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Home My WebLink About13 - PA2003-180 - Tabak Residence - 3431 Ocean BoulevardCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item: 13 November 12, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: James Campbell, Senior Planner jcampbell@city.newport-beach.ca.us (949) 644 -3210 SUBJECT: Tabak Residence, 3431 Ocean Boulevard Variance No. 2003 -005 and Amendment to Modification Permit No. 2002 -049 (PA2003 -180) APPLICANT NAME: Tom Stewart/Fleetwood Joiner Associates, applicant for Lawrence and Lana Tabak, property owners Decision Options The City Council can take several courses of action after conducting a public hearing. 1. Deny the Variance and deny the Modification Permit (Council's previous action) by adopting the attached resolution (Attachment A). 2. Deny the Variance and approve the Modification Permit (Planning Commission's previous action) by adopting the attached resolution (Attachment B). Alternate courses of action that include approval of the Variance have not been identified as facts to support all of the required findings are not evident at this time. Should additional information be uncovered at the hearing that would justify approval of the Variance, staff would request a two week continuance to prepare a written resolution. Back - ground On September 18, 2003, The Planning Commission acted to deny the applicant's request for a variance to building height and approved the Modification Permit to allow portions of the proposed residence to encroach within the front yard setback. Tabak Residence November 12, 2003 Page 2 On October 14, 2003, the City Council acted to modify the Planning Commission's action by denying the Variance and Modification Permit. At the adjourned regular meeting of the City Council held on October 21, 2003, Councilmember Heffernan made a motion to reconsider the Council's action. The Council approved the motion, which has led to the re- hearing of the applications at this meeting. A full discussion of the project is contained in the attached City Council staff report, which includes a copy of the Planning Commission report. Prepared by: IIA�A� vv CVO James W. Campb II Senior Planner Attachments Submitted by: ?�,, , Jkff. 'a Patricia L. T nl le Planning Director A. Draft Resolution for denial of Variance No. 2003 -005 and the amendment of Modification Permit No. 2002 -049. B. Draft Resolution for denial of Variance No. 2003 -005 and the approval of an amendment of Modification Permit No. 2002 -049. C. City Council Report dated October 14, 2003. Attachment A Intentionally Blank RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING VARIANCE NO. 2003 -005 (PA2003 -180) AND DENYING AN AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 FOR PROPERTY LOCATED AT 3431 OCEAN BOULEVARD (PA2003 -180). THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: Section 1. An application was filed by Tom Stewart(Fleetwood Joiner Associates on behalf of the property owners, Lawrence and Lana Tabak, with respect to property located at 3431 Ocean Boulevard, and legally described as Lot 8, Tract 1257, requesting approval of a Variance to construct a 7,325 square foot residence that would exceed the 24 -foot height limit and an amendment to Modification Permit No. 2002 -049 to allow portions of a proposed single family residence to encroach up to 8 feet into the required 10 -foot front yard setback. Both the Land Use Element of the General Plan and the Zoning Code designate the site as Single Family Detached Residential. Section 2. A public hearing was held by the Planning Commission on September 18, 2003, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of the time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. At the conclusion of this meeting, the Planning Commission acted to deny the Variance and approve the Modification Permit. Section 3. A public hearing was held by the City Council on October 14, 2003 and November 12, 2003 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, Califomia. A notice of the time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the City Council at these meetings. Section 4. The City Council finds that the requested variance is not justified and is hereby denied for the following reasons: a) Although the property has topological constraints, the applicant has chosen to heavily excavate the property, which alleviates the topography constraint, rather than developing the property utilizing the current physical characteristics. Therefore, there are no exceptional or extraordinary circumstances applying to the property or use referred to in the application that would preclude development of the property with a single family residence designed in compliance with the height limit. The previously approved plans for Modification Permit No. 2002 -049 show that a residence at or near the maximum allowable floor area allowed can be designed within the 24 -foot height limit. City of Newport Beach City Council Resolution No. Page 2 of 3 b) The granting of the application is not necessary for the preservation and enjoyment of a substantial property right in that private view enhancement is not a General Plan goal nor are private views protected by the Municipal code. The applicant's views are maintained without the encroachment into the height limit, and full building area can be achieved without the encroachment into the height limit. Therefore, approval of the Variance is not necessary to preserve a substantial property right. c) The granting of the application is not consistent with the purposes of the Zoning Code and will constitute a grant of special privilege inconsistent with limitations placed on other properties in the vicinity within the same zoning district in that the encroachment into the height limit for the purpose of enhancing a private view is not a goal of the General Plan or a guarantee of the Zoning Code. Additionally, approval of the Variance to the height limit does not achieve the goal of the Zoning Code in regards to the reduction of nonconformities and consistent application of regulations. Section 4. The City Council finds that the requested amendment to Modification Permit No. 2002 -049 for encroachments within the front yard setback will 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 inconsistent with the legislative intent of this code for the following reasons: a) The project involves a significant amount of excavation and shoring of the coastal bluff. Approval of the amendment would increase the amount of excavation and could increase the risk of slope failure that would potentially negatively impact the public right of way and adjoining properties. b) The proposed encroachments could impede vehicular maneuvering to the property from the driveway located within the public right of way. The further encroachment of the structure could negatively effect the public's use of the right of way due to the proximity of the proposed structure should the City choose to expand the use of Ocean Boulevard in the future. c) The legislative intent of requiring a front yard setback is to provide separation of structures from adjacent public rights of way and to consistently apply setbacks to all properties in a consistent manner. Approval of a reduction of the setback is inconsistent with this purpose in that it would provide a 2 -foot setback when 10 feet is required. Approval of the Modification Permit does not achieve the goal of consistent application of regulations and could constitute the granting of a special privilege to this property owner. L City of Newport Beach City Council Resolution No. Pape 3 of 3 Section 5. Based on the aforementioned findings, the City Council denies Variance No. 2003 -005 and denies an amendment to Modification Permit No. 2002 -049. PASSED, APPROVED AND ADOPTED THIS 12th DAY OF OCTOBER, 2003. AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK 'I Intentionally Blank Attachment B Intentionally Blank RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DENYING VARIANCE NO. 2003 -005 (PA2003 -180) AND APPROVING AN AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 FOR PROPERTY LOCATED AT 3431 OCEAN BOULEVARD (PA2003 -180). THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: Section 1. An application was filed by Tom Stewart/Fleetwood Joiner Associates on behalf of the property owners, Lawrence and Lana Tabak, with respect to property located at 3431 Ocean Boulevard, and legally described as Lot 8, Tract 1257, requesting approval of a Variance to construct a 7,325 square foot residence that would exceed the 24 -foot height limit and an amendment to Modification Permit No. 2002 -049 to allow portions of a proposed single family residence to encroach up to 8 feet into the required 10 -foot front yard setback. Both the Land Use Element of the General Plan and the Zoning Code designate the site as Single Family Detached Residential. Section 2. A public hearing was held by the Planning Commission on September 18, 2003, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, Califomia. A notice of the time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. At the conclusion of this meeting, the Planning Commission acted to deny the Variance and approve the Modification Permit. Section 3. A public hearing was held by the City Council on October 14, 2003 and November 12, 2003 in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, Califomia. A notice of the time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the City Council at these meetings. Section 4. The City Council finds that the requested variance is not justified and is hereby denied for the following reasons: a) Although the property has topological constraints, the applicant has chosen to heavily excavate the property, which alleviates the topography constraint, rather than developing the property utilizing the current physical characteristics. Therefore, there are no exceptional or extraordinary circumstances applying to the property or use referred to in the application that would preclude development of the property with a single family residence designed in compliance with the height limit. The previously approved plans for Modification Permit No. 2002 -049 show that a residence at or near the maximum allowable floor area allowed can be designed within the 24 -foot height limit. b) The granting of the application is not necessary for the preservation and enjoyment of a substantial property right in that private view enhancement is not a General Plan �k City of Newport Beach City Council Resolution No. Page 2 of 3 goal nor are private views protected by the Municipal code. The applicant's views are maintained without the encroachment into the height limit, and full building area can be achieved without the encroachment into the height limit. Therefore, approval of the Variance is not necessary to preserve a substantial property right. c) The granting of the application is not consistent with the purposes of the Zoning Code and will constitute a grant of special privilege inconsistent with limitations placed