HomeMy WebLinkAbout12 - Modification Permit Procedures0
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Study Session
Agenda Item No. SS2
October 12, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patrick J. Alford, Senior Planner
(949) 644 -3235
palford(cDcity. newport- beach.ca.us
SUBJECT: Potential Revisions to Modification Permit Procedures
ISSUES:
Should the modification permit procedures be revised to require additional findings and
replace the Modifications Committee with a zoning administrator?
• RECOMMENDATION:
Review staff report and provide direction to staff.
DISCUSSION:
Background:
On November 25, 2003, the City Council held a public hearing on Code Amendment 2003-
080, which would revise the findings required to approve a modification permit. The City
Council continued the hearing for several months in order to have the Modification
Committee conduct a parallel review of modification permit applications using the
proposed findings. The intent was to provide an indication of the effect on the proposed
findings on actions by the Modifications Committee.
The parallel review exercise also revealed ongoing difficulties with the modification
process, which could be remedied by replacing the Modifications Committee with a zoning
administrator.
•
Modification Permit Procedures
October 12, 2004
Page 2
Introduction:
Modification permits were established with the intent of providing relief when the strict
literal interpretation and enforcement of property development regulations would be
inconsistent with the general purpose of the Zoning Code. The Modification Committee,
which is composed of staff representatives from Planning, Building, and Public Works, has
the authority to approve or deny modification permits.
Currently, only one finding is required to approve a modification permit:
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.
If the proposed amendment is adopted, three findings would be required to approve a
modification permit:
•
The granting of the application is necessary due to the physical constraints of the •
property, such as legal nonconforming structures, size, shape, topography or lot
orientation, and that the strict application of the Zoning Code results in hardships
that are inconsistent with the purpose and intent of the Zoning Code.
2. The requested modification will be compatible with existing development in the
neighborhood.
3. The granting of such an application will not adversely affect the health or safety of
persons residing or working in the neighborhood of the property and will not be
detrimental to the general welfare or injurious to property or improvements in the
neighborhood.
Analysis:
The Parallel Review
Beginning on January 1, 2004, applicants for modification permits were required to
provide a written statement incorporating the three proposed findings to justify the
modification. At the end of each meeting, the Modifications Committee remained in
session and reviewed each application on the agenda for a second time using the project
justification statement to determine if the three proposed findings could be made.
•
Modification Permit Procedures
October 12, 2004
Page 3
• From January 28, 2004 to May 26, 2004, the Modifications Committee reviewed 34
modification permit applications that would have been subject to the proposed findings.
Using the existing findings, only one of 34 applications (2.9 %) was denied. Using the
proposed findings, 16 applications (47 %) would have been denied.
It should be noted that the applicants did not actively participate in the parallel review
process. The Modifications Committee conducted the parallel review using only the
project justification statement provided by the applicant and information disclosed during
the public hearings. In an actual public hearing situation, an applicant might be able to
provide additional information that could result in a different outcome. Likewise, applicants
might also opt to revise their applications to make them more likely to meet all of the
proposed required findings. Therefore, the high percentage of denials may not be
indicative of the outcome of future modification permit hearings, should the proposed
findings be adopted.
Nearly all (87.5 %) of the applications were denied in the parallel review only because
they failed to meet Finding No. 1. This finding is intended to address the Council's
concern of abuse of the City's development standards pertaining to setback limitations and
building design /configuration. With this finding, an applicant would be required to clearly
provide facts that demonstrate the need to deviate from the Code. Specifically, an
• applicant would need to show the modification is necessary due to physical limitations
present on a particular property, as opposed to simply wanting the modification to
accommodate a particular design. The Modifications Committee would be directed to
consider the physical aspects of the property and /or location of existing structures that do
not generally apply to other properties in the immediate vicinity.
Staff recently met with three architects who regularly represent modification permit
applicants to discuss the proposed changes to the modification permit process. All three
expressed concerns over Finding No.1. Specifically, they believed that Finding No. 1
requires that the property be unique and that this would preclude the approval of
modifications that are consistent with the development pattern in the surrounding area. To
address these concerns, the City Council may consider revising Finding No. 1 to remove
the references to size, shape, topography, and other the physical constraints of the
property to read as follows:
1. The granting of the application is necessary due to practical difficulties associated
with the property and that the strict application of the Zoning Code results in
hardships that are inconsistent with the purpose and intent of the Zoning Code.
• ' Required findings for lot line adjustments, tentative parcel maps, condominium conversions, and similar
applications assigned to the Modifications Committee would not be changed.
Modification Permit Procedures
October 12, 2004
Page 4
Zoning Administrator
The Modifications Committee is subject to the Brown Act2. As a result, Modification
Committee members are prohibited from discussing applications outside of open
meetings. This has proved to be problematic since it precludes Building, Planning, and
Public Works staff members from reviewing an application together in advance of the
meeting. In fact, staff members must visit project sites individually. In contrast, all other
applications (use permits, variances, parcel maps, etc.) are routinely distributed to these
departments for comments and recommendations before they are submitted to the
decision - making body. Thus, the Modifications Committee cannot take full advantage of
the review process without risk of violating the Brown Act. Furthermore, the
Modification Committee's review of the application at the hearing has been said to
appear as "deal making" as they attempt to reach a consensus.
