Tag Archives: variances

1113 Kings Road

1113 Kings Road
City Council upholds grant of variances

Project Overview
Why We’re Watching
Background
Regarding the Variances
Other Issues
Upcoming
Recent Events
News Coverage
Helpful Links

Project Overview:  Application to construct a three-level single family residence with 10,803 sf of enclosed living space floor area plus a 1,508 sf garage on the ocean-facing bluff side of Kings Road, a City street high above Newport Harbor, with the Mariners Mile section of Pacific Coast Highway (specifically the Balboa Bay Resort) below.  The new residence (seen as two stories from Kings Road) would replace an existing two-level home (seen as one story from the road) with 3,000 sf of living area and 1,285 sf of garage, including a previously-approved over-height RV garage.  The application came before the Planning Commission for approval because the applicant requested variances  (exceptions) to the City’s building height standards. SPON appealed that decision to the City Council, where it was heard on September 10. as Item 20 on the agenda.  The Council upheld the variances by a 4:3 vote with Council members Avery, Brenner and Dixon voting “no.”

Why We’re Watching:  While the appeal is technically an objection only to the height variances, SPON sees a larger need to call attention to development standards that fail to prevent construction inconsistent with the existing and expected pattern of development in the city. Many SPON members, and other residents, have expressed concern about the increasing “mansionization” of our community, of which this seems an example. Much of that change in character has been accomplished simply by filling lots to the very limits of the building envelope allowed by the City’s current zoning codes.  In the present case, City staff says 29,024 square feet of enclosed floor area is allowed on the lot, yet even the proposed 12,311 square feet seems too much for the neighborhood, and wantonly destructive of the coastal bluffs.

Specific points raised in the appeal include:

  • Opposition by the local homeowners association
  • A possibility of environmental impacts not assessed by City
  • Inconsistency with General Plan policies protecting natural resources, including coastal bluffs
  • The “findings” justifying the variances are not defensible
  • Alternatives to granting the variances were rejected without explanation

An attorney representing SPON has submitted a letter detailing some of the legal reasons for denying the requested variances.

Background

Newport Beach development standards (specifically Municipal Code Sec. 20.18.030 referencing Sec. 20.30.060.C) limit the height of flat roofs and railings on single family homes to a maximum of 24 feet above the grade of the lot, and up to 29 feet for portions with sufficiently sloping roofs.  Deviations require what is referred to as a “variance” from the zoning code (granted per Newport Beach Municipal Code Sec. 20.52.090).

Variances are supposed to be difficult to obtain, and are supposed to be allowed only when due to some unusual physical peculiarity of the property not properly anticipated in the code, and such that a strict application of the standards would deprive the owner of a right enjoyed by other property owners not suffering from that peculiarity.  In this case, the hardship is claimed to be a gully that cuts through lots to the east and the edge of which protrudes into the eastern part of this one.

The present matter came to a public hearing only because of the applicant’s request for some relatively minor deviations from the City’s height standards at a few points on the roofs and decks as shown below, viewing the structure from the east.

By way of explanation, the middle (or street level) portion of the proposed three-level structure begins with a garage (the area with no windows), on the right, followed by an office area and then a patio on the left. Above the garage is “Bedroom 2” of the five-bedroom home, and above the office is a “Teen Room.”

Heights on sloping lots are measured not from the actual land surface, but from a series of “planes” that approximate it.  The surfaces show in yellow, above, are 29 feet above these City-assigned grade planes (which are somewhat arbitrary and do a rather poor job of approximating the true ground surface, which in some places is a much as 4 feet above them and in others as much as 6 feet below the staff-selected planes).

As measured from City staff’s grade planes, the sloping eaves of the patio cover, office, teen room, and “bedroom 2” bath and closet roofs exceed the City’s 29 foot height limit by the amounts shown in blue. In addition, portions of a third level flat deck and rail (hidden behind the 29-foot yellow planes, and serving as the cover for parts of the mid-level living room and office area) exceed the 24 foot height limit for flat roofs

The applicant claims the unusual situation of “having” to build over the edge of a gully justifies these exceedances (click on images to see full size):

Regarding the Variances

The City’s Zoning Code sets minimal standards that construction must comply with and variances from those can be approved only (NBMC Sec. 20.52.090.F) if all of six required “findings” can be made. As detailed in our letter, SPON believes they cannot be made for the following reasons:

  1. There are special or unique circumstances or conditions applicable to the subject property (e.g., location, shape, size, surroundings, topography, or other physical features) that do not apply generally to other properties in the vicinity under an identical zoning classification;

Staff claims the unique circumstance is the east-west and north-slopes created by the gully on the eastern edge of the property.