on other properties in the vicinity within the same zoning district in that the encroachment into the height limit for the purpose of enhancing a private view is not a goal of the General Plan or a guarantee of the Zoning Code. Additionally, approval of the Variance to the height limit does not achieve the goal of the Zoning Code in regards to the reduction of nonconformities and consistent application of regulations. Section 4. The City Council finds that the requested amendment to Modification Permit No. 2002 -049 for encroachments within the front yard setback 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 for the following reasons: a) The proposed encroachments will be approximately 60 feet from the existing sidewalk. This increased distance sufficiently separates the building mass from the sidewalk especially due to the fact that the height of the proposed residence does not exceed the adjacent top of curb height, and is actually below the top of curb. The majority of the proposed encroachment is below grade and will not be visible. b) The code provides flexibility in the application of land use and development regulations by way of permitting modification and variance applications. This procedure is intended to resolve practical and unnecessary physical hardships resulting from the unique topography and lot configurations that exist in the area and on this lot. c) The proposed front yard encroachment is a reasonable design solution given the topography and location of the site in that the encroachments on the first, second, and third levels are below the driveway grade levels of the subject property and cannot be viewed from the street level, and, further, that the proposed encroachments are on the street side of the property. d) The proposed modification will not be detrimental to persons, property or improvements in the neighborhood or increase any detrimental effect of the use in that the portion of the encroachment that is above grade will not block line of sight or views from the adjacent property. e) The proposed modification will not affect the flow of air or light to adjoining residential properties in that the encroachments are located on the street side of the property and the required side yard setbacks are maintained. City of Newport Beach City Council Resolution No. Paqe 3 of 5 f) The proposed front yard encroachment will not obstruct views from adjoining residential properties nor from the public in that the structure is located below the grade of the sidewalk along Ocean Boulevard, and the views from the adjacent property are oriented to the south and opposite the side of the dwelling for which the encroachment is proposed. Views from Inspiration Point are also not affected as the encroachment is on the north side of the residence and the residence itself is positioned between the encroachment and the view from Inspiration Point. g) The property is located at the end of the driveway access and no through circulation is required beyond the property, and sufficient space remains for vehicular access and maneuvering. h) The proposed front setback modification will not require changes to the improvements and natural bluff area located within the public right -of -way abutting the property. i) The project has been reviewed and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (Construction of a single - family residence in a residential zone). Section 5. Based on the aforementioned findings, the City Council denies Variance No. 2003 -005 and approves an amendment to Modification Permit No. 2002 -049 subject to the findings contained herein and the conditions set forth in Exhibit "A ". PASSED, APPROVED AND ADOPTED THIS 12th DAY OF OCTOBER, 2003. AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT COUNCIL MEMBERS MAYOR ATTEST: CITY CLERK 13 City of Newport Beach City Council Resolution No. Pape 4 of 5 EXHIBIT "A" CONDITIONS OF APPROVAL AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 The development shall be in substantial conformance with the plot plan, floor plans and elevations dated July 10, 2003 with the exception of revisions required to eliminate any encroachments into the 24 -foot height limit and any revisions required by the following conditions. 2. Amendment to Modification Permit No. 2002 -049 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 3. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The project shall comply with all applicable Fire and Building Code regulations, including the requirement for installation of a sprinkler and fire suppression system. 4. All improvements shall be constructed as required by Ordinance and the Public Works Department. 5. Exiting from each level of the residence shall comply with applicable standards of the Fire and Building Code. 6. Prior to the issuance of demolition, grading or building permits, the applicant shall obtain approval from the California Coastal Commission for the demolition of the existing residence and the construction of the new residence, if necessary. 7. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 8. Chimney heights shall comply with the regulations specified by section 20.65.070 of the Zoning Code. 9. Prior to the issuance of grading or building permits, a drainage plan shall be prepared and approved by the Building, Public Works and Planning Departments. 10. The project shall conform to the requirements of the National Pollution Discharge Elimination System (NPDES). Prior to the issuance of grading or building permit for new construction, a Water Quality Management Plan (WQMP) shall be prepared by the applicant and submitted for review by the Building, Planning and Public Works Departments. The WQMP shall be reviewed and approved by the City prior to the issuance of a grading or building permit for new construction. `q City of Newport Beach City Council Resolution No. Paqe 5 of 5 11. As part of the submittal requirements for grading and building permits, an extensive geotechnical investigation and geotechnical report shall be prepared. Included in the recommendations shall be a shoring plan designed to protect the adjacent properties and right of way from damage resulting from the temporary removal of lateral support. 12. During excavation and construction, vehicular access to adjacent properties shall be maintained at all times. 15 Intentionally Blank Attachment C I--� CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 16 October 14, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: William Cunningham, Contract Planner (949) 644 -3200 SUBJECT: Tabak Residence, 3431 Ocean Boulevard Variance No. 2003 -005 and Amendment to Modification Permit No. 2002 -049 (PA2003 -180) APPLICANT NAME: Tom Stewart/Fleetwood Joiner Associates, applicant for Lawrence and Lana Tabak, property owners ISSUE: Should the City Council uphold the Planning Commission action to deny a Variance to allow portions of a new single - family residence to exceed the 24 -foot height limit and their action to approve an amendment to a Modification Permit to allow portions of the new residence to encroach 8 feet Into the required 10 -foot front yard setback? RECOMMENDATION: Staff recommends the City Council hold a public hearing and uphold the decision of the Planning Commission to deny Variance No. 2003 -005 and approve Amendment to Modification Permit No. 2002 -049 (PA2003 -180) based on the findings and conditions of approval contained within the attached Planning Commission Resolution. DISCUSSION: On September 18, 2003 the Planning Commission took action to deny the applicant's request for a variance to permit a new single - family residence to exceed the 24 -foot height limit. The Commission also approved an amendment to an approved modification permit to allow encroachment of a proposed new residence up to eight feet into the 10- foot front yard setback. The applicant proposes to replace an existing three -story single family- residence constructed in 1958 with a new four -story structure that will be constructed into and down the hillside. The total size of the new residence is proposed to be 7,325 sq. ft., including a 615 sq. ft. garage. A Modification Permit (MD2002 -049) was approved by the Modifications Committee on January 10, 2003, which allows the 1� Tabak Residence October 14, 2003 Page 2 new dwelling to encroach five feet into the front yard setback. Subsequent to the approval of MD2002 -049, the applicant revised the plans to align the structure with the existing house located to the west. In doing so, portions of the upper two levels and a deck extended over the 24 -foot height limit by up to 21 feet. In addition, the applicant revised the plans increasing the encroachment into the front setback by three feet, for a total encroachment of eight feet into the 10 -foot front setback. The Planning Commission's action was to deny the variance request, but to approve the modification, which will require the applicant to revise the plans to maintain the upper floor levels to remain within the 24 -foot height limits. In discussing the matter, the Planning Commissioners generally concurred with the staff analysis as outlined in the staff report, and the findings contained within the resolution. The primary finding for the variance that the Commission was unable to make was that "exceptional or extraordinary circumstances" apply in this case since the applicant had demonstrated that a dwelling achieving full and reasonable buildable area could be designed for the site without exceeding the height limit. With respect to the front setback, the Commission felt that the request was reasonable given the fact of the 60 -foot setback from the sidewalk along Ocean Boulevard, that most of the setback encroachment was beneath grade and would not be visible, and that the dwelling was located at the end of the access drive and sufficient back -out area from the garage is maintained. In addition, the Commission noted that the setback encroachment will not block public or private views since the portions of the building encroaching into the setback are either below grade, or are on the north (inland) side of the structure. The Planning Commission Staff Report, Resolution, and the minutes of the Planning Commission are included as Attachments to this staff report. Environmental Review: The proposed project has been reviewed and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures) since the proposed structure will replace an existing structure. Public Notice: Notice of this hearing was published in the Daily Pilot, mailed to property owners within 300 feet of the property and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city website. `1 Tabak Residence October 14, 2003 Page 3 Alternatives: The Council has the following options as alternatives to the recommended action to uphold the Planning Commission's actions: Modify the decision of the Planning Commission by approving the Variance request and upholding the Planning Commission action to approve the amendment to the Modification Permit. Under this alternative, the applicant's plans would be approved as submitted. Modify the decision of the Planning Commission by approving the Variance, but reversing or modifying the approval of the amendment to the Modification Permit. Under this alternative, the applicant's plans would require revisions to maintain a 5 -foot front yard setback (including a corresponding setback for the lower subterranean levels), as already authorized under the approval for the existing Modification Permit. Other variations to this alternative are possible such as approving the modification related to subsurface encroachment and requiring a 5 -foot for the level above grade. 