HomeMy WebLinkAbout09 - Broadmoor Setback Determination - PA2011-013CITY OF
NEWPORT REACH
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City Council Staff Repot Agenda Item No. 9
May 10, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Dana Smith, Assistant City Manager
949 - 644 -3002, dsmith @newportbeachca.gov
PREPARED BY: Jaime Murillo, Associate Planner
APPROVED:
TITLE: Appeal of Minimum Side Setback Determination - (PA2011 -013)
Broadmoor Pacific View Planned Community
ABSTRACT:
An appeal of the Planning Commission's determination on the application of side
setbacks within the Broadmoor Pacific View Planned Community.
RECOMMENDATION:
1. Conduct public hearing; and
2. Uphold the determination of the Planning Commission that the Broadmoor Pacific
View Planned Community text is silent on the application of side setbacks in non-
zero lot line configurations, and therefore, to provide equity and certainty with
regard to development limits, a determination should be made requiring a five -
foot minimum side setback.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
Broadmoor Pacific View Planned Community
The Broadmoor Pacific View community is located on the southeasterly side of San
Miguel Road, adjacent to the Big Canyon Reservoir, and consists of 167 detached,
single -unit dwellings. The development is a gated community that was developed in the
late 1970's and was designed with terraced lots to provide a maximum number of view
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Appeal of Minimum Side Setback Determination
May 10, 2011
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Appeal of Minimum Side Setback Determination
May 10, 2011
Page 3
lots. The Broadmoor Pacific View Planned Community text (PC Text) sets forth the
development regulations for the residential and recreational uses within the community.
The PC text development regulations are unique in that instead of establishing
traditional front and rear yard setbacks, the PC text establishes "street setbacks" and
"view setbacks ". The PC text refers to a setback map /plan that delineates and
establishes specific street and view setbacks for each of the lots.
With regard to side setbacks, the PC text allows a zero -side setback on one side of a
property, provided there are no openings in the building wall and that a minimum of 10
feet is provided between houses; however, the community was not constructed with
houses with a zero side setback and the PC text is silent on what the minimum side
setback should be in instances where a zero -lot line is not proposed. Also, the PC text
is unclear as to whether or not the minimum 10 -foot separation requirement only applies
in a zero -side circumstance, or if the 10 -foot separation is a stand alone requirement.
Absent of any other language, staff has historically interpreted the requirement to mean
that no side setback is required from a property line, provided there is least 10 feet
between houses. Unfortunately, this has created an inequitable "first -come, first- served"
situation where one property owner may build -out the side yard area impacting how
close an adjacent neighbor can build in the future.
Purpose of this Discussion- 2003 & 2005 Yacht Mischief
On January 14, 2011, Jamie and Patricia White, homeowners residing at 2003 Yacht
Mischief, submitted a letter with exhibits (Attachment No. CC 1) raising a concern
related to the application of side setbacks. The Whites' property is located near the end
of a cul -de -sac and maintains a large side setback to their property line. Their neighbor
(2005 Yacht Mischief) is planning an addition that would be setback 5 feet from their
shared property line and would provide for a separation between houses that exceeds
the minimum 10 -foot separation requirement. The Whites' primary concern is that the
proposed addition will block their northern view. The Whites contend that the permitted
site plan used for the initial construction of the homes in the community, not the written
standards, actually controls the allowable building envelopes for each of the lots,
including side setbacks. Under the Whites' interpretation, no additions beyond the
original building envelope would be allowed.
Planning Commission Determination
As a result of the concerns raised in Whites' letter, the Acting Planning Director referred
this issue for a formal determination by the Planning Commission. The attached March
17, 2011, Planning Commission staff report (Attachment No. CC 2). outlines the setback
regulations of the PC text in detail, summarizes the Whites' concern and interpretation,
provides an analysis of their interpretation, and provides a recommendation to resolve
the ambiguity in the regulations.
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Appeal of Minimum Side Setback Determination
May 10, 2011
Page 4
After receiving staffs presentation, testimony from the Whites, and testimony from four
members of the Homeowner's Association Board and Architectural Review Committee,
the Planning Commission supported staffs recommendation that a minimum five -foot
side setback be required. The March 17, 2011, Planning Commission minutes are
included as Attachment No. CC 3.
Aooeal Reouest
On March 29, 2011, Councilmember Keith Curry appealed the Planning Commission's
determination to further review the application of side setbacks within the Broadmoor
Pacific View community.
The following discussion summarizes the side setback conditions that currently exists in
the community and describes why the recommended five -foot setback determination
provides an equitable solution.
Side Setback Determination
Section IV.E (Side Yard) of the PC text regulates side setbacks as follows:
A zero side yard setback between the structure and the lot line shall be permitted
on one side provided there are no openings on the zero side yard wall and that a
total of ten (10) feet shall be provided between structures.
The above standard is intended to create a zero -lot line development pattern (see
Attachment No. CC4); however, the community was not developed with zero -lot lines.
Staff believes that the explanation of deviating from the zero -side setback configuration
may relate to Building Code concerns pertaining to openings and egress requirements.
In most cases, the developer built the homes in a manner that provides a 4 -foot setback
on one side of the property line and a 6 -foot setback on the other side. Therefore, two
lots side -by -side would comply with minimum required separation of 10 feet between
houses (see Attachment No. CC5).
In order to implement the zero -side setback concept, the 4 -foot side yard area was
granted to the adjacent property for use and landscaping purposes. Easements were
established in the CC &Rs. For the purpose of this discussion, this configuration is
referred to as the "assumed zero -lot lines" (see Attachment No. CC6).
In some cases, lots located near the end of cul -de -sacs were not provided with
landscaping easements because larger side setbacks exist and because the assumed
zero -lot lines are on opposite sides of a common lot line (see Attachment No. CC7).
Absent any requirement to maintain a minimum side setback in a non - zero -lot line
configuration, staff has historically interpreted the requirement to mean that no side
setback is required from a property line, provided there is least 10 feet between houses.
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Appeal of Minimum Side Setback Determination
May 10, 2011
Page 5
Unfortunately, this has created an inequitable "first -come, first- served" situation where
one property owner may build -out the side yard area impacting how close an adjacent
neighbor can build in the future (see Attachment No. CC8).
To resolve this inequity, the Planning Commission adopted staffs recommendation that
a minimum 5 -foot side setback be provided (see Attachment No. CC9). To make this
determination, it was concluded that the PC text is silent on the application of side
setbacks in non -zero lot line configurations, and therefore by default, the minimum side
setbacks of the Zoning Code apply. The most appropriate zoning designation in the
Zoning Code applicable to the Broadmoor Pacific View community is the Single -Unit
Residential (R -1) District, in which case a minimum side setback of 4 feet would be
required. However, in order to achieve a fair and equitable setback while achieving the
10 -foot minimum separation requirement of the PC text, a minimum side setback of 5
feet should be provided. For those properties that maintain an "assumed zero -lot line
configuration" and that currently provide a 4 -foot or 6 -foot minimum side setback,
additions to the building shall be allowed to be constructed to the side setback in effect
at the time the building was constructed (see Attachment No. CC10).
To eliminate confusion in the future, staff will prepare a memo documenting the formal
determination, which will be used to supplement the PC text.
Alternatives
If the City Council disagrees with Planning Commission's determination on the
application of side setback requirements, staff suggests the following alternatives:
1. Whites' Interpretation- Determine that the permitted site plan used for the initial
construction of the homes in the community actually controls the allowable
building envelopes for each of the lots within the community, including side
setbacks. This determination would have the effect of not allowing any additions
or remodels beyond the existing building envelopes without a variance.
2. The City Council shall make an alterative determination and state reasons for
such determination.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQK) pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
PAR
Appeal of Minimum Side Setback Determination
May 10, 2011
Page 6
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item). Notice of this agenda item
was also published in the Daily Pilot, mailed to all property owners located within the
Broadmoor Pacific View Planned Community District, and mailed to the Broadmoor Sea
View Homeowner's Association.
Submitted by:
* e�zz
ana Smith
Assistant City Manager
Attachments: CC 1
CC 2
CC 3
CC 4
CC 5
CC 6
CC 7
CC 8
CC 9
CC 1i
Jamie and Patricia White's Letter (Exhibits provided separately)
March 17, 2011 Planning Commission Staff Report
March 17, 2011 Planning Commission Minutes
Typical Zero -Lot Line Development
Actual Development Pattern
Assumed Zero -Lot Line Configuration
Configuration in Question
Setback Inequity Situation
5 -foot Side Setback Recommendation
) Setback Exception
I
Attachment No. CC 1
Jamie & Patricia Whites' Letter
(Exhibits not included due to bulk)
James and Patricia White
2003 Yacht Mischief
Newport Beach, California 92660
(949) 759 -1434
January 14, 2011
Mr. Joel Fick
Acting Community Development Director
City of Newport Beach
3300 Newport Boulevard.
Newport Beach, California 92658
Dear Mr. Fick,
Thank you for meeting with us last Wednesday. The purpose of this letter is to provide you with
the documents that support the conclusion that the "approved plot plans" controlled the building
envelope for Broadmoor, the original builder of the development, and for any future
modifications by the homeowners of Sea View.
