HomeMy WebLinkAbout11 - Zoning Code Amendment to Modify the Standards and Process for Reviewing Building Additions to Nonconforming Structures (PA2014-083) - CorrespondenceReceived After Agenda Printed
February 10, 2015
Item No. 11
February 10, 2015, Council Agenda Item 11 Comments
The following comments on an item on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( Lmmosher(o)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229)
Item 11. A Zoning Code Amendment to Modify the Standards and
Process for Reviewing Building Additions to Nonconforming
Structures (PA2014 -083)
I have the greatest respect for the City's Planning staff, and I don't want to second guess the
Planning Commission's recommendations regarding the proposed changes to NBMC Section
20.38.40 ( "Nonconforming Structures "), but I also think the City should make every effort to
enact clear laws, and I think there are a couple of problems with the clarity of how the proposed
changes to Section 20.38.40 interact with Section 20.52.050 ( "Modification Permits "), as well as
the proposed change to Section 20.52.050 — issues the Planning Commission didn't devote
much attention to.
I see two problems:
Implementing the changes to Section 20.38.40 requires the Planning Commission to
grant Modification Permits, but when one reads Section 20.52.050 in a wider context
than is reproduced in the ordinance, one sees that in the City's current permitting
scheme, Modification Permits are a thing granted by the Zoning Administrator, not by the
Planning Commission (see Subsection 20.52.050.B: "Review Authority and Allowable
Modifications. The Zoning Administrator shall approve, conditionally approve, or deny
applications for modification permits applicable only to the following, ... "). Subsection
20.52.050.F.3.a provides an out whereby the Zoning Administrator may refer a
Modification Permit to the Planning Commission for consideration, and in this case
would have to since Subsection 20.38.40.G.1 denies her the authority to approve this
particular class of permits. But that's certainly confusing to those trying to read what
they have to do to get their Modification Permit approved and it could stand a cleanup.
2. Much more importantly, to bring these allowances for expansion of non - conforming
structures within the ambit of the Modification Permits approved by the "Zoning
Administrator" — even though the Zoning Administrator can't actually approve them —
staff proposes adding Subsection 20.52.050.B.3.h as a new category approvable by the
Zoning Administrator: "Increase in allowed floor area of additions for nonconforming
residential structures as identified in Section 20.38.040 (Nonconforming Structures)."
However when one reads the heading to this subsection it very clearly says it is a listing
of categories of Zoning Administrator Modification Permit approvals in which "The
following modifications are not limited in the amount of deviation from the standard
being modified."
Now, the Planning Commission was adamant that an addition of 75% was the
maximum deviation addition allowed by a Modification Permit approved pursuant to
Subsection 20.38.40.G.1from the normal standard of a 50% addition allowed every 10
February 10, 2015, Agenda Item 11 Comments - Jim Mosher Page 2 of 2
years. Yet Subsection 20.52.050.6.3 says this is a category of Modification Permit in
which there is no limit to the allowable deviation, obviating the need for a variance for
larger deviations.
I may be being even more obtuse than usual, but I find it very confusing to have the
code say in one place that the maximum addition that can be approved with a
Modification Permit is 75% and in another that there is no limit to the "Zoning
Administrator "'s authority to grant deviations. Since the two provisions are being enacted
simultaneously, I would even think this contradiction could lead to litigation.
When this point was brought up at the Planning Commission hearing on December 4, as
best I can recall the response was basically that Planning staff has long understood
Subsection 20.52.050.B.3 to mean something different from what its plain language
might suggest.
I would submit that others may be as confused as me, and while we can be pretty sure
Subsection 20.52.050.B.3.h was not intended to erase the discretionary limit
simultaneously enacted in Subsection 20.38.40.G.1, having staff rely on a reading not
obvious to others is not a good thing. I think it would be much better to take the time
necessary to modify Section 20.52.050 so that in the present case it clearly empowers
the Planning Commission to allow floor area additions of up to, but not more than 75 %,
by approving a Modification Permit, but does so in a way that does not confuse either
their or the Zoning Administrator's authority.
Doing so could be as easy as inserting before the first sentence of Subsection
20.52.050.B a statement that the Planning Commission, acting in the same manner as
the Zoning Administrator, is the review authority for Modification Permits sought in
connection with Subsection 20.38.40.G.1, while in all other cases the Zoning
Administrator proceeds as the Section 20.52.050 currently specifies.