However, all the lots on the south side of Kings Road slope down from the road to bottom of the bluff where it ends behind the commercial properties on West Coast Highway and development on sloping lots is a condition anticipated and dealt with in the Code (through provisions such as measuring structure heights from grade). Staff provides no compelling explanation of why an east-west (or steeper) slope is more constraining than a north-south (or shallower) one. Indeed, it says owners of sloping lots are generally able to comply with the code by building terraced two-level structures that follow the grade.

  1. Strict compliance with Zoning Code requirements would deprive the subject property of privileges enjoyed by other properties in the vicinity and under an identical zoning classification;

In an attempt to validate this required finding, staff makes some odd observations. Among them is this: “Modifying the proposed design to eliminate the height variance for enclosed living area would require eliminating an office on the main level, located behind a compliant garage.” Not only does staff not explain where building an office behind a garage is a “privilege” afforded by the Code to other properties, but a few pages later (on handwritten page 17 of the staff report) it observes the proposed garage is deeper than it needs to be to comply with code, and if the garage was reduced in depth, an office could be built behind a compliant garage without any height exceptions. On the same page, staff explains how each of the other uses claimed to require height exceptions could, with redesign, be constructed without the exceptions.

  1. Granting of the variance is necessary for the preservation and enjoyment of substantial property rights of the applicant;

Staff asserts that because of the east-west slope created by the gully, “Strict compliance with the Zoning Code would deprive the applicant of the substantial property
right of building a residence of uniform height across the subject site” and  “would effectively reduce the buildable width from approximately 90 percent of the lot width to 72 percent of the lot width at those locations.”

Staff does not explain where the “right” to build a residence of uniform height exists in the code, or why the applicant could not enjoy a terraced code-compliant design that follows the grade.

Indeed, as indicated below, treating the “gully feature” as if it doesn’t exist and building over it, far from being a “right,” seems inconsistent with City’s goals and policies. expressed in the Natural Resources Element of its General Plan, to preserve the natural topography, especially coastal bluffs such as this. In fact, in areas where multiple units are allowed on a lot, unusually steep or submerged portions are excluded from the area used to determine how many units are allowed.

  1. Granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same zoning district;

Exemption from the general rule that building heights follow the topography of the lot would appear to be a special privilege.

  1. Granting of the variance will not be detrimental to the harmonious and orderly growth of the City, nor endanger, jeopardize, or otherwise constitute a hazard to the public convenience, health, interest, safety, or general welfare of persons residing or working in the neighborhood; and

The opposition of neighbors provides strong evidence that approval of the height variances would be detrimental to the harmonious and orderly growth of the City. And there is a rational basis to their opposition. Neighbors, especially future owners of properties to the immediate east and west, have an expectation that construction at 1113 Kings Road will not protrude beyond the envelope prescribed by the Code. In particular, the lot at 1101 is even more strongly impacted by the “gully feature” and over-height construction at 1113 would incentivize over-height construction at 1101 to restore views blocked by 1113, in a cascading effect contrary to any notion of orderly growth.

  1. Granting of the variance will not be in conflict with the intent and purpose of this section, this Zoning Code, the General Plan, or any applicable specific plan.

The requested variances clearly do conflict with our General Plan.

Their purpose is to facilitate construction over the “gully feature.”  However, such construction, let alone facilitating it, is completely contrary to the goals and policies of our General Plan.

In particular, Goal NR 23 of Natural Resources Element is that “Development respects natural landforms such as coastal bluffs,” to which end Policy NR 23.1 (“Maintenance of Natural Topography”) was adopted to “Preserve cliffs, canyons, bluffs, significant rock outcroppings, and site buildings to minimize alteration of the site’s natural topography and preserve the features as a visual resource.”

That commitment is echoed in one of the most fundamental “Who We Are” policies of the Land Use Element — Policy LU 1.3 (“Natural Resources”): “Protect the natural setting that contributes to the character and identity of Newport Beach and the sense of place it provides for its residents and visitors. Preserve open space resources, beaches, harbor, parks, bluffs, preserves, and estuaries as visual, recreational and habitat resources. “

Other Issues

While the variances were the reason for a public hearing, and SPON questions the need for them (as explained above), there are a number of other issues with this project.

Environmental Impacts

SPON questions the Planning Commission’s finding that this project qualifies for the Categorical Exemption from environmental analysis found in the CEQA Guidelines — something that normally applies to single-family home construction. The categorical exemptions do not apply  when there an unusual circumstances leading to the possibility of a significant impact (the “exception to the exemptions”). Building on steep slopes is itself unusual and the City staff report identifies this slope in a visually sensitive area as particularly “unusual,” event for Kings Road. In that connection, neighbors have raised concerns, based on both experience and previous geotechnical studies, about the impact of the construction and the weight of the structure on the stability of the the slope. SPON does not feel the possibility of environmental impacts should be dismissed without analysis.