Approved Plot Plans and PC No. 18
Each of the three plot plans has check numbers and the notation, "apps" with an approval date
written in hand on them (see Exhibits 1, 2 and 3). These approved plot plans are referred to in
this letter as the "APPS" and show the setbacks and footprint for each house with dimensions to:
(1) the street side property line, (2) the blank wall side of the house property line (referred to as
the zero side) and (3) in almost all cases, the opposite side property lines. When the window side
of two houses face each other and both are oriented toward a common property line and they are
both more that 10 feet away from that line, then a dimension is shown for only the house that is
closer to the line because when one house is more than 10 feet away from the line, the 10 foot
separation rule is satisfied. The opposite side property line occurs eleven times throughout the
development and is the line between two houses that face each other. All the houses in Sea View
were originally designed with a blank side with no windows and one door opening for fire egress
from an atrium and the side opposite the blank side with many windows and usually the front
door.
The Broadmoor Pacific View PC (Planned Community) District Amendment No. 18 adopted by
the City Council on July 28, 1975 and referred to in this letter as "PC No. 18" (see Exhibit 4)
states:
1. In Section IV.D. Setbacks from Streets, that "Prior to the issuance of building permits for
each phase of the project, a final setback map shall be submitted to the Community Development
Director indicating the setbacks to all building areas proposed in the development ".
2. In Section I.Y.E. Setbacks from Property Lines that "All setbacks listed under this
subsection refer to all property lines not affected by Subsection D above. Dwellings may orient
towards the opposite property line in order to take advantage of view conditions ".
3. In Section IV.E. Rear or Front Yard that "The street and view side setbacks shall be
established on the approved site plan ". These statements: "a final setback map shall be
submitted.....indicating the setbacks to ALL building areas" and "setbacks listed under this
subsection refer to ALL property lines" and "setbacks shall be established on THE approved site
plan" indicate that there must exist approved plot pla is which delineate setbacks from all
property lines. The documents which are exhibits to this letter prove conclusively that the plot
plans submitted for each of the three tracts which comprise Sea View are the approved plot
plans, APPS, which establish the setbacks and building footprint for each house in Sea View.
PC No. 18 was incorporated into The Broadmoor Sea View Covenants, Conditions and
Restrictions, the "CC &Rs ", which were recorded in the Official Records of Orange County,
California on September 14, 1976, in Article VII of the CC &Rs as a document entitled Planned
Community District Regulations Broadmoor Pacific View, prepared by Raub, Bein, Frost and
Associates on October 23, 1975, and revised and Approved on January 12, 1976 (see Exhibit 5).
I have reviewed both PC No. 18 and the Planned Community District Regulations and find then
to be substantially the exact same word for word document except for the title. Therefore, the
Sea View IIomeowners Association is bound by PC No. 18 because it is included in the CC &Rs
and since PC No. 18 establishes the setbacks and shows the footprint for each house, then that
footprint cannot be modified without approval of both the I-IOA architectural review committee
and the City through a specific process. Thus the open space between and around many of the
houses that was created in the original development design is preserved. PC No. 18 was
modified by Modification 1055 which was filed with the City on July 6, 1976 (see Exhibit 13)
which clearly states that houses were oriented to take advantage of views and the distance
between some houses was minimized to create more open space at the end of streets and cul -de-
sacs. Our goal has not been to stop remodel activity in Sea View but rather to develop a clear
path for a homeowner to follow when designing the remodel of a house that includes building
outside the original footprint.
List of Exhibits
1. Broadmoor Sea View Plot Plan for Tract 9260, marked as Plan Check 456 -76 and
marked approved 8- 31 -76. I am providing sheets 1 through 6 of 48. The remaining
sheets are building construction drawings.
2. Broadmoor Sea View Plot Plan for Tract 9047, marked as Plan Check 1132 and 1133 and
marked approved 11- 19 -76. 1 am providing sheets 1 through 4 of 55.
3. Broadmoor Sea View Plot Plan for Tract 9261, marked as Plan Check 1177 and 1178,
stamped with a date of Janl 1, 1977 and marked approved 2 -3 -77. I am providing sheets
I through 4 of 50.
4. PC No. 18 adopted by the City Council on July 28, 1975.
5. Planned Community District Regs., Broadmoor Pacific View, prepared October 23, 1975
and revised and approved January 12, 1976.
6. Emails between Jamie and Pat White and Jaime Murillo dated September 8`h and 91",
2010,
7. Map which appears to be a grading map showing street and view side setbacks, no date
shown.
8. Letter to Patrick Alford from James and Patricia White dated October 26, 2010,
9. Letter to James White from Patrick Alford dated November 2, 2010.
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10. Setback Map for Tract 9047, 167 lots received by the City, October 28, 1975.
11. Map of street addresses for Sea View showing 167 lots but in a different configuration
than is shown on Setback Map of 10/28/75.
12. Hand written letter from Jamie White to Patrick Alford, no date, but probably after
November 2, 2010.
13. Modification Application Number 1055 dated 7 -6 -1976.
14. Modification Committee Findings and Action Number 1055 dated July 20, 1976.
15. Broadmoor Seaview Plot Plan for Tract 9047, sheets 1 through 4 for Tract 9260, sheets
and 4 for Tract 9261, two sheets not numbered, all part of Modification 1055 marked
pages I through 9 and stamped submitted July 6, 1976 (although the day of the month is
difficult to see).
16. Letter from James Campbell to James White dated November 9, 2010.
17. Tract No. 9260 marked as accepted and filed June 17, 1976.
18. Tract No. 9047 marked as accepted and filed July 22, 1976.
19. Tract No. 9261 marked as accepted and filed July 22. 1976. Note that the survey for all 3
tracts was completed in February of 1976.
20. List of Affected Homeowners.
Background
Sometime last year, our neighbor, Mr. Gregg McConaughy, presented us with a preliminary
rough drawing of what lie intended to build as a bedroom and bathroom addition. The City
Planning Department had told his architect that there was no setback requirement from our
C01111110171 property line. 1 thought that could not possibly be correct, so I visited the planning
department desk on the first floor of your building and over a few days time got several different
answers as to what setback is required from our common property line. Finally, I was told that
the planning department had had a meeting to discuss the matter and concluded that the conunon
property line setback was zero. I did not believe that was true, so I contacted Jaime Murillo by
email (see Exhibit 6) which started my search for the meaning and intent of PC No. 18. Jaime
concluded in his email to me that, "PC No. 18 is extremely flexible and doesn't have a minimum
side yard setback requirement, with the exception that buildings must maintain a minimum 10-
foot separation ".
Still not satisfied my wife and I met with Jaime at which time he provided us with what looked
like a preliminary grading map which showed only street and view side setbacks (see Exhibit 7).
This map is a very prelininary grading plan, as there are significant differences between how the
project was graded and the contour lines on the plan, and may have been used to propose some
preliminary ideas about street and view side setbacks. The setbacks from the street shown on the
map are in many cases different than what is shown on the APPS, which do correctly show what
was actually built. Jaime explained that side yard setbacks were not addressed in PC No. 18.
My wife and then went to lunch, discussed our meeting with Jaime and concluded that what we
were being told just did not add up. We have each been in the real estate development business
for over twenty years. We then went back to the city offices, found Jaime, and told him we were
not satisfied. Jaime then asked Patrick and a fellow from the building department to join an
impromptu meeting to discuss this issue.
During this meeting one interesting point that came up was that they did not know when and how
the door in the blank wall of each and every house got there. They just did not seem to know
when or how that was approved. This is a significant point because it is this door, an opening in
the blank side of the house, that caused the house to be a minimum of 4 feet away from the
property line instead of the zero setback that is referred to in PC No. 18 Section IV.E., paragraph
"Side Yard ". The houses are built 10 feet apart as is requited under the "Side Yard" paragraph,
except those that are the subject of the Modification 1055. Therefore, the zero setback allowance
that is specified in the "Side Yard" paragraph was not used due to the opening in the blank wall
side of the house and could not be used on the opposite property line because that other side of
the house has many windows and in most cases the front door. As Sea View was actually built
there is no circumstance that would allow for a zero setback to any property line. The meeting
ended with our being told that the City could really not be of any help to its other than to say that
the buildings had to be 10 feet apart and beyond that it was up to the Sea View HOA to set the
development standards.
Still not satisfied with what I was being told, I wrote a letter to Patrick Alford (see Exhibit 8). In
that letter dated October 26, 2010, I conclude that PC No. 18 clearly states that the setbacks from
ALL property lines are established by dimensions shown on the approved plot plans, the APPs.
In the letter I requested an official written opinion of the setbacks from all property lines as are
indicated in the PC No.18. On November 2, 2010, Patrick responded to my letter (see Exhibit 9).
