HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

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1 CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 8 March 27, 2012 TO: FROM: PREPARED BY: APPROVED: TITLE: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Community Development Department Kimberly Brandt, AICP, Director , kbrandt@newportbeachca.gov James Campbell, Principal Planner Height of Fences, Hedges, Walls and Retaining Walls Code Amendment No. CA (PA ) ABSTRACT: The City adopted a comprehensive update of the Zoning Ordinance in October of The provisions establishing how the height of height of fences, hedges, walls and retaining walls were changed in low lying areas, principally Balboa Island, West Newport, and Balboa Peninsula. The change has created taller fences and walls in setback areas warranting review and possible amendment. RECOMMENDATION: 1) Conduct a public hearing; and 2) Introduce Ordinance No (Attachment No. CC1) approving Code Amendment No. CA and pass to second reading for adoption on April 10, FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: Historically, residential fences, hedges and walls (herein referred as fences ) in side and most rear yard setback areas have been limited to 6 feet in height. Fences in front yard setback areas have been limited to 3 feet in height; however, in Old Corona del Mar, West Newport, Balboa Peninsula, and Balboa Island, fences are allowed to be 5 feet in overall height provided the upper 3 feet is constructed of materials than maintain a minimum of 40 percent open area. 1

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3 Code Amendment No. CA (PA ) March 27, 2012 Page 2 With the comprehensive update of the Zoning Ordinance adopted in October 2011, fences in front yard setback areas were increased from 36 inches to 42 inches in height to accommodate a change in the California Building Code. The side and rear yard height limit was increased to 8 feet when a residential lot abuts a commercial lot, industrial lot, or commercial alley, and the allowance for 5-foot high fences in Old Corona del Mar, West Newport, Balboa Peninsula, and Balboa Island was maintained. Issue Measurement of Height The height of fences has historically been measured from the natural grade, which in most cases was existing grade. With the adoption of the comprehensive update of the Zoning Ordinance, the grade for measuring the height of accessory structures including fences in all low lying areas (principally on Balboa Island, Balboa Peninsula and West Newport) was changed to be existing grade or the minimum flood hazard elevation, which is 9.0 North American Vertical Datum 1988 (NAVD88) 1. The change in the method for measuring height has resulted in property line fences and walls to be as high as 9 feet in side and rear yard setback areas and potentially as high as 8 feet in front setback areas abutting sidewalks. This is due to the grade differential between existing grade and 9.0 NAVD88. These taller walls impact abutting lots and the public sidewalk changing the physical character of the area. The side property line wall shown to the right is approximately 9 feet high with the lower 3 feet to be filled to create a building pad to support a new home with a minimum slab elevation of 9.0 NAVD88. The abutting structure has a legal nonconforming setback. 6 feet 3 feet 1 It should be noted that new homes are required to have their foundation slab constructed at 9.0 NAVD88 and the height limit for the home is measured from this elevation. This is not a new policy introduced with the updated zoning ordinance. 3

4 Code Amendment No. CA (PA ) March 27, 2012 Page 3 It is important to recall that one of the guiding principles of the Zoning Ordinance update was to simplify regulations and processes. The change in the method for measuring the height of fences was introduced to facilitate new construction in low lying areas by providing design flexibility. It allows patio construction at or near the finished floor of the home as it allows property line fences and walls to be higher thereby avoiding the need for property owners to seek relief through a Modification Permit or Variance application. Proposed Amendment On March 8, 2012, the Planning Commission considered the following proposed amendment and recommends adoption. In side setback areas, the amendment would measure the height of fences from the existing grade prior to construction and the proposed finished grade. The proposed standard would be 9 feet above existing grade and 6 feet above proposed finished grade. Additionally, a fence would be no higher than 9 feet from the existing grade of the abutting property. Lastly, portions of a fence taller than 6 feet from existing grades would be required to constructed with materials that provide a minimum 60% open area or be semi-transparent (i.e. frosted glass to allow some light to pass through). Subsequent to the Planning Commission s consideration, staff has included an additional provision that eliminates the 60% open area requirement when the grades of two abutting properties have been raised as this circumstance would result in a 6-foot high fence between the lots and there would be no compelling reason to require open fencing materials. In front setback areas, the height of fences would be measured from existing grade and follow the historic standard the City has used for many decades depicted in the figure below. Although the proposed amendment affects regulations that apply citywide, the changes would only be realized in low lying areas (Balboa Island, Balboa Peninsula and West Newport) where the Zoning Ordinance requires a residential finished slab to be increased to 9.0 NAVD88. Abutting property owners and pedestrians on the public 4

