HomeMy WebLinkAbout11 - Documents received after agenda preparationRESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH, APPROVING LOT MERGER NO. LM2011 -002 TO MERGE
THE FOLLOWING PROPERTIES, UNDER COMMON OWNERSHIP:
PORTIONS OF LOTS 4, 5, AND 6 OF BLOCK 34 LOCATED IN
CORONA DEL MAR, MORE COMMONLY KNOWN AS 2808 AND 2812
OCEAN BOULEVARD (PA2011 -141).
THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
An application was filed by the John Guida Trust and the Julie Guida Trust, with respect to
properties located at 2808 and 2812 Ocean Boulevard, and legally described as Portions of Lots
4, 5, and 6 of Block 34 of Corona del Mar requesting approval of a lot merger.
2. The applicants propose a lot merger for the following property under common ownership:
portions of Lots 4, 5, and 6 of Block 34 located in Corona del Mar. Also included in the
application is a request to waive the requirement to file a parcel map.
3. The subject property is located within the Single -Unit Residential (R -1) Zoning District and the
General Plan Land Use Element category is Single -Unit Residential Detached (RS -D) and the
subject property is not identified as a housinq opportunity site in the inventory contained in the
Housing Element.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan category is
Single -Unit Residential Detached (RSD -B).
5. A public hearing was held by the Zoning Administrator on September 14, 2011, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the Newport Beach Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the Zoning
Administrator at this meeting.
6. Based on the facts of finding for approval and subject to the conditions of approval in the
Zoning Administrator Action Letter, the Zoning Administrator approved the proposed lot
merger application.
7. On September 23, 2011, the Zoning Administrator's decision to approve Lot Merger No.
LM2011 -022 was appealed by Mr. Clifford Jones (2800 Ocean Boulevard), Ms. Joan Campbell
(2811 Ocean Lane), and Mr. John Silva (2821 Ocean Lane).
8. A public hearing was held by the Planning Commission on October 20, 2011, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. The Planning
Commission considered evidence, both written and oral presented at this meeting. A notice of
time, place and purpose of the meeting was given in accordance with the Newport Beach
Municipal Code. Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this meeting.
City Council Resolution No. _
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9. The Planning Commission determined that the required findings for approval could not be
made and reversed the decision for approval of the Zoning Administrator thereby denying the
application.
10. On October 27, 2011, Mr. John Guida filed an appeal of the Planning Commission's action.
11. A public hearing was held by the City Council on January 24, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal Code.
12. The applicant requested that the City Council continue the appeal in order to allow him time to
develop and present voluntary alternative development standards more restrictive than those
required by the Zoning Code for development of the merged property.
13. The City Council voted unanimously to continue the hearing and refer the matter back to the
Planning Commission for reconsideration, directing the Planning Commission to make a
recommendation of approval or denial of the lot merger based on a review of the applicant's
proposed alternative development standards.
14. A public hearing was held by the Pfanning Commission on March 22, 2012, in the City Hall
Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place
and purpose of the meeting was given in accordance with the Newport Beach Municipal Code.
Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this meeting.
15. At the hearing, the applicant voluntarily proposed alternative development standards which are
more restrictive than those required by the Zoning Code: 1.0 floor area limit (FAL), 6- foot -side
setbacks, and maximum height - 15 feet 6 inches measured from an established grade of 70.2'
(NAVD88), which is calculated pursuant to the Zoning Code requirements. The applicant
proposed these alternative development standards with the goal of ensuring that the mass and
scale of future development on the merged property would be compatible with the neighboring
properties and surrounding area.
16. The Planning Commission recommended approval of the lot merger to the City Council with
alternative development standards proposed by the applicant, plus additional restrictions that
limit the floor area to 0.75 of the buildable area, and reduce the height limit proposed by the
applicant by 3 feet by measuring from an established grade of 67.2' (NAVD88) rather than
70.2' (NAVD88) as required by the Zoning Code and proposed by the applicant, and subject to
enforcement by the City and the property owners at 2811 and 2821 Ocean Lane.
17. A public hearing was held by the City Council on April 24, 2012, in the City Hall Council
Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and
purpose of the meeting was given in accordance with the Newport Beach Municipal Code.
18. A memorandum received from staff recommended continuation of the item to May 8, 2012, to
allow the applicant sufficient time to prepare and execute a restricted covenant that would include
development standards as voluntarily proposed by the applicant. The City Council approved a
motion to continue the item to May 8, 2012.
19. A public hearing was held by the City Council on May 8, 2012, in the City Hall Council Chambers,
3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the
City Council Resolution No. _
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meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both
written and oral, was presented to, and considered by, the City Council at this meeting.
20. For the public hearing, the applicant provided a signed document entitled "Restrictive
Covenant." The document states that the applicant will comply with the following voluntarily
proposed alternative development standards:
U Floor Area Limit (FAL):
1.0 (1.0 x 9,488.02 square feet = 9,488.02 square feet)
Subterranean basements shall not be included in maximum FAL (per Newport
Beach Zoning Code)
o Maximum height for flat roof:
- 34 percent up to 15 feet 6 inches (floor of roof deck)*
- 33 percent up to 15 feet (measured to top of roof)
- 33 percent up to 14 feet (measured to top of roof)
- "Established Grade" for the purpose of measuring height for the principal structure
shall be 70.2' (NAVD88)
*Roof deck railings shall be transparent. Roof deck railings may exceed the maximum
height, but shall be no higher than the minimum height required by the latest California
Building Code.
o Setbacks:
- Front — 20 feet
- Rear — 10 feet
- Right Side — 6 feet
- Left Side — 6 feet
21. Based on the following facts of finding for approval and subject to the attached Conditions of
Approval, the City Council approved the proposed lot merger application reversing the
Planning Commission's decision of denial at its October 20, 2011, meeting.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This project has been determined to be categorically exempt under the requirements of the
California Environmental Quality Act Guidelines under Section 15305 (Class 5: Minor
Alterations in Land Use Limitations), Section 15301 (Class 1: Existing Facilties), and Section
15303 (Class 3: New Construction or Conversion of Small Structures). because it has no
potential to have a significant effect on the environment
2. Class 5 exempts projects which consist of minor alterations in land use limitations in areas with
an average slope of less than twenty percent, which do not result in any changes in land use or in
density, including but not limited to, minor lot line adjustments not resulting in the creation of any
new parcel. The existing and proposed properties have a slope less than twenty percent. The
Land Use Element of the General Plan designates the subject properties as Single -Unit
Residential Detached (RS -D), which is intended to provide primarily for single - family residential
units on a single legal lot and does not include condominiums or cooperative housing. The
Coastal Land Use Plan designates the properties as Single -Unit Residential Detached (RSD -B)
City Council Resolution No. _
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which provides for density ranges from 6.0 -9.9 DU /AC. The Zoning Code designation is Single -
Unit Residential (R -1), which is also intended for single - family residential development. The
existing development of single -unit dwellings on each property and the proposed development of
a single -unit dwelling on the merged site are consistent with these designations.
