Law Office of F. Elliot Goldman F. Elliot Goldman, Esquire 420 South Brea Boulevard George Davidovich, Paralegal Brea, California 92821 Telephone: (714) 990-3444 Facsimile: (714) 990-3144 SENT BY EMAIL AND HAND DELIVERY Shaunac@Lhhcity.org Klaufenburger@Lhhcity.org 1245 North Hacienda Blvd. La Habra Heights, CA 90631 ATTN: RE: Shauna Clark, City Manager Katherine Laufenburger, City Planner City Development Department, Planning Commission and City Council My Clients: Patrick and Judith Morgan Project Owners: Dr. Ajit and Nirali Shah Project Address: 1281 Mayapan Road, La Habra Heights, California Application No.: PRJ 2010-64 Subject Matter: NOTICE OF APPEAL Dear Members of the City Council, Members of the Planning Commission, Ms. Clark and Ms. Laufenburger: NOTICE OF APPEAL This letter is being sent by the undersigned as counsel for Patrick and Judith Morgan, who by way of this letter, give notice of their appeal from and of the Notice of Administrative Decision Standards Modification dated November 9, 2011, with regard to applicant Sejal Sonani, Architect, on behalf of the owners, Ajit and Nirali Shah with respect to the property at 1281 Mayapan Road, La Habra Heights, California. First, I note that the City s Code, specifically Section 8.6.20, subsection (C) provides that an appeal shall be in writing and shall be filed in duplicate in the office of the City Clerk upon forms provided by the City Clerk. However, I have been informed by Ms. Clark that the City has no
Page 2 Notice of Appeal forms, and that the Notice of Appeal is to be submitted in letter format. Hence, the instant letter is intended as and should be treated as my clients Notice of Appeal. STANDING My clients, Patrick and Judith Morgan are the owners of the real property at 1265 Mayapan Road, La Habra Heights, California located immediately adjacent to the property that is the subject of the Notice of Administrative Decision Standards Modification, are therefore qualified pursuant to Section 8.6.20(A)(2) of the City Code to initiate an appeal, and do hereby appeal said Notice of Administrative Decision Standards Modification. DECISIONS APPEALED Pursuant to Section 8.6.20(C) of the City Code, my clients identify the errors or abuse of discretion and/or where the application failed to meet those qualifications or standards as set forth in the Code forming the basis of their appeal as follows: 1. My clients appeal from the Administrative Standards Modification permitting an increased height of the structure in excess of 16 feet, specifically 26 feet, pursuant to Section 7.18.40.C as the application fails to meet the qualifications or standards set forth in the Code, and there was error and/or abuse of discretion in permitting the modification. 2. My clients further appeal from the Administrative Standards Modification approving a reduced front set-back for the second story from 38'7" to 27'7" and from 27'6" to 17' on the south side setback, pursuant to Section 7.11 as the application fails to meet the qualifications or standards set forth in the Code, and there was error and/or abuse of discretion in permitting the modification. 3. My clients further appeal from the Administrative Standards Modification approving a reduced front setback for the first story from 38'7" to 20'5" and from 27'6" to 17' on the south side setback, pursuant to Chapter 7.11 as the application fails to meet the qualifications or standards set forth in the Code, and there was error and/or abuse of discretion in permitting the modification. GROUNDS FOR APPEAL The reasons and basis for appeal are as follows: 1. The finding that the requested modification will not significantly impair the neighbors privacy or enjoyment of their property is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code.
Page 3 2. The finding that the requested modification will not significantly impact protected views is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code, particularly when considered in relation to the change in the visual impact from the existing residence to the remodeled residence. 3. The finding that the requested modification minimized the adverse impact on protected views as compared to other reasonable and practical alternatives is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code, particularly when considered in relation to the change in the visual impact from the existing residence to the remodeled residence. 4. The finding the requested modification will blend into the natural setting and will not result in an appearance that is significantly altered from one of pastoral or natural features to one primarily of man-made features is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code, particularly when considered in relation to the change in the visual impact from the existing residence to the remodeled residence. 5. The finding that strict adherence to the standards will impose an economic burden that is disproportionate in relation to the impact of the modification being sought is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code. 6. The finding that the existing nonconformities will not be exacerbated by the requested modification and to the extent practical, have been mitigated to conform to the Performance Standards of the Municipal Code is not supported by the facts, is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code. 7. The finding that the conditions of approval mitigate any adverse effects to the degree required to ensure conformance with the Performance Standards applicable to the requested Standards Modification is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code. 8. The finding that reasonable efforts have been made pursuant to the applicable Code to minimize any nonconformities directly related to the proposed project or adversely affecting health and safety and their impacts is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code.