Neighborhood Compatibility

  • Much of the neighborhood concern about this application has focused on the incompatibility of two-story homes facing the south side of Kings Road being incompatible with the historic character of the street.
  • Promises about preserving the character of neighborhoods are found primarily in the City’s General Plan.  Policy LU 5.1.5 (“Character and Quality of Single-Family Residential Dwellings”) assures the public that “Compatibility with neighborhood development in density, scale, and street facing elevations” will be implemented through revisions to the Zoning Code.
  • However, the Zoning Code does this, if at all, in a very obscure way which makes it extremely difficult for the public to challenge staff’s decisions about the present application which many think — even without the variances — is incompatible in scale and street facing elevations:
    • Without the variances, the present application for development would require a Zoning Clearance from the Director (per NBMC Sec. 20.16.030).
    • In approving the Zoning Clearance the Director makes findings of consistency with the General Plan that can be appealed to the Planning Commission (see NBMC Sec. 20.52.100).
    • However, the fact that the Director has approved a Zoning Clearance, and thus made an appealable finding of consistency, is known only to the applicant making the opportunity for others to appeal essentially meaningless.

Preservation of Natural Resources

  • As noted above, the General Plan also makes promises about how development in Newport Beach will respect the natural topography including preserving coastal bluffs as visual resources for all to enjoy.
    • Again, the General Plan promises these protections will be implemented through provisions in the Zoning Code.
    • However, as currently written, the Bluff Overlay District concept in NBMC Sec. 20.28.040 applies to only selected bluffs, of which this is not one.
  • This project disturbs a large portion of a coastal bluff despite the policy language in the General Plan promoting preservation of coastal bluffs. By extending both the structures and the retaining walls farther out from Kings Road, the amount of the bluff face not modified by substantial development will be reduced to less than half of what it currently is:

Sadly, even where bluffs are supposed to be protected by the City codes, that protection does not seem to be very strong. Here is an example of bluff-face construction currently underway at 124 Kings Place, where Kings Road wraps around above Dover Drive:

Coastal View Roads

The portion of West Pacific Coast Highway below this development is a designated Coastal View Road in both the City’s General Plan (see Figure NR3) and its Coastal Land Use Plan (Map 4-3).

Since views to the harbor and ocean from this stretch of road are already blocked by existing development along PCH, the scenic feature is evidently the coastal bluffs below Kings Road — in this case directly opposite the entrance to the Balboa Bay Resort (which, although privately operated, sits on publicly-owned property):

This provides even stronger reason to be concerned about the destruction noted above.

Errors in Staff Analysis?

The City’s code regulations for residential “third stories” (for which special development restrictions apply per NBMC Sec. 20.48.180), including the definition of what constitutes a third story are fraught with uncertainty.

For residential structures built on slopes, the Zoning Code gives the Community Development Director the discretion to decide which level (if any) counts as a third story.

In the present case, the staff report notes how portions of the structure are seen as three stories when viewed from the east (the “Left Side Elevation” below), and emphasizes how the third floor walls are stepped back from the property line as required. But in Table 1 on handwritten page 9 it regards, without explanation, only 411 sq. ft. as “3rd floor area.”

It inexplicably fails to note that much of the structure is also seen as three stories when viewed from the west (see “Right Side Elevation” above).  Possibly this is because the lowest level, as viewed from that side, is regarded as a “daylighting basement” rather than a first “story” because it is claimed to be partially below “natural” grade. But it seems to be above the existing or at least the finished grade after construction (it will have a door exiting on the west side).

In any event, it appears much of the uppermost level (the one at the top, including the “Master Bedroom” above the red arrow) has two levels below it, qualifying in most people’s estimation as a third floor.

In addition to comprising much more third floor area than reported, the “Master Bedroom” actually steps out closer to the property line than the floor below, rather than back away from the line:

and a portion of it may be closer to the west property line than the minimum setback (4 feet) required even without the additional 2 feet of step back expected for a third floor:

When viewed from the west, this three-story-looking portion of the house will, in addition, loom 37 feet in height as measured from the peak of the roof to the exterior ground, even though because of the City’s peculiar method measuring heights it counts as only “29 feet”  (measured from the slanting line near the bottom, representing “natural grade” — some 9 feet above the actual finished grade):

In summary, SPON feels there is much more problematic about this proposal than just the few height variances which are the technical issue the City allows to be appealed.

Upcoming

(no future actions expected)

Recent Events

  • September 10, 2019:  SPON’s appeal was heard as Item 20 on the City Council agenda.  Despite an attorney representing SPON submitting a letter detailing some of the legal reasons for denying the requested variances, the Council voted 4:3 to uphold the variances, with Council members Avery, Brenner and Dixon voting “no.”
  • June 5, 2019: SPON appealed the Planning Commission decision for a new hearing before the City Council.  It has been scheduled for September 10.
  • May 23, 2019:  As Item 4 on their agenda, the City’s Planning Commission approved the variance request.

