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HomeMy WebLinkAboutItem M5EA( 6 U ��Z AGENDA STAFF REPORT �•�IIFORN�P DATE: July 25, 2016 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Jim Basham, Director of Community Development SUBJECT: PUBLIC HEARING REGARDING MINOR USE PERMIT (MUP) 16-4, AN APPEAL OF THE PLANNING COMMISSION'S APPROVAL OF A MUP TO ALLOW THE EXTENSION OF AN EXISTING DECK AND THE CONSTRUCTION OF A SECOND FLOOR BALCONY ON A SINGLE FAMILY RESIDENCE THAT IS NONCONFORMING DUE TO THE FRONT YARD SETBACK AND PARKING AT 25 -A SURFSIDE AVENUE. SUMMARY OF REQUEST: That the City Council hold a de novo hearing regarding MUP 16 -4 and, after considering all evidence and testimony presented, adopt Resolution No. 6671 denying the appeal and approving MUP 16 -4 for the extension of a first floor deck and the addition of a second story balcony within the Surfside Community. BACKGROUND AND ANALYSIS: On June 20, 2016, the Planning Commission approved an application for MUP 16 -4, which would allow for the extension of a first floor deck and the addition of a second story balcony within the Surfside Community located at 25A Surfside Avenue in the Surfside Colony (the "subject property "). The appellant, a neighboring property owner, has appealed that decision to the City Council. SETTING The subject property is designated as residential development in the General Plan and is located in the RLD -9 (Residential Low Density) zoning district. It is 1,274 square feet (.029 acres) in area and developed with a two -story residence that is 1,624 habitable square feet in floor area. It is bordered by the beach to the south and by residential properties in all other directions. Agenda Item M 4 Structures in the A -Row of the Surfside Colony area are required to maintain a four -foot setback from the front property line. The existing single family residence does not provide the required setback. The residence is required to have 2 off - street parking spaces within an enclosed garage and the property currently has only 1 parking space so the property is considered to be legal nonconforming. APPLICATION FOR MINOR USE PERMIT 16 -4 Jose Ochoa ( "the applicant') on behalf of Jason Smallwood, the property owner, filed a Minor Use Permit application with the Community Development Department requesting approval to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setback and parking in the Residential Low Density (RLD -9) zoning area. The Seal Beach Municipal Code (SBMC § 11.4.40.015.B) allows minor improvements to nonconforming single family residences which include the addition of unenclosed balconies and decks. The applicant proposes to add a second floor balcony and extend the existing first floor deck. The proposed improvements to the residence will conform to the provisions of SBMC § 11.4.40.015.B. ANALYSIS: Pursuant to the Section 1.20.010 of the Municipal Code, appeals of Planning Commission decisions to the City Council are heard de novo. This means that the City Council must independently hear and consider the evidence and apply the same decision - making criteria that the Planning Commission did when deciding whether to approve MUP 16 -4. In order to approve a MUP, the City Council must make certain findings with regard to the proposed project. These findings, as required by Municipal Code Section 11.5.20.020.A, generally include determining the proposal is consistent with the General Plan, the use is allowed within the applicable zone and complies with the Municipal Code, the site is physically adequate for the proposed use, the proposed use will be compatible with and will not adversely impact the surrounding neighborhood, and the proposed use will not be detrimental to persons residing or working in the vicinity. For reasons stated below and in the proposed resolution of approval, staff believes that required findings can be made in this case. The subject property is nonconforming due to the front yard setback and parking. According to Table 11.2.05.015.A.1 of the Seal Beach Municipal Code, front yard setbacks in Surfside on properties located along "A" Row are required to maintain a 4 foot front yard setback. The current setback is approximately 1 foot at its closest point. Page 2 Table 11.4.20.015.A.1 of the Seal Beach Municipal Code states, Single -Unit Dwellings in the RLD -9 zone are required to provide 2 off - street parking spaces per dwelling unit. The site is developed with one dwelling unit and a single -car garage which makes the site deficient 1 parking space. Neither legal nonconformity would be intensified or expanded as a result of this application. The applicant proposes to add a 191 square foot second floor balcony and a 14 square foot extension to the first floor deck on the south side of the existing two - story single family residence. The proposed materials will complement the existing exterior finishes which are comprised of shack wood siding, vertical siding and stucco. The balcony will have a glass rail with brushed steel railing and acrylic cladding covering the balcony support posts. The proposed structural alterations are consistent with the General Plan. The General Plan specifies that redevelopment in Surfside Colony is to be compatible with the physical characteristics of its site, surrounding land uses, and available infrastructure. The proposed balcony and deck extension will not change the character of the residence and will be consistent with other properties that have existing balconies on the beach side of the structures. The proposed use is allowed within the applicable zoning district with use permit approval and complies with all other applicable provisions of the Municipal Code. The subject site is located within the Surfside RLD -9 zone, an area where the Seal Beach Municipal Code Section 11.4.40.015.B allows for minor improvements with approval of a Minor Use Permit, including construction of a balcony and deck extension. Decks and balconies considered to be accessory residential uses that are consistent with single family development in the RLD -9 zone, particularly in Surfside Colony. The proposed use, as conditioned below, will be located on a site that is physically adequate for the type, density, and intensity of use being proposed, including provision of services, and the absence of physical constraints. The subject site is currently developed with a two story single family residence. The proposed balcony and deck extension will not add habitable space and will remain within development standards within the Surfside RLD -9 zone. The location, size, design, and operating characteristics of the proposed use, as conditioned below, will be compatible with and will not adversely affect uses and properties in the surrounding neighborhood. The subject site is located within the Surfside RLD -9 zone, which consists of properties developed as single family residences. Balconies and decks are common non - habitable architectural features associated in this zoning district. The property will continue to be used as a single family residence which is consistent with the surrounding area. The establishment, maintenance, and operation of the proposed use will not be detrimental to the health, safety, or welfare of persons residing or working in the vicinity. The proposed balcony and deck extension will not increase bedrooms or habitable space to the residence. The subject site will continue to operate as a Page 3 residential property, which is consistent with the uses in the surrounding neighborhood. The proposed non - habitable architectural feature, as conditioned, is architecturally consistent with the existing residence; the proposed glass railing for the balcony is architecturally compatible with the residence's existing exterior. The applicant will use the same finishes and materials used for the existing exterior to patch any areas damaged during construction. The appellant's appeal states two grounds for appeal. First, that the applicant will not be able to obtain lawful approval and permits from the applicable homeowners association and the California state agencies with jurisdiction over the proposed construction. This contention is not a valid reason to deny the requested permit, even if true. The Municipal Code does not require that the applicant have State approvals in hand to apply for a City permit. Further, the applicant had provided a letter from the HCA indicating approval of the plans. Second, the appeal indicates the opinion that a categorical exemption is inappropriate because the proposed 191 square foot deck addition to a 1,624 square foot home is not a negligible impact and that it would create significant environmental impacts. The record indicates that the addition of this outdoor deck area is negligible in relation to the existing structure and that the environmental impacts would be insignificant in a largely built -out beach community. ENVIRONMENTAL IMPACT: This project is determined to be a Class 1 (existing facilities) Categorical Exemption pursuant to Section 15301 of the Guidelines for the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) to allow for the extension of an existing deck and the construction of a second floor balcony on an existing non - conforming residence, which has negligible or no expansion beyond the existing use. LEGAL ANALYSIS: The City Attorney has reviewed the proposed resolution and approved it as to form. FINANCIAL IMPACT: There is no financial impact RECOMMENDATION: That the City Council hold a de novo hearing regarding MUP 16 -4 and after considering all evidence and testimony presented, adopt Resolution No. 6671 denying the appeal and approving MUP 16 -4 to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence Page 4 that is nonconforming due to the front yard setback and parking in the Residential Low Density (RLD -9) zoning area at 25 -A Surfside Avenue. ITTED Basham, v ctor of Community Development Prepared by: Steve Fowler, Assistant Planner Attachments: NOTED AND APPROVED: A. Resolution No. 6671 B. Appeal Application to City Council, received on June 29, 2016 C. Planning Commission Resolution No. 16 -10 —Approving Minor Use Permit 16 -4 D. Planning Commission Minutes Excerpt of June 20, 2016 E. Site Plan and Floor Plan F. Surfside Architectural Review Board Approval and Letter from Applicant's Legal Counsel dated June 10, 2016 G. Letter from Appellant's Legal Counsel dated July 19, 2016 Page 5 662'\_99 RESOLUTION NUMBER 6671 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL DENYING THE APPEAL AND APPROVING A MINOR USE PERMIT (MUP 16 -4) TO ALLOW THE EXTENSION OF AN EXISTING DECK AND THE CONSTRUCTION OF A SECOND FLOOR BALCONY ON A SINGLE FAMILY RESIDENCE THAT IS NONCONFORMING DUE TO THE FRONT YARD SETBACKS AND PARKING AT 25 -A SURFSIDE AVENUE THE SEAL BEACH CITY COUNCIL DOES HEREBY FIND AND RESOLVE AS FOLLOWS: Section 1. On April 18, 2016, Jose Ochoa, on behalf of property owner Jason Smallwood (collectively "applicant ") submitted an application to the City of Seal Beach Department of Community Development for Minor Use Permit 16-4 to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setbacks and parking at 25 -A Surfside Avenue (the "subject property "), which is located in the Residential Low Density (RLD -9) zone. Section 2. Based on substantial evidence in the record of this proceeding, this project is determined to be a Class 1 (existing facilities) Categorical Exemption pursuant to Section 15301 of the Guidelines for the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) to allow for the extension of an existing deck and the construction of a second floor balcony on an existing non - conforming residence, which has negligible or no expansion beyond the existing use. Section 3. A duly noticed public hearing was held before the Planning Commission on June 20, 2016 to consider the application for MUP 16 -4. At the public hearing, the Planning Commission received into the record all comments and considered all evidence presented, both written and oral, regarding the subject application. Following the public hearing, the Planning Commission voted to adopt Planning Commission Resolution 16 -10 approving Minor Use Permit 16 -4. Section 4. The appellant timely appealed the Planning Commission's decision by submitting an Appeal Application to the City Council on June 29, 2016. Section 5. A duly noticed public hearing was held before the