwest of Newport Coast, towards the eastern boundary of the City. Newport Ridge is a neighborhood that is primarily developed with two-story, single-unit dwellings, garages, and accessory structures. This neighborhood was developed in the County of Orange before Newport Ridge was annexed to the City in September 2000. 2. The Property is developed with a two-story, single-unit dwelling with an attached two- car garage, pool, landscaping, and other accessory structures. The rear of the property has approximately 50 feet (depth) of sloping hillside with trees and landscaping. The property is approximately 13,934-square-feet, however, approximately 3,700-square- feet of the property to the rear has a severe slope of approximately 30%. 3. This Property is one of five properties on the same side of Whitesands Drive that have sloping rear yards that are difficult to develop. However, other properties in the neighborhood, including the properties across from Whitesands Drive, are primarily flat lots and are able to develop the rear of the properties within the allowed development standards. 4. The properties located behind the Property on Bridgeport Road are also able to develop the rear of the properties and many are developed with accessory structures such as pools, patios, trellises, and other accessory structures allowed within the PC53 Zoning District. The Project proposes retaining walls that range from 3 feet to 17 feet when measured from finish grade where the NBMC allows a maximum of 8 feet when measured from finish grade. The retaining walls will allow the rear yard to be excavated in order to allow future development in the rear, similar to surrounding properties in the neighborhood. Zoning Administrator Resolution No. ZA2025-019 Page 3 of 8 10-18-21 5. The rear of the lot will be excavated to a finish grade similar to the majority of the lot for the primary residence and future development will not be visually impactful to the adjacent properties. Additionally, since the Project and future development will be situated in the rear of the Property, it will not be visible from the public right-of-way. 6. Should this modification permit be approved for the increase in height of retaining walls, future development in the rear yard will still be required to comply with the PC53 Zoning District and Title 20 (Planning and Zoning) of the NBMC development standards. Finding: B. The granting of the modification is necessary due to the unique physical characteristic(s) of the property and/or structure, and/or characteristics of the use; Facts in Support of Finding: 1. The elevation at the bottom of the slope is approximately 639 feet and the elevation at the top of the slope is approximately 656 feet. The grade differential within this rear area is approximately 17 feet, which is a slope over 30%. The Property is not limited by maximum site coverage as long as development conforms to the setbacks and height standards of the PC53 Planned Community. The Property has a required side setback of five-feet and a rear setback of 10-feet. However, the sloping rear of the property prevents development, such as accessory structures, without excavating the rear of the property. Therefore, the slope essentially acts as a 50-foot setback under current conditions. 2. The Applicant is requesting to construct concrete caisson/piles retaining walls in order to grade and expand the rear yard. A Preliminary Soils Engineering and Geologic Report was prepared by NTS Geotechnical, Inc. dated September 6, 2024, for the project. The report analyzed the Property and provided recommendations for the design and construction of the retaining walls. The report concluded that the Property can be developed without adverse impacts onto or from adjoining properties upon implementation of the recommendations contained within the report. 3. The Grading and Retaining Wall plans prepared for the Project are designed consistent with the recommendations of the Preliminary Soils Engineering and Geologic Report provided, including the proposed heights of the retaining walls. 4. Expansion of the rear yard would allow the Applicant to develop the rear of the Property in the future with structures that are accessory to the primary dwelling. This is consistent with neighboring properties that are able to develop the rear of the property with accessory structures for the full enjoyment of their properties. Any future development will be required to comply with development standards set forth in the PC53 Planned Community text and NBMC including, but not limited to, setbacks and height. Finding: Zoning Administrator Resolution No. ZA2025-019 Page 4 of 8 10-18-21 C. The granting of the modification is necessary due to practical difficulties associated with the property and that the strict application of the Zoning Code results in physical hardships that are inconsistent with the purpose and intent of the Zoning Code; Facts in Support of Finding: 1. Fact 1 in support of Finding B is hereby incorporated by reference. 2. In order to lower the grade in the rear of the Property to create a flat area for development, retaining walls up to 17 feet measured from finish grade are required. Pursuant to Section 20.30.040(A)(2) (Fences, Hedges, Walls, and Retaining Walls) of the NBMC, the maximum height of a retaining wall is limited to eight feet measured from finish grade at the base of the wall, not including any required guardrails. An increase in the height of a retaining wall may be requested with the approval of a Modification Permit. 3. Pursuant to Section 20.30.040(D) (Measurement of Fence or Wall Height) of the NBMC, the height of a fence, hedge, or wall shall be measured from existing grade prior to construction at the location where the fence, hedge, or wall is located. In the side and rear setback, the maximum allowed height of fences, hedges, and walls is six feet measured from existing grade. The retaining walls will generally follow the existing grade, and the tallest portion of the wall will be located along the rear property line and is less than three feet measured from existing grade prior to construction. 4. The intent of the NBMC to limit the height of retaining walls when measured from finish grade is to prevent tall walls that are visible from public right-of-ways and neighboring properties, especially when sloping hillsides are heavily excavated and the grade is lowered. The Project will consist of retaining walls that are completely contained to the backyard of the Property and built into the hillside. The retaining walls will not be visible from the public right-of-way including Whitesands Drive. Further, the height of the retaining wall will follow the height of the existing grade to decrease visibility to neighboring properties. Finding: D. There are no alternatives to the modification permit that could provide similar benefits to the applicant with less potential detriment to surrounding owners and occupants, the neighborhood, or to the general public; and Facts in Support of Finding: 1. Without granting approval of the modification permit, approximately 15-feet of the 50- foot sloping hillside could be excavated to ensure retaining walls do not exceed 8 feet when measured from finish grade. The Property has a rear setback of 10-feet and does not have a maximum site coverage. The sloping hillside prevents the Property from being developed to the allowed extent of the Property’s development standards. Zoning Administrator Resolution No. ZA2025-019 Page 5 of 8 10-18-21 2. The intent of the Project is to allow future development of accessory structures in the rear of the Property in conformance with the development standards of the PC53 Planned Community. Surrounding properties in this neighborhood are able to develop the entirety of their property with a primary dwelling and associated accessory structures without the limitation of a sloping hillside in the rear. 3. Excavation of the rear of the Property is allowed. However, in order to do so, retaining walls are required to support the hillside and adjacent properties that abut the side and rear. Limiting the height of the retaining walls to eight feet when measured from finish grade would only allow a portion of the rear yard to be useable. 