News Coverage

  • none yet

Helpful Links

2607 Ocean Blvd


2607 Ocean Blvd as of August 2018:

Coastal Commission finds “substantial issue” — hearing to be scheduled

Latest News:  A modified project was approved by the Planning Commission on December 7, 2017.  After fruitless attempts to get the City Council to review the compliance of the Planning Commission’s decision with the City’s Local Coastal Program (LCP), a free appeal was submitted to the California Coastal Commission on January 21, 2018.  A CCC determination of whether the City’s approval raised “substantial issues” of statewide significance was originally scheduled for the CCC’s March 7 meeting in the Oxnard Harbor District offices, Port Hueneme, but was postponed at the last minute.  The determination was finally made as Item F22a at the August 10, 2018, meeting in Redondo Beach, where, in response to a new staff report, supporting exhibits and correspondence, the twelve commissioners voted unanimously to find “substantial issue” and directed staff to schedule a full hearing on the application at future meeting (date to be determined) .

Project Overview:  This proposal for a multi-story replacement, with rooftop pool and living area, of the small existing single family residence on the bluff face adjacent to the China Cove Ramp in Corona del Mar has drawn considerable public interest.

Why We Are Watching: This is the first time the Planning Commission has been asked to review an application for a Coastal Development Permit.  This particular application requests numerous “variances” from the City’s normal development standards (none of which are currently allowed for CDP’s) and, as approved, would cause a permanent loss of public views from the ramp, which are supposed to be protected by the City’s Local Coastal Program, as well as permanently destroy a currently undeveloped portion of the China Cove bluff face and fence off public access to the City land at the top of the property, between it and Ocean Blvd, which would otherwise have potential as a public view spot.  Aside from these Coastal Act issues (the Coastal Act, though the local LCP, is supposed to protect, for all Californians, coastal views, coastal landforms and public access to them), it is regarded by many as an example of a disturbing trend toward “mansionization,” out of tune with the City’s existing character.  It is also an example of people buying properties and expecting to get an easy approval from the City to build something on it not allowed by the existing City codes and policies.

Upcoming

  • Based on the outcome of the August 10, 2018, Coastal Commission meeting (see “Recent Events,” below) a full hearing on the application will be held before the CCC on a date to be announced.