I had asked him to provide me with a site or plot plan which showed the setbacks to all property
lines as was required in Section IV.D. of PC No. 18. Patrick, in his letter to me concluded that a
setback map (see Exhibit 10) was submitted to and approved by the then - Community
Development Director as provided for in Section IV.D. of the PC No. 18 text. He noted that only
front and rear setbacks were identified. This map, entitled Setback Map, Tract 9047, was
received by the City on October 28, 1975 and is another copy of the same map that Jaime gave
tile.
As I mentioned above, this map is inconsistent with what is built in Sea View. For example, on
Yacht Vindex, eleven lots are shown, but only ten lots exist on that street and on Yacht Daphne
four lots are shown, but five lots exist on that street. The setbacks of 18 feet from the street,
shown on the map, have not been followed in about 20 cases. Further, on lot 146 this map shows
a 5' typical setback from toe of slope, while PC No. 18 requires 10'. Finally, the lot lines as
shomi in many cases are very different from those shown on the APPs. The map does indicate
top of slope or view side setbacks to be 3 feet typical as is specified in the PC No. 18 text.
Another map (see Exhibit 11) indicating the Sea View street addresses shows many lots in a
quite different configuration to that of the "Setback Map" provided to its by Patrick. Patrick's
letter in his opening paragraph recites the issue of whether setbacks were established by an
approved site plan but he does not address that issue in his letter. At the end of his brief letter Ire
concludes that Section IV.E. "street and view side setbacks" refer to front and rear setbacks and
not side setbacks. It is true that the paragraph under Section W.E. "Rear or Front Yard" defines
the setbacks from top of slope or the view side at 3 feet and the toe of slope or rear yard at 10
feet and it also says that these will be established on the approved site plan. It does not say that
side yard setbacks will not be established on that same approved site plan. In fact the side yard
setbacks are clearly shown on what I have referred to above as the APPs. This is such an
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incomplete and incorrect conclusion that I felt the planning department had not conducted a
thorough review of my question nor was the department taking my request seriously.
Modification No. 1055
Soon after my meeting with Patrick, while looking at the microfiche copies of various maps for
Sea View, I discovered that there were some houses in Sea View that were closer together than
10 feet apart. I wrote a hand written note to Patrick and asked that he look into this issue (see
Exhibit 12). Within a day or so, I think, lie called me on the telephone and said that he had found
a Modification Application No. 1055 dated 7 -6 -76 and approved 7 -20 -76 (see Exhibits 13 and
14). Patrick told me that attached to Modification 1055 is a plot plan consisting of nine pages
that appears to be dated July 6, 1976, which is the same date that Modification App. 1055 was
filed with the City (see Exhibit 15). These plot plan pages do not include any dimensions nor do
they include the entire development since Yacht Vindex, Yacht Maria and Yacht Camilla are
omitted. This makes sense because those streets did not have lots that were part of Modification
1055. The Modification 1055 form lists the lots that are involved in Modification 1055. All of
these lots are at the end of their respective streets and the houses are blank side to blank side,
except for lots I and 2 of Tract 9047. The house on lot 2 has been oriented to have its blank side
toward lot 1 instead of toward lot 3 in order to take advantage of both an ocean and valley view.
Section IV.E. of PC No. 18 "Setbacks from Property Lines" states: "Dwellings may orient
towards the opposite property line in order to take advantage of view conditions ". In the
"Present Use" block of the Modification 1055 form are the hand written words "5' side yards"
indicating that side yard setbacks had been set on some plan. In the "Request" block of the form
are written the words: "That one lot receive an easement for (undetermined word or letters) use
from the other and the side yard setbacks be reduced to 4' each or total 8' ". That is interesting
because I had been told that side yard setbacks had not been addressed by PC No. 18 nor
established on any document and now we see conclusively that side yard setbacks had been
determined, as evidenced by the statements on the Modification 1055 document, and were
established on the APPS. Modification 1055 reduced from 5' to 4' the side yard setbacks for the
lots specified on Modification 1055. In fact upon carefid analysis of all the APPs I have found
that except for the specific lot pairs that were the subject of Modification 1055, where the
separation was reduced to 8 feet total, all of the other houses are separated by a minimum of 10
feet. An exception to this is the lot pair 22 -23 of Tract 9260, which is not part of Modification
1055, is only 8 feet apart. I suspect they were meant to be listed on the Modification 1055 but
just did not get listed. It seems that the plan checker did not pick up the discrepancy.
Interestingly, most of the houses that are not part of the Modification 1055 have.a setback from
the property line of 4 feet on the blank wall side of the house. This is a change from what was
indicated in the "Present Use" block of Modification 1055. Only lot 2 and the pairs of lots 1I-
12, 24 -25 and 34 -35 of Tract 9260 have a setback of 5 feet from the blank wall side of the house
to the property line. Lot 12 of Tract 9261 appears to have a 6 foot setback from the blank wall
side of the house to the property line.
These discrepancies point to the fact that the only place to see a complete picture of the setbacks
that were approved prior to the issuance of building permits is on the APPS. Again, this is the
only complete and therefore controlling set of documents, therefore, they must be the "approved
plot plans" mentioned in PC No. 18. that were to establish all the property line setbacks. The
concept of "approved plot plans" was in the PC No. 18 language and now we see it again in
Modification 1055 in the document that indicates that Modification 1055 was approved on the
condition: "1. That development shall be in substantial conformance with the approved plot
plans ". It is reasonable to assume the when the word "development" is used here it means the
entire development and notjust the lots that were the subject of Modification 1055. There
should be no question that the Sea View development was to proceed in substantial conformance
with PC No. 18 as modified by Modification 1055 and all incorporated into The Broadmoor Sea
View CC &Rs. Therefore, the Sea View Homeowners Association is bound by PC No, 18, as
modified by Modification 1055, because it is part of the CC &Rs.
In the body of the approved Modification 1055 form, its approval is granted on the condition:
"That development shall be in substantial conformance with the approved plot plans" and for the
following reasons: 1. "Che proposed development is in general couformance with the Plamred
Community Development Standards for "Broadmoor Pacific View." 2. The reduced separation
between structures will occur only at the ends of streets or cul -de -sacs where the end dwelling
units will be reversed so as to eliminate blank walls along the exterior side yards of the subject
lots. 3. The proposed development is a better site solution than originally planned since more
open space will be provided at the ends of streets and cul -de -sacs. Because of the language in
Modification 1055, the body of evidence that Sea View was to be a planned community
developed under standards contained in PC No. 18 as modified by Modification 1055, which
standards are to be clearly defined in a set of approved plot plans is strong and complete.
Meeting with Jim Campbell
I was therefore completely surprised when Patrick, in view of what he had just provided to me,
still denied that there were approved plot plans that controlled the development of Sea View
initially and in the future. Therefore, I asked to meet with Jim Campbell to either set up a
planning comrnission hearing or hopefully have Jim understand the evidence and provide me
with a written official ruling from the City that the approved plot plans showed the setbacks to
all property lines that those setbacks may not be modified without approval from the City and the
Sea View architectural committee. The meeting with Jim Campbell was set or November 4,
2010.
My wife and I met with Jim. He listened to my presentation during a one hour meeting with
Patrick in attendance. During the meeting Jim seemed to realize that it is difficult to conclude
that a zero side yard setback is allowed in Sea View. He said that he thought it would be easy to
defend a decision on his part that a four foot side yard setback could be imposed. Patrick did not
seem so inclined but the meeting ended with our believing that Jim had understood our
presentation. I was quite surprised when I received his letter affirming the planning
department's opinion that a zero side yard setback is allowed in Sea View (see Exhibit 16). He
cited the "Side Yard" paragraph of Section IV.E. "A zero side yard setback between the
structure and the lot line shall be permitted on one side provided there are no openings on the
zero side yard wall and that a total of ten (10) feet shall be provided between structures ". He
went on to say: "a zero foot side setback is permitted as long as a minimum of ten (10) feet is
maintained between structures. Beyond that, the PC text is silent in regards to side setbacks ".
Jim's logic fails to include the phrase: "provided there are no openings on the zero side yard
wall ". Further, he fails to recognize that Modification 1055 states in the "Present Use" block of
the form, the hand written note, "5' side yards ". This setback was required since there is an
Opening (door) in each and every house.
The document granting approval for Modification 1055 conditions that the development be in
substantial conformance with the approved plot plans. Further, as I have recited above the
reasons for the approval are that Modification 1055 improves the development since it creates
among other considerations more open space for the house at the end of a streets and cul -de -sacs.
Jim interprets that since the zero provision was not used on the blank wall side of the house (it
could not be used there because there was an opening) that it could be used on the opposite
property line as it was referred to in the first paragraph of Section IV.E. That interpretation
ignores the fact that the side of the house that is opposite the blank wall always contains multiple
windows and often the front door and, therefore, would not be eligible for a zero setback.
Conclusion and Other Affected Lots
In the beginning of this letter I said that this all began because my neighbor wants to add a
bedroom and bathroom to his house. The Sea View Architectural Review Committee, "ARC"
approved his plans after meeting with the planning department and being told that a zero side
yard setback was allowed as long as the structures were 10' apart. Subsequently, we appealed
that decision to the HOA board of directors and they overturned the approval because as was
stated in the IIOA attorney's letter to McConaughy: "the ARC was not aware of PC No. 18."
