HomeMy WebLinkAboutV 98-01; Nessim Residence; Variance (V)c A
line City of CARLSBAD Planning Departmela‘
A REPORT TO THE PLANNING COMMISSION -
P.C. AGENDA OF: May 6, 1998
Application complete date: February 3, 1998
Project Planner: Michael Grim I Project Engineer: Clyde Wickham
SUBJECT: V 98-01 - NESSIM RESIDENCE- Request for a Variance to the R-1, One-
Family Residential building height regulations to legalize an existing, non-
conforming three-story structure and allow a three-story expansion of that
structure, located at the northwest corner of Carlsbad Village Drive and Highland
Drive, in Local Facilities Management Zone 1.
I. RECOMMENDATION
That the Planning Commission ADOPT Planning Commission Resolution No. 4286 DENYING
Variance V 98-0 1, based upon the findings contained therein.
11. INTRODUCTION
The proposal involves a request for a variance to the R-1, One-Family Residential building
height regulations. The variance has two components. The first component involves legalizing
an existing, non-conforming three-story structure and the second component involves allowing a
three-story expansion of that structure on the northwest corner of Carlsbad Village Drive and
Highland Drive. While the City is not taking any abatement actions on the existing three-story
structure, any expansion of that structure must comply with the zoning codes applicable at the
time of building permit issuance. Staff cannot support the variance because the required findings
cannot be made. In addition, a Conditional Use Permit would have to be approved by the
Planning Commission for any expansion of the non-conforming existing structure.
111. PROJECT DESCRIPTION AND BACKGROUND
The applicant is requesting a variance to the R-1, Single Family Residential building height
maximums for the existing three-story structure located on the northwest comer of Carlsbad
Village Drive and Highland Drive. The existing, non-conforming building shares the lot with a
small, one-story dwelling unit. No garages or other structures exist on the property. The
property slopes gently from east to west and there is a small side slope along the Carlsbad
Village Drive street frontage. West of the property is the City Library parking lot, while the rest
of the surrounding neighborhood is characterized by mostly one-story single family homes.
The proposed expansion of the existing three-story structure is shown on Exhibits “A” - “C”,
dated May 6, 1998. The proposed architectural style would be Queen Anne Victorian, involving
such components as steeply pitched roof shapes, a stair tower, covered decks and multiple wall
V 98-01 - NESSIM RESIDbACE
May 6,1998
Page 2
surfacing, including textured shingles and timbering. The building would be expanded in the
front by adding an entry area, with wine storage below. In the rear is proposed a three-story
portion, including covered decks and open stairways, with a four car garage below.
The pertinent history of the proposed Victorian house dates back to 1990, when the applicant
applied for and received, a building permit for a three story expansion similar to that shown in
the attached exhibits. Since the R-1 building height maximum was 35 feet and three stories, the
Planning Department approved the building permit and the permit was issued. Over the next
nine months, no progress was made on the construction of the building and no Building
Department inspections were requested or performed. After receiving a 180 day extension, the
building permit expired in February of 1993 due to inactivity. Mr. Nessim reapplied for a
building permit in September of 1993, but the R-1 building height maximums had been revised
to 30 feet and two stories and the permit was denied.
In April of 1996, the applicant applied for a building permit to construct a stair tower. Since the
Victorian architectural style was not an issue in and of itself, and the proposed stair tower met the
current R-1 building height regulations, the permit was approved and issued in July of 1996. The
stair tower is now constructed and its relationship to the ultimate development scheme is shown
on Exhibits “A” - “C”, dated May 6, 1998. Nevertheless, this building permit appears to have
been issued in error, as a Conditional Use Permit was a necessary antecedent because the house
was a legal, but nonconforming structure. The CUP was not processed. (See “Analysis, Section
D” for more information).
Variances have been issued for other proposals exceeding building height limits, however the
circumstances involved with these cases are completely different from the current proposal. Two
of the more recent variances included the Sea Bisquit (SDP 96-16N 96-01) and St. Tropez (CT
90-07N 90-02) projects, both located on the west side of Ocean Street. Since these properties
have a steeply sloping topography on the western two-thirds of their sites, it is difficult to meet
the building height restrictions and still design livable levels within the structure, without
requiring a large amount of fill on the coastal bluff. The building height variances were justified
by the extreme topography, and the fact that the street access is located at the top of the lot. The
slightly sloping topography of the Nessim property does not mimic that of a coastal bluff.
