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HomeMy WebLinkAbout15 - 2888 Bayshore Drive (Newport Marina) — Appeal of Harbor Commission's Decision - CorrespondenceReceived After Agenda Printed MARY ANN SODEN March 26, 2019 Item No. 15 P.O. Box 8973, Newport Beach, CA 92658 March 22, 2019 Mayor Diane Dixon and members of the City Council City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Subject: Agenda 3-26-19/Item 15: Appeal of Harbor Commission Approval In Concept/Harbor Permit Number 1502-2018 Dear Mayor Dixon and Council: Newport Harbor is an extraordinary asset unlike any other residential -recreational harbor in Southern California. It has successfully balanced beautiful waterfront vistas (public and private) and residential quality of life with active recreation and commercial marine enterprises. Losing that respectful balance threatens the very nature of our community. For this reason I am writing in support of the Bayshores residents' appeal of the Harbor Commission's approval in concept for Harbor Permit 1502-2018. I am not opposed to maintenance of the marina infrastructure, but I am opposed to the change in scale. I am very concerned that this decision by the Harbor Commission overlooks entirely the unique context of our harbor where for over 100 years there has been a natural interplay between the recreational and residential uses of the harbor through open vistas and visual engagement. Throughout the year, tourists and residents tour the harbor in a Duffy boat or a gondola or on the Wild Goose to look at homes and yacht clubs and bridges, often with a cheese and cracker in hand, and always with a smile on their face. It is a lovely, community experience that will be ruined if over time the City prioritizes large boat parking over smaller, more harmonious nautical uses. For my entire life I have had the opportunity to view the Christmas Boat Parade from someone's patio to cheer on the boats, or from a boat to cheer on the Ring of Lights contestants and waive at the people on the shore. If the harbor becomes a ring of large yachts, then the community -wide access and enjoyment of one our cities most beloved traditions becomes diminished. Failing to preserve the unique context of our harbor means that current residents and visitors, their children and grandchildren, will lose part of the magic of being in Newport Beach and enjoying Newport Harbor. Christmas Parade 2018: The city does offer large boat anchorage, primarily in commercial zones on the harbor of commercial or retail properties, which I suggest is where it belongs. When that fills up, there are other harbors to use. I have no doubt if you build more they will come, but is that what we want for our City? One channel after another lined with huge boats that block any views to or from the water. The harbor cruise experience will be like looking for parking at Fashion Island on a Saturday; one bumper after another, row after row. Please say No. The matter regarding Newport Marina is important on its own, but is also important as a wakeup call to the community as we prepare for a new General Plan. The City's action on this application will be an indicator for how this Council will approach and exercise its powers under the California Coastal Commission Local Control Program, in reference to the history and context of our harbor, for the benefit of current and future generations. I respectfully request the City preserve the unique qualities and interplay of Newport Harbor with its residents and visitors, on public and private property, so that our Harbor remains a joy for all. Thank you. Sincerely, Mary Ann Soden cc: Harbor Commissioners 2 MURPHY & EVERTZ A t t o m e y s a t l a'„. 650 Town Center Drive, Suite 550 Costa Mesa. CA 92626 714.277.1700 714.277.1777 fax www.murphyevertz.com March 25, 2019 VIA E-MAIL Mayor Dixon and Honorable Councilmembers City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 citvcounci laa,newportbeachca. gov Received After Agenda Printed March 26, 2019 Item No. 15 DOUGLAS I_EVERTZ,PARTNER DIRECT DIAL NUMBER' 714 277.1702 EMAIL ADDRESS DEVERTZ@murphyevertZ.Com OUR FILE No. 40174.00001 Re: Newport Marina Compromise Plan—March 26, 2019 City Council Agenda Item No. 15. Dear Mayor Dixon and Honorable Councilmembers: This firm represents Glenn Walcott, Zach Fischer, Terry Morrison and Kevin Moriarty ("Homeowners") regarding their appeal of Harbor Permit/Approval in Concept 1502-2018. As you are aware, the Prestas and the Homeowners have reached an agreement on what is being referred to as the "Compromise Plan" that relocates the largest boat slips away from private residences and increases the setbacks both from the bulkheads and Mr. Moriarty's property line. As the