Further, the Board determined that in view of the 10' foot separation of structures provision in
PC No. 18 that in any event a 5 foot side yard setback should be the compromise for the common
property line between our two houses.
McConaughy has recently resubmitted plans to the ARC with the 5 foot setback. We are an
original owner of our home and have believed for the 30 plus years we have lived here that the
open space between our homes was to be permanent and that our view of the valley could not be
blocked by landscaping or structures. The view issue we will leave for the judgment of the ARC
and HOA Board but the issue of whether the APP controls the footprint of the original houses
and that a change to that footprint is a change to PC No. 18 is really the subject and essence of
this letter. I have included in this letter copies of the final Tract maps 9047, 9260 and 9261 (see
Exhibits 17, 18 and 19). All the documents I have presented in this letter conclusively show that
there are approved plot plans and that Modification 1055 conditions that the development must
be in substantial compliance with those approved plot plans. Therefore, it should be concluded
that for a Sea View homeowner to add new construction to his hone outside the original
footprint, approval from the Sea View ARC must be granted and then an application and
approval to modify PC No. 18 must be secured from the City. This would be a most reasonable
conclusion given the overwhelming evidence and analysis that we have provided in letter. hn
cases where there is no opposition from neighboring lots, the City approvals could be granted
administratively. However, in the event of opposition, the lnonncowner proposing the
modification of PC No. 18 would have the opportumity to request a planning commission
hearing. If there is a dispute, then a public hearing affords the parties the opportunity to present
their argument to the full planning comnission, an unbiased body accustomed to making such
decisions. This creates a professional and experienced forum at little cost to all concerned.
There are 20 other property owners in Sea View who are affected by this common property line
situation. I have attached a list of their names and addresses (see Exhibit 20). I have visually
inspected each lot and each of their homes seems to be in its original side yard building footprint.
This would then be the first time in Sea View that this situation has come up. I have contacted
each affected property owner and most of them want to be informed and included in discussions
because this outcome will set a precedent for future development of their lots and their
neighbor's lot.
We thank you for your courtesy and interest in conducting a thorough review of this issue. Also,
we want to acknowledge the time and courtesy that Jaime, Patrick and Jinn have shown us
throughout this process.
Sincerely,
'm''�
/am2 White Patricia Wh' e
Cc: Dana Smith, Assistant City Manager (without Exhibits)
Councilman Keith Curry (without Exhibits)
Attachment No. CC 2
March 17, 2011
Planning Commission Staff Report
CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
March 17, 2011
Agenda Item 3
SUBJECT: Minimum Side Setback Determination - (PA2011 -013)
Broadmoor Pacific View Planned Community
PLANNER: Jaime Murillo, Associate Planner
(949) 644 -3209, Imurillo(cDnewportbeachca.gov
SUMMARY
Jamie and Patricia White, homeowners residing within the Broadmoor Pacific View
community, have raised a concern with regard to staff's implementation of the side
setback regulations of the Broadmoor Pacific View Planned Community text (PC text).
Staff is seeking a determination from the Planning Commission regarding the
appropriate application of side setbacks within the Broadmoor Pacific View Planned
Community District.
This report outlines the setback regulations of the PC text, summarizes the Whites'
concern and interpretation, provides an analysis of their interpretation, and provides a
recommendation to resolve the ambiguity in the regulations.
RECOMMENDATION
Make a determination that the Broadmoor Pacific View Planned Community text is silent
on the application of side setbacks in non -zero lot line configurations, and therefore, to
provide equity and certainty with regard to development limits, a minimum side setback
of 5 feet should be provided.
t.rrczn�L�rr•T.
Communitv Settin
The Broadmoor Pacific View community is located on the southeasterly side of San
Miguel Road, adjacent to the Big Canyon Reservoir, and consists of 167 detached,
single -unit dwellings. The development is a gated community that was developed in the
late 1970's and was designed with terraced lots to provide a maximum number of view
lots.
Side Yard Setback Determination
March 17, 2011
Page 2
Side Yard Setback Determination
March 17, 2011
Page 3
Lot
'R 3i
Broadmoor Pacific View Planned Community Text
On January 12, 1976, the City Council adopted the Broadmoor Pacific View Planned
Community District regulations (PC text) and approved Tentative Tract Map. No. 9047
allowing for the subdivision of 50 acres of land into 167 single -unit residential lots and
park and open space. The PC sets forth the development regulations for the residential
Side Yard Setback Determination
March 17, 2011
Page 4
and recreational uses within the community. A copy of the Planned Community text is
attached as Attachment No. PC1.
The PC text development regulations are unique in the following two aspects pertaining
to setbacks:
1. Front and Rear Yards. Instead of establishing traditional front and rear yard
setbacks, the PC text establishes "street setbacks" and "view setbacks ".
a. For street setbacks, the PC text establishes a default 5 -foot minimum
setback from the curb line of local access streets and a 10 -foot minimum
setback along the collector street; however, the PC text also refers to a
setback map /plan that establishes specific street setbacks for each of the
lots. Generally, the street setbacks are staggered and are 5 feet, 10 feet,
18 feet, or 20 feet for the main structure. The PC text also includes a
provision for garages to encroach to within 3 feet of the back of sidewalk
or be setback a minimum of 20 feet.
b. For view (rear) setbacks, the PC text requires structures to be setback a
minimum of 3 feet from the top of slope. For non -view lots, the setback is
considered a traditional rear setback and a minimum 10 -foot setback is
required, which is measured from the toe of slopes. As in the case of
street setbacks, the PC text also refers to a setback map /plan that
establishes the specific view setbacks for each of the lots.
2. Side Setbacks. The PC text permits a zero -side setback on one side of a
property, provided there are no openings in that building wall and that a minimum
of 10 feet is provided between houses. In researching the subdivision files, it is
evident that the original intent was to design the community with zero -side
setbacks on one side, allowing offsetting of the houses on each individual lot in
order to provide a larger, more usable side yard; however, when the community
was actually constructed, zero -side setbacks were not implemented. Staff
believes the explanation from deviating from the zero -side setback configuration
may relate to Building Code concerns pertaining to openings and egress
requirements. In most cases, the developer designed the homes in a manner that
provides a minimum 4 -foot setback on one side of the property line and a
minimum 6 -foot setback on the other side. Two lots side -by -side would comply
with minimum required separation of 10 feet between houses. In order to
implement the zero -side setback concept, the use of easements was established
giving use of the 4 -foot side area to the adjacent property for landscaping. For
the purposes of this discussion, this configuration is referred to as the "assumed
zero -lot line configuration ". In some cases, lots located near the end of cul -de-
sacs were not provided with landscaping easements because larger side
setbacks were provided.
Side Yard Setback Determination
March 17, 2011
Page 5
Purpose of this Discussion - 2003 & 2005 Yacht Mischief
Jamie and Patricia White, homeowners residing at 2003 Yacht Mischief, raised a
concern with regard to the side setback regulation of the PC text. The White's property
is located near the end of a cul -de -sac and because of the large side setback between
their property and their neighbor to the east (2005 Yacht Mischief), they do not benefit
from the CC &R's side landscaping easement provision. Their neighbor is planning on
an addition to the house that would be setback 5 feet from their shared property line and
would provide for a separation between houses that exceeds the minimum 10 -foot
separation requirement. The Whites' primary concern is that the addition proposed will
block their northern view of the hills.
The Whites contend that the permitted site plan used for the initial construction of the
homes in the community actually controls the allowable building envelopes for each of
the lots within the community, including side setbacks. The Whites assert that the "final
setback map" (Section IV.D. Setbacks from Streets) and the "approved site plans"
(Section IV.E. Setbacks from Property Lines: Rear or Front) as referred to by the PC
text are the permitted site plans used for construction and not the "Setback Map" staff
historically and currently utilizes. Under the Whites interpretation, no additions beyond
the original building envelope would be allowed. The White's have submitted a letter
with exhibits (Attachment No. PC2) in support of their interpretation.
DISCUSSION
Staff believes there are two questions that need to be resolved:
1) What site plan or map is the correct exhibit to reference when determining the
street and view setbacks for homes in the Broadmoor Pacific View Planned
Community?
2) How should side setbacks be regulated given that zero -side setbacks do not
exist within the community?
Question No. 1- Street and View Setbacks
When the City was processing the PC text and tentative tract map for the community in
1975, a "Setback Map" (Attachment No. PC3) was prepared to establish the street and
view setbacks. The Setback Map was included as an attachment to the 1975 Planning
Commission staff report. The Setback Map has historically been used by staff to
establish the minimum street and view setbacks (Front and Rear respectively) for
residential development in the community. The setbacks listed on the map have also
been added to the City's former Districting Maps (Attachment No. PC4) used to
establish front setbacks throughout the City, affirming that the setbacks illustrated on
the "Setback Map" are the correct setbacks to be used. Although staff has historically
used the "Setback Map" as the official document for the purposes of establishing the
Side Yard Setback Determination
March 17, 2011
Page 6
minimum street and view setbacks, staff's review of the issue has identified the
following ambiguities:
The PC text utilizes inconsistent terms when referring to the "Setback Map ".
