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HomeMy WebLinkAbout14 - Appeal Variance No. VA2013-002 PA2013-086 - CorrespondenceThe City of Newport Beach Ben Zdeba, Planner Re: Hormann Remodel 419 -421 E. Balboa Blvd. Newport Beach VA2013 -002 (PA2013 -086) Dear Ben, E� A E PRINTED:" - ER to some new legal issues that have been brought to our attention late this afternoon, we respectfully request a continuance of hearing for a variance request scheduled for January 28, 2014 City Council Meeting. We need some additional time to try to resolve these issues prior to the public hearing, since they could have a direct impact on the outcome of this matter. Thank you very much for your consideration of our request. Very truly yours, John Loomis Thirtieth Street Architects, Inc. Cc: Sharon Hormann Gary Mobley, Esq. Received After Agenda Printed Agenda Item No. 14 Brown, Leilani January 28, 2014 From: Zdeba, Benjamin Sent: Tuesday, January 28, 2014 9:58 AM To: Brown, Leilani Cc: City Clerk's Office Subject: FW: Harmann Variance Appeal Correspondence received. BENJAMIN ZDEBA PH. (949) 644-3253 bzdeba0newPortbeachca.gov From: GEORGE HAJJAR [mailto:gohaiiarl(arnsn.com] Sent: Tuesday, January 28, 2014 9:35 AM To: Zdeba, Benjamin Subject: Harmann Variance Appeal Dear Mr. Zdeba My Name is George Hajjar, I am the owner of 414 E. Oceanfront, Newport Beach Ca. I am writing this letter to you & the city council to express my concern & strong objection to the Harmann's appeal of the Planning commission's August 22, 2013 decision to deny Variance # VA2013 -002. I believe that adding 1989 square feet to a structure that is already non conforming is way over board. The existing structure is very old & out of place. It is encroaching on the front & both side setbacks, which is a fire hazard. Personally, I have a problem with expanding the structure to such a large building for the following reasons: Since I have purchased my properties at 414 E. Oceanfront, I have trouble accessing my garage due to the way they park their cars. The cars stick out in the rear set back making it very difficult to pull into my garage. I have spoken to both Mr & Mrs Hormann & to their daughter asking if they would please park in such a way as to pull their trucks in further, but they would not do it. I even enlisted Mr. Cosylion's help, in code enforcement, to ask them to not encroach on the rear set back, but they still do. So if they are granted their appeal I am afraid the situation will get worse & I really won't be able to access my garage. In addition if they were to start from scratch they would only be able to put a structure smaller than 3000 square feet on that lot. They want it all, to keep their encroaches on the front & 2 side set backs & build this behemoth structure too! Please, I beg of you not to approve their appeal. They should comply with the existing rules of only adding 50% of the existing structure. Thank you for taking the time to read my letter & to taking my opinion into consideration. Respectfully George Hajjar 414 E. Oceanfront Newport Beach, Ca LAW OFFICES OF GARY S. MOBLEY GARY S. MOBLEY A RROFEMMAL CORPORATION 17011 BEACH BLVD., SUITE 900 ERICA L. MOBLEY HUNTINGTON BEACH, CALIFORNIA 92847 January 22, 2014 1r /I:1 Did I:11 li/l 4 EVI kill _AALTA[11:�'1 Aaron Harp, Esq., City Attorney CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, CA 92660 ahW@newportbeachca.gov Re: GREG AND SHARON HORMANN Variance Application No. PA2013 -086 Dear Mr. Harp: Agenda Item No. 14 01 -28 -14 Public Comments TELEPHONE (714) 988 -8181 TELECOPIER (714) 375 -8872 This firm represents Greg and Sharon Hormann ( "Hormanns ") in connection with the appeal of the denial of their application for a variance to remodel their residence located at 417 and 419 East Balboa Blvd., Newport Beach, CA ( "Subject Property"). This application seeks a variance from the City's front yard and side yard setback requirements in order to remodel an existing 1,785 square -foot duplex and add 1,989 square feet to the rear of the property, including a required two -car garage and attached two -car carport. This application has the support of the Fire Department because of the use of fire -rated materials in the side walls used in the original construction. This matter is set for hearing before the city council on Tuesday, January 28, 2014. The need for this variance arises from the fact that, when this residence was originally constructed in 1940, the property was zoned C -1 and was developed as a mixed commercial/residential property, which was not subject to any front yard or side yard setbacks. However, in 1972, this property was rezoned from C -1 to two -unit residential (R -2), making this property non - conforming with respect to the side yard and front yard setback requirements. Later, in 2010, the City adopted NBMC Section 20.38.040, which limits additions to legal non - conforming structures to 50% of the existing gross square foot area of the building. Further, under other provisions of the Newport Beach Municipal Code, any remodel must include construction of a two -car garage, which further restricts the buildable square footage of any addition to this property. Thus, literal application of NBMC Section 20.38.040 to the, Subject Property would effectively prohibit the remodel of this duplex by making it more expensive to remodel than it would be to demolish and erect a new structure. When this issue first arose, the Hormanns' architect met with the Jay Garcia, former Senior Planner of the LAW OFFICES GARY S. MOBLEY A PROFESSIONAL CORPORATION Aaron Harp, Esq., City Attorney CITY OF NEWPORT BEACH January 22, 2014 Page 2 Community Development Department. After reviewing the facts, Mr. Garcia recommended the filing of the variance and indicated that Staff would support the project. However, after Mr. Garcia retired, current staff opposed the project, and the variance application was denied by the planning commission resulting in this appeal. I am writing to address a legal issue that arose during the planning commission hearing, which has direct relevance to the upcoming city council hearing. Specifically, in denying this variance, one of the planning commissioners commented that, although he would like to support the project, as a matter of law, the special circumstances necessary to establish a variant must relate to the physical aspects of the property, not the application of zoning regulations to the property. Similar comments are contained in the staff report to the commission. However, that is not an accurate statement of California law. Indeed, this arument was specifically rejected in Craik v. County of Santa Cruz (2000) 81 Cal.App.4` 880, 890, which held that the "special circumstances" necessary to establish a variance can be