3. Class 1 exempts projects that consist of a proposed activity, which will involve negligible or no
expansion of use existing at the time the exemption is granted and includes demolition and
removal of up to three single - family residences in an urbanized area.
residential zone.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 19.68.030.H of Title 19 (Subdivision Code: Lot Mergers, Required
Findings) of the Newport Beach Municipal Code, the following findings and facts in support of such
findings are set forth:
Finding
A. Approval of the merger will not, under the circumstances of this 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 lot merger is consistent with the legislative intent of Title 19.
Facts in Support of the Finding:
A -1. The future development on the proposed parcel will comply with the Zoning Code
development standards.
A -2. The proposed merger will not cause future development to impact public views of the ocean as
no public view presently exists.
A -3. The project site described in the proposal consists of legal building sites.
A -4. The lot merger to combine the existing legal lots by removing the interior lot lines between them
will not result in the creation of additional parcels.
A -5. The project is in an area with an average slope less than 20 percent and no changes in land
use or increase in density will occur as a result of the merger.
Finding
B. The lots to be merged are under common fee ownership at the time of the merger.
Facts in Support of the Finding:
B -1. The portions of lots 4, 5, and 6 to be merged are under common ownership,
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Finding
C. The lots as merged will be consistent or will be more closely compatible with the applicable
zoning regulations and will be consistent with other regulations relating to the subject property
including, but not limited to, the General Plan and any applicable Coastal Plan or Specific
Plan.
Facts in Support of the Finding:
C -1. The previously existing single -unit dwellings located on the subject sites will be demolished, and
the proposed lot would be redeveloped with a new single -unit dwelling. Section 20.18.030 of the
Zoning Code establishes minimum lot area and width requirements. Each of the two existing lots
meet the minimum lot area required, but do not meet the minimum lot width required (50 feet).
The proposed merger would create one lot, which would comply with the minimum lot width and
lot area standards required by the Zoning Code.
C -2. The Land Use Element of the General Plan designates the subject properties as Single -Unit
Residential Detached (RS -D), which is intended to provide primarily for single - family residential
units on a single legal lot and does not include condominiums or cooperative housing. The
Housing Element does not identify the existing lots as a housing opportunity site in the residenital
development inventory. The Coastal Land Use Plan designates the properties as Single -Unit
Residential Detached (RSD -B) which provides for density ranges from 6.0 -9.9 DU /AC. The
Zoning Code designation is Single -Unit Residential (R -1), which is also intended for single - family
residential development. The existing development of single -unit dwellings on each property and
the proposed development of a single -unit dwelling on the merged site are consistent with these
designations.
Finding
D. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a result of
the merger.
Facts in Support of the Finding:
D -1. Vehicular access to and from the subject site and adjacent properties is available via an ingress
and egress easement at the rear of the site. Should the ingress and egress easement be
terminated, vehicular access is possible from Ocean Boulevard at the front of the existing or
merged parcels.
Finding
The lots as merged will be consistent with the surrounding pattern of development and will not
create an excessively large lot that is not compatible with the surrounding development.
Facts in Support of the Finding:
E -1. Corona del Mar consists of lots of varying shapes and sizes. The subject lots, as merged, will
result in a parcel with a width of 80 feet and area of 13,678 square feet. Other nearby lots on
Ocean Boulevard have lot widths as wide as 73 feet and area as large as 13,325 square feet.
The merger of the two lots it will not create an excessively large lot in comparison to many of the
existing lots in the surrounding area.
City Council Resolution No. _
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E -2. Under the City's Zoning Ordinance, development within the R -1 (Single -Unit Residential) Zoning
District within Corona del Mar can have a maximum floor area limit (FAL) 1.5 times the buildable
area of the lot. The applicant has provided a signed "Restrictive Covenant" setting forth more
restrictive alternative development standards for height, side setbacks, and maximum floor area,
which will result in development consistent with properties in the surrounding area.
Finding
F. That the proposed division of land complies with requirements as to area, improvement and
design, flood water drainage control, appropriate improved public roads and property access,
sanitary disposal facilities, water supply availability, environmental protection, and other
applicable requirements of this title, the Zoning Code, the General Plan, and any applicable
Coastal Plan or Specific Plan.
Facts in Support of the Finding:
F -1. The existing lots do not meet the lot width standards of the Zoning Code. The proposed lot would
comply with the design standards and improvements required by the Zoning Code, General Plan,
and Coastal Land Use Plan.
F -2. The proposed lot merger combines the lot portions into a single parcel of land and does not result
in the elimination of more than three lot portions.
F -3. Approval of the proposed lot merger would remove the existing interior lot lines, and allow the
property to be redeveloped as a single site. The proposed lot would comply with all design
standards and improvements required for new subdivisions by Title 19 and the Zoning Code. The
Land Use Element of the General Plan designates the subject properties as Single -Unit
Residential Detached (RS -D), which is intended to provide primarily for single - family residential
units on a single legal lot and does not include condominiums or cooperative housing. The
Housing Element does not identify the existing lots as a housing opportunity site in the residential
development inventory. The Coastal Land Use Plan designates the properties as Single -Unit
Residential Detached (RSD -B) which provides for density ranges from 6.0 -9.9 DU /AC. The
Zoning Code designation is Single -Unit Residential (R -1), which is also intended for single - family
residential development. The existing development of single -unit dwellings on each property and
the proposed development of a single -unit dwelling on the merged site are consistent with these
designations.
SECTION 4. DECISION.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY
RESOLVE TO:
Approve Lot Merger No. LM2011 -002 with the alternative development standards as
;e mendedytvoluntarily proposed by the applicant ^ MaFAI; ",
244-2, and waive�ef the requirement to file a parcel map for property, under common
ownership, consisting of portions of Lots 4, 5, and 6 of Block 34 located in Corona del Mar,
and subject to the conditions set forth in Exhibit A, which is attached hereto and incorporated
by reference. This approval reverses the decision of denial of the Planning Commission on
October 20, 2011.
2. This resolution shall take effect immediately upon its adoption by the City Council, and the City
Clerk shall certify the vote adopting the resolution.
City Council Resolution No. _
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3. This approval was based on the particulars of the individual case and does not in and of itself
or in combination with other approvals in the vicinity or Citywide constitute a precedent for
future approvals or decisions.
4. This resolution was approved, passed and adopted at a regular meeting of the City Council of the
City of Newport Beach, held on the 8th day of May, 2012.