Within Section IV.D. (Setbacks from Streets) the PC text refers to a "final setback
map" and within Section IV.E. (Setbacks from Property Lines: Rear or Front), the
PC refers to the "approved site plans ".
The "Setback Map" is based on the tentative tract map for the community and
does not reflect the final lot configurations as recorded on the final tract maps.
The Whites claim that the "Setback Map" is not the plan referred to in the PC
Text because it does not accurately reflect the final lot configurations; however,
staff's comparison of the tentative tract map and final tract maps revealed that all
of the lots are substantially similar to the their final configurations with the
exception of only one lot that was moved from the end of one cul -de -sac to
another. Also, the former Districting Map did not list a street setback for this one
relocated lot.
Within Section IV.D. (Setbacks from Streets), the PC text states that "Prior to the
issuance of building permits for each phase of a project, a final setback map shall
be submitted to the Community Development Director indicating the setbacks to
all building areas proposed in the development ". Staff performed an extensive
search of all historic documents and entitlements pertaining to the approval of
this community in an attempt to locate a "final setback map ", and was unable to
locate such a document for the entire community. An exhibit titled "Final Setback
Map for Tract 9260 (Model Area)" was located within the file and illustrates
garage and house setbacks from the street property line and view side setbacks
along the rear. The setbacks illustrated are more restrictive than those shown on
the Setback Map and appear to match the actual setbacks as developed. To
reiterate, no such final setback map exists for the rest of the community.
Question No. 2- Side Setback Requirement
Another concern raised by the Whites is with regard to staff's determination on the
application of the side setback regulation. Section IV.E (Side Yard) of the PC text
regulates side setbacks as follows:
A zero side yard setback between the structure and the lot line shall be permitted
on one side provided there are no openings on the zero side yard wall and that a
total of ten (10) feet shall be provided between structures.
The PC text is silent on what the minimum side setback should be in instances where a
zero -side is not proposed. The PC text is unclear as to whether or not the minimum 10-
foot separation requirement only applies in a zero -side circumstance, or if the 10 -foot
Side Yard Setback Determination
March 17, 2011
Page 7
separation is a stand alone requirement. This question becomes even more important
when abutting lots have an assumed zero -lot line configuration on opposite sides of a
common lot line (see exhibit on Page 3). In the absence of any other language within
the PC text regarding the regulation of side setbacks, the Acting Deputy Director made
the determination that no side setback is required from a property line, provided there is
least 10 feet between houses and that there is only one zero side setback. This
determination is consistent with how staff has historically reviewed development plans
for remodels and additions in the past.
The existing development pattern of the community reveals that most of the houses
maintain minimum side setbacks of 4 feet to the side property line and a minimum of 10
feet between structures. In 17 instances (affecting 34 lots), however, a modification
permit (Modification Permit No. 1055 — Exhibit No. 14 of Attachment No. PC2) was
approved allowing a building separation of only 8 feet. The modification permit clearly
states that the development standard being modified is the 10 -foot separation
requirement of the PC text. This modification permit, approved in 1976, confirms that
the City has historically interpreted that this provision of the PC text to mean that no
side setback is required, provided a minimum of 10 feet is provided between houses.
As previously discussed, the Whites believe that the approved site plans (Exhibits 1, 2,
3 of Attachment No. PC2) used for construction of the homes is the "final setback map"
referred in to in Section IV.D. (Setbacks from Streets), and therefore, the plans control
the building envelopes for each of the lots within the community, including the side yard
setbacks as dimensioned. Staff disagrees with this interpretation for the following
reasons:
• Section IV.D (Setbacks from Streets), is intended to regulate setbacks from
streets only. The only instances in which this section should apply to a side
setback is when a side yard of a corner lot is adjacent to a street, in which case
the minimum street setbacks would be required.
• The approved site plans used for construction of the homes only illustrates
garage setbacks and side setbacks between structures. The plans do not include
any street setbacks to the actual residential buildings or dimension any of the
view setbacks from top of slope or to rear property line, therefore, they can not
be used for the purposes of establishing street or view setbacks as specifically
referenced by the PC text.
• If the approved site plans control the building envelope for all the houses in the
community, then no additions beyond the original building envelope would ever
be allowed. Historically, the Homeowner's Association and the City has allowed
additions consistent with the minimum standards of the PC text, and with regard
to minimum side yards, the City has only required a minimum of 10 feet between
houses.
Side Yard Setback Determination
March 17, 2011
Page 8
Setback Inequity
With the exception of the properties located on cul -de -sacs, most of the properties
within the community maintain a 10 -foot separation between houses, and therefore,
there is no opportunity to expand into the side yards. However, in the few instances
where properties are located on cul -de -sacs and provide large side yards exceeding the
10- minimum separation requirement, additions are possible. Since the houses are not
technically on the property line (a minimum of 4 feet is provided in most cases),
additions closer to the opposite lot line have been allowed so long the minimum 10 -foot
separation was provided to the neighboring house. Staff recognizes by not requiring a
firm minimum setback to the side property line, an inequitable "first -come, first - served"
situation is created where one property owner may build -out the side yard area
impacting how close a neighbor can build in the future. To resolve this inequity, staff is
recommending that in these instances, the Planning Commission should make an
interpretation requiring that a minimum 5 -foot side setback be provided.
To make this determination, the Planning Commission may determine that the PC text
is totally silent on the application of side setbacks in non -zero lot line configurations, and
therefore by default, the minimum side setbacks of the Zoning Code would apply. The
most appropriate zoning designation in the Zoning Code applicable to the Broadmoor
Pacific View community would be the Single -Unit Residential (R -1) District, in which
case a minimum side setback of 4 feet would be required. However, in order to achieve
a fair and equitable setback while achieving the 10 -foot minimum separation
requirement, in can be interpreted that a minimum side setback of 5 feet should be
provided. To eliminate confusion in the future, staff will prepare a memo to this effect,
which will be used to supplement the PC text. An exception will be created for those
properties that maintain an "assumed zero -lot line configuration" and that currently
provide a 4 -foot side setback, in which case they shall be allowed to maintain their
existing setback. The memo will also clarify that the "Setback Map" shall be used for the
purposes of establishing street and view setbacks.
Alternatives
If the Planning Commission disagrees with staff's recommendation on the application of
side setback requirements, staff suggests the following alternatives:
1. Determine that no side setback is required from a property line, provided there is
least 10 feet between houses. This determination is consistent with past
practices. If the Planning Commission believes this is the most appropriate
determination, staff will prepare a memo supplementing the PC text to this effect.
2. Since the minimum side setback that most properties maintain within the
community is 4 feet on one side, the Planning Commission may find that that a
minimum side setback of 4 feet is appropriate, provided that a total of 10 feet is
Side Yard Setback Determination
March 17, 2011
Page 9
provided between residential structures. This alternative would provide some
certainty with regard to development limits and would preserve the existing
development pattern of the community. If the Planning Commission believes this
is the most appropriate determination, a memo supplementing the PC text would
be prepared to this effect.
3. Determine that the permitted site plan used for the initial construction of the
homes in the community actually controls the allowable building envelopes for
each of the lots within the community, including side setbacks. This
determination would have the effect of not allowing any additions or remodels
beyond the existing building envelopes. If the Planning Commission believes this
is the most appropriate determination, a memo supplementing the PC text would
be prepared to this effect.
4. The Planning Commission shall make an alterative determination and state
reasons for such determination.
Environmental Review
This action is not subject to the California Environmental Quality Act (CEQA) pursuant
to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a
project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical
change to the environment, directly or indirectly.
Public Notice
Notice of this agenda item was published in the Daily Pilot, mailed to all property owners
located within the Broadmoor Pacific View Planned Community District, and mailed to
the Broadmoor Sea View Homeowner's Association.