5 Code Amendment No. CA (PA ) March 27,2012 Page 4 sidewalk would be protected to a degree from taller fences. The draft amendment includes several additional clarifying items to ensure internal consistency of terms. Alternatives 1. No change to existing provisions. 2. Identify alternative standards s ch as a different maximum height or percent open area. ENVIRONMENTAL REVIEW: All significant environmental concerns for the proposed project have been addressed in a previously certified environmental document (Initial Study/Negative Declaration for the Zoning Code Update), and that the City of Newport Beach intends to use said document for the above noted project, and further that there are no mitigation measures that should be considered in conjunction with said project. Copies of the Initial Study/Negative Declaration for the Zoning Code Update are available for public review and inspection at the Planning Division at City Hall. NOTICING: Notice of this proposed amendment was published in the Daily Pilot on March 17, 2012, as required by applicable law. The description of this agenda item appeared in the agenda for this meeting that was posted more than 72 hours in advance of this meeting as required by the Ralph M. Brown Act. Staff mailed notice to homeowners associations located in low lying areas around the Newport Harbor. Lastly, staff mailed notice and provided a copy of the proposed amendment to many local architects. Submitted by: Attachments: CC-1 CC-2 CC-3 Draft Ordinance Planning Commission Resolution No Excerpt of Planning Commission meeting minutes 5

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7 Attachment CC-1 Draft Ordinance 7

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9 ORDINANCE NO AN ORDINANCE OF THE CITY OF NEWPORT BEACH APPROVING CODE AMENDMENT NO. CA REGARDING THE HEIGHT OF FENCES, HEDGES, WALLS AND RETAINING WALLS (PA ). THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. The City adopted a comprehensive update of the Zoning Ordinance in October of The provisions establishing the height of height of fences, hedges, walls and retaining walls in setback areas for properties in low lying areas were changed. 2. The change in regulations has resulted in taller fences and walls within side and front yards that are out of neighborhood character. 3. The Planning Commission conducted a public hearing on March 8, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. At the conclusion of the hearing, the Planning Commission, the Commission adopted Resolution No recommending adoption of Code Amendment No. CA A public hearing was held on March 27, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the City Council at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. All significant environmental concerns for the proposed amendment have been addressed in a previously certified environmental document (Initial Study/Negative Declaration for the Zoning Code Update), and that the City of Newport Beach intends to use said document for the above noted project, and further that there are no mitigation measures that should be considered in conjunction with said project. Copies of the Initial Study/Negative Declaration for the Zoning Code Update are available for public review and inspection at the Planning Division at City Hall. SECTION 3. FINDINGS. 1. Amending current regulations regarding the height and design of fences, hedges, walls and retaining walls within setback areas is necessary to preserve neighborhood character. 2. The proposed amendment will establish a reasonable maximum height limit for fences, hedges, walls and retaining walls within side and rear yard setback areas. The amendment will also require a significant portion of said fence, hedge, wall or retaining wall above 6 feet 9

10 ORDINANCE NO Page 2 of 3 in height from existing grades to be of open or semi-transparent construction allowing adequate protection from the loss of light and air within side yards due to the increase in allowable height. 3. The proposed amendment will lower the maximum achievable height of fences, hedges, walls and retaining walls within front yard setback areas of low lying areas (principally Balboa Island, West Newport and the Balboa Peninsula) thereby preserving the existing neighborhood character that is made up of lower walls adjacent to public sidewalks and the waterfront. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: 1. Section and Section of the Newport Beach Municipal Code are hereby amended as provided in Exhibit "A". 2. If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. 3. This action shall become final and effective thirty days after the adoption of this Ordinance. 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. This Ordinance shall be published once in the official newspaper of the City, and the same shall become effective thirty (30) days after the date of its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the of, 2012, and adopted on the day of, 2012, by the following vote, to wit: AYES, COUNCIL MEMBERS NOES, COUNCIL MEMBERS ABSENT, COUNCIL MEMBERS MAYOR Nancy Gardner 10

11 ORDINANCE NO Page 3 of 3 ATTEST: Leilani Brown, City Clerk APPROVED AS TO FORM, OFFICE OF CITY ATTORNEY: Leonie Mulvihill, Assistant City Attorney for Aaron Harp, City Attorney 11

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13 EXHIBIT A Code Amendment No. CA Section (Fences, Hedges, Walls, and Retaining Walls) 13

