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HomeMy WebLinkAboutS17 - Special Circumstance Variance Andrew GoetzCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. s17 November 12, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Attorney's Office; Robert Burnham, City Attorney; 644 -3131 rburnham @city.newport- beach.ca.us SUBJECT: Introduction of an Ordinance establishing a procedure for granting a "Special Circumstance Variance" for projects that involve building permits that were issued based on false survey data submitted by Andrew Goetz. ISSUE Should the City Council introduce, and pass to second reading, an uncodified ordinance establishing a procedure for granting a "Special Circumstance Variance" for projects that involve building permits that were issued on the basis of false survey data submitted by Andrew Goetz? RECOMMENDATION is Introduce the proposed Ordinance attached as Exhibit A or as amended by the City Council. DISCUSSION As the City Council knows, City staff has been reviewing the survey data that Andrew Goetz, a local architect, submitted with building permit applications for numerous residential projects over the past few years. Based on our administrative review of the topographic surveys Goetz submitted we have reason to believe that the signatures and /or stamps on the surveys were forged or altered and that the survey data did not accurately reflect the field measurements taken by the surveyor. The false information appears to have been submitted with as many as 30 -35 building permit applications submitted during the past three years. As a result of the inaccurate data, the permits authorize construction of homes that exceed the maximum height permitted by the Zoning Code. The Building Director issued stop work notices for all homes under construction that we have reason to believe exceed the height limit. Staff has met with many of the property owners to explain the situation and, as you can imagine, those whose homes are under construction want to know how the City intends to respond to this unique situation. In my opinion, the City is not liable for issuing permits based on false survey data and the City could, if it chooses to do so, revoke all permits issued on the basis of the false data after appropriate hearings to provide due process. I believe the City would have the right to seek a court order requiring the owners of all above height homes to bring those structures into compliance with the height limits in the Zoning Code. I am unable to offer an opinion on the City's chances of obtaining such an order but the court, in deciding whether to grant the order, would be required to balance the interests of the City in ensuring compliance with the Zoning Code against the interests of the property owner and specifically the hardships (cost and impact • of construction) in bringing the structure into compliance. Staff has discussed some of the options available to the City (the options range from take no action to requiring all structures to comply with the height limit) and recommend that the City Council adopt an ordinance that establishes a process for issuing a "Special Circumstance Variance." (Copy of draft ordinance is Exhibit A). The proposed ordinance would: Apply only to projects that were permitted based on false survey data submitted by Goetz, that exceed the height limit because of the false data and that are very close to completion; 2. Authorize the Planning Director, after giving notice to neighbors and conducting a hearing, to issue a "Special Circumstance Variance" only if there are no "feasible" alterations that can be made to cause the structure to conform or more closely conform to the height limit; and Require, as a condition to the issuance of the "Special Circumstance Variance" the recordation of a covenant that would obligate the property owner to bring the structure into compliance if, when applying for a building permit in the future, the Planning Director determines that it is feasible to do so. The proposed ordinance has been hastily drafted and is intended to serve as a basis for • discussion as to the appropriate course of action. Staff believes that key issues include the definition of feasible and the thresholds for eligibility. Environmental Review: Class 5 — minor alterations in land use limitations. Prepared Burnham, Exhibit A: Ordinance 0 ORDINANCE NO. 2003 -� A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING PROCEDURES FOR ISSUANCE OF A SPECIAL CIRCUMSTANCE VARIANCE WHEREAS, the Newport Beach City Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the Constitution; and WHEREAS, the City Council has the authority to make and adopt regulations and permit procedures for development of property within the City of Newport Beach and has done so pursuant to the Newport Beach Zoning Code, Title 20 of the Newport Beach Municipal Code ( "Zoning Code "); and WHEREAS, as a charter city, Newport Beach is not subject to the provisions of the State Zoning and Planning Act except to the extent that those provisions relate to matters of statewide concern; and WHEREAS, the City Council finds that the special circumstances that have generated the need for, and the special provisions of, this ordinance do not involve matters of statewide concern and are not matters the regulation of which are subject to express or implied preemption by the Legislature; and WHEREAS, the procedures