Recent Events

  • January 8, 2019:  CCC staff reportedly visited the site to view the story poles and other features at the invitation of the applicant.
  • September 17, 2018: CCC staff issues official notice that “substantial issue” was found at August 10 meeting.  At the time of the notice, a hearing date for the appeal had not been set.
  • August 10, 2018:  As Item F22a on the agenda for the CCC’s Friday meeting in Redondo Beach, the Commission voted 12:0 to find the appeal raised sufficient issues of statewide significance to merit the holding of a full hearing on the proposed development.
    • The hearing was confined to the question of whether the appeal raises sufficient “substantial issues” with Local Coastal Program compliance to require the scheduling of a full re-hearing of the project before the CCC at a future meeting.  CCC staff recommended the Commission make that finding.
    • A new staff report, supporting exhibits and correspondence (an odd hodgepodge of old and new letters) were posted for public review.
      • Comments to the CCC on them were invited by clicking the “Submit Comment” button following the Item 22a listing on the CCC agenda page, or by sending an email to SouthCoast@coastal.ca.gov with the subject line “Public Comment on August 2018 Agenda Item Friday 22a – Appeal No. A-5-NPB-18-0006 (Nicholson Construction, Newport Beach)“.
  • March 14, 2018:  The “story poles (see December 7, 2018, below) have been re-installed.  The reason for this is unknown.
  • March 7, 2018: A hearing on the January 22 appeal of the City’s approval of the Coastal Development Permit for 2607 Ocean Blvd was scheduled as Wednesday Item 11a (“W11a”) during the California Coastal Commission’s March 2018 meeting in Port Hueneme. As explained in the CCC’s Appeals FAQ, that hearing was to have focused on whether the appeal raises “substantial issues” of compliance with the City’s certified LCP. However, that hearing was postponed to a future date.
    • The CCC posting for March 7 consisted of a staff report recommending a finding of substantial issue, and supporting exhibits including a letter from the applicant’s representative opposing the appeal. If the Commissioners agree with CCC staff, the actual hearing on the modifications that would be necessary to bring the project into compliance with the LCP would occur at a later meeting. CCC staff also posted correspondence received in connection with the expected hearing, including a five-page letter from the City attempting to rebut each of the contentions raised in the appeal.
    • The online agenda includes a button to view the meeting remotely, by live stream.
    • It is important to understand that the postponed Item 11a on March 7 was a procedural hearing to accept for future hearing, or deny, the appeal of the City’s approval of the permit for the development.
    • As such, the only issues under consideration on March 7 will be whether there is reason to doubt the City’s approval could be justified under its certified Local Coastal Program, and if there is a question of compliance, whether there is reason to believe the lack of consistency had detrimental effects of enough statewide significance to warrant review by the Coastal Commission.
    • Comments were invited to be submitted to the CCC by email using the “Submit Comment” button following the Item 11a listing on the CCC agenda page, or by sending an email to SouthCoast@coastal.ca.gov with subject line “Public Comment on March 2018 Agenda Item Wednesday 11a – Appeal No. A-5-NPB-18-0006 (Nicholson Construction, Newport Beach)“.
    • To be most helpful, comments should be based on an understanding of the CCC staff report, and focus on Coastal Act consistency issues, not local zoning ones (purely local issues being things like whether the design or size matches that of nearby homes, or a statement residents don’t like it). For reference, the overarching goals of the Coastal Act are that all development in the Coastal Zone will, for the benefit of all Californians, and our visitors, be sized and sited to minimize impacts to public coastal views (from and to the ocean), coastal landforms and the public’s ability to freely access them. In reviewing the Newport Beach Planning Commissions decision on 2607 Ocean Blvd, CCC staff found possible issues of inconsistency with all three of these, and comments in support of those findings of inconsistency are especially helpful.
    • As an example, moving the LCP-required setback lines to allow the home to be built lower down the slope, closer to Way Lane (as the present one is), might be consistent with the Coastal Act goal of minimizing impacts to treasured public views. Relaxing the setback requirements to permit construction of home larger than the LCP allows, as the Planning Commission did, is not consistent, since it maximizes impacts to views and landforms.
    • To reach the Coastal Commissioners as part of the posted agenda item, emailed comments had to be sent by 5:00 p.m. on Friday, March 2.
  • February 23, 2018:  With a hearing on the validity of the appeal scheduled for March 7 in Oxnard/Port Hueneme, CCC staff posts a report recommending a finding of “substantial issue.”
  • January 23, 2018: Notice of Appeal mailed by Coastal Commission staff, ordering the City to forward to them the materials on which the City’s decision was based.
  • January 21, 2018: appeal of City approval filed with California Coastal Commission.
  • January 9, 2018:  City returns December 21 CDP appeal and the appeal of the City’s challenge to it, saying it will take no action on either.
  • January 6, 2018:  City sends a “Notice of Final Action” to the Coastal Commission, triggering the opportunity for an appeal to them, since the project site is within the LCP appeal area (City approvals within that area can be appealed directly to the Coastal Commission if the City charges for local appeals, as it now appears it does).
  • January 5, 2018:  Appellant challenges City threat to reject appeal.
  • January 2, 2018:  City challenges and threatens to reject the December 21 appeal for refusal to pay a $1,536 filing fee, which was claimed due even though it was not mentioned in the notice of the hearing and (unlike for Zoning Code appeals, pursuant to NBMC Sec. 20.64.030.B.2) is not called out in the City’s LCP code.  The claim was the CDP had to be appealed along with any other matters approved at the same hearing, under any other codes, again something not called out in the LCP code, nor even logical since the Coastal Commission routinely rules on the compliance of CDP approvals with an LCP independent of all other local approvals.  The City’s offer to allow the appellant to add an appeal of the variance approval under Title 20 by January 6 was arguably itself illegal, since the original appeal made clear it was not appealing that, and the publicly announced time for filing a Title 20 appeal had ended on December 21.
  • December 21, 2017:  After unsuccessful efforts to get a City Council member to call the Planning Commission’s December 7 decisions up for review, a private citizen filed an Appeal Application for the Coastal Development Permit portion of the approval, only, with the City Clerk, as allowed under Section 4.3 of Resolution 2075.
  • December 7, 2017: The application was heard as Item 5 at the Planning Commission’s December 7 meeting, for which a new staff report was posted. According to the staff report, by eliminating the elevator stop on the roof, the applicant is no longer asking for a deviation from the City and coastal height standards, but still seeks variances to reduce the required setbacks and increase the allowed floor area. It might be noted that heights in Newport Beach are measured from the underlying land, so even though it may not technically be a height variance, allowing the land owner to reduce the setback from Ocean Blvd allows him to build farther up the bluff face, and hence higher. Reducing the setbacks also, in staff’s view, increases the buildable area and allows the land owner to build bigger (that is, allowing more floor area, even without a variance). Also according to the staff report, as suggested by the Planning Commission on Nov. 9, the applicant installed “story poles” (connected by strings and flags representing various key rooflines) on the property from Nov. 27 to Dec. 1, illustrating how the proposed construction would impact views. Although the staff report continues to say the poles will disappear on Dec. 1, a later email from the applicant’s representative said the poles will be left in place through Dec. 8. Equally disturbingly, even though view impacts is a major concern with this project, the staff report contains no photos showing what the poles look like from various vantage points, and absolutely no computer simulations of how the actual building will affect existing views.Regarding the Coastal Development Permit issue, City staff clearly knows the City has no authority to grant variances from the recently adopted Local Coastal Program development standards, since they have asked the Coastal Commission for permission to add variance provisions to the LCP Implementation Plan. Coastal Commission staff has informed the City that adding those provisions would constitute a major amendment to the authority granted the City under the IP. To date, no hearings on the matter have yet been scheduled. Until language allowing variances from the LCP is certified, it seems the height of impudence for the City to be exercising an authority it has been clearly notified it has not been granted. At the hearing, staff said the Community Development Director has the authority to interpret the IP, and hence could “interpret” that it allows variances even if it doesn’t say so.  After hearing testimony from the applicant and public, on a motion by Commissioner Bill Dunlap, the Planning Commission voted 4:2 (with Commissioners Weigand and Lowrey voting “no” and Vice Chair Zak absent) to approve the application, provided the “public view obstruction problems” could be solved, apparently largely by using clear glass for the screening around the rooftop pool deck.  The final approval (PC Resolution No. 2075) was for 4,500 total square feet of floor area (including the garage, but not counting the livable roof area) on a lot where the maximum floor area allowed with the code-required setbacks would be 2,865 sf.
  • November 9, 2017:  The application began to be heard as Item 2 at the Newport Beach Planning Commission’s November 9, 2017, meeting (see video), but was continued to December 7.  Commissioners Kramer and Kleiman were inclined to grant the variance requests provided the elevator was moved back to the Ocean Blvd side of the property (where, although reaching exactly the same top elevation, it is technically less tall since its “height” is measured from a higher point on the slope.   The remaining Commissioners appeared to have problems with the project and asked the applicant to come back with something better.  Vice Chair Zak expressed the opinion that relaxing setback requirements should not serve as an excuse to use the resulting larger buildable area to justify a corresponding increase in floor area .