Prepared by: Sub 'tted by:
\
GK e, m
aime Murillo, Associate Planner James W. Cam bell, Actin Deputy Director
ATTACHMENTS
PC 1 Broadmoor Pacific View Planned Community Text
- -- — - .. , - -1 - .- 1- „
PC 3 Setback Map
PC 4 Districting Map
FAUsers \PLN \Shared\PA's\PAs - 2011 \PA2011- 013\20110217PC rpt.docx
Attachment No. PC 1
Broadmoor Pacific View Planned
Community Text
The Broadmoor Pacific View PC (Planned
Community) District Amendment No. 18
Adopted by the City Council on July 28, 1975
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LEGEND
Q LOW MEDIUM DENSITY RESIDENTIAL
PARK AND RECREATION AREA
OPEN SPACE AREA
RESERVOIR
BROADMOOR PACIFIC VIEW
LAND USE PLAN
INTRODUCTION
SECTION I
SECTION II
SECTION III
SECTION IV
Subsection A
Subsection B
Subsection C
Subsection D
Subsection E
Subsection F
Subsection G
Subsection H
Subsection I
Subsection J
SECTION V
Subsection A
Subsection B
Subsection C
Subsection D
Subsection E
TABLE OF CONTENTS
Page
STATISTICAL ANALYSIS 1
GENERAL I
DEFINITIONS 2
LOW DENSITY RESIDENTIAL 2
Permitted Uses 2
Minimum Lot Size 3
Maximum Building Height 3
Setbacks from Streets 3
Setbacks from Property Lines 3
Fences, Hedges and Walls 4
Trellis 4
Parking 4
Maximum Site Area Coverage 4
Architectural Features 4
COMMUNITY RECREATIONAL FACILITIES 5
Permitted Uses 5
Maximum Building Height 5
Setbacks 5
Landscaping 6
Parking 6
INTRODUCTION
The Broadmoor Pacific View PC (Planned Community) District within the City of Newport Beach
has been prepared in accordance with Amendment No. 18 to the City of Newport Beach General
Plan, adopted by the City Council on July 28, 1975, to provide low density residential development
within a 50 -acre parcel being subdivided from the Pacific View Memorial Park.
The purpose of this PC (Planned Community) District is to provide a method whereby this property
may be classified and used for residential development while also allowing flexibility of land use
and development standards.
Except as expressly stated within the text of this PC (Planned Community) ordinance, all applicable
provisions and requirements of the City of Newport Beach Zoning Law shall apply.
SECTION I. STATISTICAL ANALYSIS
BROADMOOR PACIFIC VIEW
Type
Area Acres D.U. /acre
Low Density
1 45.9
Res.
Dwelline Unit
Park
2 2.5
Natural Open
3 1.6
Space
96
TOTAL 50.00
SECTION II. GENERAL
D.U. . Per/D.U.
175 3.6
175 3.6
Population
630
630
An estimated total population of 630 persons is anticipated for the planning area. This figure has
been used in estimating the need for community facilities.
Schools
The community of Pacific View falls within the Newport-Mesa Unified School District. In an effort
to anticipate the maximum number of school students to be generated by the total community, the
highest student per unit factor was applied.
The following figures represent a projected total student enrollment based upon anticipated
numbers of dwelling units to be constructed.
AREA 1
NEWPORT -MESA UNIFIED SCHOOL DISTRICT
Recreation
Private park and open space areas totaling approximately 2.5 acres are proposed to serve the
recreational needs of Broadmoor Pacific View. In addition, a natural open space area has been
provided in the north portion of the project area.
Students/
Dwelling
Type
Dwelline Unit
Units
Students
Elementary (k -5)
.55
175
96
Junior High (6 -8)
.30
175
53
Senior High (9 -12)
35
175
61
TOTAL
210
Recreation
Private park and open space areas totaling approximately 2.5 acres are proposed to serve the
recreational needs of Broadmoor Pacific View. In addition, a natural open space area has been
provided in the north portion of the project area.
All private open and recreational areas within the development boundaries will be maintained by a
private community association established by and consisting of homeowners within the subject
development.
Uniform Building Code
No portion of this text withstanding, all construction within this Planned Community shall comply
with the regulations of the Uniform Building Code as adopted by the City of Newport Beach.
SECTION III. DEFINITIONS
The following definitions refer to the permitted uses described in the Development Standards
contained in this ordinance:
1. Conventional Subdivision on a Planned Community
A conventional subdivision of detached dwellings and their accessory structures on
individual lots where the lot size may be less than the required average for the district,
but where the density for the entire subdivision meets the required standards and where
open space areas are provided for the enhancement and utilization of the overall
development.
SECTION IV. LOW DENSITY RESIDENTIAL
A. Permitted Uses
1. Single family detached dwellings.
2. Conventional subdivisions and conventional subdivisions on a Planned Community
concept.
3. Parks, playgrounds, recreation or open space and green areas, riding, hiking, and bicycle
trails and related facilities or a non - commercial nature.
4. Accessory buildings, structures, and uses where related and incidental to a permitted use.
5. One (1) on -site unlighted sign, not exceeding two (2) square feet in area, to advertise the
lease, rental or sale of the property upon which it is located. Such sign may show only
the name, address and the phone number of the owner, but shall not show the name,
address, telephone number of any other description or identification of any person, firm
or corporation other than the owner of said property.
6. Two (2) permanent community identification signs. Such signs may be lighted and may
show only the name of the community.
7. One street identification sign at the entrance of each street. Such signs may show the
street name, house numbers and owner's name.
8. Commmmity recreational facilities and structures, subject to the development standards
contained in Section V, Community Facilities, of this ordinance.
B. Area Per Dwelline
A minimum lot size of 4,500 square feet shall be provided. However, an average area of
8,000 square feet shall be provided for each dwelling unit except as approved by a use
permit for cluster development. For the purpose of this section, average area per dwelling
shall be defined as the average of all developed areas (to include parks, recreational and
permanent open space) exclusive of all areas reserved for vehicular rights -of -way not
including private driveways divided by the total number of dwelling units.
C. Maximum Buildin Hg eieht
All buildings shall comply with the restrictions established by the 24/28 foot height
limitation district.
D. Setbacks from Streets
The following minimum setbacks shall apply to all dwelling structures (not to include
garden walls or fences) adjacent to streets. Said setbacks are to be measured from the curb
line.
Setback from
Street Designation Curb Line
Local Access Street 5'
Local Non - Access Collector Street 10,
Garages shall conform to the building setback requirements above except that front facing
garage setbacks shall be as follows:
1) Where a sidewalk exists, the setback shall be 3 feet or a minimum of 20 feet,
measured from the back of walk.
2) Where no sidewalk exists, the setback shall be 5 feet or a minimum of 20 feet,
measured from back of curb.
Prior to the issuance of building permits for each phase of the project, a final setback map
shall be submitted to the Community Development Director indicating the setbacks to all
building areas proposed in the development. The Community Development Director shall
review said map and all future modifications of the setbacks shown on this map in view of
setbacks listed in this ordinance and/or sound planning principles and shall either approve,
modify, disapprove the setbacks shown, or refer the matter to the Planning Commission for
a determination. In the case of modification or disapproval, the applicant may appeal to the
Planning Commission for further consideration.
E. Setbacks from Property Lines
All setbacks listed under this subsection refer to all property lines not affected by
Subsection D above. Dwellings may orient towards the opposite property line in order to
take advantage of view conditions.
Rear or Front Yard
The building setback on the view side shall be a minimum of three (3) feet from the top of
the slope. The rear yard setback shall be a minimum of ten (10) feet from the toe of the
slope. The street and view side setbacks shall be established on the approved site plan.
Side Yard
A zero side yard setback between the structure and the lot line shall be permitted on one
side provided there are no openings on the zero side yard wall and that a total of ten (10)
feet shall be provided between structures.
F. Fences, Hedges, and Walls
Fences shall be limited to a maximum height of eight (8) feet and are allowed within all
setback areas, except in the street side and view side setback where a maximum height of
three (3) feet shall be maintained. The maximum height of fences within the view side
setback may be increased to six (6) feet provided they are or wrought iron, clear glass or
other open type construction.
G. Trellis
Open trellis and beam construction shall be permitted to extend from the dwelling to within
three (3) feet of the property line in the side yard, except that such trellis structures may
extend to one (1) foot from the side property line provided they are fire resistant
construction in accordance with the requirements of the City of Newport Beach. The
maximum height of the trellis shall be eight (8) feet. These areas shall not to he considered
in calculating lot area coverage; however, trellis areas shall not exceed 20 percent of the
remaining open space of a developed lot. Trellis and beam construction shall be so
designed as to provide a minimum of 50 percent of the total trellis area as open space for the
penetration of light and area to areas which it covers.
H. Parkins
Parking for residential uses shall be in the form of not less than two (2) garage spaces and
two (2) uncovered guest spaces per dwelling unit. Guest parking may be located on street or
off street. Cluster development guest parking shall be as required by a use permit.
Maximum Site Area Coveraee
For aggregate building coverage, the maximum shall be 50 percent of any lot. For the
purpose of this ordinance, coverage shall include all areas under roof, but shall not include
trellis areas.
J. Architectural Features
1. Architectural features, including fireplaces, balconies, bay windows, cornices and
eaves, may extend to two and one -half (2 -1/2) feet into any front, or rear yard setback.
These architectural features may extend to one (1) foot from the side yard property line
except that such architectural features may extend to the side property line provided they are
fire protected in accordance with the requirements of the City of Newport Beach, and that a
minimum of four (4) feet separation is maintained from similar projections or structures on
an adjacent lot.
2. Uncovered balconies, decks, patios, walls or railings to a height of four (4) feet
above the pad elevation may project a maximum of eleven (11) feet into the view side
setback of a maximum of eight (8) feet beyond the top of slope adjacent to the unit, only on
approximately 20% of the lots as indicated on the Setback Map. Each balcony, deck, patio,
wall or railing shall be selected from one of three standard designs submitted by the
developer and shall in each case be subject to the approval of the Modification Committee.