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15 Amendment CA Page 1/ Fences, Hedges, Walls, and Retaining Walls. This section provides standards for the provision of fences, hedges, walls, and retaining walls. A. Maximum Height Allowed. 1. Fences, Hedges, and Walls. Maximum heights of fences, hedges, and walls are shown in Table 3-1. TABLE 3-1 MAXIMUM HEIGHT OF FENCES, HEDGES, AND WALLS Front setback areas. Location Rear and interior side setback areas. Maximum Height 42 inches. See subsection (B) of this section. 6 feet in residential and commercial zoning districts. 8 feet in industrial zoning districts adjacent to residential uses. Rear Setback areas abutting or adjacent to the waterfront of Newport Bay, the shoreline of the Pacific Ocean, the Old Channel of the Santa River (the Oxbow Loop), or the channels in West Newport. At intersections of streets, alleys and driveways within traffic sight areas. 42 inches from existing grade prior to construction. Setback areas on Balboa Island and little Balboa Island that are abutting or adjacent to Newport Bay are regulated by subsection (B) below. See Section (Traffic Safety Visibility Area). 2. Retaining Walls. The maximum height of a retaining wall shall be eight feet measured from finish grade at the base of the wall, not including any required guardrails. A minimum horizontal separation equal to the height of the tallest retaining wall shall be provided between retaining walls, except that the required separation shall not be more than six feet. The above requirements shall not apply to retaining walls that are an integral part of principal structures. An increase in the height of a retaining wall may be requested in compliance with Section (Modification Permits). B. Special Area Regulations. In front setback areas in Balboa Peninsula, Balboa Island, Corona del Mar, West Newport, East Bay Front on Little Balboa Island, and North Bay Front and South Bay Front on Balboa Island fences and walls shall be allowed to extend to a height of five feet; provided, that any portion of the fence or wall above two feet shall be constructed of open grillwork, wrought iron, latticework, pickets, Plexiglas, or similar materials so that at least forty (40) percent of the portion of the fence or wall above two feet is open. See Figure 3-1. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

16 Amendment CA Page 2/5 C. Exceptions to Maximum Height. 1. Grade Differential. Where the existing or proposed grade of a lot adjacent to the front setback area is more than twenty-four (24) inches above the adjacent sidewalk (or curb elevation where no sidewalk exists), a maximum twenty-four (24) inch high retaining wall shall be allowed to be located at the front property line. Additional retaining walls shall be allowed to a maximum height of thirty-six (36) inches each, provided they are set back a minimum distance of twenty-four (24) inches from the inward face of the previous retaining wall. Additional retaining walls shall be subject to the same limitation. A maximum forty-two (42) inch guard rail shall be allowed atop the uppermost retaining wall for safety purposes, provided the guard rail is constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least forty (40) percent of the fence is open. See Figure Decorative Fence/Wall Details and Lights. a. Finials, light fixtures, pilaster caps, pots, and similar decorative items may be placed on fence or wall vertical support elements (e.g., pilasters, pillars, posts, etc.), provided they are secure and do not extend more than twelve (12) inches above the maximum allowed height. b. The number of decorative items (e.g., finials, pilaster caps, pots, and similar items) and light fixtures shall be limited to not more than one item or fixture for every six lineal feet of fence or wall. 3. Fencing for Pools and Spas. a. Swimming pools, spas, and other similar features shall be fenced in compliance with Title 15. b. Fencing and guardrails for ponds, spas, and swimming pools located in a front setback area or in the rear and side setback areas regulated as front setback areas on lots with forty-two (42) inch height limitations may be allowed to exceed the height limit in compliance with the following standards: i. Fences shall be constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least forty (40) percent of the fence or wall is open. In lieu of the above, glass or Plexiglas may be allowed; and ii. Fence height shall be limited to the minimum required by Title 15. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

17 Amendment CA Page 3/5 Figure 3-1 Grade Differential at Front Property Line 4. Residential Uses Adjacent to Commercial Uses or Alleys. For residential lots adjacent to nonresidential zoning districts or commercial alleys, fences, walls, or hedges may be up to eight feet in height in required residential side yards for buffering and/or sound attenuation. 5. Residential Lots where the top of slab is required to be raised to 9.0 NAVD88 and where the grade of the lot is proposed to be increased. The height of fences and walls within required side and rear yard setback areas may be increased This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

18 Amendment CA Page 4/5 provided the height does not exceed 6 feet as measured from the proposed finished grade and 9 feet as measured from the existing grade prior to construction. Additionally, the height of fences or walls shall not exceed 9 feet as measured from the existing grade of an abutting lot. The portion of the fence or wall above 6 feet in height from the existing grade prior to construction shall be constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least sixty (60) percent of the fence or wall is open or is constructed of a transparent material. D. Measurement of Fence or Wall Height. 1. The height of a fence, hedge, or wall shall be measured from the lowest existing grade prior to construction at the location where the fence, hedge, or wall is located. 2. Where a fence or wall is constructed on top of a retaining wall the height of the fence or wall shall be measured from the side of the retaining wall with the highest elevation. See Figure 3-2. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

19 Amendment CA Page 5/5 Figure 3-2 Fence Height E. Prohibited Fence Materials. Barbed wire, electrical fences, razor wire, and other similar materials shall not be allowed in residential zoning districts. (Ord (Exh. A)(part), 2010) This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

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21 EXHIBIT B Code Amendment No. CA Section (Height Limits and Exceptions) 21