established by the application of governmental regulations to the property. A copy of the Craik case is attached. The facts in Craik are remarkably similar to the present case. In Craik, as in the present case, the applicant sought to remodel an existing residence built in the 1960s, years before the current general plan, FEMA regulations and related County regulations sharply limited development of the property. The applicant sought six variances, including a variance to exceed the two -story limit on residences, the variance to exceed a 28 -foot height limit, a variance to reduce a 20 -foot front yard setback and a variance to exceed the 50% floor -area ratio contained in the current ordinance. Many of the variances were sought on the basis that the FEMA regulations and related County regulations did not make the project viable without the variances. The variances were granted by the County, but an adjacent property owner sought a writ of administrative mandamus contending that a variance can only be granted where there are "physical" disparities between the subject property and other properties in the area, not because of application of FEMA and related County regulations. The Court of Appeal rejected this argument and denied the writ of administrative mandamus, reasoning: "[T]here is no authority to support that a "physical" disparity is a precondition for a variance. Government code section 65906 requires variances to be granted variances to be granted `because of special circumstances applicable to the property.' .. . LAW OFFICES GARY S. MOBLEY A PROFESSIONAL CORPORATION Aaron Harp, Esq., City Attorney CITY OF NEWPORT BEACH January 22, 2014 Page 3 Thus, defendant was not barred from considering the FEMA and related county regulations as special circumstances." Id, 81 Cal.App.4" at 890. The same situation is present here. In this case, strict application of the City's zoning laws to the Subject Property, including the 50% limitation on additions and the requirement that a required garage be included in the square footage formula, prohibits any effective development of the property and prevents the Hormanns from enjoying similar rights granted to adjoining property owners. Under Craik, the city council can properly consider the effect of application of the zoning restrictions relating to nonconforming structures in determining whether "special circumstances" exist for granting a variance. Thus, assuming the other criteria for a variance are present, the Hormanns are entitled to a variance. Accordingly, after you have had a chance to review these materials, including the Craik case, I request that you clarify with the planning staff and city council that the zoning restrictions relating to this nonconforming structures may properly be considered by the city council in deciding whether to grant this variance. I look forward to our opportunity to discuss this issue further with you tomorrow morning at 9:00 a.m. Please call me if you have any questions. Very truly yours, 7 fobley Ga i S. CC: John Loomis (via email) client 880 CRAIK V. COUNTY OF SANTA CRUZ 81 Cal.App.4th 880; 96 Cal.Rptr.2d 538 [May 20001 [No. H020690. Sixth Dist. May 3, 2000.1 JIM CRAIK et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Respondents; NORMA P. ODENWELLER et al., Real Parties in Interest and Respondents. SUMMARY In administrative mandamus proceedings brought,by landowners against a county, the trial court refused to disturb defendant's approval of six vari- ances and related building permits for the construction of a residence by plaintiffs' next -door neighbors that deviated from state and local zoning laws. The court entered judgment for defendant. (Superior Court of Santa Cruz. County, No. CV134743, Richard J. McAdams,, Judge,) The Court of Appeal affirmed the judgment. The court held that the trial court did not abuse its discretion in refusing to disturb the county's approval of the variances. A physical disparity was not a precondition for a variance. Gov. Code, § 65906, requires variances to be granted because of special circumstances applicable to the property. The local county code adopted the same concept. "Special circumstances" emphasizes only undefined dis- parities between properties. Thus, defendant was not barred from consider- ing the Federal Emergency Management Agency (FEMA) and related county regulations as special circumstances. Further, although the FEMA and re- lated county regulations may abstractly apply to everyone, in reality, the regulations only affected the land of plaintiffs' next -door neighbors and a few other vacant parcels. Thus, defendant could reasonably accept that there was a disparity between properties. (Opinion by Premo, Acting P. J., with Bamattre- Manoukian and Wunderlich, JJ., concurring.) HEADNOTES Classified to California Digest of Official Reports (1) Zoning and Planning § 36— Variances — Judicial Review —Stan- dard and Scope of Review.—Although the adoption of zoning regu- lations is a legislative function, a local government's granting of a CRUZ 4; CRAIK V. COUNTY OF SANTA CRUZ 20001 81 Cal.App.4th 880; 96 Cal.Rptr.2d 538 [May 20001 881 variance is a quasi - judicial, administrative act subject to judicial review under Code Civ. Proc., § 1094.5. The statute clearly contemplates that at minimum, the reviewing court must determine both whether substan- tial evidence supports the administrative agency's findings and whether the findings support the agency's decision. In determining whether the findings are supported, the reviewing court may not isolate only the evidence that supports the administrative finding and disregard other relevant evidence in the record. On the other hand, neither the appellate court nor the trial court may disregard or overturn the finding for the reason that it is considered that a contrary finding would have been equally or more reasonable, �° (2) Zoning and Planning § 36- Variances - Judicial Review—Stan- dard and Scope of Review— Determinations.