SECTION V. COMMUNITY RECREATIONAL FACILITIES
The following regulations apply to the development of private community recreational facilities.
Prior to the issuance of a building permit, plot plans, elevations and any other such documents
deemed necessary by the Community Development Developer shall he subject to the review and
approval of the Community Development Director.
A. Permitted Uses
The following uses, provided they are in conjunction with private community
recreational facilities and not commercial in nature, shall be allowed.
1. Parks, play grounds, tennis courts, pool, recreation or open green areas, riding, hiking and
bicycle trails and related facilities.
2. Accessory buildings, structures and uses related and incidental to a permitted use.
3. Signs identifying or giving directions to permitted uses and facilities. No sign shall
exceed thirty -five (35) square feet in area.
B. Maximum Building Height
All buildings shall comply with the height restrictions established by the City for the
24/28 foot height limitation district.
C. Setbacks
Twenty -five (25) feet from all residential property lines, and ten (10) feet from any
streetside property lines. No structure shall be located closer to a residential structure
on an adjacent site than a distance equal to twice the height of the non - residential
building. The height of the non - residential structure above the grade elevation of the
residential site shall apply. Structures which abut a park, greenbelt or other permanent
open space may abut the common property lines.
D. Landscaping
A minimum of ten (10) feet (depth) of continuous landscaping shall be maintained adjacent
to all street or highway rights -of -way in the community recreational facilities area, except
for perpendicular access driveways and pedestrian walkways. Landscaping shall not exceed
thirty (30) inches in height within ten (10) feet of an intersection or access drive.
E. Parkine
Parking for twelve (12) vehicles shall be provided within the Community Recreational
Facilities area. Location of said parking is subject to review of the Community
Development Director. The Community Development Director shall review said facilities
and require the amount of off -street parking deemed appropriate, relative to the intended use
and activities of such facilities.
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Attachment No. CC 3
March 17, 2011
Planning Commission Minutes
NEWPORT BEACH PLANNING COMMISSION MINUTES 03/17/2011
Page 2 of 6
NEW BUSINESS
SUBJECT: Minimum Side Setback Determination — (PA2011 -013)
ITEM NO. 3
Broadmoor Pacific View Planned Community
PA2011 -013
Staff is seeking a determination for the Planning Commission regarding the Acting
Approved
Planning Director's decision on the application of side setbacks within the Broadmoor
Pacific View Planned Community District.
Acting Planning Director, Jim Campbell, provided a generalized overview of the
project and noted that there is some ambiguity in the Planned Community Text as it
relates to the side setback that is at issue. A final setback map has been found for a
portion of the lots within the community, which should be referenced when
determining street and view setbacks as opposed to the original map that had been
used as the standard for close to thirty years.
Jaime Murillo, Associate Planner, provided a briefing of the project and stated that the
Broadmoor Planned Community Text (PC Text), which was approved by the City in the
late 70's, establishes development standards, including height limitations, parking
requirements, lot coverage, and building setbacks. Instead of establishing traditional
front and rear setbacks, the PC Text establishes street and view setbacks as follows:
• View Setbacks- Typically, three feet from the top of a slope.
• Street Setbacks- Typically, five feet minimum to the house, except front -
facing garages may be located as close as three feet.
• The PC Text also references a setback map for lot specific view and street
setbacks.
In addition, Mr. Murillo highlighted the following:
• Question as to what site plan or map is the correct exhibit to reference when
determining the street and view setbacks for the homes in the community.
• Question as to how side yard setbacks should be regulated given that zero -
side setbacks do not actually exist within the community.
• Clarified that for lots located within Final Tract 9047 and Final Tract 9261,
the Setback Map for Tentative Tract Map 9047 is the correct reference. For
lots located within Final Tract 9260, the Final Setback for Tract 9260 is the
correct reference.
• The only side setback regulation is as follows:
'A zero side yard setback between the structure and the lot line shall be
permitted on one side provided there are no openings on the zero side yard
wall and that a total of ten (10) feet shall be provided between structures."
• The actual development pattern in the community is that most houses provide
a four -foot minimum side setback on one side and a six -foot minimum side
setback on the other side, which results in the required 10 -foot separation
between structures. In addition, the Homeowner's Association Covenants,
Conditions and Restrictions (CC &Rs) for the community grants the four -foot
setback area to the adjacent property owner for landscaping purposes,
creating the appearance of a zero -lot line configuration.
• In instances where properties are located on cul -de -sacs and provide large
side yards exceeding the 10 -foot separation requirement, additions are
possible, but the side setback regulation is ambiguous. Past practice has
been to allow additions to the side property line provided a minimum 10 feet
is provided to the adjacent house. It was recognized that the past practice
Page 2 of 6
NEWPORT BEACH PLANNING COMMISSION MINUTES 03/17/2011
was inequitable and created a "first -come, first - serve" type scenario that
unfairly impacted how close the adjacent property could build in the future.
• To resolve this inequity and provide certainty with regard to side setbacks,
staff recommended that the Planning Commission make a determination that
a minimum five -foot side setback shall be provided.
The Planning Commission provided the following comments and observations:
• An amendment to the Planned Community Text should be forthcoming to
clarify the side set- backs.
• The City does not enforce a Homeowner's Association Covenants,
Conditions and Restrictions (CC &Rs).
Applicants James and Patricia White provided a brief presentation of their case to the
Planning Commission.
• The only document that exists with an "Approved" stamp is the Plot Plan with
the plan check number.
• Purchased the lot because of the ample space and felt that those home-
owner rights needed to be preserved.
• Different terminology used interchangeably in the Planned Community Text,
such as site plan and plot plan.
• Restricting development to the Approved Plot Plan gives each homeowner
the greatest protection of what they purchased; the neighbor never asked
them what would work.
• Belief that staffs recommendation of five feet benefits some at the
disadvantage of others.
Members of the Seaview Leadership:
Bill Moore
Ray Piantanida
Mary Donovan
Jim Magstadt
The comments were as follows:
• The Whites' conclusion is not supported in that it would have the effect of not
allowing expansions outside the original building envelopes.
• The Homeowner's Association Covenants, Conditions and Restrictions
(CC &Rs) do not allow the approval of a remodel that would result in
significant and material view obstruction.
• The Architectural Committee sought to find a compromise between the
homeowners as to the views and the home improvements.
• Architectural Committee after visiting both homes that were at issue, voted 5-
0 to approve the addition and determined that there was no significant view
restriction.
• Words that do not exist and are not defined in the Homeowner's Association
Covenants, Conditions and Restrictions (CC &Rs) should not be used, such
as "building- envelope," and "foot- print."
The Planning Commission discussed the need for an amendment to the Planned
Community Text; however it will come at a later date as the immediate need is to first
interpret the side setback regulation.
Commissioner Toerge stated that it is the Architectural Committee is responsible for
handling the view of homeowner's and supports staff's recommendation.
Page 3 of 6
NEWPORT BEACH PLANNING COMMISSION MINUTES 03/17/2011
Commissioner Hawkins was concerned with the fact that the applicant for the home -
improvement modification was not present for the hearing. In addition, the Planned
Community Text does have language that speaks about view preservation and
believes that there are more references.
Commissioner Eaton noted that the City has been consistent on leaving the issues up
to the Homeowner's Association as it relates to private view protections and
aesthetics.
Motion made by Commissioner Toerge and seconded by Commissioner Unsworth, to
support staff's recommendation.
Motion carried with the following vote:
Ayes:
Eaton, Unsworth, Hawkins, and Toerge
Noes:
Hawkins
Excused:
Ameri and Hillgren
SUBJECT: Zoning Code Implementation — Discussion Item
• Review Authority for Alcohol Sales
The P ning Commission shared the following observations:
/REVIE
staurants with alcohol sales that close at 11:00 p.m., previously came
be a the Planning Commission and now are heard before the Zoning
Admi ' trator; however they should be heard before the Planning
Approved
Commis ' n due to the following concerns:
• Loading the Peninsula with too many restaurants ere
alcohol is provided, creating dangerous situation or the
rrounding neighborhood.
• Th ublic is in need of a platform to share ny concerns.
The ing Administrator Hearings are t cally scheduled
at 3:30 the afternoon, and is no onvenient for the
residents.
• There is no in- th discussion he Zoning Administrator
Hearings.
• A recommendation to the City Counc th an amendment to the Zoning
Code be made so that the Planning mmission becomes the review
authority for alcohol sales.
Comments were given by the following resi nts from the s rounding neighborhood:
George Schroeder
Dan Purcell
• There is an over con ntration of alcohol licenses.
• People in Zonin Administrator do not live in Newport Bea like the
Planning Com ssioners.
• Photos we provided to the Planning Commission which illust ted
intoxicat people sleeping in public areas.
• Zoni Administrator meeting calendar is not published on the City's web -
sit .
Motion ade by Commissioner Hawkins and seconded by Commissioner Unsworth,
that a Planning Commission recommend to the City Council that a Code Amendment
b initiated, changing the review authority for restaurants with alcohol sales that close
y 11:00 p.m. from a Minor Use Permit to a Conditional Use Permit.