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23 Amendment CA Page 1/ Height Limits and Exceptions. A. This section establishes regulations for determining compliance with the maximum allowable height limits established for each zoning district by Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards). B. Height of Structures and Measurement. 1. Structure Height Established. Structures shall not exceed the maximum allowable height for the zoning district in which the structure is located, except as provided in subsection (C) of this section (Increase in Height Limit) or subsection (D) of this section (Exceptions to Height Limits). 2. Height Measurement. Height shall be measured as the vertical distance from the established grade of the pad to the highest part of the structure, including any protective guard rails and parapet walls. Structures with sloping roofs shall be measured to the highest peak of the roof. Structures with flat roofs shall be measured to the top of the roof, guard rail, or parapet wall. The established grade of the pad shall be determined by one of the methods identified in Section (Grade Establishment). 3. Flood Hazard Areas. a. Finished First Floor Elevation. The minimum required finished first floortop of slab elevation for interior living areas of all new structures within flood hazard areas shall be as established by the Flood Insurance Rate Maps recognized by the Building Division Department as part of flood safety requirements and maps adopted by the Council. Notwithstanding the building elevations established by the Flood Insurance Rate Maps, the minimum required top of slab ground floor finished floor elevation for interior living areas of all new structures shall be at least 9.00 (NAVD 88). b. Height Measurement. The height of a principal structure shall be measured from the top of slab elevation. of the finished first floor, including habitable floor area over a garage or other nonhabitable space. c. Accessory Structures. The height of accessory structuresmay be measured from either the existing grade of the lot or the elevation established by the Flood Insurance Rate Maps. c. Accessory Structures. i. The height of accessory structures, except fences, hedges, walls, and retaining walls (see Section ), shall be measured from existing grade of the lot prior to construction. ii. Exception: When a new principal building is required to have the top of slab constructed at elevation 9.00 NAVD88 and when the grade surrounding the new principal building is proposed to be increased, the height of accessory structures shall be measured from the proposed finished grade. 4. Structures on Ocean Boulevard. New structures and additions/changes to existing structures on the bluff side of Ocean Boulevard in Corona del Mar shall not be constructed to a height greater than the elevation of the adjacent curb. The top of curb height limit shall be established by a plane created by the extension of the top of curb line across each lot. C. Increase in Height Limit. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

24 Amendment CA Page 2/5 1. Procedure. The base height limits established in Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards) may be increased within specified areas with the adoption of a Planned Community District, adoption of a specific plan, or approval of a planned development permit, or site development review. The maximum height limit is not guaranteed by right and shall require approval of a discretionary action when all applicable findings are met in compliance with subsection (C)(3) of this section (Required Findings). Height limits established as part of an adopted planned community shall not be subject to this subsection. 2. Height Limit Areas. The height limit areas shall be as follows: a. R-A, R-1, R-BI, and R-2 Zoning Districts Height Limit Area. In this height limit area the base height limit for structures with flat roofs is twenty-four (24) feet (including guard rails and parapet walls) and the base height limit for structures with sloped roofs is twenty-nine (29) feet. The height of a structure may be increased up to a maximum of twenty-eight (28) feet with a flat roof or thirty-three (33) feet with a sloped roof through the approval of a discretionary application as provided above. This height limit applies in all R-A, R-1, R-BI, and R-2 Zoning Districts as shown on the Zoning Map. b. RM and RMD Zoning Districts Height Limit Area. In this height limit area the base height limit for structures with flat roofs is twenty-eight (28) feet (including guard rails and parapet walls) and the base height limit for structures with sloped roofs is thirty-three (33) feet. The height of a structure may be increased up to a maximum of thirty-two (32) feet with a flat roof or thirty-seven (37) feet with a sloped roof through the approval of a discretionary application as provided above. This height limit applies in all RM and RMD Zoning Districts as shown on the Zoning Map. c. Nonresidential, Shoreline Height Limit Area. In this height limit area the base height limit for nonresidential and mixed-use structures with flat roofs is twenty-six (26) feet and the base height limit for structures with sloped roofs is thirty-one (31) feet. The height of a structure may be increased up to a maximum of thirty-five (35) feet with a flat roof or forty (40) feet with a sloped roof through the approval of a discretionary application as provided above. The shoreline height limit shall apply to all nonresidential zoning districts and mixed-use zoning districts within the boundaries of the Shoreline Height Limit Area shown on the High Rise and Shoreline Height Limit Areas Map (See Map H-1, attached to the ordinance codified in this title). d. Nonresidential, Nonshoreline Height Limit Area. In this height limit area the base height limit for nonresidential and mixed-use structures with flat roofs is thirty-two (32) feet and the base height limit for structures with sloped roofs is thirty-seven (37) feet. The height of a structure may be increased up to a maximum of fifty (50) feet with a flat roof or fifty-five (55) feet with a sloped roof through the approval of a discretionary application as provided above. This height limit shall apply to all nonresidential, nonshoreline zoning districts and mixed-use zoning districts within its boundaries. The nonresidential, nonshoreline height limit area is identified as all of the area outside the Shoreline Height Limit Area shown on the High Rise and Shoreline Height Limit Areas Map (See Map H-1, attached to the ordinance codified in this title). e. High Rise Height Area. In this height limit area, the maximum height limit shall be three hundred (300) feet and no further increase to the maximum allowed height is available. This height limit is applicable to all nonresidential zoning districts within its boundaries as indicated on the High Rise and Shoreline Height Limit Areas This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