The Nessim Residence variance request is subject to the following regulations:
A. General Plan:
B. R-1 , One-Family Residential Zone (Chapter 2 1.10 of the Zoning Ordinance); and
C. Variance - Conditional Use Permit Ordinance (Chapter 21.50 of the Zoning
Ordinance).
D. Non-Conforming Uses (Chapter 21.48 of the Zoning Ordinance).
r
PROPOSED USES AND
IMPROVEMENTS
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Page 3
COMPLIANCE
IV. ANALYSIS
The recommendation for denial of this project was developed by analyzing the project's
consistency with the applicable policies and regulations listed above. The following analysis
section discusses the lack of compliance with each of these regulations/policies utilizing both
text and tables.
A. General Plan
The proposed Nessim Residence variance request is not consistent with the applicable policies
and programs of the General Plan. Particularly relevant to the non-conforming, single family
addition are the Land Use and the Open Space and Conservation Elements. Table 1 below
indicates how the project does not comply with these particular elements of the General Plan.
ELEMENT
Land Use
Open Space
and
Conservation
TABLE 1 - GENERAL PLAN COMPLIANCE
USE CLASSIFICATION, GOAL,
OBJECTIVE OR PROGRAM
To preserve the neighborhood
atmosphere and identity of existing
residential areas.
To encourage property owners to
utilize all available incentives for the
preservation of historic resources.
Proposed three-story
addition would bring
building further out of
character with the
neighboring one- and two-
story single family homes.
No
If existing three-story house
is considered historic, then
no alteration of the original
structure should be allowed.
If existing house is not
considered historic, then its
non-conformity should not
be expanded.
No
In addition to the above, the Master Environmental Impact Report for the 1994 General Plan
Update calls for full implementation of the zoning regulations, including building height, to
preclude potentially significant aesthetic impacts.
B. R-1, One Family Residential Zone
The Nessim Residence is zoned R- 1 - 10,000 and is therefore subject to the provisions of the R- 1
zone. The maximum building height allowed in an R-1 zone is 30 feet for pitched roofs and 24
feet for flat roofs (less than 3:12 roof pitch). The maximum number of stories is two, regardless
of roof pitch. The Zoning Ordinance defines a story as the space between the surface of any
floor and the surface of the floor next above it. If there is no floor above it, then the space
V 98-0 1 - NESSIM RESIDbl\JCE
May 6,1998
Pane 4
between such floor and the ceiling next above it shall be considered a story. Because of this
definition, roof decks cannot be covered without creating a story.
As shown on Exhibits “A”-“C”, dated May 6, 1998, the proposed development would expand the
existing three-story structure, creating a new three-story portion. The three stories include the
lower level den, the main level sitting and dining rooms, and the upper level study and covered
deck. Also proposed below the three story addition is a four-car garage. Since this garage would
be more submerged into the existing topography than emerged, it would qualify as a basement
and not be counted in the total number of stories. The emerged portion would be counted
towards the building height calculations.
By making grade adjustments, not included in this development scheme, the proposed expansion
may be able to meet the 30 foot height maximum. The proposal involves three stories, however,
which is not allowed in the R-1, One Family Residential Zone. The applicant has alternatively
proposed that the upper level study area be left open to the below dining room. This would
eliminate the third story for a portion of the addition, however the upper level covered deck still
qualifies as a story, thereby constituting a three-story addition.
Since the applicant is requesting a Variance to the R-1 development standards, an evaluation into
the intent behind those standards is necessary to evaluate the merit of the variance. When the
1994 Building Height Revisions were being formed, the controlling source of regulation was not
necessarily the actual building height, rather a restriction on the number of stories, Much of the
discussions at the building height workshops with developers, staff and interested parties focused
on how tall a single family or duplex structure needed to be to accommodate two stories. There
were several building heights explored to satisfy the builders’ and architects’ need for creativity
and 30 feet was decided as being more than adequate to accommodate a two-story home. Given
that the building height regulations were focused more on the maximum number of stories, rather
than actual height, staff cannot support the proposed variance for a three-story, single family
home.
C. Variances - Conditional Use Permits Ordinance
Section 21.50.030 of the Zoning Ordinance lists the findings required to grant a variance.
Detailed below is an analysis of each required finding as it applies to the proposed building
height variance. The applicant’s analysis of these same findings can be found in Attachment No.