3. Modify the decision of the Planning Commission to deny both the Variance and Amendment to Modification Permit. Under this alternative, the applicant would be required to revised the plans to maintain the structure within the 24 -foot height limit and maintain the 5 -foot front yard setback as allowed in the original Modification Permit approval. The City Council does not have the option to require a 10 -foot setback as the previously approved Modification Permit, which authorized a 5 -foot setback, has been approved and the opportunity to review and change that approval has lapsed. Prepared by: William Cunningham, Conffact Planner Attachments: Submitted by: 1 Patricia L.7emple, la ning Director A. Planning Commission Resolution No. 1613 (including findings and conditions of approval) B. Excerpt of draft Planning Commission minutes from the September 18, 2003 hearing C. Planning Commission Staff Report, September 18, 2003 �b ATTACHMENT A PLANNING COMMISSION RESOLUTION .0 ,�1 RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH DENYING VARIANCE NO. 2003- 005 AND APPROVING AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 (PA2003 -180) FOR PROPERTY LOCATED AT 3431 OCEAN BOULEVARD THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: Section 1. An application was filed by Tom Stewart/Fleetwood Joiner Associates on behalf of the property owners, Lawrence and Lana Tabak, with respect to property located at 3431 Ocean Boulevard, and legally described as Lot 8, Tract 1257, requesting approval of a Variance to construct a 7,325 square foot residence that exceeds the 24 -foot height limit and encroaches up to 8 feet into the required 10 foot front yard setback. Both the Land Use Element of the General Plan and the Zoning Code designate the site as Single Family Detached Residential. Section 2. A public hearing was held on September 18, 2003, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of the time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. Section 3. The Planning Commission finds that the requested variance is not justified and is hereby denied for the following reasons: a) Although the property has topological constraints, the applicant has chosen to heavily excavate the property, which alleviates the topography constraint, rather than developing the property utilizing the current physical characteristics. Therefore, there are no exceptional or extraordinary circumstances applying to the property or use referred to in the application that would preclude development of the property with a single family residence designed in compliance with the height limit. The previously approved plans for Modification Permit No. 2002 -049 show that a residence at or near the maximum allowable floor area allowed can be designed within the 24 -foot height limit. b) The granting of the application is not necessary for the preservation and enjoyment of a substantial property right in that private view enhancement is not a General Plan goal nor are private views protected by the Municipal code. The applicant's views are maintained without the encroachment into the height limit, and full building area can be achieved without the encroachment into the height limit. Therefore, approval of the Variance is not necessary to preserve a substantial property right. c) The granting of the application is not consistent with the purposes of the Zoning Code and will constitute a grant of special privilege inconsistent with limitations placed on other properties in the vicinity within the same zoning district in that the encroachment into the height limit for the purpose of enhancing a private view is not a goal of the DRAFT a �- City of Newport Beach Planning Commission Resolution No. Page 2 of 5 General Plan or a guarantee of the Zoning Code. Additionally, approval of the Variance to the height limit does not achieve the goal of the Zoning Code in regards to the reduction of nonconformities and consistent application of regulations. Section 3. The Planning Commission finds that the requested amendment to Modification Permit No. 2002 -049 for encroachments within the front yard setback 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 for the following reasons: a) The proposed encroachments will be approximately 60 feet from the existing sidewalk. This increased distance sufficiently separates the building mass from the sidewalk especially due to the fact that the height of the proposed residence does not exceed the adjacent top of curb height, and is actually below the top of curb. The majority of the proposed encroachment is below grade and will not be visible. b) The code provides flexibility in the application of land use and development regulations by way of permitting modification and variance applications. This procedure is intended to resolve practical and unnecessary physical hardships resulting from the unique topography and lot configurations that exist in the area and on this lot. c) The proposed front yard encroachment is a reasonable design solution given the topography and location of the site in that the encroachments on the first, second, and third levels are below the driveway grade levels of the subject property and cannot be viewed from the street level, and, further, that the proposed encroachments are on the street side of the property. d) The proposed modification will not be detrimental to persons, property or improvements in the neighborhood or increase any detrimental effect of the use in that the portion of the encroachment that is above grade will not block line of sight or views from the adjacent property. e) The proposed modification will not affect the flow of air or light to adjoining residential properties in that the encroachments are located on the street side of the property and the required side yard setbacks are maintained. f) The proposed front yard encroachment will not obstruct views from adjoining residential properties nor from the public in that the structure is located below the grade of the sidewalk along Ocean Boulevard, and the views from the adjacent property are oriented to the south and opposite the side of the dwelling for which the encroachment is proposed. Views from Inspiration Point are also not affected as the encroachment is on the north side of the residence and the residence itself is positioned between the encroachment and the view from Inspiration Point. DRAFT 'A City of Newport Beach Planning Commission Resolution No. Page 3 of 5 5) The property is located at the end of the driveway access and no through circulation is required beyond the property, and sufficient space remains for vehicular access and maneuvering. 6) The proposed front setback modification will not require changes to the improvements and natural bluff area located within the public right -of -way abutting the property. c) The project has been reviewed and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (Construction of a single - family residence in a residential zone). Section 4. Based on the aforementioned findings, the Planning Commission denies Variance No. 2003 -005 and approves Amendment to Modification Permit No. 2002 -049, subject to the conditions set forth in Exhibit "A ". Section 5. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk or this action is called for review by the City Council in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 18th DAY OF SEPTEMBER, 2003. MU Earl McDaniel, Chairman BY: Michael Toerge, Secretary AYES: ABSENT: DRAFTa City of Newport Beach Planning Commission Resolution No. Page 4 of 5 EXHIBIT "A" CONDITIONS OF APPROVAL AMENDMENT TOMODIFICATION PERMIT NO. 2002-049 The development shall be in substantial conformance with the plot plan, floor plans and elevations dated July 10, 2003 with the exception of revisions required to eliminate any encroachments into the 24 -foot height limit and any revisions required by the following conditions. 2. Amendment to Modification Permit No. 2002 -049 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 3. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The project shall comply with all applicable Fire and Building Code regulations, including the requirement for installation of a sprinkler and fire suppression system. 4. All improvements shall be constructed as required by Ordinance and the Public Works Department, 5. Exiting from each level of the residence shall comply with applicable standards of the Fire and Building Code. 6. Prior to the issuance of demolition, grading or building permits, the applicant shall obtain approval from the California Coastal Commission for the demolition of the existing residence and the construction of the new residence, if necessary. 7. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 8. Chimney heights shall comply with the regulations specified by section 20.65.070 of the Zoning Code. 9. Prior to the issuance of grading or building permits, a drainage plan shall be prepared and approved by the Building, Public Works and Planning Departments. 10. The project shall conforrn to the requirements of the National Pollution Discharge Elimination System (NPDES). Prior to the issuance of grading or building permit for new construction, a Water Quality Management Plan (WQMP) shall be prepared by the applicant and submitted for review by the Building, Planning and Public Works DRAFT '5 City of Newport Beach Planning Commission Resolution No. Page 5 of 5 Departments. The WQMP shall be reviewed and approved by the City prior to the issuance of a grading or building perrnit for new construction. 11. As part of the submittal requirements for grading and building permits, an extensive geotechnical investigation and geotechnical report shall be prepared. Included in the recommendations shall be a shoring plan designed to protect the adjacent properties and right of way from damage resulting from the temporary removal of lateral support. 