News Coverage

Helpful Links

3200 Ocean Blvd

3200 Ocean Blvd as of June 2019:
Variance application withdrawn

Latest news:  Although this project was approved 5:2 by the Planning Commission (see video), that decision has been “called up for review” by City Council member Jeff Herdman.  A new hearing before the Council was placed on their September 25 agenda (see notice here), where was Item 18.  However, according to a last minute posting, it is being “continued to a date uncertain.” The most recent news from Council member Herdman is that the application for variances has been withdrawn.

Project Overview
Why We’re Watching
Background
The Issues
Upcoming
Recent Events
News Coverage
Helpful Links

Project Overview:  Application to replace the existing 2,904 square foot single family residence at the corner of Larkspur and Ocean with a new 5,216 sq. ft. home (with a 2,748 sq. ft. basement not included in that total), on a lot where the both the City’s Zoning Code and its Local Coastal Program allow at most a 4,234 sq. ft. home.

Why We’re Watching:  Many SPON members, and other residents, have expressed concern about the increasing “mansionization” of our community. Much of that change in character has been accomplished simply by filling lots to the very limits of the building envelope allowed by the City’s current zoning codes.

But in this case, the City was presented with a request to build something even larger than than the mansion-like maximum allowed by the code.  To justify the proposed size at this address, the Planning Commission had to approve both increasing the building footprint by allowing construction 5 feet into a code-required 10 foot setback, and then multiplying even that larger than code-allowed building footprint by a floor area limit multiplier greater than the code allows for any other homes in Corona del Mar.

In addition to granting these deviations from the Zoning Code, this was the second time the Planning Commission had been asked to review an application for a Coastal Development Permit. Over the objections of the two Planning Commissioners who voted “no,” it again granted variances from the identical development standards about setbacks and floor area certified by the Coastal Commission in the Local Coastal Program for Newport Beach — but with no clear written authority to do so, and with the question of whether it has an implied authority currently on appeal.


Background:

Newport Beach has different standards for the amount of development allowed on commercial and residential lots.  The maximum amount of floor area that can be built on a commercial lot is regulated by the Floor Area Ratio (FAR), which is the ratio of the floor area to the total area of the lot.  On residential lots, construction is limited by the smaller “buildable” area determined by required setbacks from the property lines.  The maximum floor area that can be built on a residential lot is set by the Floor Area Limit (FAL), which is the ratio of the floor area to the  “buildable” area defined by the required setbacks.  This both limits the bulk of the structures and ensures open space between them, both for fire access and to ensure homes have usable yards.

The Floor Area Limit in Corona del Mar (and on Balboa Island) is 1.5 times the buildable area.