—In determining I a whether a local government's granting of a variance is supported, the xi—court requires the findings to bridge the analytic gap between the raw by evidence and ultimate decision or order. The findings need not be rg stated with the precision required in judicial proceedings. They may to properly incorporate matters by reference, and even omissions may sometimes be filled by such relevant references as are available in the d record. Thus, where'reference to the administrative record informs the 1 parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision, the decision should be t upheld if the agency in truth found those facts that as a matter of law are essential to sustain its decision. In making these determinations, the reviewing court must resolve reasonable doubts in favor of the admin- istrative findings and decision. However, despite the applicability of the substantial evidence rule and the deference due to the administra- tive findings and decision, judicial review of zoning variances must not be perfunctory or mechanically superficial. (3) Zoning and Planning § 36— Variances — Judicial Review— Propri- ety of County's Grant of Variances- Special Circumstances. -In administrative mandamus proceedings brought by landowners against a county, the trial court did not abuse its discretion in refusing to disturb the county's approval of six variances and related building permits issued by the county for the construction of a residence by plaintiffs' next door neighbors that deviated from state and local zoning laws. A physical disparity was not a precondition for a variance. Gov." Code; § 65906, requires variances to be granted because of special circum- stances applicable to the property. The local county code adopted the same concept. "Special circumstances" emphasizes only= undefined disparities between properties. Thus, defendant was not barred from 882. CRAIK V. COUNTY OF SANTA -CRUZ 81 Cal.AppAth 880; 96 Cal.Rptr.2d 538 [May 2000] considering the Federal Emergency Management Agency (FEMA) and related county regulations as special circumstances. Further, although the FEMA and related county regulations may abstractly apply to everyone, in reality, the regulations only affected the land of plaintiffs' next -door neighbors and a few other vacant parcels. Thus, defendant could reasonably accept that there was a disparity between properties. That the abstract effect of the regulations suggested a need to rezone did not negate that the practical effect was limited and could be considered disparate. Finally, the county's residential site and develop- ment standards ordinance could be construed as explicitly stating that the county's general plan, which allows a maximum of two 'stories, could be modified by a variance allowing three stories. [See 8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 866 et seq.] COUNSEL Douglas E. Marshall; McCutchen, Doyle, Brown' & Enersen, Geoffrey, L. Robinson and Marie A. Cooper for Plaintiffs and Appellants. Dwight L. Herr, County Counsel, and Rahn Garcia, Assistant County Coun- sel, for Defendant and Respondent County of Santa Cruz. Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriguez, Assistant Attorney General, and Joseph C. Rusconi, Deputy Attorney General, for Defendant and Respondent Califor- nia Coastal Commission. Bosso, Williams, Sachs, Atack & Gallagher, John M. Gallagher and Peter L. Sanford for Real Parties in Interest and Respondents. OPINION PREMO, Acting P. J. Plaintiffs Jim Craik and Judi Craik appeal from an adverse judgment on their petition for writ of mandate. The petition chal- lenged the approval of several variances and related building permits by defendant County of Santa Cruz. Real parties in interest Norma P. Oden- welter and Robert W. Fleck, plaintiffs' next -door neighbors, had sought the CRAM V. COUNTY OF SANTA CRUZ 883 81 Cal.App.4th 880; 96 Cal.Rptr.2d 538 [May 2000] variances for the construction of a residence. Plaintiffs contend that defend- ant abused its discretion in certain respects. We disagree and affirm the judgment.I LEGAL BACKGROUND AND SCOPE OF REVIEW "A comprehensive zoning plan could affect owners of some parcels unfairly if no means were provided to permit flexibility. Accordingly, in an effort to achieve substantial parity and perhaps also in order to insulate zoning schemes from constitutional attack, our Legislature laid a foundation for the granting of variances. Enacted in 1965, section 65906 of the Gov - ernment Code establishes criteria for these grants; it provides;: `Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification. [4] Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges rnconsis- tent with the limitations upon other properties in the vicinity and zone in which such property is situated.' [4] Applicable to all zoning jurisdictions except chartered cities [citation], section 65906 may be supplemented by harmonious local legislation." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 511 [113 Cal.Rptr. 836, 522 P.2d 12], fns. omitted.) <;a E We note that defendant has enacted a harmonious ordinance. Santa Cruz rney County Code section 13.10.230(c) requires three findings before a variance h C. may be granted: "1. That because of special circumstances applicable to the ifor- property, including size, shape, topography, location, and surrounding exist - ing structures, the strict application of the Zoning Ordinance deprives such ' property of privileges enjoyed by other property in the vicinity and under r L. identical zoning classification. [Q] 2. That the granting of such variance will be in harmony with the general intent and purpose of zoning objectives and ' -� !Plaintiffs' petition also challenged certain findings made by defendant California Coastal Commission in a decision that declined to hear an appeal of defendant county's action. According to plaintiffs, they brought the appeal to ensure that they exhausted all administra- tive remedies and do not quarrel with defendant commission's discretionary decision against hearing the appeal; but they fear that, if they prevail against defendant county, the victory will an be hollow because the findings made by defendant commission will have a res judicata effect. tal- Since plaintiffs are not prevailing against defendant county, the contingency plaintiffs antici- by pated will not occur. We therefore do not address the arguments concerning defendant en- commission, which include at the threshold whether there (1) is a justiciable controversy the given that plaintiffs challenge findings but not a decision, and (2) can be a resjudicata effect of 'findings" without a final decision on the merits. 