HomeMy WebLinkAboutPC2022-001 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2021-0604 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 407 FULLERTON AVENUE (PRESOLUTION NO. PC2022-001 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2021-0604 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT
407 FULLERTON AVENUE (PA2022-021)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS:
SECTION 1. STATEMENT OF FACTS. 1. An application was filed by James and Kay Kociuba, (“Owners”), with respect to property located at 407 Fullerton Avenue, Newport Beach, California and legally described as Lot
23 in Block 28 of The First Addition to Newport Heights, as shown on a map recorded in
Book 4, Page 94 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County (“Property”), requesting approval of an encroachment permit. 2. The Owners request approval to install non-compliant private improvements within the
Fullerton Avenue public right-of-way consisting of a 36-inch-high white picket fence and
one (1) inward swinging gate that encroach up to six (6) feet into the 60-foot-wide public right-of-way (“Project”). The Fullerton Avenue parkway within the public right-of-way is approximately twelve (12) feet from face of curb to the property line. City Council Policy L-6 (“Policy”) prohibits the proposed fence and gate since structures are limited to a one 1-
foot projection into the right-of-way.
3. The requested approvals are not specifically provided for within City Council Policy L-6. Thus, the Project is prohibited under Section A (Private encroachments that are prohibited without a waiver and approval) of said policy. Due to this prohibition, the requested
encroachments may only be approved upon the waiver of City Council Policy L-6 with
approval of the encroachment permit by Planning Commission. 4. The Property is not located within the coastal zone.
5. A public meeting was held on February 17, 2022, in the City Council Chambers located at
100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and City Council Policy L-6 (Encroachments in Public Rights-of-Way). Evidence, both written and oral, was presented to, and considered by, the Planning
Commission at this public hearing.
DocuSign Envelope ID: 02EACD09-ACD7-4861-859B-030F1BC50FA9
Planning Commission Resolution No. PC2022-001 Page 2 of 5
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This Project is categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the
environment.
2. The Class 3 (New Construction or Conversion of Small Structures) exemption includes construction of a single-family residence and related accessory structures in a residential zone. The proposed improvements, which consist of a fence and a gate within
the public right-of-way, are accessory to the existing single-family home.
3. The exceptions to this categorical exemption under Section 15300.2 are not applicable. The Project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the
environment due to unusual circumstances, does not damage scenic resources within
a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS.
In accordance with City Council Policy L-6 (Encroachments in Public Rights-of-Way), the following findings and facts in support of such findings are set forth: Finding:
A. The proposed private improvements will not be a detriment to the health, safety, and welfare
of the public. Facts in Support of Finding:
1. The Fullerton Avenue parkway within the public right-of-way is approximately twelve (12)
feet from face of curb to the property line.
2. The Project does not diminish the rights of the public, present and future, along the Fullerton Avenue right-of-way. There are currently no sidewalks on Fullerton Avenue, nor does the City have plans for installing sidewalks on this street.
3. The Project does not hinder the present or future use of the public right-of-way, including
sidewalks, and there are no existing City utilities located within the encroachment area.
DocuSign Envelope ID: 02EACD09-ACD7-4861-859B-030F1BC50FA9
Planning Commission Resolution No. PC2022-001 Page 3 of 5
4. Approval would require the Owners to enter into an Encroachment Agreement to allow
the proposed improvements as requested, and any liability associated with the proposed
private improvements would be transferred to the Owners. Additionally, if the need for public improvements arises in the future, Owners shall remove all encroachments at no cost to the City.
Finding:
B. The individual circumstances applicable to this application and the proposed encroachment
are consistent with the public interest.
Facts in Support of Finding:
1. Improvements appear complementary to the area; adjacent neighbors have similar private encroachments within the Fullerton Avenue right-of-way. Some of the adjacent encroachments are permitted through an encroachment permit and agreement,
whereas others have been constructed without approval.
2. There are no existing City utilities within the encroachment area. SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach finds this Project is categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section
15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA
Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Planning Commission of the City of Newport Beach hereby waives City Council Policy
L-6 and approves Encroachment Permit No. N2021-0604, subject to the conditions set
forth in Exhibit “A,” which is attached hereto and incorporated by reference. 3. This action shall become final and effective fourteen (14) days following the date this Resolution is adopted unless within such time an appeal or call for review is filed with
the City Clerk in accordance with the provisions of Title 20 (Planning and Zoning), of the
Newport Beach Municipal Code.
DocuSign Envelope ID: 02EACD09-ACD7-4861-859B-030F1BC50FA9
Planning Commission Resolution No. PC2022-001 Page 4 of 5
PASSED, APPROVED, AND ADOPTED THIS 17TH DAY OF FEBRUARY 2022
AYES: Ellmore, Klaustermeier, Kleiman, Koetting, Lowrey, Rosene, and Weigand NOES: None
ABSTAIN: None
ABSENT: None
BY:_________________________ Lee Lowrey, Chairman
BY:_________________________
Curtis Ellmore, Secretary
DocuSign Envelope ID: 02EACD09-ACD7-4861-859B-030F1BC50FA9
Planning Commission Resolution No. PC2022-001 Page 5 of 5
EXHIBIT “A”
CONDITIONS OF APPROVAL
PUBLIC WORKS DEPARTMENT 1. The Project shall be in substantial conformance with the approved site plan stamped and
dated with the date of this approval.
2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval.
3. The Owners shall comply with all federal, state, and local laws. Material violation of any
of those laws in connection with the use may be cause for revocation of this Encroachment Permit and any associated Encroachment Agreements. 4. The Owners shall enter into an Encroachment Agreement within one (1) calendar year
upon receipt of approval, otherwise this approval shall automatically expire.
5. This Encroachment Permit allows one 36-inch-high picket fence and gate to project 6 feet into the Fullerton Avenue public right-of-way with a waiver of City Council Policy L-6, Section A of “Private Encroachments that are Prohibited Without a Waiver and
Approval”.
6. If the need for public improvements arises in the future, Owners shall remove all encroachments at no cost to the City.
7. To the fullest extent permitted by law, Owners shall indemnify, defend and hold harmless
City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature
whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s
approval of Kociuba Encroachment (PA2022-021) including, but not limited to, Encroachment Permit No. N2021-0604. This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or
proceeding whether incurred by Owners, City, and/or the parties initiating or bringing
such proceeding. The Owners shall indemnify the City for all of City's costs, attorneys’ fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Owners shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.
DocuSign Envelope ID: 02EACD09-ACD7-4861-859B-030F1BC50FA9