12. During excavation and construction, vehicular access to adjacent properties shall be maintained at all times. DRAFTiG ATTACHMENT B PLANNING COMMISSION MINUTES Planning Commission Minutes 09/18/2003 Tabak Variance (PA2003 -180) 3431 Ocean Boulevard Page 4 of 12 ITEM NO. 5 PA2003 -180 applicant proposes to demolish an existing structure and construct a Variance was v four -story residence. The applicant is requesting a variance to allow denied and 24 -foot height limit to be exceeded. In addition, the applicant requests Modification amendment to a previously approved Modification Permit to encroach Amendment i the 10 -foot front yard setback by 8 feet. was approved Planner, James Campbell gave an overview of the staff . The existing property will be torn down and a new residen constructed that will meet all applicable guidelines and standards the Municipal Code except for the height of the structure and the fn yard setback. . The front yard setback has been reduced to 5 feet with the previoi approved Modification; however, the applicant is requesting additional 3 feet of encroachment for a total of 10 feet encroachment. . Staff recommends approval of that Modification Permit request . The variance would not encroach above the top of the curb height would encroach above the 24 foot height limit. . The topography of the property is a steep bluff property, which makes it difficult to construct a residence; however, the applicant has chosen to excavate the entire bluff to construct the proposed new residence and thereby eliminate the impediment. The design of the previously approved modification complies with the height limit as well as achieves the allowable maximum buildable area of the property of 7,321 square feet. Granting of the variance application is not necessary as the previc approved plans allow for the maximum buildable area and full and enjoyment of the property. The purpose of the height limit is to preserve the character and scale of the community. The modification to the structure the applicant is proposing, the actual height and mass is not overly large; however, the stated purpose for doing this is to achieve a private view. Approval of this variance application would therefore, be a granting of special privilege. Photographic exhibits were presented noting the location of residence; existing conditions of the bluff area; comparisons file: //F : \U SERS\PLN\Shared \ginger \0918.htm 10/06/2003 Planning Commission Minutes 09/18/2003 neighboring properties; property from the ocean side; and plans above the height limits. access; front yard setback; vii depicting portions proposed to mmissioner Selich clarified that in reviewing the variance mmission is looking at the total project. Under finding 3 in the Port, 'the purpose of the height limit is to preserve the scale and chara the community.' If we found some other aspects of the project eting that finding, does that give us sufficient grounds to evaluate perty, or are we solely evaluating that portion of the project that exce height limit? Clauson answered that to the extent the rest of the project drives i to exceed the height limit, then you would look at the entire project. ntinuing, Commissioner Selich referring to page 4 of the staff re :rence to the General Plan consistency, to what relevance does cussion of Policy D have to our discussion this evening? Clauson answered in one way it has relevance as to one of the rmination of the findings is the fact that the surrounding location is Wed by topography and the general plan provisions in regards to ,tal bluff, so that is a consideration that can be made in the findings that are considering. Temple added that in the resolution there is no finding related to the feral Plan because staff was not a recommending approval of the ante. You have a proposal that must be evaluated against that policy. f evaluated it in light of prior Planning Commission and prior Coasta nmission actions that by doing the grading within the footprint of the ting development, the project met that criteria. However, our view: led to the coastal draft alteration provisions will continue to evolve. Tc extent the request to approve the variance also drives the need to make alteration, then that would also be a finding you could make. ;loner Selich asked for a comparison between this and the approved variance two houses down the street Campbell answered that this project comes down to a 35 foot high itour. The Ensign variance had roughly a third of the property coming vn to the 58 foot contour and 2/3 of that project would come down to the foot contour. The current project does go down the bluff a bit further >roximately 17 feet. Mr. Campbell then made the Ensign plans available the Commission to review. missioner Tucker noted that there are two issues, height limit v how far down the bluff, which is driven by the pool. If the aF t seek the variance, then the issue of the swimming pool has i decided. The only reason the issue of how far down the bluff Page 5 of 12 file: / /F: \USERS \PLN\Shared \ginger \0918.htm 10/06/2003 :�y Planning Commission Minutes 09/18/2003 is because the applicant is asking for something in addition to wh As as a matter of right. How does the down the bluff issue work relate height variance issue, which has to do with a different area of tl perty? We can look at the totality of the circumstances if one aspe !cts the other, some interrelationship. I am not seeing how the work pool area relates to the variance request. Clauson noted that to the extent that considerations of the coastal b d preserving coastal bluff property is an element that might be used pport of a reason for the need for the variance to go up, then in ntext of the overall approval of this project you can consider all the des ributes of this project to the extent that they are driving the hei ;rease. The applicant is saying that there is something about Dperty that drives the need for this variance. The whole project and h :its on the property and how it is impacted by the topography driving ed for a variance is relevant. They could still get it if all the apprm are granted and they were not asking for this variance. I don't think wld look at the request for this variance in that vacuum, you would h look at the whole project. inuing, Commissioner Tucker noted the manner in which the natr, e was determined, we have a situation here where we are using irint of the prior structure as the natural grade. We have this plate then a 3 1/2 foot wide area where the variance request is prima ed, My concern is why the Butterfields did not need a variance wl house was in identical circumstances, it must have been the F ing structure on the Butterfield lot encompassed the entire build :lope for the next structure. aff answered that appears to be the case noting, the difference is iper level of the house cantilevers over the existing retaining walls a undations. The area of the variance is directly above the sloping bluff iposed to being above the existing retaining walls and foundat ,uctures. It is a different circumstance because this house cantilevers, at is why there is a wedge shape area that puts the house above right limit if you want to put the new house in the same position as :isting house. issioner Tucker asked about the new construction and how far go down the slope, and how much of the 17 feet beyond where tl residence was at the 52 foot contour structure? Campbell answered that the basement level is at 40 and 1/2 feet; a 5 feet is due to the pool taking the project to the 35 foot contour. tmissioner Eaton stated that to approve a suggested zone change emission or Council would have to make a finding of consistency General Plan. Is that true for a variance or a use permit? If a vane to be approved, is there a necessity to make a finding of conforms the General Plan? Page 6 of 12 file: //F:\ USERS \PLN\Shared \ginger\0918.htm 10/06/2003 15 3Z) Planning Commission Minutes 09/18/2003 Ms. Clauson answered that there is not a finding in the Code that require: consistency with the General Plan. There is some case law that use permits do not require that consistency finding because the govemmen code talks about zoning ordinances being consistent with the general plan. A use permit and a variance are discretionary permits that allow for minor o different variations from the provisions in the Zoning Code. If the Zoninc Code itself is consistent with the General Plan then variations from thal unless they vary outside even what is allowed under the Land Use Elemenl I think generally wouldn't have to have that same finding. I issioner Selich noted his belief that the project is not.consistent with al Plan Policy D, is that a valid reason to support the findings for of the variance? . Clauson answered that in looking at a furtherance of a policy is that ether the project would further the provisions of the Land Use, this might a finding that you could consider. irperson McDaniel noted that a letter from the Butterfields was received distributed to the Commission. i Joiner, architect in Newport Beach, spoke representing the stating the following: • This project has been to the Coastal Commission for removal of a stairway and replaced with something that is built on grade. • This project is in compliance with the Coastal Commission approval and has a design approval with the City. • We are seeking this variance for architectural appurtenance reasons, which would beautify the home as far as sitting on the bluff. • The variance will put us in line with the adjacent residence and to the point that the existing home now sits. • We are not asking to go out any further than the existing home or adjacent home sits. • Referring to a diagram, he further stated that the project is not going down to the 35 foot level, existing house and allowable envelope for new construction; referenced adjacent homes; the variance request represents a 16 foot depth at 3 1/2 to 4 feet extension, an area for more shadow line for a piece of glass and a corner piece about 6 inches by 6 inches as well as an encroachment in the front yard that staff has recommended approval. • We did not put a pitched roof on this design; the proposed project is 3 1/2 feet below curb height, and are not obstructing the street view anymore than currently exists. .. If the variance is approved, we will have to go back to the Coastal Commission. . The design'zig zags' to adhere to the envelope lines. iissioner Eaton then asked about the difference between the two of the building as to how much of an encroachment there is. The file: //F: \USERS\PLN\Shared \ginger \0918.htm Page 7 of 12 SO 10/06/2003 3 \ Planning Commission Minutes 09/18/2003 shows different encroachments on the north and south sides. Campbell answered that the drawing presented by the architect resents encroachments of the proposed structure beyond the existing se (indicated by red dash lines). Referring to the exhibit presented by architect, the light blue dash lines shaded area below the red dashed s is where the proposed house would exceed the 24 foot height limit. then referred to Exhibit A6 of the drawings in the packet that shows the tion near the north and south elevations. The north side has lower de and a larger encroachment than the south side of the property. The posed structure would encroach vertically approximately 21 feet on the I th side and 12 feet on the south side and approximately 4 feet izontally away from the bluffs. )mmissioner Cole verified that the reason the variance is being requested purely for architectural design, or are there other reasons that might ipact the enjoyment of the home if the homeowner had to live within the :fisting envelope. . Joiner