25 Amendment CA Page 3/5 Map (See Map H-1, attached to the ordinance codified in this title). Proposed projects within this height limit area shall comply with the requirements of subsection (E) of this section (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements). 3. Required Findings. The review authority may adopt a Planned Community District, adopt a specific plan, or approve a planned development permit or site development review to allow an increase in the height of a structure above the base height only after first making all of the following findings in addition to the findings required for the discretionary permit application: a. The project applicant is providing additional project amenities beyond those that are otherwise required. Examples of project amenities include, but are not limited to: i. Additional landscaped open space; ii. Increased setback and open areas; iii. Enhancement and protection of public views; and b. The architectural design of the project provides visual interest through the use of light and shadow, recessed planes, vertical elements, and varied roof planes; c. The increased height will not result in undesirable or abrupt scale changes or relationships being created between the proposed structure(s) and existing adjacent developments or public spaces. Where appropriate, the proposed structure(s) provides a gradual transition to taller or shorter structures on abutting properties; and d. The structure will have no more floor area than could have been achieved without the approval of the height increase. D. Exceptions to Height Limits. 1. Assembly and Meeting Facilities. Structures used as places of worship may be allowed to exceed the height limit subject to the approval of a site development review in compliance with Section Where more than one structure exists or is proposed for the site, only the principal structure shall be eligible for approval to exceed the maximum height limit. 2. Architectural Features. Architectural features (e.g., cupolas, weathervanes, and other decorative rooftop features) of an open nature, but excluding guardrails, parapet walls, and similar features, may be allowed up to the height limit for a sloped roof. Architectural features with a height greater than that allowed for a sloped roof shall be subject to the approval of a modification permit. 3. Boat Cranes. Boat cranes used in conjunction with an approved marine-oriented nonresidential use may be allowed to exceed the maximum height limit up to a maximum operating height of seventy (70) feet, subject to the approval of a minor use permit. 4. Chimneys and Vents. Chimneys and spark arrestors for fireplaces and roof-mounted vents shall be allowed to exceed the allowed height limits as follows: a. Chimneys may extend above the allowed height limit a maximum of two feet or a greater height if required by the City s Building Code; b. Spark arrestors may extend above the top of a chimney a maximum of two feet, provided they do not exceed a width of two feet and a length of four feet; and This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

26 Amendment CA Page 4/5 c. Roof-mounted vents may extend above the allowed height limit a maximum of twelve (12) inches or a greater height if required by the City s Building Code. 5. Dormers. Dormers may be allowed to exceed the maximum height; provided, that: a. The total width of the dormer that exceeds the height limit shall not be greater than thirty-five (35) percent of the length of the side of the structure where the dormer is located; b. The roof pitch of the dormer shall not be less than 2:12; and c. The peak of the dormer shall not be higher than the peak of the roof on which it is located. 6. Elevator Shafts, Enclosed Stairwells. Elevator shafts and enclosed stairwell housings may exceed the allowed height limit by the minimum height required by Title 15 (Building and Construction), provided they do not exceed thirty (30) square feet in area, unless a larger elevator is required by Title 15 and/or the Fire Department. In these instances, the area of the elevator or stair housing shall not exceed the minimum size required by Title 15 and/or the Fire Department. Elevator shafts and enclosed stairwell housings that exceed thirty (30) square feet in area shall have sloped roofs with a minimum 3/12 pitch. 7. Fences, Hedges, and Walls. Section (Fences, Hedges, Walls, and Retaining Walls) sets forth exceptions to height limits for these structures. 8. Flag Poles. a. Ground-mounted flag poles shall be allowed in residential zoning districts to a maximum height of twenty-eight (28) feet and in nonresidential zoning districts to a maximum height of thirty-five (35) feet. b. Flag poles mounted on tops of buildings located in nonresidential zoning districts shall be allowed to exceed the maximum height limit by up to twenty (20) feet. 9. Landmark Buildings. An alteration or addition to a landmark building shall be exempt from height limits; provided, that structural alterations or additions that exceed the height of the existing structure shall require approval of a site development review in compliance with Section and shall not exceed a maximum of fifty-five (55) feet in height. The site development review may be approved only if all of the following findings are first made in addition to those findings identified in Section : a. The portion of the structural alteration or addition that exceeds the height of the existing structure does not significantly impact public views from public rights-of-way. b. The portion of the structural alteration or addition that exceeds the height of the existing structure will not be used in a manner that increases the intensity of the use of the landmark building. c. The allowed height of the landmark building will not be detrimental to the health, safety, peace, comfort, or general welfare of persons residing or working in the neighborhood of the landmark building. 10. Light Standards. Light standards may be allowed to exceed maximum height limits, subject to the approval of a site development review in compliance with This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