884 CRAM V. COUNTY OF SANTA CRUZ 81 Ca1.AppAth 880; 96 Ca1.Rptr.2d 538 (May 2000] will not be materially detrimental to public health, safety or welfare or injurious to property of improvements in the vicinity. [Q] 3. That the granting of such variance shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such is situated." (1) A local government's grant of a variance is a quasi - judicial act subject to judicial review under Code of Civil Procedure section 1094.5. (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 514.) "Section 1094.5 clearly contemplates that at minimum, the reviewing court must determine both whether substantial evidence supports the administrative agency's findings and whether the findings support the agency's decision. Subdivision (b) of section 1094.5 prescribes that when petitioned for a writ of mandamus, a court's inquiry should extend, among other issues, to whether `there was any prejudicial abuse of discretion.' Subdivision (b) then defines `abuse of discretion' to include instances in which the administrative order or decision `is not supported by the findings, or the findings are not supported by the evidence.' (Italics added.) Subdivi- sion (c) declares that `in all .. . cases" (italics added) other than those in which the reviewing court is authorized by law to judge the evidence independently, `abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.' [Citation]" (Id. at pp. 514 -515, original italics, fn. omitted.) In determining whether the findings are supported;. "[w]e may not isolate only the evidence which supports the administrative finding and disregard other relevant evidence in the record. [Citations.] On the other hand, neither we nor the trial court may disregard or overturn the . . finding "'for the reason that it is considered that a contrary finding would have been equally or more reasonable.. [Citations.]" (Northern Inyo Hasp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 24 [112 Cal.Rptr. 872].) (2) In determining whether the decision is supported, we require the findings to "bridge the analytic gap between the raw evidence and ultimate decision or order. (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 515.) The findings need not be stated with the precision required in judicial proceedings. (Id. at p. 517, fn. 16.) They may properly incorporate matters by reference and even omissions may some- times be filled by such relevant references as are available in the record. (McMillan v. American Gen. Fin. Corp. (1976) 60 Cal.App.3d 175, 183 -184 [131 Cal.Rptr. 462].) "Thus, where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency CRAIK V. COUNTY OF SANTA CRUZ 81 Cal.AppAth 880; 96 Cal.Rptr.2d 538 [May 2000] 885 has arrived at its ultimate finding and decision it has long been recognized that the decision should be upheld if the agency `in truth found those facts which as a matter of law are essential to sustain its ... [decision].' [Citations.]" (Id. at p. 184.) "In making these determinations, the reviewing court must resolve reason- able doubts in favor of the administrative findings and decision." (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 514.) Topanga makes clear, however, "that despite the applicability of the substantial evidence rule and the deference due to the administrative findings and decision, judicial review of zoning variances must not be perfunctory or mechanically superficial." (Orinda Assn. v. Board of-Supervisors (1986) 182 Cal.App.3d 1145, 1161 [227 Cal.Rptr. 688].) "Whereas the adoption of zoning regulations is a legislative function [citation], the granting of variances is a quasi-judicial, administrative one:. [Citations.] If the judiciary were to review grants of variances superficially, administrative boards could subvert this intended decision - making structure. [Citation.] They could `[amend] ...'the zoning code in the guise of a variance' [citation], and render meaningless applicable state and local leg- islation prescribing variance requirements. [If] Moreover, courts must mean - ingfully review grants of variances iri order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all; is similar in some respects to a, contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual 'restriction can enhance total' community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests." (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at pp. 517 -518.) We apply the above principles in the same manner as the trial court. (Orinda Assn. v. Board of Supervisors, supra, 182 Cal.App.3d 1145, 11610 Though the trial court's conclusions and disposition do not factor into our analysis, we acknowledge and appreciate the assistance of the trial court given via its detailed tentative decision. FACTUAL BACKGROUND Beach Drive in Aptos is immediately adjacent to Rio Del Mar Beach. Defendant's 1994 general plan regulates this area since it falls within 886 CRAIK V. COUNTY OF SANTA CRUZ 81 Cal.AppAth 880; 96 Cal.Rptr.2d 538 [May 2000] defendant's "Urban Services Line." Relevant to the instant issues, the gen- eral plan generally prohibits -three -story homes. The 400 block of Beach Drive is zoned R -1 -8 (residential, 8,000 - square -foot lots); the rest of Beach Drive (and some inland areas) is zoned R -1 -6 (residential, 6,000 - square -foot lots) or RB (residential beach). Zoning restrictions on Beach Drive generally include height limits, floor -area ratio, and lot line setbacks. Beach Drive is also within a wave -runup hazard zone for purposes of restrictions imposed by the Federal Emergency Management Agency (FEMA). FEMA generally prohibits livable space on ground level. This prohibition specifically amounts to a requirement that the lowest habitable level of a residence on Beach Drive must be 22 or 23 feet above mean sea level. Most of Beach Drive is built out with residences of the same general size and design.. Most of the residences were developed before the existing general plan, zoning ordinance, and FEMA regulations became effective. And most do not comply with current lot line setbacks. Some have been allowed variances for setbacks, height limits, and floor -area ratios. Nineteen of 61 homes are three stories. In 1996, one family owned 415 and 413 Beach Drive. A residence was on 415, and a garage and parking area were on 413. In late 1996, plaintiffs purchased 415 and real parties in interest purchased 413. Soon thereafter, real parties submitted building; plans to defendant. Defendant's zoning ad- ministrator approved the plans over plaintiffs' objections. Plaintiffs unsuc- cessfully appealed the decision to defendant's planning commission. Plain- tiffs then appealed. the commission's decision to defendant's board of supervisors. The board declined to hear the matter, but remanded to the commission to reconsider a 'variance pertaining to floor -area ratio. The commission reconsidered and approved the variance. Plaintiffs then appealed the decision to the board of supervisors. The board declined to hear the matter. Plaintiffs then instituted this action and the Coastal Commission proceeding.z Defendant granted real parties interest six variances: 1. A variance to exceed the two -story limit, allowing three stories. 2. A variance to exceed a 28 -foot height limit, allowing 32 feet. 3. A variance to reduce a 20 =f6ot front yard setback, allowing t6 feet (and 8 feet for a second story deck). 4. A variance to exceed a 50 percent floor -area ratio, allowing 53 percent house -to -lot coverage. 2Plaintiffs later amended their petition to add the Coastal Commission as a defendant. 1 t l c s s s L c v It Sfeet ......................... ,,..... ...� ... ...