MAYOR
ATTEST:
CITY CLERK
City Council Resolution No.
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EXHIBIT "A"
CONDITIONS OF APPROVAL
1. Prior to recordation of the lot merger, the applicant shall provide a copy of a recorded
instrument in the form provided to the City Council at the time of the hearing of this matter
which is attached hereto, setting forth the voluntary alternative development standards
proposed by the applicant, that will apply to all future development of the merged properties
and be superior and not subordinate to anv mortgage or lien on the merged properties and the
instrument shall remain in effect unless and until— terminated by written agreement by the
Community Development Director of the City of Newport Beach.
2. Prior to recordation of the lot merger, at least one of the existing dwelling units shall be
demolished. At no time shall there be more than one dwelling unit located on the merged parcel.
3. Prior to recordation of the lot merger, grant deeds indicating any changes in titles of ownership
should be submitted to the Public Works Department for review and approval.
4. The lot merger and grant deeds reviewed and approved by the Public Works Department
should be filed concurrently with the County Recorder and County Assessor's Offices.
5. Prior to issuance of the building permit for any new construction on the property, the Planning
Division shall verify recordation of the lot merger with the County Recorder The design of the
development shall not conflict with any easements acquired by the public at large for access
through or use of property within the proposed development.
6. All improvements shall be constructed as required by Ordinance and the Public Works
Department.
7. The existing broken and /or otherwise damaged concrete sidewalk panels along the Ocean
Boulevard frontage shall be reconstructed. Limits of the reconstruction shall be determined by
the City Public Works Inspector.
8. All existing drainage facilities in the public right -of -way, including the existing curb drains along
Ocean Boulevard, shall be retrofitted to comply with the City's on -site, non -storm runoff
retention requirements.
9. All on -site drainage shall comply with the latest City Water Quality requirements.
10. All existing private, non - standard improvements within the public right -of -way and /or
extensions of private, non - standard improvements into the public right -of -way fronting the
development site shall be removed.
11. New sod or low groundcovers, as approved by the City, shall be installed within the parkway
fronting the development site along Ocean Boulevard.
12. An encroachment permit is required for all work activities within the public right -of -way.
13. All improvements shall comply with the City's sight distance requirement. See City Standard
11 0 -L.
City Council Resolution No. _
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14. The existing sewer lateral to be used for the future dwelling unit shall have a sewer cleanout
installed within the utilities easement per STD - 406 -L. All other laterals to be abandoned shall
be capped at the property line.
15. All unused water services to be abandoned shall be capped at the corporation stop.
16. In case of damage done to public improvements surrounding the development site by the
private construction, additional reconstruction within the public right -of -way could be required
at the discretion of the Public Works Inspector.
17. All applicable Public Works Department plan check fees shall be paid prior to review of the lot
merger and grant deeds.
18. No building permits may be issued until the appeal period has expired, unless otherwise
approved by the Planning Division.
19. This approval shall expire unless exercised within 24 months from the date of approval as
specified in Section 20.93.050 of the Newport Beach Municipal Code.
20. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless City,
its City Council, its boards and commissions, officials, officers, employees, and agents from and
against any and all claims, demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever which may
arise from or in any manner relate (directly or indirectly) to City's approval of the 2808 and 2812
Ocean Boulevard Lot Merger including, but not limited to, Lot Merger No. LM2011 -002
(PA2011 -141). This indemnification shall include, but not be limited to, damages awarded against
the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such
claim, action, causes of action, suit or proceeding whether incurred by applicant, City, and /or the
parties initiating or bringing such proceeding. The applicant shall indemnify the City for all of
City's costs, attorneys' fees, and damages which City incurs in enforcing the indemnification
provisions set forth in this condition. The applicant shall pay to the City upon demand any
amount owed to the City pursuant to the indemnification requirements prescribed in this condition.
RECORDING REQUESTED
BY AND WHEN RECORDED
PLEASE RETURN TO:
CITY OF NEWPORT BEACH
City Clerk
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Exempt from recording fees pursuant
to Government Code section 27383
THIS SPACE FOR RECORDER'S USE ONLY
RESTRICTIVE COVENANT
The undersigned hereby certify that we are the owners of the following described real
property (the "Property ") located in the City of Newport Beach, County of Orange, State
of California, commonly known as 2808 Ocean Boulevard and 2812 Ocean Boulevard,
Newport Beach, CA, 92663; Assessor's Parcel Numbers: 052 061 26 and 052 061 25;
more particularly described as follows:
Portions of Lots 4, 5, and 6 of Block 34 of Corona del Mar
Parties: John Guida as Trustee of the John Guida Trust dated
September 17, 2010, and Julie Guida as Trustee of the
Julie Guida Trust dated September 17, 2010, hereafter the
"Owners."
Mailing address: 8 Old Course Drive
Newport Beach, CA 92660
City of Newport Beach, a Municipal Corporation, the "City."
Mailing address Planning Department
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Whereas, the Owners have applied to the City for merger of the two adjacent lots
which comprise the Property;
Whereas, in order for the City Council to make the findings to approve the
Owners' application for merger of the two adjacent lots, the Owners have agreed to
voluntarily place restrictions upon the merged lot to limit the maximum floor area of any
structure to be built upon the merged lot;
Whereas, so the City Council can make the findings to merge the lots, the
Owners have agreed to place restrictions upon the merged lot to limit the maximum
height of the new flat -roof single family dwelling to be built upon the merged lot;
Now, therefore, for valuable consideration the receipt of which is hereby
acknowledged, the Owners hereby promise, declare and agree as follows:
1. The height of the new flat -roof single family dwelling constructed upon the
merged lot, property, measured from an Established Grade (per NAVD88) of 70.2 feet,
shall not exceed:
a) 15 feet, 6 inches (floor to roof deck) for 34 percent of the Floor Area
Limit of the primary structure;
b) 15 feet, measured to top of roof, for 33 percent of the Floor Area Limit
of the primary structure;
c) 14 feet, measured to top of roof for 33 percent of the Floor Area Limit of
the primary structure; and
d) Roof deck railings may exceed these maximum heights, but railings
shall be transparent and shall be no higher than the higher of the minimum height
required by the building code in effect at the time of construction or the minimum
height required by the building code, as amended, after construction.
2. For any structure constructed upon the merged lot, property, the Floor
Area Limit (FAL), as defined in the City's Zoning Code in effect on the date this
Covenant is recorded, shall not exceed 1.0, provided that the square footage of the
structure's subterranean level shall not be included in calculating the FAL.
3. For any structure constructed upon the merged lot, property, the setbacks
shall comply with the following:
a) Front — no less than twenty (20) feet;
b) Rear — no less than ten (10) feet;
c) Right side — no less than six (6) feet; and
d) Left side - no less than six (6) feet.
