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16 - PA2002-037 - Butler Residence - 911 West Bay Avenue
�dEW�RT CITY OF NEWPORT BEACH Hearing Date: August 27, 2002 ° PLANNING DEPARTMENT Agenda Item: /b ' 3300 NEWPORT BOULEVARD Staff Person: James Campbell C�4 OM1�' NEWPORT BEACH, CA 92658 (949) 644 -3210 (949) 644 -3200; FAX (949) 6443229 REPORT TO THE CITY COUNCIL PROJECT: Butler Residence (PA2002 -037) 911 W. Bay Avenue SUMMARY: Appeal of the decision of the Planning Commission to uphold the decision of the Modification Committee's approval of Modification Permit No. 2002- 018. ACTION: Approve, Modify or Deny Modification Permit No. 2002 -018. APPELLANT: Robert Butler 911 W. Bay Avenue, Newport Beach LOCATION: Approximately 200 feet west of the intersection of 9th street and Bay Avenue, Balboa Peninsula LEGAL DESCRIPTION: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West GENERAL PLAN: Two - Family Residential ZONING DISTRICT: R -2 (Two- Family Residential Introduction On July 18, 2002 the Planning Commission denied an appeal filed by the appellant regarding the decision of the Modification Committee to approve an encroachment of a portion of a second floor deck and protective railing into the required front yard setback. The Modifications Committee approved the project on May 8, 2002; however the approval was not the same as the applicant's request since it authorized only a portion of the deck extension requested, and required changes to the deck surface previously approved as an encroachment within the front yard setback. On July 31, 2002, the appellant filed an appeal (Attachment A). Proiect Overview/ History The project consists of the retention of the second floor deck as delineated by the perimeter railing within the front yard setback constructed in violation of Modification Permit No. 5080 approved in May of 2001. The railing currently encroaches 2 feet, 10 inches into the required 10- foot front yard setback. The 36" high railing, constructed of wood with glass or acrylic panels, extends from the western building wall across the face of the building to approximately 7 feet from the eastern property line. A brief history of activities should assist in understanding what the project is. In May of 2001, Modification Permit No. 5080 authorized a patio cover that would provide shade for an at -grade patio to extend 2 feet, 10 inches within the required 10 -foot front yard setback. This patio cover extended across the northern elevation of the existing duplex from the western building wall to approximately 7 feet from the eastern property line. The patio cover originally consisted of a flat ceiling with a sloped roof feature at the leading edge, which would have effectively precluded use of the area in front of the railing. Later, the roof feature was eliminated and deemed in substantial conformance with the Modification Permit by staff, as it reduced the physical massing of the structure within the setback. The removal of the roof feature was requested by the applicant as it blocked a portion of the applicant's view of the bay through the railing. The protective railing on the second level was subsequently relocated to the leading edge of the approved patio cover without any permits thus allowing occupancy and use of the upper surface of the patio cover as a second floor deck or balcony. Condition No. 3 of Modification Permit No. 5080 states the following: 3. The patio cover shall not be used as an extension of the existing second floor deck, unless an amendment to this approval is first obtained. The violation of Condition No. 3 above was discovered by the City upon inspection due to a complaint. The current Modification Permit application is the result of code enforcement activities where the applicant chose to seek approval of the unpermittted construction as opposed to reverting back to the permitted location of the railing. Modifications Committee Action The Modifications Committee acted to approve only a portion of the requested encroachment of the railing and deck. The neighbor to the east testified that their view of the bay is at an angle toward the northwest across the appellant's property, and any encroachment of the deck, with its unrestricted use, would reduce the view area and impinge upon their privacy. The testimony led the Modifications Committee to conclude that the applicant's request would be detrimental to the neighboring property. The Committee acted to disallow the easterly portion of the deck (approximately 9 feet) due to its proximity to the neighbor to the east. Allowing the encroachment further to the west avoids imposing upon the view and privacy of the abutting property while affording the applicant sufficient usable deck area. The neighbor to the west is minimally impacted as their view is not impinged due to the relative locations of the structures. The Committee further acted to require removal of the decking material, ceiling below, and lighting fixtures on the previously approved patio cover that would no longer be a deck protected by the railing. The Committee felt that this condition is an important safeguard, given the history of the project. Buller Residence (PA2002-037) August 27, 2002 Page 2 of 5 Planning Commission Review on Anneal The Planning Commission reviewed the action of the Modification Committee and considered a report submitted by the applicant outlining numerous issues which the appellant believes sufficient to eliminate the revisions to the project made by the Modifications Committee. Staff prepared responses to the appellant's report that are contained in the July 18, 2002 Planning Commission staff report (Attachment Q. The Commission decided to conduct a new public hearing on the merits of the application and found that the findings necessary for approval of the applicant's original request were not evident. At the conclusion of the hearing, the Commission considered the compromise adopted by the Modifications Committee granting a portion of the applicant's request to be appropriate, and approved the project subject to the same conditions imposed by the Modification Committee. The minutes from the July 10 Planning Commission meeting is attached as Attachment D. Discussion of the Current Anneal The current appeal appears to restate in broad terms the issues presented to the Planning Commission within the appellant's report attached to the July 18, 2002 Planning Commission staff report (Attachment Q. Staff prepared responses to the various allegations and arguments raised within the appellant's report, again contained in the July 18'h Planning Commission staff report. The appellant further believes that the City has violated the Ralph M. Brown Act, although no information was submitted to support this additional allegation. The applicant contends that past processing of permits for the property are flawed to the point that he has not received a fair and impartial hearing in violation of his rights. Additionally, the appellant believes that the un- desired revision of the project is unjustified (see the appellant's report within Attachment Q. The changes to the applicant's request take two forms: 1) reduction of the usable area of the deck by only allowing the western portion of the protective railing to encroach within the front yard setback, and; 2) modification of the approved patio cover by removal of the decking material, ceiling below, and lighting fixtures. The reduction of the deck encroachment is supported by the record as the deck rail and unrestricted use of the deck area behind the railing would be located in closer proximity to the neighbor to the east to their detriment as views and privacy could be impacted. The Council could find that the applicant's request is not detrimental if the appellant meets his burden of showing that to be true. The changes to the patio cover by removal of the decking material, ceiling below, and lighting fixtures were required for the purpose of avoiding a repeat of the present violation. The nexus between the location of the reduced size deck to the west and the changes to the patio cover /deck surface is less clear especially since the previous modification permit authorized the patio cover. Upon further analysis, staff now believes that the changes to the patio cover required in exchange for approval of the western portion of the deck to encroach within the front yard setback are inappropriate because this condition was based upon a belief that the appellant might repeat the violation by moving the railing again. Buffer Residence (PA20d2-037) August 27, 2002 Page 3 of 5 Staff believes that the history of this case is sufficiently complex, and therefore, staff simply suggests that the City Council conduct a new hearing on the merits of project to ensure that the appellant's rights to due process are honored. Previous testimony and letters submitted by the applicant and the public, whether before the Modifications Committee or Planning Commission, should also be considered. This information is contained within the Attachments to this report. The required finding for approval of a Modification Permit is stated in Section 20.93.040. "In order to grant relief to an applicant through a modification permit, the Modifications Committee shall find that the establishment, maintenance or operation of the use of the property or building will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed modification is consistent with the legislative intent of this code. " Conclusion The Council has three alternatives to consider. 1. Should the Council believe that the deck extension as originally requested by the appellant is not detrimental to nearby properties, the appeal can be upheld and the project can be approved with amendments to the findings and conditions of approval eliminating the changes made by the Modifications Committee and affirmed by the Planning Commission. 2. If the Council believes that the applicant's request will prove detrimental to the abutting property owner, the Council can consider the reduced deck approved by the Modifications Committee and affirmed by the Planning Commission as a reasonable compromise. Staff does not recommend that the City require revisions to the previously approved patio cover. This option can be implemented with amendments to the findings and conditions of approval by eliminating the all references to the patio cover being revised. 3. The Council may deny the requested Modification Permit if the Council finds that the applicant's request will prove detrimental to the area. This option will require that the applicant return the deck railing back to its originally authorized location in accordance with Modification Permit No. 5080 (2 feet, 10 inches to the south). Staff is concerned that approval of a full width encroachment as requested by the applicant (Alternative 1) will set a precedent that will be used by other property owners to request similar encroachments. Such large encroachments erode the intent of requiring consistent setback standards, in staffs opinion. Based upon the available information indicating that the applicant's request would be detrimental to the abutting property owner, staff recommends that the City Council take alternative 2 or 3 above. Alternative 2 provides the applicant with a large deck for his enjoyment while avoiding negative impacts upon the neighbor's privacy and view. Alternative 3 avoids potential impacts to the neighbor to the greatest extent, but does not meet the appellant's objective, which is to expand the second level deck. Butler Residence (PA20D2 -OM August 27. 2002 Page 4 of 5 Submitted by: PATRICIA L. TEMPLE Planning Director Attachments Prepared by: JAMES CAMPBELL Senior Planner I< % �1Ai A. Appeal filed July 31, 2002 B. Planning Commission staff report dated June 6, 2002 C. Planning Commission staff report dated July 18, 2002 D. Excerpt of Planning Commission meeting minutes from July 18, 2002 Buffer Residence (PA2002-037) August 27, 2002 Page-.rvef� �PJ Attachment A Appeal filed July 31, 2002 INTENTIONALLY LEFT BLANK 0 CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE PLANNING C8i &i;6N E D Application No.: Modification Permit No. 2002 -018 '02 JUL 31 A101:31 Name of Appellant or person filing: Robert S. Butler, through my attorney and representative, Lawrepfe I0- Qpvidson,-,Attczr iey at Law; Phone: 949- 500 - 6275; 949. 875 -0629 (Butler); 949 -496 -37111 (Fax); Email: aRttfa il8�oi11dW�c3zrkldd. Address: 911 West Bay Avenue, Balboa, CA 92661; Representative's Address: 537 Newport Center Drive, Suite 537, Newport Beach, CA 92660 Date of Planning Commission decision: Regarding application of: (Description of application filed with Planning Commission): Approval of Modification Permit No. 2002 -018 July 18, 2002 Robert S. Butler for Appeal of the Conditions Attached to Reasons for Appeal: Including, without limitation, that the decision violates Appellant's constitutional rights; violates due process of law; exceeds the subject matterjurisdiction of a municipality; violates state and federal law; takes property rights without due process of law and just compensation; violates appellant's civil rights under all applicable federal and state laws; violates Appellant's property rights; Violates the Ralph M. Brown i Act; an iol a Mu i 'pal ode of the City of Newport Beach. V o.V f�tJGc�s� 02� awreyf . Davi on, rn Attoey for Robert S. Butler, Appellant Sign u of Appellant Date: July 31, 2002 CITY CLERK FOR OFFICE USE ONLY Date Appeal filed and Administrative Fee received: rJ , 200. Hearing Date. An appeal shall be scheduled for a he" before the City Council within thirty (30) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.050) ca Appellant Planning (Furnish one set of mailing labels for mailing) File APPEALS: Municipal Code Sec. 20.95.040(B) Appeal Fee: $312 pursuant to Resolution No. 2002 -50 adopted on 7 -23-02 (effective 7- 24-02) (Deposit funds with Cashier in Account #2700 -5000) (1 INTENTIONALLY LEFT BLANK e1 Attachment B Planning Commission staff report dated June 6, 2002 c INTENTIONALLY LEFT BLANK I CITY OF NEWPORT BEACH Hearing Date: June 6, 2002 PLANNING DEPARTMENT Agenda Item: 5 u - i 3300 NEWPORT BOULEVARD Staff Person: James Campbell NEWPORT BEACH, CA 92658 (949) 644 -3210 (949) 644 -3200; FAX (949) 644 -3229 Appeal Period: 14 days REPORT TO THE PLANNING COMMISSION PROJECT: Butler Residence (PA2002 -037) 911 W. Bay Avenue SUMMARY: Appeal of the decision of the Modifications Committee's approval of Modification Permit No. 2002 -018. RECOMMENDED ACTION: Approve, Modify or Deny Modification Permit No. 2002 -018. APPELLANT: Robert Butler 911 W. Bay Avenue, Newport Beach LOCATION: Approximately 200 feet west of the intersection of 9w street and Bay Avenue, Balboa Peninsula LEGAL DESCRIPTION: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West GENERAL PLAN: Two - Family Residential ZONING DISTRICT: R -2 (Two - Family Residential Introduction On May 8, 2002, the Modifications Committee approved the subject modification request to allow the retention of a portion of a deck and deck rail within the required front yard setback. The approval deviated from the applicant's request in that it authorized only a portion of the deck extension requested (Exhibit No. 1). The applicant, through his attorney, filed an appeal of the action (Exhibit No. 2). Although the appeal does not request a remedy, staff has assumed that the appellant seeks that the Planning Commission modify the approval to include the entire deck extension as originally requested by the applicant. Background On May 3, 2000, the Modifications Committee approved Modification Permit No. 5080 for a patio cover to encroach 2 feet, 10 inches into the required 10 -foot front yard setback. During construction, staff discovered an inconsistency between the approved Modification Permit and the building plans. The Planning Director determined that the building plans were not in substantial conformance with Modification Permit No. 5080. The applicant filed an appeal of the t� substantial conformance determination, which was considered by the Planning Commission on July 19, 2001. The Planning Commission upheld the Director's determination. The applicant decided not to pursue further appeals and changed the project to comply with Modification Permit No. 5080. Construction of the patio cover was completed later that summer. ' After receiving complaints from neighbors, staff determined that the second floor deck railing above the patio cover was moved from the permitted location to the leading edge of the structure within the front yard setback without the benefit of permits. Condition No. 3 of Modification Permit No. 5080 specifically prohibits this activity without first obtaining an amendment to the permit. The applicant indicates that it was an "oversight" that he neglected to request permit in advance of the alteration of the deck railing. Current Development: Duplex To the north: Beach, Newpon Bay & Single Fan-dl Residences ss SUBJECT PROPERTY - o � $ Single Family Residences & Duplexes To the west: Sin le Family_Residences & Duplexes � p p 0 BL Vp aid orn ti ro ofa:a o 0100 Feet VICINITY N MAP w �E s Current Development: Duplex To the north: Beach, Newpon Bay & Single Fan-dl Residences To the east Single Family Residences & Duplexes To the south: Single Family Residences & Duplexes To the west: Sin le Family_Residences & Duplexes Butter Residence PA2002-037) June 6, 2002 Page 2 of 4 1� Proiect Overview The project consists of the retention of the second floor deck and deck railing within the front yard setback. Copies of photographs of the deck are attached as Exhibit No. 3. The railing currently encroaches 2 feet, 10 inches within the required 5 -foot front yard setback. The 36" high railing is constructed of wood with glass or acrylic panels and extends from the western building wall across the face of the building to approximately 7 feet from the eastern property line. Modifications Committee Action The Modifications Committee acted to approve only a portion of the requested encroachment. The easterly portion of the deck (approximately 9 feet) was disallowed due to its proximity to the neighbor to the east. The deck surface was also required to be eliminated with the structural elements allowed to remain so that relocation of the railing would not readily occur in the future. Staff felt that this condition requiring removal of the decking material is an important safeguard, given the history of this project. The changes to the applicant's request were made due to a belief that the design and location of the deck as requested would prove detrimental to the abutting property to the east. Locating the encroachment further to the west avoids imposing upon the view and privacy of the abutting property. Appeal The appellant believes that the decision of the Modifications Committee "violates and abridges the applicant's constitutional rights; exceeds subject matter jurisdiction of municipality; takes property rights without due process; and violates (the) applicant's civil rights under all applicable laws." The appellant has offered no facts to support this position. The required finding for approval of a Modification Permit is stated in Section 20.93.040. "In order to grant relief to an applicant through a modification permit, the Modifications Committee shall find that the establishment, maintenance or operation of the use of the property or building will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed modification is consistent with the legislative intent of this code. " The facts to support the approval of the modified project are contained within the attached approval letter (Exhibit No. 1). As of the drafting of this report, the appellant has not presented any additional information relative the required finding above. Conclusion Based upon the available information, staff recommends that the Planning Commission uphold and affirm the decision of the Modifications Committee. The modified deck provides the applicant with a large deck for his enjoyment while avoiding negative impacts upon the neighbor's privacy and view. Butter Residence PA2002-037) June 6, 2002 Page 3 of 4 ) The Commission has several other alternatives to consider. First, the Commission may deny the requested Modification Permit if the Commission is unable to make affirmative findings to approve the request. This option will require that the applicant return the deck railing back to its authorized location in accordance with Modification Permit No. 5080 (2 feet 10 inches to the south). A second alternative is to uphold the appeal and approve the project as requested. This action will require that the findings and conditions of approval be modified to eliminate references to the changes make by the Modifications Committee. The Commission also has the option to develop a compromise design that has not been identified. Submitted by: PATRICIA L. TEMPLE Planning Director a&'60— Lan.A Exhibits 1. Approval letter for MD2002 -018 2. Appeal Prepared by: JAMES CAMPBELL Senior Planner Gtr1 3. Application and correspondence considered by the Modifications Committee 4. Photographs submitted by the applicant 5. Project plans Butter Residence PA2002-037) June 6, 2002 Page 4 of 4 L�' Exhibit No. 1 Approval letter for MD2002 -018 ,�I May 8, 2002 CITY OF NEWPORT BEACH PIANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 6443200; FAX (949) 644.3229 Meserve, Mumper & Hughes Attn: Bernard A. Leckie 17300 Redhill Avenue, Suite 250 Irvine, CA 92614 Application No: Applicant: Address of Property Involved: Legal Description: i MODIFI w'i'ION PERMIT NO. MD2002 -018 (PA2002 -037) Staff Person: Javier S. Garcia, 644 -3206 Appeal Period: 14 days after approval date Modification Permit No. MD2002 -018 (PA2002 -037) Robert Butler, property owner 911 West Bay Avenue Portion of Government Lot 4, Section 34, Township 6, South Range 10 West Request as Modified and Approved: Request to allow the retention of a deck extension completed without benefit of a building permit. The deck area was formerly a solid roof patio cover that encroaches 2 -feet 10- inches into the required 10 -foot front yard setback. The extension increases the depth of the deck 2 -feet 10- inches and maintains the required 3 foot side yard setbacks. The portion of the deck that was approved was be converted to a Original Request: The property Request to allow the retention of a deck extension completed without benefit of a building permit: The deck area was formerly a solid roof patio cover that encroaches 2-feet 10- inches into the required 10 foot front yard setback The extension increases the depth of the deck 2-feet 10- inches and maintains the required 3 foot side yard setbacks. The property is located in the R -2 District. The Modifications Committee, on May 8, 2002, voted 3 ayes and 0 noes to approve the application request as modified based on the following findings and subject to the following conditions. The Modifications Committee determined in this case that the proposal would not be detrimental to persons, property or improvements in the neighborhood and that the modification as approved 1{ 71 May 8, 2002 Page - 2 would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code, and made the following findings: FINDINGS: 1. The Land Use Element of the General Plan and the Local Coastal Program Land Use Plan designate the site for "Two - Family" residential use and the existing residential structure is consistent with this designation. The second floor deck is accessory to the primary use. - 2. This project has been reviewed, and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class I (Existing Facilities). The Modifications Committee determined that in this case, that portion of the proposal for the deck extension easterly of the door opening would be detrimental to persons, property and improvements in the neighborhood, and that the applicant's request would not be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code for the following reasons: The deck extension across the entire frontage of the property is not necessary to provide reasonable access or use of the second floor deck. The limited horizontal dimension does not adversely affect the access or useable area of the deck. The horizontal dimension affords preservation of existing private views of the immediately affected residents across the subject property. 4. The modification to the Zoning Code as proposed would be consistent with the legislative intent of Title 20 of the Newport Beach Municipal Code and is a logical use of the property that would be precluded by strict application of the zoning requirements for this District for the following reasons: • The deck extension, as approved, provides reasonable use of the deck that would otherwise be prohibited by strict application of the Zoning Code regulations. • The restriction on the horizontal dimension provides the deck with adequate width for access and use of the deck. • The approval of the deck rail to extend beyond the face of the useable surface of the deck does not create any greater visual impact than the actual deck surface area since it is required to be of transparent material as currently constructed. • The useable deck surface is limited to the 2 feet 10 inches into the front yard setback and the required guardrail rail is allowed to extend approximately 4 inches beyond that dimension as currently constructed which should minimize the visual impacts. 5. The modification to the Zoning Code, as proposed will not be detrimental to persons, property or improvements in the neighborhood or increase any detrimental effect of the existing use for the following reasons: • The deck extension, as approved, will not adversely affect the property to the east since the deck extension has been restricted in the horizontal dimension to minimize adverse impacts. • The approved deck extension minimizes adverse impacts on the existing private views and privacy of the neighboring properties. 6. The project as proposed will not affect the flow of air or light to adjoining residential properties because: 11 IZ May 8, 2002 Page - 3 The deck extension is located at the street side elevation of the building. The project as proposed will not obstruct public views or private views from adjoining residential properties because: The public views to the bay are not across the subject property, but visible from the public street. The private views of the Bay are generally toward the street side of the property. 8. The required modified construction of a portion of the patio cover extension will prevent future extension of the deck surface. 9. The approval of a full width deck extension could set a precedent for the approval of other similar requests that could be detrimental to the neighborhood. 10. There is no justification for allowing the proposed full width encroachment, since the deck as approved provides the applicant with adequate access and use of the second floor deck. 11. The full -width deck extension and patio cover are not necessary to provide the shade desired by the applicant since a trellis with open beam construction will achieve the same result. 12. Structures on sites in the vicinity of the subject property generally maintain the required front yard setback of 10 feet. 13. The adjacent property owner that is immediately affected is opposed to the proposed full - width deck extension. CONDITIONS: The development shall be in substantial conformance with the approved plot plan, floor plans and elevations, except as noted in the following conditions. 2. This approval allows the retention of a portion of the existing second floor deck that lies from a point beginning one -foot east of the existing door opening and extends westerly to the west end of the existing deck. The deck area extends a maximum of 2 -feet 10- inches toward West Bay Avenue and the required guardrail shall be allowed to extend approximately 4- inches beyond the face of the deck. The portion of the deck extension that was disapproved shall be modified to remove the deck surface and lower level ceiling material, enclosed electrical fixtures and to change the solid shade structure in that area to an open beam trellis structure. The disapproved portion is the deck area that lies easterly of a point one -foot east of the existing door opening and ends at the easterly end of the deck structure. The final design of the trellis structure shall be subject to review and approval by the Planning Director to determine compliance with this condition. 