� ..,,.F..., ratio variance is necessary. g 53 ; "Due to the steep coastal bluff at the rear of the property, proposed to be retained by a,12 foot high engineered wall to deflect potential slides, the entire back yard is unsuitable for a deck/patio or recreational area, as this rt. '" area is reserved for storage of landslide debris in the event of a slope failure TA CRUZ CRAIK V. COUNTY OF SANTA CRUZ 887 Way 2000] 81 Cal.AppAth 880; 96. Cal.Rptr.2d 538 [May. 20001 r the gen- 5. A variance to allow a second story deck. f Beach f Beach 6. A variance to exceed a 50 percent limit on front yard space to be used are -foot for parking. -nerally Defendant's findings were as follows: mposed =u? ;nerally ;ifically "l. THAT BECAUSE OF SPECIAL CIRCUMSTANCES APPLICABLE TO Ince on THE PROPERTY, INCLUDING SIZE, SHAPE, TOPOGRAPHY, LOCATION, OR EX- ISTING SURROUNDING STRUCTURES, THE STRICT APPLICATION OF THE ZON- ING ORDINANCE DEPRIVES SUCH PROPERTY OF PRIVILEGES ENJOYED BY ral "`si iAfii ze s OTHER PROPERTY IN THE VICINITY AND UNDER IDENTICAL ZONING CLAS- 7xisting -_ SIFICATION. Fective. e been "Special circumstances applicable to this property to justify the granting ineteen of a variance to development regulations concerning the height, number of stories, parking on more than 50 percent of the front setback, a reduced front setback and an increased floor area ratio, include the shape of the parcel, the was on size of useable area on the parcel, the lack of developable area on the parcel, Iintiffs' the topography of the parcel, the location of the parcel; and the size' and eafter, ng ad confg ration of other houses in the vicinity. A narrow 35 foot property width. provides limited area for development as required 5 foot side setbacks unsuc- plain- leave a 25 foot wide building envelope. ird' of "The, to the project site is further constrained' by existing topography. It is ,. The located below an eroding coastal bluff to the rear of the lot, and in a coastal Sealed wave run-up and/or flooding zone which requires elevation of any structure ar the above 23 feet mean sea level at the front of the lot. The proposed structure ission would exceed the 28 foot height limit by four feet, exceed the two story x height limit and exceed the 50 percent floor area ratio by about 3 percent, so that the first level would provide the necessary flood elevation required by the geologic report completed for the property and by General Plan policies 6.4.2 and 6.4.3; and by FEMA which regulate development in flood hazard areas. Without counting the non - habitable FEMA floor, the house would ..,oat ti.- n --..,— .,t ;_ «e,,,,,.o..,o.,t ,.o cn e. o t e :.,;.e t1,;� --- Sfeet ......................... ,,..... ...� ... ...� ..,,.F..., ratio variance is necessary. g 53 ; "Due to the steep coastal bluff at the rear of the property, proposed to be retained by a,12 foot high engineered wall to deflect potential slides, the entire back yard is unsuitable for a deck/patio or recreational area, as this rt. '" area is reserved for storage of landslide debris in the event of a slope failure 888 CRAIK V. COUNTY OF SANTA CRUZ 81 Cal.App.4th 880; 96 Cal.Rptr.2d 538 [May 2000] above the site which would flow into the rear yard. Such a landslide could open space area for the'single- family dwelling. "The vast majority of existing surrounding structures enjoy reduced front and/or side setbacks and the strict application of the zoning ordinance would prevent this property owner from utilizing this site to the same extent as other properties in the vicinity under identical R -1 -8 zoning. The majority of "Required on -site parking takes up more than 50 percent of the 35 foot wide front yard, but provides a total of three spaces on -site so that this property does not compete with coastal visitors for access to public on- street parking on Beach Drive. The proposed deck encroachment to within 8 feet of the front property line and 16 feet to the residence, provides needed open space area for the single - family dwelling. "2. THAT THE GRANTING OF THE VARIANCE WILL. BE IN HARMONY WITH THE GENERAL INTENT AND PURPOSE OF ZONING OBJECTIVES AND WILL NOT BE MATERIALLY DETRIMENTAL TO PUBLIC HEALTH, . SAFETY, OR WELFARE OR INJURIOUS TO PROPERTY OR IMPROVIEMENTS IN THE VICIN- ITY. "Compliance with mitigation measures required by technical studies ac- cepted by the Planning Department [reference] will insure that the granting of a variance to construct the proposed single - family dwelling shall not be materially detrimental to the public health, safety or welfare or be injurious to property or improvements in the vicinity. The residence is required to be elevated above 23 feet mean sea level with no habitable features on the ground floor and constructed with breakaway walls and a collapsible garage door. No mechanical, electrical or plumbing equipment shall be installed below the base flood elevation. An engineered 12 foot high retaining wall is to be constructed behind the house to stabilize the base of the coastal bluff above the residence. The rear yard is to be free of obstructions so that there is nothing substantial to deflect slide debris onto adjacent properties. rA CRUZ - CRAIK V. COUNTY OF SANTA CRUZ 889 /lay 20001 „ !. 81 Cal.AppAth 880; 96 Cal.Rptr.2d 538 [May 2000] e could ?,. `r; "3. THAT THE GRANTING OF SUCH VARIANCES SHALL NOT CONSTITUTE hiS rear A GRANT OF SPECIAL PRIVILEGES, INCONSISTENT WITH THE LIMITATIONS makes "° - UPON OTHER PROPERTIES IN THE VICINITY AND ZONE IN. WHICH SUCH IS useable SITUATED. vard on ug fired. "The granting of a variance to reduce the front setback from the required oposed 20 feet to about 16 feet to the dwelling and about 8 feet to the edge of the e a 16 cantilevered second floor deck; to increase the maximum height from 28 feet cl deck �` to about 32 feet; to allow three stories; to allow parking to exceed a nkiied . ` maximum of 50 percent of the required front yard, and to allow an increase ' in the floor area ratio from 50 percent to about 53 percent will not constitute a grant of special privilege to this parcel as similar variances have been 3 front granted in the R -1 -8 zone district and immediate vicinity. The variance would would provide -a remedy for the .proposed infill development of a singe - ent as family residence consistent with the existing surrounding development. n'ty of ' dating w "The County has considered and approved similar variance requests with existing surrounding development. Reduced setbacks have been granted at 5 foot 5 APN's 043- 105 -03, -06, and -22 for example, under Applications #97 -0387 it this (reduced side setback from 5 feet to 3 feet), #86 -45 -V (reduced 5 feet street setbacks to 3 feet and zero feet), and #4780 (reduced front setback from 10 8 feet feet to 5 feet). A permit for a fence greater than 6 feet in the required side