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CITY OF
NEWPORT BEACH
City Council Staff Report
Agenda Item No. SS2
February 12, 2013
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandt @newportbeachca.gov
PREPARED BY: Brenda Wisneski, Deputy Community Development Director
APPROVED:, 0. k✓Y�
TITLE: Review of East Oceanfront Encroachments and Potential Solutions
ABSTRACT:
In 2012, several property owners along East Oceanfront, from E Street to Channel
Road, received Notices of Violation from the California Coastal Commission referring to
unpermitted development adjacent to their property and the public beach. An
Encroachment Program, similar to the program applied to West Oceanfront, could
remedy this issue for the 15 -foot right -of -way. Removal of the improvements and
restoration would be required for the areas beyond 15 -feet.
DISCUSSION:
Landscaping, fences, irrigation, and hardscape maintained by private property owners
encroach along East Oceanfront onto the public beach. The extent of the
improvements vary, some of which include minimal landscaping that is only a few feet
beyond the property line, while others are quite extensive and extend up to 65 -feet
beyond the property line. In 2007, the City documented the improvements in an effort to
ensure no further encroachment would occur.
In 2011, the California Coastal Commission (Commission) was notified by a resident of
the encroachments. In 2012 after concluding their investigation, the Coastal
Commission staff issued Notices of Violation (NOV) to fifteen property owners. A
sample of the NOV received by the property owners is provided as Attachment A. The
NOVs state that the encroachments are on City property and are inconsistent with both
policies of the Coastal Act and the City's Coastal Land Use Plan, and therefore need to
be removed and the beach restored for public use. Commission staff has since
identified a total of fifty- eighty properties with encroachments that may also be
1
Review of East Oceanfront Encroachments and Potential Solutions
February 12, 2013
Page 2
considered by Commission staff to be in violation. Recognizing that efforts are
underway to create a comprehensive solution to this issue, Commission staff has
delayed issuance of additional NOVs.
City staff facilitated a meeting with the residents and Commission staff to explore
potential solutions. However, the number of residents with varying circumstances and
positions, as well as the limited flexibility offered by Commission staff, made this
approach cumbersome. City staff also met with Commission staff to advocate for the
residents' perspective. Commission staff expressed their desire for a comprehensive
solution to the issue. While the City is not a party to the subject NOV(s), it is apparent
that the best chance for a comprehensive solution would require the City's involvement.
Jim McGee of McGee & Associates has represented some of the affected the property
owners over the years and has taken the lead in addressing this issue in a
comprehensive manner. City staff, as well as Councilmember Henn, met with Mr.
McGee on several occasions in 2012. After conferring with his clients, Mr. McGee
submitted a letter detailing a proposal and extensive historical background which is
provided in Attachment B. The proposal outlined in Mr. McGee's letter mirrors the City's
West Oceanfront Encroachment Program which was created in 1990 and has been
successful in meeting the needs of residents, as well as the public, by allowing limited
encroachments in exchange for the collection of mitigation fees to create additional
public parking and improved public access at the street ends in West Newport.
Such an Encroachment Program would only apply to improvements located within the
City's 15 -foot right -of -way. Improvements beyond 15 feet would be removed per the
requirements of the Commission. Based on conversations with Commission staff,
removal will require a restoration plan detailing methods of removal and an approved
plant palette and planting scheme. If an Encroachment Program is created for East
Oceanfront, it is likely that the Coastal Commission will request the City develop and
implement the restoration plan to ensure it is implemented consistently and in
accordance with their requirements. Therefore the costs to the City, and potential
reimbursement from the residents, will need to be considered in development of the
Encroachment Program.
Next Steps:
1. Initiate Amendments to City Council Policy L -12 and Coastal Land Use Plan
(scheduled for 2/12/13 Council meeting).
2. Present approach to Coastal Commission staff to ensure their support of an
Encroachment Program for East Oceanfront.
3. Meet with residents to discuss approach and to present Encroachment Program.
2
Review of East Oceanfront Encroachments and Potential Solutions
February 12, 2013
Page 3
4. Outline Encroachment Program detailing permitted improvements, fees based on
a current assessment, and mitigation program.
5. Develop restoration plan for beach area beyond 15 -foot right -of -way.
6. Complete required environmental review on accordance with CEQA.
7. Present Encroachment Program and Restoration Plan (amendments to City
Council Policy L -12 and Coastal Land Use Plan) and to Coastal Commission for
approval.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
yk""--tr-
Kimberly Brand , AICP
Director
Attachments: A. Sample Notice of Violation — California Coastal Commission
B. Jim McGee Letter, December 12, 2012
3
11
City Council
Attachment A
Sample Notice of Violation — California Coastal Commission
5
NO
TAL. COMMISSIbN
PAGE e1i05,
i
EDMUND G: BROWN, JR„ Go4emor' '
I
NOTICE OF VIOLATION OF THE CALIFORNIA COASTAL ACT
REGUL.AR.AND CERTIFIED MAIL
February 23, 2012
V
Newport. Coast, CA 92657 -1723
Violation File Number:
Property Location:
V. -5 -12 -004
mfron.t, City of'Neiwport Beach;
County of Orange APR
Unpermitted Development', Uhpermitted Iandscaping.on public beach
Dear Ms
The California' Coastal Act2 was enacted by the State Legislature.in 1976 to provide
long -term protection of California's 1,100 -mile coastline through implerneritation of a.
comprehensive planning and regulatory program designed to manage conservation and
the development of coastal . resources. The California Coastal Commission
( "Commission ') is the state agency created by,' and charged' with administering, the
Coastal Act. In making land use planning and permitting decisions,.the Commission
carries out Coastal Act policies, which -' amongst other goals. -. seek to protect and
restore sensitive habitats; protect natural landforms; 'protect scenic . landscapes' and
views of the sea; protect against loss of life and property from coastal hazards; and
provide maximum public access to coastal areas.