answered, yes it is for architectural reasons to create more adow line to the building. We are maintaining the same vertical footprint. Commission inquiry he added that they want to be adjacent to the home xt to them as that infringes upon the applicant's views and there is a vacv issue as well. comment was opened. Irvin Nevis, citizen of the City and representing Helen Anderson and Rod nes, other neighbors who were unable to attend, noted that they oppose granting of the variance on the westerly side of Ocean Boulevard that als with height as it infringes on the views not only theirs but people dking up and down Ocean Boulevard. Ocean Boulevard rises as you go the southerly side of the street so what is below the street line at one sition is not below the street line at another position. The people who me to our boulevard will see roof tops and not what you used to be able see. That street is owned by the City and part of the land that is being ed by these people is owned by the City. The City has leased some of e land to them, which is fine. I do not seethe need for increasing height tits on a house beyond the limits provided by the Code, which in some spect, may affect views for people across the street, down the street or ilking down the street. We agree that the variance be denied and urge at the modification permit be denied. It appears that there is no >tification for allowing that variance to be approved. At Commission luiry, he stated that if the height was below the street line at the lowest tel of Ocean Boulevard, he would not object to the variance. But if it is !low the street line at the highest level of Ocean Boulevard, I would eject. That is what is happening here and that is what happened on the ttterfields project as well. I don't think that the fact that the Butterfields use was built and approved, should be a basis for you to allow it to ppen again. file: //F: \USERS\PLN\Shared \ginger \0918.htm Page 8 of 12 AFT 10/06/2003 3 Planning Commission Minutes 09/18/2003 :k Reed, citizen of Newport Beach noted that the Code is there for a ison. If you continue to grant variances to the Code, then eventually you have changed the Code. If you are for growth and to attract more alth to this area, I don't think it should be done through variances, it )uld be done through changes to the Code. I urge that you deny the iance request on this residence because if you do approve it, then it will easier for the next house to get a variance. You will be changing the uacter of the bluff. i Reed, citizen of Newport Beach urged the Commission to remember a lot of homes on that street have been built within the standards of e. She noted her concern of environmental issues and asked that e be considered. At Commission inquiry, she noted that the building I impair her views. nmissioner Tucker asked if the area where the variance is being sought dd be visible from Ocean Boulevard including oblique angles. What is effect on the view corridor, as we have nothing that shows the line of it. It should resolve concerns that this is on the south side of the cture and is a question of how much of the structure that is lawfully ig to be there will block the opportunity to see the area where the heigh ance is being sought. Campbell answered that the proposed structure will be higher than the sting structure by about three feet, but it will still be about three feet ow the level of curb adjacent to property. The existing house is already i- conforming to the 24 foot height limit now. Referencing the )tographs of the the existing residence, he noted the volume that would allowed and the oblique view that would be lost. The variance may act residents on the north side of Ocean Boulevard from that vantage nt whereby they would lose sight of some of the sand. The effect of this :roachment will change with the vantage point. He noted additional stage points and views along the whole width of the house. on Kazarian, citizen of Newport Beach noted that the modification in the mt of this property is above ground and goes into the front setback and is big issue. This one house will be closer to Ocean Boulevard and is much fferent than the Ensign project. n Butterfield, citizen of Newport Beach asked that the Commission sider the consistency issue as it pertains to the Code because that is it gives the quality of life there. There are two other homeowners who at the City who are going to develop their property and await the ;ome of this hearing. She noted that the Code is supposed to be comment was closed. clarified that on the upper level of the residence, there is a proposed :e at the east side of the residence that will not block the view as note Page 9 of 12 AFT file: //F: \USERS \PLN\Shared \ginger \0918.htm 10/06/2003 .A 3'3 Planning Commission Minutes 09/18/2003 previous descriptions. The actual encroachment on the upper level will an open structure. The encroachment does not go across the whole dth of the structure at the upper level. )mmissioner Tucker noted that there appears to be not much in the way view impairment but questioned where it is on the structure. Commissioner Selich noted he is not in support of the variance. He noted that he does not believe there is any impact on the view from Ocean Boulevard, even at oblique angles you may be blotting out tiny views of the sand. He noted his concern about the project is based upon something that was done two years ago when the Commission sent a request to City Council suggesting that the City look at what happens to structures that are being built on the bluffs at Corona del Mar and what can be done legally under the existing Code and what impact that would have on the bluffs. The Council decided to defer any consideration on that to the development of the Local Coastal Plan, which we are working on and are still quite a bit away from conclusion. There will probably more defined criteria when the plan is done than what we have now, which is a general statement in the General Plan. My concern is that this project is going further down the bluff than I think it should and it appears that if is not in conformance with our policies in the General Plan. We took the right approach in the Ensign project where they went down into the bluff, but the bottom level receded down and the bluff face remained outside of it. It was basically a semi - subterranean bottom level, whereas this bottom level is completely open on the ocean side of this project. It makes a big difference and the appearance and alteration of the bluff is going to be much more significant than the Ensign project. The problem is that this project did not take this into consideration in its original design because the City has no policies or design criteria to regulate bluff alteration. It comes back to us and they are asking to exceed the height limit on a very small portion of the project, where, with very minor modifications on this, they could build the project under the existing Code exactly as it is proposed with the alteration down the bluff. It presents a dilemma on how to evaluate this. I don't see I could support a project that I think is encroaching too far into the bluff even though I know the applicant could go back and make a few minor changes to it and take a small portion out of the height encroachment area and be in complete conformance with the City Codes. In looking at the totality of the project, I can not support it. nissioner Cole noted he can not support the application. As a nission we have to find certain findings to grant a variance. Even h we can make a case for several of them, I don't believe a case has made where there are extraordinary or exceptional circumstance ng to the land, building or use. imissioner Eaton noted he can not support the variance, he could port the request for the modification. The findings for the modification different and the majority of the modification request is under ground will not be visible. I agree that we can not make the findings for the Page 10 of 12 AFT file://F:\ USERS \PLN\Shared\ginger\0918.htm 10/06/2003 3 Ll I Planning Commission Minutes 09/18/2003 ance. Being this close to Inspiration Point the further extension down bluff is going to be particularly visible. ;loner Kiser stated he could not support the height variance for comments adding that he supports the staff analysis for the ion. He noted his concern of the homes going further down the :ommissioner Tucker stated he supports the modification, the variance he troubled about the concept of having a plateau that falls off and then the Measurement is done in a different fashion. There ought to be a string line nd that should limit where the structure should be. I don't believe that the eight variance has anything to do with the proposed work down the bluff. , t some point in time there needs to be a defined limit on how far down the luffs you can go. However, I do not see anything in our Codes that really ives us that authority. The rest of the project heading down the bluffs is of the right direction. :hairperson McDaniel stated he is not in support of the variance. A allance is to fix a problem, this is going to be a blank slate to start with and don't see a need for anything different to take place here. I am iscouraged when we are building down the bluffs, but we have no authority deal with that. I suspect we are not going to rezone that area so we are oing to try to be as consistent as we can. If we did grant this request, it could be a special privilege on a special piece of property. iissioner Selich noted that his comments were in addition to the 3s and recommendations in the staff report. Motion was made by iissioner Selich to deny the applicant's request for the variance and ve the modification permit by adopting the resolution contained in it 1 of the staff report. nissioner Tucker asked the maker of the motion to split the motion in The maker of the motion agreed. otion was amended by Commissioner Selich to deny the applicant's quest for the variance for reasons stated in the staff report and discussed. Eaton, Cole, Toerge, McDaniel, Selich and Kiser Tucker n was continued by Commissioner Selich to approve the modification by adopting the resolution contained in Exhibit 1 of the staff report. Ayes: Eaton, Cole, Toerge, Selich, Kiser and Tucker Noes: McDaniel Absent: None Abstain: None Page 11 of 12 AFT file: / /F: \USERS\PLN\Shared \ginger \0918.htm 10/06/2003 It ,4 ATTACHMENT C PLANNING COMMISSION STAFF REPORT .