4. In all other respects, the property and any structure constructed thereon
shall comply with all development standards required by the City's Zoning Code for R -1
(Single Unit Residential) in effect at the time of construction.
5. This Restrictive Covenant shall run with the merged lot, property, and shall -
be binding upon the Owners, and any and all future owners, encumbrances, successors
in interest, heirs, and assignees who acquire, in any way, all or any portion of the title to
the real property described above, and shall continue in effect until such time as the
Community Development Director of the City of Newport Beach terminates this
Covenant via written instruments.
6. The Owners affirmatively represent and warrant that this is voluntary and that
the persons executing this agreement have authority to execute the agreement and bind
the owners hereto.
DATED: S ' F ^/ ;�_
OWNERS:
John Guida, Trustee J lie Guida, Trustee
John Guida Trust Julie Guida Trust
u /d /t September 17, 2010 u /d /t September 17, 2010
CERTIFICATE OF ACKNOWLEDGEMENT
State of California )
County of ORANGE)
On before me, , Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature on the instrument the
person, or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of California )
County of ORANGE)
On before me, , Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature on the instrument the
person, or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
(Seal)
Brown, Leilani
From: Harp, Aaron
Sent: Tuesday, May 08, 2012 10:39 AM etCElU ,. E Gia�
To: Brown, Leilani PRi":i6D: "tt'"
Cc: Brandt, Kim; Mulvihill, Leonie
Subject: FW: ••• IMPORTANT FINAL DETAILS re: THE GUIDA LOT MERGER •••
Attachments: New Risk of Curb Cut.pdf; Comment CDM Today.pdf; Campbell Impact.jpg; Silva Impact.jpg; SILVA
SUNSET VIEW.jpg
FYI
From: Jeffrey DuFine jmailto:okcd(alflash.net1
Sent: Tuesday, May 08, 2012 10:07 AM
To: Harp, Aaron; Mulvihill, Leonie
Subject: ••a IMPORTANT FINAL DETAILS re: THE GUIDA LOT MERGER •••
Dear Aaron and Leoni,
I am the son in law of the Robin & Joan Campbell. Because, in his conversation with you, Cliff Jones has told you
that we would not spring any surprises on you, please read the following pertinent risks associated with this merger.
Also, I am sure you are now aware that Mr. Stephen Miles is representing us.
I truly respect the difficult job the entire city staff does to judge each project on it's own merits. I have to believe
you will see that this project has too many real risks associated with it. It is not a merger in a vacuum. I hope you
grasp the positively negative impacts that accompany this merger. This is a project that clearly does not conform with
the protections that the Lot Merger Ordinance offers.
The fact is that the following are insurmountable problems that Mr. Guida's lobbyist, Ms. Coralee Newman of
Government Solutions, did not foresee and cannot address.
Because this matter is before the City Council tonight, please consider the following:
(Please take a quick look at the enclosures regarding risk sure to flow from this merger.)
This is not simply a Lot Merger anymore. The City has asked for and received building plans and deed restrictions
in an effort to work this out. There are definite negative impacts with risky ramifications that will result from granting
this merger. These will clearly result in many foreseeable problems for the city, public and tourists alike. In addition,
if Mr. Guida loses the right to use the road to the rear of his property, and the safety impacts of a curb cut are too
great, he will have a merged lot with no access.
You can't put the cart before the horse. As we know what Mr. Guida intends to build, with it's enormous 5,000 —
6,000 sq.ft. basement and no certain access, there are still many hurdles for Mr. Guida to cross (covenants, access,
CEQA, Coastal Commission, Traffic Safety) before this most problematical merger can even be considered.
Also to be considered is that there are no commercial or private vehicles associated with construction allowed on a
road where personal ingress and egress is all that is permitted. Now you have the specter of cranes, dump trucks (to
haul away 6,000 feet of excavated dirt) entering on Ocean Boulevard at Lookout Point (a blind corner) during the
height of the tourist season to deal with.
As you know, each merger must be looked at on an individual basis with it's associated benefits and risks. It should
be clear by now that we oppose the merger because of the lot's size and the size of the structure to be built.
Now, the burden has been shifted to the City, it's staff, traffic engineers to explain how a curb cut at that point on
Ocean Blvd. won't have real and potential detrimental impact to the public health, safety and welfare. It would he
unwise at best and perhaps negligent to overlook this and other impacts sure to occur if the merger is approved. Also,
an excavation of that size at that point The bottom of the hill directly above Lookout Point and the bluff) for Mr.
Guida's bowling alleys will not sit well with the Coastal Commission.
The results stemming from this merger are staggering. It will affect more than just the Campbells and the
Silvas. It will severely impact:
1. Tourism
2. Traffic Flow
3. Pedestrian Safety
4. Motorist Safety
5. Could compromise the hill above and the bluff below Lookout Point
6. City Treasury and Insurance would be affected from the increased risks.
Thanks so much for the time and consideration all the Council Members have given.
Jeff DuFine
Lucy Campbell
RISK & IMPACT of CURB CURT on OCEAN BLVD:
Since, the City is neither mandated or compelled to grant a curb cut on Ocean Boulevard, the Lot
Merger Ordinance findings are not satisfied and must result in denial: "Neither the lots as merged nor
adjoining parcels will be deprived of legal access as a result of the merger." Granting of a curb cut
would be fraught with much potential cost and harm to the city, it's residents, and the many tourists who
flock to that area.
The curb cut in question would be on Ocean Boulevard across from Lookout Point. It is a blind
corner leading to a major Corona Del Mar street. It is a point where unfettered foot traffic across Ocean
Blvd. is at it's greatest. In order to accommodate one man and one merged lot the following would have
to occur for the safety of pedestrians and motorists alike.
1. A stop sign or traffic light at that corner would have to be installed.
2. A crosswalk for the protection pedestrians in the face of motorists dealing
with driveway outflow.
3. When the rear access is removed, all construction vehicles must enter and/or
park from Ocean Blvd.
4. An evaluation and risk analysis must be undertaken (at great expense) by an
independent expert to guarantee the safety of pedestrians & motorists put at
increased risk by this curb cut.
5. Potential lawsuits and hike in insurance premiums would be immense if the
curb cut resulted in any accidents due to the increased risks stemming from
their approval and installation.
6. All the above would come at great cost to the Newport City treasury and
would surely be opposed by the constituents who would see no benefit from
this merger and curb cut.
CURB CUTS & OTHER ALTERATIONS TO PUBLIC STREETS
Chapter 13.06.050: Standards for Issuance of Permit.