In 2011, several alleged instances of private encroachments onto the public beach
along East Oceanfront in Newport Beach were brought to our attention, including the
public beach immediately adjacent to your property (described above), Since private
encroachments on the' public beach in4erfere with public access, our office has begun
an investigation Into the matter.,
On February 15, 2012, Commission staff visited the area of East Oceanfront in question
and confirmed, that unpermitted development has been undertaken at the property
Pleaso note that the description herein of the violation at issue is not necessarily 8-complete list of all
development.on the subject property that is in violation of the Coastal Act and /or that may be of concern
to the Commission, Accordingly, you should not treat the Commission's silence regarding (or failure to
address) other development on the subject property as indicative of Commission acceptance of, or
acquiescence in, any such development.
2 The Coastal Act Is codified in sections 30000 to 30900 of the California Public Resources Code. All
'further section references are to that,code, and thus, to the Coastal Act, u n less. oiherwise indicated.
STATE' OF CALIFORNIA -NP
Pub®
CAL.WORMA CC
South Coast Area Office .. .
200 Qoeungate, Suite 1000
Lang Beach, CA 90802.4302
-(562) 590.5Q71 - '
TAL. COMMISSIbN
PAGE e1i05,
i
EDMUND G: BROWN, JR„ Go4emor' '
I
NOTICE OF VIOLATION OF THE CALIFORNIA COASTAL ACT
REGUL.AR.AND CERTIFIED MAIL
February 23, 2012
V
Newport. Coast, CA 92657 -1723
Violation File Number:
Property Location:
V. -5 -12 -004
mfron.t, City of'Neiwport Beach;
County of Orange APR
Unpermitted Development', Uhpermitted Iandscaping.on public beach
Dear Ms
The California' Coastal Act2 was enacted by the State Legislature.in 1976 to provide
long -term protection of California's 1,100 -mile coastline through implerneritation of a.
comprehensive planning and regulatory program designed to manage conservation and
the development of coastal . resources. The California Coastal Commission
( "Commission ') is the state agency created by,' and charged' with administering, the
Coastal Act. In making land use planning and permitting decisions,.the Commission
carries out Coastal Act policies, which -' amongst other goals. -. seek to protect and
restore sensitive habitats; protect natural landforms; 'protect scenic . landscapes' and
views of the sea; protect against loss of life and property from coastal hazards; and
provide maximum public access to coastal areas.
In 2011, several alleged instances of private encroachments onto the public beach
along East Oceanfront in Newport Beach were brought to our attention, including the
public beach immediately adjacent to your property (described above), Since private
encroachments on the' public beach in4erfere with public access, our office has begun
an investigation Into the matter.,
On February 15, 2012, Commission staff visited the area of East Oceanfront in question
and confirmed, that unpermitted development has been undertaken at the property
Pleaso note that the description herein of the violation at issue is not necessarily 8-complete list of all
development.on the subject property that is in violation of the Coastal Act and /or that may be of concern
to the Commission, Accordingly, you should not treat the Commission's silence regarding (or failure to
address) other development on the subject property as indicative of Commission acceptance of, or
acquiescence in, any such development.
2 The Coastal Act Is codified in sections 30000 to 30900 of the California Public Resources Code. All
'further section references are to that,code, and thus, to the Coastal Act, u n less. oiherwise indicated.
is PAGE 02/05
described above; specifically, a landscaped turf lawn, and /or an irrigation system extend
..seaward from your property line onto the, public beach: Not only do these
encroachments extend onto the public sandy beach, they also extend beyond the
Oceanfront public right -of -way as designated by the Newport Beach Coastal Land Use
Plan.
Pursuant to Section 30600(a).of the Coastal Act, any person -wishing to
perform or
undertake development in the Coastal Zone 'must obtain a coastal development permit,
in addition to any other permit(s) required by law. "Development" is defined by Section
30106 of the Coastal Act, in relevant part, as:
"Development" means, on land, in or under water,'fho placement or erection of any solid mateifal or
structure... change In the density or intensity of the use of land... change in the Intensity of water,'br,
Of access thereto... construction, thconstruction, demolition, or alteration of the,size of any
structure...
The encroachments described'.above constitute development under the Coastal Act
and, therefore, requires.a coastal development permit. Our records indicate that no
coastal development permit has' been. issued for. the subject' development. Any
development activity conducted in the coastal zone without a valid coastal : development
permit constitutes a violation of the Coastal Act, However, the Coastal Act requires that
an applicant. for a. coastal development'permit must have a legal interest in the property
.on-which the proposed development is.166ate'd — which, in this instance, includes.City-
owned property. Therefore the Commission could not issue a .coastal development
permit authorizing the subject encroachments without authorization from the City of
Newport Beach. Moreover,'.the.development described above are inconsistent with
several Coastal Act policies that. protect public access and recreational opportunities:
Por instance:
Section 30210 of the Coastal Act states
in carrying out the requfroment of Section 4 of Article X of the California Constltution,
maximum access, which shall be conspicuously posted, and recreational opportunities
shall be provided for alllhe people consistent with public safety needs and the need to
protect public rights, rights-of private property owners, and natural rbsource area from
overuse.
Section 30211 of the Coastal Act states:
Development shall not interfere with the public's right of access to the sea where acquired
.through use or legislative authorization, Including, but not limned to, the use of 'dry' sand
and rocky coastal beaches to the first line of terrestrial vegetation.
In addition, Sections 30220 and' 30221 of the Coastal Act require protection of coastal
areas such as oceanfront' beaches, which a're uniquely suited for coastal recreational
activities. 'Encroach men ts onto the public beach reduce the amount of sandy. beach
area available to the general public - thereby decreasing coastal recreation
opportunities, in direct conflict with the goals of the above policies., Not only do distinctly
landscaped lawns and /or hedges reduce the amount of sandy beach and physically
exclude the public from the use of these areas, but they also blur the line between
2
3:15 - - - --
PAGE 03/05
private and public property by presenting the appearance that this area is developed for
private use - thus deterring. the public's use of this portion of the city =owned beach.
The-scenic and visual qualities of beaches are also protected by Section 30251 of the
Coastal Act, which deems public coastal views to be a "resource of public importance."
Natural landforms., such as undeveloped, sandy beaches and dunes, are components of
the area's scenic qualities and are likewise protected by Section 30251.
Moreover, the encroachments described above are inconsistent with several shoreline
access policies and provisions of the City.of Newport Beach Coastal Land Use Plan
(LUP), including the following:
e Protect and where feasible, oirpand and enhance public access to and along tho'
shoreline and to beaches, coastal waters, tidelands, coastal parks, and trails.