The normal setbacks that determine the buildable area for single-family residential lots throughout Newport Beach are 20 feet in the front, 10 feet in the rear and 3 or 4 feet on the sides (depending on lot width).  This lot, like all those along Ocean Boulevard, is required to maintain a slightly larger than normal 24 foot front setback.  The 10 foot required rear setback is completely normal in size for Newport Beach, although because this is a corner lot, the rear yard is partially visible from the Larkspur “side” street, rather than being at a completely hidden interior position.

Variances to the development standards (per NBMC Sec. 20.52.090) are supposed to be difficult to obtain, and are supposed to be allowed only when due to some unusual physical peculiarity of the property not properly anticipated in the code, a strict application of the standards would deprive the owner of a right enjoyed by other property owners not suffering from that peculiarity.

In the present case, the only thing unusual about the property is that it is part of what was originally two long skinny lots paralleling Larkspur and spanning from Ocean Boulevard to an alley in the rear, as illustrated with the dashed red line in the diagram at left.

At some time in the past (the City doesn’t seem to have the map showing when!), the original lots were resubdivided into two squarer shaped lots, yielding the blue configuration, with the present property having a larger-than-normal frontage along Ocean Boulevard (at bottom) and a second lot facing Larkspur (at top).

 

Staff points out that as a result of the “realignment,” the code-required setbacks fill a relatively large fraction of the overall lot area, limiting (as the code is supposed to do) the size of the home that could be built on the lot.

To allow a larger home, City staff asked for the 10 foot rear setback to be effectively reduced to 5 feet (technically, the Planning Commission was not asked to actually change the setback, but rather to allow future construction to encroach 5 feet into the 10 foot setback required by the Council-enacted Zoning Code).  This was said to be match the rear setback required of neighboring property owners. However, those neighbors have lots that back up to a 15 foot alley, which provides open space between the homes and reduces their need for a rear setback from 10 to 5 feet.  That logic does not apply to 3200 Ocean Blvd, whose rear property line does not abut an alley.

Although the code-required setbacks would not really be changed by the Planning Commission action, City staff seems to treat them as if they were, as shown in the following Table 3 from the staff report, which shows how a reduction of the rear setback from 10 feet to 5 feet would increase the buildable area at 3200 Ocean Blvd. from 2,823 sf to 3,108 sf.

But even then, the column labeled “Max Floor Area (Buildable SF x 1.5) (SF)” is particularly misleading.  For every line other than “3200 Ocean Blvd (Proposed)” the number listed in that column is 1.5 times the buildable area listed in the preceding column — which is the maximum allowed floor area (note: it doesn’t mean those lots are actually occupied by homes that large).  But for “3200 Ocean Blvd (Proposed)” it is a larger number pulled out of the air.

The table makes it appear that if the new buildable area of 3,108 sf is multiplied by the standard maximum FAL of 1.5, the result is the owner’s proposed floor area of 5,216 sf.   However, 3,108 x 1.5 = 4,662 sf — an increase of just 428 sf over the amount allowed with the normal setbacks .

It is not clear the Planning Commission understood they were approving an FAL of 1.7 (or 1.9 compared to the original buildable area) when all other properties in the vicinity are allowed a maximum of 1.5.

The only justification for approving 5,216 sf is that it provided the owner with an FAR similar to other homes in the area.  But the size of homes is supposed to be limited by FAL, not FAR, and the FAL is supposed to limit lots with smaller buildable areas to a smaller FAR.

Deviating from the FAL to achieve a certain FAR makes no sense when FAL, rather than FAR, is the thing intended to be regulated by the code.

The Issues
In summary, the issues associated with the 3200 Ocean Blvd application include the following:

  • The Planning Commission approval is counter to resident concerns about a trend toward larger homes in older neighborhoods.
  • In this case, the approved size goes not just to the maximum allowed by the Council-enacted codes, but significantly beyond it.
  • Variances are supposed to be granted only when there is something physically peculiar about a property — yet there is very little unusual about this lot.
  • The heirs’ understandable wish to maximize their property’s resale value by getting entitlements to build an oversized home on it has never been recognized as a valid reason for granting variances to the Council-enacted development standards.  Nonetheless, to accommodate that wish:
    • A perfectly standard 10 foot rear setback — required throughout Newport Beach — was reduced to 5 feet even though there is nothing physically unusual about the property, other than it being a corner lot.
    • The applicant was then allowed to compute the permissible floor area by multiplying the resulting increased buildable area by a factor (1.7) arbitrarily and significantly larger than the factor (1.5) applied to all other properties in Corona del Mar.
    • This was justified by saying the relaxation of development standards was necessary to allow the property owners to achieve a ratio of floor area to lot size similar to their neighbors.  However, FAR (floor area ratio) is a commercial standard that is supposed to be irrelevant to residential properties.  The Council has purposefully regulated residential development based not lot size, but rather on the buildable area remaining after the code-required setbacks have been considered.  Because the setbacks impact different lots in different ways, there is no reason to expect all residential lots to have the same, or even similar, FAR.
  • Although it is a problem common to corner lots in Newport Beach, despite the Ocean Blvd address, the “front” of this home — both existing and proposed — is actually along Larkspur, which per the City codes is regarded as a “side,” requiring (as seen in the setback diagram above) only a 4 foot setback from the sidewalk.
    • This allows the “front” of this home to be built without the normal front yard, breaking the line of home fronts on the rest of Larkspur and for those coming down Larkspur toward Ocean intruding into the public views of the sea — and at the corner where the preservation of the views would be most valuable.
    • Rather than reducing the code-required setbacks, to retain the character of the neighborhood the City codes could have required a 20 foot setback from both Ocean and Larkspur (since both act as “fronts”).
    • Thankfully, most of the proposed building would no be quite as close to Larkspur as the code allows, but much of it (including in the area near Ocean, most critical to public views) is close.
  • Since permanently changing setbacks would require a Council-approved amendment to the setback maps in the Zoning Code, it could be argued the Planning Commission didn’t technically change the setbacks, but only allowed the proposed building to encroach into the required 10 foot rear setback.  If the setbacks didn’t change, then neither did the buildable area, and the ratio of the proposed above-ground floor area (5,216 sf) to the unchanged original buildable area (2,823 sf) becomes 1.85 — even farther above the maximum code-allowed FAL of 1.5.
  • The approval of this oversized home sets a worrisome precedent for other homeowners who might similarly seek to maximize the value of their property by obtaining approval to build an oversized home with reduced setbacks and a larger-than-allowed Floor Area Limit on lots, like this, with nothing particularly unusual about them.
  • In addition to raising concerns about deviations from the Council-imposed zoning standards, this property is in the Coastal Zone and the proposed construction required the City to approve a Coastal Development Permit under its state-certified Local Coastal Program, which promises strict adherence to the same development standards.
    • The City has asked for, but not yet received, permission to use “modifications” and “variances” to deviate from the standards it promised the Coastal Commission. At present, its authority to approve a CDP for development not adhering to those standards cannot be found in the LCP.
    • At an August 10, 2018, hearing, the Coastal Commission unanimously found concern about a similar action (involving the same builder) using variances to justify the granting of a CDP at 2607 Ocean Blvd.


Upcoming

According to Council member Jeff Herdman, the application for variances has been withdrawn, despite the City having succeeded in obtaining amendments to its Local Coastal Program giving it authority to deviate from the development standards certified by the Coastal Commission.  As a result of the withdrawal, no further public hearings on this project are expected.


Recent Events

  • September 25, 2018:  As Item 18 on their agenda, the City Council was scheduled to reconsider the Planning Commission’s August 9 approval (see “Recent Events,” below). However, a last minute posting indicates the hearing will be “continued” to a future date, as yet unknown.
    • The new hearing was the result of a “call for review” by Council member Jeff Herdman, and the project should not be able to proceed until the hearing is held.
    • It was expected to be conducted in the same format as the PC hearing, of which a video is available.
      • In other words, City staff and the developer would be allowed a lengthy presentation after which members of the public will be invited to offer 3-minute comments pro or con.
      • Extended comments may be submitted in writing, prior to the hearing.  They can be emailed to CityClerk@newportbeachca.gov referencing Item 18.
    • Should the City have approved the Coastal Development Permit, a free appeal to the Coastal Commission by anyone who participated in the hearing, in person or in writing, is possible once the City notifies the Coastal Commission of the City’s final action on that portion of the approval — the main argument likely being that the City lacks authority to deviate from the development standards it promised in the LCP.
      • Construction cannot proceed without a CDP.
      • A denial of the CDP is not appealable.
  • September 11, 2018:  City posts Notice of Hearing to be conducted before the City Council on September 25.
  • August 20, 2018:  City Council member Jeff Herdman filed a “call for review” of the Planning Commission’s August 9 decision.  A “call for review” requires City staff (pursuant to NBMC Chapters 20.64 and 21.64) to schedule a new hearing before the Council, and which the Council will render its own decision based on the same facts.
  • August 9, 2018:  The application was heard as Item 3 at the Planning Commission’s August 9 meeting (see video).  The Commission voted 5:2 to accept staff’s recommendation to approve the variances to the code and issue a Coastal Development Permit.  Chair Peter Zak and Commissioner Lauren Kleiman appeared to vote “no” primarily out of concern that the City should not be approving CDP’s requiring deviations from the state-certified development standards of the City’s Local Coastal Program until the City’s authority to grant such deviations (a question raised in the 2607 Ocean Blvd appeal) had been resolved.


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