�A 3(k) CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT Agenda Item No. 5 September 18, 2003 TO: PLANNING COMMISSION FROM: William Cunningham, Contract Planner (949) 644 -3200 SUBJECT: Variance No. 2003 -005 and Amendment to Modification Permit No. 2002- 049 - Tabak Residence (PA2003 -180) 3431 Ocean Boulevard APPLICANT NAME: Tom StewartlFleetwood Joiner Associates INTRODUCTION: The applicant proposes to demolish an existing structure and construct a new four -story residence. The applicant is requesting a variance to allow the 24 -foot height limit to be exceeded. In addition, the applicant requests a Modification Permit to encroach into the 10 -foot front yard setback by 8 feet. RECOMMENDATION: Hold a public hearing and deny the applicant's variance request and approve the Modification Permit by adopting the resolution contained in Exhibit No. I. DISCUSSION: Background The property is currently developed with a single family residence constructed in 1958. The existing dwelling is a three story structure that is constructed partially into and down the hillside. The property is accessed by a public driveway from Ocean Boulevard. The driveway is located within the Ocean Boulevard right -of -way, and the total distance from the sidewalk to the property line is approximately 60 feet. The applicant proposes to demolish the existing structure and construct a new dwelling. The proposed new structure will be 6,710 sq. ft. of living area, will have a 615 sq. ft. three -car garage, and will have four levels that will be excavated into the hillside. The floor plan will consist of the following: �1 Tabak Residence September 18, 2003 Page 2 Level 4 (3rd floor) — Garage, entry, office and bath —1,363 sq. ft. (incl. 615 sq. ft. garage) Level 3 (2nd floor) — 3 bedrooms, 2 baths and rumpus room —1,990 sq. ft. Level 2 (Vi' floor) — Master bedroom suite —1,910 sq. ft. Level 1 (Basement) — Living areas, kitchen and dining room — 2,062 sq. ft. The plans also contain a pool and deck off of the lower ( "Basement ") level. The applicant requested a Modification Permit (MD2002 -049) from the City to permit the structure to encroach five feet into the 10 -foot front yard setback. That Modification was approved by the Modifications Committee on May 29, 2002. Subsequently, the applicant submitted plans to the Coastal Commission, which approved the project on January 10, 2003. The Coastal Commission's approval included the location of the pool and deck, and included a requirement that the structure not exceed the 24 -foot height limit. The applicant has revised his plans to bring the wall of the upper two levels in line with the adjacent residence to the west. In order to do so, the proposed structure was extended 3 ft. 8 in. away from Ocean Boulevard, which results in that portion of the structure encroaching above the height limit. The encroachments include up to 12 feet at the southeast comer; up to 21 feet at the southwest comer; and a small corner of the third level deck and glass guardrail. (Note: the existing structure currently is in line with the adjacent dwelling, and the upper level of the structure encroaches into the building height limit). In addition, the applicant now proposes to encroach an additional three feet into the front setback, for a total `rcn' e?back encroachment of eight feet into the ten -foot setback. Tabak Residence September 18, 2003 Page 3 Sutryect 3431 Ocean Blvd. \ i� �.,a '` � •• "• � i ^l1 /. i'' •! roe . •. -` ^ \- \..._� fib/ ^i •.� � `•� 0 ti, `�• ', ,fib / ♦ >> .1 ` 17 VICINITY MAP . • PEE , 4a ,20 0 \ `� �FeK NORTH Analysis The project, other than height and front setback encroachment, complies with other applicable site development standards of the Zoning Code (height and setback are discussed in detail in following sections) as outlined in the following table: : e,...: ..::.::. Code RegW atlt ram Proposal _ .._...._...... _. Setbac s'. _... ...._.._ ....__._ :........:........ __,:.... . FmM 10k 2 R Sides 4 R 4 R Rear 104. 30,5 R Building Height 24 It, Varies Building Area 7,325 sq. R 7.325 sq. R Parking 2 spaces 3 spaces General Plan: The Land Use Element of the General Plan designates the site for single - family residential use and the proposed project is consistent with that land use designation. �(J a Tabak Residence September 18, 2003 Page 4 Policy "D" of the land Use Element of the General Plan states: 'The siting of new buildings and structures shall be controlled and regulated to insure, to the extent practical, the preservation of public views, the preservation of unique natural resources, and to minimize the alteration of natural land forms along bluffs and cliffs." In addition to the General Plan Policy "D ", the City's Local Coastal Program (LCP) contains a similar policy that finds that natural bluffs represent a significant scenic and environmental resource" and requires that "the location and design of a proposed project shall take into account public view potential " In order to preserve the natural bluff to the degree possible, the applicant proposed to excavate into the hillside below the existing residence, with nearly all of the proposed added living area located within the excavated area. However, a pool, deck and supportive retaining wall will be located on the lower Cbasement') level, which extends the developed area further down the bluff disturbing what appears to be a natural bluff. The applicant submitted his plans to the Coastal Commission, which approved the project substantially as currently proposed in terms of modifications to the coastal bluff (i.e., the pool, deck and retaining walls) and resultant impact on public views. While Coastal Commission staff recommended that the pool and related improvements be moved back or eliminated, the Coastal Commission approved the plans, and in essence made the finding consistent with Policy "D" that public views were being maintained and that the alteration of the natural bluff was not inconsistent with the Coastal Act. Staff believes the improvements in the bluff area are minor, and much of the proposed new structure will be located in the excavated area below the existing residence and will not be visible from the vantage points of Ocean Boulevard or from Inspiration Point (which is located above and to the southeast of the property; individuals viewing the site from Inspiration Point actually view the back of the property and the bluff area below the house). The project will result in a structure that will be similar in size and bulk to other ocean -front structures located in the vicinity. Therefore, in staff's opinion, the project is consistent with the General Plan, including Policy "D." Building Height: The applicant proposes to construct the residence with the south - facing (ocean side) walls in line with the existing residence located to the west. The maximum height allowed is measured 24 feet over the natural grade. The project complies with the top of curb height limitation (the highest point of the roof is at the approximate 92 -foot elevation and the height of curb is at approximately the 94.5 -foot elevation). However, in order to construct the structure as proposed, portions of the dwelling will exceed the maximum height limit as measured from natural grade. These encroachments above the height limit are demonstrated on Sheet AS of the project plans (Exhibit No. 3), and will consist of: (1) a portion of the third and fourth level walls at the southwest corner of the building to a depth of approximately 3 ft. 8 in.; (2) a portion of the fourth level wall at the northeast corner of 40 Tabak Residence September 18, 2003 Page 5 the building to a depth of approximately 3 ft. 8 in.; and (3) a small comer of the deck and glass rail on the third level deck. The Zoning Code requires the Planning Commission to make certain findings for Variances. These mandatory findings are listed and discussed below: That there are exceptional or extraordinary circumstances applying to the land, building or use referred to in the application, which circumstances or conditions do not apply generally to land, buildings and/or uses in the same district. The applicant contends that the proposed structure is consistent with surrounding residences, and that the proposed building wall is in line with the adjacent structure as well as the existing structure on the site (the proposed encroachment into the height limit is similar to the current structure's encroachment). In addition, the applicant states that another reason for extending the upper level walls to be in line with the adjacent residence is to preserve and enhance ocean views from those levels. Staff concurs that the structure will be similar in size and bulk to other houses in the vicinity. However, in staffs opinion, the finding of 'exceptional or extraordinary circumstances" cannot be made in this case. Even though the property has topographical constraints and the exceptionally large distance from the Ocean Boulevard to the property line exists, the fact that the applicant is excavating into the hillside allows him the opportunity to construct a dwelling that maximizes the net building square footage of the site, without the need to encroach into the height limit. The plans approved under Modification Permit No. 2002 -049 resulted in a total building area of 7,321 square feet — 4 square feet less than the proposed project without encroaching above the height limit. 2. That the granting of the application is necessary for the preservation and enjoyment of substantial property rights of the applicant. While the applicant's request will result in a structure that will be similar in appearance to surrounding properties, and the unusual location and topography of the site present design constraints, in staffs opinion, the height variance request is not "necessary for the preservation and enjoyment of property rights." The applicant has stated that part of the intent is to improve his views from the upper levels of the structure. However, while preservation of views is a stated goal, staff notes that the preservation and enhancement of private views is not a goal of the General Plan and is not guaranteed by the Zoning Code. Nevertheless, the applicant's views are maintained even with the dwelling designed within the height limits. If the variance is not granted, the wall of the upper levels will need to be moved back approximately 3 ft. 8 in., which will still give the applicant ample room to accommodate the uses proposed on the third and fourth levels. Given the already approved Modification Permit and the additional requested setback encroachment requested with this application, the area is further increased within which to allow adequate design options on the upper levels. As noted above, the applicant has already demonstrated with the plans approved for the original Modification Permit that the full allowable building square footage (7,325 square feet) can be achieved without the 14t 1 Tabak Residence September 18, 2003 Page 6 variance. Therefore, in staffs opinion, the variance is not required for the preservation of property rights and the finding cannot be met. 3. That the granting of the application is consistent with the purposes of this code and will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district. The variance requested by the applicant, if granted, would constitute "a grant of special privilege" is arguable in staffs opinion. The purpose of the height limit is to preserve the character and scale of the community. As noted above, the proposed new structure will be in line with the adjacent residence, and will have an appearance and design similar to other homes located in the vicinity, and from that standpoint is not an unreasonable request. On the other hand, to grant a variance based on the specific circumstances of this case for the sole purpose of private view enhancement could be considered as granting a special privilege. In addition, uniform compliance with the height limit and the elimination of nonconformities is also a purpose of the Zoning Code. The proposed project does not achieve this purpose. 