4 - Variance Justification Form.
1. That there are exceptional or extraordinary circumstances or conditions
applicable to the property or to the intended use that do not apply generally to
the other property or class of use in the same vicinity and zone.
There are no exceptional or extraordinary circumstances or conditions applicable to
the property. The subject property is approximately the same size as the
surrounding residential properties, measuring over 10,000 square feet in area
(approximately 66.45 feet by 158 feet). The property slopes downward to the west
at roughly a 10 percent slope, similar slope to the adjacent properties along
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Page 5
Highland Drive. While the property is subject to a street side setback of 10 feet, it
is still subject to the same front, side, and rear setbacks as other corner lots in the
vicinity and zone. Since the surrounding residential areas are also zoned R- 1, One
Family Residential, they are subject to the same building height restrictions. The
existing conditions therefore allow a similar development intensity for the subject
property as with the surrounding residential properties.
There are also no exceptional circumstances associated with the buildings on the
subject property. As mentioned in Section A above, the only potentially
exceptional circumstance would be if the existing three-story house was considered
historic. It that case, however, the building should remain in its historically
accurate state and then no alteration should be allowed. Given that the site and
buildings are not exceptional or extraordinary, this required finding cannot be made.
2. That the requested variance is necessary for the preservation and enjoyment of
a substantial property right possessed by other property in the same vicinity
and zone but which is denied to the property in question.
The requested variance is not necessary for the preservation or enjoyment of a
substantial property right. As discussed in relation to the first finding, the lot does
not possess constraints beyond those incurred by other corner lots in the area. The
neighborhood is characterized by one-story and two-story homes and there are no
other three story homes within the vicinity. The subject property can obtain an
equivalent amount of internal square footage as the neighboring properties without
need for a building height variance. Since the existing structure is non-conforming,
and no other three-story homes exist in the neighborhood, its expansion does not
qualify as a substantial property right possessed by others in the zone. Given the
above, this required finding cannot be made.
3. That the granting of this variance is not materially detrimental to the public
welfare or injurious to the property or improvements in the vicinity and zone
in which the property is located.
The granting of this variance may be materially detrimental in that it cause, or
create the ability for other properties to cause, aesthetic and privacy impacts. As
mentioned above, the goal of the 1994 Building Height Revisions was to reduce the
number of stories and overall building height in the single family neighborhoods.
Deviation from this goal may cause the materially detrimental aesthetic and privacy
impacts that were being avoided with the lessened number of stories building
height.
4. That the granting of this variance will not adversely affect the comprehensive
General Plan.
The granting of this building height variance may adversely affect the General Plan
because building height is specifically mentioned in the environmental analysis for
V 98-01 - NESSIM RESIDbNCE
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Page 6
potentially significant aesthetic impacts caused by development. The Master
Environmental Impact Report for the 1994 General Plan Update (MEIR 93-01)
states that, in order to implement the General Plan without incurring potentially
significant aesthetic impacts, development must conform to the building height
zoning regulations. Once again, the granting of the variance may cause, or create
the ability for other properties to cause, potentially significant aesthetic impacts.
D. Non-Conforming Uses - Abatement and Alterations
When the City Council reduced the height limits for the R-1 Zones from 35 to 30 feet, Mr.
Nessim’s then-existing house became a legal, but nonconforming use under Chapter 21.28 of the
Municipal Code.
Municipal Code Section 21.48.060 requires that the nonconforming aspects of a non-conforming
building be amortized (brought into conformance with the current code) over a period of time.
For wooden frame residential buildings this amortization must occur within forty years of the
original construction. In addition, Municipal Code Section 2 1.48.080(a) states that, generally, a
non-conforming use or building shall not be altered, improved, reconstructed, restored, repaired,
intensified, expanded, or extended, except under very limited circumstances, during this
amortization period. The three allowed exceptions are for a) partially-destroyed buildings
[21.48.080(b)], b) repair or reconstruction necessitated as a result of normal wear and tear
[21.48.080( c)], and a special provision [21.48.080(d)] under which the Planning Commission
may approve alterations or improvements subject to a conditional use permit with very narrow
and specific conditions applied. These conditions would include: 1) the value of the additions or
alterations could not exceed twenty-five percent of the value of the building at the time the
permit was requested, 2) the change is specifically designed to be easily removed, and 3) the
changes would meet all current provisions of the Municipal Code, including setback, height and
other limitations. In approving this conditional use permit the Planning Commission is also
required to establish a date by which all non-conforming structures and uses would be made
confirming or be removed from the site, and this time frame could not exceed the normal
amortization period, in this case forty ‘years from the original construction of the house.
