1113 Kings Road
City Council upholds grant of variances
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.” Council member Herdman attempted to change his vote to “no” at the September 24 meeting, but only Council member Brenner supported his request to revisit the appeal.
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.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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. “
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.
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.
- 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
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.
(no future actions expected)
- September 24, 2019: Council member Herdman had second thoughts about upholding the variances, and asked the Council to reconsider the matter so he could change his vote to “no.” However, it takes a majority of the Council to re-open a matter that has been voted on, and only Council member Brenner supported his effort. As a result, he was unable to change his vote.
- 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.
- none yet
- Project-specific city case log