City Council on July 25, 2016 to consider the appellant's appeal and the applicant's application for MUP 16 -4. At the public hearing, the City Council received and considered all evidence presented, both written and oral, regarding the subject application. All persons present who wished to address the Council regarding 1 Resolution Number 6671 the matter were permitted to do so. Based on substantial evidence in the record of the hearing, the City Council finds the following facts to be true. A. On April 18, 2016, the applicant submitted an application to the Community Development Department for Minor Use Permit 16 -4 for a proposed project at 25A Surfside Avenue, Seal Beach, California. B. The subject property is rectangular in shape with a lot area of approximately 1,274 square feet. The property is approximately 26 feet wide by 49 feet 4 inches deep. The site is surrounded by residential uses to the North, West and East sides, the beach is on the South side. C. The proposed balcony will be architecturally compatible with the existing dwelling. D. The applicant is requesting to extend the existing deck out 14 Sq. Ft. and construct a new second story balcony at an existing two -story single family residence. Section 6. Based upon the facts contained in the record, including those stated in the preceding Sections of this Resolution and pursuant to Chapter 11.5.20 of the Code of the City of Seal Beach, the Planning Commission makes the following findings: A. The proposed structural alterations are consistent with the General Plan. The General Plan specifies that redevelopment in Surfside Colony is to be compatible with the physical characteristics of its site, surrounding land uses, and available infrastructure. The proposed balcony and deck extension will not change the character of the residence and will be consistent with other properties that have existing balconies on the beach side of the structures. B. The proposed use is allowed within the applicable zoning district with use permit approval and complies with all other applicable provisions of the Municipal Code. The subject site is located within the Surfside RLD -9 zone, an area where the Seal Beach Municipal Code Section 11.4.40.015.B allows for minor improvements with approval of a Minor Use Permit, including construction of a balcony and deck extension. Decks and balconies considered to be accessory residential uses that are consistent with single family development in the RLD -9 zone, particularly in Surfside Colony. C. The proposed use, as conditioned below, will be located on a site that is physically adequate for the type, density, and intensity of use being proposed, including provision of services, and the absence of physical constraints. The subject site is currently developed with a two story single family residence. The proposed balcony and deck extension will not add habitable space and will remain within development standards within the Surfside RLD -9 zone. 7 Resolution Number 6671 D. The location, size, design, and operating characteristics of the proposed use, as conditioned below, will be compatible with and will not adversely affect uses and properties in the surrounding neighborhood. The subject site is located within the Surfside RLD -9 zone, which consists of properties developed as single family, residences. Balconies and decks are common non - habitable architectural features associated in this zoning district. The property will continue to be used as a single family residence which is consistent with the surrounding area. E. The establishment, maintenance, and operation of the proposed use will not be detrimental to the health, safety, or welfare of persons residing or working in the vicinity. The proposed balcony and deck extension will not increase bedrooms or habitable space to the residence. The subject site will continue to operate as a residential property, which is consistent with the uses in the surrounding neighborhood. F. The proposed non - habitable architectural feature, as conditioned, is architecturally consistent with the existing residence; the proposed glass railing for the balcony is architecturally compatible with the residence's existing exterior. The applicant will use the same finishes and materials used for the existing exterior to patch any areas damaged during construction. Section 7. Based upon the findings set forth in Section 6 of this Resolution, the City Council hereby denies the appeal and approves Minor Use Permit 16 -4 to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setback and parking at 25 -A Surfside Avenue, subject to the following conditions: 1. Minor Use Permit 16 -4 is approved for the construction of a non - habitable architectural feature for the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setbacks and parking at 25 -A Surfside Avenue, Seal Beach. 2. All construction shall be in substantial compliance with the plans approved through Minor Use Permit 16 -4 date - stamped April 18, 2016. All new construction shall comply with all applicable sections of the City's Zoning Code. 3. Building permits shall be obtained for all new construction requiring such permits. 4. The area of the deck extension and the second floor balcony, upon completion, shall not be used as habitable space for the residence. 5. This Minor Use Permit shall not become effective for any purpose unless an "Acceptance of Conditions" form has been signed, notarized, and returned to 9 Resolution Number 6671 the Community Development Department; and until the ten (10) day appeal period has elapsed. 6. All repairs or patches to the existing residential fagade must be completed using colors, materials, and finishes that match the existing residential exterior. 7. All conditions of this approval shall be complied with prior to issuance of Planning Division's final approval for building permits. 8. Applicant is required to provide approval from the California Coastal Commission prior to submittal of plans for Building and Safety plan check. No building permit shall be issued unless the Applicant has provided a copy of the California Coastal Commission approval for the project to the City. 9. Prior to submittal of plans for Building and Safety plan check, Applicant is required to provide the following approvals to the City from the Surfside Colony: (a) Surfside Colony lease for use of Surfside Colony owned land; (b) excavation deposit release from Surfside Colony; and (c) street security deposit release from Surfside Colony. No building permit shall be issued until proof of compliance with this condition. 10. The applicant/property owner must indemnify, defend, and hold harmless City, its officers, agents, and employees (collectively "the City" hereinafter in this paragraph) from any and all claims and losses whatsoever occurring or resulting to any and all persons, firms, or corporations furnishing or supplying work, services, materials, or supplies in connection with the performance of the use permitted hereby or the exercise of the rights granted herein, and any and all claims, lawsuits or actions arising from the granting of or the exercise of the rights permitted by this Minor Use Permit, and from any and all claims and losses occurring or resulting to any person, firm, corporation or property for damage, injury or death arising out of or connected with the performance of the use permitted hereby. Applicant's obligation to indemnify, defend, and hold harmless the City as stated herein shall include, but not be limited to, paying all fees and costs incurred by legal counsel of the City's choice in representing the City in connection with any such claims, losses, lawsuits or actions, expert witness fees, and any award of damages, judgments, verdicts, court costs or attorneys' fees in any such lawsuit or action. (Intentionally Left Blank) 0 Resolution Number 6671 PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a regular meeting held on the 25th day of July, 2016 by the following vote: AYES: Council Members: NOES: Council ABSENT: Council Members: ABSTAIN: Council Sandra Massa - Lavitt, Mayor ATTEST: Robin L. Roberts, City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } I, Robin L. Roberts , City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution Number 6671 on file in the office of the City Clerk, passed, approved, and adopted by the Seal Beach City Council at a regular meeting held on the 25th day of July , 2016. Robin L. Roberts, City Clerk 5 Aftachment "B" G°3C�C� 'VE" JUN 29 2016 cI Y cIEkK CITY OF SEAL BEACH CITY OF SEALBEACH APPEAL APPLICATION TO CITY COUNCIL For Office Use Only Planning Commission Date: I(� Planning r[� Resolution No.: Planning Commission Action{ 2UQ Approval °1 Denial Other Date Appeal Filed: `C City Council Date: Notice Date: Citv Council Action: Resolution No.: T. Property 2. 3. Applicant Address: Work Phc Home Phone: L0.2 1 7 7 9'6'.'k X Property Owner's Name: Address: 4k-2 Home Phone: (6'p— FAX:( r� 743 fw7v -3 4. The undersigned hereby appeals the following described action of the Seal Bea Planning Commission concerning Public Hearing No. ,/y%iiv ./-e o - xj,7%tT1G -c l Attach a statement that explains in detail why the decision of the Planning Commission is being appealed, the specific conditions of approval being appealed, and include your statements indicating where the Planning Commission may be in errorr� n (Signature ofApplicant) (Signatu o Owner) A'kr (5ALVa-( liter lAr�c�) (Print Name) (P 'nt Nam- 6 (Date) (Date) June 28, 2016 Honorable Mayor and Members of the City Council City of Seal Beach 211 8th Street Seal Beach, CA 90740 Dear Mayor and Members of the Seal Beach City Council We, Arthur and JoAnn Gallucci, are the property owners of 24 A Surfside Avenue, Surfside, CA 90743. We were notified by the City of Seal Beach about a public hearing scheduled for the June 6, 2016 Planning Commission regarding my next door neighbor's proposal to enlarge the first floor deck and to construct a second floor deck where none currently exists, that measures 10' x 20' and supported by two pilasters that are each 12" x 12 ", at 25 A Surfside Avenue, Surfside, CA 90743 (Minor Use Permit 16 -4). This was the first notice that we received -- from the neighbor, the Surfside Colony Homeowner's Association, or the City of Seal Beach. Subsequent to this, I asked my neighbor what was occurring. He responded that he intended to construct these decks. I stated that this addition would greatly impair my view and that I was opposed and would be at the June 6 Planning Commission meeting to voice my opposition. The following day, I visited the Surfside Colony Homeowner's Association office to inquire why the Architectural Committee had not reviewed the plan. I was informed that the Committee had previously reviewed and approved the plan. I asked why I had not been noticed or Invited to the meeting and was informed that it was not necessary to notice or have me at the meeting. I visited Seal Beach City Hall and reviewed the plans with the Assistant Planning Director who provided me with his opinion as It related to the construction of the decks. I also visited the City Clerk's Office and was informed the manner in which to proceed to present documents to the Planning Commission with my position. On June 6, 2016, I delivered to the City Clerk 13 copies of a letter prepared by my attorney Anthony Canzoneri (Attachment A) for distribution. Attached to the letter was the Surfside Colony ground lease, rules and regulations (Attachment B). Mr. Canzoneri references the ground lease document in his letter. Mr. Canzoned stated in his letter that a Class 1 Categorical Exemption cannot be lawfully used for this application due to unusual circumstances. Those include without limitation the substantial, material and immediate effect on the beach and coastal views, and the potential impacts on adjacent properties associated with the balcony structure and uses which involve noise, light, glare, shadow, shade, odors, smoke and other potentially noxious and toxic uses. Honorable Mayor and Members of the City Council June 28, 2016 Page 2 In addition, I delivered 13 copies of a letter (Attachment C) prepared by myself (Art Gallucci) to the Director of Planning stating my reasons for opposing the proposed plan and stating that in my opinion the proposed decks will be out of character with the nature of the development in Surfside. The proposed deck and