4. A building permit shall be obtained for the as -built construction within 30 days from the date of this letter. If this matter is called up or appealed to the Planning Commission or City Council, the applicant shall obtain a building permit within 30 days from the final effective date of the action. The plans submitted to obtain the permit for the as-built construction shall include an accurate site plan, elevations, sections and structural details 15i -A.' May 8, 2002 Page - 4 to accurately depict all aspects of the approved project including the approved deck dimensions and change of the disapproved deck surface to an open beam trellis structure. All construction shall comply with requirements of the Uniform Building Code. 5. Prior to final of the building permit, a copy of the revised plans issued for the building permit shall be submitted to the Planning Department for inclusion in the Modification Permit file. Said plans shall accurately depict the approved configuration of the as -built deck, required railing and trellis structure. 6. This approval was based on the particulars of the individual case and does not in and of itself or in combination with other approvals in the vicinity or Citywide constitute a precedent for future approvals or decisions. 7. This approval shall expire unless exercised within 24 months from the date of approval as specified in Section 20.93.055 of the Newport Beach Municipal Code, unless an extension is approved prior to the expiration date of this approval, in accordance with Section 20.93.055 (B) of the Newport Beach Municipal Code. The decision of the Committee may be appealed to the Planning Commission within 14 days of the date of the decision. A filing fee of $741.00 shall accompany any appeal filed. No building permits may be issued until the appeal period has expired. A copy of the approval letter shall be incorporated into the Building Department set of plans prior to issuance of the building permits or issuance of revised plans. MODIFICATIONS COMMITTEE By Q-12t- JavieS. Garcia, AKP, Senior Planner Chai kperson JSG:jjb F: \USERS\PLMShared\PA's\PAs - 2002 \PA2002- 037\MD2002- 018appr.doc Attachments: Vicinity Map Appeared in Opposition: Blair T. Bryant, 909%2 W. Bay Avenue Letters in Opposition: Mike Clary, 909 W. Bay Avenue Blair T. Bryant, 909%2 W. Bay Avenue Proponent Bernard A. Leckie Representative: cc: Robert Butler, property owner 911 W. Bay Avenue Balboa, CA 92661 ca b O C', NEWPORT CHANNEL Subject a a q STeq 44 801 N 0 2 %0 Feet VICINITY MAP W E s Modification Permit No. MD2OO2 -O 18 PA2002 -037 911 W. Bay Avenue Exhibit No. 2 I LAWRENCE H. DAVIDSON A T T O R N E Y A T L A W May 21, 2001 HAND DELIVERED, VIA FACSIMILE & CERTIFIED MAIL Planning Department CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92658 Attn: Javier S. Garcia, AICP, Senior Planner NOTICE OF APPEAL Application No.: Modification Permit No. MD2002 -018 (PA2002 -037) Applicant Robert S. Butler Property Address: 911 West Bay Avenue Legal Description: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West Dear Mr. Garcia This letter constitutes Notice of Appeal to the Planning Commission for the City of Newport Beach of the decision of the Modifications Committee decision in the above matter dated May 8, 2002. Further this letter constitutes written notice of designation of Lawrence H. Davidson as the Proponent Representative in these proceedings. The Appeal to Planning Commission filing fee of $741.00 is attached to this letter and hereby submitted with this Appeal. cc: Bernard A. Leckie, Esq. 537 NEWPORT CENTER DRIVE, SUITE 537. NEWPORT BEACH. CALIFORNIA 92660 • TELEPHONE (949) 500 -6275. FACSIMILE (949) 496 -3711 May 21 0209-13p Lawrence H. Davidson 9494963711 p.2 ......�• rwa va. v� s,a w• �r. e.a eLN•n aoV uu[nn uYGlvl A1a0z r.UV41UUC CITY OF NEWPORT BEACH APPLICATION TO APPEAL DECISION OF THE MODIFICATIONS COMMITTEE Application No. I)VZOOL -Olerl -X ZOay -037). Name of A p ellant �0�vZi �J �vJ26Q or person filing: BY /,*V4 VC& Phone: 974f-Sa3 -617 S Address: 53-7 A16Wfa'CrC0svl;2 .lag, Sil.rc5_t?77, Of/.- vr°o2r RC4W3, C-4- 924 -9 0 Date of Modifications Committee decision: AlF hl ` —,20 C Regarding application of: 1<0!16ar^ 'r, /- � for (Description ofapplicatton filed with Modifications Committee) SEc ��G✓riQ77liri�S' F7Gc� 7M*- 6106 &:& 1i160e-*29r,50 i eTPy gy 7MOr.*F >r Reasons for Appeal: 7 ✓ 106A7i`S fh /A��G0 S AOPUC�J,v7s QDJJ-7)It/rLBN4- �Lindf� �X� =ixlS sdBx�i�`/A,7�t �dfiS/!rc »o.J O-° /Y4W,C -id ar> 7A�COf i /�taiG¢�'i' /LE,*fTS w�/�'l�.ovacxrs ea6 i(�'�J� ArID f/ /0 C.�4i�5 ��UC.4./i3 Date S I�o 2-- PLANNING DEPT. SECRETARY or STAFF FOR OFFICE USE ONLY t� Date Appeal filed and Administrative Fee received: / / 20 20 O7. Hearing Date. An appeal shalt be scheduled for a hearing before the Planning Commission within thirty (30) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.050) CC' Appellant Planning (Furnish one set of mailing lebela for mailing) File APPEALS: Municipal Code Sec. 20.95.040s Appeal Fee: $741 pursuant to resolution adopted by City Council on July 2001 (Deposit funds with Cashier In Account #2700 -5000) FAUserski"kSharedtFortns 2000\Old Formshfcrmatmodappeal.doc an Exhibit No. 3 Application and correspondence considered by the Modifications Committee eEw�R. CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT J = 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92458 (949) 644 -3200; FAX (949) 644.3250 PART I: Cover Page Project Common Name (if applicable): Application: A Modification Permit No.: WDA ❑ Accepted by: PA2002 -037 for INID2002 -018 911 W. Bay Avenue Bemard A. Leckie for Robert Butler FEES: APPLICANT (Print). CO NTA PERSON (if different): Mailing Address: Dj%- J A* _ ailing Address: 1.2, Oa Phoneg �8� Fax Property O wner (if different from above): Mailing Address: �47,44IE Phone: ( ) Fax ( ) PROJECT ADDRESS: - *WWA!11Xr- i Project Description and justification (describe briefly) 7- //� I�GRG� Y•9yD �t�i�D �.6 /G /A/lr /CH �d�-s 1��� 'o�-T f} ��Q7'�i/f s ,rrai�Dr �450raou� 7,W Ta aAI�7' 7y� ILA7-,7o e o y4��- , -AD'-, �f�/'�9dv�D ff5 Go PR ERTY OWNER'S AFFIDAVIT (l) (We) depose and say that (I am) (we are) the owner(s) of the property(ies) involved in this app tcation. (I) (We) further certify, under penalty of pe that the foregoing statements and answers herein contained and the information herewith submitted are in all respects true and co to a best of (my) (pur))mowled„� belief. MA (n Signature(s) FES 1 9 2002 NOTE: AnQk'Vt1kaNPUffi f 'f written authorization from the record owner is filed with the application. wri/ Work to be done: Oq�- ✓5 /'gLeryrGA Present Use: /LProposed Use: 5�iu.Z7 Zone: Main building area ,Garage area Building height Use Permits, Variances, etc.: ,19447 _wig �. er Legal escription of Property Involved Cif too long, attach separate sheet) oe. aF Gov. 4 A7_4, 56-4 3!6 Tomg !2 /o w 4.88e`�1 AI , !!W 2.7 — lfJ DO NOT COMPLETE APPLICATION BELOW THIS LINE, FOR PLANNING DEPT. USE ONLY: Indicate Previous Modification Permits, Use Permits, Variances, etc. General Plan Designation: Zoning District: Coastal Zone: YECS or NO ************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Date Filed: d t4- 02 Fee Pd: 45L{• ' Receipt No: a- t :;I- �a Date Deemed Complete: Hearing Date: Posting Date: 2 - 15- 01 Mailing Date: Modifications Committee Action: (Date) Planning Director Action Date P.C. Hearing C.C. Hearing . I ❑ Approved, Subject to Conditions ❑ Denied (check one) Appeal P.C. Action Appeal l C.C. Action ij 05/07/02 TUE 15:25 FAX 1 970 468 5264 [j001 Mr. Jay Garcia Planning Department City of Newport Beach Fax No. 949 644 3229 May 7, 2002 Re: Modification Permit No. MD 2002 -018 (PA 2002 -037) 911 West Bay Avenue Dear Mr. Garcia, Blair Bryant faxed me Mr. Butlers proposed compromise letter dated May 3, 2002. By granting Mr. Butler's request to put in a 6 % foot diagonal railing, you would also be granting him permission to load the new deck with barriers to our view corridor. To appreciate the type of barriers that can be placed on the east side of his new deck, one only has to see what he has recently placed on the new eastward extension of his original deck. These consist of three trellusis, a solid wall below the deck railing and a very large patriotic American flag. All perfectly legal. For this reason I still support your proposed compromise stated at the last Modification Committee meeting that the east half of the new patio cover should remain just that— a patio cover, preferably roofed over as shown on Mr. Butler's submittal to the Building Department Sincerely, Mike Clary Xc Blair Bryant Les ANOELEs OFFICE 555 SOUTH FLOWER STREET I STH FLOOR LOS ANGELES. CAUMRNIA 9W7I.2319 TELEPHONE (213) 6200300 F.SIMILE (213) 625 -1930 SAN DIE00 OFFICE 750 `6" STREET SURE 2200 SAN ME=. CALIFORNIA 92101 TELEPHONE 16191237-0500 FACSIMILE (619) 237-0073 May 3, 2002 yn V .1� MESERVE, MUMPER & HUGHES LLP 17300 RED HILL AVENUE SUITE 250 IRVINE. CALIFORNIA 92614-5653 TELEPHONE (9491474 -6995 FACSIMILE (949)975.1055 City of Newport Beach Community and Economic Development Planning Department 3300 Newport Boulevard Newport Beach, CA 92658 Attention: Mr. Garcia EDwIN A. MESERVE Ij 1003 - 1055 1 SHIRLEY E. MESERVE ( IBB9 - 1059 ) HEWLINOS MYMPER I to Be - I94B I CLIFFORD E. HUGHES 1 ,so. - 1901 1 J. ROBERT MESERVE ( 1014 - 1009 ) OUR Rer. No 54645001 RECEIVED BY PLANNING DEPARTMENT CITY r c AM MAY 0 3 2002 PM 71819110111112i1i2i3i41516 Re: Our Client: Mr. Robert S. Butler Application of Robert S. Butler concerning property at 911 W. Bay Avenue, Balboa, California 92661 Modification Permit No. (PA 2002 -037) Dear Mr. Garcia: Please find enclosed a proposed sketch of what Mr. Butler proposes as a compromise. In his proposal, the existing railing would be removed as indicated and the diagonal railing would extend approximately 6 '/z between the posts as indicated. In this way, Mr. Clary would have an open sight line. This is a proposal and compromise which Mr. Butler believes to be reasonable. The question of any interference with Mr. Clary's view seems to be minimal as Mr. Clary has a fantastic view from his patio and the railing is only waist high and the only conceivable restriction would be if a person was sitting down as there was no impairment before or after if a person stands up on Mr. Clary's patio and looks out toward the bay. Mr. Clary and I had a long discussion after the recent hearing in an effort to come to a compromise and the proposed drawing is a suggested resolution from Mr. Butler. 31 ., , M MESERVE, MUMPER & HUGHES LLP City of Newport Beach May 3, 2002 Page 2 .5;;�; I am unaware of the extent of consideration given by the Planning Department to private views but clearly no public view restriction is involved. Your thoughtfulness in giving this matter your consideration is greatly appreciated. Very truly yours, Dictated But Not Read Bernard A. Leckie Of Counsel for MESERVE, MUMPER & HUGHES LLP BAL:mt Enclosure 32216.1 6:, .1. N I'e w CA ti N I'e 05/02/02 THU 13:51 FAX 1 970.468 5264 _.,. Q002 Mr Jay Garcia Senior Planner City of Newport Beach Fax No 949 644 3250 May 2, 2002 Dear Mr. Garcia, At the April 24, 2002 Modification Committee meeting concerning Mr. Butler's unapproved deck extension you suggested a compromise placement of his new deck railing. This would allow Mr. Butler to keep the railing where it is now on roughly the west half of his new patio cover /deck extension. The railing on the eastern half of thei patio cover would be removed and returned to its original position before construction of the new extension. The dividing line would be essentially in line with the east side of the upstairs balcony sliding glass door. This is directly below the peak of the roof. I believe I heard you say that you would be against approving any deck extension farther east, toward my house, than this point. In the spirit of compromise I agree with your suggestion. This railing position would reduce the possibility of any new barriers (trellises, flags, plants eta) being put up on the deck to capture our view corridor I would also like to see the eastern half of the patio cover (roughly 12'X 2' 1(r) roofed over as shown on Mr. Butler's drawings submitted to the Building Department. This would help to reduce the possibility of the railing being illegally moved out again at some future date. Should Mr. Butler not support this compromise and attempt to argue for the deck/patio cover dividing line for the railing to be further east toward my house, then I strongly recommend that none of the new patio cover be used as a deck extension. Given the unfortunate circumstances of this entire issue, which we are all too familiar with, I feel that this compromise position is more than fair to Mr. Butler and, frankly, more than he deserves. �\�cerel Mike Clary Attachments Xcs David Groverman- Building Department Gilbert Wong - Public Works Department 05/02/02 THU 13:51 FAX 1 970 468 5264 CS 5 � '� yo3 0 s 0: vi 3 0 If i IL i f s r Y. v' a v 0 q o a� 3 M r ppo d L r .s s 3 � F d v � o s � b 6 0 Q� z-° u Y V "a9 0 r = S G s a f f d Y r o v� a Q003 Z 5 Q� d 0 If i IL i f s r Y. v' a v 0 q o a� 3 M r ppo d L r .s s 3 � F d v � o s � b 6 0 Q� z-° u Y V "a9 0 r = S G s a f f d Y r o v� a Q003 Z 5 05/02/'02 TAU 13:51 FAX 1 970468 5264 U004 �... .. , , 3 I9 II II I ol❑ 0 zo x A 0, C C- .-O „ V, A." Mr. Jay Garcia Senior Planner Planning Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Dear Mr. Garcia: April 10, 2002 PE _ z. ,ED BY PLAN t4' DEPARTMENT CITY C _ ^-•EACH AM ArR_ 0 9 2002 PM ;314j516 .A. Re: Modification Permit No. MD2002 -018 (PA 2002 -037) 911 West Bay Avenue, Balboa, CA In April 2000, Mr. Robert Butler applied to the Planning Department to build a patio cover on the front side of his house at 911 West Bay Avenue. According to the drawings, this new structure would have an outwardly sloping (toward West Bay Ave) shingled roof. In their letter dated May 10, 2000, the Planning Department approved Mr. Butler's request, but specifically noted that "the patio cover shall not be used as an extension of the existing second floor deck ..." (Condition No. 3). Construction commenced about May 1, 2001 and it became immediately apparent that the horizontal beams were of sufficient strength to support a deck. In my letter to Mr. Charles Spence of the Planning Department dated May 5, 2001, I noted my concern that this `patio cover" would soon be used as a deck extension which would seriously impact our view of the beach and bay. I also pointed out that the eastward extension of the new structure (toward my house) was approximately four feet more than had been approved by the Planning Department. This unapproved four foot extension was subsequently removed. On October 6, 2001, Mr. Butler and his contractor commenced work on moving the railing from the original deck to the outside edge (toward West Bay Avenue) of the "patio cover ", thereby making the patio cover into a deck extension. This was done in total disregard of the Planning Department's conditions of approval. It is my understanding that Mr. Butler was subsequently served with "citations" requiring him to move the railing back to its original position. Since there is an existing two -story house directly in front of our house, our beach and bay views are to the northwest which puts us in direct conflict with Mr. Butler's deck extension. Most if not all, of the Modification Committee have visited Mr. Butler's and my houses and can appreciate that the deck extension railing does have a significant impact on our views. Therefore, we request that the Modification Committee deny Mr. Butler's request to retain the deck extension. Sincerely, Michael R. Clary \> 'TpCk VJ e�fba� Pyle. J,� Apr 09 02 U8:50a Blair T. Bryant 001 (9491 675 - "l295 Blair T. Bryant P.O. Box 4066, Newport Beach, California 92661 -4066 Sent via FAX: (949) 6443250 April 9, 2001 Re: Modification Permit No. MD 2002 -018 (PA 2002 -037) 911 West Bay Avenue, Balboa, CA Mr. Jay Garcia Senior Planner Planning Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Dear Mr. Garda: The Building Department, Planning Department, Building Inspectors, Code Enforcement, City Attorney, and Modification Committee all enforce Newport Beach zoning and building codes. The deck built over the last year at 911 West Bay Avenue thwarts the City's building codes and the City's processes. I request your committee uniformly enforce the established Newport Beach building codes, regulations, and process and thus deny the above referenced modification permit. Sincerely, Blair T. Bryant p.l t� Exhibit No. 4 Photographs submitted by the applicant �3Te 3,mpwS 1,42,gg IV p. it 1! f i111, 77. _ ��. .' �� ;t� � �� -� a ��,. Exhibit No. 5 Project plans o;r-- Z. --t �7��lz r P.1 ILA LP R. BUTLER GABLE ENGINEERIN GG A I H.y eou 1' O C 0 «acL, II LP R. BUTLER GABLE ENGINEERIN GG A I H.y eou 1' O 4 0 «acL, I !A P T' ' I L e e a e u vlti � I FFF aO�Z I ;r Cg P � • °g � :PZw . e P lO v N { .. __. __ ._ u g •— R. I3UTLER .S caeL¢ E - ',p Y ;� ,� All Bar Am - FewyorL ❑en l��CalifoniP rwau• k , `tA., Attachment C Planning Commission staff report dated July 18, 2002 INTENTIONALLY LEFT BLANK ,1 CITY OF NEWPORT BEACH Hearing Date: July 18, 2002 PLANNING DEPARTMENT Agenda Item: 1 r 3300 NEWPORT BOULEVARD Staff Person: James Campbell NEWPORT BEACH, CA 92658 (949) 644 -3210 (949) 644 -3200; FAX (949) 644 -3229 Appeal Period: 14 days after final action REPORT TO THE PLANNING COMMISSION PROJECT: Butler Residence (PA2002 -037) 911 W. Bay Avenue SUMMARY: Appeal of the decision of the Modifications Committee's approval of Modification Permit No. 2002 -018. ACTION: Sustain, Modify or Deny Modification Permit No. 2002 -018. APPELLANT: Robert Butler 911 W. Bay Avenue, Newport Beach Introduction This item was continued from June 20, 2002 at the request of staff due to the receipt of a 20 -page report with exhibits from the applicant on June 19, 2002. Insufficient time was available to review the applicant's report prior to the meeting in order to formulate a response. Several Commission members also expressed a need for additional time to review the submitted report. Discussion The applicant's report is attached as Exhibit No. 1. Staff has numbered each of the paragraphs for reference purposes and has prepared a corresponding response: Cl: This comment simply expresses an opinion and a statement of the purpose of the appeal. C2: The appellant is correct that the description in the application and the revised description contained in the May 8, 2002 approval letter are not identical. Both descriptions are contained within the exhibits to the June 6, 2002 Planning Commission staff report. The May 81h letter clearly denotes that "request as modified and approved." At issue is the relocation of the second story deck railing within the required 10 -foot front yard setback contrary to Modification Permit No. 5080. The relocation of the railing extends the second floor deck within the setback. C3: This comment simply expresses an opinion contrary to staffs belief that all relevant facts were considered by the Modifications Committee and staff. C4: The background contained in the staff report is a summary of events related to previous approvals and was not intended to present all information. C5: On May 3, 2001, the Modifications Committee did approve Modification Permit No. 5080 subject to 4 conditions of approval. This approval is documented in the approval letter dated May 10, 2001. The appellant's "Exhibit No. 1" is not a copy of the application on file. A copy of the original application is attached as Exhibit No. 2 of this report. C6: through C9: These comments express testimony regarding an approved Modification Permit No. 5080, which decision was not appealed. This appeal is on Modification Permit No. 2002- 018, making the comments not relevant to this appeal. C10: MD2001 -073 was a request by the applicant to modify Modification Permit No. 5080 to allow the extension of the deck/patio cover within the eastern side yard setback. This request was denied by the Modifications Committee on June 27, 2001. The applicant again chose not to appeal the denial of MD2001 -073 but rather appealed the Director's determination that the modified deck was not in substantial conformance to MD No. 5080. The Planning Commission upheld the Planning Director's determination after a public hearing on July 19, 2001. The applicant did not appeal this decision to the City Council. It is important to note that the railing position, which is the subject of this present proceeding, was shown in compliance with Condition No. 3 of MD No. 5080 as it was not located within the required 10 -foot front yard setback. Staff understands that the deck railing was actually constructed in full compliance with MD No. 5080. The subsequent relocation of the railing 2' -10" north within the required front yard setback to the leading edge of the patio cover is the event that led to code enforcement activities leading to administrative citations and fines and this proceeding. Cl l: through C26: These comments express testimony regarding an approved Modification Permit No. 5080 which decision was not appealed. This appeal is on Modification Permit No. 2002- 018, making these comments not relevant to this appeal. C27: This comment simply expresses an opinion contrary to the facts that lead to the present proceeding. Staff did receive a complaint from Mr. Clary, a neighbor, indicating that the deck rail was moved. A review of the approved plans and a site visit confirmed this fact. A review of permit records found the lack of a permit to relocate the deck railing that extends the deck into the required front yard setback. Condition No. 3 of MD No. 5080 clearly prohibits the extension of the deck and rail within the required front yard setback. The applicant indicates in his application for the subject Modification Permit that "it was an oversight that a request was not made to move the railing to the edge of the extended deck patio cover." However, the fact remains that no approval was granted for the deck to extend into the front setback. C28: through C31: Staff believes that Condition No. 3 of MD No. 5080 is valid and the applicant should have contested the validity of the condition by filing an appeal in accordance with applicable provisions of the Municipal Code. Due to the fact that the applicant did not exhaust the administrative remedies available to him in accordance with Chapter 20.95 of the Municipal Code, staff considers the comments immaterial to this appeal. Butler Residence (PA2002 -037) July 18, 2002 Page 2 of 10 1 3 C32: Code Enforcement Supervisor Mr. J. Sinasek has issued 6 citations to the appellant for violations of MD No. 5080. Unpaid fines total $2,300 at this time. It is not the policy of the City to exonerate fines in conjunction with application requests. The City only exonerates fines when administrative citations are issued in error. It is staff s contention that the'citations and fines were applied in accordance with established City policy for documented violations. The appellant has the ability to contest the citations and fines in accordance with the procedures outlined on the reverse of the citation. The appellant has not filed an appeal of the citations issued and in accordance with the provisions under "rights of appeal" failure to file an appeal within 15 days of the citation shall constitute a waiver of the right to an administrative hearing and adjudication by an administrative hearing officer of the citation or any portion of the fine. A blank copy of the administrative citation with the appeal provisions is attached as Exhibit No. 3. Staff believes the issue of the citations and fines should be disregarded. C33: & C34: These comments express testimony regarding an approved Modification Permit No. 5080, which decision was not appealed. This appeal is on Modification Permit No. 2002 -018, making these comments not relevant to this appeal. C35: Staff concurs that the subject application is a request to relocate the railing. C36: This comment expresses an opinion. C37: Exhibit No. 3 of the June 6, 2002 staff report is indeed not a photograph. Staff was attempting to point to Exhibit No. 5, which is the project plans that show the proposed location of the deck railing. Referring to the photographs contained in Exhibit No. 4 and applicant's Exhibit 2 also illustrates the position of the existing railing within the required front yard setback. C38: Staff understands that the subject application is an attempt to authorize the deck railing in its present condition. C39: Staff thanks the appellant for identifying the scrivener's error. The required front yard setback is indeed 10 feet as established by Districting Map No. 10. C40: The description of the deck with railing is an attempt to describe the location and width of the existing deck at the front of the building. Staff believes that the general description is reasonably accurate, however it is acknowledged that it is not exact. Based upon the submitted drawings, the railing is setback approximately 7 feet from the east property line and 3' -6" from the west property line. C41: Staff has reviewed the description of the portion of the deck that was disapproved with the description contained in the approval letter of MD2001 -018. Staff believes that they are consistent and staff agrees that both descriptions do not mention the railing. The elimination of the corresponding railing with the disallowed deck was the intent of the Modifications Committee according to Mr. J. Garcia, the Modifications Committee Chairman. References to "deck" and "deck extension" within Conditions 2 and 3 include the corresponding railing as it is a required element of the deck per the Building Code. Butler Residence (PA2002 -037) July 18, 2002 Page 3 of 10 L( f: I C42: The Modifications Committee fully understood that the applicant did not consent to the removal of the deck surface as required by the Committee action on the application. The Modifications Committee was unable to make the finding that the location of the deck and railing as originally proposed by the applicant was not detrimental to the area. By reducing the size of the deck, the Committee was able to make the finding and approve the project. C43: The action on the subject application does have a legitimate public purpose. A Modification Permit requires a request must not be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the area or detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City. Further, a Modification Permit must be consistent with the legislative intent of the Zoning Code. This finding is broad and private issues have been considered historically with Modification Permit requests. Failure to make the finding of no detrimental impact in any application sets a precedent that has a wider public impact than the limited physical impact of the application. Through the exercise of discretion, the Modifications Committee felt that approval of the deck and rail in its present condition was detrimental to the abutting property. Additionally, they felt that approval of the request as proposed could set a poor precedent possibly to be used by other property owners or developers to propose future encroachments within front yard setbacks. Such requests over time erode the purpose and intent of establishing setback standards inconsistent with the legislative intent of the Zoning Code. C44: Previous approvals did not authorize the applicant to construct the deck railing in its present location within the required front yard setback. The applicant relocated the railing with the full knowledge that it was not permitted. Condition Nos. 1 and 3 of Modification Permit No. 5080 prohibited this action and the appellant has knowledge of these restrictions. Staff met with Mr. Butler on several occasions to clarify and design the conditions of approval. During one meeting in June of 2001, Senior Planner James Campbell told Mr. Butler that the railing could not be relocated to the leading edge of the deck without a Modification Permit and a Building Permit. Staff can only conclude that the appellant does not recall the meetings with staff or misunderstood the conditions of approval after clarification by staff. C45: Staff believes this comment is inaccurate and inappropriate. C46: During the April 24, 2002 hearing before the Modifications Committee, staff inquired of the appellant's representatives if they were empowered to accept a compromise design. Design modifications to reduce the eastern portion of the deck were generally discussed, but a specific design was not identified. Since the representatives lacked the authority to consider design modifications, the Modification Committee continued the item. Subsequent to the April 24h hearing, both Mr. Clary, the appellant's neighbor and the applicant proposed design alternatives stemming from the April 24d' discussion of design changes by the Modifications Committee. C47: A report of those discussions has been made in the response to C46 above. Although a report of the negotiations between the parties was not reported upon, the letters and sketches Butler Residence (PA2002 -037) July 18, 2002 Page 4 of 10 )4' prepared by both parties is contained in Exhibit No. 3 of the June 6, 2002 Planning Commission staff report. C48: This comment seems to contradict the statement within C46 as it indicated