.
• E Street to Channel Road. No encroachments are permitted from a point 250 feet -
southeast of E Street to- Channel Road, with the exception of landscaping frogs
existing prior to October 22,4991 and.groundcover. (3.1.3 -3, D:)
• Lfmft encroachments within encroachment zones as follows:.
o Prohibit pressurized Irrigation lines and valves. (3.1.3.4.6.)
o• Prohibit any oncroachments that Impact public, access, recreation, views
and/or coastal resources. (3.1.3-4.-D.)
o Require landscaping to -be designed and maintained to avoid impacts to
public access and views (3.1:3 -4. E.)
Require annual renewal of encroachment permits and a fee. (11.3 -5)
• Require encroachment permits to specify that the propeKy ownsr walves and gives
up any right to contest the validity of the oceanfront street easement, and that the
encroachment permit is revocable, without cause, If the City proposes to construct
public improvements In thatzone. (11:3.6)
Finally, the subject encroachments are also inconsistent with aspects. of the City Council
Oceanfront Encroachment Policy (L -I 2), which. — while not an official component of the
City of Newport Beach LUP nor a binding policy for the Commission - serves as a
guideline for the City in approving or denying encroachment permits in support of the
existing LUP (see below):
Encroachments, including irrigation systems, and improvements are prohibited
oceanward of any ocean front parcel from a point 250 feet southeast of E Street to
Channel Road, provided existing frees which have been. planted and maintained in
conformance with City Council policy, and round cover such. as ice plant or
indigenous fan are not considered to be an encroachment, and wfl no require a
POrmit. pursuant to this policy, but the City reserves the tight to remove,. trim -or
otherwise, control the type and extant of any such landscaping. (L -12 C. 2)
As previously discussed, the subject encroachments are located on City property and
cooperation would be needed from the City of Newport Beach in order to approve any
potential coastal development permits. However, due to the fact that the unpermitted
private encroachments described above are inconsistent with both the policies of the
Coastal Act and the City of Newport Beach LUP the subject encroachments need to be
removed and the beach restored for public use.
9
..x:15 PAGE 04/05
in some cases, violations involving u.np.ermitted development may be resolved Through
removal of the unpermitted development and restoration of any damaged, resources.
Removal of the. development and restoration of the site .generally will require formal
approval under the Coastal Act. Please Contact me by March 8, 2012 to discuss options
for restoration of the site, which may include resolution of this matter through, the coastal
development permitting process. If we can come to an agreement as to'what a coastal
development, permit application would need. to include (typically plans prepared by
qualified professionals including, but not limited to, a biological assessment, an erosion
control plan, a restoration and monitoring plan, etc), and if, after speaking with you,'
Commission.. staff can support resolution of this matter through the. coastal development
permitting process, you may be asked to submit a complete coastal develop ment.pe rm it
application to remove the subject unpermitted developient and restore the site to its
Pre-violation condition. If; however, we cannot come to an agreement in a timely
manner, we. will consider other options for resolution including processing. administrative
orders pursuant to Sections 30809, 30810, and /or 30811 as described below,
Although we would prefer to resolve this matter through the. means indicated above,
please be aware that Coastal Act Section 30809 states that if the Executive Director of
the Commission determines that any person has undertaken, or is threatening to
undertake, any activity that requires a permit from the Coastal. Commission without first
securing a permit, the Executive Director may issue an :order directing that person to
.cease and desist. A cease and desist order may be subject to any terms and conditions
the Executive Director determines are necessary to avoid irreparable harm, Coastal Act
Sections 30810 and 30811 also authorize the .Coastal Commission; respectively, to
Issue a cease and desist order and /or a restoration order for a site if 'unpermitted
development is inconsistent with the policies of the Coastal Act and is causing
continuing resource damage. A violation of a cease and desist or restoration order can
result in civil fines of up to $6,000 for each day in which the violation persists.
In addition,' we note that Sections 30803 and 30805 of the Coastal. Act. authorize the
Commission to initiate litigation to seek injunctive relief and an award of civil fines 16
response to any violation of the Coastal Act. Section 30820(a)(1) of the Coastal Act
provides that any person who performs development in violation of -any' provision. of the
Coastal Act may be subject to a penalty amount that shall not exceed $30,000 and shall
not be less than $500. Coastal Act section 30820(b) states that, in addition to any other
penalties, 'any person who "knowingly and intentionally" performs or undertakes any
development in violation of the Coastal Act can be subject to a civil penalty of not less
than $1,000 nor more than $15,000 for each, day in which the violation persists:,,
Thank you for your attention to this matter. If you have anyquestiens regarding this
letter, please feel free to contact me at (562) 590 -5071.
wo
15
Sincerely, , (J
Sarah Wescott
South Coast District Enforcement
cc: Dave Kiff, City,Manager, City of Newport Beach
Lisa Haage, Chief of Enforcement, CCC
Sherilyn Sarb, Deputy Director, CCC
Karl Schwing, Orange County Planning Supervisor; CCC
Patrick Veesart, Southern California Enfotcement Supervisor, CCC
Andrew Willis, Enforcement Analysis; CCC
PAGE 05/05
164
12
City Council
Attachment B
Jim McGee Letter, December 12, 2012
13
14
McGEE & ASSOCIATES
LAWYERS
23 CORPORATE PLAZA
SUITE 230
NEWPORT BEACH, CALIFORNIA 92660
TELEPHONE (949) 640 -0500
FACSIMILE (949) 640 -4015
REFER TO FILE.
December 21, 2012
VIA U.S. MAIL & FACSIMILE (949) 644 -3020
Dave Kiff
City Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re: Oceanfront Encroachments
Dear Dave:
Following my meeting with you, Kim Brandt, Brenda Wisneski, Leoni Mulvilhill,
and Pat Thomas, on December 10, 2012, I have been in further communication with the
residents' group. The purpose of this letter is to refine the terms of a settlement proposal
intended to achieve a global resolution of all oceanfront encroachment issues at Peninsula
Point, including the Notices of Violation that have been sent to a number of the residents.