structure will have a major impact on the value of my property as it precludes sunset visibility and creates a shadow on my property. At the Planning Commission on June 6, there appeared to be an extensive amount of discussion among the Planning Commissioners, staff and audience members, regarding the applicant's documents, as well as, the documents submitted by my attorney and me. All five of the Planning Commissioners indicated that they had not received the documents I submitted (my letter, Mr. Canzoneri's letter, deck lease). It was determined by the Commission that no decision would be made and the item would be moved to the June 20, 2016 Planning Commission meeting. At the June 20 Planning Commission meeting, the applicant, Mr. Canzoneri, and I all gave presentations to the Planning Commission. Again, the majority of the Planning Commission indicated that they had not seen Mr. Canzoneri's letter, my letter, or the deck lease, which was confirmed by the four Commissioners that voted against my position. The Commissioner that voted in my favor indicated during the meeting that she had received all of the Information I had submitted and had reviewed it prior to the meeting. Prior to the vote, the Deputy City Attorney asked the Chair if she would entertain a discussion to postpone the hearing, thus giving the Attorney an opportunity to review the ground lease and give an opinion after said review. The Chair denied the request and the Commission indicated they had enough Information to make a decision - voting four in favor of and one against the project. It is my opinion that given the fact that four Commissioners allegedly never received Mr. Canzoneri's letter, my letter, and the deck lease, it was wholly unacceptable of the Planning Commission to vote without doing their due diligence in reviewing said documents as presented. Thus, it was willfully unfair and I respectfully request that the City Council review this appeal and judge it appropriately and allow for a full, open, and noticed public hearing which would allow my information to be reviewed and deliberated. Thank you for your consideration. We await your decision Sincerely, Art Gallucci J/ )oAnn Gallucci AG ✓/ Attachments Y .,fir • Ll S • r s Al, m m ATTACHMENT A CANZONERI GOTTHIEM LAW LLP 310.283.4507 tony.canzonen @icloud com 21016 PACIFIC COAST HIGHWAY, MALIBU CALIFORNIA 90265 June 3, 2016 Mr. Jim Basham Director of Community Development Planning Commission Secretary City of Seal Beach 211 814 Street Seal Beach, CA 90740 RE: NOTICE OF PUBLIC HEARING on June 6, 2016 - MINOR USE PERMIT 16 -4 - 25 A SURFSIDE AVENUE Dear Mr. Basham, We are attorneys for Mr. and Mrs. Arthur Gallucci, who live at 24A Surfside Avenue next door to Jason Smallwood who is the applicant with respect to Minor Use Permit 16 -4 for 2S A Surfside Avenue. We hereby request that this objection be forwarded to the Planning Commission, made a part of the evidence considered at the Commission's June 6 hearing and be placed into the public record. First, as a simple procedural matter, we strongly suggest that the City deny this application due to the applicant's inability to obtain the requisite property rights and approvals from both the State of California and the Surtside Colony, Ltd. Homeowner's association ( "Association ") to extend the existing ground floor deck and to build a 10 foot 2°1'story balconywith 2 large 10 foot pilasters which would be located entirely on the Association's property. None of homes in the vicinity proximate to this parcel have ever obtained approval of second floor balcony extending beyond 5' and the applicant's request to build a 10 second floor balcony and to extend t the ground floor deck along with 2 large 10' pilasters violates the property rights, restrictions and regulations of the Association and the State of California's agencies who have tidelands property and regulatory jurisdiction. (See the attached as ExhibitA the Association's A -Row Frontage ( "Association Lease "). Lease Sections 2A and B limit the balcony to 5 feet. The Gallucci's and all other Surfside Colony beachfront homeowners who have lawfully obtained the required approvals and lease rights over the adjacent beach for decks and balconies have adhered to the Association's published limitation to a 5' rather than the 10' encroachment requested by the subject application. With respect to the City's obligation to implement the California Environmental Quality Act (CEQA "), the very first paragraph of the City's staff report states that the project is determined to be a Section 15301 Class 1 Categorical Exemption because it "has negligible or no expansion beyond the existing use. ". An addition of the protruding 10 foot 2nd floor balcony and installation of 2 large 10 foot pilasters will obviously be more than a negligible expansion of the applicant's current use as well as a dramatic negative impact on the view, light, glare, shade, shadow and use of my clients home. As provided in CEQA Section15300.2(c) "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 ". In this case the new 30 foot balcony will extend 5 feet toward the ocean beyond the adjacent homes' balconies and with its pilasters will block views and permit uses which will generate noise, glare, odors and other activities that will be intrusive and offensive to adjacent property owners. We therefor implore you to deny this application and avoid unnecessary legal expense to the City and the private parties. It is clear that this application cannot withstand a legal challenge. Although simple common sense is enough to point out the lack of legal compliance of this application, please also note the following specific objections: 1. Per the Planning Coin in ission's own staff report, this application seeks "to allow an extension of an existing deck and the construction of second floor balcony on a single family residence ". Per the terms the Association Lease governing the second story balcony may not extend beyond five feet (S') from the residence if there is an existing grade elevation deck on the leased area. (Section 2A and B of A- Row Frontage Lease). Per the Planning Commission Staff Report there is an existing first Floor deck on die Property, which the applicant is seeking to extend. Having acknowledged the existence of the ground floor deck, it is facially improper to allow a second floor deck or balcony that extends farther than five feet (S') from the existing residence. 2. As stated in my introduction above, a Class 1 Categorical Exemption cannot be lawfully used for this application due to unusual circumstances Those include without limitation the substantial, material and immediate effecton the beach and coastal views, and the potential impacts on adjacent properties associated with the balcony structure and uses which involve noise, light, glare, shadow, shade, odors, smoke and other {rotentially noxious and toxic uses. 3. The propose action is not properly before the Commission in that no hearing has been noticed or held by the Association with respect to the proposed application. The Commission action is premature and unnecessary unless and until such proposed improvement has been properly reviewed and acted upon by the Association. The failure of the Association to provide proper notice and Bearing on this matter constitutes an unconstitutional impairment of my client's property interests, is in violation of my client's statutory rights under the David Sterling Act and is in violation of the governing documents and fiduciary duties of the Association's board. Under these circumstances, the Commission should not take action on this until these legal deficiencies have been addressed. Any other action would result in furthering the unconstitutional and illegal impairment ofmy client's rights and the validation of the unlawful action of the Surfside HOA. Such will lead to litigation involving multiple parties and the City. 4. Finally, foryour convenience, below is a list of specific impacts and issues as expressed in the letter my clients have, in their own words, separately provide for the Commission's consideration: a. The positioning of the deck is going to obstruct the view from my property towards the west- setting sun; b. Use of pilasters at the western end of the deck will also interfere with the view; c. The majority of the homes on either side of the subject property have a five -foot deck on the second floor; d. The home at 25 A Surtside currently has an existing stone -clad deck on the sand that is 10' x 20' which is the maximum allowed under Surtside regulations, however, the applicant is requesting an additional 15 square feet on the existing deck, which would make it one of the largest decks in the Colony; e. Your proposed Resolution 16 -10 - Section 4A states that this deck is to "...be compatible with the physical characteristics of the site and surrounding land use and will not change the characteristics of the residence and will be consistent with other properties...... This is not accurate given the fact that there are no 10' decks on either side of the property or anywhere near the property. This has a major impact on my residence and overpowering the area with this large structure; f. The placement of two large 10' pilasters on the proposed deck at the westerly portion of the deck is in violation of Colony regulations that no permanent structure can be built on Colony property (sand). The location of the pilasters is on Colony property and given the size of the pilasters, they are definitely permanent. Thank you for your consideration of my client's property rights and your obligation to fairly and consistently administer die land use authority which has been entrusted to you. It will have a dramatic positive or negative effect on the constituents that you serve. Respectfully Anthony Canzoneri Attachment Ex. A - A -Row Frontage Lease ATTACHMENT B A -ROW FRONTAGE LEASE THIS LEASE made and entered into this _ _ _ day of _ in the County of Orange, State of California, by and between SURFSIUE COLONY, LTD. ("Surfside') a California Corporation and (- Lessee'). I. PREMISES. Sudside does hereby lease to lessee and Lessee leases from Surfside that certain real property (the "Premises ") adjacent to that real property known as (the "Adjacent Property'). which Adjacent Property has been improved with an existing single- family residence (the "Residence -). The Premises consists of s strip of land extending ten feet NO') westerly from the westerly lot line of the Adjacent Property between the westerly extensions of the northerly and southerly lot lines of the Adjacent Property. 