that design alternatives were discussed. As noted in the response to C46, staff recalls that design alternatives were generally discussed. The illustration was a simple notation on the file copy of the plans indicating a point approximately 1 foot east of the doorjamb as a possible termination point for the deck and rail. The exhibit referred to in this comment (Exhibit 2) is the photograph of the deck and railing as it exists today and does not depict the location of the railing as approved by the Modifications Committee. Due to the change in the deck and rail required by the Committee and the lack of a plan for the modified project, the Modifications Committee included Condition No. 4 that required revised plans to reflect the modified deck. The revised plans have not been prepared to date. C49: The plans attached as Exhibit No. 5 of the June 6, 2002 staff report is a copy of the original plans submitted by the appellant. Exhibit No. 4 of this report is a copy of a portion of the first floor plan where Mr. Garcia indicated a point approximately 1' -0" easterly of the doorjamb. Staff did not report the full extent of the negotiations to the Commission as it was not a central issue of the case. Staff believes that the responses contained within this report regarding this issue describe the negotiations that took place and assist in clarifying the actions taken by the Modifications Committee. C50: Staff concurs with this statement. C51: Staff indicates in the June 6, 2002 staff report that the actions of the Modifications Committee are reflected in the approval letter dated May 8, 2002. Staff did not restate or reanalyze the case for the Commission and simply refers the Commission to the record. C52: See response to C2 above. C53: The appellant is correct in that the deck/patio cover was approved through the approval of MD No. 5080, but the railing encroachment within the required front yard setback was not. The appeal of the Planning Directors determination of substantial conformance related to the horizontal extension of the decking to the east, not it's encroachment within the front yard setback. C54: Staff agrees that the primary subject of this proceeding is the location of the railing within the required front yard setback. The reduction and modifications of the deck are also relevant. The description included in the staff approval letter was not intended to be something more than what was under consideration. C55: Staff disagrees with this comment. C56: The removal of the denied 3'-4" horizontal extension of the deck satisfied MD No. 5080. Butler Residence (PA2002 -037) July 18, 2002 Page 5 of 10 , r C57: The appellant has accurately stated the applicant's stated project description and justification from the application. C58: The approval letter dated May 8, 2002 provides partial relief to the applicant by approving the western portion of the existing relocated railing in exchange for a reduction in the deck and railing on the eastern portion. It was felt that the eastern extension of the usable portion of the deck by the relocation of the railing was detrimental to the abutting property. C59: Staff believes that the findings are relevant to the approval of the modified deck and railing. C60: This comment expresses an opinion contrary to the facts at hand in staff s opinion. C61: Staff believes it has investigated the facts of the matter as required. C62: The appellant has correctly cited a portion of the authority of the Modifications Committee contained within Section 20.93.020.13.1, with emphasis added. C63: The appellant has correctly cited Section 20.93.035, Duties of the Modifications Committee, Subsection A, with emphasis added. C64: The appellant has correctly cited Section 20.93.035, Duties of the Modifications Committee, Subsection D, with emphasis added. C65: The appellant has correctly cited Section 20.93.040, Required Findings for a Modification Permit, with emphasis added. C66: The applicant has cited Section 20.00.030, Effect and Intent of the Zoning Code, with emphasis added. C67: The applicant has cited Section 20.00.065, Rules for Interpretation of the Zoning Code Subsections A and D. C68: The applicant has cited Section 20.00.015, Purpose of the Zoning Code, with emphasis added C69: The appellant seems to be describing the specific encroachment in this case to be tied to the previously approved Modification Permit. The specific encroachment request is stated within the application for MD2002 -018 attached as Exhibit No. 3 of the June 6, 2002 Planning Commission staff report. Since this comment relates to the outcome of Modification Permit No. 5080, which the applicant chose not to appeal, staff considers the comment immaterial. C70: through C72: These comments relate to the outcome of Modification Permit No. 5080, which the applicant choose not to appeal; therefore, staff considers the comment immaterial as the appellant did not exhaust the administrative remedies available to him in accordance the Chapter 20.95 of the Municipal Code. C73: The majority of this comment relates to the outcome of Modification Permit No. 5080, which the applicant choose not to appeal, therefore, staff considers the comment immaterial, as the Butler Residence (PA2002 -037) July 18, 2002 Page 6 of 10 J n l If. appellant did not exhaust the administrative remedies available to him in accordance the Chapter 20.95 of the Municipal Code. The City contends that the removal of the 3'-4" horizontal extension of the deck denied by the City satisfied the provisions of Modification Permit No. 5080. The location of the deck railing was in compliance with Modification Permit No 5080 as it was constructed per the approved plan and it did not encroach within the required front yard setback. The City contends that the deck railing was subsequently relocated without proper permits inconsistent with Modification Permit No. 5080, which the applicant now seeks relief through the subject proceeding. C74: Staff believes that the Modifications Committee discharged its duties as required by the Municipal Code and applied discretion in acting on the application which is necessary as the required finding for approval of a modification permit states that the request "may" be approved. Discretion is necessary due to the language of the required finding even though Section 20.93.035, Subsection D declares the actions of the Modifications Committee administrative acts. C75: See the response to C43. C76: Staff agrees with the first 3 sentences of this paragraph. The Modifications Committee disagrees, through its action on the subject application, with the appellant's contention that the deck extension as requested did not impact the neighbor's view. The Planning Commission can have a different opinion on this finding, which could lead to overturning the Modification Committee's decision to reduce the eastern portion of the deck. C77: See response to C43. C78: The findings contained within the approval letter dated May 8, 2002 contain sufficient facts to support Condition Nos. 2 and 3. The second sentence of Condition No. 4 allows for an extension of the requirement to timely obtain a building permit in the event that the permit be appealed or called for review by the Planning Commission, otherwise the applicant would have had to obtain a building permit for a modified project during the appeal process. C79: See comment to C43. Staff agrees that California law does not recognize a natural right to air, light or an unobstructed view. However, the required finding for the approval of a Modification Permit can be applied to regulate private issues if the requested Modification Permit is deemed detrimental to health, safety, peace, comfort and general welfare of persons residing or working in the area or detrimental or injurious to property or improvements. C80: & C81: A portion of these comments relate to the outcome of Modification Permit No. 5080, which the applicant choose not to appeal, therefore are not relevant to this appeal. Other comments make references to Variance requests, which is not the subject of this proceeding and is therefore not relevant. The statements indicating that the City has granted balcony encroachments within the front yard for other properties is not relevant as it does not address the required finding for approval and the specific circumstances of this case. For the Commission's consideration, the appellant submitted a photographic list of purported similar deck, balcony and awning encroachments to staff during the summer of 2001 as evidence that Butler Residence (PA2002 -037) July 18, 2002 Page 7 of 10 a- the City has permitted similar encroachments. Staff investigated the claim and found that many of the cases were existing nonconforming conditions allowed to continue by right. The encroachments on Lido Isle were approved through a past blanket Variance issued in the 1960. Several of the reported instances were determined to be legal awning encroachments and several were found to be illegal and code enforcement activities were commenced. C82: The letter was not received by the Planning Department. C83: All due process requirements for Modification permits were followed in this case. Staff disagrees with the contention that the Committee was biased. In fact, staff believes that the impartiality of the process and decision is proven by the fact that a portion of the deck encroachment was approved, although the prior Modification Permit (No.5080) prohibited any encroachment for the deck. C84: Condition Nos. 2 and 3 grant partial relief that the application seeks and requires the modification of the eastern portion of the deck as indicated in Condition No. 3. C85: The present proceeding provides the applicant due process privileges. Staff believes that the appellant's rights have not been infringed. C86: Staff believes that the action of the Modifications Committee on May 10, 2000 is not material to the subject appeal. C87: No comment. C88: See response to C43. The Modifications Committee disagrees through its action on the subject application with the appellant's contention that the deck extension as requested did not impact the neighbor's view. The Planning Commission can have a different opinion on this finding, which could lead to overturning the Modification Committee's decision to reduce the eastern portion of the deck. C89: This comment appears to be related to the previous comments related to Modification Permit No. 5080, which if this is the case, the comment is not relevant and Modification Permit No. 5080 is not the subject of this appeal. If the comment is directed to Modification Perini[ No. 2001 -018 (the subject application), the applicant was afforded the opportunity to discuss potential changes to the project before action was taken. C90: See response C43. C91: And C92: The Modifications Committee felt that further modification of the decking was necessary to avoid the future extension of the deck surface inconsistent with the approval of MD2001 -018. If an extension were completed, its location closer to the abutting neighbor and its use would impinge upon the view and privacy to the detriment of the neighbor inconsistent with the required finding for approval of a Modification Permit. The Committee believed that this future extension is probable given the specific circumstances of this case. Staff believes Butler Residence (PA2002 -037) July 18, 2002 Page 8 of 10 J r q IAA that there is a legitimate connection between the findings of fact and the condition requiring deck modification. C93: The appellant was afforded the opportunity to discuss and debate his current application, Modification Permit No. 2001 -018 with the Modifications Committee. The comment relating to Modification Permit No. 5080 is not material to the subject appeal. Please refer to response C81 regarding equal consideration. C94: Modification Permit No. 5080 did not authorize the deck railing to encroach within the required front yard setback. The appellant contends that the changes required in conjunction with the approval of Modification Permit No. 2001 -018 are not agreeable and unreasonable. An alternative resolution may be to overturn the approval of Modification Permit No. 2001- 018. This alternative will require the deck railing to be relocated to its approved position in accordance with Modification Permit No. 5080 and eliminate Condition No. 3 that would otherwise require changes to the eastern portion of the deck. This action will also preserve the view and privacy of the abutting neighbor. C95: The appellant's compromise proposal is outlined in a letter from Berard Leckie dated May 3, 2002 to Mr. Jay Garcia. This letter is attached within Exhibit No. 3 of the June 6, 2002 Planning Commission staff report. As noted in response to C32, it is not the policy of the City to exonerate fines in conjunction with application requests. It is staffs contention that the citations and fines were applied in accordance with established City policy for documented violations. The Planning Commission has no jurisdiction over administrative citations or fines levied. Since the appellant has failed to file an appeal of the citations, staff is not aware of a remedy to the fines other than paying them even if the Planning Commission should choose to grant the appeal. Conclusion The appellant's report has not convinced staff to recommend that the Commission modify the decision of the Modification Committee related to the subject application. However, the Commission might not agree with the determination made by the Modifications Committee that the deck extension as presently constructed in noncompliance with Modification Permit No. 5080 is detrimental to the abutting property. If this is the decision of the Commission, staff recommends that the Commission modify the decision to approve the applicant's request. As noted in response C94, the Commission can deny the appeal and overturn the decision of the Modifications Committee and deny Modification Permit No. 2001 -018 if it is believed that the approved encroachments are detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the area or detrimental or injurious to property or improvements in the neighborhood or the general welfare of the City or that the request is inconsistent with the legislative intent of the Zoning Code. Staff believes that facts are in evidence to support either conclusion. Buller Residence (PA2002 -037) July 18, 2002 Page 9 of 10 1 ll Submitted by: PATRICIA L. TEMPLE PI 'ng Director v, jen c Exhibits Prepared by: JAMES W. CAMPBELL Setyo1rAPlanner Vv l 1. Applicant's report dated June 18, 2002. 2. Modification Permit No. 5080 application 3. Administrative citation form (both sides) 4. Copy of a portion of the first floor plan with the notation showing a point approximately 1 foot east of the doorjamb, made by Mr. Garcia, Modifications Committee Chairman. Butler Residence (PA2002 -037) July 18, 2002 Page 10 of 10 III' a .i n 0 I I LAWRENCE K. DAVIDSON Hearing Date: June 20, 2002 APPELLANT'S REPORT Agenda Item: 8 537 NEWPORT CENTER DRIVE, SUITE 537 NEWPORT BEACH, CA 92660 Staff Person: James Campbell (949) 500 -6275; FAX (949) 496 -3711 (949) 644 -3210 Appeal Period: 14 days after final decision APPELLANT'S REPORT TO THE PLANNING COMMISSION PROJECT: Butler Residence (PA 2002 -03'0 DEp.,F,?t•:iF.NT PLANNING 911 West Bay Avenue „��• -- -;; =.,;H CITY Cc SUMMARY: Appeal of the Conditions Attached to .Approval of JUf 1 Modification Permit No. 2002 -018 AM 7 8191101111121112131 1516 RECOMMENDED Modify the Original Decision of the Modifications ACTION: Committee's approval of Modification Permit No. 2002 - ' 018 APPELLANT: Robert S. Butler 911 West Bay Avenue, Newport Beach LOCATION: Approximately 200 feet west of the intersection of 9'b Street and Bay Avenue, Balboa Peninsula LEGAL DESCRIPTION: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West GENERAL PLAN: Two - Family Residence ZONING DISTRICT. R -2 (Two Family Residential) In order that the Planning Commission should have a complete understanding of this Appeal and to supplement the Staff Report to the Planning Commission that omits important information and evidence, Appellant submits the following report so that the Planning Commission is fully informed about the circumstances of the case pending before it on this appeal. Introduction. This matter is basically a neighbor's complaint about Appellant's deck extension /patio cover project that encroaches into the front yard setback of the two family residence located at 911 West Bay Avenue, on the Balboa Peninsula. The neighbor's C I complaint alleges that his private view from his adjacent property is negatively impacted by the project. The evidence refutes this claim. Notwithstanding the obvious di minimus impact of Appellant's deck extension /patio cover on the view, the neighbor has collaborated with City Staff to exploit and to misuse enforcement of front yard set back ordinances to Exhibit No. 1 June 16, 2002 Page 2 of 20 stop Applicant's project, to assess fines against Appellant for purported violations of Modification Permit 5080, and to otherwise harass Appellant causing interference with C contract rights and expense, and to deprive him from reasonable use of his property in violation of Appellant's constitutional, civil and property rights. The entire City process has so far reeked of manifest injustice and unfairness. The relief sought by this appeal is simply a correction of the injustices perpetrated in the name of orderly zoning practices. This conclusion is fortified with a brief examination of the Staff Report to Planning Commission. Under the Appe section at page 3 of 4, the Staff alleges "The appellant has offered no facts to support [its] position." At the last sentence of this section, Staff states c2 "The facts to support the approval of the modified project are contained within the attached approval letter (Exhibit 1)." Turning to Exhibit 1 you will observe that there is a statement of Original Request. Compare that purported request to the Project Description and Justification Exhibit 3 of the Modification Permit Application 5080A that is the Appellant's Request for Relief. The two requests do not match. As more filly appears below, Appellant contends that Staff has invented issues that are irrelevant and not part of his request for action, and the Modifications Committee ignored C 3 the request for relief presented by Appellant. Therefore, the Staff analysis is irrelevant to the outcome of this Appeal. Procedural History of Application: The Staff Report to the Planning Commission presented background to this appeal. Because the Staff report omits material evidence about the background, and because Cy that information is necessary to serve fundamental justice in this appeal, Appellant has a right to present opposition to the conclusions presented by Staff and because Staff has `opened the door" to this inquiry. Modification Permit No. 5080. On May 3, 2000 the Modifications Committee unconditionally and unanimously approved an encroachment into the front yard set back applicable to the two family residence at 911 West Bay Avenue, Balboa, CS California within the City of Newport Beach by means of Modification Permit No. 5080 based on the Application for Modification Permit that requested a "deck extension /patio cover". Copies of the Application and Permit are attached as Appellant's Exhibit No. "I", and fiilly incorporated herein by this reference.' On the application Appellant clearly applied for modification of the front yard set back requirements to accommodate a deck extension /patio cover that was described in the application for relief from strict application of the Zoning Code, as follows: Project Description and Justification (describe briefly) Bequest to permit an CIO encroachment of 4" beyond the permitted eam enavacbment of 2 feet 6 inches into the required 10'fiontyard setback on Bay Ave. on property located in the B -2 Distract I In the interests of saving space, all Appellant's Exhibits are fully incorporated herein by the reference to such Exhibits as presented in this Appellant's Report as if fully set kith at the place of reference in this Report. V_. a -.-j June 16, 2002 Page 3 of 20 However, Staff did write a formal finding to Modification Permit 5080, as follows: s r a -1; "deck extension /patio toter" The reference to "deck extension /patio cover' is placed in quotation marks on the application because this description of the project was suggested by an employee of the City of Newport Beach on April 14, 2000. The evidence will show that G I Appellant went to City Hall to find out about requirements for his project, and he met with Eugenia Garcia. After discussing the project with her and the (Uri hae,� use that Appellant wanted, she suggested that he describe it in the request by personally hand writing the words: "deck extension /patio cover" on a copy of the Appellant's application. From this point forward, Mr. Butler understood that the structure he was building was a "deck extension /patio cover" for purposes of the Modification Permit he applied to obtain. This evidence is uncontroverted, Mr. Butler is prepared to testify as to the foregoing events, and Staff has ignored this claim through out this modification permit process! Ci"7 Moreover, Staff has offered no credible evidence to rebut Mr. Butler's offer of testimony. Yet, this written request on the face of Mr. Butler's application for modification permit no. 5080 was somehow overlooked (or ignored ?) by Staff at the hearing on ',. the application that was heard on May 3, 2000. The record is silent except for what is written on the application. With Appellant in attendance at the hearing for the application for modification permit, with no opposition presented to Appellant's request for action, with no testimony or evidence presented in opposition to the +� Appellant's application, and without any admonition by Staff conducting the hearing that the granting of the Modification Permit would ultimately have conditions attached that severely limited the scope of the request, the formal Modification Permit dated May 10, 2000 (seven days after the hearing) provided that the "patio p cover shall not be used as an extension of the existing second floor deck, unless an amendment to this approval is first obtained." (See condition no. 3, page 2 of the permit letter) 1 t Staff failed to disclose to Appellant, and to the Planning Commission that the conditions imposed on this original Modification Permit 5080 occurred after Staff received two letters in opposition to the Appellant's application that arrived at City Hall afferthe May 3, 2002 hearing. The letters came from the owner and the tenant G� of Mr. Butler's easterly neighbor. They complained about interference with their 1 private views resulting from Appellants project After receiving these letters, Staff offered Mr. Butler no opportunity to refute the claims stated in the letters that were received after the May 3 hearing and before the Letter Dated May 10, 2000 was issued and executed by Eugenia Garcia, Associate Planner and Chair of the s Modifications Committee. 3 However, Staff did write a formal finding to Modification Permit 5080, as follows: s r a -1; June 16, 2002 Page 4 of 20 -1 "6. The proposed patio cover will not obstruct views from adjoining residential properties because: The view to the bay is not across the subject p property, but straight out towards the street." G A photograph of the view is attached hereto, fully incorporated herein by this reference as Exhibit "2". Staff did not include this photograph in your Planning Commission packet for this hearing tonight. Modification Permit No. MD2001- This disapproved request from Appellant was to allow the extension in width of the previously approved solid roof patio cover. Since the request was denied, Appellant removed the extension portion of the "deck extension /patio cover" approved in 3 Modification Permit 5080 to comply with the decision after appealing the decision to the Planning Commission. Once there, Staff characterized the issue as whether the plans that were submitted for Modification Permit 5080 were substantially the same as the plans on which the Building Permit was issued. 's The Background Section of the Staff Report dated June 6 2002: The Staff Report states, at the bottom of page one: 3 } "During construction, staff discovered an inconsistency between the approved Modification Permit and the building plans. The Planning Director determined that the building plans were not in substantial conformance with Modification Permit No. 5080." ) Appellant sets forth the following points to refute the conclusion presented by the Staff report; to itemize evidence that Staff failed to disclose in prior administrative hearings; and to organize the opposition to the Modification Permit that was l conditionally granted on May 8, 2002: ' On or about May 24, 2001, Appellant attempted to verify whether or not there was any discrepancy between the Modification Permit and the Building j Plans that were approved on August 10, 2000, September 7, 2000, November 13, 2000, and December 20, 2000. Mr. Butler contends that the plans submitted on August 10, 2000, substantially conformed with the Modification Permit 5080. In response to his inquiry, Mr. Butler received a letter from Faisal Jurdi, P.E., C.B.O., and Deputy Building Director for the City of Newport Beach. A copy of the original of the letter Mr. Butler received is attached hereto; and fully incorporated herein by this reference as Exhibit "31'. Mr. Jurdi stated, "We no longer have the drawings you initially submitted into plan check on August 10, 2000." The City lost the proof Mr. Butler had, besides his J (co"n� �ed CID C11 CIZ kC6 P=' June 16, 2002 Page 5 of 20 ._l 3 i ) testimony, that what he submitted substantially complied with the Modification Permit 5080. The basic evidence necessary to determine whether the Modification Permit and building plans are consistent is gone! This contention was raised earlier in these proceedings concerning 911 West Bay Avenue. On June 6, 2001, Bernard A. Leckie, counsel for Mr. Butler, wrote Dennis D. O'Neil, Esq., City Councilman for the City of Newport Beach about this problem describing it as a "tempest in a teapot" A copy of this letter is attached hereto, marked Exhibit "4" and fully incorporated herein by this reference. Appellant apologizes for the quality of this copy, but it came from the files of the City of Newport Beach. A copy of this letter was included by Staff in its Report to the Planning Commission on an appeal heard July 19, 2001 on an issue narrowly defined by Staff as a question of substantial conformance between the two sets of plans. However, Staff omitted any reference to the fact that the original building plans that were filed August 10, 2001, were lost Moreover, Staff never mentioned that material fact in its report to the Planning Commission. Moreover, when Dennis D. O Neill faxed the Letter from Bernard A. Leckie to Sharon Wood, Patty Temple, and Jay Elbettar he sent a companion email that was not disclosed to the Planning Commission and was not in the file on the date Mr. Butler inspected it See the last page of Exhibit "4" for the reference to the emailed message. C13 CiL} Neither Staffs Report to the Planning Commission nor the Minutes from the July 19, 2001 hearing report about the loss of the plans upon which the decision turned. How could Staff narrowly characterize the issue as being Ci jS merely to compare two sets of plans when it knew in May, 2001 that the most important evidence of what was submitted to the Building Department was lost? 3 Additionally important in the Leckie Letter dated June 6, 2001 is the disclosure at paragraph 3, page 2 that the City cannot find the original plans G for the project. Therefore, the Staff should have brought this fact to the Commission's attention so it could have disbursed substantial justice or at least interviewed witnesses. Dennis D. O'Neill had presented the letter to Staff well before the hearing on June 11, 2001. Instead, Staff's July 19, 2001, Report under "Analysis" simply states that "[s]taff believes that the building plans were issued in error." The report G 1 f "covers -up" the embarrassment associated with having lost the original plans at the Building Department. The Planning Commission relied on the facts before it on July 19, 2001; and C j e j it acted without knowledge that the City had lost the plans. Chairman Tucker stated, "That if a plan had not been submitted that was different than ;.