and findings for the consideration and approval of variances are found in Chapter 20.91 of the Newport Beach Municipal Code and those procedures and findings do not address the unique circumstances described in this ordinance; and WHEREAS, the City Council finds that, during the past three years, a local architect, Andrew Goetz, submitted numerous applications for building permits that were accompanied by topographic surveys that: (a) were not signed by the surveyor; and (b) were altered to increase the elevations on all or a portion of the parcel; and WHEREAS, the City Council finds that the Building Department, following standard procedures in all cases, issued approximately 30 building permits based on, and in reliance on, the false information submitted by Goetz; and WHEREAS, the City Council finds that, based on preliminary analysis, virtually all of the building permits issued on the basis of information submitted by Andrew Goetz during the past three years, authorized construction of buildings that exceed the height limits specified in the Zoning Code; and WHEREAS, the City Council finds that, based on preliminary analysis, the projects for which building permits were issued on the basis of false information submitted by Goetz are in various stages of construction ranging from completed structures that have been -1- occupied for an extended period of time to projects that are not yet under construction; • and WHEREAS, the Building Director has, pursuant to the provisions of Section 303.5 of the Uniform Administrative Code (adopted by reference in Title 15 of the Newport Beach Municipal Code) suspended construction on all projects for which permits were issued based on false information submitted by Andrew Goetz; and WHEREAS, the City Council finds that, under virtually all circumstances, strict enforcement of the Zoning Code serves important public interests such as promotion of aesthetically pleasing neighborhoods, protection of the public health and welfare and the equal handed administration of laws; and WHEREAS, the City Council finds that the extremely unique circumstances relevant to the building permit applications submitted by Andrew Goetz warrant the extraordinary step of adopting this ordinance establishing special circumstance variance procedures for a very limited number of properties; and WHEREAS, the City Council finds that granting the special variances authorized by this ordinance will not adversely affect the health, safety, welfare or peace of the City or the persons who own property in and around the parcels for which a special variance may be granted; and WHEREAS, the City Council finds that this ordinance, which provides for different • procedures depending on the stage of construction, represents a fair and equitable balance of the public interests in strictly enforcing the Zoning Code with the variable hardship caused to the property owner; and WHEREAS, the City Council finds that the categories established in this ordinance, and the criteria for granting a special circumstance variance, are reasonable and represent, to the besC,extent possible given the wide range of circumstances, projects that are substantially similar in all relevant respects; and WHEREAS, the City Council finds that this ordinance, and the procedure and criteria for granting a special circumstance variance is not to be codified and shall not be considered an amendment to the zoning code due to its extremely narrow and limited application. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach ordains as follows: SECTION 1: Notwithstanding any other provision of the Newport Beach Municipal Code an owner of property that satisfies all of the following criteria may apply to the Planning Director for a special circumstance variance pursuant to the procedures specified in Section 2: E -2- (a) The property is the subject of a building permit that was issued on the basis of an application submitted by Andrew Goetz; (b) The building permit application was determined to fully comply with all relevant provisions of the Zoning Code based on the information submitted by Andrew Goetz on behalf of the property owner /developer; (c) The building permit application submitted by Andrew Goetz included a topographic survey that contains a forged, altered, or falsified stamp and /or signature of the person who purported conducted the survey; (d) The building permit application submitted by Andrew Goetz included a topographic survey that contained altered and /or falsified survey data including elevations that did not accurately reflect the information provided to Andrew Goetz by the person who conducted the survey; (e) The building permit would not have been approved as consistent with the building height limits established by the Zoning Code if the true and accurate topographic survey had been submitted with the application; (f) The property owner has commenced construction based on the building permit issued on the basis of the false topographic survey and the work on the structure has proceed to the stage that the Building Department has inspected, and given approval for, work on the (exterior or interior) drywall, suspended ceiling, shower lath, exterior lath or "plaster- scratch" coat. SECTION 2: 0 The Planning Director may approve a qualifying application for a special circumstance variance `1:for any property described in Section 1 if the Planning Director