Prestas' attorney, Sean Matsler, noted in his letter to you dated March 16, 2019, the parties are jointly requesting the City Council approve the Compromise Plan. Because the Compromise Plan is being presented to the City Council as a form of settlement, the Homeowners are not lodging any written or verbal objections at this time. As similarly noted by Mr. Matsler in his correspondence, the Homeowners fully reserve all their rights and remedies (including, but not limited to, failure to comply with the California Environmental Quality Act) to oppose the "2018 Plan," or any other plan, in the future should any agency disapprove the Compromise Plan or any of its key features. rBere ards,glaV�& ve z of Mf TRP EVERT LLP DJE/mm cc: City Clerk (cityclerk(a)newportbeachca.pov) Chris Miller (cmiller c@newportbeachca.gov) Shawna Schaffner (sschaffner(a)caaplanning com) (00143230 1 ) Received After Agenda Printed March 26, 2019 Item No. 15 March 26, 2019, City Council Item 15 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 15. 2888 Bayshore Drive (Newport Marina) - Appeal of Harbor Commission's Decision As mentioned in connection with the other resolutions and contracts in the present agenda packet, it is good to see the City Attorney signed off personally on them (as would seem to be required by City Charter Sections 602(e) and (f). Nonetheless, many have problems. And in addition to the concerns raised by the appellants, this particular matter invites several threshold questions: Because the proposed development is on public tidelands administered bV the County of Orange, not the City, one has to wonder if the City is even the proper agency, and has the authority, to be granting an Approval in Concept. 2. In the areas of the harbor the City does have authority over, its design guidelines normally require floating structures to stay behind the pierhead line in accordance with NBMC Sec. 17.35.030.A, which disfavors dock extensions beyond that line, and which may require special findings by the Harbor Commission to do so, making it uncertain if the Harbor Resources Manager had authority to grant an AIC. Does the fact that both the existing and proposed marinas extend out beyond the pierhead line to the federal project line raise any special concerns? 3. The staff report and the approving resolution imply the applicant is seeking an insignificant change to the configuration of the existing marina, yet the proposed plan creates five berths 20 feet deeper than any currently existing, and hence able to accommodate boats at least 20 feet longer. Does that raise any new concerns? The present matter also suggests some needed procedural improvements: 1. Title 17 provides no direction regarding, among other things, the noticing of appeal hearings, forcing the City to make up rules as it goes along. Hopefully, clearer requirements will be part of the ongoing revisions to Title 17. 2. The City's Harbor Design Criteria (see comment on page 15-60, below) require the provision of landside restroom facilities and parking with ADA compliance to support commercial marinas. I do not recall the Harbor Commission or the Planning Commission reviewing the adequacy of those in its de novo (?) hearing on the application. 3. The City Council is using a very formal process of adopting a resolution memorializing its decision and the findings that went into it. The Harbor Commission follows no such formal process, leaving the Council to have to guess from the Harbor Commission minutes what decision the Harbor Commission made, and what findings, if any, supported it, and whether it was preceded by a rigorous environment review. It would seem wise for the City's boards and commissions to adopt the practice of taking action March 26, 2019, City Council Item 15 Comments - Jim Mosher Page 2 of 6 by formal written and factually supported resolutions, that can be permanently preserved, as only the Council and the Planning Commission currently do. Whether or not any of that happens, the following corrections are suggested to Resolution No. 2019-30 (present staff report, Attachment F) — which is, incidentally, provided in the Council agenda packet in a non -machine-readable "image" format requiring the text to be manually copied with possible errors: Page 15-57, paragraph 1: "WHEREAS, an application for an Approval in Concept ("A1C') was filed by Palmo Investments, G.P. (Ron and Allyson Presta), for the removal and replacement of the dock system ("Project" or "A1C') a -t accessed through the property located at 2888 Bayshore Drive, City of Newport Beach, County of Orange, State of California ("Property');" [The relevance of the "Property" to the resolution is unclear. The project being considered is entirely on