�t. F June 16, 2002 Page 6 of 20 what the Modification application showed, staff would not have been in a • position to make an error." Yet Mr. Tucker did not know at the time he chastised Mr. Butler at the July 19, 2001 hearing, that the Building Department Staff had lost the plans that G ] l were submitted for the Building Permit; so, Mr. Tucker could not be sure why staff was in a position to make an error. y It is submitted that the embarrassment associated with the loss of the initially approved building plans has tainted these hearings and makes it impossible C2z% for Appellant to have a full, fair and impartial administrative hearing before the agencies of the City of Newport Beach because city staff is alienated ") against him. ') Moreover, Mr. Tucker (consistent with the theory espoused, above) goes on i to say (as reported from the minutes of the meeting), "The question comes 2 [sic] is the burden going to fall on the person who submitted a plan that was C 21 1 not consistent with the Modification permit or is it going to fall upon the City and the public? That is what the Commission will weigh and decide tonight" .� The June 6, 2002, Staff Report to the Planning Commission continues: "The applicant Sled an appeal of the substantial conformance determination, which was considered by the Planning Commission on July 19, 2001. The Planning Commission upheld the Director's determination. The applicant decided not to pursue further appeals o � i Unfortunately, Mr. Tucker apparently placed the burden of proof on Mr. Butler to produce the plans he had filed with the City of Newport Beach. Staff did not inform the Commission that those plans were lost as of May 24, 2001, a date that is eight (8) weeks prior to the Thursday, July 19, 2001 hearing on the issue that Staff narrowly defined. Because the City lost the L, n n plans, it was impossible for Mr. Butler to prove that what he submitted for GL his modification permit was in substantial conformity with the plans issued by the Building Department. Moreover, once the August 10, 2000 plans were lost, it became impossible for Building Department Staff to compare the approved lost plans against those that the Building Department subsequently approved on September 7, 2000, November 13, 2000, and December 20, 2000 when they were submitted for minor revisions. In summary, there is no competent evidence that shows that the plans that Appellant submitted on August 10, 2000 were not in substantial conformity G�3 with the Modification Permit; therefore, the Staff conclusion is not based on credible, substantial evidence. Since the conclusion is incredible, it is false and misleading. .� The June 6, 2002, Staff Report to the Planning Commission continues: "The applicant Sled an appeal of the substantial conformance determination, which was considered by the Planning Commission on July 19, 2001. The Planning Commission upheld the Director's determination. The applicant decided not to pursue further appeals o � i t i r i i i i i s i t i i i t i i i June 16, 2002 Page 7 of 20 and changed the project to comply with Modification Permit No. 5080. Of course, that is what happened; however, as discussed above, the Planning Commission did not have all the evidence for full and fair consideration of the appeal, and the next door neighbor, Michael Clary, stated (at the bottom of the Planning Commission Minutes, at page 32), "However, we do object to the 3' — 4' foot extension to the east of the patio cover that was not approved by the Planning Department. Both the extension of the deck and the patio cover do impact our view corridor. We agree with the Modification Committee who unanimously disapproved the northeast comer of the patio cover and ask that it be removed." C 2`7 So, Appellant removed the northeast comer to satisfy what Mr. Clary wanted, and so, "applicant decided not to pursue further appeals and changed the project to C25 comply with Modification Permit 5080." The Commissions' collective attention is directed to Appellant's Exhibit "2" that shows the view impact Mr. Clary refers to in his testimony. Appellant simply sought a practical way to placate his neighbor's complaints and he relied on what that neighbor told the Planning Commission in removing the northeast comer of the structure at a cost of approximately $1,600.00. Additionally, by this time litigation over a revoked building permit that had been initially granted involving residential property in the neighboring city of Costa Mesa was settled. Appellant Butler was aware that notwithstanding a substantial payment by the City to avoid further litigation, attorney fees incurred by the property owner were in the neighborhood of $41,000.00. Appellant decided it was in his interest and the public interest to avoid pursuing that kind of costly controversy in light of the comments by Mr. Clary at the Planning Commission hearing that he would be satisfied with removal of the northeast comer of the patio cover. The June 6, 2002, Staff Report to the Planning Commission continues: "After receiving complaints from neighbors, staff determined that the second floor deck railing above the patio cover was moved from the permitted location to the leading edge of the structure within the front yard setback without the benefit of permits. Condition No. 3 of Modification Permit No. 5080 specifically prohibits this activity without first obtaining an amendment to the permit. The applicant indicates that it was an "oversight" that he neglected to request permit in advance of the alteration of the deck railing." This statement is a conclusion that is not based upon any objective evidence; therefore, the Planning Commission should ignore it. First, as discussed above, the existence of Condition No. 3 is suspect and probably invalid for lacking any connection to any public purpose that is required under the Municipal Code of the City of Newport Beach (See Municipal Code Sections C210 C27 C2d 4 1. . ^,N 1 June 16, 2002 Page 8 of 20 i i 20.01.030; 20.093.040; 20.01.015). No legitimate government interest is advanced .5 with this type of action. The Modifications Committee failed to make any L� individualized determination that the condition is related both in nature and extent l to the impact of the proposed deck extension on the public. Moreover, the Ccon{ihue� Modifications Committee misled Appellant about whether there would be any conditions to the Modification Permit. ' -Since there is no impact on the public from the deck extension /patio cover that was. the subject of Modification Permit No. 5080, the condition is invalid as unlawful. The City needs to show that there is some essential connection between public interest and the condition numbered .3. The Modifications Committee has the J burden of making this showing since there now have been fines levied against the .; owner for failure to comply with the condition; and although there can be no precise ! calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. Otherwise the condition is invalid, and avid ab ioddo. F Since Condition No. 3 to Modification Permit 5080 is void, the fact that the patio cover was used as a deck extension is a permitted use and not an unlawful use. If the 1 Modifications Committee intended to make use as a deck extension unlawful, it should have provided notice and opportunity for the Appellant to be heard on the subject, and the Modifications Committee should not have based their decision on the private rights reflected in the letters received after the public hearing. If the committee makes ex pane communication by letter after public hearing the method of choice, all future decisions of the Modifications Committee could, ! theoretically, be influenced by secret letters from constituents upset about issues 'l pending before the committee. Such a practice undermines the notion of open and public meetings that is the standard operating procedure of California municipal meetings, by law. I T 3 i 3 i i i J Fines and Notice-of Administrative Citation. This rule has particularly important application in this pending Appeal because beginning on October 10, 2001, and on October 3.1, 2001, and on November 7, 2001, and finally. on November 9, 2001, Appellant was cited City employee J. Sinasek, ID # 2707 for violating conditions one and three of Modification Permit 5080. Since condition one is substantial compliance with filed plans, and since the Filed plans are lost by the City, this condition should be eliminated on the grounds that the City lacks evidence necessary to prove its case. Further, since condition 3 is invalid as fully discussed above, there can be no condition that Appellant has violated. So one element of relief requested through this appeal is for release and exoneration of the Administrative Citations so that Appellant is no longer liable for fines exceeding $1,600.00. See Appellant's Exhibit "T' for details of the citations. CZ9 C3D C31 C 32. r 14.E June 16, 2002 Page 9 of 20 Moreover, the source of the land use requested by Appellant with Modification -y Permit 5080 was the handwritten note by Eugenia Garcia on the copy of the original application Appellant retained for his files. As an employee of the City, it is hard to imagine that Ms. Garcia did not understand what the specific use was that Mr. Butler a requested. Indeed, she must have understood it so well that she wrote it in her own handwriting for Mr. Butler to remember. She also was giving Appellant information as to how he should complete his application for a Modification Permit to obtain the (, 33 right to have a deck extension /patio cover penetrate into the front yard set back. It is hard to imagine that Mr. Butler would ignore her advice; so, it is reasonable to conclude that she intended that he follow her advice and he would rely on it. On the other hand, Mr. Butler had no idea that the Modifications Committee would apply l conditions to his deck extension /patio cover that would convert the application into exclusively a patio cover, and Ms. Garcia never suggested that his permit would be conditioned in a way that would take -away one of the uses he applied to have. Finally, Mr. Butler paid the filing fee and commenced the process that ultimately injured him by compelling him to pay miscellaneous fees for appeals and further modification permits, engineering fees, increased construction costs, and fines that 5 were levied by the City of Newport Beach for purported failure to comply with s Condition No. 3 of Modification Permit 5080. u So, it was hardly an "oversight" about the railings. The Condition No. 3 is unlawful and void. It does not exist. Mr. Butler was misled by the City Staff into believing that he was applying for a deck extension /patio cover when City Staff began secretly Ci 3 a treating his application as only for a patio cover after complaint letters were received j objecting to the Modification permit on private view interference grounds and after the hearing and evidence gathering was closed. Moreover, the request to relocate railings is a request for action filed February 19, 2002, a date over six months after the June 27, 2001 Modification Committee and C35 i the July 19, 2001 Planning Commission meeting. ? The June 6, 2002, Staff Report to the Planning Commission continues: i 1 "The project consists of the retention of the second floor deck and deck railing within the front yard setback. Copies of the deck are r attached as Exhibit No. 3. The railing currently encroaches 2 feet, 10 inches within the required 5-foot front yard setback. The 36" high railing is constructed of wood with glass or acrylic panels and extends from the western building wall across the face of the building to approximately 7 feet from the eastern property line." This statement is not accurate and represents conclusions of the preparer of the C3 (o report. j First, Exhibit 3 to the Staff Report to the Planning Commission is not a photograph. Once again the Commissions' collective attention is directed to Appellant's Exhibit C 3'1 "2" which shows the deck as it currently exists. Appellant's Exhibit "2" was taken j i '1 i June 16, 2002 Page 10 of 20 from the City's file on this application, and Appellant does not know who actually prepared the photograph. It is an unbiased depiction of the area where the deck extension /patio cover is located. . 1 Second, the project description and justification is described on Modification Permit No. 5080A which is the attempt by Appellant to amend Modification Permit No. C `jgj 5080 to conform to existing conditions on Appellant's property and in the neighborhood. This application was filed February 19, 2002. Third, the front yard set back applicable to the subject residence is ten feet; not 5 G3� feet as the Staff Report states on page 3 of 4 under "Project Overview." Fourth, the railing does not extend from the western building wall across the face of j the building to approximately 7 feet from the eastern property line. Exhibit "2" GHD shows how the railing appears today. Moreover, Staff neglected to add that the side yard set back is three feet. S 7 's i i 3 9 :i i 3 J The June 6, 2002, Staff Report to the Planning Commission continues: `"The Modifications Committee acted to approve only a portion of the requested encroachment. The easterly portion of the deck (approximately 9 feet) was disallowed due to its proximity to the neighbor to the east. The deck surface was also required .to be eliminated with the structural elements allowed to remain so that relocation of the railing would not readily occur in the future. Staff felt that this condition requiring removal of the decking material is an important safeguard, given the history of this project. The changes to the applicant's request were made due to a belief that the design and location of the deck as requested would prove detrimental to the abutting property to the east. Locating the encroachment further to the west avoids imposing upon the view and privacy of the abutting property-" This statement is totally misleading without an illustration. Please refer to Exhibit "2" and note that no part of the deck extension penetrates into the side yard set back. What Staff is suggesting is that the Modifications Committed disapproved of CIL41 the location of railing on part of the deck, but Staff fails to accurately describe what portion of the railing. Moreover, Appellant never requested or consented to removal of the deck surface. Finally, Staff clearly admits by this statement that the City of Newport Beach is placing the full force and effect of its laws and law enforcement mechanism behind L y 2 protecting the private property rights of adjacent owners who contend that the Appellant's approved project interferes with the view from their residence. This description of Staffs intent and activity does not attempt to justify their actions G 3 to enforce private property rights. It clearly is not a public necessity, and there is aK Z �3. 9 .t t 3 .y ^F b i June 16, 2002 Page 11 of 20 clearly no connection with any public purpose whatsoever with this action. The Staff recommendation is lawless. Moreover, it punishes Appellant for building a structure that the City authorized him to build and led him to believe would be peanitted if he only applied for a C4q Modification Permit. Appellant did not build this structure without complying with all applicable rules and ordinances as they were explained and presented to him. But Staffs report leaves all of this information out of its report; therefore, the Planning Commission is, once. again, operating with biased information collected CLts impatiently by a biased staff seeking to inflict harm and to harass Appellant without any rational reason whatsoever. These changes were never discussed with Appellant. Indeed they were never discussed at either hearing on April 24, 2002 that was continued to seek authority Colo from Appellant to adopt a settlement resolution proposed by Jay Garcia, Planning Director. Unfortunately, Staff failed to report on the April 24, 2002 hearing to the Planning Commission, and there is no report about the discussions attempting to settle the issues. At that hearing Mr. Garcia suggested relocating the deck railing to a point about one foot east of the sliding glass door jamb on the deck. That relocation was illustrated by Mr. Garcia on the plan in the custody of the City. The relocation appeared as a 90 degree turn of the railing south to its original location to align with the existing railing on the portion of the deck extension that is located within all applicable set backs and therefore, does not require a modification permit. See Exhibit "2" for illustration of that railing movement. CI C48 Mr. Garcia actually "wrote and drew" his suggestion on the copy of the plans submitted by Appellant for the Modification Permit. However, mysteriously Exhibit Coq No. 5 to the Staff Report fails to show Mr. Garcia's notations that he made on the City's File Copy of the Plans during the April 24, 2002 proceedings. Staff has not reported that event to the Planning Commission. This hearing was continued to enable counsel for Mr. Butler to get his authority to L' rJD accept Mr. Garcia's suggestions or to allow submission of another idea from the Appellant. The June 6, 2002, Staff Report to the Planning Commission continues: "The facts to support the approval of the modified project are contained within the attached approval letter (Exhibit No. 1). As of the drafting of this report, the appellant has not presented any additional information relative the [sic] required finding above." 1,_ 1 i t e r, } .1 D 9 i i J June 16, 2002 Page 12 of 20 By now it should be obvious that Staff merely quoted the municipal code section without analysis' of whether Staff or the Modifications Committee fulfilled the G 5 1 mandate to develop all facts necessary for a just and fair result. The Staff Report merely "defaults" to the so -called Approval Letter. The approval letter mis- states the Original Request that is on appeal to the Planning Commission: The original request filed on February 19, 2002, states: "For permission to retain in place the patio cover /deck railing which was moved when patio cover /deck was extended 2' 10 ". It was an oversight that a request was not made also to move the railing to the edge of the extended deck patio cover. It is prayed that the railing as it now exists be approved as located presently." The staff letter states that "Request to allow the retention of a deck extension completed without benefit of a building permit. The deck area was formerly a solid roof patio cover encroaching 2 -feet 10- inches into the required 10 -foot front yard setback. The extension increases the depth of the deck 2 -feet 10- inches and maintains the required 3 foot side yard setbacks. The property is located in the R -2 District Appellant submits that he was not requesting this relief at all. It is submitted that Staff invented this request to satisfy themselves. The question of retention of the deck extension /patio cover was decided when the Modifications Committee approved the application to permit a patio cover to encroach 2 feet 10 inches into the required 10 foot front yard set back under Modification Permit 5080. Subsequently, the Planning Commission wrote to Appellant stating "Please be advised that the Planning Commission at its meeting of July 19, 2001, denied your appeal of the Planning Director's decision related to Modification 5080 (PA2001- 118)." That appeal was described in the letter from the Planning Commission dated August 24, 2001, as an appeal "of Director's determination that changes to an approved project were not in substantial conformance with the previously approved plans (Modification Permit 5080). C52 C53 The only issue before the Modifications Committee that was requested by Appellant is the location of the deck railing. Yet Staff seeks to turn this C-54 proceeding into something more as is reflected May 8, 2002, Modification Permit No. MD2002 -018 (PA2002 -037). Staff is cleverly manipulating the Planning Commission Agenda with their reports that fail to accurately reflect the request from the Appellant that was C55 presented to the Modifications Committee on June 27, 2001. -7" June 16, 2002 Page 13 of 20 t That denial of Appellant's request for Modification was satisfied when Appellant removed a portion of the deck extension to remove the C,Sro i approximately 3 -feet 4- inches easterly extension of the deck extension /patio < cover. So, the issue stated by Staff is not part of this pending appeal. This proceeding is a request: "For permission, to retain in place the patio cover /deck railing which was moved when patio cover /deck was extended T 10 ". C51 It was an oversight that a request was not made also to move 9 the railing to the edge of the extended deck patio cover. It is prayed that the railing as it now exists be approved as located presently." 1 e s t 3 1 So, the purported approval letter dated May 8, 2002 does not even cover the relief requested by Appellant] Your attention is directed to Staff Report Exhibit 3 that is the Application and correspondence considered by the Gba Modifications Committee. By inspecting the document one will observe that the issue before the Modifications Committee was railing location; not retention of a deck extension. Therefore, all of the Findings Nos. 3, 4, 5, 8, 9, 10, 11, and 13 are irrelevant C SCI and not related to the railing relocation request It therefore follows that the Staff Report to the Planning Commission not only fails to report facts to the Commission, it is totally irrelevant as being Ctco based on a letter that does not pertain to the request for relief submitted by the Appellant- Apparently Staff has made no independent investigation into this matter as C(a( required by the Municipal Code more fully set forth below. Governing_ Codes: Whenever a strict interpretation of the provisions of the Municipal Code for the City of Newport Beach, or its application to any specific case or situation mould preclude a reasonable use of property not otherwise permissible under C.lo2. existing regulations, the Modifications Committee may grant approval of such modifications relating to required building setbacks in front yards. (Chapter 20.93, Section 20.93.020 (B) (1) of the City of Newport Beach Zoning Code (referred to as "Zoning Code') Duties of the Modifications Committee 1 June 16, 2002 Page 14 of 20 `a 1 A. Investigation. The Modifications Committee shall cause to be made, by its own members or its respective staffs, such investigation of facts bearing upon such application as will serve to provide all information necessary to assure that the action on each application is consistent with the intent of this section and sound planning practices. 0 �i 'a t i e D. Administrative Act. The granting of any modification permit, when conforming to the provisions of this code, is declared to be an administrative function, the authority and responsibility for performing which is imposed upon the Modifications Committee and the Planning Director and the action thereon by the Modifications Committee or Planning Director shall be construed at administrative acts performed for the purpose of assuring that the intent and purpose of this code shall apply in special cases, as provided in this section, and shall not be construed as amendments to the provisions of this code or the districting map of the City. (Ord. 97 -09 Exh. A (part), 1997) [emphasis added] Section 20.93.040 Required Findings. A. In order to grant relief to an applicant through a modification permit, the Modifications Committee shall find that the establishment, maintenance or operation of the use of the property or building will not, under the circumstances of the particular case, be detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to property and improvements in the neighborhood or the general welfare of the City, and further that the proposed modification is consistent with the legislative intent of this Code. (Ord. 2001 -18 § 2 (Exh. ZA -3) (part), 2001; Ord. 97 -09 Exh. A (part), 1997) Section 20.01.030 Effect and Intent. When interpreting and applying the provisions of this Code, it shall be held to represent the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare. It is not intended by the adoption of this Code to repeal or in any way to impair or interfere with any existing provision of law of the City, or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the erection, construction, establishment, moving, alteration or enlargement of any legal building or improvement; nor is it intended by this Code to interfere with or annul any easement, covenant, or other agreement between parties; provided, however, that in cases in which this Code imposes greater restrictions than are imposed or required by other easements, covenants or agreements, than in such cases the provisions of this Code shall control. (Ord. 97 -09 Exh. A (part), 1997) (�to3 60 C.(o5 CUP ) t- June 16, 2002 Page 15 of 20 Section 20.01.065 Rules for Interpretation. A. Zoning Regulations. Where uncertainty exists regarding the interpretation of any provision of this Code or its application to a specific site, the Planning Director shall determine the intent of the provision. CIU C. Appeals. An interpretation of the zoning regulations or districting map by the Planning Director may be appealed to the Planning Commission, as provided in Chapter 20.95. (Ord. 97 -09 Exh. A (part), 199'0 Section 20.01.015 Purpose. This Code is intended to promote the growth of the City in an orderly manner and to promote and protect the public health, safety, peace, comfort and general Ciao E) welfare, and to protect the character and social and economic vitality of all districts within the City, and to assure the orderly and beneficial development of such areas. (Ord. 97 -09 Exh. A (part), 1997) The specific encroachment in this case was for a building structure that is described as a deck extension /patio cover. This description was negligently omitted by Staff from the Modification Permit that was originally issued in this case when Staff described the modification requested as merely "to permit a patio cover to encroach 2 feet 10 inches into the required 10 foot front yard setback." (Modification Permit C- LOCI No. 5080, granted May 3, 2000.) Since the occurrence of that self - serving act perpetrated by Staff on or about May 10, 2000, the administrative record in this case has become hopelessly confused and distorted so that it is impossible for Appellant to receive a fair and impartial hearing that comports with fair administrative procedures as required by law. Indeed, the source of the characterization of the requested encroaching structure actually came from a former City employee named Eugenia Garcia who personally wrote the words: "deck extension /patio cover" on a copy of the original Application for Modification Permit No. 5080 that Appellant has in his possession. This same municipal employee personally informed Appellant that upon payment of the filing (1-70 fee and filing of the application for a modification permit, the permit should be granted. This statement misled Appellant into believing that the structure he could build would be a combination structure entitled "deck extension /patio cover." This confusion began on April 14, 2000 when Appellant met with the municipal employee about his contemplated project. Appellant has continued to believe what he was told by the City's employee, to wit: his application involved a deck extension and a patio cover. That request for Modification Pen-nit 5080 was in fact unanimously and unconditionally granted without opposition on May 3, 2000 at the public hearing on C-1 I the application. In addition, the Modifications Committee gave no admonition to Appellant, at the hearing, or on the record that the granted permit would contain J� June 36, 2002 Page 16 of 20 l conditions; and, Appellant received no notice at the hearing that the Modification Permit would be conditional. The fact that the city would make the modification permit conditional was not clearly stated. Subsequently, and secretly, the Modifications Committee attached a condition to the unanimous approval. It is this practice that we object to having. This condition that was created unilaterally by the Modifications Committee, in the absence of notice and without granting Appellant an opportunity to be heard on the fairness and justice of the condition. Moreover, the offensive condition was inserted into the written report of the Modification Permit by Staff after receipt of two complaint letters from the owner and his tenant living at property east and adjacent to Appellant's residence. ' The timing of these actions suggest strongly that Staff reacted to the neighbor complaints about view impact and that those complaints designed to protect private rights formed the basis for the conditions inserted into the written permit after the hearing was completed and the Modifications Committee voted 3 ayes and 0 noes to approve the application without revealing or discussing any conditions to the permit. This conduct reflects that the Committee acted in an arbitrary and high -handed manner. At this time, Appellant has suffered fines levied for having a structure built without a building permit because the initial entitlement derived from the Modification Permit 5080 contained a post - heating, secretly inserted condition that the proposed patio cover shall not be used as an extension of the ex-:sting second floor deck unless an amendment to Modification Permit 5080 is fast obtained. That condition has been subsequently cited by the City in its governmental action of fining Appellant for failure to follow the condition of his entitlement. The City contends that the building permit granted to Appellant is invalid for mistake. The City now takes the position that the deck extension was constructed without a building permit since the permit that was issued is invalid for failure to satisfy the conditions contained in Modification Permit 5080. So, now Appellant is purported to be liable to criminal prosecution simply because he relied on the statements and the actions of City of Newport Beach employees about how he should proceed to settle an encroachment issue. The Modifications Committee shall cause by its own members or its respective staffs, such investigation of facts bearing upon such application as will serve to provide all information necessary to assure that the action on each application is consistent with the intent of this section and sound planning practices. In this case, Staff failed to follow this municipal mandate. Staff failed to provide, and continues to fail to provide all information necessary to ensure that the Modifications Committee actions conform to the intent of Section 20.93.035 so that the Modifications Committee performs administrative acts for the purpose of assuring that the intent and purpose of the Zoning Code in special cases. The intent and purpose of the Zoning Code is to establish a Modifications Committee consisting of three members for the purpose of passing upon requests for reasonable use of property not permissible under existing regulations. The Zoning Code is intended to promote the growth of the City in an orderly manner and to promote and protect the public G1-7 I �t►1lIC1LL� C12 G13 C -14 1� _U June 16, 2002 Page 17 of 20 health, safety, peace, comfort and general welfare, and to protect the character and social and economic vitality of all districts within the City, and to assure the orderly and beneficial development of such areas. (Ord. 97 -09 Exh. A (part), 1997) } y No legitimate government interest is advanced with actions like what happened to Appellant. Here the Modifications Committee has consistently and repeatedly failed to make any individualized determination that the conditions they inserted into the written form of permit are related both in nature and extent to the impact of the proposed deck extension on the public. Since there was no finding that the deck C.7S extension impacts the public at the hearing or in the written permit, there is no legitimate public purpose for the conditions attached to the Modification Permit 3 hereby appealed, nor to any of the Modifications and Amendments to Modification Permit 5080. Indeed, the Modifications Comrnittee specifically found on May 3, 2000 the view from adjoining residential properties is not across Appellant's real property, "but straight out towards the street" Further, this same finding is set forth as Finding No. 7, at page 3, of the May 8, 2002 Modification Permit No. MD2002 -018 ' (PA2002 -037). Therefore public views are not at stake in this application. 