yard was also granted at 043- 105 -15 under Application ##91 -0608. Open "A field survey and aerial photographs indicate that the majority of BONY existing homes along Beach Drive have front setback of ten feet or less, so AND that the proposed project being set back 16 feet to the proposed residence ,ETY, and 8 feet to the second level deck, would not constitute a grant of special ICIN- privilege inconsistent with existing surrounding development. A field survey has shown that there are at least 19 other three -story homes on Beach Drive, s ac- y surrounding development:" ,(Underscoring in Original.) ifing _ it be DISCUSSION- •ious o be (3) Plaintiffs generally' explain their abuse -of- discretion argument as the follows: "The fundamental problem with the County's actions is its failure to rage it, _ act according to a development plan. State Planning and Zoning laws require died the County to plan for anticipated development, and then to implement that 11 is plan with each and every project approval. They preclude the County from duff making ad hoc decisions, on a parcel -by- parcel basis, regarding appropriate Iere V development. [q] .. , . [q] The County's,violation of this fundamental premise of the State Planning and Zoning laws took two forms: the County approved First, there is no authority to support that a "physical" disparity is a "° "' 890 CRAIK V. COUNTY OF SANTA CRUZ C AIKV. C( 81 Cal.AppAlh 880; 96 Cal.Rprr.2d 538 [May 2000] 81 Cal.App.4t variances from its Zoning Code when no justification for a variance was ar as excel present, and it adopted a new exception to its General Plan when the Plan S dards c contains no such exception." (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, The RSL Plaintiffs specifically argue that variances can only be granted in the 4 of stories iI presence of "physical" disparities between the subject property and other 2 S tion 13 . properties in the zone. They urge that the record contains no evidence of any H it]." (Sa physical disparity. They continue that 413 Beach Drive is a narrow, 35-foot- equ ly reas< the pecific e wide lot, backing up against an eroding coastal bluff. They point out that laintiffs these characteristics are common to all of the lots in the R -1 -8 zone of the th RSDSC 400 block of Beach Drive. They urge that defendant's'reliance on the FEMA Si ce real 1 and related county regulations is erroneous because, since all built -out pl 'ntiffs re . properties are subject to the regulations upon a remodel or reconstruction, tl general the regulations constitute a reason to rezone rather than a physical disparity P intiffs ] justifying a variance. We disagree with this analysis. gain, pl tion is unreasonable. We therefore defer to defendant's construction. (Ander- fa r of the First, there is no authority to support that a "physical" disparity is a "° "' precondition for a variance. Government Code section 65906 requires vari- ances to be granted "because of special circumstances applicable to the property." (Italics added.) The Santa Cruz County Code adopts the same' shal applyD sh re in thi concept (special circumstances). And the leading case in this area interprets abs nt a var the concept as emphasizing only undefined "disparities between properties." (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, hus, the 11 Cai.3d at p. 520, italics in original.) Thus, defendant was not barred ruing th from considering the FEMA and related county regulations as special go Th ugh plai circumstances. rath r than e: And second, though the FEMA and related county regulations may ab- equ ly reas< the pecific e stractly apply to everyone (contraindicating adisparity), in reality,, . the Lin "except regulations only impact the land of real parties and a few other vacant had g to epi parcels. Thus, defendant could reasonably accept that there is a disparity of is own between properties. That the abstract impact of the regulations, suggests a Arb radon E need to rezone does not negate that the practical impact is limited and could be considered disparate. The point here is that plaintiffs define disparity in P intiffs ] one way and defendant defines disparity in another way. Neither construc- Sion in the se tion is unreasonable. We therefore defer to defendant's construction. (Ander- can t be tr, son v. San Francisco Rent Stabilization &Arbitration Bd. (1987) 192 the r cord, tl Ca1.App.3d 1336, 1343 [237 Cal.Rptr. 894].) ezis no ex] ' Y edu ed setb; Plaintiffs next specifically argue that one of the variances is inconsistent or 2 feet w; with the general plan to the extent that it allows a three -story home. W reiten Defendant's general plan states: "Residential structures shall be limited to ,r- Find ngs mu two stories in urban areas and on parcels smaller than one acre in the rural tia. ( opangt QTA CRUZ CRAIK V. COUNTY OF SANTA CRUZ 891 [May 2000] " '' 81 Cal.AppAth 880; 96 Cal.Rptc2d 538 [May 2000] Ince was areas except where explicitly stated in the Residential Site and Development the Plan ' Standards ordinance [ RSDSO]." "Outside The RSDSO states, in part: the Urban Services Line, the number d in the of stories in a residential ,structure shall not be limited by the provisions of nd other ` Section 13.10.323(b) [generally reaffirming the general plan's two -story e of any limit]." (Santa Cruz County Code, § 13.10.323(e)4.) 35- foot -, out" that ,.y. w Plaintiffs claim that the only explicit exception to the two -story limit in e of the the RSDSO is for residential structures outside the Urban Services Line. - FEMA Since real parties in interest's property is inside the Urban Services Line, wilt -out plaintiffs reason that the variance allowing three stories is inconsistent with ruction, the general plan. isparity Again, plaintiffs argue for an interpretation of this statutory interplay in favor of their point of view and refuse to accept that defendant adopted a ty is a reasonable, contrary interpretation. :s vari- to, the The RSDSO also states: "The [maximum- number -of- stories] standards same t shall apply within all residential `B' zone districts, except as noted else - erprets where in this Section and uses inconsistent therewith shall be prohibited xties." absent a variance approval." (Santa Cruz County Code, § 13.10.323(b).) supra, barred Thus, the RSDSO can be construed as explicitly stating that the standards special governing the maximum number of stories can be modified by a variance. Though plaintiffs characterize the variance - approval exception as generic gather than explicit, the argument simply constitutes a point of view. Another 4y ab- equally reasonable point of view is that the variance - approval exception is the the specific exception to the general plan while the outside- Urban- Services- Y Line "exception" is, more