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HomeMy WebLinkAboutPC2023-012 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2022-0520 TO ALLOW RETENTION OF EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 410 TUSTIN AVENUERESOLUTION NO. PC2023-012 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. N2022-0520 TO ALLOW RETENTION OF EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 410 TUSTIN AVENUE (PA2022-0265) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Gary Mason and Linda Mason (“Owners”), with respect to property located at 410 Tustin Avenue, Newport Beach, California and legally described as Lot 3 in Block 26 of First Addition to Newport Heights, in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 4 Page 94 of Miscellaneous Maps, in the office of the County Recorder of Orange County, California (“Property”). 2. The Owners request approval of an encroachment permit for private as-built improvements within the Tustin Avenue public right-of-way consisting of on-grade stairs that encroach up to five feet and nine inches into the 60-foot wide Tustin Avenue public right-of-way and a two foot and seven inch high block wall that encroaches up to eight feet into the right-of-way (“Project”). The Tustin 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 existing on-grade stairs and existing wall since structures are limited to a one foot projection into the right-of-way with heights not to exceed three feet as 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) unless a waiver of City Council Policy L-6 is approved by the Planning Commission. 4. The Property is designated Single Unit Residential Detached (RS-D) by the General Plan Land Use Element and is located within the Single-Unit Residential (R-1) Zoning District. 5. The Property is not located within the coastal zone; therefore, a coastal development permit is not required. 6. A public meeting was held on March 9, 2023, 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 Planning Commission Resolution No. PC2023-012 Page 2 of 5 presented to, and considered by, the Planning Commission at this public hearing. 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 such as garages, carports, patios, swimming pools and fences. The existing improvements, which consist of stairs 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 of the CEQA Guidelines 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 herein: 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 Tustin Avenue parkway within the public right-of-way is approximately 12-feet from face of curb to the property line. 2. The Tustin Avenue parkway elevation changes approximately three feet and six inches between the top of curb and property line. 3. The Project does not diminish the rights of the public, present and future, along the Tustin Avenue right-of-way. There are currently no City installed sidewalks on Tustin 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. PC2023-012 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; nearby neighbors have similar private encroachments within the Tustin Avenue right-of-way. Some of the nearby encroachments are permitted through an encroachment permit and agreement. 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. N2022-0520, subject to the conditions set forth in Exhibit “A,” which is attached hereto and incorporated herein 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. PC2023-012 Pa e 4 of 5 PASSED, APPROVED, AND ADOPTED THIS grH DAY OF March 2023 AYES: NOES: Barto, Ellmore, Klaustermeier, Langford, Lowrey, and Rosene None ABSTAIN : None ABSENT: Harris Curti more, Chairman BY <()--- ---~-,,....-------Sarah Ktaustermeier, Secretary Attachment(s): Exhibit A -Conditions of Approval Planning Commission Resolution No. PC2023-012 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 stairs to encroach up to five (5) feet and nine (9) inches into the Tustin Avenue public right-of-way and a two (2) foot and seven (7) inch high block wall to encroach eight (8) feet into the Tustin 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 Mason Encroachment (PA2022-0265) including, but not limited to, Encroachment Permit No. N2022-0520. 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.