4. That the granting of such application will not, under the circumstances of the particular case, materially affect adversely the health or safety of persons residing or working in the neighborhood of the property of the applicant and will not under the circumstances of the particular case be materially detrimental to the public welfare orinjurious to property orimprovements in the neighborhood. The height of the proposed structure will be approximately 3 feet higher than the roof line of the existing residence that is proposed to be demolished (the new roof line will be the same height as the adjacent residence). Staff notes that the wall of the existing house that is proposed to be demolished is in line with the adjacent residence and that a portion of the upper level of the currently- existing structure encroaches into the 24 -foot height limit. Upon completion, the highest portion of the new structure will be slightly more than 3 feet below the grade level of the sidewalk along Ocean Boulevard and will not block public views from that vantage point beyond the currently- existing situation. Also, the views from Inspiration Point are not blocked, restricted or significantly altered with the proposed project due to the fact that Inspiration Point is further to the south and closer to the ocean than the proposed structure. In addition, the building walls along the south of the residence are proposed to be in line with the residence located to the west, and, therefore, will not block views from that structure. Therefore, in staffs opinion, the finding that the project will not be detrimental to the public health, safety and welfare could be made. In summary, in staffs opinion, while the fourth finding can be made, the findings relative to "extraordinary circumstances ", "preservation of property rights" and "grant of special privilege" should not be made. Tabak Residence September 18, 2003 Page 7 Setback Modification: The applicant proposes to construct the residence to within two feet of the front property line. A Modification Permit (MD2002 -049) was approved by the Modifications Committee on May 29, 2002, to allow the structure to encroach 5 feet into the required 10 -foot front yard setback. The applicant has revised the plans, and now proposes to encroach an additional 3 feet into the front setback, which requires an amendment to the originally - approved Modification Permit. In approving MD2002 -049, staff noted the unusual topography and location of the site; the fact that the encroachments on the lower levels are below grade and will not be visible; and the fact that the completed project will not obstruct sight distance views or views from adjacent properties. As noted above, the property is unusual in that the access is via a driveway that winds down the hillside from Ocean Boulevard, and the front property line is approximately 60 feet from the sidewalk along Ocean Boulevard. The top of the upper level wall that encroaches into the setback will be over three feet below the grade level of the sidewalk along Ocean Boulevard (the lower level walls are below grade and cannot be viewed). In addition, most of the encroachments are located below grade and will not be visible. Of the upper level walls that are visible above grade, approximately 31 feet (56 %) of the total 55 feet of wall frontage are proposed for the additional encroachment into the front setback. The subject property is the last house located along the access driveway, so no through circulation is required to gain access to other properties. Also, up to 25 feet is maintained to allow the residents maneuvering space for backing out of the garage. In addition, the applicant is proposing to maintain the existing retainirc gill alarg the driveway and will not mcdify the wall or bluff area in the front of the property that is within the public right -of -way (the trash enclosure will be relocated to facilitate vehicle maneuvering). Therefore, in staffs opinion. the original findings can be made for the additional 3 -foot front yard encroachment, and it is staffs recommendation that the Amendment to the Modification Permit be approved. Conclusion: In conclusion, in staffs opinion, the mandatory findings for granting a variance cannot be made. On the other hand, the request for the modification to allow encroachment into the front yard setback is reasonable. Therefore, staff has prepared a draft resolution for the denial of the Variance and the approval of the Modification Permit. Environmental Review: The proposed project qualifies for a categorical exemption from the requirements of the California Environmental Quality Act under Class 3 (New Construction or Conversion of Small Structures). The approval of a variance to the height of a structure and the modification to allow encroachments into required front yard setback are alterations in development standards and do not result in a change in land use or density and does not affect any significant environmental resources. -01 - Tabak Residence September 18, 2003 Page 8 Public Notice: Notice of this hearing was published in the Daily Pilot, mailed to property owners within 300 feet of the psopesty and posted at the site a minimum of 10 days in advance of this hearing consistent with the Municipal Code. Additionally, the item appeared upon the agenda for this meeting, which was posted at City Hall and on the city website. Alternatives: The Planning Commission has the option to deny both the Variance and the Modification Permit requests. The applicant would then be able to implement the project consistent with the plans previously approved by the City and the Coastal Commission. The Commission also has the option to approve both the Variance and Modification Permit, in which case it would be appropriate to offer findings for approval of the Variance (the findings for the approval of the Modification Permit are already included within the draft resolution, which is included as Exhibit No. 1). Prepared by: William Cunningham Contract Planner Exhibits: Submitted by: PaLmk JOOL Patricia L. Temple Planning Director 1. Draft Resolution, including Conditions 2. Applicant' s justification and letters of support 3. Aerial photo 4. Project plans 4q EXHIBIT NO. 1 DRAFT RESOLUTION i� RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH DENYING VARIANCE NO. 2003- 005 AND APPROVING AMENDMENT TO MODIFICATION PERMIT NO. 2002 -049 (PA2003 -180) FOR PROPERTY LOCATED AT 3431 OCEAN BOULEVARD THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS, RESOLVES AND ORDERS AS FOLLOWS: Section 1. An application was filed by Tom Stewart/Fleetwood Joiner Associates on behalf of the property owners, Lawrence and Lana Tabak, with respect to property located at 3431 Ocean Boulevard, and legally described as Lot 8, Tract 1257, requesting approval of a Variance to construct a 7,325 square foot residence that exceeds the 24 -foot height limit and encroaches up to 8 feet into the required 10 foot front yard setback. Both the Land Use Element of the General Plan and the Zoning Code designate the site as Single Family Detached Residential. Section 2. A public hearing was held on September 18, 2003, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of the time, place and purpose of the aforesaid meeting was given. Evidence, both written and oral, was presented to and considered by the Planning Commission at this meeting. Section 3. The Planning Commission finds that the requested variance is not justified and is hereby denied for the following reasons: a) Although the property has topological constraints, the applicant has chosen to heavily excavate the property, which alleviates the topography constraint, rather than developing the property utilizing the current physical characteristics. Therefore, there are no exceptional or extraordinary circumstances applying to the property or use referred to in the application that would preclude development of the property with a single family residence designed in compliance with the height limit. The previously approved plans for Modification Permit No. 2002 -049 show that a residence at or near the maximum allowable floor area allowed can be designed within the 24 -foot height limit. b) The granting of the application is not necessary for the preservation and enjoyment of a substantial property right in that private view enhancement is not a General Plan goal nor are private views protected by the Municipal code. The applicant's views are maintained without the encroachment into the height limit, and full building area can be achieved without the encroachment into the height limit. Therefore, approval of the Variance is not necessary to preserve a substantial property right. c) The granting of the application is not consistent with the purposes of the Zoning Code and will constitute a grant of special privilege inconsistent with limitations placed on other properties in the vicinity within the same zoning district in that the encroachment into the height limit for the purpose of enhancing a private view is not a goal of the \ �i" City of Newport Beach Planning Commission Resolution No. Page 2 of 5 General Plan or a guarantee of the Zoning Code. Additionally, approval of the Variance to the height limit does not achieve the goal of the Zoning Code in regards to the reduction of nonconformities and consistent application of regulations. Section 3. The Planning Commission finds that the requested amendment to Modification Permit No. 2002 -049 for encroachments within the front yard setback 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 for the following reasons: a) The proposed encroachments will be approximately 60 feet from the existing sidewalk. This increased distance sufficiently separates the building mass from the sidewalk especially due to the fact that the height of the proposed residence does not exceed the adjacent top of curb height, and is actually below the top of curb. The majority of the proposed encroachment is below grade and will not be visible. b) The code provides flexibility in the application of land use and development regulations by way of permitting modification and variance applications. This procedure is intended to resolve practical and unnecessary physical hardships resulting from the unique topography and lot configurations that exist in the area and on this lot. c) The proposed front yard encroachment is a reasonable design solution given the topography and location of the site in that the encroachments on the first, second, and third levels are below the driveway grade levels of the subject property and cannot be viewed from the street level, and, further, that the proposed encroachments are on the street side of the property. d) The proposed modification will not be detrimental to persons, property or improvements in the neighborhood or increase any detrimental effect of the use in that the portion of the encroachment that is above grade will not block line of sight or views from the adjacent property. e) The proposed modification will not affect the flow of air or light to adjoining residential properties in that the encroachments are located on the street side of the property and the required side yard setbacks are maintained. I) The proposed front yard encroachment will not obstruct views from adjoining residential properties nor from the public in that the structure is located below the grade of the sidewalk along Ocean Boulevard, and the views from the adjacent property are oriented to the south and opposite the side of the dwelling for which the encroachment is proposed. Views from Inspiration Point are also not affected as the encroachment is on the north side of the residence and the residence itself is positioned between the encroachment and the view from Inspiration Point. .?A 'A�1 City of Newport Beach Planning Commission Resolution No. Page 3 of 5 5) The property is located at the end of the driveway access and no through circulation is required beyond the property, and sufficient space remains for vehicular access and maneuvering. 