One solution to this problem is to replace the Modifications Committee with a zoning
administrator. Zoning administrators are used by numerous communities to serve as a
hearing officer and to render decisions on minor discretionary applications. The zoning
administrator would be a qualified Planning Department staff member, appointed by the
Planning Director. Since the decision - making authority would be assigned to a single
staff member, the zoning administrator would be free to consult with other departments
without violating the Brown Act.
The zoning administrator would have the authority to render decisions on applications
currently assigned to the Modifications Committee. In addition, there are approximately
a dozen duties requiring approval authority assigned to the Planning Director by the
Zoning Code, which could be transferred to the Zoning Administrator. Public notice and
appeal procedures would not be affected.
Prepared by:
Patrick J. A ord
Senior Planner
Attachments:
1. Modification Permit Findings Study.
2. Correspondence.
Submitted by:
Patricia L. Temple
Planning Director
•
E
Z The Ralph M. Brown Act establishes the basic requirements for open meetings and notice of hearings •
for commissions, boards, councils, and other public agencies.
0
•
•
7
U
U
U
U
d
d
n L
o
O
m
v v °
m e
m y
L
n
o
m
o
nL
z
v u
¢ E
¢
d
v
v
v
v
v
v
v
v
v
v
vO
v
v
E
O
O
O
C
O
C
O
V
C
C
o
C
C
C
C
C
M
d
N
O.
d
d
d
N
d
d
d
d
d
d
d
0
0
a
0
0
0
nano
0
0
0
a
0
0
0
0
Ov
¢
Q
Q
Q
Q
Q
¢¢
Q
n
m}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
z
z
}
}
}
}
}
}
}
}
}
>y
c
p'
LL
N
N
C
m
Z5
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
}
z
Z
}
}
}
}
}
}
}
}
}
IL
�
LL
}
C
D
Z
}
Z
Z
}
Z
}
Z
Z
Z
Z
Z
Z
}
}
}
}
Z
Z
}
}
}
}
Z
}
}
Z
}
VC
N
LL
C7
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
v
z
N
N
N
N
N
d
N
N
d
N
N
N
N
N
N
N
d
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
c
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
V
>
>
>
>
>
>
>
>
>
0
0
0
0
0
0
0
O
O
O
O
0
0
0
0
0
0
0
O
0
0
0
0
0
0
0
d
0
0
0
0
0
0
0
0
0
z
a
a
a
C
LL
Q
Q
¢
¢
Q
Q
Q
Q
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
Q
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
¢
H
O
K
u0i
O
y
>
v
�
V
CL
LL
�m
O
vd�
°>'m
m
m
LL
=
—
i=
Bo'
s
m
2vom°vcv
a
ca
m
>
o
=
d
c
Q
K
m
F
c
a_
in
y>
Q
...
O
m
0
ar
m
r
�c
d
d
m
c
y
ar
c=
U
m
y
y
y=
v
o
LL'�
c
y
u
2
y••c
N
d
m
O
c
d'S
E
m
0
LL
D
Q
>>
=0
Ol
y
d
c
..
J
p
S
C
>N
.c
0
d
N
V
>>
d
O)
N
m
m
J
O
V
G
F
r0
C
Q
��
dNL
O
p0T
J
OJD
c
c
O
W.-Oj
V
X
Nm
m
m
W
N
CSC
v
d
X
�N
COQ
'E
V
O
0
E
c
m�
r.
ca
0
>
2
?�
n
o
`X
r.