2. USE. During the term of this lease. Lessee may improve the Premises solely as expressly permitted in this paragraph. Lessee may construct and /or maintain only the following structures on or over the Premises: A. One unroofed deck extending westerly from the Residence, but in no event past the westerly boundary of the Premises. The term "unroofed deck" includes both unenclosed decks and decks enclosed by windscreens. A deck extending more than Live (5) feet westerly from the Residence shall be called the "Principle Deck." Where there is more than one deck only the deck at the Premises' grade elevation or the first elevated deck may be a Principal Deck. B. One or two unroofed decks extending westerly from the Residence not more than five (5) feet, but in no event more than five (5) feet into the Premises. which shall be called -Secondary Deck(s).' Howe er, if the Principal Deck is at the second- floor elevation. Surfsidemay, in its absolute discretion. permit the homeowner to install, on- grade. an unenclosed slab extending westerly from the Residence. but in no event past the westerly boundan, of the premises. Any on -grade slab so permitted shall be considered a Secondary Deck and conform to all requirements for Secondary Decks except for its westerly dimension. C. A "Roof Overhang" extending westerly from the Residence not more than five (5) feet, but in no event more than five (5) feet into the Premises. Occupancy on the top of Roof Overhangs is not pemtitted. D. The following items are specifically permitted to be placed within the Premises: movable patio furniture R umbrellas, portable gas barbeques, movable planters and potted plants. plastic kiddy wading pools no larger than 48" diameter by 12" high all of which shall be of proper weight as to not exceed the design limits of the structure. The following are items specifically not permitted to be placed within the Premises: any fixed walls or structures not associated with the safety rail system; charcoal or wood barbeques: fire pits or chimneys of any kind (gas, wood or charcoal): fixed or portable spas: fixed or built -in fumimre, benches, shade struclures, platters or awnings" All decks must be kept in an orderly, clean and maintained condition and not used for storage The determination as to what is an acceptable item to be placed in or condition of the Premises is at the safe discretion of the Surfside Board of Directors. E. Principal Decks. Secondary Decks. and Rool'Overhangs shall not extend nonherly or southerly beyond lines which are the westerly extensions of the north and south sidewalls of the Residence. Principal Decks, Secondary Decks, and Roof Overhangs shall be constructed only with the prior approval of the Board of Directors of Surfside, or by an Architectural Committee appointed by the Board, and in accordance with such regulations as Surfside and the City of Seat Beach may issue from time to time Below -grade decks and /or retaining walls are not permitted. A copy of the Surfside Unroofed Deck Structural Regulations ( "Deck, Regulation ") existing at the date of this lease is attached hereto as Exhibit A and. by this reference, made a pan hereof. TERN. The initial term of this Lease shall be f'or a portion of one year commencing upon the date of Lessee's first use of the Premises as determined by Surfside in its sole discretion and ending on the next June 30th. Rem for the initial tens shall be prorated on the basis of a 365 day year. Unless terminated as provided hereinafter, this Lease shall automatically renew from year to year with successive one -year terms beginning July I and ending June 30. Annual rent is due in full. in advance, on or before September I of each year. Without limiting Surfside's righis at law or at equity to terminate the Lease for default or other cause, this Lease may be terminated by either party hereto upon giving to the other thirty (30) days written notice of termination. PLAN APPROVAL. No structure maybe constructed or maintained upon the Premises until the complete plans and specifications for such structure have been submitted to and approved in writing by the Board, or the Architectural Committee. In the event that the Premises have been improved by the construction of any deck or decks existing at the commencement of this Lease, Lessee need not submit plans or specifications for such deck(s) to Sud'side for approval. However, such decks must continue to comply with the provisions of this Lease and Deck Regulations. and the execution of this Lease by Surfside does not constitute approval of, or waiver of, any nonconforming decks. In the event of any structural changes to an existing deck or decks, plans and specifications for such changes must be submitted to the Board or the Architectural Committee, and approved in writing, prior to the commencement of any work. "Structural changes" include, without limitation, changes in safety rails. changes in vertical uprights, installation of windscreens, or changes in existing windscreens, etc. 5. PLAN APPROVAL NOT A WARRANTY OR REPRESENTATION. Plan approval by Surfside's Board or Architectural Committee shall not constitute a warranty or representation as to safety. engineering sufficiency, and serviceability of materials, suitability for intended use, habitability, feasibility or practicability of construction or maintenance, or conformance to building codes or standards of care. 6. RENTAL. The total annual rent shall be computed as follows: Single lots (approx. 25 feet wide) - $300 per year Lot and a halt' wide (1.5) - (approx. 37.5 feet wide) - $450 per year Lot and three quarters wide (1.75) (approx. 47.75 feet wide) - 5525 per year The initial amount set for the annual rent for the subject property is _ _ _ for the period July I, 2015 thou June 30. 2010, Sudside Colony, Ltd reserves the right to re -set annual rental rates by written notice to the Lessee on or before the 30 °1 day before the end of the annual term listed in Section 3 - "I erm. RESTORATION OF PREMISES. Upon termination of this lease (includingany termination by reason of the default of Lessee), Lessee shall remove any structures, Decks (Primary and Secondary), Roof 0verhangs, on -grade cement slabs, and foundations upon the Premises and restore the premises to a clean sand beach without abrupt change in grade elevation from the surrounding beach, unless, not more than ten (10) days after termination of the Lease. Sudside notifies Lessee in writing that one or more structures are not to be removed. All removal and restoration shall commence not sooner than twenty (20) days after termination ofthe Lease and must be completed within sixty (60) days after the termination of this Lease. CONDEMNATION. In the event the Premises are condemned, Lessor shall be entitled and shall receive the total amount of any award(s) made with respect to the Premises, including Lessee's leasehold interest therein, the right of occupancy and use of the Primary Deck and Secondary Deck(s), and any so- called "bonus' or "excess value" of this Lease by reason of the relationship between the rental payable under this Lease and the fair market rent for the Premises. Neither Lessee nor any person claiming through or under Lessee shall receive or retain any portion of such award(s) and shall promptly,pay to Surfside any sums received in respect thereof. However, Lessee shall be entitled to any award, or portion of the award, allocable to Lessee's improvements on the Premises. including the Primary Deck, Secondary Deck(s) and Roof Overhang. The word "condemnation" or "condemned" as used in this paragraph or elsewhere in this Lease shall mean the exercise of. or intent to exercise, the power of eminent domain in writing, as well as the filing ofany action or proceeding for such purpose, by any person. entity, body, agency or authority having the right or power of eminent domain (the "condemning authority" herein), and shall include a voluntary sale by Surfside to any such condemning authority, eitherunder the threat of condemnation or while condemnation proceedings are pending, and the condemnation shall be deemed to occur upon the actual physical taking of possession pursuant to the exercise of said power of eminent domain.'fhis lease shall be terminated as of that date. 9. CONDITION OF PREMISES. I.essee acknowledges that is has inspected the Premises and accepts the Premises "as is," with all faults, patent and latent, known and unknown, suspected and unsuspected. Lessee acknowledges that no statement or representation as to the past, present or future condition or suitability for building, occupancy or other use thereof has been made for or on behalf of Surfside. Lessee agrees to accept the Premises in the condition in which they may be upon the commencement of the term hereof 10. INDEMNITY AND HOLD HARMLESS. Lessee agrees to defend, indemnify and hold harmless Surfside and its officers, directors, employees, agents and representatives from and against any and all claims, expenses, liabilities. actions and causes of action arising out of the use or occupancy of the Premises or the construction or maintenance of any structure upon the Premises. whether the claimant on such claim, expense, liability, action or cause of action is the Lessec, a member of Lessee's family, an invitee or licensee of Lessee, or a mere trespasser. Pai lure of Lessee to perform its obligations under this paragraph shall be a default under this Lease and good cause for immediate termination of the Lease. HOLDING OVER. In the event the Lessee shall hold the Premises after the expiration of the term hereof with the consent of Surlside, express or implied, such holding over shall, in the absence of written notice by either party to the other, be a tenancy from month to month at a monthly rental payable in advance equal to the monthly rental payable during the term hereof and otherwise subject to all ofthe terms and provisions of this Lease. If Lessee fails to surrender the Premises upon the termination of this Lease despite demand to do so by Surlside, any such holding over shall not constitute a renewal hereof or give Lessee any rights with respect to the Premises, and Lessee shall indemnify and hold Surfside harmless from loss or liability resulting from such failure to surrender, including, without limitation, any claims made by any succeeding tenant founded on or resulting from such failure to surrender. R. COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Lessee agrees to comply with all applicable laws, Riles and regulations with respect to the use of the Premises and the Adjacent Property, including, without limitation, such rules and regulations as Surfside may adopt and issue from time to time. 13. WAIVER. The waiver by Surfside Many breach of the terms. covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or conditions. or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Surlside shall not be deemed to be a waiver of any preceding breach by Lessee of any term. covenant or condition of this Lease, other than the failure of Lessee to pay the particular rental so accepted, regardless of Suri knowledge of such preceding breach at the time of acceptance of such rent. No covenant, term or condition of this Lease shall be deemed to have been waived by Surfside, unless such waiver be in writing by Surfside 14. NOTICE. Any notices or demands which are required to be given hereunder or which either party hereto may desire to Live to the other shall be given in writing by mailing the same by registered or certified United Sates mail, postage prepaid, or addressed to the parties at the address shown below or at such other addresses as the panics may from time to time designate by notice as herein provided or may be sensed personally to the parties at: "Surfside" "Lessee" Surfside Colony, Ltd. 11.0. Box 235 Surfsi de. CA W743 15. ENTIRE .AGREEMENT. Phis Lease and the exhibit attached hereto and forming, a part hereof set fonh the covenants. promises, agreements, conditions and understandings between Sunside and Lessee concerning the Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or writer, between them other than are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Surlside or Lessee unless reduced to writing and signed by them. 16. ARBITRATION AND A'TTORNEY'S' FEES. Any dispute between Lessor and Lessee arising in any way under this Lease shall be resolved solely by arbitration before the American Arbitration .Association under the Commercial Rules thereof then in ef3ect. No court shall hate jurisdiction of any such dispute except to compel arbitration upon the application of either party and for purposes of entering judgment in accordance with an award rendered by the Arbitrator(s) and orthe execution andror of thejudgment entered upon the Award. The .Arbitnuot(s) shall award reasonable anomev "s fees and costs in an amount they deem appropriate to the party who thev deem to have prevailed, in their absolute discretion. 17 . ASSIGNpt ENT. "I'his Lease shall not he assigned, subleased or transferred by operation cif law, or otherwise, without the prior written consent of Surlside. 