Based upon the feedback that I got from you and the City staff at the meeting, my clients
have made a number of additional compromises which I hope will result in a proposal
that both the City and the oceanfront residents will firmly advocate to the California
Coastal Commission.
I. Historical Background
Private landscaping improvements on the sand, at Peninsula Point, have been in
existence for, in some instances since 1911 (over 100 years) (See Newport Beach City
Council Resolution No. 91 -80, approving Amendment No. 23 to the LUP, page 3,
History and Status of Encroachments). Somewhat more recently, however, these private
improvements were the subject of two separate surveys that were conducted by the City
of Newport Beach; one in June, 1985, and another in September, 1989. In each survey,
each encroachment was specifically identified by Assessor's Parcel Number and street
060314.01
15
Dave Kiff
December 21, 2012
Page 2
address. The 1989 survey conducted by Rattray and Associates, Inc. identifies a variety
of landscape and hardscape features, including ice plant, turf grass, shrubs, trees,
irrigation systems, planter walls, landscaping borders of brick and other materials,
stepping stones, patios, wooden sidewalks, concrete pathways, sculptures, large rocks,
cement urns, flag poles, patio furniture, and even a 10' wooden boat planter. The
oceanward depths of the encroachments shown in the 1985 survey were up to 65'. It is
believed that the 1985 and 1989 City commissioned surveys were related to the City's
effort to adopt a uniform City policy regarding oceanfront encroachments.
The City apparently conducted community outreach with respect to adopting a
City wide policy regarding oceanfront encroachments over a several -year period of time,
starting in approximately 1985. The City met with various residents and groups,
including a group that called itself the Peninsula Point Association. In April, 1989, the
Newport Beach City Council established, and appointed members to, the Oceanfront
Encroachment Citizen's Advisory Committee, pursuant to Resolution No. 89 -25. This
Committee spent one year studying all aspects of the oceanfront encroachments,
including the age in nature of the encroachments. The Committee conducted monthly
working sessions and two town hall meetings and in April, 1990, the Committee
submitted its final report to the City Council. In May, 1990, the Newport Beach Planning
Commission recommended initiation of a Local Coastal Program Land Use Plan
amendment to establish a policy regarding oceanfront encroachments. The City Council
held public hearings on what would become proposed Amendment No. 23 in October,
1990. Following its several -year outreach process, on November 26, 1990, the City
Council approved Council Policy L -14 in furtherance of a uniform policy for oceanfront
encroachments and in conformity with various modifications that were sought by the City
to the Land Use Plan ( "LUP ") of the City's Local Coastal Program ( "LCP "). Council
Policy L -14 allowed the installation of private improvements along the oceanfront from
the Santa Ana river channel all the way to E Street, but excluded the residences located
between E Street and Channel Road (Peninsula Point). Apparently, the City excluded the
Peninsula Point residences at the urging of the group known as the Peninsula Point
Association, under the mistaken belief that this association had formal standing as elected
representatives of the Peninsula Point homeowners, including the oceanfront
homeowners. Instead, the Peninsula Point Association was a group that had voluntary
membership and nominal dues assessments, but was not elected by the resident
homeowners and had no right to speak on behalf of the oceanfront homeowners, who had
no representation on this volunteer association. Current oceanfront homeowners report
that the members of this voluntary association consisted primarily of residents living on
the bay side and interior of Peninsula Point.
10
Dave Kiff
December 21, 2012
Page 3
Once Council Policy L -14 was adopted it was attached to the City's submittal to
the California Coastal Commission which sought to amend (Amendment No. 23) the
City's LUP.
The Coastal Commission unanimously approved Amendment No. 23 to the LUP
on June 11, 1991, after first requiring some changes to the language of the proposed
amendment. The changes related primarily to the charging of fees for an encroachment
permit and mandating that a certain portion of the fees be used to improve beachfront
access for the public. Based upon the language changes required by the Coastal
Commission in the approved version of Amendment No. 23, the City Council, on July 8,
1991 amendment Council Policy L -14 to incorporate the same changes so that it was
consistent with Amendment No. 23.
The LCP, including Amendment No. 23, approved by the Coastal Commission in
1991, as well as Council Policy L -14 prohibited encroachments at Peninsula Point but
stated that "existing trees and ground cover such as ice plant, and natural and indigenous
plants, will be permitted, and are not considered to be an encroachment, and will not
require a permit." As to the remainder of the City, L -12 allows encroachments up to 15'
occanward of the property lines, but prohibits pressurized irrigation lines and valves
within the encroachment zones; prohibits electrical improvements that require issuance of
a building permit; prohibits objects that exceed 36" in height, with the exception of
landscaping; prohibits encroachments that impact public access or views; and restricts
landscaping in dune habitat areas" to native vegetation. The LCP also requires an annual
encroachment permit and payment of a fee.
On November 5, 1991, a letter was sent by the City of Newport Beach to the
oceanfront property owners of Peninsula Point, signed by John Wolter, a City Engineer,
and copied to the City Manager, City Attorney, and Public Works Director. The letter
advised the Peninsula Point oceanfront property owners that the City Council and the
California Coastal Commission had approved an Amendment to the City's LUP allowing
for the installation of private improvements on the sand, along the oceanfront. The letter
included a copy of Council Policy L -14, an aerial photo of the property owner's
oceanfront parcel showing existing encroachments, and a copy of the City's
Encroachment Surveys of 1985 and 1989. The letter stated that the Peninsula Point
Association, during the hearing process, had requested that the Peninsula Point area be
omitted from Policy L -14 and that notwithstanding the exclusion, Section C.2 of L -14
provided, as follows:
"Encroachments are prohibited oceanward of any residential parcel from a point
250 feet southeast of E Street to Channel Road. Notwithstanding the foregoing,
within the area between 250 feet southeast of E Street and Channel Road existine
17
Dave Kiff
December 21, 2012
Page 4
trees and ground cover such as ice plant, and natural and indigenous plants, will
be permitted, and are not considered to be an encroachment, and will not require a
permit." (Emphasis added)
The letter went on to state that "Prohibited encroachments shall be removed by
the property owners in accordance with Policy L -14. The Public Works Department will
make an inspection in February 1992 to insure that prohibited encroachments are
removed from the Encroachment Zone."