public tidelands. As explained by Mr. Mike Hewitt, the counsel representing the applicant before the Harbor Commission, the marina originally abutted a single inland lot, but that lot was subdivided so it now abuts four properties: the Presta's service and apartment complex at 2888 Bayshore Drive, and the private homes at 2832, 2812 and 2800. Describing the project as the dock system "at" 2888 Bayshore Drive is confusing and misleading, since the dispute arises primarily from the fact it is "at" four properties, three of which are no longer owned by the applicant. Plus, the development described in the resolution is not on any of the properties listed, but rather on public waters to which the applicant claims a right (of unexplained origin) to develop.] Page 15-57, paragraph 3: "WHEREAS, the PropertjF Project is located within the coastal en such an area," [The location of the (inland) "property" has no bearing I know of on the appeal. The significance of the location of the Project is not simply that it is within the state's Coastal Zone, but rather that it is in one of the parts of the Coastal Zone described in the preceding paragraph 2: namely, one of the "development areas where the Coastal Commission retains coastal development permit authority." In such areas, the City cannot approve development, yet applicants need AIC's from the City before they can seek a permit from the Coastal Commission.] Page 15-57, paragraph 4: "WHEREAS, on or abou Septermber 27, 2018, the PUbUG ini,,.4� i e`tor Harbor Resources Manager issued an A1C, ..." [When quoting dates, including that of the present hearing, the proposed Resolution refers to them as "on or about' (as in "on or about March 26, 2019, the City Council held a public hearing"). It is unclear why the Council would want to do that. It makes it sound like the Council is uncertain of the facts it is ruling on when most, if not all, of the dates (like March 26) are, in fact, certain. Regarding who issued the AIC, paragraph 2 (not quoted here) explains the current Harbor Code places this authority with the Public Works Director, but that it was formerly with the Harbor Resources Manager. The AIC that is the subject of this resolution was, in fact, issued by the Harbor Resources Manager pursuant to the Harbor Code in effect at the time. Stating otherwise is both confusing and untrue.] March 26, 2019, City Council Item 15 Comments - Jim Mosher Page 3 of 6 Page 15-57, paragraph 5: "WHEREAS, NBMC Secton 17.65.010(A) authoAzes authorized appeal of the Public- Works irec-teres Harbor Resources Manager 's decision to the City of Newport Beach Harbor Commission by any interested person;" [See previous note: the actions being recited took place pursuant to the Municipal Code in effect at the time. What the current code may say is not what took place.] Page 15-57, paragraph 6: "WHEREAS, on er abou November 28, 2018, CAA Planning on behalf of residents of four inland properties abutting the Prosect, Kevin Moriarity, Glen Walcott, Zach Fischer and Terry Morrison ("Appellant') filed ' time an appeal of the decision [Clarifying the appellants' interest in the Project seems relevant to the Council's decision. And without further explanation, saying their appeal was "timely' is confusing given the normal 14 -day appeal window of NBMC Section 17.65.020. Indeed, a November 28 appeal of a September 27 decision sounds decidedly "untimely." But I understand they were not informed of the September 27 decision, and their appeal was deemed timely based on the later date on which they became aware that City approval of a new Project had been granted (not specified in the present resolution, but November 15 per page 16-28 of the February 12, 2019, City Council staff report).] Page 15-58, end of paragraph 1: "At the conclusion of the public hearing, the Harbor Commission voted to uphold the Public Works DireGtor's former Harbor Resources Manager's decision to approve the AIC." [This paragraph later refers to the Harbor Commission hearing having been noticed in accordance with the Brown Act and NBMC Chapter 20.62. While that may be true, the choice of Chapter 20.62 (a part of the land -side Zoning Code) was quite arbitrary. Chapter 17.65 of the Harbor Code, used to initiate the appeal, says nothing about the details of how Title 17 appeal hearings should be noticed. In particular, it does not cite Chapter 20.62 or direct anyone to follow its procedures.] Page 15-59, Section 1: Subsection A: "Title 14, Division 6, Chapter 3, of the California Code of Regulations ("CEQA Guidelines')... " [The "CEQA Guidelines" are Chapter 3 of Division 6 of Title 14. Title 14 as a whole contains a great many other divisions, and subdivisions, with other Chapter 3's covering