The implication of Section 21.48.080(d) is that even if the Planning Commission or, on appeal,
the City Council, were to approve the requested variance, a building permit for Mr. Nessim’s
proposed modifications to the currently non-conforming structure could not be approved without
the Planning Commission first approving a Conditional Use Permit, as just described.
In April of 1996, after the building became legal, but non-conforming, the applicant was granted
a building permit to construct a stair tower, which was then built. Although the tower appears to
conform to the new 30-foot height limit, it constituted a prohibited expansion due to the non-
conforming nature of the building. No Conditional Use Permit was issued and no amortization
period was established pursuant to Section 21.48.080(d). Therefore, the permits for the
construction of the stair tower were issued in error by the City. If a Conditional Use Permit for
the applicant’s current proposal is pursued, the project description should also include the stair
tower.
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V. ENVIRONMENTAL REVIEW
The proposal does not meet the standards of the Zoning Ordinance and the findings required for a
variance cannot be made. In addition, the proposal does not satisfy the Master Environmental
Impact Report for the 1994 General Plan Update mitigation measures for potentially significant
aesthetic impacts. The project is recommended for denial by staff and no environmental review
was conducted. Should the proposal be denied, the project would be statutorily exempt from
environmental review pursuant to Section 15270 of the State CEQA Guidelines. In order for the
proposal to be approved, a Negative Declaration would need to be prepared and approved. Since
the project is not consistent with the General Plan and Zoning Ordinance, the project is not in
Prior Environmental Compliance with the Master Environmental Impact Report for the City’s
1994 General Plan Update.
ATTACHMENTS:
1.
2. Location Map
3. Background Data Sheet
4.
5.
Planning Commission Resolution No. 4286
Variance Justification Form, completed by applicant
Exhibits “A” - “C”, dated May 6, 1998
MG:kc:mh
NESSIM RESIDENCE
V 98-01
BACKGROUND DATA SHEET
CASE NO: V 98-01
CASE NAME: Nessim Residence
APPLICANT: Garv Nessim
REQUEST AND LOCATION: Request for a variance to the R-1 building height regulations to
allow a three story expansion to an existing, non-conforming three story single family house on
the northwest corner of Carlsbad Village Drive and Highland Drive.
LEGAL DESCRIPTION:
Office of the County Recorder Februarv 28. 1.980, County of San Diego, State of California.
Parcel 2 of Parcel Map 9739, City of Carlsbad, filed in the
APN: 156- 190-68 Acres: 0.25 Proposed No. of LotsRJnits: N/A
GENERAL PLAN AND ZONING
Land Use Designation: RLM - Residential Low Medium Densitv
Density Allowed: 0.0 - 3.2 ddac Density Proposed: N/A
Existing Zone: R- 1-1 0.000 Proposed Zone: N/A
Surrounding Zoning and Land Use: (See attached for information on Carlsbad’s Zoning
Requirements)
Zoning
-_ Site R- 1 - 10,000
North R- 1 - 10,000
South R-P
East R- 1 - 10,000
Land Use
Single family residential
Single family residential
Library parking lot
Single family residential
~~
West R-P & R-1-10,000 Single family & vacant
PUBLIC FACILITIES
School District: Carlsbad Unified Water District: Carlsbad Sewer District: Carlsbad
Equivalent Dwelling Units (Sewer Capacity): i EDU
Public Facilities Fee Agreement, dated: N/A
ENVIRONMENTAL IMPACT ASSESSMENT
0 Negative Declaration, issued
0
0
Certified Environmental Impact Report, dated
Other, Exempt pursuant to Section 15270 of the State CEOA Guidelines
- CITY OF CARLSRFID 7613 431 5769 P,04/04
JWSTIFICATION FOR VARIANCE
By law a Variance may be approved only if certain facts arc found to exist. Please read these
requirements carefully and explain how the proposed project meets each of these facts. Use additional
sheets if necessary.
4. Explain why the gmnting of such vdriance will not adversely affect the comprehensive general
plan: I
0
FRM0004 5/96