7 Moreover, as more fully appears on Appellant's Exhibit "2", a photograph of the G�o t view from the complaining adjacent neighbor's deck, the deck extension involved in this case does not impact the neighbor's view in any meaningful way. The view to the bay and beach is not obstructed. Staff did not report this important fact to the Planning Commission; so, the Appellant offers it for consideration. Since there is no impact on the public, the City needs to show that there is some essential connection between public interest and the conditions set forth in the Modification Permit. Moreover, the modifications committee has the burden of making this showing since there now have been fines levied against the owner for failure to comply with the condition; and although there can be no precise calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. The Staff Report fails to offer any evidence to show such a connection and rational relationship. Staffs report offers no facts to support any connection between conditions 2, 3 and CT c the second sentence of condition no. 4. Moreover, the condition imposed prohibiting the deck extension is an unreasonable condition. Where the condition is imposed to protect the private property of an adjacent owner, there is no public purpose in the condition thereby rendering it unreasonable. Further, where the condition is imposed that purports to protect a private view, such a condition is unreasonable since there is no legal right to view ? protection. California law does not recognize a landowner's "natural right to air, ,! light or an unobstructed view." 1 i 1 7 The Government Code provides as to zoning variances from the specific terms of zoning ordinances. Such Variances shall be granted only when because of special circumstances applicable to the property; the strict application of the zoning ordinances deprives such property of privileges enjoyed by other property in the vicinity under the same zoning classification. (Government Code Section 65906) As more fully appears on Exhibit "5 ", the Appellant's property is located in an area Cb ( where the homes are close together and the lots are small. To get maximum square footage for living space, many nearby homes have balconies that encroach into the front yard set back near the Appellant's residence. The City has extended to these other property owners the privilege of having balconies and deck extensions that encroach into front yard setbacks. It is only fair and lawful to allow Appellant to use his property in the same way that other nearby owners are privileged to use their properties. -; Additionally, as depicted on Exhibit "6" neighbors near the Butler residence ,1 support the deck extension /patio cover as consistent with a public purpose of �2 j beautifying the Balboa Peninsula. This letter was mailed to the Planning Department, but it does not appear in Staffs Report to the Planning Commission. Unfortunately, the Modifications Committee acted in an arbitrary and high -handed manner that ignored procedural due process notwithstanding there was a hearing. However, just because there was a "hearing" does not mean that the Modifications C83 Committee was a fair tribunal in this application process. As a biased decision maker, the Modifications Committee denied Appellant his right to due process and his right to an impartial decision maker. Conditions nos. 2 and 3 take away a portion of the Appellant's deck extension and require removal of the deck surface and lower level ceiling material, enclosed u,64 electrical fixtures and to change the solid shade structure to an open beam trellis structure. The remedy requested by Appellant is for the City of Newport Beach, acting through its duly constituted Planning Commission to correct the abuses occurring at the Staff cbS and Modifications Committee level and to grant Robert S. Butler his constitutional a '� f June 16, 2002 Page 18 of 20 3 Finally, this condition treats Appellant differently from other citizens who apply for modification permits in the City of Newport Beach who are allowed the opportunity to discuss and debate their application for specific modification permits. In'other words the treatment Appellant received at the hands of the Modifications Committee amounts to discrimination against his application when a condition is attached to his r modification permit that is attached ex post facto to his request for a variance from the zoning law to allow his deck to encroach 2 feet 10 inches into the front yard ' setback requirement of the City ordinances. We contend that Appellant is entitled to the same treatment that others on his street have received when their balconies and s deck extensions have encroached into the front yard setback. As demonstrated by _ # Eiathibit "5 ", there are other deck extensions that penetrate into the front yard set back area near the Appellant's home. The Government Code provides as to zoning variances from the specific terms of zoning ordinances. Such Variances shall be granted only when because of special circumstances applicable to the property; the strict application of the zoning ordinances deprives such property of privileges enjoyed by other property in the vicinity under the same zoning classification. (Government Code Section 65906) As more fully appears on Exhibit "5 ", the Appellant's property is located in an area Cb ( where the homes are close together and the lots are small. To get maximum square footage for living space, many nearby homes have balconies that encroach into the front yard set back near the Appellant's residence. The City has extended to these other property owners the privilege of having balconies and deck extensions that encroach into front yard setbacks. It is only fair and lawful to allow Appellant to use his property in the same way that other nearby owners are privileged to use their properties. -; Additionally, as depicted on Exhibit "6" neighbors near the Butler residence ,1 support the deck extension /patio cover as consistent with a public purpose of �2 j beautifying the Balboa Peninsula. This letter was mailed to the Planning Department, but it does not appear in Staffs Report to the Planning Commission. Unfortunately, the Modifications Committee acted in an arbitrary and high -handed manner that ignored procedural due process notwithstanding there was a hearing. However, just because there was a "hearing" does not mean that the Modifications C83 Committee was a fair tribunal in this application process. As a biased decision maker, the Modifications Committee denied Appellant his right to due process and his right to an impartial decision maker. Conditions nos. 2 and 3 take away a portion of the Appellant's deck extension and require removal of the deck surface and lower level ceiling material, enclosed u,64 electrical fixtures and to change the solid shade structure to an open beam trellis structure. The remedy requested by Appellant is for the City of Newport Beach, acting through its duly constituted Planning Commission to correct the abuses occurring at the Staff cbS and Modifications Committee level and to grant Robert S. Butler his constitutional a '� f i June 16, 2002 Page 19 of 20 rights to notice and fair opportunity to be heard on his application for a Modification Permit, his right to Due Process of Law, his right to procedural fairness, his right to equal protection of the law, and his right to freedom from unconstitutional taking of a valuable private use of private property without compensation and without due process of law. What could be more fundamental and what could be clearer in this case? In the absence of a showing of public need, the action taken by the Modifications Committee going back to May 10, 2000 is unconstitutional. There is no public purpose in government taking action that benefits only one property owner. In this case, the Modifications Committee, under color of state action, grafted a secret condition onto Appellant's original Modification Permit application that was never disclosed or discussed with him before it was adopted by the committee. It was fait acompk. On May 3, 2000, the application was granted and passed unanimously with little discussion from the committee. There was no opposition to the application. Surreptitiously, a neighbor acting with selfish motives submitted letters in opposition to the application alter the duly noticed and convened hearing of the Modifications Committee. In reaction to the neighbor complaints of view interference caused by the proposed structure, the Modifications Committee attached a condition to the Application. With the present Modification Permit, Staff seeks to repeat the technique perpetrated earlier. This practice should stop. The conditions suggested by Staff protect no public need and does not benefit the public in any way. The structure built by Appellant does not significantly impact the view from the complaining neighbor's property, or any other nearby residence. The structure does not create any burden on the public; therefore, there is no connection between the condition that the structure be used as a patio cover, not as a deck and the public's right to view, the public's access to the beach, or the public's use of the beach. The deck does not increase private use of the beach. Therefore, the condition is invalid and void in this case. Moreover, the Modifications Committee offered no justification for the determination that the condition attached to the Modification Application was appropriate except to recite the "boilerplate" language from Municipal Code Section20.93.040. The only notice that the applicant received was when he received the written permit that spelled out conditions that were attached to a previously unconditional grant of the permit. In other words, the committee granted the requested use, and then it took it away without any opportunity to discuss the matter. (Uvt�l V1 i r .3 C� 1 No legitimate government interest is advanced with this type of action. The Cav committee failed to make any individualized determination that the condition is related both in nature and extent to the impact of the proposed deck extension on the public. r( 6 E June 16, 2002 Page 20 of 20 3 Appellant argues that since there is no impact on the public, and the City needs to show that there is some essential connection between public interest and the condition; and since the modifications committee has the burden of making .this showing since there now have been fines levied against the owner for failure to comply with the condition; and although there can be no precise calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. Otherwise, the condition imposed prohibiting the deck extension is an unreasonable condition. Finally, five of the conditions attached to the Modification Permit dated May 8, 2002, single Appellant out and treats him differently from other citizens who apply for modification permits and are allowed the opportunity to discuss and debate their application to specific projects in the City. In other words the treatment Robert S. Butler received at the hands of the Modifications Committee amounts to discrimination against his application where he suffers from a condition that is attached ex port facto to his request for a variance from the zoning law to allow his deck to encroach 2 feet 10 inches into the front yard setback requirement of the City ordinances under Modification Permit 5080. We contend that he is entitled to the same treatment that others on his street have received when their balconies and deck extensions have encroached into the front yard setback. Conclusion: Ml CA 2- CR3 } Based on the available evidence, and judging from what was not included in the Staff Report to the Planning Commission, upholding the decision of the Modifications j Committee is unfair punishment for Appellant's innocent application. The Cqq modification of the deck extension /patio cover is not agreeable with Appellant in that it constitutes an unreasonable condition to enjoyment of the entitlement Appellant eamed with his application for Modification Permit 5080 and in reliance g on advice and directives from City employees. Appellant is prepared to offer the proposal included in the Staff Report to resolve G,�S this issue once and for all assuming that the City releases and exonerates Appellant from the illegal fines assess against him. Dated: June 18, 2002 1 Respectfully submitted, H. DAVIDSON Robert S. Butler e'@ EXHIBIT I r� t 5 ;,o,o•+ 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 we PART I: Cover Page Project Common Name (if applicable): FEES: APPLICANT (Print): _ �✓ CONTACT PERSON (if different): Mailing Address: Mailiinn Address : � ! f f, .y Phone: ! Fax ( ) Phone: ( ) Fax ( ) Property Owner (if different from above): Mailing Address: Phone;( ) Fax ( ) 9 Fiii11mmff,'ai7;7 b37 ,//'_�.. �� %� /� r _ depm and say r rstatements 1 r re u- involved rn r application. r r e certify, ti - r: r u foregoing r n contained rr 'nfc rr. n rr' r thAest cLf (miy) ,r _ NOTE: An agent may sign for the owner if w• } -',d with the application. Appellant's Exhibit "1•' Page 1 3 PART 1: CL COMMUNITY AND ECONOMIC DEVFLOPME!-T PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEWPORT' BEACH, CA 92658 (9491644-3200; FAX (949) 644- 3250 ver Page L'roiect Common N4me if applicable): APPLICANT (Print): 74- '...Tax i nt--'ent from above): Fax f Application: A Medific Permit No.: 0 Accepted by. FEES: I CONTACT PERSON (it different). Mailing Address- Phone: ( Fax ( "RO I b Pioi-,i0e.;c rip ' and pistificahon (describe briefly) J9A1 -1-7 Id J4 t OPERTY OWNERS AFFIDAVIT dcpu:;� aM say that (I am) (we are) the uwnun�) of the pru,,ti�fw; r1he: certify, -4ot the fortyo; -�,wntenLs and -Aens hereL (1) fy, under 1 ans q U'A XUJ LJZ;'C`[ 1,;t:. t of (nv. �rld I La... Sianaruir(s) L FfL Aj i m * v siv.- IhL :die itcord ownei is filed with diC'appliwti,,:, Appellant's Exhibit "I" Page 2 . ..... .... t I ILI I I f $AV"* P 3` io--rl lot Appellant's Exhibit "I" �,5 PW 3 1 1L-,V- ,;; -��?� ..,`. `; ,, x ,; :� � `� .: ;� f �� �` �. . �, y .. • .mss -I,r ��. ��.�M[� y I� - � �...' y � ` t � ' �l. 4 ;'�{� � w R, y'. ., f ., .." . y�S �, � f . 4 EXHIBIT 2 �,I -54r VIA a H — 1 x f EXHIBIT 3 l } May 24, 2001 CITY OF NEWPORT BEACH BUILDING DEPARTMENT 3300 NEWPORT BLVD. P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (949) 644 -3275 Mr. Robert Butler 911 West Bay Avenue Newport Beach, CA 92661 SUBJECT: Request for Copy of Drawing Submitted into Plan Check, Plan Check #2013 -2000, 911 West Bay Avenue Dear Mr. Butler: A building permit was issued on September 13, 2000. At permit issuance, we usually approve two sets of corrected drawings, and keep one approved set with our records and keep one old set for the Orange County Assessor's Office. The rest of the drawings and one approved set are given to the permittee. For this project, we have on file a set of drawings approved on September 7, 2000, a revised set approved on November 13, 2000, and another set for a revised section detail approved on December 20, 2000. We no longer have the drawings you initially submitted into plan check on August 10, 2000. Please call me if you wish to have a copy of the record drawings or if you have any questions on the contents of this letter. I can be reached at (949) 644 -3277. Very truly yours, BUILDING DEPARTMENT E C.B.O. VGA 11JYttat, 1 ., , y D- 11 eM t. a By: F ' al Jur ' .E., .B.O. Deputy Buildin irector FJ:ds Exhibit "3" r -mail• rnh hlo(n7�ity n�urnnr oozabeach.ca.us /buildine Jun-1 l-uI ua:a4 I 7 THMM CoamAN .� DUNDUNN- RANKIN SANDRAA. GALLS Wn.UAMERALLa ANDRMY- HAA'r2aLL Fi= MUTT 7osm D. M=oN A 3 From-Haritt 949 798 0511 HEWITT & McGUYRE, LLP ATMANM AT LAW 19900 MACAATHURBOULEVARD, SUITE 1050 I&VME, CALIFORNIA 92612 (949) 7984500 • (949) 798 -0511 OA3q EMAIL: mwucIQhcwuu=au Kc= WRIIER•S DIRECT DIAL- (949)IN&nt EMAIL: 40nc0@hcwiumeaj June 11, 2001 THIS IS PAGE 1 OF 5 PAGES- TO: Sharon Wood 1 Patty Temple Jay Elbettar 9 FROM: .i i J i y .q 9 % 011 Dennis D. O'Neil SPECIAL NOTES: T-520 P.001 /005 F -002 01b SlEVma S. IMHOOF MARX k mccums DEIM D. Owa L JAYF.PAI.CIu=T PAMA.Rawe VIumAMLTwcmzy JOHN P. YEAGM FAX NO: (949) 644 -3250 • Please review this m d the a -mail I sent and get back to me. IF YOU EXPERIENCE ANY DIFFICULTIES IN RECEIVING THIS TRANSMISSION, PLEASE FAIL (949) 798 -0500. THE INFORMATION CONTAINED IN THIS FACSIMILE TRANSMISSION IS ATTORNEY. PRIVILEGED AND CONFMENTIALINFORMATIONINTENDEDONLYFOR .THEREVIEW AND USE OF THE INDIVIDUAL OR ENTTTY NAMED ABOVE. IF THE READER OF THIS MES SAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBYNOTIFIED THAT ANY UNAUTHORMI) DISSEMINATION, DISTRIBUTION, USE OIt COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATIONINERRO ISBYTHETELEPHONE. THANK YOU. Exhibit 114" Page 1 l Jqn- LI -01: q0 :04 From- Hewitt i HcOul_.. 046 793 0511 T -520 P.002 /M .•)02 1 MESERVE, MUMPER & HUGHES LLP eP DIFIRP 17000 RCO MILL AVeHYe EOWIM A. MC6CRVC See Sawn. FLa..C6510CT I !664 •aa¢ 1 SY1TC LOO ••,1 16R FLOOR S•.IRLCT E. MGCRVC 'i LOt A.�0C . CNIFo.-" 00071.2]10 1 CALIFORNIA IDL01 w•db5] 1 IDea - waa I >; TCaLP1.0.1C 121]102041000 TELEPHONE 10491 dTA•6006 HCwLlwaa MOrPCR " Fa4.606LC 12101025.1000 FACSIMILE 104010]6-1066 1 1660 • 1466 1 • 9nn OIGt10 OFFCF OLIF FOMO C. HYOMCD _ t IDa/ • 1061 I f50 'B 57RECT R06CP MCCCPTO $�- i.•6Cp. ClWORI•In OYIOI 1 1016 1067 • TOLPMO" 10101 207•0500 •• _ FnCaull¢ 16101 29J.00i] - _l 3i June 6, 2001 i Dennis D. ONeil, Esq. Hewitt & McGuire, LLP ? 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 Re: Application #MPN 5080 Our Client: Robert Butler Address of Property: 911 W. Bay Avenue Legal Description: Portion of Government Lot 4, Section 34, Township 6, t South Range 10 West Subject: Action by City of Newport Beach to stop construction of a patio cover after permit previously issued Dear Denny: It is hard to believe that you can find time to practice law after all of your duties and obligations on the City Council. The matter described herein seems like a tempest in a teapot, but I would be most t grateful if you could review the within matter and indicate what action should be taken in representing W. Butler in an effort to ;et this matter resolved. My initial observation of the matter indicates that under the circumstances the City. is being unfair to Mr. Butler in stopping work on his project to construct a patio cover which is now approximately 80% to 85% completed. The property in question involves Mr. Butler and his wife living upstairs while there is a tenant in a downstairs unit. An, inspection is necessary in order to enable the job to be finished, but the inspector has been told not to inspect the work. Exhibit "4" Page 2 j 4+h' Jur -II -CI _ 08 :05 From - Hewitt & WCGUI� 849 799 0511 \� T -520 P.003/005 F -002 1 MESERVE. MUMPER & HUGHES LLP Dennis D. O'Neil, Esq. June 6, 2001 t Page 2 a r. Mr. Butler is an attorney although he retired over 10 years ago after a very successful career in Los Angeles where he was a highly respected and well !mown trial attorney. 1 The following is a short summary by time sequence: _l j 1. 1980. Mr. Butler builds his home at 911 West Bay Avenue. 1 2. 5 /10 /00. Mr. Butler files for a Modification Permit :5080 and the g Modification Permit was unanimously granted by the Modifications Committee. You will note on the Modification Permit that opposition t letters were filed by the owner of the adjacent property, Michael Clary and 1 also by a renter in Mr. Clary's property. The objections were apparently rejected. The initial application included a sketch map that did not show a i 3 extension in the lateral direction toward the house of the complaining neighbor. The application was for a patio cover over a patio occupied by Mr. Butler's tenant on the first floor. The 3' area in question is within the side setback.. Said Modification Permit is attached hereto as Exhibit "A ". 3. 8/10/00. After the initial approval, Mr. Butler had plans prepared which included the 3' area. A copy of the approval is attached hereto as Exhibit "B ". Apparently the City now contends that the original plans cannot be .1 located! Tt is unknown how this could possibly have happened. 4. 12/20 /00. The plans were amended concerning the pitch of the patio cover in order to make it less slanted. The pitch of the patio cover was reduced. The plans were approved by GRR, which we understand is a "Greg ". The pertinent portion of said plans are attached hereto as Exhibit "C -1 ". The l plans also included a 3' extension of the patio cover toward the neighbor's house which is the same as it was wthe plans approved in August of 2000. 3 A copy of the portion of the plans showing the extension is attached as Exhibit "C -Z ". r S. 4/01. Mr. Butler puts the plans out for bid and enters into a contract for the i construction to be performed at a cost of $9,800. The engineering expense was $3,800. Exhibit "4" Page 3 ) .n -.i .i: ue:w tram- Newitt Z Nttiay 949 759 0511 T -520 P 004 /005 F -002 '.1 E5E2V E. MUMPER & HUGHES LLP Dennis D. ONeil, Esq. June 6, 2001 1 Page 3 6. 511/01. Work commences on the project in accordance with the approved plans. The work is approximately 80% to 85% completed as the painting and the electrical portion have been completed. Plywood has been put at the proper locations. t 7. Week of 5/8/01. Inspector Fleener comes to the job site and refuses to approve or inspect. The contractor was told that he would have to take the 1 matter up with the Planning Department. Just prior to this date the neighbor had apparently written a letter to the Planning Department on :i 5/5/01, a copy of which is attached hereto as Exhibit "D ". A similar letter was also written by the downstairs tenant of the neighbor, namely Blair T. Bryant, whose signature on his letter dated 5/7/01 is completely different from the signature on a letter previously submitted to the Planning Department on 528/01. See attached letters as Exhibit "E -1" and "E -2 ". S. 5/24/01. The City Inspector issues a Stop Work Order, a copy of which is attached hereto as Exhibit 'T". 9. 5/11/01. Ms. 'Temple, Mr. Elbettar and the Assistant City Manager, Ms. Woods, made a determination that there was an error made by the staff in signing off the plans without talking to them. t Mr. Butler has been told that he should make an application for a new modification to cover the 3' area. Mr. Butler has rejected doing so because the t plans submitted in August of 2000, which were approved, clearly included the 3' and it seems like the height of carelessness that the City claims they can't find those plans at this time. In December of 2000, the plans were again reviewed and approved by Greg. Therefore, there is no reason to go back in to seek a fwther and new modification to satisfy the whims of a neighbor who makes a very questionable complaint on. some interference with a view which the Modification Permit already considered t and rejected. Please keep in mind that Mr. Butler's property, as well as the i neighbors, are located directly across the street from the open public beach area. There is some urgency in this matter because Mr. Butler is unable to complete the. J work and cover over the exposed areas. The contractor can't believe what has Exhibit "4" Page 4 l� i 7 Jum -I1-41 : 08:06 From - Hewitt 6 Ucau,� MESERVE. 1AUMPER &L HUGHES LLP Dennis D. ONeil, Esq. June 6, 2001 Page 4 849 788 0511 T-520 P.005 /005 F -702 transpired and it seems that basic fairness has been violated. Mr. Butler has acted in good faith and it seems a Travesty that the events involved have occurred. I hate to take vour time in giving consideration to this matter, but it seems that reason and logic should be applied to permit this construction to be completed. It is understood that if the patio cover is ever sought to be used as a deck, that a further amendment will be necessary, but it seems the current action by the City is unjustified. In any event, it would be greatly appreciated if you could provide some ideas or direction as to bow this problem can be resolved. Very truly yours, Bernard A. Leckie Of Counsel for MESERVE, MUMPER & HUGHES LLP BAL.mt Enclosures cc: Robert Butler 13-782.1 Exhibit "4" Page 5 Cy (-r, i ,s1 S EXHIBIT 5 ("I ui� 11Z twn All I Ik � t�- i a ! " I et P•'• L • P' i 1 , s y p7 Y4: G rr ♦ l `�Al �i Jw •ii+: a} EXHIBIT 6 } 3 i i 1 a.. .. r .,ems -•�/JL 7C �i. �.�/P.z� /3.�a2 �- i � MM APPel1ant's Exhibit 'r611 1 i NOTICE OF AD&MWTRATIVE CITATION CRY OFNEWMU MACH } MUlDma6MAR7aDM LODR owoRcUMT 16 PE '4saata.�rttn.t 'r0b1 aluo abdwCwrafim Date D 't A.mpmumofdep¢minsbaoedat qu CcJ. :3,941 'in do City orNevpmt Bads. wveaw a viota6an(s) of the NMW Beach *=a* Cade. W. I ! - _�AdiisRi?ast0� iMhtlae CITATION $100.00 ......... IS NOW DUE AND PAYABLE f 7Rm;l=LRwlMTW spow mamamioymmALmcm RACE TMMUUDMCWMIU . UiBnRWODCUOWAMOKAW tAw.BS vcavuA rraswOr A�vmoenEmaootrtaiDSmrcrats� y -�-� -- r ] 2ND. CITATION 5200.00__IS NOW DUE AND PAYABLE a ] 3RD. CITATION 5500.00 _LS NOW DUE AND PAYABLE UKU =r AMNOR'LEDGED BY DATE worn tvmmm tapsicmtmi (nmog co") Mc(unimum) i a 3 ApPenant's Exhibit "7" 3 i i i R 3 1 i -- r y NOTICE OF ADbIDMIUTIVE CITATION Cfff OF KgWPM WAC8 / COAOnlQTTANDiWNOMWOBY81APa®If cu�mt Y1� /- 07(n KAPOMOEPARTMIM 3mPb Pat el) 11 AahnpeedmddepesaitaWaeedat c>ii ��l_'3av�� in the Ckvaf Newoport BcmA revealed a v)albao(s)af the Newport Reach Municipal Cade [ ] W. arAnON 5101:89. «. -- -IS NOW DOE AND MAKE t ] ME iGMTLXM OTATM SNOW POWIMANDYOOMAY HE MEDBA® DAY TBSYIOIATMCONIWOM OTHER MdO tMEWAMOMANDMUL1ffiMAYAL9OROMT OCDRULI NBSNOTACffiP ®OQQYtl000N7v=ToBaMOR6786OTATWK WKn(VdbaC PI)CANARYMc-*C0")PMKW -0qW ik 4 � NOTICE OF ADNDNIS,,.ATIVE CITATION -� TY OF NEWPORT BEACH �tAr® D¢v°.