HomeMy WebLinkAbout2009-15 - Approving Zoning Code Amendment No. CA2005-009 for Property Located at 201-205, 207 Carnation Avenue, 101 Bayside Place (PA 2005-196)ORDINANCE NO. 200945
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH APPROVING ZONING CODE AMENDMENT NO. CA2005 -009
FOR PROPERTY LOCATED AT 201 -205, 207 CARNATION AVENUE
101 BAYSIDE PLACE (PA 2005 -196)
WHEREAS, an application was filed by Advanced Real Estate Services, Inc. with
respect to property located at 201 -205, 207 Carnation Avenue, and 101 Bayside Place
to construct an 8 -unit residential condominium development on a 1.4 acre site. The
applications filed are: General Plan Amendment No. GP2005 -006, Coastal Land Use
Plan Amendment No. LC2005 -002, Code Amendment No. CA2005 -009, Newport Tract
No. NT2005 -004 (TTM16882), Modification Permit No. MD2005 -087 and Coastal
Residential Development Permit No. CR2005 -002; and
WHEREAS, on February 22, 2007, April 5, 2007, and May 17, 2007, the
Planning Commission held noticed public hearings in the City Hall Council Chambers,
3300 Newport Boulevard, Newport Beach, California, at which time the applications,
project and a draft Mitigated Negative Declaration were considered. Notice of time,
place and purpose of the public hearing was given in accordance with law and
testimony was presented to and considered by the Planning Commission at the hearing.
At the conclusion of the public hearing, the Planning Commission adopted Resolution
No. 1723 recommending adoption of a draft Mitigated Negative Declaration (MND) and
approval of the applications to the City Council; and
WHEREAS, on August 14, 2007, the City Council held a noticed public hearing in
the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California,
at which time the applications, project and a draft Mitigated Negative Declaration were
considered. Notice of time, place and purpose of the public hearing was given in
accordance with law and testimony was presented to and considered by the City
Council at the hearing. At the conclusion of the public hearing the City Council identified
the predominant line of existing development ( PLOED) at 50.7 feet North American
Vertical Datum of 1988 (NAVD88) after considering the position of existing development
on the bluff face in relation to Carnation Avenue and its elevation above Newport Bay.
Since the proposed project was not consistent with the PLOED as required by the
policies of the 2005 Coastal Land Use Plan, further consideration of the proposed
project was postponed until such time that the project was revised to conform to the
PLOED; and
WHEREAS, subsequent to the August 14, 2007, City Council hearing, the
applicant revised the proposed project in accordance with the PLOED as established by
the City Council. Additionally, the applicant further revised the project to include a
proposed dock structure. A revised Mitigated Negative Declaration was prepared in
accordance with the California Environmental Quality Act; and
WHEREAS, on February 21, 2008, the Planning Commission held noticed public
hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach,
California, at which time the applications, the revised project and a revised draft
Mitigated Negative Declaration were considered. Notice of time, place and purpose of
the public hearing was given in accordance with law and testimony was presented to
and considered by the Planning Commission at the hearing. At the conclusion of the
public hearing, the Planning Commission adopted Resolution No. 1751 recommending
adoption of a revised draft Mitigated Negative Declaration (MND) for the revised project
and approval of the applications to the City Council; and
WHEREAS, on June 19, 2008, the Planning Commission held noticed public
hearings in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach,
California, at which time the applications, the revised project and a revised draft
Mitigated Negative Declaration were considered. Notice of time, place and purpose of
the public hearing was given in accordance with law and testimony was presented to
and considered by the Planning Commission at the hearing. At the conclusion of the
public hearing, the Planning Commission adopted Resolution No. 1761 recommended
adoption of a draft Mitigated Negative Declaration (MND) for the revised project and
approval of the applications to the City Council; and
WHEREAS, on July 8, 2008, the City Council held a noticed public hearing in the
City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California, at
which time the applications, revised project and a revised draft Mitigated Negative
Declaration were considered. Notice of time, place and purpose of the public hearing
was given in accordance with law and testimony was presented to and considered by
the City Council at the hearing. The City Council expressed several concerns including
the project's potential visual impact on the area and the City Council took no action; and
WHEREAS, subsequent to the City Council hearing on July 8, 2008, the City and
the applicant mutually agreed that an Environmental Impact Report would be prepared
for the project. pursuant to the California Environmental Quality Act; and
WHEREAS, a draft Environmental Impact Report (SCH #2007021054) has been
prepared pursuant to the Environmental Quality Act (CEQA), the State CEQA
Guidelines, and City Council Policy K -3. The DEIR was circulated for a 45-day comment
period beginning on March 20, 2009, and concluding on May 4, 2009. Comments and
responses to the comments were considered by the Planning Commission in its review
of the proposed project; and
WHEREAS, on May 21, 2009, and June 4, 2009, the Planning Commission held
a noticed public hearing in the City Hall Council Chambers, 3300 Newport Boulevard,
Newport Beach, California, at which time the applications, project and a draft
Environmental Impact Report (SCH #2007021054) were considered. Notice of time,
place and purpose of the public hearing was given in accordance with law and
testimony was presented to and considered by the Planning Commission at the hearing;
and
WHEREAS, pursuant to Section 20.94 of the Newport Beach Municipal Code,
the City Council held a noticed public hearing on July 14, 2009, to consider the
recommendation of the Planning Commission; and
WHEREAS, the City Council reviewed the Environmental Impact Report
(SCH #2007021054) and all comments related to it, and based on the administrative
record, the City Council made findings to certify Environmental Impact Report pursuant
to applicable laws prior to approving the project, including Code Amendment No.