accurately, an exemption from the burden of iacant having to apply for a variance. Again, we defer to defendant's construction having parity its own ordinance. (Anderson v. San Francisco Rent Stabilization & Arbitration Bd., supra, 192 Cal.App.3d at p. 1343.) could ity in Plaintiffs finally argue that defendant's findings do not support the deci- 3tru0- Sion in the sense that the analytic path between the evidence and conclusions ader- cannot be traced. They complain that the findings are scattered throughout 192 the record, the number and character of the variances are uncertain, and there exists no ,explanation why the setbacks are so large, all the stories have a reduced setback, the third story deck was needed, and 32 feet rather than 28 stent or 29 feet was needed. There is no merit to these claims. We reiterate that findings need not be stated with judicial formality. ;d to Findings must simply expose the mode of analysis, not expose every minu- -ural tia. (Tapanga Assn. for a Scenic Community v. County of Los Angeles, supra, 892 CRAIK V. COUNTY OF SANTA CRUZ 81 Cal.App.4th 880; 96 Cal.Rptr2d 538 [May 20001 11 Cal.3d at p. 517, fn. 16.) Here, we have identified six clearly defined variances. And we have no trouble following defendant's analysis. The property in question is small and the backyard is unusable. Hence, the need for a forward -set building site and decks. The proposed structure cannot be occupied in the first 23 vertical feet. Hence, the need for four additional feet and an extra story. DISPOSITION The judgment is affirmed. Bamattre - Manoukian, J., and Wunderlich, J., concurred. LAW OFFICES OF GARY S. MOBLEY GARY S. MOBLEY A PROFESSIONAL CORPORATION 17011 BEACH BLVD., SUITE 900 ERICA L. MOBLEY HUNTINGTON BEACH, CALIFORNIA 92647 January 28, 2014 HAND DELIVERY City Clerk CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, CA 92660 aharp! ,newportbeachca.go Re: GREG AND SHARON HORMANN Appeal of Denial of Variance Application Case No. VA2013 -002 Dear Clerk: "RECEN D AFTER AGEIIMA PliIsED;" _g 1 J.'.2 q • 1 TELEPHONE (714) 968 -8181 TELECOPIER (714) 375 -6672 This firm represents Greg and Sharon Hormann ( "Hormanns ") in connection with the appeal of the denial of their application for a variance to remodel their residence located at 417 and 419 East Balboa Blvd., Newport Beach, CA ("Subject Property "). This application seeks a variance from the City's front yard and side yard setback requirements in order to remodel an existing 1,785 square -foot duplex and add 1,989 square feet to the rear of the property, including a required two -car garage and attached two -car carport. This matter is set for hearing before the city council on Tuesday, January 28, 2014. I am writing this letter to address two issues in connection with this pending appeal. I request that this a copy of this letter and the accompanying attachments be provided to the city council members in advance of the hearing and made part of the administrative record. 1. Request for a Continuance. At the hearing, applicants will be requesting a continuance of the city council hearing in order to address a legal issue that arose yesterday afternoon, which we believe will prevent the applicants from having a fair hearing on the merits of their variance application. At that time, the applicants learned the city attorney has apparently advised the city council recently that, in his opinion, the city council cannot legally grant this variance because this application seeks a variance from application of an ordinance that has citywide application, which he does not believe can legally support a variance. Applicants did not become aware of this legal issue until yesterday afternoon. LAW OFFICES GARY S. MOBLEY A PROFESSIONAL CORPORATION City Clerk CITY OF NEWPORT BEACH January 28, 2014 Page 2 With all due respect, we believe the city attorney's opinion is clearly erroneous, and applicants desire an opportunity to discuss this issue personally with the city attorney and provide authority demonstrating that a variance is entirely appropriate under these circumstances. This office as attempted to address any legal issues that might pr is considering this appear on the merits. In fact, this office sent a letter via hand delivery to City Attorney Aaron Harp on January 22, 2014 to address comments made by one of the planning commissioners at the planning commission hearing that he believed a variance could not be legally issued in this case because the special circumstances forming the basis of the application do not relate to any physical characteristics of the subject property, but rather to the application of various zoning ordinances to this parcel. This letter refuted the planning commissioner's position and attached a copy of a California Court of Appeal case, Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, which specifically rejected the commissioner's position. A copy of this January 22, 2014 letter and the Craik case are enclosed. This letter was followed up by a personal meeting with Aaron Harp and Kimberly Brandt, AICP Director on January 23, 2014. The purpose of this meeting was to address this legal issue and any other legal issues that might prevent the Hormanns' appeal from being decided on the merits. In this meeting, it was my understanding that Mr. Harp acknowledged that the Craik case allowed the city council to consider the application of zoning ordinances to the property as the basis for a finding of special or unique circumstances of the property that would justify a variance. It was not my understanding from this meeting that the city attorney had any other legal concerns regarding the city Council's legal authority to grant a variance in this case. However, yesterday afternoon, the applicants learned that the city attorney has apparently taken the position that the city council cannot legally grant a variance in this case because the zoning ordinances forming the basis of the variance application are ordinances of general application in the city. As previously stated, we believe this position is clearly erroneous and can be resolved if a short continuance is granted so that counsel can meet with the city attorney to address this issue. Applicants fear that, unless a continuance is granted, this surprise legal opinion by the city attorney's office will prevent applicants from having a fair hearing on the merits of its appeal. LAW OFFICES GARY S. MOBLEY A PROFESSIONAL CORPORATION City Clerk CITY OF NEWPORT BEACH January 28, 2014 Page 3 2. Additional Support For Applicants' Variance Application. Second, Applicants would like to take this opportunity to provide additional support for their variance application. As noted in the application, applicants are not seeking any special rights or