4. An alternative design to excavate the rear of the Property would be to terrace the slope with a series of leveled flat areas and retaining walls that do not exceed the allowed height. This design would require compliance with Section 20.30.040(A)(2) (Fences, Hedges, Walls, and Retaining Walls) for the maximum height and separation of retaining walls. However, this would result in additional retaining walls that would continue to constrain the usable area in the rear of the property counterproductive to the Owner’s desired benefit. Furthermore, the proposed retaining wall would still be included in the design along with the lower retaining walls. As such, this approach would not lessen any potential detriment, nor would it provide a similar benefit to the Applicant. Finding: E. The granting of the modification would not be detrimental to public health, safety, or welfare, to the occupants of the property, nearby properties, the neighborhood, or the City, or result in a change in density or intensity that would be inconsistent with the provisions of this Zoning Code. Facts in Support of Finding: 1. Facts 2 and 3 in support of Finding B are hereby incorporated by reference. 2. The retaining walls will be located within the Property and will not create visual obstructions to the neighboring properties to the side and rear. The tallest portion of the retaining wall will be along the rear of the Property and will step down to approximately match the height of the existing grade before excavation. The proposed plans do not include a guardrail at the top of the slope. However, if a guardrail is required in the future to comply with the California Building Code (CBC), the guardrail would be 3.5 feet high, which is less than the maximum allowed height of 6 feet from existing grade in rear and side yard setbacks. 3. Any proposed future development on the Property will comply with all development standards of the PC53 Planned Community including, but not limited to, allowed uses, setbacks, height, and square footage. The Property will still maintain a single-unit- dwelling with accessory structures that is consistent with the neighborhood as well as the NBMC. Zoning Administrator Resolution No. ZA2025-019 Page 6 of 8 10-18-21 4. The Building Division has reviewed the Project and conditions of approval are included to ensure the Applicant is required to obtain all necessary permits and to demonstrate compliance with the California Building Code and other applicable Codes. 5. Approval of any City permits, including this modification permit, does not relieve the Applicant of the legal requirement to observe, covenants, conditions, and restrictions that may be recorded against the property or to obtain community association approvals. 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 (New Construction or Conversion of Small Structures) of the CEQA 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 the Modification Permit filed as PA2025-0012, 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 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 24TH DAY OF APRIL 2025. Zoning Administrator Resolution No. ZA2025-019 Page 7 of 8 10-18-21 EXHIBIT “A” CONDITIONS OF APPROVAL (Project-specific conditions are in italics) Planning Division 1. The development shall be in substantial conformance with the approved plans stamped and dated with the date of this approval (except as modified by applicable conditions of approval). 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 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 Modification Permit. 4. The Modification Permit (PA2025-0012) shall expire unless exercised within 24 months from the date of approval as specified in Section 20.54.060 (Time Limits and Extensions) of the NBMC, unless an extension is otherwise granted. 5. This Modification 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 are 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. 6. Fences, hedges, walls, and guardrails within required setbacks shall comply with the height requirements pursuant to Section 20.30.040 (Fences, Hedges, Wall, and Retaining Walls) of the NBMC when measured from the existing grade prior to construction. 7. Any change in operational characteristics, expansion in area, or other modification to the approved plans, may require an amendment to this Modification Permit or the processing of a new modification permit. 8. A copy of the Resolution, including conditions of approval Exhibit “A” shall be incorporated into the Building Division and field sets of plans prior to issuance of the building permits. 9. 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 Zoning Administrator Resolution No. ZA2025-019 Page 8 of 8 10-18-21 kept operable, including adjustments, replacements, repairs, and cleaning as part of regular maintenance. 10. Prior to the issuance of building permits, the Applicant shall pay any unpaid administrative costs associated with the processing of this application to the Planning Division. 11. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 (Community Noise Regulations) of the NBMC and other applicable noise control requirements of the NBMC. 12. 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 either the current business owner, property owner or the leasing agent. 13. Construction activities shall comply with Section 10.28.040 (Construction Activity – Noise Regulations) of the NBMC, 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, and 8:00 a.m. and 6:00 p.m. on Saturday. Noise-generating construction activities are not allowed on Sundays or Holidays. 14. To the fullest extent permitted by law, the applicant shall indemnify, defend and hold harmless the 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 Valencia Residence Retaining Walls including, but not limited to, Modification Permit (PA2025-0012). 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 the 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. Building Division 15. The Applicant is required to obtain all applicable permits from the City’s Building Division and Fire Department. The construction plans must comply with the most recent, City- adopted version of the CBC. 16. Prior to issuance of building permits, the Applicant shall submit a final soils engineering and geologic report. The report shall be subject to review and approval by the Building Division.