CA2005 -009. The findings to certify the Environmental Impact Report are contained
within City Council Resolution No. 2009 -51 are incorporated herein by reference; and
WHEREAS, the City Council approved the proposed project including General
Plan Amendment No. GP2005 -006 and Coastal Land Use Plan Amendment No.
LC2005 -002 by adopting Resolution No. 2009 -52 and the findings to support this
approval are incorporated herein by reference; and
WHEREAS, Code Amendment No. CA2005 -009 is necessary to provide a
zoning designation for a portion of the property in question that is consistent with the
land use designation of the General Plan and Coastal Land Use Plan as modified by
General Plan Amendment No. GP2005 -006 and Coastal Land Use Plan Amendment
No. LC2005 -002; and
WHEREAS, the City Council finds that judicial challenges to the City's CEQA
determinations and approvals of land use projects are costly and time consuming. In
addition, project opponents often seek an award of attorneys' fees in such challenges.
As project applicants are the primary beneficiaries of such approvals, it is appropriate
that such applicants should bear the expense of defending against any such judicial
challenge, and bear the responsibility for any costs, attorneys' fees, and damages which
may be awarded to a successful challenger.
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN
AS FOLLOWS:
SECTION 1: A revision to Zoning Map depicted in Exhibit "A" is hereby
approved; however, the change shall not become effective until Coastal Land Use Plan
Amendment No. LC2005 -002 is approved by the California Coastal Commission.
SECTION 2. To the fullest extent permitted by law, applicant and property owner
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
this Project including, but not limited to, the approval of the General Plan Amendment
No. GP2005 -006, Coastal Land Use Plan Amendment No. LC2005 -002, Code
Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM 16882),
Amendment No. CA2005 -009, Newport Tract No. NT2005 -004 (TTM 16882),
Modification Permit No. MD2005 -087 and Coastal Residential Development Permit No.
CR2005 -002 and /or the City's related California Environmental Quality Act
determinations, the certification of the Environmental Impact Report, the adoption of a
Mitigation Program, and /or statement of overriding considerations for this Project. 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 the applicant or
property owner, City, and/or the parties initiating or bringing such proceeding. The
applicant and property owner 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.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. This Ordinance shall be published once in the official newspaper of
the City, and the same shall become effective thirty (30) days after the date of its
adoption.
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on the 14"' day of July, 2009, and adopted on the 28r' day
of July, 2009, by the following vote, to wit:
AYES, COUNCIL MEMBERS Henn, Curry, Webb, Daigle, Mayor Selich
NOES, COUNCIL MEMBERS
ABSENT COUNCIL MEMBER
7 APP OVED AS TO FORM:
C. - / 416�� -
OFFICE OF THE CIT TTORNEY
ATTEST:
CITY CLERK
Exhibit "A"
AERIE Condominiums (PA 2005 -196)
201 -205, 207 Carnation Ave. & 101 Bayside PI
Code Amendment No. CA2005 -009
STATE OF CALIFORNIA }
COUNTY OF ORANGE
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. 2009 -15 was duly and regularly introduced on the 14th day of July, 2009, and
adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held
on the 28th day of July, 2009, and that the same was so passed and adopted by the following vote, to
wit:
Ayes: Henn, Curry, Webb, Daigle, Mayor Selich
Noes: Rosansky, Gardner
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 29th day of July, 2009.
(Seal)
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } as.
CITY OF NEWPORT BEACH }
L LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify
that Ordinance No. 2009 -15 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 daily newspaper of
general circulation on the following date, to wit: August 4, 2009.
In witness whereof, I have hereunto subscribed my name this 1+r day of
2009.
City Clerk I
City of Newport Beach, California