27 Amendment CA Page 5/5 Section All light fixtures and standards shall comply with the requirements of Section (Outdoor Lighting). 11. Mechanical Equipment. a. Nonresidential Zoning Districts. In nonresidential zoning districts, roof-mounted mechanical equipment, totaling not more than thirty (30) percent of the total roof area, including required screening devices, shall be allowed to exceed the maximum height limit by up to five feet. b. Residential Zoning Districts. In residential zoning districts, roof-mounted equipment is not allowed to exceed the maximum height limit for the zoning district. 12. Solar Equipment. The height limit regulations in this Zoning Code do not apply to equipment and panels used for the production of solar energy. 13. Skylights and Roof Windows. Skylights or roof windows shall be allowed to exceed the maximum height limit by up to six inches on conforming roofs. E. Airport Environs Land Use Plan (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) Review Requirements. 1. AELUP Requirements. a. Buildings and structures shall not penetrate Federal Aviation Regulation (FAR) Part 77, Obstruction Imaginary Surfaces, for John Wayne Airport unless approved by the Airport Land Use Commission (ALUC). b. In compliance with FAR Part 77, applicants proposing buildings or structures that penetrate the 100:1 Notification Surface shall file a Form , Notice of Proposed Construction or Alteration with the FAA. A copy of the FAA application shall be submitted to the ALUC and the applicant shall provide the City with FAA and ALUC responses. 2. Citywide Requirements. Development projects that include structures higher than two hundred (200) feet above existing grade shall be submitted to the Airport Land Use Commission (ALUC) for review. In addition, projects that exceed a height of two hundred (200) feet above existing grade shall file Form with the Federal Aviation Administration (FAA). (Ord (Exh. A)(part), 2010) This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

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29 Attachment CC-2 Planning Commission Resolution No (unsigned) 29

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31 RESOLUTION NO A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING APPROVAL OF CODE AMENDMENT NO. CA REGARDING THE HEIGHT OF FENCES, HEDGES, WALLS AND RETAINING WALLS (PA ) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. The City adopted a comprehensive update of the Zoning Ordinance in October of The provisions establishing the height of height of fences, hedges, walls and retaining walls in setback areas for properties in low lying areas were changed. 2. The change in regulations has resulted in taller fences and walls within side and front yards that are out of neighborhood character. 3. A public hearing was held on March 8, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. All significant environmental concerns for the proposed amendment have been addressed in a previously certified environmental document (Initial Study/Negative Declaration for the Zoning Code Update), and that the City of Newport Beach intends to use said document for the above noted project, and further that there are no mitigation measures that should be considered in conjunction with said project. Copies of the Initial Study/Negative Declaration for the Zoning Code Update are available for public review and inspection at the Planning Division at City Hall. SECTION 3. FINDINGS. 1. Amending current regulations regarding the height and design of fences, hedges, walls and retaining walls within setback areas is necessary to preserve neighborhood character. 2. The proposed amendment will establish a reasonable maximum height limit for fences, hedges, walls and retaining walls within side and rear yard setback areas and the amendment will require a significant portion of said fence, hedge, wall or retaining wall above 6 feet in height from existing grade to be of open or transparent or construction. 3. The proposed amendment will lower the maximum achievable height of fences, hedges, walls and retaining walls within front yard setback areas of low lying areas (principally Balboa Island, West Newport and the Balboa Peninsula) thereby preserving neighborhood compatibility. 31

32 NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA as set forth in Exhibits A and B. PASSED, APPROVED AND ADOPTED THIS 8 th DAY OF March, AYES: NOES: ABSTAIN: ABSENT: Ameri, Kramer, Myers, Toerge, and Tucker None. None. Hillgren BY: Michael Toerge, Chairman BY: Fred Ameri, Secretary 32

33 EXHIBIT A Code Amendment No. CA Section (Fences, Hedges, Walls, and Retaining Walls) 33

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35 Draft Amendment CA Page 1/ Fences, Hedges, Walls, and Retaining Walls. This section provides standards for the provision of fences, hedges, walls, and retaining walls. A. Maximum Height Allowed. 1. Fences, Hedges, and Walls. Maximum heights of fences, hedges, and walls are shown in Table 3-1. TABLE 3-1 MAXIMUM HEIGHT OF FENCES, HEDGES, AND WALLS Front setback areas. Location Rear and interior side setback areas. Maximum Height 42 inches. See subsection (B) of this section. 6 feet in residential and commercial zoning districts. 8 feet in industrial zoning districts adjacent to residential uses. Rear Setback areas abutting or adjacent to the waterfront of Newport Bay, the shoreline of the Pacific Ocean, the Old Channel of the Santa River (the Oxbow Loop), or the channels in West Newport. At intersections of streets, alleys and driveways within traffic sight areas. 42 inches from existing grade prior to construction. Setback areas on Balboa Island and little Balboa Island that are abutting or adjacent to Newport Bay are regulated by subsection (B) below. See Section (Traffic Safety Visibility Area). 2. Retaining Walls. The maximum height of a retaining wall shall be eight feet measured from finish grade at the base of the wall, not including any required guardrails. A minimum horizontal separation equal to the height of the tallest retaining wall shall be provided between retaining walls, except that the required separation shall not be more than six feet. The above requirements shall not apply to retaining walls that are an integral part of principal structures. An increase in the height of a retaining wall may be requested in compliance with Section (Modification Permits). B. Special Area Regulations. In front setback areas in Balboa Peninsula, Balboa Island, Corona del Mar, West Newport, East Bay Front on Little Balboa Island, and North Bay Front and South Bay Front on Balboa Island fences and walls shall be allowed to extend to a height of five feet; provided, that any portion of the fence or wall above two feet shall be constructed of open grillwork, wrought iron, latticework, pickets, Plexiglas, or similar materials so that at least forty (40) percent of the portion of the fence or wall above two feet is open. See Figure 3-1. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