18. REMEDIES ON DEFAULT. In the event Lessee shall default under or otherwise breach any of the tams or conditions of this Lease. Surfside shall have the ri ght to temtinate this Lease Ionhwiih and to retake possession of the Premises. Waiver of anv default or breach shall not be construed as a waNer of a subsequent or continuing default. Termination of this Lease shall not allect any liability by reason of anv act, default or breach or occurrence prior to such termination. IN WITNESS THEREOF, the parries hereto ha\ e executed this Lease the day and year first above written. SURFSIDE COLONY, L "I "D.. LESSEE a California Corporation By President - ---- ------- By Secretary EXHIBIT A UNROOFED DECK STRUCTURAL REGULATIONS OF SURFSIDE COLONY. L'rD I. SAFETY RAIL AND WINDSCREEN REGULATIONS. a. As rcquind under Code. a safet\ rail fom -nw (e.2) inches in height eti measured from the finished Boor of dm deck around the entire deck except in those instances where a deck enclosure is to be constructed of glass panels extending from the finished floor of eic deck. -The rcquiNd safe\ rail shall meet all State. Cox Safcty and Building Codas b. No safer mil shall exceed fort, -tiro (421 inches in height as measured fro in the finished Boor of the deck. No is indscreen shall exceed eight (A) feet in height as measured from the finished floor of the deck and shall be icmtinzted a ntinuuum of 12 " frum the structure above. c No portion of am such safetx mil or a indscreen shall be covered or roofed of or in at\ manner and shall not be secured to the deck or structure of cnccad. Decks shall not be used as enclosed moms. J, No glass panels less than three (?) feet in 11 idih shall he used in the construction of such w indscreen or safero rail. C, Vertical beams used in the construction of such 1\ indscreen or safer\ mil shall not exceed four (4) by six (h) inches. f All portions of such it indscrccn above the required forty -mo (121 inch sate[\ railing height shall consist onk of uunmd lrata)aramt glass and be maintained in a cleat condition. g. All such glass sections shall consist of one- quarter ( 114) inch Icmparul plate glass or the cquivalcm thcrcof. h. No material which in an\ ea% Icnds to obscure the gfassed-in area shall be attached tither to such N indscreen or to the residence. I . \Vindscrecns and safest mils shall be maintained so as not to obscure the \ictc of neighbors on either side of the residence. j. No additional rents shall be charged for such n indscreen or safet? mil Date: Date _ Surfsidc Colony G ATTACHMENT C June 6, 2016 Mr, Jim Basham Director of Community Development Planning Commission Secretary City of Seal Beach 211 8" Street Seal Beach, CA 90740 RE: NOTICE OF PUBLIC HEARING - MINOR USE PERMIT 16 -4 - 25 A SURFSIDE AVENUE 1 received the Notice of Public Hearing for Minor Use Permit 16 -4, scheduled for the Planning Commission meeting on Monday, June 6, 2016 at 7 p.m. The resident living at 25 A Surfside Avenue is requesting approval to construct,a 10' x 20' deck on the second floor, protruding west towards the ocean. At the most westerly portion of the Proposed deck, there will be two large pilasters. My home is located at 24 A Surfside Avenue, adjacent to the applicant. thus 1 am concerned that the deck and pilasters will obstruct the view from my deck and home. Each of the homes adjacent to the subject property has a five-foot deck on the second floor. For a 10 -foot deck to be constructed, in the center of homes with five - foct decks, would be out of character with the rest of the community. i would like to outline my reasons for opposition: i. The positioning of the deck is going to obstruct the view from my property towards the west - setting sun (Exhibit A); 2. Use of pilasters at the western end of the deck will also interfere with the view; ?. The majority of the homes on either side of the subject property have a five -foot deck on the second floor; 4. The home at 25 A Surfside currently has an existing stone -clad deck on the sand that is 10' x 20' which is the maximum allowed under Surfside regulations, however, the applicant is requesting an additional 15 square feet on the existing deck, which would make it one of the largest decks in the Colony; 5. Resolution 16 -10 - Section 4A states that this deck is to "...be compatibie with the physica! characteristics of the site and surrounding land use and will not change the chararteristics of the residence and wi!I be consistent with other properties...." This is not accurate given the fact that there are no 10' decks on either side of the property or anywhere near the property. This has a major impact on my residence and overpowering tine area with this large structure; 6. The placement of two large 10' pilasters on the proposed deck at the westerly portion of the deck is in violation of Colony regulations that no permanent.structure can be built on Colony property (sand). The location of the pilasters is on Colony property and giver. the size of the pilasters, they are definitely permanent: and Mr, Jim Basham ]one 6, 2016 Paoe 2 The Surfside Colony A -Row Frontage Lease states on Attachment A -Item C: "NO portion of any such safety rail or windscreen shall be covered or roofed over in any manner and shall not be secured to the deck or structure overhead. Decks shall not be used as enclosed rooms." Thus it appears that the regulations themselves would preclude the use of pilasters at the westerly end of the deck. �. The form of the Surfside Colony A -Row Frontage Lease, which governs use the area where the proposed second floor deck will be constructed, is attached hereto as Exhibit A. That lease does not permit construction of the proposed deck. Section 2A of that Lease limits the lessee to one (1) ten foot wide deck "AT GRADE ELEVATION ". Under Section 2B of the lease, the ten foot deck may be a second floor deck rather than a ground floor deck, but only if there is no ground floor deck and the only ground floor installation is an "ON- GRADE. UNENCLOSED SLAB" (Exhibit B). in this case, the resident has an existing ten foot stone deck on the ground floor that is not "ON GRADE ", but has been elevated above grade level. Further, with the proposed addition of the pilasters to the ground Floor level deck, it cannot be argued that this is merely an on -grade unenclosed slab, as it will now contain vertical structural elements as well as a horizontal slab and will be used for structural support of the second floor deck. Ciearly, this does not constitute a mere slab extending horizontally from the residence. The apparent purpose and intent of the lease requirements is to avoid massing of multi -story decking that changes the character of the beach front community and materially impacts the air, light and views currently provided by the beach. The action, by the Surfside HOA approving the proposed deck is in clear violation of the intent and express language of the lease governing the permitted installations in that ieasehold area. S. Further, the unauthorized and improper action taken by the Surfside HOA in approval of the proposed deck was taken without notice or meeting of either the architectural committee or the board of the Surfside HOA, but yeas apparently "approved" by informal administrative action. Such action is not permitted by the governing documents of the HOA, constitutes a deprivation of my property rights without notice or an opportunity to oe heard, violates the Davis - Sterling public meeting requirements applicable to the HOA, and constitutes a failure of the Surfside HOA to enforce the terms of its lease in accordance with its fiduciary obligations to the other homeowners in the Surfside community. Most importantly, it is my opinion that the proposed deck will be out of character with the nature of the development in Surfside. In addition, it is my opinion that this deck and structure will have a major impact or, the value of my property as it precludes sunset visibility and creates a shadow on my property. Thus.: respectfully request that the Planning Commission vote NO on Minor Use Permit 16 -4. Mr. Tim Basham June 6, 2016 'age 2 Please de not hesitate to contact me should you have any questions about my ' comments. Thank you !or your consideration. Sincerely, Art Gallucci 24 A Surfs ice Sea! Beach, CA 90743 (3]0)890 -1200 AG Exhibits Attachment "C" RESOLUTION NO. 16 -10 A RESOLUTION OF THE SEAL BEACH PLANNING COMMISSION APPROVING A MINOR USE PERMIT (MUP 16 -4) TO ALLOW THE EXTENSION OF AN EXISTING DECK AND THE CONSTRUCTION OF A SECOND FLOOR BALCONY ON A SINGLE FAMILY RESIDENCE THAT IS NONCONFORMING DUE TO THE FRONT YARD SETBACKS AND PARKING AT 25 -A SURFSIDE AVENUE. THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH DOES HEREBY FIND AND RESOLVE AS FOLLOWS: Section 1. Jose Ochoa, on behalf of property owner Jason Smallwood (collectively "applicant'), submitted an application to the Community Development Department for Minor Use Permit 16 -4 to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setbacks and parking at 25 -A Surfside Avenue (the "subject property "), which is located in the Residential Low Density (RLD -9) zone. Section 2. This project is determined to be a Class 1 (existing facilities) Categorical Exemption pursuant to Section 15301 of the Guidelines for the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) to allow for the extension of an existing deck and the construction of a second floor balcony on an existing non - conforming residence, which has negligible or no expansion beyond the existing use. Section 3. A duly noticed public hearing was held before the Planning Commission on June 6, 2016 to consider Minor Use Permit 16-4, and then continued to June 20, 2016 to allow further public testimony and deliberations by the Planning Commission. Section 4. A duly noticed continued public hearing was held before the Planning Commission on June 20, 2016 to further consider Minor Use Permit 16 -4. At the continued public hearing, the Planning Commission received into the record additional evidence and testimony provided on this matter. The record of the hearing indicates the following: A. The applicant submitted a minor use permit application to the Community Development Department for approval of Minor Use Permit (MUP 16 -4) to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming. B. The subject property is rectangular in shape with a lot area of approximately 1,274 square feet. The property is approximately 26 feet wide by 49 feet 4 inches deep. The site is surrounded by residential uses to the North, West and East sides, the beach is on the South side. C. The proposed balcony will be architecturally compatible with the existing dwelling. Page 7 of 4 Resolution No. 16-10 Minor Use Pennit 16 -4 25 A Sun'side Ave Section 5. Based upon the facts contained in the record, including those stated in the preceding Section of this resolution and pursuant to Chapter 11.5.20 of the Seal Beach Municipal Code, the Planning Commission makes the following findings: A. The proposed structural alterations are consistent with the General Plan. The General Plan specifies that redevelopment in Surfside Colony is to be compatible with the physical characteristics of its site, surrounding land uses, and available infrastructure. The proposed balcony and deck extension will not change the character of the residence and will be consistent with other properties that have existing balconies on the beach side of the structures. B. The proposed use is allowed within the applicable zoning district with use permit approval and complies with all other applicable provisions of the Municipal Code. The subject site is located within the Surfside RLD -9 zone, an area where the Seal Beach Municipal Code Section 11.4.40.015.B allows for minor improvements with approval of a Minor Use Permit, including construction of a balcony and deck extension. Decks and balconies considered to be accessory residential uses that are consistent with single family development in the RLD -9 zone, particularly in Surfside Colony. C. The proposed use, as conditioned below, will be located on a site that is physically adequate for the type, density, and intensity of use being proposed, including provision of services, and the absence of physical constraints. The subject site is currently developed with a two story single family residence. The proposed balcony and deck extension will not add habitable space and will remain within development standards within the Surfside RLD -9 zone. D. The location, size, design, and operating characteristics of the proposed use, as conditioned below, will be compatible with and will not adversely affect uses and properties in the surrounding neighborhood. The subject site is located within the Surfside RLD -9 zone, which consists of properties developed as single family residences. Balconies and decks are common non - habitable architectural features associated in this zoning district. The property will continue to be used as a single family residence which is consistent with the surrounding area. E. The establishment, maintenance, and operation of the proposed use will not be detrimental to the health, safety, or welfare of persons residing or working in the vicinity. The proposed balcony and deck extension will not increase bedrooms or habitable space to the residence. The subject site will continue to operate as a residential property, which is consistent with the uses in the surrounding neighborhood. F. The proposed non - habitable architectural feature, as conditioned, is architecturally consistent with the existing residence; the proposed glass railing for the balcony is architecturally compatible with the residence's existing exterior. The applicant will use the same finishes and materials used for the existing exterior to patch any areas damaged during construction. Section 6. Based on the foregoing, the Planning Commission hereby approves Minor Use Permit 16 -4 to allow the extension of an existing deck and the construction of Page 2 of 4 Resolution No. 16-10 Minor Use Permit 16 -4 25 A Surfside Ave a second floor balcony on a single family residence that is nonconforming due to the front yard setback and parking at 25 -A Surfside Avenue, subject to the following conditions: 1. Minor Use Permit 16 -4 is approved for the construction of a non - habitable architectural feature for the extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setbacks and parking at 25 -A Surfside Avenue, Seal Beach. 