finds, after conducting the hearing specified in Section 3 and considering all relevant evidence, that: (a) The applicant has completed (or the variance is conditioned on completion) all feasible alterations to the structure that can be made to cause the structure to conform, or more closely conform, to the building height provisions of the Zoning Code; (b) That aside from any feasible alterations as described in subsection (a), the applicant has provided credible and convincing evidence that there is no feasible alteration that would cause the structure to conform, or more closely conform to the building height provisions of the Zoning Code; (c) The structure complies in all other respects with the provisions of Title 20 and Title 15 of the Newport Beach Municipal Code. -3- (d) The property owner agrees to record, and does record, a covenant approved as to form and content by the City Attorney, that states, among other things that: (i) the structure is the subject of a special circumstance variance; (ii) the property owner will bring the structure into compliance with the height limits in the Zoning Code if the Planning Director determines, at such time as the property owner applies for any subsequent building permit, that alteration of the structure to conform to the height limits in the Zoning Code is feasible; and (iii) that the property owner will indemnify, defend and hold harmless the City and its officers and employees with respect to any claim or litigation in any way related to the special circumstance variance. (e) For the purposes of this ordinance, the term feasible alteration(s) shall mean a modification of the structure that involves removal and replacement of roofing (shingles, slates, tiles, etc.), the removal of interior or exterior finishes (dry wall, stucco, plaster etc. etc.) but does not include the removal, alteration or replacement of supporting members of the structure such as trusses, load- bearing walls, columns, beams, or girders unless the Planning Director determines that the limited removal, replacement or alteration of structural elements that pertain directly to the portion of the structure that exceeds the height limit in the Zoning Code can be accomplished without any impact on the remainder of the structure. SECTION 3: The Planning Director shall conduct a hearing on any application for a special circumstance variance. Written notice of the hearing shall be given to all owners of real property, as determined by the latest equalized assessment roll, located within 300 feet, inclusive of public property and public rights of way, of the exterior boundaries of the property that is the subject of the application. Testimony at the hearing shall be strictly limited #q whether the property is eligible for a special variance and whether there is a feasible 'Iteration that would cause the property to conform, or more closely conform, to the height limit in the Zoning Code. The Planning Director shall not consider testimony or comments on other subjects including, without limitation, the impact of the excessive structure height on any adjacent property or any view from or to any adjacent property. The Planning Director may, prior to any hearing, establish a sixty (60) minute limit on testimony. SECTION 4: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 5: me 9 0 The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of November, 2003, and adopted on the day of November, 2003, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F: \users\cat \shared \da \Ordinance \ProSpeCirVad 110703.doc -5- -T 5il n i�- ),� -zoo SPECIAL CIRCUMSTANCE VARIANCE PROCEDURES THE PROBLEM • ARCHITECT SUBMITTED SURVEYS THAT DON'T ACCURATELY REFLECT TOPOGRAPHY OF LOT AND CONTAIN FORGED STAMPS /SIGNATURES • BUILDING PERMITS ISSUED ON BASIS OF SURVEYS SHOWING ELEVATIONS HIGHER THAN ACTUAL GRADE • STAFF REASONABLY RELIED ON THE SURVEYS • THESE BUILDING PERMITS AUTHORIZE HOMES THAT ARE TALLER THAN ZONING CODE ALLOWS TOTAL NUMBER OF PROJECTS WITHIN THE LAST 3 YEARS: 32 *CONSTRUCTION COMPLETED & BUILDINGS OCCUPIED: 12 *UNDER CONSTRUCTION: 13 *IN PLAN REVIEW: 7 -PROJECTS UNDER CONSTRUCTION: 13 *NUMBER OF PROJECTS ISSUED STOP WORK ORDER: 11 *REVISED DRAWINGS APPROVED & CONSTRUCTION RESUMED: 1 -PROJECTS REMAINING UNDER CONSTRUCTION THAT ARE STOPPED: 10 2 3 3 rl ri� - T.., - -16 m p Fu t, 9 1, WO f J 6 10 It 7777� • 12 NORMAL VARIANCE • REQUIRES FACTUAL BASIS TO SUPPORT A SERIES OF FINDINGS • MUST FIND UNIQUE CIRCUMSTANCES APPLICABLE TO THE PARCEL - SUCH AS SIZE, SHAPE OR GRADE • MUST FIND VARIANCE IS NECESSARY TO PRESERVE PROPERTY RIGHT • MUST NOT BE A SPECIAL PRIVILEGE ALTERNATIVES • DO NOTHING • REQUIRE ALL PROPERTIES TO CONFORM - THIS MAY MEAN CITY SUES OWNERS WHOSE HOMES HAVE BEEN ALREADY BEEN OCCUPIED • REQUIRE PROPERTIES TO CONFORM IF FEASIBLE -AND CREATE SPECIAL PROCESS FOR THIS MATTER ONLY 13 PROPOSED ORDINANCE • WOULD AUTHORIZE PLANNING DIRECTOR TO GRANT SPECIAL CIRCUMSTANCE VARIANCE • ONLY APPLIES TO HOMES THAT HAVE BEEN BUILT OR ALMOST COMPLETE • SPECIAL VARIANCE MAY BE GRANTED ONLY IF NOT FEASIBLE TO CONFORM • FEASIBLE MEANS NO STRUCTURAL ALTERATIONS UNLESS PLANNING DIRECTOR DETERMINES NO IMPACT ON REMAINDER OF STRUCTURE PROCESS • PLANNING DIRECTOR SETS A HEARING DATE • GIVES NOTICE TO OWNERS WITHIN 300 FEET • HEARING LIMITED TO ISSUE OF FEASIBILITY • ONE HOUR LIMIT ON TESTIMONY • PLANNING DIRECTOR DECISION FINAL 14 3 I I I 'ices 0 7, RU ip A,