A number of current Peninsula Point oceanfront homeowners report that
consistent with the letter of November 5, 1991, they were contacted by the Public Works
Department of the City in February, 1992 and property inspections were performed.
During these inspections Public Works told the oceanfront homeowners that the
landscaping, irrigation, and various improvements at ground level, including stepping
stones, could remain in place and were not required to be removed. A copy of the letter of
November 5, 1991 and I page (Page 62) of the City's encroachment survey that was
enclosed with the letter is attached (Attachment 1). It shows 50' -65' encroachments
relating to 2050, 2054, and 2058 E. Oceanfront).
Over the ensuing period of 15 years since the adoption of Council Policy L -14
(which has since been renumbered to L -12), thus up to 2006, most of the encroachments
on the oceanfront at Peninsula Point have been continuously in place and known to the
City as a result of the encroachment surveys and the 1992 property inspections. During
this period of time the properties have been transferred from owner to owner, some on
several occasions, without knowledge of both sellers and buyers that the oceanward
encroachments were or could be considered violations of City Policy or the Coastal Act
regulations. Also during this period of time the City, through its Residential Building
Records Report system, which is mandated under the City's Municipal Code, required an
RBR for all residential properties when ownership transferred and generated City
inspections for the propose of comparing the history of City records to what is visible at
the site and to confirm that the property was being utilized within the requirements of the
zoning code and that any construction on the site had been completed with all required
permits. The subject RBRs did not generate notices of any illegal encroachments, even
though a majority of all Peninsula Point oceanfront residences had, at that time, private
improvements on the sand.
In 2006, residents in West Newport illegally caused the grading of coastal sand
dunes outside of their Seashore Drive properties, which caused a chain of events. The
residents that graded down the coastal sand dunes were subjected to legal action by the
Coastal Commission which resulted in an administrative order to restore the dunes,
including detailed dunes design planning and long -term monitoring of the restored dunes
IN
Dave Kiff
December 21, 2012
Page 5
and habitat. An Orange County Register columnist began a series of columns about
beachfrom properties including some in West Newport and some at Peninsula Point. This
ultimately led the City to send violation notice letters due to encroachments on the beach,
to a large number of property owners (75 in West Newport and 63 in Peninsula Point).
Following receipt of the violation notices, a group of Peninsula Point oceanfront
homeowners retained counsel and undertook discussions with the City to seek a
resolution relating to the encroachment violation letters.
Numerous meetings were held between the residents' counsel and City staff to
discuss an equitable resolution regarding the Peninsula Point oceanfront encroachment
issues. The meetings with staff lead to the recommendation by staff for a City Council
Study Session and the exchange of red -lined versions of an amendment to Council Policy
L -12 that was attached to the Staff Report for the Study Session. The final version of the
proposed Amendment to Council Policy L -12, incorporating all of the recommended
changes suggested by Council for the Peninsula Point oceanfront homeowners and the
City staff is attached. (Attachment 2). On November 14, 2006, the City Council held a
study session to address those properties at Peninsula Point that had private
improvements on the oceanfront. In general, the council expressed interest in allowing
the existing encroachments to remain in place and a willingness to consider amendments
to Council Policy L -12 which would be forwarded to the California Coastal Commission
for the Commission's review and comment. Following the City Council study session,
Counsel for the Peninsula Point oceanfront homeowners continued to meet with the City
Staff to find an appropriate resolution to the encroachment issues. Such a resolution was
reached in July, 2007, and the then Assistant City Manager, Dave Kiff, sent a letter to
each of the owners of oceanfront properties at Peninsula Point. (Attachment 3).
The July 9, 2007 letter from Dave Kiff to the oceanfront homeowners at Peninsula
Point, which echoed the sentiments of the Council expressed during the November, 2006,
Study Session and which letter was approved by at least some Council members, gave
certain assurances that the oceanfront encroachments then existing were not a violation of
City policy, but would be subject to certain conditions. This "new" City policy was
described by Assistant City Manager Kiff as "a rational policy that both respects Council
Policy L -12 and respects the interests of the Coastal Commission and others to maintain
public access ". In brief summary, the new policy required the installation of signs that
indicated that the public was welcome near where the landscaping encroachments
existed; stated that the existing encroachments had been photographed and that no
additions to the landscaping or hardscaping would be permitted; and stated that future
buyers of the property would receive a report of residential building records ( "RBR ") that
would include information relating to the landscaping encroachments and the City's
interest in keeping these encroachments unchanged so that access to the beach is
preserved. Lastly, the letter stated that "We will support efforts to request that the
19
Dave Kiff
December 21, 2012
Page 6
Commission consider the matter closed, given the fact that the public access is not
discouraged by the plantings."
II. Proposal
The existing Peninsula Point oceanfront encroachments consist of various forms
of ground cover, including turf grass, ice plant, African daisies, California beach grasses,
and native grasses, together with various varieties of bushes, shrubs, and trees. Some
properties have irrigation lines with valves and controls on the beach, while others have
either none or the valves and controls are on private property. Additionally, there are
various types of stepping stones or walk paths. A few properties have electrical fixtures;
some properties have movable pots or urns and sculptures other improvements include
low walls and structures that are at ground level or less than 3' in height. The depth of the
encroachments range from a couple of feet to more than 65' oceanward.
Based on the length of time that many of the encroachments have been in place,
the precise language of Council Policy L -12 and LUP Amendment No. 23 as it relates to
Peninsula Point on the one hand and West Newport and other areas of the City's
oceanfront, on the other hand, as well as the City's commitment in 2007 to support the
Peninsular Point homeowners because the encroachments did not inhibit beach access
and respected Council Policy L -12 and the Coastal Act, the resident group that I represent
would like to resolve all encroachment issues, in accordance with the following terms,
which are italicized and followed by a statement of justification:
1. All trees and groundcover that are currently in place and that existed prior to
October 22, 1991, would remain in place. This is in accordance with Council
Policy L -12 and LUP Amendment No. 23.
2. An encroachment zone would be created from a point 250' southeast ofE
Street to Channel Road. The encroachment zone would be 15 feet oceanward
of the rear (ocean facing) property lines within the oceanward prolongation
of the side property lines for each of the residences in the encroachment zone.