2. All construction shall be in substantial compliance with the plans approved through Minor Use Permit 16-4 date - stamped April 18, 2016. All new construction shall comply with all applicable sections of the City's Zoning Code. 3. Building permits shall be obtained for all new construction requiring such permits. 4. The area of the deck extension and the second floor balcony, upon completion, shall not be used as habitable space for the residence. 5. This Minor Use Permit shall not become effective for any purpose unless an "Acceptance of Conditions" form has been signed, notarized, and returned to the Community Development Department; and until the ten (10) day appeal period has elapsed. 6. All repairs or patches to the existing residential fagade must be completed using colors, materials, and finishes that match the existing residential exterior. 7. All conditions of this approval shall be complied with prior to issuance of Planning Division's final approval for building permits. 8. Applicant is required to provide approval from the California Coastal Commission prior to submittal of plans for Building and Safety plan check. No building permit shall be issued unless the Applicant has provided a copy of the California Coastal Commission approval for the project to the City. 9. Prior to submittal of plans for Building and Safety plan check, Applicant is required to provide the following approvals to the City from the Surfside Colony: (a) Surfside Colony lease for use of Surfside Colony owned land; (b) excavation deposit release from Surfside Colony; and (c) street security deposit release from Surfside Colony. No building permit shall be issued until proof of compliance with this condition. 10. The applicant/property owner must indemnify, defend, and hold harmless City, its officers, agents, and employees (collectively "the City" hereinafter in this paragraph) from any and all claims and losses whatsoever occurring or resulting to any and all persons, firms, or corporations furnishing or supplying work, services, materials, or supplies in connection with the performance of the use permitted hereby or the exercise of the rights granted herein, and any and all claims, lawsuits or actions arising from the granting of or the exercise of the rights permitted by this Minor Use Permit, and from any and all claims and losses occurring or resulting to any person, firm, corporation or property for damage, injury or death arising out of or connected with the performance of the use permitted hereby. Applicant's obligation to indemnify, defend, and hold harmless the City as stated herein shall include, but not be limited to, paying all fees and costs incurred by legal counsel of the City's choice Page 3 of 4 Resolution No. 16-10 Minor Use Permit 16 -4 25 A Surfside Ave in representing the City in connection with any such claims, losses, lawsuits or actions, expert witness fees, and any award of damages, judgments, verdicts, court costs or attorneys' fees in any such lawsuit or action. PASSED, APPROVED AND ADOPTED by the Planning Commission of the City of Seal Beach at a meeting thereof held on June 20, 2016 by the following vote: AYES: Commissioners Klinger, Machen, Cummings, Thomas NOES: Commissioners Campbell ABSENT: Commissioners ABSTAIN: Commissioners Planning Commission Secretary Page 4 of 4 Esther Cummings Chairperson Attachment "D" City of Seal Beach — Planning Commission June 20, 2016 Chair Cummings called the regular meeting of the Planning Commission to order at 7:00 p.m. at the Marina Community Center and Commissioner Thomas led the Salute to the Flag. ROLL CALL Present: Commissioners: Cummings, Machen, Thomas, Campbell, Klinger Absent: None Staff Present: Jim Basham, Director of Community Development Amy Greyson, Assistant City Attorney Crystal Landavazo, Senior Planner Steven Fowler, Assistant Planner Dana Engstrom, Deputy City Clerk Winnie Bell, Executive Assistant APPROVAL OF AGENDA With no objections, Chair Cummings so ordered the approval of the agenda as presented. ORAL COMMUNICATIONS Chair Cummings opened oral communications. Speakers: None. There being no one present to speak, Chair Cummings closed oral communications. CONSENT CALENDAR 1. Approval of Planning Commission Meeting Minutes from June 6, 2016. Campbell moved, second by Machen, to approve the Planning Commission minutes of June 6, 2016. AYES: Cummings, Machen, Thomas, Campbell, Klinger NOES: None ABSENT: None ABSTAIN: None Motion carried PUBLIC HEARING Page 2 — Planning Commission 6/20/2016 2. Conditional Use Permit (CUP) 15 -7 and Mitigated Negative Declaration 12411 Seal Beach Blvd — Shops at Rossmoor Commercial Center Applicant: Martin Potts Request: Conditional Use Permit (CUP 15 -7) and Mitigated Negative Declaration, a request for a conditional use permit and associated Initial Study /Mitigated Negative Declaration and Mitigation Monitoring & Reporting Program, to construct a 37,000 sq. ft. health club (fitness center) within the Shops at Rossmoor in the General Commercial (GC) zoning area. Recommendation: After conducting the Public Hearing, staff recommends that the Planning Commission adopt Resolution No. 16- 13, to adopt Initial Study /Mitigated Negative Declaration with a Mitigation Monitoring Reporting Program and approve Conditional Use Permit 15 -7 with Conditions. Assistant Planner Steve Fowler presented the item and provided a PowerPoint presentation of the proposed health club which included the site location, site identification, 37,000 Sq. ft. site plan, elevations, floor plans, operating hours, parking, environmental determination, Environmental Quality Control Board, Mitigation Monitor Reporting Program, and revised resolution. Assistant Planner, Steve Fowler read condition number four into the record since it wasn't included in the original Resolution. The applicant agreed to the addition of condition number four; Mitigation Measure T -1, below, will require the removal of newly installed median landscaping on Seal Beach Boulevard. As a result, the applicant is required to offset the loss of this landscape resource, by reimbursing the City for the cost of the landscaping, up to $50,000. The amount shall be in addition to all other fees required for this project. The reimbursement cost will be specified after the City Engineer has evaluated and identified the project costs incurred for landscaping within the median. Chair Cummings opened the public hearing. Speakers: The applicant Marty Potts presented a PowerPoint presentation regarding his Conditional Use Permit (CUP 15 -7) and Mitigated Negative Declaration indicating he hopes his presentation will clear up many points of concern and confusion. He also noted he and his team accept the conditions as modified. When addressing the issues with parking, Potts proposed Rossmoor Center Way improvements as a condition to their approval. Zancolasis Rossmoor Regency Apartments resident spoke in opposition; former Planning Director for the City of Long Beach Bob Padamoster indicated his concerns regarding traffic and proposed a four way stop; Sean Wilson, Rossmoor resident, spoke in opposition; Margaret Parker spoke in opposition; Craig Motters resident on Montecito spoke in opposition; Rossmoor Community Services District President Tony Demarco spoke on behalf of the Rossmoor Community Services District Board asking that the vote be delayed to further Page 3 — Planning Commission 6/20/2016 discuss solutions regarding impacts; Melissa Kalivakatansin spoke in opposition; Rossmoor resident Nela Hartman would like to see that a pedestrian and bike study be conducted and suggests that the center is more bicycle and pedestrian friendly; Seal Beach resident Carla Watson spoke in opposition; Rossmoor resident Susan Taylor indicated she had questions for LA Fitness representatives regarding how many members they're anticipating and will they be capping the membership which were answered later in the meeting; Rossmoor resident Nancy Gibbs spoke in opposition and also had a question for LA Fitness representatives regarding physical therapists; Gina Phillips spoke in opposition; Rossmoor HOA President Rick Nickman spoke in opposition; Dave Burgis spoke in opposition; Rossmoor Regency resident Julie Jenson spoke in opposition; Rossmoor resident Thomas Cripps had concerns regarding the traffic study conducted; Rossmoor resident Bob Zadoy spoke in opposition; and Rossmoor Park Condominiums resident Craig Sandberg spoke in opposition. Commissioner Machen requested that the applicant increase security to 30 minutes before and after the hours of operation of the health club for the safety of all. She also had concerns regarding interior noise and if there would be sound proofing. Machen also indicated she likes the addition of the proposed Rossmoor Center Way lane. Commissioner Campbell expressed her concerns regarding parking and traffic at the Rossmoor Center. She indicated she also likes the proposed Rossmoor Center Way lane. Would like to see additional exit considered for south bound traffic out of the center. Commissioner Thomas had questions for the Traffic Engineer consultant from LSA Associates regarding Rossmoor Center Way and Montecito. The consultant, Donson Liu, indicated that they found minimal impact and less than 10 extra trips during peak hours. The accident analysis over the last 5 years didn't find the location to be impacted from accidents. The applicant and his representatives were brought back up to address the questions from the public. The applicant indicated they have a solution for the parking problem and are willing to work with the neighbors at their cost to add an elevated deck in a localized area for parking. The applicant agreed to the proposed increased security requested by Commissioner Machen. LA Fitness representative, Nick Roberts responded to membership questions. LSA Traffic engineer consultant, Donson Liu addressed traffic questions. MIG representative Laura Stetson, addressed CEQA and noise concerns and indicated no mediation required for air quality. Nick Roberts addressed Commissioner Campbell's question regarding the size of the LA Fitness on Valley View indicating the facility is 41,000 square feet. Commissioner Machen expressed her concern with the number of people in opposition and indicated it's difficult to determine the impacts to the residents. Page 4 — Planning Commission 6/20/2016 Commissioner Campbell is concerned with the size of the building and suggested that the building should be down sized allowing for more parking for the residents, the need for a solution for the parking for the residents possibly space they can purchase. When parking isn't available people do not come and shop. Commissioner Thomas indicated he believes the figures in the analysis are accurate and the worst issue they're facing is the clientele. He also mentioned that the lot isn't going to remain a parking lot forever, if this health club isn't approved it will be something else. The following three conditions were added to Resolution 16 -13; improvements to Rossmoor Center Drive, the addition of bicycle racks, and increased security in the rear of the building to 30 minutes before and after the hours of operation of the health club. Motion by Klinger, second by Cummings, to adopt the Initial Study /Mitigated Negative Declaration and approve Conditional Use Permit 15 -7. Both Commissioner Klinger and Chair Cummings agreed to the