Page 4 9. The finding that the requested modification will not result in an adverse impact related to community or neighborhood character, and will not result in a development that appears significantly larger or more massive than nearby structures is in error, not supported by the evidence, is not factually accurate, is an abuse of discretion and fails to meet the qualifications and standards set forth in the Code. FACTUAL BACKGROUND The subject Notice of Administrative Decision Standards Modification was issued on a project application for owners Ajit and Nirali Shah (hereinafter APPLICANT ) for a remodel of their existing one-story single family residence located on a 0.56 acre parcel of land, seeking renovation of the existing covered patio area to the rear and south side of the existing residence, a 1,978 square foot second story addition and construction of a 597 square foot balcony deck at the southeast corner. In conjunction with the application the owners seek three administrative standards modifications permitting increased height, reduced front setback for the second story and reduced front setback for the first story. The existing setbacks and lot size are legal non-conforming. On December 9, 2010 a formal application was submitted with respect to the proposed project. On February 16, 2011 a public notice was mailed to neighbors within 500 feet of the project site. Upon receipt of the public notice, my clients provided comments expressing concerns regarding the project s impact on their privacy, specifically the direct views that would result from the second story addition, windows and balcony into my clients backyard, pool area, and in fact, even directly into my clients residence, specifically the family room. My clients sought to meet with the APPLICANT to resolve the issues. The APPLICANT made minor modifications to the plan that flip-flopped interior rooms and reduced the size and raised the location of the window in what had been the proposed master suite and was changed to the bathroom, and relocated windows in the master suite and family room without significantly reducing same. Further, the new plans reconfigured the family room compressing the easterly side and expanding the southerly side, which rather than mitigating the privacy issue in fact exacerbates the privacy issue. The modified plans were submitted on August 23, 2011 (which as mentioned previously and contrary to the assertion in the Notice of Administrative Decision Modifications, did not significantly reduce the size and number of the master bedroom windows on the south side of the property). A second public notice was sent on September 8, 2011. My clients provided a formal written response expressing their concerns and objections to the City on September 15, 2011. Apparently, as a result of that letter the City staff requested a view study from the APPLICANT (as opposed to the City conducting same), and the City determined based thereon that the proposed addition complied with the development code. However, the view study does not include a panoramic view, consists of selective views, and fails to accurately depict the true privacy invasion resulting from the proposed addition. The view study provided does not accurately depict the privacy invasion and impact thereof on my clients, and City staff failed to visit my clients premises to make a true and accurate assessment of the privacy impacts. The added height provides direct views down into my clients backyard, pool and into their
Page 5 home itself, which views do not presently exist with the existing first floor windows. This problem is exacerbated by the fact that the APPLICANT has requested, and the staff has approved a glass versus solid railing that enhances rather than mitigates the downward view from the balcony and family room to the private areas of my clients backyard, pool and residence. The Notice of Administrative Decision Standards Modification finds that The impacts to privacy are minimal at best because the views from the addition are predominantly to the front yard (which is viewable from the street) and the existing house already has views to the same locations of the property from nearly identical vantage points. The impacts to privacy are negligible. These findings are in error, incorrect and not supported by the evidence, which will be presented at the hearing, which will clearly establish a substantial negative impact and invasion of privacy. Further, although City Code Section 7.11.40 provides for setback requirements, which apply with respect to all structures, including, but not limited to residences, patios, porches, balconies, etc., in the Notice of Administrative Decision there is an attempt to distinguish between the footprint related setback and the structure setback, although there is no distinction with respect thereto in the Code. This is an error and does not meet the City s standards. Further, the modifications to setback requirements exacerbates the invasion of privacy from the second floor addition and balcony as it places the view closer to the property line, and in a more direct downward sight line into