This encroachment zone would be the same dimension as the City's right -of-
way and consistent with what is allowed in West Newport. The City, in 2006
confirmed in its letter to the Peninsula Point oceanfront homeowners, that the
encroachments at that time, which the City documented were, in many
instances, over 30 feet oceanward and up to 65 feet oceanward, could remain
in place, with the justification that these encroachments respected Council
Policy L -12 and the interest of the Coastal Commission to maintain public
beach access. In that regard, nothing has changed, so the removal of landscape
up to 65' in depth, to 15' would be a significant concession. Moreover, as the
City Council set forth in its findings in support of Resolution No. 10. 91 -80, in
M
Dave Kiff
December 21, 2012
Page 7
June, 1991, when it approved Amendment No. 23 to the LUP, "the sandy
beach in West Newport averages 300 feet in width and the vast majority of
beach use occurs within 100 feet or less, of the high tide line, and thus the 15
feet encroachments would have no significant impact public access to the
ocean". This rational has even greater applicability for Peninsula Point
because the sandy beach there ranges from approximately 375 feet to over 500
feet and, it is without dispute, that beach use at Peninsula Point is significantly
less than the beach use in West Newport.
Within the encroachment zone, existing landscaping that currently exists
could remain, including all existing ground cover which, by definition, would
include turfgrass and ice plant, as well as African daisies and beach grasses,
and all existing trees, shrubs, and bushes. This is consistent with the City's
position set forth in its letter of July 9, 2007. Further, it is consistent with the
Coastal Act, specifically Sections 30210, 30211, 30212, 30214, 30221, 30251,
and 30252 in that these encroachments, given the limitation on location, size,
and nature of the landscaping, have no significant impact on public access to
the ocean, that portion of the sandy beach commonly used by the public, or
the amount of sandy beach available for use by the public since it is less than
5% of the total beach area that could be covered by encroachments and not
available for public use. Additionally, this policy would eliminate the
potential for oceanward extensions of existing encroachments, as well as the
construction of new encroachments more than 15 feet beyond the property
lines of the residences and would allow the City to effectively enforce limits
on the size, nature, and extent of encroachments. Also, allowing these
encroachments will not have any significant impact on the desirability of the
sandy beach for use by the public since the encroachments are located far
from the water and that portion of the beach most heavily used by the public.
Beach goers typically congregate within a relatively small area from the water
line and would naturally avoid that portion of the beach closest to homes.
Moreover, these encroachments, as restricted and conditioned, would
minimize the alteration of natural land forms, would be visually compatible
with the sandy beaches, and permitted landscaping and allowing this
landscaping to remain in place will enhance and maintain the scenic and
visual quality of the area, without impacting beach or ocean views. All of
these findings were determined by the City Council to exist with respect to the
allowance of encroachments in West Newport and the Pier Area between A
Street and E Street when, in 1991, the Council adopted Resolution No. 91 -80
establishing a policy for oceanfront encroachments in those parts of the City
and apply equally as a rationale for the proposed encroachment policy for
Peninsula Point.
21
Dave Kiff
December 21, 2012
Page 8
4. The existing landscaping along the I Street, L Street, and MStreet walkways
that project out onto the beach and which are not immediately adjacent to any
private residences would be an exception to the 15 feet oceanward
encroachment zone. Existing walkways and adjacent landscaping on the
parcels of land owned by the City and located at the extensions ofI Street, L
Street and M Street, which provide attractive and inviting access to the beach
for public visitors, would remain as they currently exist. These street end
parcels are owned by the City. The City's walkway right -of -way is 70 feet
across and the landscaping projects out more than 60'. The justification for
allowing this landscaping beyond the 15 foot encroachment zone would be the
same as it is for the 15 foot encroachment zone, namely that it does not
impede beach access or views and enhances the scenic and visual quality of
the area, while helping to direct the public, in an inviting way, toward the
water's edge
5. Electrical structures that would require the issuance of a building permit
would be prohibited.
6. Pressurized irrigation lines would be prohibited, however, Rainbird sprinklers
or other sprinklers that broadcast water and which originate on private
property, as well as drip irrigation lines in the encroachment zones, would be
allowed This would avoid having any pressurized irrigation lines and valves
on the beach, a prohibition which is consistent with the limitations that apply
to West Newport under Council Policy L -12 and LCP Amendment No. 23.
7. Any hardscape or other objects or improvements that do not exceed 36" in
height, would be allowed. As under existing Council Policy L -12, patio slabs
or decks no higher than 6 inches above grade, walls and /or fences less than
36 inches in height above grade, stepping stales and walk ways at grade, and
other structures such as movable pots of urns, sculptures, or structures with
low walls less than 3 feet in height would be allowed. This is consistent with
the prohibitions that apply to West Newport under Council Policy L -12 and
LUP Amendment No. 23.
8. Homeowners having any landscape or hardscape beyond the 15'
Encroachment Zone would give consent to the City to remove the
encroachments.
9. An annual encroachment permitting process and fee identical to that currently
in place for West Newport would be enacted and the fees collected would be
used for the same mitigation purposes as the encroachment fees now being
collected by the City.
10. The City would agree to amend Council Policy L -12 and to seek an
amendment of the City's LUP to incorporate all of the aforementioned
provisions.
22
Dave Kiff
December 21, 2012
Page 9
H. No Coastal Development Permits would be required for landscaping and
hardscape within the encroachment zone so long as they met the above
requirements. The NOVs that have already been issued by the Coastal
Commission would be resolved with a consent order /settlement agreement
rather than a CDP. This would include any plan to remove existing landscape
or hardscape outside of the 15 foot encroachment zone.
All of the above landscaping and hardscape that would be allowed in the
encroachment zone and at the ends of I, L and M Street can be shown to have consistency
with the City's LUP policies and it should be possible to convince the Coastal
Commission staff that some of the landscaping that it might not otherwise want to
approve constitutes "de minimus" development pursuant to Section 30624.7 of the
Coastal Act and Section 13238.1 of the California Code of Regulations, which allows the
Executive Director of the Coastal Commission to issue a waiver from permit
requirements, if, upon review, the Executive Director determines that the permit
requirements may be waived. In order to do so, the Executive Director must determine
that the development, in this case, landscaping and some hardscape, involves no potential
adverse effect on coastal resources, either individually, or cumulatively, and is consistent
with the Coastal Act.
