RESOLUTION NO . 97-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HERMOSA BEACH, CALIFORNIA APPROVING A VARIANCE FOR A SINGLE-FAMILY DWELLING AT 2429 MYRTLE AVENUE, LEGALLY DESCRIBED AS LOT 24, TRACT 1031

The City Council of the City of Hermosa Beach does hereby resolve and order as follows:

Section 1. An application was filed by Jim and Jane Berry, owners of real property located at 2429 Myrtle Avenue in the City of Hermosa Beach, seeking a variance from the side yard requirement of Section 17.08.030(c) of the zoning ordinance relative to a substantial remodel of an existing single-family residence with nonconforming sideyards.

Section 2. The Planning Commission held a duly noticed public hearing on June 17, 1997, at which the Commission heard and considered written and oral testimony regarding the requested variances. In its P.C. Resolution No. 97-45 the Commission approved the requested variance to allow a 2.2 foot side yard on the south side of the property, and denied the request for a zero side yard on the north side of of the property.

Section 3. The decision of the Planning Commission was timely appealed by Daniel Valenzuala, John and Kathy Dunbabin, and Bo Webber asserting that the Commission had erred in its determination of the allowable height of the remodeled structure, and further that the project did not qualify for receipt of a variance.

Section 4. The City Council conducted a duly noticed de novo public hearing to consider the appeal on July 22, 1997, at which considerable testimony and evidence, both written and oral, was presented to and considered by the Council. Testimony was received from the applicants and their attorney, the appellants and their attorney, and other interested persons.

Section 5. Based on the evidence received at the public hearing, the City Council makes the following factual findings:

1. The subject residence was initially lawfully constructed in 1922 at its original location. At some point thereafter, the zoning ordinance was amended to require greater sideyards than are provided by the structure, thus making it legal nonconforming structure pursuant to Section 17.52 of the Municipal Code.

2. The applicants desire to remodel and add to their residence without adhering to the now applicable side yard requirements contained in the zoning ordinance Section 17.08.030(c), requiring a three (3) foot side yard. In order to do that they need a variance pursuant to Chapter 17.54 of the Municipal Code.

3. On the south side of the property, the structure encroaches ten (10) inches into the required side yard. In order to cure that nonconformity, the applicant would be required to completely demolish an existing basement and first story wall and fireplace/chimney structure, which are not proposed to be affected by the remodel. The Planning Commission found that the longstanding existence of this substantial structure encroaching a small degree in the required side yard created an exceptional circumstance justifying the grant of a variance.

4. On the north side of the property, the applicants proposed to maintain a storage area and stairway/landing in the side yard. The Planning Commission found that this element could be removed from the project without hardship and denied the requested variance for the north side of the property. The applicants did not appeal this finding, and it is not the subject of this appeal.

5. A considerable amount of testimony during the public hearing was devoted to the staff's determination of allowable height of the proposed remodel, which is not a part of the variance application. Staff determined that existing eastern corner point elevations could not be established due to substantial erosion on the property and that significant variations existed relative to adjacent properties. Under those circumstances, the zoning ordinance definition of "building height" and "grade" (Section 17.04.040 of the Municipal Code) dictates that height be measured from the elevation of nearest public improvement, and accordingly, staff used the street elevations on the east side of the property and the corner points on the west side as the basis for the height calculation for the proposed structure. The Commission accepted this determination. Appellants argued that staff was mistaken to utilize the "nearest public improvement" standard.

6. The evidence concerning height demonstrated that the eastern portion of the property had suffered from substantial erosion and that significant variations existed at the eastern corner point elevations with adjacent properties.

Section 6. Based on the foregoing factual findings, the City Council makes the following findings pertaining to the application for a variance from the side yard requirements of the zoning ordinance on the south side of the property:

1. There are exceptional circumstances relating to the property in that the existing structure has been in its present location for many years, encroaches only nominally in the side yard, and would require substantial demolition and disruption of the property to be removed. The lot is narrow, and little would be gained by moving the south wall of the existing basement, foundation and chimney ten (10) inches to the north and demolishing the fireplace structure (which would be necessary to maintain adequate widths for two parking spaces). The variance involves only 15% of the total perimiter of the structure, which otherwise will comply with Zoning Ordinance requirements.

2. The variance is necessary for the enjoyment of a substantial property right possessed by other properties in the vicinity, many of which are either similarly nonconforming or have received side yard variances similar to or more intrusive than the variance sought herein. Absent the variance, the applicants will not be able to make use of an existing and fully functional basement level two-car garage and fireplace/chimney, which would have to be destroyed to obtain exact compliance with Zoning Ordinance requirements.

3. The requested variance will not be materially detrimental to the public welfare or injurious to property or improvements in the vicinity in that it is relatively minor, the new wall will be constructed without windows on the lower floor, and the two windows on the upper floor will be recessed as to comply with the required side yard dimension for openings pursuant to the Uniform Building Code.

4. The proposed variance does not conflict with and is not detrimental to the General Plan, in that the remodel constitutes an improvement of an aging structure in the low density General Plan designation, and the R-1 Single-Family residential zone and brings the structure into greater conformity with development standards than at present.

Section 7. As regards the calculation of the height of the structure, the City Council concurs with the staff's determination of height based on the elevation of the nearest public improvement. The evidence presented to the Council supports the conclusion that there exists a significant variation at the corner points with adjoining properties, and that the staff's determination of height is reasonable and consistent with the methodology set forth in the zoning ordinance under these factual circumstances.

Section 8. The City Council finds that the variance is categorically exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15305 of the State CEQA Guidelines, in that it allows a minor setback variance and does not result in any change in land use or density.

Section 9. Based on the foregoing, the Planning Commission's approval of the requested variance is hereby sustained, subject to the following conditions:

1. The project shall be consistent with submitted plans modified pursuant to the conditions noted below. Any further minor modifications to the plan shall be reviewed and may be approved by the Community Development Director.

a) Plans shall be revised to comply with the minimum required 3-foot side yard requirement along the north side yard.

2. The Variance is specifically limited to the existing 2.2-foot south side yard, and applicable to the situation and circumstances that result relative to the proposed expansion and remodeling of the existing structure, including the maintenance of the existing fireplace structure, and is not applicable to the development of new structures or any future expansion.

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