topics unrelated to CEQA — although the specific section numbers mentioned in the proposed resolution seem to occur only once within the entirety of CCR Title 14.] Subsection C: "i. There are no circumstances triggering the unusual circumstances exception set forth in CEQA Guidelines Section 15300.2, subd. fbi (, and there is no substantial evidence that the March 26, 2019, City Council Item 15 Comments - Jim Mosher Page 4 of 6 Modified Project would have significant impact on the environment due to these unusual circumstances...." [As the proposed resolution mentions, Section 15300.2 of the CEQA Guidelines lists six situations (subsections "(a)" through "(f)") in which various categorical exemptions (such as the "Class 1" and "Class 2" cited in the previous paragraphs of the proposed resolution) may not apply. Although it is not explained in the proposed resolution, the exceptions of Section 15300.2(a) are irrelevant here, as they do not apply to Classes 1 and 2. Section 15300.2(b) (the one erroneously referred to here) says "(b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant." This could apply, since the present action approves the continued existence of piers that extend well beyond the pierhead line, and an accumulation of such approvals could have a significant impact on the harbor. As best I can tell, the proposed resolution contains no findings explaining why the exception of Section 15300.2(b) does not apply. Having passed over Sections 15300.2(a) and (b), the proposed paragraph C.i appears to be addressing CEQA Guidelines Section 15300.2(c), which says: "(c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances."] Page 15-60, Section 2: "The adoption of Resolution No. 2019-30 shall not be interpreted as prohibiting the Applicant from requesting a revision to the AIC as authorized in Section 17.50.040 provided the revision conforms to the design criteria and all applicable standards and policies." [The citation to Section 17.50.040 appears incorrect. Nothing in that section mentions requesting revisions after a permit has been approved. It might be useful to recall that the approval of a new permit differing from what had been publicly agreed to at the original appeal hearing before the Harbor Commission is what lead to the present appeal.] Page 15-60, next to last paragraph: "Facts in Support of Finding. The Modified Project conforms to the City's Harbor Design Guidelines, including, but not limited to, the following: 1) the finger widths meet the widths required 'rein for the corresponding berth lengths require _ uire as listed in Section I.A. 2. c. Table No. 1 of the Harbor Design Guidelines, 2) an accessible ramp is incorporated in the Modified Project as required by Section I.A.5.b of the Harbor Design Guidelines and the federal federal Americans with Disabilities Act, 3) the protrusion of the Modified Project includes a beyond the pierhead line that does net protrude beyond the marina has been previously sanctioned by the City Council and 4) no variances are requested or required." [The City's current "Harbor Design Guidelines," more commonly known as its "Harbor Design Standards" or "Harbor Design Criteria," which are actually its "City of Newport March 26, 2019, City Council Item 15 Comments - Jim Mosher Page 5 of 6 Beach Waterfront Project Guidelines and Standards, Harbor Design Criteria—Commercial and Residential Facilities" (erroneously dated "March 14, 2017,"), and referred to in Title 17 as the "Design Criteria," were adopted by Resolution No. 2017-22 on April 11, 2017. Table No. 1 of Section I.A.2.c lists minimum finger widths for berths of various lengths. I assume Fact 1)" is trying to say each finger in this design meets or exceeds the standard in that table. The intended meaning of Fact "3)" is unclear. Normally, the City's regulations would require that the floating parts of a marina not extend beyond the pierhead line, rather than the other way around. But that is not the case with this marina, in which many of the fingers, both existing and proposed, extend some 20 feet beyond the pierhead line, to the "project line" defining the federally -dredged channel.] Page 15-61, top paragraph: "Facts in Support of Finding. The Modified Project will not increase navigational congestion in the adjacent channel. The Modified Project does not exten � extends beyond the pierhead line in accordance with NBMC Section 17.35.030. Additionally, the Modified Project will not interfere with the rights of others in that the Modified Project is agreeable to both the Applicant and Appellant, the Modified Project includes a camel barrier system at the south end of the Property and the Project is conditioned so that cleats are not permitted on the southern end of