The obvious benefits of the above terms is that it would allow for a consistent
encroachment policy throughout the City and, in return, the encroachment fees could be
used to improve beach access, perhaps by replacing some of the street -end sidewalks at
Peninsula Point that extend out onto the sandy beach.
It is my understanding that the City staff intends to schedule a Study Session with
the City Council during the month of February, 2013. Please include this letter and
attachments in the Council's Study Session packet and let me know if I can provide any
additional input.
Very truly yours,
q ES E & ASSOCIATESS F. MCGEE
JFM:cv
HACLIEN11Oceanfront Encroachments \2012 \Letters\Kiff 12122 Ldoc
23
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CITY OF NEWPORT BEACH
%1 Z P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768
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November 5, 1991
Oceanfront Property Owners and Residents
Peninsula Point
Subject: Oceanfront Encroachment.Policy and Permit
Dear Property Owners:
The City Council and the California Coastal Commission have
approved an Amendment to the City's Land Use Plan of the Local
Coastal Program, which establishes specific restrictions and
conditions on the installation of private improvements in the
public right -of -way along the oceanfront. The City Council has
adopted City Policy L -14 "Oceanfront Encroachment Policy" to
implement that amendment by establishing a procedure for approval
of permitted encroachments, removal of prohibited encroachments,
limiting the extent of encroachments, and clarification of
improvements permitted within the Encroachment Zone. A copy of
Policy L -14, an aerial photo of your oceanfront property at a scale
of 1" =20' and a copy of the City's encroachment survey in your
block are enclosed for your information.
During the hearing process, the Peninsula Point Association and
many residents requested that the Peninsula Point area be withdrawn
as a proposed encroachment area. Section C.2. of the Oceanfront
Encroachment Policy therefore provides as follows:
"Encroachments are prohibited oceanward of any residential
parcel from a point 250 feet southeast of E Street to Channel
Road. Notwithstanding the foregoing, within the area between
250 feet southeast of E Street and Channel Road existing trees
subject to compliance with the City tree policy, and ground
cover such as iceplant, natural and indigenous plants, will be
permitted, are not considered to be an encroachment, and will
not require a permit. However, the City reserves the right to
control the type and extent of ground cover when necessary or
appropriate.
Prohibited encroachments shall be moved by the property owners in
accordance with Policy, r Public Works Department will make
an inspection in (Pe 19 ,2 to ensure that prohibited
encroachments are rem ved fr?5-tKe Encroachment Zone.
3300 Newport Boulevard, Newport Beach
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Page 2
.The Oceanfront Encroachment Policy, Local Coastal Plan Amendment
and Annual Ocean Front Encroachment Permit program are the result
of several years of meetings, public discussions, and hearings
before the City Council and California Coastal Commission. The
policy represents a compromise in terms of the extent of the permit
zone, permitted improvaimants, and nature of public access
improvements to be constructed as mitigation with the funds derived
from the permit fees. Your cooperation and patience in
implementing the program will appreciated.
Please feel free to call m at 644 -3311 you have any questions.
t 1
very ru y yours,
John Wolter
Cooperative Projects Engineer
Jw:so
xc: City Manager
City Attorney
Public Works Director
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John Wolter
Cooperative Projects Engineer
Jw:so
xc: City Manager
City Attorney
Public Works Director
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POLICY L -12
OCEANFRONT ENCROACHMENT POLICY
The City Council has approved Amendment No. 23 to the Land Use Plan of the
Local Coastal Program, which established specific restrictions and conditions on
the installation of private improvements in the public right of way along the
oceanfront from (i) the Santa Ana River Channel to Channel Road and (ii) 250
feet southeast of E Street to Channel Road ( "Peninsula Point "). Existing
encroachments are located on a very small portion of the sandy beach and do
not impact any of the street ends and other public facilities which provide beach
access through oceanfront residential communities. However, encroachments
could impact access to, and public use of, the beach in the absence of an
equitable and enforceable City policy limiting the extent, size and nature of the
encroachments. This policy is intended to implement Amendment No. 23 by
establishing a procedure for approval of permitted encroachments, removal of
prohibited encroachments, limiting the extent of encroachments, and clarification
of improvements permitted within each encroachment zone.
A. Definitions.
1. For the purpose of this Section, the following words and phrases shall be
defined as specified below:
a. Existing encroachment shall mean any encroachment or improvement
installed or constructed before May 31, 1992.
b. New encroachment shall mean any encroachment or improvement installed or
constructed after May 31, 1992.
c. Improvements or Encroachments shall mean any object or thing:
i. within or oceanward of any encroachment zone described in this policy;
ii. within or oceanward of the north edge of the Oceanfront Boardwalk, between
36th Street and A Street; or
iii. oceanward of any residential parcel from a point 250 feet southeast of E
Street to Channel Road. Notwithstanding the foregoing, within the area between
250 feet southeast of E Street and Channel Road existing trees, ground cover,
and natural and indigenous plants, together with irrigation lines and valves
relating to such landscape will be allowed, and are not considered to be an
encroachment or improvement, and will not require a permit if installed prior to
the effective date of this portion of the policy. However, the City reserves the
right to control the extent of such landscaping and improvements when
necessary.
20
d. Encroachment permit shall mean the permit issued by the Public Works
Director authorizing the maintenance or installation of encroachments or
improvements within the encroachment zones described in this policy.
e. Application shall mean any application for an encroachment permit pursuant to
the provisions of this policy and the land use plan of the local coastal program.
f. Oceanfront Boardwalk, Oceanfront Walk, or sidewalk, shall mean the concrete
walkway along the oceanside of ocean front residential properties between 36th
Street and a point approximately 250 feet southeast of E Street.
B. Encroachment Zones. Subject to compliance with the provisions of this policy:
1. The owner of any ocean front residential parcel between the Santa Ana River
and 52nd Street may install improvements on the oceanside of the parcel up to a
maximum of 15 feet oceanward of the private property line and within an
oceanward prolongation of the property lines on the side of the parcel.