The Public Works Director shall issue a permit hereunder when he finds:
That the work will conform to the requirements set forth in the driveway approach policy adopted by
the City Council, as well as the Standard Specifications of the City for public work of like character;
* 2. That the project as proposed will not unreasonably interfere with vehicular and pedestrian traffic, the
demand and necessity for parking spaces and the means of ingress and caress to and from the property
affected and adjacent properties:
"` 3. That the health, welfare and safety of the public will not be unreasonably impaired (Ord. 1320 ti 1
(part): December 8, 1969)
Finally, what is being proposed is a 13,699 sq.ft. lot with a 22' tall (top of roof railings) "one story
house" with two nonfunctional chimneys rising above the railing an additional 4 feet. Additionally, the
5,000 sq.ft. basement (not considered in Mr. Guida's 1.0 self imposed FAR) is extremely problematical. It
would be one of the largest subterranean excavations in Corona Del Mar. It is at the base of the slope, on
the North side of Ocean Blvd., and mere yards above the "Lookout Point" bluff. I believe that it could
severely undermine the entire hill and that the Coastal Commission would have to address this.
I believe that the public and politicians alike can see the wisdom reflected in this quote from
former President Ronald Reagan;
`Protecting the rights of even the least individual among us is basically the only excuse the
government has for even existing......"
19.04.020 Purpose
1. The creation of subdivisions which are consistent with and serve to
implement the policies and provisions of the General Plan;
2. The conservation of open space in the City;
3. The protection of landowners, lot purchasers and surrounding residents;
4. The provision of orderly and controlled growth within the City;
5. The provision of adequate traffic circulation, utilities and other services;
6. The protection and stabilization of property values; and
7. The preservation of the public health, safety and general welfare.
Lot Merger
An application for a Lot Merger may be accepted when it can be determined that the proposal complies
with the following specifications: (Chapter 19.68)
} 1. Approval of the merger will not, under the circumstances of this 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 lot merger is
consistent with the legislative intent of this title.
2. The lots to be merged are under common fee ownership at the time of the merger.
3. The lots as merged will be consistent or will be more closely compatible with the applicable zoning
regulations and will be consistent with other regulations relating to the subject property including but not
limited to. the General Plan and any applicable Coastal Plan or Specific Plan
4. Neither the lots as merged nor adjoining parcels will be deprived of legal access as a result of
the merger.
5. The lots as merged will be consistent with the surrounding pattern of development and will not create
an excessively large lot that is not compatible with the surrounding development
The Guida project cannot be approved and is not able to be voted on because there are too many
open questions as to it's detrimental impact to public health, welfare and safety......
1. Will Mr. Guida be able to continue to use the current road behind his house as a driveway?
2. 1s the City mandated to give a curb cut that will affect traffic flow, and the liability risk to the city
front the increased danger to motorists and pedestrians.
3. What are the ramifications to the public of a curb cut for Mr. Guida to install a drive way onto Ocean
Blvd. on a blind corner with one of the largest anion is of pedestrian traffic in the Cih'?
4. Should there be all environmental impact study filed addressing a driveway before the Council takes
anV action?
5. What is the impact of all the construction vehicles entering, leaving and parking on Ocean Blvd.
opposite Lookout Point daring the height of the tourist season?
6. What is the impact of a 5,000 — 6,000 s9;ff. excavation at the base of the hill yards fi-om the bluff at
Lookout Pont?
7. Shouldn't Mr. Guida be required to provide a certificate finny the applicable Landmark or Registry
Commission that his plan is in compliance with applicable standards as to demolition of a rare and
historic raid century modern house overlooking the ocean?
TERMINATI ®N OF PERMISSI ®N TO USE ROAD:
1. The parcels subject to the merge are 2 parcels of a 5 parcel re- subdivision that occurred in the 1950s.
These 5 lots at that time were 4 lots. In order to make each of the lots more developable, they were
reconfigured into 5 lots, resulting in 5 lots that are inherently tied together through their configuration,
access easements and restrictive height covenant. The merging of these two lots exacts an extreme
hardship for the remaining three lots and other nearby lots.
2. if the Lot Merger is approved Mr. Cuida's permission to use the 96' road running through the
Campbell and Silva properties to the rear of his property will be terminated.
3. A view covenant, preventing anyone from blocking the view of the easement owners and relating to
the size of the structure, limits it to what was a standard 'I story' house of that type in 1951.
4. As to the intention of a 'I story' house, we have the actual houses built by the original subdivider at the
time the 1951 covenant came into existence.
5. In order to maximize the value of the properties, the original owners put a ' I story' limit on the 3 front
properties in order to preserve the views of the rear properties. Also an easement and/ or permission to
use the 96' road to the front properties was granted quid pro quo for the preservation of said views. As a
part of this there were a total of I l deed restrictions and /or easements
6. Since this is a matter that must eventually be adjudicated in court (along with the I l other covenants
covering these 5 properties) no decision regarding access may be made until such time as all these matters
are resolved.
7. Lastly, under no circumstances can the road be used for commercial or private vehicles relating
to any and all construction to be done on Mr. Guida's property. Permission to use the road is only
for ingress or egress of the individual owners and is not intended for commercial vehicle use.
COMMENT IN CDM TODAY
January 19th, 2012
The size and /or configuration of a proposed house to be built on the combined parcels
is not the issue before the city. There were no building plans submitted to the planning
commission when it made its ruling to overturn the approval of the lot merge. The issue
is whether or not a lot merge in this particular location is appropriate and compatible
with the surrounding development. Pursuant to the zoning code, the approval of the lot
merge must not be detrimental to the health, safety, peace, comfort and general welfare
of persons residing in the neighborhood or be detrimental to property and improvements
in the neighborhood. While lot mergers within the city and more particularly in CdM have
been approved without significant opposition, they were approved based upon their
individual merits. As Jamie points out, lot mergers are not a bad thing, however, one
must dig deeper into the specifics of this case in order to make a judgment that is
consistent with our zoning code. The reason lot mergers require a hearing is because
each and every case is different and each case must be reviewed based upon its own
unique merits. Lot mergers are not uniformly acceptable in all cases. Sometimes the
impacts are too great to approve, otherwise, lot mergers would be allowable without
discretionary review. Pre - merge, these two lots, at 7,217 and 6,483 square feet, are
significantly larger than the 3,600 square foot typical lot size in CdM. Combined, these
lots will total 13,699 square feet allowing for a home of over 15,000 square feet to be
built. While there are parcels of this size in CdM along Ocean Boulevard, they are the
exception and not the rule. Unlike lots created at the time of the original subdivision of
CdM, the subject lots were created more recently via a re- subdivision of the original
CdM lot subdivision. The parcels subject to the merge are 2 parcels of a 5 parcel re-
subdivision that occurred in the 1950s. These 5 lots at that time were 4 lots. In order to
make each of the lots more developable, they were reconfigured into 5 lots, resulting in
5 lots that are inherently tied together through their configuration, access easements
and restrictive height covenant. The merging of these two lots exacts an extreme
hardship for the remaining three lots and other nearby lots. On a general note, lot
mergers are not without impacts. When 2 lots are merged, sideyard setbacks along the
common or merged lot line disappear. After a merge, the elimination of these sideyard
setbacks renders the combined lot with more buildable area than the sum of the
buildable area of the lots before they were merged. This allows greater building mass
and density than if the lots were not merged. Further, open space is lost in the area of
these disappearing sideyard setbacks. While this impact in many cases can be
negligible, in this case it is significant. We should not chastise applicants from making
bold applications, nor should we chastise imbedded residents from trying to protect
what they have. We should simply employ consistency in applying the codes that
govern our community. In this case, as evidenced by the planning commission's diligent
review and the support of several hundred residents signing a petition affirming their
support for the planning commission's decision, the city council should deny the
applicant's appeal and reject the lot merge.