Page 4 of 6
Attachment No. CC 4
Typical Zero -Lot Line Development
f
Typical Zero -Lot Line Development
Attachment No. CC 5
Actual Development Pattern
Actual Development Pattern
-max f
Attachment No. CC 6
Assumed Zero -Lot Line Configuration
Assumed Zero -Lot Line Configuration
r�
Assumed Zero -Lot Line Configuration
Attachment No. CC 7
Configuration in Question
Side Setbacks in Question
What is the minimum side setback between House 3 & 4?
Attachment No. CC 8
Setback Inequity Situation
Setback Inequity — House 4 Restricted
Attachment No. CC 9
5 -foot Side Setback Recommendation
i
Staff Recommendation- 5 -foot minimum
E
e
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15' 151
10' IF
1 I I
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Attachment No. CC 10
Setback Exception
5 -foot Side Setback Exception- House 2
V-
NOTICE OF CITY COUNCIL MEETING
NOTICE IS HEREBY GIVEN that on Tuesday, May 10, 2011, at 7:00 p.m., a City Council meeting will be conducted in
the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach.
The City Council of the City of Newport Beach will consider the following:
Appeal of Minimum Side Setback Requirement — An appeal of the Planning Commission's determination on the
application of side yard setbacks within the Broadmoor Pack View Planned Community District
(PC -18).
This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment,
directly or indirectly.
All interested parties may appear and present testimony in regard to this application. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice)
or in written correspondence delivered to the City, at, or prior to, the public hearing. The agenda, staff report, and
documents may be reviewed at the City Clerk's Office
(Building B), 3300 Newport Boulevard, Newport Beach, California, 92663, or at the City of Newport Beach
website at www.newportbeachca.gov on the Thursday prior to the hearing.
For questions regarding details of the project please contact Jaime Murillo, Associate Planner, at
(949) 644 -3209 or imurilloCcOnewportbeachca.gov.
Project File No.: PA2011 -013 (�
Leilani I. Brown, City Clerk
City of Newport Beach
RECEIVED
City Clerk's Qq*jq M Ir 07
AFFIDAVIT OF POSTING
G =rICE
THc on, CLERK
CITY C" , "; -FGRT BEACH
On 2011, I posted the Notice of Public Hearing regarding:
Broadmoor Pacific View Planned Community District
(PA2011 -013)
Date of City Council Public Hearing: May 10, 2011
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458 56154
458561 66
458561 68
FRANK FREITAS
VIRGINIA A FORBES
MUTSTJYA MATSUMOTO
2027 YACHT DEFENDER
2023 YACHT DEFENDER
MATSUMOTO MUTSUYA FA
NEWPORT BFACH, CA 92660
NEWPORT BEACH, CA 92660
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NEWPORT BEACH, CA 92660
458 57112
458 571 13
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SUSAN MI FRANTA
CHRISTEL M L SHAH
MIKAEL KOLT:AI
2017 YACHT DEFENDER
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2011 YACHT DEFENDER
NEWPORT BEACH, CA 92660
NEWPORT BEACH, CA 92660
NEWPORT BEACH, CA 92660
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ROGER L HUGHES
JAMES M RICKETTS
SUZANNE M MATH R'LY
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PO BOX 9638
CORONA DEL MAR, CA ,92625
NEWPORT BEACH, CA 92660
NEWPORT BEACH, CA 92658
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FRANK STOLZ
JOHN STEPHEN DUN14AM
JAMES BENEVENTI
2003 YACHT DEFENDER
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BENEVENTI CARMEN
NEWPORT BEACH, CA 92660
NEWPORT BEACH, CA 92660
2033 YACHT DEFENDER
NEWPORT BEACH, CA 92660
458 561 52
458 58101
458 58102
CHARLES ROBERT SIMPSON
HUGH L LOGAN
HARRY D WYPICH
SIMPSON ELIZABETH A
1921 YACHT ENCHANTRESS
1919 YACHT ENCHANTRESS
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NFIVPORT BEACH. C1 Q2660
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NEWPORT BEACH, CA 92660
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NEW'POR'T' BEACH, CA 92660
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NEWPORT BEACH, CA 92660
458 561 13
LAVENDER HOLDEIGS LLC
310=1 FERNW'OOD CT
FULLERTON,CA 92835
458 571 50
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MOORE PATRICIA A
1910 Y, TCH MARIA DR
NEWPORT BEAC _ CA 92660
458 57153
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NEWPORT:BEACH, CA 92660
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DEWEY M SAVAGE
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NEWPORT BEACH, CA 93660
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\EWPORT COAST, CA 92657
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TERRY C LOEFFLER
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NEWPORT BEACH, CA
458 561 42
GREGORY S MCCONALGHY
MC CONAUGHY JANA
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NEWPORT BEACH, CA 92660
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MICHAEL G GOLDSTEEN
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92660 NTEAS'PORT BEACH, CA 9.2660
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NEWPORT BEACH, CA 92660
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1907 YACHT PURITAN
92660 NE\XPORT BEACH. CA 92660
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92660 NEWPORT BEACFL CA 92660
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MAGSTA'DT L G RESIDEN
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NEWPORT BEACH, CA 92660
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NEWPOR'C BEACH, CA 92660
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NEWPORT BEACH. CA 92660
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NOTICE OF CITY COUNCIL MEETING
NOTICE IS HEREBY GIVEN that on Tuesday, May 10, 2011, at 7:00 p.m., a City Council meeting will be conducted in
the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach.
The City Council of the City of Newport Beach will consider the following:
Appeal of Minimum Side Setback Requirement — An appeal of the Planning Commission's determination on the
application of side yard setbacks within the Broadmoor Pacific View Planned Community District
(PC -18).
This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment,
directly or indirectly.
All interested parties may appear and present testimony in regard to this application. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice)
or in written correspondence delivered to the City, at, or prior to, the public hearing. The agenda, staff report, and
documents may be reviewed at the City Clerk's Office
(Building B), 3300 Newport Boulevard, Newport Beach, California, 92663, or at the City of Newport Beach
website at www.newoortbeachca.aov on the Thursday prior to the hearing.
For questions regarding details of the project please contact Jaime Murillo, Associate Planner, at
(949)644-320g or Imurillo(a)newnortbeachca.aov.
Project File No.: PA2011 -013
Leilani I. Brown, City Clerk
City of Newport Beach
NOTICE OF CITY COUNCIL MEETING
NOTICE IS HEREBY GIVEN that on Tuesday, May 10, 2011, at 7:00 p.m., a City Council meeting will be conducted in
the City Council Chambers (Building A) at 3300 Newport Boulevard, Newport Beach.
The City Council of the City of Newport Beach will consider the following:
Appeal of Minimum Side Setback Requirement — An appeal of the Planning Commission's determination on the
application of side yard setbacks within the Broadmoor Pacific View Planned Community District
(PC -18).
This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment,
directly or indirectly.
All interested parties may appear and present testimony in regard to this application. If you challenge this project in court,
you may be limited to raising only those issues you or someone else raised at the public hearing (described in this notice)
or in written correspondence delivered to the City, at, or prior to, the public hearing. The agenda, staff report, and
documents may be reviewed at the City Clerk's Office
(Building B), 3300 Newport Boulevard, Newport Beach, California, 92663, or at the City of Newport Beach
website at www.newportbeachca.00v on the Thursday prior to the hearing.
For questions regarding details of the project please contact Jaime Murillo, Associate Planner, at
(949) 644 -3209 or imurillo cDnewoortbeachca.cov.
Project File No.: PA2011 -013
V,— c I I
Leilani I. Brown, City Clerk
City of Newport Beach
CITY OF NEWPORT BEACH
Application No. Minimum Side Setback Determination PA 2011 - 0137011 OR 14 AM 91 38
Name of Appellant
or person filing:_
Address: Broadmoor Pacific View Planned Community
Date of Planning Commission decision: March 17, 2011
OFFICE OF
Pfidn&T, Y CLERK
CITY OP .,
Regarding application of: Interpretation of side yard setbacks in Seaview Planned Community for
(Description of application filed with Planning Commission)
Commission upheld staff's recommendation to establish 5 foot setbacks on applicable 22 lots with common
property lines. (See staff report)
Reasons for Appeal : Significant issue for council to review
FOR OFFICE USE ONLY
Date 3/29/2011
VVI
Date Appeal filed and Administrative Fee received: 4 A I VeD —,20 // .
Hearing Date. An appeal shall be scheduled for a hearing before the City Council within sixty (60) days of the
filing of the appeal unless both applicant and appellant or reviewing body consent to a later date (NBMC Sec.
20.95.060)
cc: Appellant
Planning (furnish one set of mailing labels for mailing)
File
APPEALS: Municipal Code Sec. 20.95.050(B)
Appeal Fee: $4,010.00 pursuant to Resolution No. 2009 -86 adopted on 12 -8 -09.
(Deposit funds with Cashier in Account #2700 -5000)