°eal°rr Ciiadat E'�l- E''i(y � �pDE1TIFORCE>1m+r a]OO NeaPaet TITN, .(M"ns catadmco n a// d Time_ /(?:S 5 J% II ilupee6on of tle pnanisa laalcd at �' // 'T the Cry of Nawpoct B=h mvwled a vi"on(s) of the Newport Beach Municipal Code iaaedewacarMfixs J jJdreaU�hGmltlm _ridadm: ] 1ST. CITATION $100.00 ......... IS NOW DUE AND PAYABLE �] THE NERTIEVQ. CITATIONS NOW PENDING AND YOU MAYBE CFIED EACH DAY THE VIOLATION CONTINUES. OTHER ENFORCEMENT ACTION AND PENALTIES MAY ALSO RESULT IF COMPIlLWES NOT ACHIEVED OR IF YOU CONTDVUB TO IGNORETHS CITATION. 2ND. MATION $200.00._..._.IS NOW DUE AND PAYABLE 1 -mg CITATION S500 00 .IS NOW DUE AND PAYABLE • VTOLATIONM WAS ORIGINALLY BROUGHT' TO YOUR ATTENTION ON ��! °�+O O AND YOU VE NOT CORRECTED OR RESOLVED THE VIOLATION(S). s we WHITE (Vi"an Copy) CANARY (Hmag Copy) PINK (offs= Copy) 0 Vq �.I t 53 ..I NOME OF ADMINW, , &TIVE MATION 'bWOFNEWPOItT BEACB AND HCONOMIC OEVELOMIENT AEQIINC D�ARIf1HJ[ (mduuts cudmfcomcti ' Ao impecdm of die Vemim (Leered at P tlxCWY of Newport Beach, mvmW a viobfi*s) of dw Newport Beach MaWcod Code. 'mataaae Wbodh jdd ffdCmmtdm -,Mad= f °3 1ST. CITATION $100AO. ....... .IS NOW DUE AND PAYABLE TOENi3TI.EM CRA1110NS NOW PMI N: AND YOUMAY BE MED EACH DAY THE VIOLATION COM7I M OTM EMRCEMPNT ACI70N AND PBNALTBS MAY ALSO RESMT S COMPLIANCES NOTACLHEVM OR IF YOU CONTINUE TO IGNORE THIS CZrAUON. ;ND. CITATION S7A0A0.._- NOW DUE AND PAYABLE ! ,*, -,I U' eL" 11 I na,u,.. �. ■ / �a 7 j BY DATE WHIM (Viotom Copy) CANARY(Hemia6 CM) PINK (Office Copy) w {f f 7 i t I� CITY OF N.EWPO. _. BEACH Application: A Iv. edification Permit No.: p4 m COMMUNITY AND ECONOMIC DEVELOPMENT ❑ Accepted by: - i PLANNING DEPARTMENT u = ,�a..• 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 �7( (949) 644 -3200; FAX (949) 644 -3250 PART I: Cover Page Project Common Name (if applicable): FEES: APPL CANT r (Print): �� ©5g,-t>clf_' � CONTACT PERSON (if different): Mailing Address: �i ailing Address: Phone: �jGiG� j 7 Fax ( ) IIOwJJ Phone: ( ) Fax ( ) Property ner (if different from above): Mailing Address: Phone: ( ) Fax ( ) PROJECT ADDRESS: Project Description and (1) (We) a, UntrKI J 11-f L2C:�' involved in this application. (1) We) further certify, under penalt and the information herewith submitted are in all respects true and PAID (I am) (we are) the owner(s) of the property(ies) :eeoine statements and answers herein contained APR 1 ^ 2000 NOTE: An ageM]Ila00 pAMII gteK `written authorization from the record owner is filed with the application. �� oCH Exhibit No. 2 1;;� A 4t7ey,77e f� NOTICE OF ADMMTRATIVE CITATION CITY OF NEWPORT BEACH COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT Citation No. i CODEENFORCEMENF 3300 Newport BIvd. Newport Bach, C& We ( 749) "4-nIS Chation/CorretUon Ihf! Tim! An inspection of the premises located at in the City of Newport Beach, revealed a violation(s) of the Newport Beach Municipal Cade. Name of owar ar hodRaR t Addrva Edltfemmtthan v6kdm [ ] 1ST. CITATION $100.00 ......... IS NOW DUE AND PAYABLE [ ] THE NEXT LEVEL CITATION 15 NOW PENDING AND YOU MAY BE CITED EACH DAY THE VIOLATION CONTINUES. OTHER ENFORCEMENT ACTION AND PENALTIES MAY ALSO RESULT IF COMPLIANCE S NOT ACHIEVED OR IF YOU CONTINUE TO IGNORE THIS CITATION. [ ] 2ND. CITATION $200.00__ _._IS NOW DUE AND PAYABLE [ ] 3RD. CITATION $500.00._.._...IS NOW DUE AND PAYABLE IS VIOLATION(S) WAS ORIGINA LLY BROUGHT TO YOUR ATTENTION ON -AND YOU HAVE NOT CORRECTED OR RESOLVED THE VIOLATION(S). PORT aucK mum CODESECPmNM CORRECTION(S) REQUIRED! RECEIFf ACKNOWLEDGED BY DATE SIGNATURE OF OFFICER PRINTNAMOFOMCER mr IOLATION(S) CLEARED AS OF (DATE INSPECTED WHITE (V101xdOn Copy) CANARY (Hearing Copy) PINK (Officer Copy) FK0i1T SI >E Exhibit No. 3 r- IMPORTANT - READ CAREFULLY THE LAW REQUIRES Administrative Citation Newport Beach Municipal Cade Section 1.05.020 provides for the issuance of administrative aitatias for Municipal Code Violations There are three levels of citations that can be issued progressively for a violation. The fines, as indicated on the frost of the citation, are $100.00 for the First Citation; $200.00 for the Second Citation and $500.00 for the Third and subsequent Citations for violations of the same ordinance within one year. these Ines are cumulative and citations may be issued each day the viohdoa exist. A warning, if issued, does no incur a fine and, therefore, may no be appealed. Riehts of Amen _. You have the right to appeal this administrative citation within fifteen (15) days from the citation/correction date together with an advanced deposit of the fine along with a Request for Hearing form. An appal must be in writing to the address on the front of this citation and to the attention of "Administrative Hearing Officer." A properly filed appal will result in an administrmiveharing. Failure of any person to property file a writnn appal within fifteen (15) CONSECUTIVE days from the citation/correction date shall anatiate a waiver of his or her right to an administrative hearing and adjudication of the administrative citation or any portion thereof and the total amount of the fine. How to Pay Fine Q k The amount of the tine is indicated m on the front of this administrative citation. Prior receiving an invoice from B the Revenue Division, you may pay by mail or in person at 3300 Newport Blvd, Revenue Division, Newport Beady City Tlall. Payment S 1 fl E should be made by personal dads, cashier's check, or money ado, payable to the City of Newport Beach. Please write the citation a account number on your check or money order. If the citation is not paid or appealed within the statutory time, you will receive an invoice from the Citys Revenue Division. Please follow the instruoiaa on the invoice to asure proper processing of your payment Payment of the fine i shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the City of Newport Beach. Consequences of Fedure to Pay the Fine The failure of any person to pay the fine assessed by the administrative citation within the time specified a the citation or on the invoice from the Revenue Division may result in a claim with the Small Claims Court or any legal remedy available to collect such money. The City has the authority to collet all costs associated with the filing of such actions Failure to pay fine requirements maybe found in Newport Beach Municipal Code Section 1.05.100. Coaseaaences of Failure to Correct Violations There are numerous enforcement options that can be used to encourage the caradion of violations. These options indude, but are not limited W. civil penalties. abatement, criminal proautian, civil litigation, recording the violation with the County Reader and farfdnme of wain Stan tax benefits for substandard residential rental property. These options an empower the City to called fines up to $100, 000.00, to demolish srruraoa or make necessary repairs at the amass expose, and to marcaete violators. Any of these optionsor othasmaybeacdiftheadministratimdationsdonotadtiaecompliana If you need further clarification about payment of the citation, please all (949) 644.3141 for the Revenue Division. If you need further information about the violations andfor how to amply, please all the Inspector designated on the frog. A full description of the hearing process for the City's administrative hearings for Municipal Code violations and your rights in that process arc fund in Newport Beach Municipal Code Sections 1.05.M, 1.05.070 and 1.05.080. Rev. 041299 iti1 Lu ......... . lz-e^- - h. , [� 7, %) Ii 2 li .- /Wl R z OIL �►E Exhibit No. 4 INTENTIONALLY LEFT BLANK 11! Attachment D Excerpt of Planning Commission meeting minutes from July 18, 2002 1;1- INTENTIONALLY LEFT BLANK 10 City of Newport Beach Planning Commission Minutes July 18, 2002 SUBJECT: Butler Residence 911 W. Bay Avenue • Modification Permit No. 2002 -018 (PA2002 -037) Appeal of the decision of the Modifications Committee's approval of Modification Permit No. 2002 -018. Commissioner Tucker noted that the Commission received a dossier of information that had to do with alleged miss steps, mistakes, etc. by staff and /or Commission that all had to do with a modification that came up last year that was not appealed. The modification, which came before us last year, was acted upon by the Planning Commission, but that action was not appealed to the City Council. We are done with that. All that is before us tonight is the May 8, 2002 modification. I suggest that we view the matter as if we were starting over and the applicant had come forth with a request for that particular structure and decide what is appropriate. Commissioner Kronzley noted he wanted to define what could be acted upon tonight. Chairperson Kiser noted that, on advice of the City Attorney, we are to consider at this appeal or review hearing, only the same application, plans and project related materials that were the subject of the original decision. Tonight we have only one decision being appealed and that is the approval of Modification 2002 -018. Any additional information to be heard is to relate only to that. Public comment was opened. Lawrence H. Davidson, 537 Newport Center Drive, attorney for the applicant, Mr. Butler, noted the following: • Referring to page 9 of the staff report, staff has determined that the Planning Commission can make a decision in support of the appellant. • He then gave a history of the deck extension /patio cover application. • Private property rights. • Photographs depicting views from properties. • Modifications process and history. • Plans submitted for the modification application. • Referenced Exhibits 2 and 4 in the staff report. At Commission inquiry, staff noted this is a continued item and the notice had been placed about twelve days in advance of the previous hearing, which was scheduled for June 61". The notice may have been removed since that time. Mike Clary, next -door neighbor to the east noted that his view corridor is the most affected then by any other neighbors. He noted the following: • Mr. Butler was given permission to build a patio cover. • A deck extension was specifically excluded. , INDEX Item 1 PA2002 -037 Upheld decision of Modifications Committee City of Newport Beach ':;, Planning Commission Minutes July 18, 2002 INDEX i The Modifications Committee decided on a compromise solution, essentially approving the west half of Mr. Butler's unauthorized deck extension, but required him to remove the railing, deck material, the electrical fixtures on the eastern half. He was also instructed to open the eastern half of the patio cover to create an open beam structure. • 1 support the Modifications Committee May 8m decision for this compromise position that will give Mr. Butler more than what was originally authorized yet will protect our view corridor and privacy. • Should Mr. Butler still not agree with this conditional approval, then I would be in favor of the second alternative in the June 611' staff report to require Mr. Butler to return the deck back to its authorized location in accord with Modifications Permit 5080. • At Commission inquiry, Mr. Clary stated that there is another two-story house in front of his house. Our view corridor is therefore off to the northwest, so we are looking down Mr. Butler's new extension. The extension infringes our corridors as well as the additional plants and trellis that were installed. The deck interferes with our view corridor. Blair Bryant, 909 h West Bay noted his agreement that there has been a lot of misleading information. I encourage the Commission to enforce the laws and the codes, as they would uniformly do for the rest of the street. It is my opinion that the original permit should be enforced because I have seen a 'scoff law' type of activity going on regarding this whole issue. Mr. Garcia, the Modifications Committee Chairman went out of his way to propose the compromise that was put on the table. He specifically talked about something that would keep the sun out, and so forth. These houses face north and it is a short three -story house that Mr. Butler lives in. You don't get sun on those first floors, so the whole concept of a patio cover to keep the sun out just doesn't make a lot of sense to me. Public comment was closed. Chairman Kser noted the following: • Staff report notes the neighbors' view. • The Commission has heard testimony and reviewed pictures. A resident is affected by the deck extension; and, a resident wants the deck extension as part of his home. • He asked for clarification of a right to extend into a setback. Ms. Clauson, Deputy City Attorney answered that only as established and authorized by the Zoning Code. There is nothing else other than the provisions of the Zoning Code that authorize the Modifications Committee and then the Planning Commission upon appeal to approve a modification pursuant to the findings required under that Section. The standard for the Planning Commission is substantial evidence on a review. Substantial evidence is what is needed to support your decision. The facts must be substantial to support whatever determination the Commission makes, whether to approve or deny this modification, it is up to you and it is the Commission's discretion. 1(5 City of Newport Beach Planning Commission Minutes July 18, 2002 INDEX Commissioner Kiser noted: No compelling reason to encroach into the setback by any amount. The Modifications approval decision that gave basically a partial width deck extension into the setback seems to me very fair and would allow uses that the applicant wants, while it may not be as extensive a deck as he would like to have. Generally other structures in that area comply with the setback criteria. Commissioner McDaniel noted his agreement with the previous comments. He noted that he has not heard, nor seen any evidence that would cause him to overturn what the Modifications Committee has done. They have come up with a resolution and compromise. I could support to reduce that as well, but I see no reason to grant more than what has been recommended by the Modification Committee. Motion was made by Commissioner Selich to uphold the determination of the Modifications Committee. Ayes: Tucker, Agajanian, McDaniel, Kiser, Gifford, Kranzley, Selich Noes: None Cafe Italiano Item 2 514 W. Balboa Blvd. PA2002 -076 Use Permit No. 2002 -014 (PA2002 -076) Request for�Use Permit for a full service, small -scale eating and drinking Approved establishment to ceed the established floor area ratio (FAR) and waive the off - street parking requi ents associated with the conversion of a single, enclosed parking space to storag rea. Chairperson Kiser asked abou a three parking spaces behind the building. The staff report indicates that one of m is allocated to the residential units above and the other two are allocated to t restaurant. Isn't there a requirement for at least one parking space for each residenliqll unit? Ms. Temple answered she does not know ho the original determination was made; the original construction of the residences s done in association with a use permit. The Planning Commission at that time It the arrangement was adequate; this was done in 1963. Public comment was opened. Mr. Dennis Stout, representing Nancy Nelson noted the following: • There are three garages in the unit and there are two apartments Lairs. One apartment has the garage on the end and the garage in the mi e was allocated to the other apartment but was being used for storage. ) trio nug 25 02 05:34a Blair T. Bryant 001 (949] 675 -7295 P.1 Blair T. Bryant P.O. Box 4066, Newport Beach, California 92661 -4066 '02 AUG 2t' 3: -LO Sent via FAX: (949) 644 -3229 August 25, 2002 Re: Modification Permit No. MD 2002 -018 (PA 2002 -037) 911 West Bay Avenue, Balboa, CA City Council City of Newport Beach 3300 Newport Boulevard City of Newport Beach, CA 92658 -8915 Dear Members of the Newport Beach City Council: OF1lG i;ERr. °RECEIVED AFTER AGENDA PRINTED :" 0-1"7-0 a-- The deck built over the last year at 911 West Bay Avenue deliberately thwarts the City's building codes and the City's processes as enforced and administered by The Planning Department, The Building Department, Building Inspectors, Code Enforcement, City Attorney, and Modification Committee. The facts are obvious from abundant past hearings, correspondence, approved plans, unapproved plans, and inspection reports_ I encourage you to uniformly enforce the established Newport Beach building codes, regulations, and process and thus deny the above referenced modification permit. Do not reward the activities of the past year. Deny current and requested modifications to the original approved "patio cover ". Approve the "patio cover" as originally approved Sincerely, Blair T. Bryant 08/20/02 TUE 11:41 FAX 1 970 468 5264 IM002 ° AG'"9'D- A August 20, 2002 City Council City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 Re; Modification Permit No. 2002 -018 Butler Residence (PA 2002 -037) 911 West Bay Avenue Dear Council Members, RECE[kP RTN_ t 2002 p'A My name is Michael Clary and I am Mr. Robert Butler's next -door neighbor to the east at 909 West Bay Avenue. Our home, view corridor and privacy are arguably the most affected by Mr. Butler's new unauthorized deck extension than any of his other neighbors. The background of this new structure is very well known to both the Planning and Building Departments and will likely be described in a report to the City Council by the Planning Department. I fully support the Modifications Committee's unanimous May 8, 2002 decision for a compromise position that will give Mr. Butler more than what was originally authorized in Modification Permit No. 5080. This generous decision approved essentially the west half of Mr. Butler's unauthorized deck extension but requires him to remove the railing, deck material and enclosed electrical fixtures on the east half. As a result of Mr. Butlers appeal of the Modifications Committee's decision, the Planning Commission reviewed this matter on July 18, 2002 and unanimously upheld the Modifications Committee's decision. The compromise position will protect our view corridor and privacy. However, should Mr. Butler not agree with the conditional approval of the west half of the deck extension then I would favor the second alternative proposed in Ms. Temple's June 6, 2002 Report to the Planning Commission. 08/20/02 TUE 11:41 FAX. 1 970 468 5264 IM003 This alternative would require Mr. Butler to return the deck railing back to its authorized location in accordance with Modification Permit No. 5080. Work schedule permitting, I plan to be at the August 27th meeting to support my position and to answer any questions that Council members might have. Sincerely, Mihhael R. C ary 0 • LAWRENCE H. DAVIDSON, ESQ. JENNIFER FRIEND, ESQ. tff Robert S. Butler, Appellant APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH 537 NEWPORT CENTER DRIVE, SUITE 537 NEWPORT BEACH, CA 92660 (949) 500 -6275; FAX: (949) 496 -3711 HEARING DATE: August 27, 2002 AGENDA ITEM: 16 STAFFJ", q v,.�bL}` O Campbell ' (049) 644 -3210 '02 AUG 26 P 4 :18 Ci =.CE .i4 1: i T Y +,LERr< tWdRT KAN "RECEIVE AFTER AGENDA PRINTED:" g -a 9 - o PROJECT: Butler Residence (PA 2002 -037) 911 West Bay Avenue SUMMARY: Appeal of the Conditions Attached to Approval of Modification Permit No. 2002 -018 RECOMMENDED Modify the Original Decision of the Modifications ACTION: Committee's approval of Modification Permit No. 2002- 018, and Reverse the Planning Commission Denial of Appeal of Conditions Attached to Approval of Modification Permit No. 2002 -018. APPELLANT: Robert S. Butler 911 West Bay Avenue, Newport Beach LOCATION: Approximately 200 feet west of the intersection of 9d Street and Bay Avenue, Balboa Peninsula LEGAL DESCRIPTION: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West GENERAL PLAN: Two - Family Residence ZONING DISTRICT: R -2 (Two Family Residential) APPELLANT'S REPORT TO THE CITY COUNCIL In order that the City Council should have a complete understanding of this Appeal and to supplement the Staff Report to the City Council that omits important information and evidence, Appellant, ROBERT S. BUTLER, submits the following report so that the City Council is fully informed about the circumstances of the case pending before it on this appeal. Page 1 of 1 APPELLANT'S REPORT TO CITY COUNCIL FORTHE CITY OF NEWPORT BEACH, continued I. INTRODUCTION. • This matter is basically a neighbor's complaint about Appellant's deck extension /patio cover project that encroaches into the front yard setback of the two family residence located at 911 West Bay Avenue, on the Balboa Peninsula. The neighbor now complains that his view from the balcony of his adjacent easterly property and his privacy is in some way negatively impacted by the project. These claims were never made or raised at the public hearing held on May 3, 2000 by either the neighbor or the Modifications Committee (hereinafter referred to as the "Committee'. As such, the now complaining neighbor failed to properly and timely raise any objection or opposition to the project at issue. Accordingly, the Committee should never have considered the untimely objections of the neighbor to the East and his tenant because they were neither substantiated not properly raised. Surely the administrative hearing process and evidentiary rules and restrictions cannot be applied only to the Appellant. Had the opposing neighbor wished to challenge the award of the modification permit unconditionally granted on May 3, 2000, then he and his tenant should have attended the public hearing and set forth their objections for the record or at a minimum made their objections known prior to the May 3, 2000 action. They did not and as such, the Committee properly issued the modification permit at the hearing without any conditions and made a finding that the structure would not impair or negatively impact the views of the surrounding neighbors. Arguably the neighbors failure to timely object was due to the blatant lack of evidence to support the proposition put forth by him that the project at issue is in any way detrimental to the health, safety, or general welfare of the Newport Beach residents. To the • contrary, all of the evidence refutes these claims Notwithstanding the obvious di minimms impact of Appellant's deck extension /patio cover on the view and the fact that the Modifications Committee made a finding that the structure did not impair view and no infringement upon privacy has been substantiated, the neighbor has after the dose of public hearing and the unconditional approval and permitting of the project, directed and encourage a cooperative City Planning Department Staff to exploit and to retroactively and improperly misuse enforcement of the front yard set back ordinances to stop Applicant's project when it was approximately 85% complete. Further, this improper "re- opening" of the issue after the conclusion of the administrative process has been unlawfully used to assess fines against Appellant for purported violations of Modification Permit 5080, and to otherwise harass Appellant to cause interference with his contract rights and to cause increased expense for his deck extension, and deprive Appellant of reasonable use of his property. All of these acts are in violation of the City's administrative process and the Appellant's constitutional, statutory, civil and property rights. The relief sought by this appeal is simply a correction of the injustices initiated by the disgruntled neighbor and his tenant and perpetrated by a cooperative City Planning Department Staff in the name of orderly zoning practices. This case illustrates that the bias of City Staff in favor of it's concerted opinion as to the facts of a request from a citizen for relief permitted under the Municipal Code, drives an outcome that inflicts economic, emotional and physical harm to an innocent property owner in the City of Newport Beach. • Page 2 of 2 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued So far, the Staff and the Planning Commission has turned deaf ears to the plight of Robert S. • Butler. Perhaps this is why the Staff Report directs that the Council may review this matter anew, find the Applicant's request is not detrimental, and adopt Alternative 1 upholding the Appeal and approving the project with amendments to the findings and conditions of approval eliminating the changes made by the Modifications Committee. It is respectfully requested that this action be taken and that the web of confusion be untangled and the project be returned to its original and unconditionally approved and permitted state. II. PROCEDURAL HISTORY OF APPEAL AND PERMIT PROCESS: Modification Permit No. 5080. On May 3, 2000 the Modifications Committee unconditionally and unanimously approved an encroachment into the front yard set back applicable to the two family residence at 911 West Bay Avenue, Balboa, California within the City of Newport Beach by means of Modification Permit No. 5080 based on the Application for Modification Permit that requested a "deck extension /patio cover". Copies of the Application and Permit are attached as Appellant's Exhibit No. 1 to the Applicant's Report to the Planning Commission, and fully incorporated herein by this reference to the Applicants Report to the Planning Commission.' Building Permit No. B2000 -2485 (P /C No.: 2013.00) dated September 13, 2000 is issued. It is crucial to this discussion to note that there was no opposition from either residents or Committee members to the application for a patio cover /deck at the May 3, 2000 hearing. Further, absolutely no conditions or restrictions upon the use of the patio deck /cover were discussed or mentioned at the hearing. • Modification Permit No. MD2001 -118. Your Appellant had requested a simple modification of Modification Permit No. 5080 since he had been advised by City Staff to make such a request; however, Staff did not treat the request for relief the way it was presented. On July 19, 2001 the Planning Commission denied the Appellant's appeal of the Director of the Planning Department's determination (MD 2001 -073) that Mr. Butler's approved project "as- built" did not substantially conform to what had been approved by the Modifications Committee. Yet Mr. Butler had requested for the Modifications Committee to allow the amendment of Modification Permit 5080 to conform to the approved building plans that were the basis for issuance by the Building Department of Building Permit No. 2013 -2000 in August, 2000. The Appellant's actual written application for a modification of Modification Permit 5080 requested, inter ak'a, a 3 -foot by 2 foot, 10 inch lateral extension of the patio cover. The Appellant stated that the patio cover 3 -foot extension was structurally necessary and included on the original plans that the Building Department had approved. At the time of this June 18, 2001, application for a modification permit that City Staff had told Appellant he should make, the structure of the improvement was approximately 85% completed as of May 8, 2001. It is uncontroverted that the Building Permit was issued. Because this request was denied, Appellant removed the portion of the "deck extension /patio cover" approved under the authority of Modification Permit 5080 to comply with the decision of the Planning ' In the interests of saving space, all Appellants Exhibits are fully incorporated herein by the reference to such • Exhibits as presented in this Appellant's Report as if fully set forth at the place of zeference in this Report. Page 3 of 3 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued Commission after his appeal of the Modification Committee's decision to the Planning Commission. • Notwithstanding Appellant's request for modification of Modification Permit 5080 to conform to the approved plans used for the issuance of the Building Permit No. 2013- 2000, Staff stated the issue before the Planning Commission differently from the relief that Mr. Butler was asking to receive. Staff characterized the issue as whether the plans that were submitted for Modification Permit 5080 were substantially the same as the plans on which the Building Permit was issued. Since Staff had lost the original plans that Mr. Butler had submitted for the Building Permit (See Exhibit 3 to the Applicant's Report to the Planning Commission ). It is mind boggling how any comparison could be made by the Committee of the originally approved and existing structure since the original plans had been lost by the City and cannot therefore be compared to anything. Surely then the basis for "non- conformance" is not only mysterious but factually unsubstantiated. Ultimately, the Staff essentially ignored Mr. Butler's request that Modification Permit 5080 be modified or amended to accommodate what he was building. In the Notice of Denial dated August 24, 2001, the Executive Secretary for the Planning Commission described the Commission's action as an "Appeal of Director's determination