ErS
�
m�
m
m
w
o�
m
m�
d
°iIui
m
m
um)
o
a
2t
ED
m m
0
m
c
vo
V7S-00
o
a
ma
0
d
m(7m
y_
V
oa
o
V
�mmv)
}y
c
NO»
I�
000
020
ONO)
V
I�mO)
W
O)0
co
2m
V—
I
NN
0,
0
V
i 0
O
O
O
O
O
I
O
O
O
O
—M
N
O
M
n
O
O
C O
N
V
M
O
N
N00
W
ONm
MONNiO
�pNNNth
O)
N
ip
V
ipO
e0
SON
NN�O
{SON_
W
Q
V
Np�ui
iO
�N�N�
V
Nn
�N—NNC7
NN�c7NN�
OOp
--
W
N
N
0
M
V
n
V
N
�i�pOpN
co
m�
O0
n
m
W
T
70000
N
O
O
OO
—
O
00
O
00
M
0
y
0
0
�O
0
�O
0ryaa0O
0rya
8ryrya
0
0ryrya,O
0ryrya
0rya
0
0
9yy
0ryry0y
Oyy
Oyy
—rya
—a
—
z
U
O
O
y
a
O
0
O
O
O
a
yO
y
O
yO
y
}}
}
}
J}
}}
}}
O
O
O
}
}
yy
y O
ryryQ
Q
8
Q
Q
8
Q
ryry
S
ryryry
0000
ry
ry
ryry
ryry
ryry
00
ry
ry
8
Q
0000000
ry�
0
ryry0y
00000000a
ryry0y
ry0
ryO
ryO
Q
ryO
Q
Q
aaa
aaa
a
as
a
aaaaaaa
a
aaaaaaa
a
aaaaaaaaa
mN
V
NCO
n
M
O
—N
V
iO
fD
W
O)
O
NfD
fD
I�NO)
W
NO
i
co
W
ISO)
0-0000
Z-0000
O
O
O
00
O
O
0
0
0
0
000
N
O
N
0000000
N
N
N
N
N
N
N
0
m
00000000000
m
m
m
m
m
m
m
g4
44
V
V
V
V
V
V
V
V
V
g
V
V
V
V
V
V
V
V
V
V
4
44444
4o
j
0
0
O
O
O
O
O
O
O
O
O
O
O
O
O
0
O
0
O
0
O
0
O
0
0
O
0
O
O
0
0
0
0
0
0
0
0
0
0
0
0
0
0
O
O
0
0
0
0
0
0
0
0
0
00000
0
0
0
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
N
000000
0
00
0
0000000
0
0000000
0
000000000
¢22222
2
a
00000
s
O
0
O
00
a
O
8
0
0
0
0
0
0
0
O
0
0
0
0
0
0
0
O
O
O
c
N
N
N
N
N
N
N
N
N
0000000
NNNNNNN
0
N
0000000
N
N
N
N
N
N
N
O
N
O
N
O
N
00000
N
N
N
N
N
N
N
y
W
W
CO
CO
CO
NM
M
MO_
nn
V
V
V
I�
nn
V
V�
W
W
N
N
N
N
N
N
M
M
CO
CO
'C
'm
>
wmmmmm
m
mm
U
U
m
U
`m
L
°O
L
L
°�
L
L
°�
L
a
Q
QQ
C
C
m
m
�gmmmmmmm
m
0==222
2
2
2
g
m
m
m
m
m
m
m
<<<<<
2
2
y
c
c
a
a
a
a
a
222222
1>
7
9- 29 -04; 8 ;09AM;Brian S. Jeannette
SUPPLEMENTAL APPLICATION:
PROJECT JUSTIFICATION REQUEST
;9496455983 # r/ 1
The City Council has directed the Modifications Committee to study and document the following:
Review and evaluate all newly submitted Modification Permit Applications utilizing the three project criteria
listed below. The study will encompass Modifications Committee agenda items for approximately four inonths.
The supplemental application information will be discussed and evaluated by the Modifications Committee at
the end of the meeting, separately and apart of the decision making process. This case study information will
be presented to the City Council as supporting.documenlation in their review of a proposed Code Amendment
(Amendment to the Zoning Code). The intent of the code amendment is to establish objective findings or revise
current Modification Permit Findings utilized by the Modifications Committee in the decision making process.
Therefore, effective January 1, 2004, all Modification Permit applications received in the Planning Department
shall include a written applicant's statement addressing the three project criteria listed below (applications
submitted without the accompanying statement may be deemed in plete which may cause a delay in the
processing of the application).
Additional Information Request:
Please provide a detailed description of the proposed request in relation to each of these criteria and clearly
state only the objective reasons for requesting a Modification Permit. (Attach additional sheets if necessary).
Protect Criteria:_ / y yfir��^""f a ' � ' MAP. 4 wop P- *PWI -d
`- / �f- ,1914aP iONiI>`/�A1�7 C �ro�AA+ Nvn COn. � 4 /aF � 5�p r fi0�° bk rn+w,,o� � rb � ar
A.
how does strict application of the
Zoning Code result in hardships that are inconsistent with the purpose and intent of the Zoning Code?
PAWt
NUEMPIPMEA
B. How will the requested modification be compatible with existing developrnent(s) in the neighboihuud?
�''"
/ADP
l5 j W fry e mtityi 7 . f?s e4--1 _
C. How and why will the granting of such an application not adversely affect the health or safety of persons
residing or working in the neighborhood of the property tWr4bk%�Vetnrnental to the general welfare: ur
injurious to properly or improvements in the neighborhood? P-U -jke &A41Vfi %MAO oplvd/Aoo k- ,
Application Identification (For Office Use Only) •
F' \USERS \PLN \Shnrc:d \Mods 2003 \SUP1J-APP Criwria'12- 0 03.dor,.
Alford, Patrick
From: Sk000ler @aol.com
t: Wednesday, September 22, 2004 11:30 AM
palford @city.newport- beach.ca.us; email @customarchitecture.com
Subject: Mod squad
Hi Pat. If I don't do this know it won't get done. After reviewing the findings or project
criteria I like what I see except # A. I believe a simpler aproach would solve my
concerns. Something like this A. How is the granting of this application consistant with
the purpose and intent of the Zoning Code. Thanks Todd Schooler
•
•
1
7