the main headwalk adjacent to 2782 Bayshore Drive." [The statement that "The Modified Project does not extend beyond the pierhead line" is patently false. The fingers facing into the harbor extend 20 feet beyond the pierhead line to the project line defining the federal dredging channel. Whether those extensions are "in accordance NBMC Section 17.35.030" is debatable. I can find no indication in the minutes from the Harbor Commission's January 9, 2019, hearing that the Commission considered this aspect of the application, for which additional findings may be required to justify the extensions. As to the sentence that follows that, since the Applicant and Appellant represent an extremely small fraction of the public, the fact that the Project is "agreeable" to them hardly establishes it does not interfere with the rights of all other harbor permittees.] Page 15-61, Subsection C.i: "The ^^^V System Modified Project is designed and sited so as not to obstruct public access and to minimize impacts to public coastal views and coastal resources. There is currently no public access or a public coastal view within or adjacent to the P-ropertjF Project, therefore no public access or views will be impacted. The Modified Project is in the same location and is substantially the same size, purpose and capacity as the marina it replaces." [The term "Dock System" is used in five places on this page, without definition or explanation. Since the "Modified Project" (defined in the final "Whereas" on page 15-58) is a proposal for a dock system, I would guess the two terms were meant to be synonymous. would suggest the defined term be substituted for the undefined one in all five instances. The "Property," as defined in the first "Whereas" on page 15-57 is the upland lot at 2888 Bayshore Drive, which has no particular relevance to these findings, since the Project March 26, 2019, City Council Item 15 Comments - Jim Mosher Page 6 of 6 doesn't involve any modifications to it. So I assume "Project" was intended. However, the statement that there are no public coastal views within or adjacent to the Project is, like the statement about the Project staying within the pierhead line, patently false. Not only would the entire harbor tidelands be regarded by many as a publicly accessible coastal view point, but Pacific Coast Highway is specifically designated as a coastal view road in Coastal Views Map 4-2 of the Coastal Land Use Plan of our Local Coastal Program. Indeed, it seems likely more members of the public see the harbor from the portion of PCH on the adjacent Upper Bay Bridge (less than 200 feet from the north end of the Project) than from any other point in the City. There is also a designated public viewpoint on the Upper Castaways bluff, from which the present marina is prominently visible. It would seem a more thoughtful statement about the impacts of this project on public views is needed.] Page 15-61, Subsection C.v: "The Dock System is designed and sited to the water's depth and accessibility." [I have no idea what this sentence is trying to say.] Page 15-62, top paragraph: "Facts in Support of Finding. The Modified Project is acceptable to the Applicant and address addresses the concerns raised by the Appellant while also conforming to all applicable standards as identified in Section 2.A- 3.A -C above." [This "fact" cites the wrong section. See page 15-60: it is clearly "Section 3" that was intended.] Page 15-60, Section 5, next to last line: "... irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases by be declared invalid or unconstitutional." [It is strange there would be a typo in boilerplate, like this, which one might assumes would be part of a carefully proofread and unchanging template.] Received After Agenda Printed March 26, 2019 Item No. 15 From: City Clerk"s Office To: Mulvey, Jennifer; Rieff, Kim Subject: FW: March 26, 2019, City Council Agenda Item 15 (Newport Marina) Date: Tuesday, March 26, 2019 3:55:24 PM From: Jim Mosher Sent: Tuesday, March 26, 2019 3:55:44 PM (UTC -08:00) Pacific Time (US & Canada) To: City Clerk's Office Cc: Dept - City Council; Miller, Chris Subject: March 26, 2019, City Council Agenda Item 15 (Newport Marina) Madam Clerk and Council members, For clarification, my earlier comments stating the existing and proposed docks at Newport Marina extend beyond the pierhead line (yellow) to the project line (blue) are based on these images from the City's GIS mapping application, and comparison of that to the image on staff report page 15-5. The latter shows the "Marina Limits" coinciding with what these images indicate as the pierhead line, and something farther out as the "project line." Clearly something is amiss. Yours sincerely, Jim Mosher. P I