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Harris, Lillian
From: Brown, Leilani
Sent: Tuesday, May 08, 2012 4:23 PM "RECEIVED AFTER AGENDA
To: Harris, Lillian PRINTED:" FW: 2808 and 2812 Ocean Boulevard Lot Merger (Item 11)
Attachments: Lot Merger Opposition Letter.MLG.050812.pdf J
From: Stephen Miles [mailto :smiles @mileslawgroup.coml
Sent: Tuesday, May 08, 2012 4:25 PM
To: Brown, Leilani
Cc: Mulvihill, Leonie
Subject: FW: 2808 and 2812 Ocean Boulevard Lot Merger (Item 11)
From: Stephen Miles j_ mailto :smiles@mileslawgroup.coml
Sent: Tuesday, May 08, 2012 4:05 PM
To: 'LBrown @newportbeach.ca.gov'
Cc: 'LMulvihill @newportbeach.ca.gov'
Subject: 2808 and 2812 Ocean Boulevard Lot Merger (Item 11)
Ms. Brown,
Attached for distribution to the City Council is written commentary concerning the aforementioned Agenda Item on this
evening's agenda. Please email this document to all members of the City Council and have copies made for their review
prior.
Thank you for your professional courtesy and assistance. We do apologize for the late transmittal.
Take care,
- -Steve
Stephen M. Miles, Esq., MSEL
3151 A;rwcy Avenue, Suite R -1 I Cosia Mesa, CA 92626 1 (71) 393 -3389
MILES • LAW GROUP
A Profess armor Corporoton
IMILES L-Aw GROUP
3151 Almay Avenue, Suite R -1 • Cesta Mcsa, CA 926.26
Phone: 714 364 0113 • Fax 714,556 3905 L A 0 5 E
smiles@mileslawgroup.com
May 8, 2012
A PROFESSIONAL CORPORATION
E 11919090,E N ' • E 9F0 ?LEIAE %!
VIA HAND DELIVERYAND ELECTRONIC [LBrown i aewportbeacb.ca.gov]
Honorable Mayor- Nancy Gardner &
Members of the Newport Beach City Council
c/o Leilani Brown, City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Re: 2808 and 2812 Ocean Boulevard Lot Merger Appeal of
Planning Commission Denial of Lot Merger No. LM 2011 -002 (Guida)
Honorable Mayor Gardner and Members of the Newport Beach City Council:
This Office respectfully writes on behalf of several stakeholders — including
environmental interests, historic preservationists, and community activists that include
Corona Del Mar property owners ( "Stakeholders ") with regard to the aforementioned Lot
Merger (the "Lot Merger "). These stakeholders, many that are residents in the immediate
area for several generations, will be directly impacted should the City Council sway from
the legally appropriate denial of the Lot Merger by the Planning Commission and
recommend any merger of two long- standing parcels that currently host historically
significant residences constructed in or about 1951. Notably, the residence at 2808 Ocean
Boulevard was constructed in the Eichler style and is believed to be a residence designed
by A. Quincy Jones, a noted architect and partner of Joseph Eichler.
Approval of the Lot Merger by way of a Class 5 Categorical Exemption would
result in an approval without a hard look at the mandatory requirements of the California
Environmental Quality Act (Cal. Pub. Res. Code § 21000 et seq.; "CEQA ") that apply to
the City of Newport Beach before committing to a "project" under CEQA. Moreover,
Stakeholders have several legal concerns with regard to California Planning & Zoning Law
( "CP &ZL ") and the City's local, municipal law and regulation. These concerns include
those written comments submitted to the City by "Mr. Clifford Jones and neighbors
opposed to the approval of the subject lot merger." (January 18, 2012 Memorandum to
MILES L-Aw GROUP
3151 Airway Avenue, Suite R -1 • Costa Mesa, CA 9)676
Fhone 714.364.0173 • Fax 714.556 3905 t A N 0 4 i E
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 2
A PROFESSIONAL CORPORATION
f N 4 1 A 0 4 Y, E N 1 • F N i P r! E it E 4 1
City Council from Ms. Kay Sims, Assistant Planner.) Notably, the 16 page written
commentary submitted by Melinda Luthin, Esq. on behalf of several residents and citizens
of Newport Beach (including our stakeholder clients), is incorporated herein by this
reference. No circumstances have changed since the Planning Commission's denial of the
Lot Merger and substantial evidence continues to support the Planning Commission's
determination that mandatory findings pursuant to Title 19 of the Newport Beach Code
Chapter 19.68 (Lot Merger Ordinance) could not be made.
An approval of the Lot Merger will violate CEQA and CP &ZL. Before taking any
such action, the City Council must study the obvious components of the "project" being
proposed by Guida, prepare the necessary environmental analysis that will address the
health and safety, traffic, land use, aesthetic and historic resource concerns raised by the
public, and make appropriate findings to support the Council's discretionary action. To
construe this action as simply a lot merger where a boundary line is removed would be an
egregious abuse of discretion. As noted by Guida's Representative, Ms. Coralee S.
Newman, Principal, Government Solutions, Inc., the appeal by Guida of the denial of the
Lot Merger was based on the Guida's residence and, in fact, architectural plans for the
Guida's residence were submitted to the City Council as a component of the Lot Merger
proceeding. The detail of what has been submitted is obvious by Ms. Newman's
conclusion that "the proposed home meets all of the city's zoning, planning, and building
standards," where the Guidas "redesigned their home several times to lower the roof
line... removed the rear roof deck and removed the associated solid guardrail and
eliminated the interior stairs and the elevator to the roof." The fact that the "project"
before you includes the proposed demolition of two historically- significant structures and
the detailed plans to construct one new residential structure cannot be ignored.