additional conditions added to the motion. AYES: Cummings, Thomas, Klinger NOES: Machen, Campbell ABSENT: None Motion carried 3. Minor Use Permit (MUP) 16 -4 25 A Surfside Avenue Applicant: Jose Ochoa Request: Minor Use Permit (MUP 16 -4) to allow an extension of an existing deck and the construction of a second floor balcony on a single family residence that is nonconforming due to the front yard setback and parking in Surfside Colony, Residential Low Density (RLD -9) zoned area. Recommendation: After reviewing the request, staff recommends that the Planning Commission adopt Resolution No. 16 -10, APPROVING Minor Use Permit 16 -4 with Conditions. Chair Cummings opened the public hearing. Speakers: the applicant informed the commission that additional letters supporting their Minor Use Permit were provided to staff and indicated they had a meeting with the HOA last week and are fully supportive. The Gallucci family Attorney, Tony Canzoneri, spoke in opposition, and Art Gallucci spoke in opposition. Page 5 — Planning Commission 6/20/2016 Assistant Planner Steve Fowler indicated they did not receive a copy of the lease agreement; however, a letter was received from Tony Canzoneri and was distributed to the commission at the last Planning Commission meeting. Director Jim Basham provided a point of clarification and emphasized the information presented by Attorney Tony Canzoneri is subjective in nature. Assistant Planner Steve Fowler presented a PowerPoint with an update referencing Municipal Codes regarding decking. Since the last Planning Commission meeting the applicant has provided staff with the Surfside Architectural Review Committee's approval and provided a copy to the Planning Commission as an attachment to the staff report. Assistant City Attorney, Amy Greyson asked Chair Cummings to ask Tony Canzoneri if he has discussed his concerns with the Surfside Architectural Review Committee and what was their response. Commissioner Machen indicated she was adamant at the last Planning Commission meeting about continuing this item because she was unable to speak with the Surfside Board and has since talked with the Board President and other representatives. She is now satisfied knowing that the governing body approves the plans, the applicant is within their rights and the Seal Beach Code. Assistant City Attorney, Amy Greyson indicated the 10 day appeal period begins tomorrow. Motion by Thomas, second by Machen, to approve Minor Use Permit 16-4 with Conditions. AYES: Cummings, Machen, Thomas, Klinger NOES: Campbell ABSENT: None Motion carried 4. Planned Sign Program (PSP) 16 -1 350 Main Street Applicant: Eric Lenore Request: Planned Sign Program (PSP 16 -1) a request for a conditional use permit to establish a planned sign program (PSP 16 -1) for a two story commercial center in the Main Street Specific Plan (MSSP) zoned area. Chair Cummings opened the public hearing. Speakers: Robert Goldberg indicated the diagram with the signage facing the alley is unclear and the appearance that the building is three stories, the applicant spoke regarding the changes, issues, and approves the compromises with the location of the signs. Page 6 — Planning Commission 6/2012016 Director Jim Basham clarified that the tenants of the building will only be permitted to have one row of signs not two. Assistant Planner Steve Fowler presented an update of the staff report giving an overview from the last meeting. The applicant and staff worked diligently to make changes that conformed to the Main Street Specific Plan. The front and rear signage have options as to the specific location of the signs whether on the canopy or building. Fowler reiterated that the tenants have options as to where the sign will go; however, may only have signage in one location. Lights will be on timers according to the Planned Sign Program. Jim Basham informed the Commission that the proposed pole sign has been eliminated. Commissioner Thomas asked staff what percentage of the signs were eliminated. Staff estimated 30% of the signs were eliminated. Additionally, he was concerned with the amount of signs on the back of the building. He would like to see the signs limited and a condition regarding the size of the signage. Motion by Machen, second by Klinger, to approve the Planned Sign Program (PSP 16 -1). AYES: Cummings, Machen, Thomas, Klinger NOES: Campbell ABSENT: None Motion carried. WORKSHOP 5. Zone Text Amendment (ZTA) 15 -1 Title 11: Incidental Business Activities Request: Zone Text Amendment (ZTA 15 -1) an amendment to Title 11: Zoning of the City of Seal Beach Municipal Code regarding allowable incidental business activities and potential noise thresholds. Recommendation:That the Planning Commission receive and file this report with the recommended noise threshold. Director of Community Development Jim Basham explained that the City Council has asked that the Planning Commission review specific components of the proposed noise ordinance and provide feedback. He then introduced Robert Wue who was hired to evaluate noise on Main Street. Mr. Wue provided a PowerPoint presentation titled "Survey and Noise Criteria ". During the presentation there was general feedback regarding each posed question. Chair Cummings opened the public hearing. Speakers: Bogarts owner JoAnne Adams indicated she has live music at her restaurant and feels she is respectful of the local residents and community at large, Chamber Presidents and Abby owner Tom Lowe feels Jim Basham's proposal 6 months ago was the best idea Page 7 — Planning Commission 6/20/2016 presented and proposed numerous ideas for the commission to consider, Seal Beach resident, Robert Goldberg was concerned with the standard maximum decibel level proposed and supports that the residents should not be impacted and if the standard will apply to Bay Theater. Director Jim Basham indicated a draft Ordinance will be brought back to the Commission at a future Planning Commission meeting. Chair Cummings noted the conclusion of the workshop and received and filed the report. DIRECTOR'S REPORT Director Basham had no items to report. COMMISSION CONCERNS There were no concerns from the Commission. 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BOX 235 • SURFSIDE, CALIFORNIA 90743 OFFICE (562) 592 -2352 • FAX (562) 592 -2687 www.surfsidecolony.org • surfsidecolony @verizon.net June 9, 2016 City of Seal Beach Planning Commission 211 Eighth Street Seal Beach, CA 90740 Re: 2S A — Plan Approval To Whom It May Concern: Please be advised that the Surfside Colony Architectural Review Board has reviewed and approved the plans submitted to construct a second floor 10' primary deck and two supporting columns at the above referenced property. Those plans comply with the Architectural Guidelines which are a part of the rules and regulations of Surfside Colony. Sincerely, Dave Evans Board President JUN 15 2016 L E V I T T L A W A PROFESSIONAL CORPORATION June 10, 2016 City of Seal Beach Planning Commission I c/o City Clerkj!' City Hall Jov V,�S 211 Eighth Street 1 010 Seal Beach, CA 90740' SENT VIA HAND DELIVERY & ELECTRONIC MAIL RE: Minor Use Permit 16 -4 25 -A Surfside Ave. Dear Honorable Planning Commissioners: This office represents Jason Smallwood and Breana Pennington, the owners of 25 -A Surfside Ave, a beach front home in the community of Surfside Colony, Ltd. We were retained after a neighbor and their legal counsel submitted letters in opposition of the pending application. • Dispelling the inaccuracies of those letters is necessary. As you will recall, at the last meeting, most of you were presented with information very late in the process, and Were only able to hear from the applicant and from the opposition letters and the neighbor who submitted such letters. Since that meeting, the City has been able to provide additional information which will make voting to approve the application easier, in that the true facts will have been presented and time allowed for review. F J I have reviewed the letters from Canzoneri Gotthiem Law, LLP and their client, the owner of 24 A Surfside Avenue. Both letters contain information that is presented as fact, but is quite the opposite. The letters are misleading and misrepresent the project itself, the approval process, and the course of events which have transpired. To start at the beginning, the architectural review committee of Surfside Colony, Ltd., (the "ARC ") received the blueprints for the proposed deck at the beginning of the year. The ARC met, reviewed, approved, and stamped the plans as such. The initial approval letter, subsequent verification letter of approval, and copy of the stamped plans are attached hereto as Exhibits A, B, and C, respectively. The applicant, upon receiving approval properly filed its application for the MUP. The Planning Commission meeting was properly noticed, and a vote at the June 20, 2016 meeting, will be a valid vote as the prior noticed meeting has been continued to this evening. 311 Main Street, Suite 8 • Seal Beach, CA 90740 Phone: 562 - 493 -7548 • Fax: 562-493-7562 www.levittlawea.com • www.ourlegalcounsel.com In the letters sent by the owners of 24 A Surfside Avenue, and their legal counsel, they state • the deck would be in possible violation of CEQA, and possibly coastal commission statutes. Nothing could be further from the truth. The addition of a deck to a single family residence is not subject CEQA. In fact, the construction of an entire single family residence in an area of an established community, zoned residential is not subject to CEQA, or said another way is simply exempt from CEQA studies, requirements, and approvals. In terms of California Coastal Commission approval, the applicant separately will have to make such application, as every construction project along the coast does if such scope of construction work rises to that level. Furthermore, statements that the deck is out of step with the community feel, is not only a misrepresentation of the community's character, but also outside of the purview of the Planning Commission, in that the community is a private community, with a well regulated and well run owners association, with its own Architectural Review Committee and standards, and the applicant has completed that approval process. For edification, out of the total 110 homes located on the "A Row" in the community, 33 have ten -foot in depth, second floor roof decks. Attached as Exhibits D and E are a list of all A row homes with ten -foot second story decks, and pictures of some of those homes. Additionally attached, as Exhibit F, is a letter from the next -door neighbor in support of the deck construction. Continuing, the opposition states that the deck is in violation of the Community's architectural standards, and that "pilings" would be placed on the "public" sand to support • the deck. In fact, under Surfside Colony's architectural and development guidelines, "A Row" decks, "10' in depth if unroofed" are permitted as long as the deck below is also unscreened if 10' in depth. To cite the CC &R's themselves: A strip of land 10' in depth, the width of the house and extending from the front of the A -Row property line onto the beach, may with Surfside Colony prior approval be used solely for the construction of an unroofed deck to be attached to the Residence. The applicant is building precisely what is described. In the application before you, the new deck will be 10' in depth, unroofed, and the deck below will be 10' in depth unscreened (the rounded corners will simply be squared, to match the new deck above). Furthermore, the new deck will be supported by two architecturally pleasing posts resting on the deck below, not put into the "public beach" as the opposition would have you believe. Finally, the opposition turns to the most used red herring known in land use, the applicant's project will cast "shadows" and "obstruct views ". These arguments possibly could stand up in private communities where the architectural guidelines include view preservation. Unfortunately for the opposition, this community does not include such in their guidelines. The opposition lives in a three story home, casting shadows on the applicant's much smaller • two -story residence, and would have you believe that the opposition is the one who will have 311 Main Street, Suite 8 • Seal Beach, CA 90740 Phone: 562-493-7548 • Fax: 562-493-7562 www.levittlawca.com • www.ourlegalcounsel.com • • inferior ambient lighting and views? Again these items are not considerations under the Seal Beach municipal code nor under the Surfside Colony's architectural guidelines. In summary, the project has been approved at the Community governing level, the project meets all requirements for approval tonight from the Planning Commission. And the Seal Beach planning department has recommended such approval. The deck will fit in exactly as the community was designed, to allow expression and freedom in design in the beach front community, especially with this Cape Cod style home on the sand which will blend in with so many of the others on the Row. This will just be one more home approved, along with the other 33% of Row A homes, with second floor decks. Please contact this office with any questions you might have. Sincerely Scott L. Levitt, Esq. 311 Main Street, Suite 8 • Seal Beach, CA 90740 Phone: 562-493-7548 • Fax: 562-493-7562 www.levittlawea.com • www.ourlegalcounsel.com i February 18, 201.6 Planning Department City of Seal Beach City Hall 211 Eighth Street Seal Beach, CA 90740 Re: 25 A ymelAve 9627� YA/ P. O. BOX 235 • SURFSIDE, CALIFORNIA 90743 OFFICE (562) 592 -2352 • FAX (562) 592 -2687 www.surfsidecolony.org • surfsidecolony @verizon.net To Whom It May Concern: The Architectural Review Board of Surfside Colony, Ltd. has reviewed the attached set of plans (4 sheets) and has issued their conditional approval. Please be advised that applicant needs to submit a construction application and deposit. Thank you, Architectural Review Board is • 1Qr IrI� P. O. BOX 235 • SURFSIDE, CALIFORNIA 90743 OFFICE (562) 592 -2352 • FAX (562) 592 -2687 www.surfsidecolony.org • surfsidecolony @verizon.net June 9, 2016 City of Seal Beach Planning Commission 211 Eighth Street Seal Beach, CA 90740 Re: 25 A — Plan Approval • To Whom It May Concern: Please be advised that the Surfside Colony Architectural Review Board has reviewed and approved the plans submitted to construct a second Floor 10' primary deck and two supporting columns at the above referenced property. Those plans comply with the Architectural Guidelines which are a part of the rules and regulations of Surfside Colony. 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Row A - Addresses of Existing Homes with 10' Deep Second Story Decks 10- Jun -16 2 A Surfside Ave. 3 A Surfside Ave. 5 A Surfside Ave. 8 A Surfside Ave. 15 A Surfside Ave. 45 A Surfside Ave. 55 A Surfside Ave. 59 A Surfside Ave. 61 A Surfside Ave. 67 A Surfside Ave. 69 A Surfside Ave. 70 A Surfside Ave. 71 A Surfside Ave. 76 A Surfside Ave. 77 A Surfside Ave. 78 A Surfside Ave. • 86 A Surfside Ave. 87 A Surfside Ave. 88 A Surfside Ave. 95 A Surfside Ave. 96 A Surfside Ave. 98 A Surfside Ave. 100 A Surfside Ave. 103 A Surfside Ave. 105 A Surfside Ave. 106 A Surfside Ave. 107 A Surfside Ave. 110 A Surfside Ave. 114 A Surfside Ave. 116 A Surfside Ave. 118 A Surfside Ave. • n U EXHIBIT "E" wow L M ,4„ 1j1111 ` i 4 kj0r� i � " �t ��"3�{',•{�Phi 1•K'� "°.�2.'�,n' W" c � . '.w � ;zy t: �'i �+�(i•e �x 9 1, S I r k d'iR. 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It is my understanding that the Surfside Architectural Committee has approved the • detailed plans and as such they are in compliance with the deck lease and related rules and regulations. Therefore there should be no issues as to their rights to complete their new deck. Thank you, • • Attachment "G" FRED GAINES SHERMAN L. STACEY LAw OFFICES OF LISA A. GAMS & STACEY LLP REBEL AA. THOM REBECCA A. THOMPSDN' 16633 VENTURA BOULEVARD, SUITE 1220 NANO SESSIONS - STACEY KIMBERLY A. RIBLE ENCINO, CA 91436 -1872 ALICIA B. BARTLEY I '.aNestlmYmpbMbn July 19, 2016 ORIGINAL SENT BY U.S. MAIL VIA EMAIL smassalavitt(a sealbeachea.gov Sandra Massa - Lavitt, Mayor Seal Beach City Council City of Seal Beach 211 Eighth Street Seal Beach, CA 90740 Re: July 25, 2016 Seal Beach City Council Meeting Opposition to Minor Use Permit 164 Dear Mayor Massa - Lavitt and Honorable City Councilmembers, TELEPHONE (818) 933-0209 FACSIMILE (818) 933-0222 INTERNEE: W .,3AINESIAW.CCM This office represents Mr. And Mrs. Arthur Gallucci ( "Appellant "), the owners of the p-operty located at 24 A Surfside Avenue, with regard to the pending appeal of Minor Use Permit 16 -4. Minor Use Permit 16 -4, a request to allow the extension of an existing deck and the construction of a second floor balcony on a single family residence located at 25 A Surfside Avenue, was approved by the Planning Commission at its meeting on June 20, 2016. The second floor balcony adversely affects uses and properties in the immediate surrounding neighborhood, and the Planning Commission abused its discretion in approving the project. On behalf of Appellant, we therefore respectfully urge the City Council to grant the pending appeal and overturn the Planning Commission's approval of Minor Use Permit 16-4. Findings for Approval of the Use Permit Cannot Be Made. Seal Beach Municipal Code ( "SBMC ") § 11.5.20.005 A provides that the Planning Commission may issue minor use permits for certain uses that require special consideration "to ensure that they can be designed, located, and operated in a manner that will be compatible with surrounding uses and not interfere with the use and enjoyment of surrounding properties." in furtherance of that objective, SBMC § 11.5.20.020 A provides that a use permit "shall only be granted" if the Planning Commission makes certain findings, based upon evidence presented at the hearing, including that the "location, size, design, and operating characteristics of the proposed use will be compatible with and will not adversely affect uses and properties in the surrounding neighborhood." SBMC § 11.5.20.020 A.4 (emphasis added). Sandra Massa - Lavitt, Mayor Seal Beach City Council July 19, 2016 Page 2 Here, substantial evidence was submitted to the Planning.Commission at the public hearing that supports that the proposed balcony, and the two large pilasters that are required to support it, will adversely affect both uses and properties in the immediately surrounding neighborhood. Appellant's home is located immediately adjacent to the subject property, and Appellant presented evidence to the Planning Commission that the large balcony and pilasters and the proposed development will adversely impact Appellant's views toward the west - setting sun, adversely affecting the value of his property and his use of his own home and deck. See enclosed photo exhibit.) In addition, Appellant presented evidence that the proposed balcony is inconsistent and incompatible with the adjacent properties, the vast majority of which have a five -foot deck on the second floor. Resolution No. 16 -10, which reflects the Planning Commission's approval of the Minor Use Permit fails to cite any evidence to refute the points raised by Appellant, and instead relies on the general statement that `Balconies and decks are common non - habitable architectural features associated in this zoning district." The Planning Commission's reliance on this general finding ignores the objective of SBMC § 11.5.20.005 A, to ensure that generally non - controversial uses "can be designed, located, and operated in a manner that will be compatible with surrounding uses and not interfere with the use and enjoyment of surrounding properties." Based upon the foregoing, the Planning Commission clearly erred in approving Minor Use Permit 16-4, and its decision must be overturned. Project Approval Based Upon a CEOA Exemption Was Improper The City determined that the project qualified for a Class 1 (existing facilities) Categorical Exemption pursuant to CEQA Guidelines § 15301. "Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination." 14 Cal. Code Regs. § 15301. However, it is basic CEQA law that categorical exemptions are subject to exceptions that defeat the use of the exemption. Great Oaks Water Co. v Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 966 n.8. Although a project might otherwise be eligible for a categorical exemption, an exemption must be denied if, for example, there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. 14 Cal. Code Regs. § 15300.2(c). Application of this test involves two distinct inquiries: (1) whether the project presents unusual circumstances, and (2) whether there is a reasonable possibility that a significant environmental impact will result from those unusual circumstances. Voices for Rural Living v. El Dorado Irrie. Dist. (2012) 209 Ca1.App.4th 1096. Here, the project does in fact present unusual Sandra Massa - Lavitt, Mayor Seal Beach City Council July 19, 2016 Page 3 circumstances. While balconies and decks are common architectural features, here, the proposed balcony is twice as large as the majority of the second floor balconies in the area. And, it is precisely because of that large size that the project will have a significant impact on coastal views and sun exposure by adjacent homeowners. The Planning Commission erred in finding the project categorically exempt under CEQA, and its approval of Minor Use Permit 16 -4 must be overturned. The Planning Commission Approval Violates Surfside Colony Rules and Regulations. The Planning Commission failed to consider the Rules and Regulations of Surfside Colony in approving the project, the Architectural Guidelines for which specifically state that, "Decks shall not obstruct the view of adjoining neighbors." This restriction reveals the unique nature of Surfside Colony, where coastal views are critical to the community as a whole. In addition to violating the Rules and Regulations, the proposed second floor balcony violates the A -Row Frontage Lease ( "Lease ") that the Applicant has entered into with Surfside Colony. Such Leases are required for all A -Row homeowners within the community that desire to improve their homes with a deck or decks that extend out onto the beach. The Lease provides that a homeowner may construct and/or maintain only specified structures on the leased premises. Relevant here, Section 2.A of the Lease permits the Lessee to construct and maintain one unroofed deck that extends up to ten (10) feet westerly of the residence. "A deck extending more than five (5) feet westerly from the Residence shall be called the `Principle Deck. "' The Lease hermits one or more "Secondary Decks" to be constructed and/or maintained in addition to the "Principle Deck," but pursuant to Section 2.B, the Secondary Deck may extend no more than five (5) feet westerly of the residence. Here, Minor Use Permit 16-4 purports to approve a 14 square foot extension to the existing fast floor deck of the property, which is shown on the project plans to extend ten (10) feet westerly of the residence. According to the terms of the Lease, the existing first floor deck must then be considered the "Principle Deck." Lease; § 2.A. As such, the proposed second story deck is a "Secondary Deck" under the lease, and it is limited to extending no more than five (5) feet westerly of the residence. The proposed second floor deck, which extends ten (10) feet westerly of the home, is in express violation of Section 2.B of the Lease. By failing to take into account the Rules and Regulations and the unique nature of the Surfside Colony community, the Planning Commission has effectively overtaken and ignored private landowner interests that control development on the property in question. The City is Sandra Massa - Lavitt, Mayor Seal Beach City Council July 19, 2016 Page 4 establishing a dangerous precedent that risks a loss of certainty for property owners, as well as a loss of value, desirability, and general consistency of the neighborhood community. Based upon the foregoing, we respectfully request that the City Council overturn the Planning Commission's approval of Minor Use Permit 16-4. Thank you for your consideration of this: As always, please do not hesitate to contact me at any time with any comments or questions that you may have, Sincerely, GAINES & STACEY LLP By FRED G S cc: Mike Varipapa, Mayor Pro Tern (Via Email: mvaripapa(a)sealbeachea.eovl Ellery A. Deaton, Councihnembei (Via Email: edeatonna sealbeachca.eov) David W. Sloan, Councilmember'(Via Email: sloandistrict2r!verizon.net) Gary A. Miller, Councilmember (Via Email: gmiller(asealbeachca.gov) Robin Roberts, City Clerk (Via Email: rroberts .sealbeachca.gov) 'el }:E .5�{ !fAY: 1`�. .. � .� %`y �4r ... �MT'P, y y} a. - a r i +u� i1 Lt . .. J