36 Draft Amendment CA Page 2/5 C. Exceptions to Maximum Height. 1. Grade Differential. Where the existing or proposed grade of a lot adjacent to the front setback area is more than twenty-four (24) inches above the adjacent sidewalk (or curb elevation where no sidewalk exists), a maximum twenty-four (24) inch high retaining wall shall be allowed to be located at the front property line. Additional retaining walls shall be allowed to a maximum height of thirty-six (36) inches each, provided they are set back a minimum distance of twenty-four (24) inches from the inward face of the previous retaining wall. Additional retaining walls shall be subject to the same limitation. A maximum forty-two (42) inch guard rail shall be allowed atop the uppermost retaining wall for safety purposes, provided the guard rail is constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least forty (40) percent of the fence is open. See Figure Decorative Fence/Wall Details and Lights. a. Finials, light fixtures, pilaster caps, pots, and similar decorative items may be placed on fence or wall vertical support elements (e.g., pilasters, pillars, posts, etc.), provided they are secure and do not extend more than twelve (12) inches above the maximum allowed height. b. The number of decorative items (e.g., finials, pilaster caps, pots, and similar items) and light fixtures shall be limited to not more than one item or fixture for every six lineal feet of fence or wall. 3. Fencing for Pools and Spas. a. Swimming pools, spas, and other similar features shall be fenced in compliance with Title 15. b. Fencing and guardrails for ponds, spas, and swimming pools located in a front setback area or in the rear and side setback areas regulated as front setback areas on lots with forty-two (42) inch height limitations may be allowed to exceed the height limit in compliance with the following standards: i. Fences shall be constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least forty (40) percent of the fence or wall is open. In lieu of the above, glass or Plexiglas may be allowed; and ii. Fence height shall be limited to the minimum required by Title 15. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

37 Draft Amendment CA Page 3/5 Figure 3-1 Grade Differential at Front Property Line 4. Residential Uses Adjacent to Commercial Uses or Alleys. For residential lots adjacent to nonresidential zoning districts or commercial alleys, fences, walls, or hedges may be up to eight feet in height in required residential side yards for buffering and/or sound attenuation. 5. Residential Lots where the top of slab is required to be raised to 9.0 NAVD88 and where the grade of the lot is proposed to be increased. The height of fences and walls within required side and rear yard setback areas may be increased This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

38 Draft Amendment CA Page 4/5 provided the height does not exceed 6 feet as measured from the proposed finished grade and 9 feet as measured from the existing grade prior to construction. The portion of the fence or wall above 6 feet in height from the existing grade prior to construction shall be constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least sixty (60) percent of the fence or wall is open or is constructed of a transparent material. D. Measurement of Fence or Wall Height. 1. The height of a fence, hedge, or wall shall be measured from the lowest existing grade prior to construction at the location where the fence, hedge, or wall is located. 2. Where a fence or wall is constructed on top of a retaining wall the height of the fence or wall shall be measured from the side of the retaining wall with the highest elevation. See Figure 3-2. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

39 Draft Amendment CA Page 5/5 Figure 3-2 Fence Height E. Prohibited Fence Materials. Barbed wire, electrical fences, razor wire, and other similar materials shall not be allowed in residential zoning districts. (Ord (Exh. A)(part), 2010) This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

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41 EXHIBIT B Code Amendment No. CA Section (Height Limits and Exceptions) 41