I. Approval of the Lot Merger Violates CEQA as a Precommitment to a Project
Without Conducting Environmental Analysis
Stakeholders believe that if the City Council approves the Lot Merger, the
Administrative Record and City Council Staff Report illustrate a precommitment to a
project prior to conducting any environmental analysis that is required by CEQA. CEQA
requires the City to prepare and "certify the completion of, an environmental impact report
on any project which they propose to carry out or approve that may have a significant
effect on the environment." (Cal. Pub. Res. Code § 21100(a); see also Pub. Res. Code §
MILES wV GROUP
3151 At. way Avenue. suite It -: -costa Mesa, CA 92626 A PROFESSIONAL CORPORATION
hone; 714.384.0173 • Fax 714.556 3905 t A N D U S E • E N P I R O N M E 8 T R T I T L E M E N T
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 4
to provide meaningful information for environmental assessment. (1) With
public projects, at the earliest feasible time, project sponsors shall
incorporate environmental considerations into project conceptualization,
design, and planning. CEQA compliance should be completed prior to
acquisition of a site for a public project. (2) To implement the above
principles, public agencies shall not undertake actions concerning the
proposed public project that would have a significant adverse effect or limit
the choice of alternatives or mitigation measures, before completion of
CEQA compliance. For example, agencies shall not:... (B) Otherwise take
any action which gives impetus to a planned or foreseeable project in a
manner that forecloses alternatives or mitigation measures that would
ordinarily be part of CEQA review of that public project."
(CEQA Guidelines § 15004(b), Emphasis added; See, also, Cedar Fair LLP
v. City of Santa Clara (2011) 194 Cal. App. 4th 1150, 1162 -63.)
The facts reflected in the Administrative Record before the Planning Commission
and this City Council are clear – the City is being asked to commit to a Lot Merger that
includes foreseeable demolition and development consequences prior to conducting
environmental analysis for this project. Proposed factual findings even go so far as to
establish a contingent access for the merger without any consideration of whether the
access on Ocean Boulevard is feasible —and if so —at what environmental cost to the
public. This out -of- sequence decision - making process, conducted without a scintilla of
environmental analysis, is a blatant violation of CEQA where projects require the
incorporation of environmental considerations at the earliest feasible time —not after -the-
fact. (CEQA Guidelines § 15004(b).)
"A fundamental purpose of an EIR is to provide decision makers with information
they can use in deciding whether to approve a proposed project, not to inform them of the
environmental effects of projects that they have already approved. "].) (Save Tara, 45
Cal.4th at 134; emphasis in original.) No information has been provided to the decision
makers (or the public) that can be used to decide whether to approve a project including the
merger of parcels, the demolition of historically - significant structures, and that results in
potentially unmitigated land use, traffic, and aesthetic impacts. The City Council Staff
Report does nothing more than show the City's potential commitment to a preordained
IMILES LAW GROUP
3151 Airway Avenue, Suite R 1 • Costa Mesa, CA 92626 A PROFESSIONAL CORPORATION
Phone: 714 384 01.73 • Fax 714 556 3905 L A N D U S E E N 4 1 n 0 8 •A E N 1 • E II 1 1 r L E V F N i
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 5
outcome and fails to address potential environmental effects associated with the Lot
Merger.
On a related topic, the City cannot ignore easements and restrictive covenants that
relate to the Guida project and the Lot Merger. The City's own draft resolution
exemplifies this "practical over the formal" approach. The draft City Resolution
recommending approval of the Lot Merger references a "recorded ingress and egress
easement" and further notes that if the easement is terminated "vehicular access is possible
from Ocean Boulevard at the front of the existing or merged parcels." (Draft City
Resolution at Page 4 of 9.) While the City fails to conduct any feasibility analysis of the
Ocean Boulevard access or the resulting environmental impacts associated with a curb cut,
the City resolution does reflect how easements and restrictive covenants are addressed in
the context of a discretionary approval.
Ill. A Class 5 Categorical Exemption for the Lot Merger Violates CEQA —
An Exception to the Exemption Exists
"The `foremost principle' in interpreting CEQA is that the Legislature intended
the act to be read so as to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language." (Conunanaities for a Better Environment
v. Calif Resources Agency (2002) 103 Cal. App. 4th 98, 109.) The EIR is the "heart" of
CEQA. (Dunn- Edwards v. BAAQMD (1992) 9 Cal.AppAth 644, 652.) CEQA requires
that an agency analyze the potential environmental impacts of its proposed actions in an
environmental impact report ( "EIR ") except in certain very limited circumstances. A
negative declaration may be prepared instead of an EIR only when a lead agency
determines that a project "would not have a significant effect on the environment." (Id.,
§ 21080(c).) Such a detennination may be made only if "[t]here is no substantial
evidence in light of the whole record before the lead agency" that such an impact may
occur. (M., § 21080(c)(1).) A negative declaration is improper, and an EIR is required,
whenever substantial evidence in the record supports a "fair argument" that significant
impacts may occur, even if other substantial evidence supports the opposite conclusion.
(Mejia v. Los Angeles (2005) 130 Cal.App.4th 322; Pocket Protectors v. Sacramento
(2005) 124 Cal.AppAth 903.) "Substantial evidence includes ... expert opinion." (Pub.
Res. Code § 21080(e)(1); CEQA Guidelines § 15064(f)(5).)
IMILES LAw GROUP
3151 Airway Avenue, Suite R•1 • COSte Mesc, :A 92626 A PROFESSIONAL CORPORATION
Phone: 714.384.0173 • Fax 714.556 3905 t 8 N D U S E • E N V C 8 0 N M E N T • E it F I T 1 E it E R 1
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 6
Here, the City didn't chose a CEQA shortcut, it chose to sidestep the requirements
of CEQA altogether by asserting that the Lot Merger qualifies for a Class 5 Categorical
Exemption. The Lot Merger and, more aptly, the Guida project, do not qualify for a
Categorical Exemption. A categorical exemption shall not be used for an activity where
there is a reasonable possibility that the activity will have a significant effect on the
environment due to unusual circumstances. (CEQA Guidelines § 15300.2 (c); Banker's
Hill v. City of San Diego (2006) 139 Cal.App.4th 249.) The "unusual circumstances" of
the proposed Lot Merger are very evident in the Administrative Record. This is not your
garden variety merger of two parcels of vacant land. The Lot Merger is of two long-
standing residential parcels that host two homes constructed in 1951 in the California
vernacular and Eichler style. The parcels were likewise restricted by easement and
covenant that reflects the common development in the neighborhood that occurred over 60
years ago and that currently exists today. The Lot Merger will impact historically -
significant resources and result in the loss of a dwelling unit in the coastal zone. Under
these circumstances alone, a Class 5 Categorical Exemption is wholly misplaced. The
CEQA Guidelines confirm this position: "A categorical exemption shall not be used for a
project which may cause a substantial adverse change in the significance of a historical
resource." (CEQA Guidelines § 15300.2(f); see also, CEQA Guidelines § 15064.5(a)(3),
(4) and (b).)