the private areas of my clients backyard, pool area and residence itself. Further, when considered against the Code s requirements versus the existing non-conforming use, the proposed setback reduction exceeds the 10% reduction allowed through approval of an Administrative Standards Modification. Further, the calculation of a 35' front setback for the second story addition, is not accurate when measured from the edge of the balcony to the street line, which is the proper measurement. In addition, the finding that the side setback is 27'7" feet long along the south property line is inaccurate, when the measurement is taken from the property line to the structures, including not only the residence, but the rear patio attached thereto. The finding that the requested Standards Modification will not significantly impair the neighbor s privacy is in error and not supported by the facts, as the view from the APPLICANT s second story balcony and windows allow a direct line of sight into the private areas of my clients backyard, pool and into the residence itself, which will be exacerbated by a glass railing, and can be easily mitigated through a variety of means with minimal expense, including, but not limited to a solid non-see through railing, reduced size of windows, raising the location of the windows, which are currently floor to ceiling and running virtually the entire south side of the family room, as well as modifying the large window in the master bedroom (formerly the sitting area) which also provides a direct view and line of sight into my clients private areas and through screening landscaping.
Page 6 The requested Standards Modification does significantly impair the enjoyment of my clients property. Further, the modifications and conditions attached thereto do not provide for nor require any mitigation of the issues that are at the heart of my clients concerns. Further, the increased size and height of the APPLICANT s residence with the new second story addition does impact my clients views to the North significantly. The proposed Standards Modification has a significant impact on neighboring properties, which can be substantially mitigated with minor expense resulting from modification in the size and location of the windows, and other mitigating measures including a solid non-see through railing and screening landscaping that will block the direct sight line into my clients private areas, none of which were considered nor required by the proposed Standards Modification in violation of the Code requirements with respect to privacy. The finding that the project as designed does not exacerbate any existing non-conformity is in error and is based in significant part on the fact that the APPLICANT originally requested a greater encroachment of the setbacks, and as revised the encroachments have been lessened. The fact that the APPLICANT requested the Sun and only got the Moon does not mitigate nor fail to exacerbate the existing non-conformity. The non-conformity can be mitigated, the adverse impacts to my clients privacy lessened and reduced by reasonable alternatives at minimal expense. However, the Administrative Standards Modification fails to provide specific requirements that would mitigate the invasion of privacy, despite the findings to the contrary therein. Finally, it appears that additional Standards Modifications that have not been applied for nor granted will be required to construct the proposed construction project, and as such standards modifications have not been applied for nor granted the proposed project fails to meet the qualifications and standards set forth in the City Code. SUMMARY In summary, my clients appeal from the Notice of Administrative Decision Standards Modification and all of the modifications granted therein, as well as all the findings contained therein in support of the modifications based on the fact that the findings are in error, not supported by the evidence, and based on the fact the application fails to meet the qualifications or standards set forth in the Code, that there is error and/or an abuse of discretion in permitting the modification, and that the proposed modifications fail to require reasonable and appropriate mitigation measures to minimize the invasion of privacy resulting therefrom. As the City does not have a formal form, I have attempted in this letter to comply with the City s requirements contained in City Code Section 8.6.2(C). If for any reason you deem this Notice of Appeal deficient, or require additional information or documentation, please immediately contact the undersigned and so advise and I will provide additional information or documentation to comply with the City s requirements. Otherwise, please advise us when the matter is set for a hearing so my
Page 7 clients can present their evidence and documentation in support of their appeal at a de novo hearing before the Planning Commission for the Commission s consideration. Thanking you in advance for your anticipated prompt and courteous reply. Yours very truly, F. ELLIOT GOLDMAN FEG:llm cc: PAT & JUDITH MORGAN W:\WP8\CI\MORGAN\LA_HABRA_HTS\LHL-112211.wpd