that changes to an approved project were not in substantial conformance with the previously approved plans (Modification Permit No. 5080). Yet this relief is not what Appellant had requested. Modification Permit No. 2002 -018. This request "to retain in place the patio cover /deck railing which was omitted when patio cover /deck was extended 2' 10 ". It was • an oversight that a request was not made ... to move the railing to the edge of the extended deck patio cover...." and is the subject of this appeal. III. BACKGROUND AND FACTUAL ANALYSIS: The Staff Report to the City Council presents an abbreviated and selective summary of the events that is inaccurate. This matter is not merely about "retention of the second floor deck as delineated by the perimeter railing within the front yard setback constructed in violation of Modification Permit No. 5080 approved in May of 2001 [sic]." Appellant contends that the conclusions set forth by Staff, the characterization of issues by Staff, and the evidentiary conclusions made by Staff ate incorrect. Unfortunately, the Planning Commission and the Modifications Committee failed to conduct an independent inquiry (or any inquiry whatsoever) to develop material facts to support its conclusion to uphold the Planning Director's denial of the relief requested by Appellant relative to Modification Permit 2002 -018. Instead of an independent inquiry, the Commission relied on and accepted as true, statements, conclusions, and argument presented by Staff and ignored the uncontroverted evidence presented by Appellant that 1 Mr. Butler, the Appellant herein and the Applicant before the Planning Commission, received a letter from Faisal Jurdi, P.E., C.B.O., and Deputy Building Director for the City of Newport Beach. A copy of the original of the letter Mr. Butler received is attached to Appellant's Report to the Planning Commission, and fully incorporated therein by reference as Exhibit "T'. In the letter Mr. Jurdi stated, "We no longer have the • drawings you initially submitted into plan check on August 10, 2000." This evidence is not denied. Page 4 of 4 -'APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued leads to the inescapable conclusion that the relief requested by Appellant is not only • reasonable, but it is also fair, just and constitutional. In the words of the Planning Commission Chair Kiser at the hearing before the Planning Commission on this matter on July 18, 2002, "Assuming that what is in out Staff Report is true, which I have to take at face value, that generally the structures comply with the set back in that area, I think that we'd be with a decision supporting the Modifications Committee decision." (See Transcript of Proceedings, 07.18.02, page 23, lines 15 through 21) The statement by the Planning Commission Chair confirms that the Commissioners routinely follow the recommendations of Staff as if they are true gospel. The statements of applicants, even if under oath, are ignored. This is evidenced by the fact that to date there have been absolutely no findings of fact supporting the position that this structure is in any way "...detrimental to the health, safety, peace, comfort and general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to the property and improvements in the neighborhood or the general welfare of the City." Section 20.93.040. Accordingly, the appeal should be upheld. It is clear from this quotation from the actual hearing transcript that Appellant ordered prepared, that (1) the Planning Commission considers the report from City Staff as "true" while other evidence is apparently not entitled to weight as the Commission exercises its adjudicative role, and that (2) the structures in the area comply with the set back rules. Yet, the exhibits attached to Applicant's Report to the Planning Commission are photographs that show just the opposite conclusion is true! As the photographs depict, anyone who walks the neighborhood can see that the generally there are balconies that penetrate the front yard set backs in the area around Appellant's home. Furthermore, Staff • offered no evidence in opposition to Appellant's report on this fact; nor does Staff deny this fact. Therefore, the logical conclusion is that Appellant is correct when he states that there are other encroachments nearby in the neighborhood. This point illustrates that the Planning Commission simply followed City Staffs recommendations instead of conducting any independent inquiry into the points raised by Appellant, and such a practice is fundamentally unfair and illegal. The Commission never weighed evidence or considered any points raised by Appellant. Modification Permit No. 5080. On May 3, 2000 the Modifications Committee unconditionally and unanimously approved an encroachment into the front yard set back applicable to the two family residence at 911 West Bay Avenue, Balboa, California within the City of Newport Beach by means of Modification Permit No. 5080 based on the Application for Modification Permit that requested a "deck extension /patio cover ". Copies of the Application for Modification Permit 5080 and the Permit are attached as Appellant's Exhibit No. "V, and attached to the Applicant's Report to the Planning Commission. The report to the Planning Commission and all its exhibits are fully incorporated herein by this reference. On his application for Modification Permit 5080, Appellant Robert S. Butler clearly applied for modification of the front yard set back requirements to accommodate a deck extension /patio cover that was described in the application for relief from strict application of the Zoning Code, as follows: Page 5 of 5 `APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued Project Description and Justification (describe briefly) Request to permit an encroachment of 4" beyond the permitted eave encroachment of 2 feet 6 inches into the • required 10' f vntyard retback on Bay Ave. on pmpet y located in the R -2 District "deck extension /patio cove," The reference to "deck extension /patio cover" is placed in quotation marks on the application because an employee of the City of Newport Beach suggested this description of the project on April 14, 2000. All the evidence shows that Appellant went to City Hall to find out about requirements for his project, and he met with Eugenia Garcia. After discussing the project with her and the use that Appellant wanted, she suggested that he describe it in the request by personally hand writing the words-. "deck extension /patio cover" on a copy of the Appellant's application. From this point forward, Mr. Butler understood that the structure he was building was a "deck extension /patio cover" for purposes of the Modification Permit he applied to obtain. This evidence is uncontroverted, and Staff does not deny that Mt. Butler's version about the foregoing events is true, yet Staff has ignored this evidence through out this modification permit process. Moreover, Staff has offered no credible evidence to rebut Mr. Butler's version. There is no evidence presented by Staff or any other person, that the statements Mr. Butler offers are untrue. The conduct by a municipal employee, in this case the Chair of the Modifications Committee in April and May, 2000, who acted under the color of her authority, sets in motion the events that lead up to this appeal. • The written request for relief set forth on the face of Mr. Butler's application for Modification Permit No. 5080 was somehow overlooked (or ignored ?) by Staff at the hearing on the application that was heard on May 3, 2000. The record is silent about what the Modifications Committee entertained as Mr. Butler's request for relief, and the only information is written on the application. Mr. Butler attended the Modifications Committee hearing held on May 3, 2000. No opposition was presented to Mr. Butler's request for action, and no testimony or evidence was presented in opposition to the application for the Modification Permit. At no time during or prior to the May 3, 2000 public hearing did any neighbors raise issues of view obstruction or privacy or any objection regarding the patio cover /deck extension at issue. It was not until a8er the close of the public heating, unconditional granting of approval, and proper administrative process that a neighbor and his tenant voiced a concern regarding the structure. It appears from this set of facts that as a result of comments received when the administrative matter was closed and decided, that the Committee improperly made ex post facto conflicting decisions and imposed conditions upon the project. This is not a proper administrative act. Had the neighbors appealed the modification permit or taken proper administrative action then possibly the Committee's acts would have been procedurally proper. This was not the case, and as such, the Committee abused its administrative power and acted in excess of it in an arbitrary and capricious manner. Moreover, the hearing proceeded without any admonition from the Chair or Staff conducting the hearing that the granting of the Modification Permit • would ultimately have conditions attached that severely limited the scope of the request. Page 6 of 6 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued The formal Modification Permit dated May 10, 2000 (seven days after the heating) provided • that the "patio cover shall not be used as an extension of the existing second floor deck, unless an amendment to this approval is first obtained." (See condition no. 3, page 2 of the pemtit letter) Staff failed to disclose to Appellant, and to the Planning Commission, that the particular conditions that the Modifications Committee imposed on this original Modification Permit 5080 occurred after Staff received two letters in opposition to the Appellant's application that arrived at City Hall after the May 3, 2002 hearing. The letters came from Mr. Butler's easterly neighbor and his tenant. They complained about interference with theirprivate views resulting from the deck extension. As of today's date there has been absolutely no evidence provided to substantiate a finding that the structure at issue will have any real or substantial effect on the neighbor's view or privacy. In fact, all evidence set forth in the record resoundingly established that this patio cover /deck extension has either no or de minimus impact on the surrounding residences. Further, the Modifications Committee never notified Mr. Butler about receiving the letters after the hearing. The Modifications Committee Staff offered Mr. Butler no opportunity to refute the claims stated in the letters that were received after the May 3 hearing and before the Letter dated May 10, 2000 was issued and executed by Eugenia Garcia, Associate Planner and Chair of the Modifications Committee. Mr. Butler learned about the letters because of a reference to having received them at the end of the Modification Permit 5080 letter dated May 10, 2000. The ex port facto attachment of conditions to the unconditional grant of Appellant's • approval on May 3, 2000 prevents Appellant from having a reasonable use of his property that substantially conforms with other similar uses in the vicinity of his home. Further, the case at hand flies in the face of the legislative intent of the public heating requirement and administrative process. Condition No. 3 of the letter dated May 10, 2000, outlining the imposed conditions, provided: "3. The patio cover shall not be used as an extension of the existing second floor deck, unless an amendment to this approval is first obtained." This condition was never discussed at the Modifications Committee hearing on May 3, 2000. All that was discussed was that the proposed structure that had been characterized as a deck extension /patio cover did not impact view from adjacent residential properties. Indeed, the formal findings to Modification Permit 5080, stated, as follows: "6. The proposed patio cover will not obstruct views from adjoining residential properties because: The view to the bay is not across the subject property, but straight out towards the street" A photograph of the view is attached to Applicant's Report to the Planning Commission, as Exhibit "2 ", and that exhibit is fully incorporated herein by this reference as Exhibit "T'. Staff did not include this photograph in the Planning Commission packet however, it was discovered by your Appellant in the files kept by the City, and Appellant is informed and believes, and thereon alleges that this photograph was taken for use by the . City by a municipal employee for the City of Newport Beach. It is submitted that his Page 7 of 7 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued photograph is a neutral, unbiased depiction of the di minimus impact of the deck extension • constructed by your Appellant at his home. The Modification Permit letter of May 10, 2000 also refers to the relief requested by Mr. Butler as follows: "Modification Requested: To permit a patio cover to encroach 2 feet 10 inches into the requited 10 foot front yard setback." Yet, as set forth above, the Project Description and Justification section of the pre- printed application form that Mr. Butler was given to use for his application stated: Request to permit an encroachment of 4" beyond the permitted eatu encroachment of 2 feet 5 inches into the requited 10' finntyard setback on Bay Ave. on pmperty located in the R -2 District "deck wension/pado covet" Obviously, Staff in the written report treated the request from the Applicant differently after the hearing because Mr. Butler originally applied for a "deck extension /patio cover" as he had been advised to do by Eugenia Garcia. This change in the statement of relief requested was never discussed at the May 3, 2000 hearing on Mr. Butler's request for a modification permit to allow an encroachment into the front yard set back. Modification Permit No. 2002 -018. In the application for a Modification Permit to modify Modification Permit 5080, Mr. Butler simply requested the right "to retain in place the patio covet /deck tailing which was omitted when patio cover /deck was extended 2' 10 ". It was an oversight that a request was not made ... to move the railing to the edge of the extended deck patio cover...." is the subject of this pending appeal to the City Council. However, the Modifications Committee staff unilaterally modified the request and • framed it in a way that suited their agenda. The letter dated May 8, 2002 modified the request and approved the modified request. Essentially, staff approved a portion of the deck and denied a portion of the deck. Staff opined that the Appellant's request was to allow the retention of a deck extension completed without a building permit. Yet that was not the subject of the Appellant's Modification Application. In the Modification Permit letter dated May 8, 2002, the Committee "allows the retention of a portion of the existing second floor deck that lies from a point beginning one- foot east of the existing door opening and extends westerly to the west end of the existing deck. The deck area extends a maximum of 2 -feet 10- inches toward West Bay Avenue and the required guardrail shall be allowed to extend approximately flinches beyond the face of the deck" This condition is without justification. This is so because the structure described in the modification permit was affirmatively found to not to obstruct views from adjoining residential properties. The third condition retroactively imposed upon the structure actually provides that "the portion of the deck extension that was disapproved shall be modified to remove the deck surface and lower level ceiling material, enclosed electrical fixtures and to change the solid shade structure in that area to an open beam trellis structure. The disapproved portion is the deck area that lies easterly of a point one -foot east of the existing door opening and ends at the easterly end of the deck structure. The final design of the trellis structure shall be subject to review and approval by the Planning Director to determine compliance with this condition." Obviously, the conditions beat no relation to the requested permission to • conform the existing Modification Permit 5080 to include moving a guardrail. Page 8 of 8 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued • IV. CONTENTION OF APPEAL: A. Appellant's Requested Relief Should Be Granted. Based on the record in this case, the Committee imposed unreasonable conditions prohibiting the deck extension requested by Mr. Butler. These conditions were imposed ex post facto and based upon "after the fact" and unsubstantiated complaints of one property owner and his tenant. These complaints were never properly raised or addressed at the public hearing and as such should not have been considered To allow for claims to justify the application of conditions restricting use of property without the property owners ability to address and refute the claims relied upon frustrates the entire administrative process as intended by the legislature. It is for this reason that public hearings are held prior to the issuance of a mollification permit allowing for public comment and opposition to a proposed project to be raised and for the property owner to make a showing that there is no detrimental effect on surrounding properties as a result of the construction at issue. Here, there was absolutely no opposition to the proposed patio cover /deck extension at or prior to the public hearing and as such, the Modification Committee made a finding at the May 3, 2000 heating that the project as proposed was not detrimental and as such unconditionally approved it by way of Modification Permit 5080. The structure that was actually built is substantially conforming to the structure that was approved and permitted by the Modification Permit 5080. Several staff reviews subsequently occurred without objection or issue from the City Staff. The structure described in the Modification • Permit was found by the Modifications Committee not to obstruct views from adjoining residential properties Encumbering the reasonable use of Mr. Butler's property in a manner that many other nearby residential properties enjoy in the vicinity of the Butler residence in the absence of a finding of public impact caused by the existing structure, treats Mr. Butler differently from other citizens who apply for modification permits and are allowed the opportunity to discuss and debate their application to specific projects in the City. In other words, the treatment Mr. Butler received at the hands of the Modifications Committee amounts to discrimination against his application where he suffers from a condition that is attached ex post facto to his request for a variance from the zoning law to allow his deck to encroach 2 feet 10 inches into the front yard setback requirement of the City ordinances. Appellant contends that he is entitled to the same treatment that others on his street have received when their balconies and deck extensions have encroached into the front yard setback. Exhibit 5 to the Applicant's Report to the Planning Commission illustrates the nearby use of balcony decks similar to Mr. Butler's deck that is combined with a patio cover use. It is submitted that since there is no impact on the public in this case, and the City needs to show that there is some essential connection between public interest and the conditions imposed on Mr. Butler's applications that the conditions are invalid and should be eliminated. The City has a burden of proof in this matter, not Mr. Butler. The modifications committee has the burden of making findings of fact to support the conclusion that this structure is detrimental to the health, safety, peace, comfort and general . welfare of persons residing or working in the neighborhood of such proposed use or is Page 9 of 9 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued detrimental or injurious to the property and improvements in the neighborhood or the • general welfare of the City. This is especially true since there now have been fines levied against the owner for failure to comply with the condition stated in the modification permit; and although there can be no precise calculation of what the connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. (Dolan v. City of Tigard (1994) 512 US 374, 129 L Ed 2d 304, 114 S Ct 2309) This finding has not been made and cannot be made based upon the facts at hand. B. Appellant Has a Vested Right To Build The Structure Without Conditions as Originally Approved and Permitted. The law has long recognized that "if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terns of the permit. Earl Rick Stokes v. Board of Permit Appeals et al.. (1997) 52 Cal.App.e 1348, 1353. In such an instance where the pernittee has acquired a vested property right under a permit, the permit cannot be revoked. By the weight of authority, a municipal building permit or license may not arbitrarily be revoked by municipal authorities. where, on faith of it, the owner has incurred material expense. Such a permit has been declared to be more that a mere license revocable at the will of the licensor. Trans - Oceanic Oil Corp. v. City of Santa Barbara, (1948)194 P.2d 148, at 152. The Planning Department was right in stating that they made a mistake in this case, • the mistake however was in effectively revoking Butler's building permit and issuing a Stop Work Notice on the project Absent a finding of misrepresentation upon which the issuance of the permit was solely based, which has never been made or even suggested in this case, the City may noT_ t revoke Butler's building permit or modify its granting or the structure approved. Stokes P. Board of Permit Appeals, (1997) 52 Cal.App.4th 1348, 1357. The City does not have the right to make arbitrary and capricious determinations regarding the property rights of its citizens and that is just what they have done here. One of the most fundamental rights established in the Constitution is the right to own, use, and enjoy property. Of course municipalities may regulate in part some of these rights and that is what the plan check approval and building permit licensing activities are designed to do. However, by the weight of authority, a municipal building permit or license may not arbitrarily be revoked by municipal authorities where, on the faith of it, the owner has incurred material expense. In this case, Mr. Butler in reasonable reliance upon his plan check approval and permit issuance, expended nearly $15,000 to build his patio cover deck extension to near completion. Local governments must generally conduct its business in a public manner. Mr. Butler complains that throughout these proceedings decisions were made in private by Staff and in response to complaints of a neighbor arguing that his private view is impacted. The record clearly demonstrates that the private decisions were made after public hearings and after private comments were received. These decisions appear to have revolved around the private comments that were submitted after public hearings and after parties to the • proceedings received any opportunity to comment or argue against the claims and assertions submitted through the private comment process. As such, whereas here a permit was Page 10 of 10 APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued properly issued in the absence of misrepresentation and the property owner has incurred • substantial expense in the near completion of his project, he has acquired a vested tight. C. There Have Been No Findings That the Structure at Issue Is Detrimental to the View and Privacy of the Neighbor To the East. As Such, the Acts of the Committee Constitutes an Arbitrary and Capricious Exercise of the Police Power and Should Be Reversed. Moreover, the Committee acted in an arbitrary and high- handed manner in dealing with Mr. Butler's application. In so acting, the Committee ignored procedural due process " '[a] "fair trial in a fair tribunal is a basic requirement of due process." ...' " A biased decision maker is constitutionally unacceptable. The right to a fair procedure includes the tight to impartial adjudicators." Appellant submits that in the case of his application, the Modifications Committee and the Planning Director are biased in favor of the adjacent next door neighbor to the east of the Butler residence. The evidence in this case demonstrates that Staff based decisions on complaints from the neighbor that are unrelated to any legitimate public interest or purpose. It is submitted that since there is no impact on the public,. the City needs to show that there is some essential connection between public interest and the condition imposed on May 8, 2000 upon the structure at issue; the modifications committee has the burden of making this showing since there now have been fines levied against the owner for failure to comply with the condition and although there can be no precise calculation of what the • connection is or ought to be, the committee must make some sort of individualized determination that the condition is related both in nature and in extent to the public impact of the deck extension. As the record reflects, there have been no findings of fact to support the Committee's contentions but rather unsubstantiated conclusory statements gleaned from an improperly considered, untimely, and unsupported neighbor complaint. Further, the conditions imposed prohibiting the deck extension are unreasonable conditions. No legitimate government interest is advanced with this type of action. The committee failed to make any individualized determination that the condition is related both in nature and extent to the impact of the proposed deck extension on the public. As set forth above, there is a void of any evidence supporting a finding that the patio cover /deck extension is detrimental and, as such, the appellant has met his burden. Finally, the retroactive application of conditions upon this structure treats Mr. Butler differently from other citizens who apply for modification permits and are allowed the opportunity to discuss and debate their application to specific projects in the City. In other words the treatment Mr. Butler received at the hands of the Modifications Committee amounts to discrimination against his application where he suffers from a condition that is attached ex post facto to his request for a variance from the zoning law to allow his deck to encroach 2 feet 10 inches into the front yard setback requirement of the City ordinances. Appellant contends that he is entitled to the same treatment that others on his street have received when their balconies and deck extensions have encroached into the front yard setback. Page 11 of 11 n APPELLANT'S REPORT TO CITY COUNCIL FOR THE CITY OF NEWPORT BEACH, continued V. CONCLUSION: • Based upon the arguments set forth above as well as all other written, oral and other documentation and evidence in this matter it is respectfully requested that this honorable City Council find the Applicant's request is not detrimental and adopt Alternative 1 upholding the Appeal and approving the project with amendments to the findings and conditions of approval eliminating the changes made by the Modifications Committee. F: \OC Files \Appellant's Report to City Council Ver 4.doc Page 12 of 12 • • June 6, 2001 Dennis D. O Neil, Esq. Hewitt & McGuire, LLP 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 Re: Application #MPN 5080 Our Client: Robert Butler Address of Property: 911 W. Bay Avenue Legal Description: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West Subject. Action by City ofNewport Beach to stop construction of a patio cover after permit previously issued Dear Denny: It is hard to believe that you can find time to practice law after all of your duties and obligations on the City Council. The matter described herein seems like a tempest in a teapot, but I would be most _ grateful if you could review the within matter and indicate what action should be taken in representing I& Butler in an effort to get this matter resolved. My initial observation of the matter indicates that under the circumstances the City is being unfair to Mr. Butler in stopping work on his project to construct a patio cover which, is now approximately 80% to 85% completed- The property in question involves Mr. Butler and his wife living upstairs while there is a tenant in a downstairs unit. An, inspection is necessary in order to enable the job to be finished, but the inspector has been told not to inspect the work. Exhibit "4" Page 2 • • MESERVE, MUMPER &L HUGHES LLP n. A.nr. 1. OP"CE 17 300 RCO MILL AVENUE Ebw,N A. MESERVE as, s0.,... FlewoR STR SUITE 250 I leas • .aaa ! e N fLOOR IRVINE, CALIFORNIA IRLE7 EMG3GA.0 COS p V007"Mo . I leas Joao ! TEl,EP*Ow£ !2101 6200400 TELEPMON@ Ip<W 474e,06 MV. PCR FAGSInM1E 1010) 425.1000 ! laao • lQee I fwCeIMIL9. lOaO) 075 -1068 9.M OIfNO bfm CE CUfFORO E. HUON6e 7so -a -sTPI . !'60. - 10al , s MS acoo �- aaedR c $.w GeCO. G.u�OCVU Oa101 . 