Where the City has not addressed the historical significance of the two Eichler -style
residences constructed in 1951, the magnitude of impact associated with the demolition of
these resources remains in question. (See, Cal. Pub. Resources Code § 21084.1'; CEQA
Guidelines § 15064.5(a)(3),(4); Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th
1039, 1045, 1061 -64 [City abused its discretion in failing to address its discretionary
Section 21084.1 of the Public Resources Code provides in full that: "A project that may cause a substantial adverse
change in the significance of an historical resource is a project that may have a significant effect on the environment.
For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in,
the California Register of Historical Resources. Historical resources included in a local register of historical
resources, as defined in subdivision (k) of Section 5020. 1, or deemed significant pursuant to criteria set forth in
subdivision (g) of Section 5024. 1, are presumed to be historically or culturally significant for purposes of this
section, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally
significant. The fact that a resource is not listed in, or determined to be eligible for listing in, the California
Register of Historical Resources, not included in a local register of historical resources, . or not deemed
significant pursuant to criteria set forth in subdivision (g) of Section 5024.1 shall not preclude a lead agency
from determining whether the resource maybe an historical resource for purposes of this section." (Emphasis
added.)
,i!N
,
RMILES A. • P
31.51 Airway Avenue,Suite R -1 • Costa Nleaa, CA 92626 A PROF .55iONAL CORPORATION
Phone 714384.0173 - Fa1(714.5563905 E n it 0 U S E e! 11 1 9 0 N M i N S • E N T! T t E M E ii T
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 7
determination of historical significance for an unlisted historical resource].) This is an
abuse of discretion under CEQA that verifies why the Lot Merger is not entitled to a Class
5 Categorical Exemption.
Ill. The Lot Merger Violates California's No- Net -Loss in Dousing Density Law
Preempting the exercise of local police power over residential land use, in 2002
the Legislature enacted the "No- Net - Loss -in- Zoning Density Law" for the purpose of
"limiting downzonings and density reductions." (Stats. 2002, c. 706 [A.B. 2292], § 1;
Gov't Code § 65582.1(i).) Written in extremely broad terms, it imposes the following
constraint on lowering the density of any parcel of land designated for residential
development: "No city, county, or city and county shall, by administrative, quasi-judicial,
legislative, or other action, reduce, or require or permit the reduction of, the residential
density for any parcel to, or allow development of any parcel at, a lower residential
density, ... unless the city, county, or city and county makes written findings supported
by substantial evidence of both of the following:
(1) The reduction is consistent with the adopted general plan, including the housing
element.
(2) The remaining sites identified in the housing element are adequate to
accommodate the jurisdiction's share of the regional housing need pursuant to
[Governrnent Code] Section 65584." (Gov't Code § 65863(b); emphasis added.)
"Lower residential density" is defined as either "a density below the density used in the
[housing element] inventory to determine the total housing unit capacity" or "a density
that is lower than 80 percent of the maximum allowable residential density of that
parcel." (Govt. Code § 65863(h).) The No- Net - Loss -in Zoning Density Law is clear and
unequivocal: any action to reduce the density of "any parcel" to a "lower residential
density" requires a city or county to make two "written findings supported by substantial
evidence." (Gov't Code § 65863(b).) The Lot Merger will result in a density that is 50
percent of the maximum allowable residential density prior to the merger. The City has
failed to make any mandatory finding under the No- Net - Loss -in- Zoning Density Law in
conjunction with the Lot Merger. This is an abuse of discretion that will not be excused
by a reviewing Court. "An administrative agency must "render findings sufficient both to
kl�W MILES LAw GROUP
3151 Airway Avenue. Suite R.4 • Costa Mesa, CA 92626 A PROFE55 #ONAL CORPORATION
Phone: 714 384.0173 • Pau "14.556 3905 t A Y P 9 S E E N V, R 0 N Al E N 1 • E N 1 1 1 t E Ai E N T
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 8
enable the parties to determine whether and on what basis they should seek review and, in
the event of review, to apprise a reviewing court of the basis for the board's action."
(Topanga Assn. For a Scenic Community v. County ofLos Angeles (1974) 11 Ca1.3d 506,
514.)
"A findings requirement `serves to conduce the administrative body to draw
legally relevant sub - conclusions supportive of its ultimate decision; the intended effect is
to facilitate orderly analysis and minimize the likelihood that the agency will randomly
leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing
court to trace and examine the agency's mode of analysis. [Citations.]' (Topanga Assn.
For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 516, fn.
omitted.)" (Southern. Pacific Transportation Co. v. State Bd. of Equalization (1981) 191
Cal.App.3d 938, 954.)
IV. Mailing List Request
This Office hereby respectfully requests that the City send by mail and electronic
mail to the address above notice of any and all actions or hearings or related to activities
undertaken, authorized, approved, permitted, licensed, or certified by the City Council or
Planning Commission related to the Guida project or Lot Merger.
This request is for notices of CEQA actions and notices of any approvals or public
hearings to be held under any provision of Title 7 of the California Government Code
governing California Planning and Zoning Law, as well as the City of Newport Beach
Charter or Municipal Code. This request is filed pursuant to Pub. Res. Code §§ 21092.2,
and 21167(f) and Government Code § 65092, which require local agencies to mail such
notices to any person who has filed a written request for them with the clerk of the
agency's governing body.
IMILES
3151 Airway Avenuc, Suite F -1 • Costa Mesa, CA 92625 A PROs ESSIONAL CORPORATION
Phone:: 14.384.0173 • Fax 714.556 3905 1. A N 0 USE • E `, V 's A. 6 8 51 c M T • E ii T i T E E hi E" T
Honorable Mayor Nancy Gardner &
Members of the Newport Beach City Council
May 8, 2012
Page 9
V. CONCLUSION
In sum, for all these reasons, if the City Council acts to precommit to the Lot
Merger prior to complying with CEQA and additional State and local mandates, my
clients will have no choice but to pursue all available legal remedies against the City and
its abuse of discretion.
Thank you for consideration of this letter. Please do not hesitate to contact us if
you have any questions.
Very truly yours,
Il $S ^LAW GR. OUP, ,C.
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By: St phen M. Miles
cc: Ms. Leoni Mulvihill, Deputy City Attorney (via email)
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