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43 Draft Amendment CA Page 1/ Height Limits and Exceptions. A. This section establishes regulations for determining compliance with the maximum allowable height limits established for each zoning district by Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards). B. Height of Structures and Measurement. 1. Structure Height Established. Structures shall not exceed the maximum allowable height for the zoning district in which the structure is located, except as provided in subsection (C) of this section (Increase in Height Limit) or subsection (D) of this section (Exceptions to Height Limits). 2. Height Measurement. Height shall be measured as the vertical distance from the established grade of the pad to the highest part of the structure, including any protective guard rails and parapet walls. Structures with sloping roofs shall be measured to the highest peak of the roof. Structures with flat roofs shall be measured to the top of the roof, guard rail, or parapet wall. The established grade of the pad shall be determined by one of the methods identified in Section (Grade Establishment). 3. Flood Hazard Areas. a. Finished First Floor Elevation. The minimum required finished first floortop of slab elevation for interior living areas of all new structures within flood hazard areas shall be as established by the Flood Insurance Rate Maps recognized by the Building Division Department as part of flood safety requirements and maps adopted by the Council. Notwithstanding the building elevations established by the Flood Insurance Rate Maps, the minimum required top of slab ground floor finished floor elevation for interior living areas of all new structures shall be at least 9.00 (NAVD 88). b. Height Measurement. The height of a principal structure shall be measured from the top of slab elevation. of the finished first floor, including habitable floor area over a garage or other nonhabitable space. c. Accessory Structures. The height of accessory structuresmay be measured from either the existing grade of the lot or the elevation established by the Flood Insurance Rate Maps. c. Accessory Structures. i. The height of accessory structures, except fences, hedges, walls, and retaining walls (see Section ), shall be measured from existing grade of the lot prior to construction. ii. Exception: When a new principal building is required to have the top of slab constructed at elevation 9.00 NAVD88 and when the grade surrounding the new principal building is proposed to be increased, the height of accessory structures shall be measured from the proposed finished grade. 4. Structures on Ocean Boulevard. New structures and additions/changes to existing structures on the bluff side of Ocean Boulevard in Corona del Mar shall not be constructed to a height greater than the elevation of the adjacent curb. The top of curb height limit shall be established by a plane created by the extension of the top of curb line across each lot. C. Increase in Height Limit. This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,

44 Draft Amendment CA Page 2/5 1. Procedure. The base height limits established in Part 2 of this title (Zoning Districts, Allowable Land Uses, and Zoning District Standards) may be increased within specified areas with the adoption of a Planned Community District, adoption of a specific plan, or approval of a planned development permit, or site development review. The maximum height limit is not guaranteed by right and shall require approval of a discretionary action when all applicable findings are met in compliance with subsection (C)(3) of this section (Required Findings). Height limits established as part of an adopted planned community shall not be subject to this subsection. 2. Height Limit Areas. The height limit areas shall be as follows: a. R-A, R-1, R-BI, and R-2 Zoning Districts Height Limit Area. In this height limit area the base height limit for structures with flat roofs is twenty-four (24) feet (including guard rails and parapet walls) and the base height limit for structures with sloped roofs is twenty-nine (29) feet. The height of a structure may be increased up to a maximum of twenty-eight (28) feet with a flat roof or thirty-three (33) feet with a sloped roof through the approval of a discretionary application as provided above. This height limit applies in all R-A, R-1, R-BI, and R-2 Zoning Districts as shown on the Zoning Map. b. RM and RMD Zoning Districts Height Limit Area. In this height limit area the base height limit for structures with flat roofs is twenty-eight (28) feet (including guard rails and parapet walls) and the base height limit for structures with sloped roofs is thirty-three (33) feet. The height of a structure may be increased up to a maximum of thirty-two (32) feet with a flat roof or thirty-seven (37) feet with a sloped roof through the approval of a discretionary application as provided above. This height limit applies in all RM and RMD Zoning Districts as shown on the Zoning Map. c. Nonresidential, Shoreline Height Limit Area. In this height limit area the base height limit for nonresidential and mixed-use structures with flat roofs is twenty-six (26) feet and the base height limit for structures with sloped roofs is thirty-one (31) feet. The height of a structure may be increased up to a maximum of thirty-five (35) feet with a flat roof or forty (40) feet with a sloped roof through the approval of a discretionary application as provided above. The shoreline height limit shall apply to all nonresidential zoning districts and mixed-use zoning districts within the boundaries of the Shoreline Height Limit Area shown on the High Rise and Shoreline Height Limit Areas Map (See Map H-1, attached to the ordinance codified in this title). d. Nonresidential, Nonshoreline Height Limit Area. In this height limit area the base height limit for nonresidential and mixed-use structures with flat roofs is thirty-two (32) feet and the base height limit for structures with sloped roofs is thirty-seven (37) feet. The height of a structure may be increased up to a maximum of fifty (50) feet with a flat roof or fifty-five (55) feet with a sloped roof through the approval of a discretionary application as provided above. This height limit shall apply to all nonresidential, nonshoreline zoning districts and mixed-use zoning districts within its boundaries. The nonresidential, nonshoreline height limit area is identified as all of the area outside the Shoreline Height Limit Area shown on the High Rise and Shoreline Height Limit Areas Map (See Map H-1, attached to the ordinance codified in this title). e. High Rise Height Area. In this height limit area, the maximum height limit shall be three hundred (300) feet and no further increase to the maximum allowed height is available. This height limit is applicable to all nonresidential zoning districts within its boundaries as indicated on the High Rise and Shoreline Height Limit Areas This page of the Newport Beach Municipal Code is current through Ordinance , passed December 13,