1001 , ! IOIQ !pa > T Pa.0 lelaf aO7 -osOO geala�e +6101 a07.0070 June 6, 2001 Dennis D. O Neil, Esq. Hewitt & McGuire, LLP 19900 MacArthur Boulevard, Suite 1050 Irvine, CA 92612 Re: Application #MPN 5080 Our Client: Robert Butler Address of Property: 911 W. Bay Avenue Legal Description: Portion of Government Lot 4, Section 34, Township 6, South Range 10 West Subject. Action by City ofNewport Beach to stop construction of a patio cover after permit previously issued Dear Denny: It is hard to believe that you can find time to practice law after all of your duties and obligations on the City Council. The matter described herein seems like a tempest in a teapot, but I would be most _ grateful if you could review the within matter and indicate what action should be taken in representing I& Butler in an effort to get this matter resolved. My initial observation of the matter indicates that under the circumstances the City is being unfair to Mr. Butler in stopping work on his project to construct a patio cover which, is now approximately 80% to 85% completed- The property in question involves Mr. Butler and his wife living upstairs while there is a tenant in a downstairs unit. An, inspection is necessary in order to enable the job to be finished, but the inspector has been told not to inspect the work. Exhibit "4" Page 2 • • ?r1ESEINEI UMPER &. HUGHES LLP 4 2 Dennis D. O'Neil, Esq. June 6, 2001 Page 2 Mr. Butler is an attorney although he retired over 10 years ago after a very successful career in Los Angeles where he was a highly respected and well known trial attorney. The following is a short summary by time sequence: 1. 1980. Mr. Butler builds his home at 911 West Bay Avenue. 5110100. Mr. Butler files for a Modification Permit #5080 and the 1fi Modification Permit was unanimously granted by the Modifications Committee. You will note on the Modification Permit that opposition. Ietters were filed by the owner of the adjacent property, Michael Clary and also by a renter in Mr. Clary's property. The objections were apparently rejected. The initial application included a sketch map -that did not show a it 3' extension in the lateral direction toward the house of the complaining neighbor. The application was for a patio cover over a patio occupied by A Mr. Butler's tenant on the first floor. The T area in question is within the side setback. Said Modification Permit is attached hereto as Exhibit "A ". A } 3. 8 /10 /00. After the initial approval, Mr. Butler had plans prepared which 1 • included the 3' area. A copy of the approval is attached hereto as Exhibit "B ". Apparently the City now contends that the original plans cannot be located! It is unknown how this could possibly have happened. 4. 12/20 /00. The plans were amended concerning the pitch of the patio cover in order to make it less slaws& The pitch of the patio cover was reduced. Tice plans were approved by GRR, which we understand is a "Greg ". The pertinent portion of said plans are attached hereto as Exhibit "C -1 ". The plans also included a 3' extension of the patio cover toward the neighbor's house which is the same as it was on'the plans approved in August of 2000- A copy of the portion of the plans showing the extension is attached as Exhibit "C -2 ". 5. 4101. Mr. Butler puts the plans out for bid and enters into a contract for the construction to be performed at a cost of 59,800. The engineering expense was $3,300. Exhibit "4" Page 3 E MUMPER & RUCHES LLP Dennis D. O Neil, Esq. June 6, 2001 Page 3 6. 511/01. Work commences on the project in accordance with the approved plans. The work is approximately 80% to 85% completed as the painting and the electrical portion have been completed. Plywood has been put at the proper locations. 7. Week of 518 /01, inspector Fleener comes to the job site and refuses to approve or inspect. The contractor was told that he would have to take the matter up with the Planning Department. Just prior to this date the neighbor had apparently written a letter to the Planning Department on 5/5/01, a copy of which is attached hereto as Exhibit "D ". A similar letter was also written by the downstairs tenant of the neighbor, namely Blair T. Bryant, whose signature on his letter dated 5/7/01 is completely different from the signature on a letter previously submitt&l= to the Planning Department on 5128101. See attached letters as Exhibit ' E-1" and 'S -2 ". 8. 5/24/01. The City Inspector issues a Stop Work Order, a copy of which is attached hereto as Exhibit "F ". 9. 5111101. Ms. Temple, Mr. Elbettar and the Assistant City Manager, . Ms_ Woods, made a determination that there was an error made by the staff in signing off the plans without talking to them. Mr. Butler has been told that he should make an application for a new modification to cover the 3' area. Mr. Butler has rejected doing so because the plans submitted in August of 2000, which were approved, clearly included the 3' and it seems like the height of carelessness that the City claims they can't find those plans at this time. In December of 2000, the plans were again reviewed and approved by Greg. Therefore, there is no reason to go back in to seek a further and new modification`, to satisfy the whims of a neighbor who makes a.very questionable complaint on some interference with a view which the Modification Permit already considered and rejected. Please keep in mind that Mr. Butler's property, as 'well as the neighbors, are located directly across the street from the open public beach area- There is some urgency in this matter because Mr. Butler is unable to complete the work and cover over the exposed areas. The contractor can't believe what has Exhibit "4" Page 4 -- . .- e.. 1-74V r. uwl VV, r "JVL MESEAVE. MUMPEA & HUGHES LLP 1• 1 Dennis D. ONeil, Esq. June 6, 2001 Page 4 transpired and it seems that basic fairness has been violated. Mr. Butler has acted in good faith and it seems a travesty that the events involved have occurred. I hate to take your time in giving consideration to this matter, but it seems that reason and logic should be applied to permit this construction to be completed. It is understood that if the patio cover is ever sought to be used as a deck, that a further amendment will be necessary, but it seems the current action by the City is unjustified. In any event, it would be greatly appreciated if you could provide some ideas or direction as to bow this problem can be resolved. Very truly yours, Bernard A. Leckie Of Counsel for MESERVE, MUNTER & HUGHES LLP BAL:mt Enclosures cc: Robert Butler 23792.1 EAn'bit "4" Page 5 IN 3 December 21, 2001 _ Daniel K. Ohl Deputy City Attorney for the City of Newport Beach P.O. Box 1768 • Newport Beach, CA 92658 -8915 Re: Our Client: Robert Butler 911 West Bay Avenue Dear Mr. Ohl: Thank you for your letter of 12/3101 which responded to my letter of 11/9/01. EDwlx A. MESERV6 Ilea. .io33 31NR1eT E. McOERvc 1 Ieeo - 1069 I MCWU "96 MU "OCR 1 Ieeo . 1166 1 CLIFFORD E. Hu9Nto 1 toga . IoR1 1 4. RODENT MEpERVC 1 1910 - log 1 OuR REF. No 6 4 641 -00 1 First, it is respectfully submitted that the Pettitt case does not support the position of the City since the Appellate Court in Pettitt held that an estoppel could not be imposed because the building permit that was issued was unlawful when it was issued. The facts indicated that a certain parcel is zoned residential, but one part of the parcel was being used for multiple residential use and the other part of the parcel had a commercial use. The application for the permit sought to use both parcels for a beauty shop and the permit was granted. However, because of the zoning ordinance of the City involved, it was unauthorized to issue a permit under the circumstances. The Court held the permit was invalid and illegal ab initio and therefore the applicant did not acquire any rights under which he could claim an estoppel. The case gives a discussion of the imposition of estoppels against public entities and indicates that the interpretation is similar to the applicable rules dealing with general eAoppels, 9 -d ItLE96+s61rs uospinea .H aouaime-1 dL5 °E0 ac ea 9ny MESERVE, MUMPER & HUGHES LLP 1 °' AN °ems �F6 O—��GT • 17100 RED HILL AVENUE 335 SovfN PL R STReT 16T"FUoR SUITE 230 Loo ANOXVF3, CAUF9IMIA 9M71 -2018 IRVINE. CALIFORNIA 92614 -3633 TXlLPH9MG 121316200300 TELEPHONE 194 %1474.6996 ZINN." 121316251%30 FACSIMILE t9491976.1066 8Ax oIX99 0"I'm, 730 'H' STREET Sul 12200 SAN 01X96. C'lUCRNU 92101 ToAFHONE (6191 237-0600 FACLD96E (0191 237-0073 December 21, 2001 _ Daniel K. Ohl Deputy City Attorney for the City of Newport Beach P.O. Box 1768 • Newport Beach, CA 92658 -8915 Re: Our Client: Robert Butler 911 West Bay Avenue Dear Mr. Ohl: Thank you for your letter of 12/3101 which responded to my letter of 11/9/01. EDwlx A. MESERV6 Ilea. .io33 31NR1eT E. McOERvc 1 Ieeo - 1069 I MCWU "96 MU "OCR 1 Ieeo . 1166 1 CLIFFORD E. Hu9Nto 1 toga . IoR1 1 4. RODENT MEpERVC 1 1910 - log 1 OuR REF. No 6 4 641 -00 1 First, it is respectfully submitted that the Pettitt case does not support the position of the City since the Appellate Court in Pettitt held that an estoppel could not be imposed because the building permit that was issued was unlawful when it was issued. The facts indicated that a certain parcel is zoned residential, but one part of the parcel was being used for multiple residential use and the other part of the parcel had a commercial use. The application for the permit sought to use both parcels for a beauty shop and the permit was granted. However, because of the zoning ordinance of the City involved, it was unauthorized to issue a permit under the circumstances. The Court held the permit was invalid and illegal ab initio and therefore the applicant did not acquire any rights under which he could claim an estoppel. The case gives a discussion of the imposition of estoppels against public entities and indicates that the interpretation is similar to the applicable rules dealing with general eAoppels, 9 -d ItLE96+s61rs uospinea .H aouaime-1 dL5 °E0 ac ea 9ny MESERVE, MUMPER &'HUGHES LLP • Daniel K. Ohi December 21, 2001 Page 2 The permit in the present case was not illegally issued and we respecd wly submit the case is not applicable. In fact, a lot of the discussion in the case is favorable to Mr. Butler's position. The case of Stokes v. Board of Permit Appeals which 1 cited in my letter of 11/9/01 seems clearly applicable in the present situation as a vested right cannot be taken away. The issue that is not addressed by you pertains to the original application that was Sled after a discussion with Mrs. Garcia who even added to the application in her own handwriting. The Modification Committee beard the matter and unanimously approved the application without opposition. The committee at the hearing did not impose any conditions. Mr. Butler acquired vested rights at that time. There was no appeal, motion for reconsideration, motion to vacate, etc. When the permit was prepared, a number of conditions were imposed that were not discussed by the Modification Committee at the hearing. What authority exists for the addition of conditions without any hearing after the Modification Committee granted the application as filed? The drawing with the original application did not show the deck patio cover extending in • an area toward the residence of the complaining party into the side set back. The plans submitted by Gable Engineering were approved by the Building Department on 7/26101 and did extend across and into the side set back. It would be appreciated to learn the reasons given by Mrs. Temple to determine if there was a mistake, and therefore take away and alter what would appear to be a vested right. The complaining neighbor for whatever reason chose not to appear at the hearing on 5/3100 and any objection after that date should be ignored. The City in my opinion has acted in excess of the City's authority by taking away a vested tight that had been established. It is certainly strange that plans submitted in August of 2000, which were approved and included the 3' extension, are now asserted to be lost by the City. How is this possible when nothing else seems to have been lost? What efforts have beet made to find these plans? I am advised by Mr. Butler that he spoke with Mayor Ridgeway at the time there was an objection filed and indicated to Mr. Butler that he would guarantee he would get his permit if he made another application which he did. Mr. Ridgeway was kind enough to review the situation in person and I realize the statement he made is not binding, but it certainly indicates that be believed the relief requested by Mr. Butler was reasonable would be granted. g•d ITL696b6b6 uosptnea .H aau8,4mel dLS :EO 20 Ea 9ny `a ,e t MESERVE. MUMPER & HUGHES LLP Daniel K. Ohl December 21, 2001 Page 3 The interesting part is how Ms. Temple determined that the permit was granted in error and that the plans were also approved in error and now those plans can't be found. The proceedings against Mr. Butler concerning Conditions 91 and #3 which were not imposed at the May 3'a modification hearing were added after the fact, and cannot be imposed after a formal hearing is held where the application was granted as submitted. Perhaps there is some statute or case authority indicating that additions can be made later, but I am unaware of any authority which supports that position. That this matter is truly a tragedy over a trivial issue in which the action of the City has created a hostile condition between neighbors. Mr. Butler hasp left open the area that might block the neighbor's view and the deck is not extended in: the 3' area next to the house of the complaining parry. I didn4 know the City was involved with the protection of private views, but if the City wants to protect the view of a particular homeowner, in my humble opinion such protection should not be granted to give a benefit to an neighbor who wants to prevent any impairment with his view. An examination of the question of whether a view is blocked in any event is difficult to • understand as the complaining homeowner would need to be on his knees or below waist level to have any restriction. The restriction is so minimal that the request by the complaining witness is more a matter of hostile feelings on the part of the complaining neighbor. There must be some way to resolve this matter and please therefore indicate what the City is requesting. What do you want Mr. Butler to do as to Items #1 and #3 on the original permit which were not validly imposed. If they were it is unclear as to what has to be done to satisfy these conditions. • By a copy of this letter we are requesting that Mayor Ridgeway review the matter and snake any suggestions on what Mr. Butler needs to do. Please also find enclosed a summary of facts in a Costa Mesa case concerning the Samoa House. OT "I TUC36b6b6 uoeptnRa .H eoua�jmej dLg:60 20 EZ 9ny 3 � MESERVE, MUMPER & HUGHES LLP Daniel k Ohl December 21, 2001 Page 4 Thank you for your thoughtfulness in reviewing the foregoing and hopefully you can contact me within the next few days. Very truly yours, Dictated But Not Read Bernard A Leckie Of Counsel for MESERVE, MUW ER & HUGHES LLP BAL:mt Enclosure cc: Mayor Ridgeway Robert Butler is • • II•d II LESS ipsiri uospcnRa •H aouaJme, dg5:E0 20 62 2nU CITY OF NEWPORT BEACH OFFICEE OF THE CITY ATTORNEY P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (949) 644 -3131 December 3, 2001 Bernard A. Leckie MESERVE, MUMPER & HUGHES 17300 Red Hill Avenue Suite # 250 Irvine, CA 92614-5653 RE: Robert Butler -911 West Bay Avenue Dear Mr. Leckie: We have received and reviewed your letter dated November 9, 2001, relative to the property noted above. We have been asked to respond. As you know, in May of 2000, the Modifications Committee approved a two foot (2') ten inch (117) patio cover encroachment into the required ten foot (10') front yard setback. The proposed patio cover did not extend across the entire front of the residence. Unfortunately, in August of 2000, the plans and specifications submitted for a building permit did show the patio coverage extending across the entire front of the building, contrary to what was encompassed by the Modifications Committee. Thus, the building permit was issued in error in that it allowed more of an encroachment into the required setback then had been approved by the Modifications Committee. There are no vested rights in an invalidly issued permit. See Pettitt vs. City of Fresno (1973) 34 Cal.App. 3d 813. Without waiving any rights, your client submitted a new modification application in an attempt to get the Committee to allow the extension. The Modifications Committee determined that the new plans were not in substantial conformance with the old plans and thus denied the request. As is your right, your client decided to appeal the Planning Directors determination that changes to an approved project were not in substantial conformance with the previously approved plans. The appeal was heard by the Planning Commission at its regular meeting of July 19, 2001. Following testimony and evidence, the Planning Commission determined that your appeal was not well taken and upheld the Planning Directors decision. Your client has not chosen to appeal that decision and thus has failed to exhaust his administrative remedies. 3300 Newport Boulevard, Newport Beach g•d TT66964646 uospcnea .H eouaime-1 0 d9s:so ao SZ 9ny • d Bernard A. Leckie November 28, 2001 Page 2 As to the City's authority to issue administrative citations, your attention is directed to Government Code Section 53089.4. The statutory scheme clearly authorizes the administrative citations program and our ordinance, found in Municipal Code Section 1.05, is modeled after statutory provisions used in Cities throughout the State. Please contact the undersigned should you have any questions or comments. Very truly yours n m Daniel K. ON Deputy City Attorney for the City of Newport Beach E'• . • cc: Patty Temple, Planning Director RNuserslcMrish eredtplcodeenforceSBudeedetterlBL .doc L•d TT4E986666 uospTAea .H 8aua-Jme7 d9g:E0 ZG 62 9ny M 1 MESERVE, MUMPER &L HUGHES LLP • LaLa" A<,F111C CI 760 "6" STREET S55 SoU,m FI A STRCer 1691 FLOOfL SUITE ez00 Ln.4 Awpeu:a. CAUroRN49OY11•$Jlp SAN CISCO. CALIFORNIA 9$101 • • TeLFl z 213) 6200300 FAd,,." 2131 625. 1930 0*.,01 C..MTY OFF= I7300 Rea 'flu AWJLUc sum E50 W WwC. CAL 10. 92614 -5053 tE1.CMOMe MAIN 474.6995 FAa... 19191 975- I "a November 9, 2001 TELEPHONE 1619) 2370500 FACSIMILE (6101 E37O073 City of Newport Beach Community and Economic Development Planning Department Code Enforcement 3300 Newport Blvd. Newport Beach, CA 92663 Re: Our Client: Mr. Robert S. Butler Location and property: 911 West Bay Avenue, Balboa CA 92661 Dear Ladies Gentlemen: E.WIM A. ME KRV. I lsea • 1955 I SNIRLe E. me." e 1 Iaa9 • 1910 1 Nfi W41MOe MVMPCR 1 1111 -wee 1 CL%110R. E. NU6NLa I lao. • Ice, I J. R.6cRT MeaeRVe 1 Tote - 1991 1 OUR RCF. NO. 54645001 Please be advised that Mr. Butler had been on vacation for almost a month and after he got home he received a Notice of Administrative Citation by certified mail, and it said something about fourth citation although he did not receive the earlier purported citations. It is difficult to understand what you are trying to accomplish by this administrative citation. It is apparent to me that the city has taken a position contrary to the wishes of Mr. Butler and in favor of Mr_ Bryant in order to grant Mr. Bryant a private benefit to him alone that gives his property a greater view of the bay. This seems to be a situation where one party is made to suffer because another landowner wants a greater view that will only be slightly impacted by the modification requested by Mr. Butler. The public benefit is not the impacted. This appears to be a case where the city has gotten involved in personalities and favors one neighbor against the other. In considering this matter we must go back to the beginning when Mr. Butler inquired of Mrs. Garcia to extend the permitted encroachment of two feet six inches an additional distance of four inches. Mrs. Garcia wrote on the application form in her own handwriting (deck extension/patio cover). The application was z•d IILE964646 UGSPt,lln RQ •H aouaimej dgc:EO ZO ea gnu MESERVE. MUMPER & HUGHES LLi City of Newport Beach • November 9, 2001 Page 2 heard on May 3, 2000 and the submitted application and plans were approved. No one appeared to object. No appeal was ever taken. At the hearing no conditions were imposed. The finding were set forth in the letter from the city dated May 10, 2000 but conditions were added after the hearing. I hope there is transcript of the hearing as I am advised that there was no mention of any kind that conditions would be imposed. The conditions came up after the hearing when Mr. Bryant decided to object. The objection by Mr. Bryant should have been made at the May 3, 2000 hearing, but he did not appear. His objections were made after the fact. It is submitted that a vested right was acquired by Mr. Butter when the committee granted its approval. It was later said that the results of the hearing and the modification were a mistake. Therefore without taking judicial or corrective action a vested right granted to the applicant was suddenly taken away. The result could be an attack by appeal but none was taken. The modifications committee had no authority to add additional conditions as the order of modification was granted based on a hearing scheduled . with proper notice. The findings and determination creates a vested right that can not be taken away. Stokes v. Board of Permit Appeals (1997) 52 CA4th 1348. Please indicate if you believe vested rights were or were not established in Mr. Butler and how were the vested rights eliminated? What authority is there for eliminating vested rights once they are established? It appears that Mr. Butler should not have been required to seek a modification since the original hearing held on 5/3/00 granted him the rights he was seeking. It would be appreciated if you could cite the authority which gave Mrs. Temple the right to determine that there was a mistake and therefore take away and alter what would appear to be a vested right. When the complaining neighbor decided not to appear at the hearing the modifications committee considered the matter and made a decision on May 3, 2000_ In essence what the neighbor is trying to do is compel an unauthorized reconsideration. In addition, plans submitted in August of 2000 were approved and included the three foot extension and it is difficult to understand the claim by the city that they can't find those plans at this time. Nothing else was lost but just these plans which contained the approval. I understand that in December of 2000 the plans were again reviewed and approved by Greg. It is certainly a sad day when a property E•� tiL£96b6b6 uosptnea .H aouaamel des:60 20 EZ 2nd I • MESERVE. MUMPER & HUGHES LLF • j, •d City of Newport Beach November 9, 2001 Page 3 owner and retired citizen of Newport Beach is treated in this matter. It seems there should be some way to resolve this case. We also question the constitutionality of the required pre - payments of an administrative penalty as a condition for getting a hearing to contest the imposition of the administrative fine. It should be noted that on the notice of administrative citation references made to conditions numbers 1 and 3 on the modification permit but these conditions were after thoughts and were not part of what was granted at the hearing attended by Mr. Butler where his application was approved without any conditions being imposed. What authority exists to impose these conditions afler the fact? Mr. Butler was told that there should be no difficulty in getting his modification application granted as submitted. It is doubtful that Mr. Butler would have ever proceeded ahead with the process if the kind assistance of Ms. Garcia had not led him to believe that the modification committee would approve his request. His application was augmented with the inclusion by Mrs. Garcia of the additional language in her own handwriting. Your thoughtfitiness and consideration of the foregoing would be greatly appreciated. Please set forth the factual or legal basis why my analysis is wrong_ What can be done to resolve the dispute. Very truly yours, Dictated But Not Read Bernard A. Leckie Of Counsel for MESERVE, MUMPER & HUGHES LLP cc: Robert Butler Dennis O Neil 1tLE96b6b6 uospinea •H aouaum97 d95 =E0 ZO EZ 9nu M MrJERVE, MUMPER &HUGHES LLi Ciry of Newport Beach • November 9, 2001 Page 4 P.S. Dennis do you have any thoughts about what Mr. Butler should do or how this matter can be resolved? 27aas.1 • 9 •d TTGE9646i6 uosptnea •H aouaJMQI 49S:eo ao Ca and CITY OF NEWPORT BEACH JJ APPLICATION TO APPEAL DECISION OF THE PLANNING c8j&66�4 E D Application No.: Modification Permit No. 2002 -018 '02 ,J(I. 31 A10:31 • Name of Appellant or person filing: Robert S. Butler, through my attorney and representative, LawreQpe;tic Q1kv*— on,iAtt9f QY at Law; Phone: 949- 500 - 6275; 949 -675 -0829 (Butler); 949-496 -37111 (Fax); Email:a�if�vie�ciit is35crkftld. Address: 911 West Bay Avenue, Balboa, CA 92661; Representative's Address: 537 Newport Center Drive, Suite 537, Newport Beach, CA 92660 Date of Planning Commission decision: July 18, 2002 Regarding application of Robert S. Butler for (Description of application filed with Planning Commission): Appeal of the Conditions Attached to Approval of Modification Permit No. 2002 -018 Reasons for Appeal: Including, without limitation, that the decision violates Appellant's constitutional rights; violates due process of law, exceeds the subject matter jurisdiction of a municipality; violates state and federal law; takes property rights without due process of law and just compensation; violates appellant's civil rights under all applicable federal and state laws; violates Appellant's property rights; violates the Ralph M. Brown • Act; an iol a Municipal Code of the City of Newport Beach. -57- 145,97.jl o v ffuc>usr a7 rence . David9on7 p pip,¢ Attorney for Robert S. Butler, Appellant Sign ire of Appellant y Date: July 31, 2002 rte! /Jt�n cJ O a I - ��✓L� CITY CLERK FOR OFFICE USE ONLY Date Appeal filed and Administrative Fee received: 200?. Hearing Date. An appeal shall be scheduled for a he before the City Council within thirty (30) days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec. 20.95.050) cc: Appellant Planning (Fumish one set of mailing labels for mailing) File APPEALS: Municipal Code Sec. 20.95.040(8) • Appeal Fee: $312 pursuant to Resolution No. 2002 -50 adopted on 7 -23-02 (effective 7- 24-02) (Deoosit funds with Cashier in Account #2700 -5000) COMMUNITY AND ECONOMIC DEVELOPMENT PLANNING DEPARTMENT 3300 NEWPORT BOULEVARD NEIM30FZT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644-3250 PART 1: Cover Page L,LRLec� 1. Common.Yamellf applicable): APPLICANT (Print)-. N I -A. r Fax il. atY nwiteT,ti fiittrent from above): ..-cnpt- and 7r- Fny f Application: )§ ML*dific Permit NO.' ❑ Accepted by FEES: -- . .--. CONTACT PERSON 0 Mailing Address: Phone: L Fax ( briefly) m OPEM OWNERS AFFIDAVIT -are) the owacn%) f C 't Oil, &w,;e and say tim (I am) (we th "ovil smf-.e. certify, under jvnah - the forego; !itremesus and auslAc", hertLl 1�1 the jil(brmition herewith subrome 1:), n -ill rmqw t� Wn t/nbestof no I,& —.1d bU'-'-' X— 7�u the ircord owner iS riled with thi applicatio:1. Appellant's Exhibit "I" Page 2 A � � J` 3 " y1 ' 1 t«; J' J 1 A � � J` 3 t t«; i y ry 9 r: Y A � � J` EEO, May 24, 2001 CITY OF NEWPORT BEACH BUILDING DEPARTMENT 3300 NEWPORT BLVD. P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (949) 6443275 Mr. Robert Butler 911 West Bay Avenue Newport Beach, CA 92661 SUBJECT: Request for Copy of Drawing Submitted into Plan Check, Plan Check #2013 - 2000, 911 West Bay Avenue Dear Mr. Butler: A building permit was issued on September 13, 2000. At permit issuance, we usually approve two sets of corrected drawings, and keep-one approved set with our records and keep one old set for the Orange County Assessor's Office_ The rest of the drawings and one approved set are given to the permittee. For this project, we have on file a set of drawings approved on September 7, 2000, a I revised set approved on November 13, 2000, and another set for a revised section 1 detail approved on December 20, 2000. We no longer have the drawings you • initially submitted into plan check on August 10, 2000. Please call me if you wish to have a copy of the record drawings or if you have any questions on the contents of this letter. I can be reached at (949) 644 -3277. Very truly yours, BUILDING DEPARTMENT Jay Eibattar, P.. H'., C.B. 0., Director By: —L r'-Z:� Fai al Jur ' .E., C.B.O. Deputy Buil ' ector FJ:ds • p_ma8• r•nh hl�n riru„r�+nr Erbibit "3" Dort- beach.cn.us /buddinL a� r ! ! 1 Y 1 \_ ( 9� ) t y3 -ad y9 Appellaut'e Exhibit "b +r I