6) The proposed front setback modification will not require changes to the improvements and natural bluff area located within the public right -of -way abutting the property. c) The project has been reviewed and it has been determined that it is categorically exempt from the requirements of the California Environmental Quality Act under Class 3 (Construction of a single - family residence in a residential zone). Section 4. Based on the aforementioned findings, the Planning Commission denies Variance No. 2003 -005 and approves Amendment to Modification Permit No. 2002 -049, subject to the conditions set forth in Exhibit "A ". Section 5. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk or this action is called for review by the City Council in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS 18th DAY OF SEPTEMBER, 2003. ABSENT: BY: Earl McDaniel, Chairman BY: Michael Toerge, Secretary Ifiv City of Newport Beach Planning Commission Resolution No. Page 4 of 5 EXHIBIT "A" CONDITIONS OF APPROVAL AMENDMENT TOMODIFICATION PERMIT NO. 2002-049 The development shall be in substantial conformance with the plot plan, floor plans and elevations dated July 10, 2003 with the exception of revisions required to eliminate any encroachments into the 24 -foot height limit and any revisions required by the following conditions. 2. Amendment to Modification Permit No. 2002 -049 shall expire unless exercised within 24 months from the date of approval as specified in Section 20.91.050 of the Newport Beach Municipal Code, unless an extension is otherwise granted. 3. The applicant is required to obtain all applicable permits from the City Building and Fire Departments. The project shall comply with all applicable Fire and Building Code regulations, including the requirement for installation of a sprinkler and fire suppression system. 4. All improvements shall be constructed as required by Ordinance and the Public Works Department. 5. Exiting from each level of the residence shall comply with applicable standards of the Fire and Building Code. 6. Prior to the issuance of demolition, grading or building permits, the applicant shall obtain approval from the California Coastal Commission for the demolition of the existing residence and the construction of the new residence, if necessary. Disruption caused by construction work along roadways and by movement of construction vehicles shall be minimized by proper use of traffic control equipment and flagmen. Traffic control and transportation of equipment and materials shall be conducted in accordance with state and local requirements. 8. Chimney heights shall comply with the regulations specified by section 20.65.070 of the Zoning Code. 9. Prior to the issuance of grading or building permits, a drainage plan shall be prepared and approved by the Building, Public Works and Planning Departments. 10. The project shall conform to the requirements of the National Pollution Discharge Elimination System (NPDES). Prior to the issuance of grading or building permit for new construction, a Water Quality Management Plan (WQMP) shall be prepared by the applicant and submitted for review by the Building, Planning and Public Works LI rl City of Newport Beach Planning Commission Resolution No. Page 5 of 5 Departments. The WQMP shall be reviewed and approved by the City prior to the issuance of a grading or building permit for new construction. 11. As part of the submittal requirements for grading and building permits, an extensive geotechnical investigation and geotechnical report shall be prepared. Included in the recommendations shall be a shoring plan designed to protect the adjacent properties and right of way from damage resulting from the temporary removal of lateral support. 12. During excavation and construction, vehicular access to adjacent properties shall be maintained at all times. 5� EXHIBIT NO.2 APPLICANT'S JUSTIFICATION AND LETTERS OF SUPPORT �� j F L E E T W O O D B. J O I N E R & ASSOCIATES, INC. July 21, 2003 Mr. James Campbell City of Newport Beach Planning Department 3300 Newport Blvd. Newport Beach, CA 92658 RE: TABAK RESIDENCE 3431 Ocean Blvd. Corona Del Mar, CA. 92625 Reference: Title 20 Municipal Code Variance Request Modification Permit # MD 2002-049, Dated 5/29/02 Dear Mr. Campbell, We are hereby requesting the following variance items. We understand that each item will be evaluated separately by staff and will also be considered separately for approval in the public hearing. 1. Variance to Building Height Envelope. A variance is requested for the reasons of providing privacy and allowing the proposed residence to align with the existing adjacent structure. To accomplish this we request to extend the upper two floors of the west elevation (facing the ocean) 3' -0" beyond the vertical step of the building envelope, in order to align the proposed building face with the existing adjacent residence. This will allow privacy from the neighbor's existing deck, which extends beyond and has potential views back into the proposed residence. In addition, the variance, if granted, will protect the owner's valuable ocean view that would otherwise be partially blocked by the neighbors existing residence. It should also be noted that the upper floor of the existing residence aligns with the neighboring home at present, and that the owner simply wants to maintain this existing alignment. 2. Variance to Front Yard setback. A variance is requested for the reason of providing additional buildable space below grade, as has been approved for other homes in the area, due to the topography of the site. To accomplish this we request to extend a portion of the east elevation wall (facing the driveway) to a distance of 2' -0" from the property line for a portion of one story above grade (extending as shown on drawings into the modified front yard setback) and for three levels below grade (extending 3' wide x 57' long into the modified front yard setback). A R C H I T E C T U R E - P L A N N I N G P. O. BOX 10296 NEWPORT BEACH, CA 92660 Phone (949) 640 -0606 fleetjoiner @earthlink.net 5� A zoning modification, referenced above, has been previously approved by the City to allow a partial 5' -0' front yard setback. This additional extension would allow the owner to have more functional floor areas on the lower living levels w' bin the home, since 45% of the site is required by the California Coastal Commission to remain undeveloped, and this area is therefore functionally unusable. The proposed encroachment will not affect any neighbor's views nor the public's views, since it will be mostly below grade and because the residence is the last of a string of homes that terminates against Inspiration Point Bluff. Several neighbors directly adjacent to the proposed residence have reviewed the attached drawings, and have written letters of endorsement for this improvement to the neighborhood with the variances requested. These letters are attached for review and consideration. The requested variances are considered by the owner to be important in establishing a functional floor plan for,his family, while'having little to no negative effect on neighbors' and public views of the ocean and surrounding land features. In fact, the proposed low massing of the home (below the maximum average roof height) will enhance the public views across the flat roof forms, towards the ocean. Thank you for your consideration. Sincerely, Fleetwood B. Joiner and Associates, Inc. Thomas Stewart, Project Manager Cc: Lawrence and Lana 7abak Attachments: Letters of endorsement from local neighbors Variance application and check for fees Variance submittal drawings (Architectural) Address labels 1 "r y3 City of Newport Beach Building Department To Whom It May Concern: I have reviewed the plans of our neighbors Lawrence and Lana Tabak, including the proposed variance they plan to file for, as they will be submitted for public hearing. I support and endorse this proposal as I feel it will not impair my views in any way. Moreover, replacing an outdated dilapidated home with a more modern and attractive structure will add to the beauty of the neighborhood. Should you have any questionst please don't hesitate to call me. Sincerely, 5`� City of Newport Beach Building Department To Whom It May Concern: I have reviewed the plans of our neighbors Lawrence and Lana Tabak, including the proposed variance they plan to Me for, as they will be submitted for public hearing. I support and endorse this proposal as I feel it will not impair my views in any way. Moreover, replacing an outdated dilapidated home with a more modem and attractive structure will add to the beauty of the neighborhood. Should you have any questions, please don't hesitate-to call me. Coq--, Et1Sr�r,l' 3N�S OC.4F-,.{N aA OYv (-I 3.0 2-S J 1 A City of Newport Beach Building Department To Whom It May Concern: I have reviewed the plans of our neighbors Lawrence and Lana Tabak, including the proposed variance they plan to file for, as they will be submitted for public hearing. I support and endorse this proposal as I feel it will not impair my views in any way. Moreover, replacing an outdated dilapidated home with a more modem and attractive structure will add to the beauty of the neighborhood. Should you have any questions, please don't hesitate to call me. Sincerely, 5� EXHIBIT NO.3 AERIAL PHOTO 51 It T. It- I . _ ,x rwp . + � Mme, -tiY •��i ��!` !i'� �;�yi. � NN 1 J 7 4 L _ i Subject Prccerty r , f � ft �Inspirati ti,,, - : VICINIITY;MA_P NORTH 5� EXHIBIT NO.4 PROJECT PLANS ,6q 3DN30IS38 NVBtll 3H1 4%v • • • • 301,13 OWN )IVGVI 3111 r2l,-E; 111 91 Fli W - Fit- I � I LU CC A LL CL 0 :E cc 0 CL 0 tm LU 0- DO W. 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