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Home My WebLink AboutPC2022-013 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2022-0079 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 312 FULLERTON AVENUE (PRESOLUTION NO. PC2022-013 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. N2022-0079 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 312 FULLERTON AVENUE (PA2022-064) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Richard Phillips and Sheree L. Phillips, (“Owners”), with respect to property located at 312 Fullerton Avenue, Newport Beach, California and legally described as Lot 8 in Block 19 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 for private as-built improvements within the Fullerton Avenue public right-of-way consisting of on-grade steps and handrail encroaching up to three feet into the 60-foot wide Fullerton Avenue public right-of-way and a one-foot high block wall encroaching up to eight feet and six inches into the right-of-way (“Project”). The Fullerton Avenue parkway within the public right-of-way is approximately 12 feet from face of curb to the property line. City Council Policy L-6 (“Encroachments in Public Rights-Of- Way”) (“City Council Policy L-6”) prohibits the proposed steps, handrails, and existing wall since structures are limited to a one (1)-foot projection into the right-of-way. City Council Policy L-6 also prohibits the handrails since they exceed three (3) feet in height measured from the top of curb elevation. 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; therefore, a coastal development permit is not required. 5. A public meeting was held on June 9, 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. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. Planning Commission Resolution No. PC2022-013 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 steps and a block wall 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 12 feet from face of curb to the property line. 2. The Fullerton Avenue parkway elevation changes approximately two (2) feet between the top of curb and property line. 3. 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. 4. 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. Planning Commission Resolution No. PC2022-013 Page 3 of 5 5. Approval would require the owners to enter into an Encroachment Agreement to allow the improvements as requested, and any liability associated with the 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. The 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 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. N2022-0079, 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. Planning Commission Resolution No . PC2022-013 Page 4 of 5 PASSED, APPROVED, AND ADOPTED THIS 9TH DAY OF JUNE 2022 AYES : Ellmore, Kleiman, Koetting , Lowrey, Rosene, and Weigand NOES: None ABSTAIN: None ABSENT: Klaustermeier ~ ' BY: G ~ Curtis Ellmore, Secretary Planning Commission Resolution No. PC2022-013 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 on-grade steps to project three (3) feet into the Fullerton Avenue public right-of-way and a one (1)-foot high wall to project eight (8) feet and six (6) inches 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 the Phillips Encroachment (PA2022-064) including, but not limited to, Encroachment Permit No. N2022-0079. 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.