privileges; but, rather, are only seeking the same rights granted to all other adjoining property owners in the area to develop their iroperty. The proposed remodel and addition project would not result in a larger building than adjoining properties. Indeed, if granted, applicants' residence would still be smaller than other residences in the area The need for this variance arises from the fact that, when this residence was originally constructed in 1940, the property was zoned C -1 and was developed as a mixed commercial /residential property, which was not subject to any front yard or side yard setbacks. However, in 1972, this property was rezoned from C -1 to two -unit residential (R -2), making this property non - conforming with respect to the side yard and front yard setback requirements. Later, in 2010, the City adopted NBMC Section 20.38.040, which limits additions to legal non - conforming structures to 50% of the existing gross square foot area of the building. Further, under other provisions of the Newport Beach Municipal Code, any remodel must include construction of a two -car garage, which further restricts the buildable square footage of any addition to this property. Thus, literal application of NBMC Section 20.38.040 to the Subject Property would effectively prohibit the remodel of this duplex by making it financially prohibitive to bring the current building into conformance with the setback regal cments. This position is corroborated by the attached letter from J & R Construction dated January 24, 2014, which confirms that it would cost more to modify the existing building to conform to the setback requirements that to demolish the existing structure and rebuild a new duplex. As will be demonstrated at the hearing, the Hormanns' cannot afford the luxury of demolishing their building and building a new duplex. Thus, unless his variance application is granted, the Hormanns are effectively deprived of any opportunity to add an addition to their residence. The City has previously recognized that such a financial hardship would justify a discretionary permit. Specifically, attached hereto is a modification permit issued by the City in 2007 for 407 Balboa Blvd., which is another non - conforming property just down the street from the Subject Property. This modification permit allowed the property LAW OFFICES GARY S. MOBLEY A PROFESSIONAL CORPORATION City Clerk CITY OF NEWPORT BEACH January 28, 2014 Page 4 owner to add a second floor addition to an existing non - conforming residence. This discretionary permit was justified on the grounds that "the cost of removing and reconstructing the building to comply with the required front and alley setbacks would be financially prohibitive." The same situation is present in this case. Thus, applicants are sit-071y asking for the same relief on the same grounds that the City granted to 407 Balboa Blvd., a property located just down the street. Very truly yours, Gary S . Mobley M--R GENERAL RUCTCTOp CA UCS 348555 5128 E. Ist STREET LONG BEACH CAUR 90803 949 3SO 5727 24 January 2014 City of Newport Beach Building Division 100 Civic Center Drive Newport Beach, CA 92660 re: Hormann Residence I Remodel + Addition 417/419 E. Balboa Boulevard To Whom It May Concern: I am a general contractor with more than 30 years' construction experience in Southern California. I have been asked to evaluate the feasibility of modifying the existing Hormann duplex at 417/419 E. Balboa Boulevard, Newport Beach, to bring the front and side -yard setbacks into conformity, increasing the front yard from 2 -1/2 feet to 5 feet, and increasing the side -yard setbacks from feet to 3 feet. After reviewing the existing conditions and proposed setback changes, and due to the I1rst -door construction having been built with 8 -inch thick CMU fully grouted walls and wide, offset concrete footings, my recommendation, which will be both cost and time efficient, is to demolish the existing structure and rebuild a new duplex with conforming setbacks, rather than modify the existing building. If you have any questions or need further clarification, please contact me Joe Railey Owner JR Construction el q u 5 1 } Z a Yyp y I m t` '' 1 the neighborhood 01 the POWY and not be debirm,mW to the gerwal we#are or iriiulous to Property or imPrQV*"ft J.n ft . rMOM011100d baW on Me Vbw V Awatiors on %e firil mor rMpOrIJOh of the 4sting buiiding wio bring I znfo ronipliw with the rV I qUirad JWOY sod)ack, and pr&Ade residential paAiqq 00 we. .4� � I MqL4fed.by ttii:4� C • AX wilts, 16n�s *0 . I . — 1. any other improvorwts in the alay setback wall bo • The SOOO $W'A 6M'Of h�,'ble Owee " conform to all ?vNtprec, SMA &M 4'e"j*Wt$ of the Rp* Zor% of entf Siascl4 q, n(S 8)1!t¢ttir� The rid 'MiC 414 rop Y,*d Whack of the proposal d n1g1Dl in, tit 4�0' ft -,no, , 11 3rSaM, And W.41 b4_1 QQ P66i 4 1 apWoved plot P�,i tied &Wing lac, anc T ME �-Wother *fttftxOOn Se..rllade at. !-rrngs nj lay, •'i II {4l i uSy _ } : Gent r.s`su10 ;hat the garage finish floor efevaWn will be_al ieast 6 -Mhes (lAts 2 pt=tcend , ;! °ripss tat across then parkway vrdth) aWye the Briley flow. iiries. eieiratrcrrb, klr°fess approved by Put7tie* Works. 0,. "fNs pmval was based on the tis p8riir<ulars of the Individual case and doees nod:; an and of aself or in C04r1t11`nation vv ft other epNGvals In th4, vtrinily or Oty to, o)nstitule a precedent for fulurs approvals or deCiskiais. ?. Pnot to issuance of b4Uilding petm0s. the applicant shall submit to the ptarn ng Department an additional copy of the approved architectural; Fans for lndvskan in the Moditatiw tswm4 file. The plans shall be Wontical to ftsa approv�i Lay, ZIA City departments for building penr.t issuance. The approved 'spy shat trOud'^. afaNtectural siteets " and shall be reduced in size to The plans shah sCourately depict the elements approved by this KjOdjfC- ,I)6Qn f'4srm ! :and shall higidight the apprar ,T�Iements such oral they are rc�jdi ! -y 0 �, :,. t , i -;sm otr*t elements of the plan ' A building permit shall be obtained prior to aammencernent of the cools :er A Copy Of ttds approval W*r sba0 be incorporated into the Hulloing Npjo..n , foow Sets of peens prbr to Imance of the building permits. Ttus 00proval shall e+xpie unless exerrisad wstun 24 months from the app?o -- , as speoAW in Secbon 20.93.050 (A) of the Neywpext Boom Municipal Cade a' the airp WOn (10110 of this spprovst. an exdenss)n may be approved in acac *M SecOo r 20.93.050 (B) of the Newport Beach Munkdpaf Code, Requests *XUW M trwsi Oe in W t V APEEAL The Tanvq deslsbn may be appea ed to dw Planning Coarnission wrtr n Oays of 0* atiti4o 090. A $MO O ftrlatp tea steal acotrhpwty any app" fMsd. No bw- :r,; p'ertt+its Tc be boad W di esa OPP" Period has a oked. a t� pr I tltl ad. u T i ry l,y , k y 111