2. The owner of any oceanfront residential parcel between 52nd Street and 36th
Street may install improvements on the ocean side of the parcel up to a
maximum of 10 feet oceanward of the private property line and within an
oceanward prolongation of the property lines on the side of the parcel.
3. The owner of any oceanfront residential parcel between A Street and a point
250 feet southeast of E Street may install improvements up to the sidewalk and
within an oceanward prolongation of the property lines on the side of the parcel.
4. The owner of any oceanfront residential parcel from a point 250 feet southeast
of E Street to Channel Road may install improvements on the ocean side of the
parcel up to a maximum of 15 feet oceanward of the private property line and
within an oceanward prolongation of the property lines on the side of the parcel.
C. Prohibited Encroachments.
1. Encroachments and improvements are prohibited oceanward of private
property between 36th Street and A Street provided, however, the northerly edge
of Oceanfront Boardwalk in this area is not always coincident with the oceanward
private property line and improvements northerly of the north edge of the
sidewalk are not considered encroachments or prohibited by this policy.
2. Any existing encroachment or improvement for which no application has been
filed on or before March 1, 2007, and any new encroachment or improvement for
which no application is filed prior to installation is prohibited.
3. Any new or existing encroachment or improvement which, on or after July 1,
1992, is not in conformance with this policy is prohibited.
27
4. Any new or existing encroachment or improvement for which there is no valid
permit.
D. Permitted Encroachment/Immovements. Subject to compliance with the
provisions of this policy, the following improvements are allowed within the
encroachment zones described in Section B:
1. Patio slabs or decks no higher than six inches above grade or the finished
floor grade of the adjacent residence. The Public Works Director may approve
minor dimensional tolerances for patio slabs and decks only upon a finding that
the improvement is consistent with the spirit and intent of this policy and the cost
of strict compliance is disproportionate to the extent of the nonconformity.
Determination of grade will be made as provided in Section J.
2. Walls and /or fences less than 36 inches in height above grade or the finished
floor grade of the existing residence. The Public Works Director may approve
minor dimensional tolerances for walls and /or fences upon a finding that the
improvement is consistent with the spirit and intent of this policy and the cost of
strict compliance is disproportionate to the extent of the nonconformity.
Determination of grade will be made as provided in Section J.
3. Walls, fences, and other improvements which were constructed in conformity
with plans submitted to and approved by the Building Department and for which a
Building Permit was issued.
4. Existing improvements constructed as of October 1, 2006 in the 15'
encroachment zone for properties located within the area 250 feet southeast of E
Street to Channel Road.
5. Existing improvements which were constructed in conjunction with
development for which a building permit was issued but such improvements were
not shown on the plans approved by the Building Department may be approved
by the Public Works Director upon a finding that the improvement is consistent
with the spirit and intent of this policy and the cost of strict compliance is
disproportionate to the extent of the nonconformity.
6. In no event shall the Public Works Director approve a permit for an
encroachment or improvement that varies more than 12 inches from the
horizontal dimensional standards of this policy, unless it relates to an
improvement allowed under Section D 3 or D 4 above.
E. Prohibited Improvements.
Unless allowed by another provision of this policy, the following improvements
are prohibited:
22
1. Any structural, electrical, plumbing or other improvements which require
issuance of a building permit and for which no such permits were issued.
2. Pressurized irrigation lines and valves.
3. Any object which exceeds 36 inches in height, exclusive of the following:
a. trees planted by the City of Newport Beach or private parties pursuant to
written policy of the City Council of the City of Newport Beach; or
b. any landscaping or vegetation within the encroachment zone subject to the
following:
L The vegetation or landscaping was installed prior to the first effective date of
this policy;
ii. The vegetation or landscaping does not block views from adjoining property;
iii. The vegetation or landscaping does not function as screen planting as defined
in Title 20 of the Newport Beach Municipal Code; and
iv. The vegetation or landscaping does not impair or affect the health, safety or
welfare of persons using the oceanfront Walk, nearby property owners, or
residents of the area.
Notwithstanding the provisions of this Subparagraph, the City reserves the right
to reduce the height of any existing landscaping at any time, upon a
determination by the Public Works Director, and after notice to the owner of
property on which the vegetation or landscaping exists, that a reduction in height
is necessary or appropriate given the purposes of this policy.
F. Permit Process.
1. An encroachment permit shall be required for all permitted improvements. The
application shall be filed with the Public Works Department on a form provided by
the City. The application shall be signed by the owner of the property, or an
agent of the owner if the application is accompanied by a document, signed by
the owner, granting the agent the power to act for the owner with respect to the
property. The application shall be accompanied by a site plan, drawn to scale
and fully dimensioned, which accurately depicts the location, height, nature and
extent of all proposed improvements and objects within the encroachment zone.
Applications with incomplete information and /or inadequate drawings will not be
accepted.
2. Applications for existing encroachments must be filed on or before March 1,
2007. Applications for new encroachments shall be filed before any
�)
encroachment or improvement is installed. No new encroachments or
improvements shall be installed without an encroachment permit.
3. Upon receipt of the application, the Public Works Director shall, within fifteen
(15) days after the date of filing, determine if the application is complete or if
additional information is necessary or appropriate to an evaluation of the
application. In the event the application is incomplete or additional information is
necessary, written notice to that effect shall be sent to the property owner within
twenty (20) days after the application is filed.
4. With respect to applications for existing encroachments, an inspection shall be
conducted of all improvements within the encroachment zone before a permit is
issued by the Public Works Director. With respect to applications for new
encroachments, an on site inspection will be conducted after installation of the
improvements to insure conformity with provisions of the permit and this policy.
5. The Public Works Director shall approve the permit upon a determination that
the encroachments proposed to be constructed, or to remain, are allowed by this
policy, the applicant has agreed to abide by all of the terms and conditions
imposed on the permit, and the applicant has paid all fees required by this policy.
6. The Public Works Director shall have the authority to condition his /her
approval of the encroachment permit as necessary or appropriate to insure
compliance with the provisions of this policy. The Public Works Director shall
have the specific authority to condition approval of an encroachment permit on
the removal of nonconforming improvements within a specified period of time.
7. The Public Works Director shall notify the applicant of his /her decision within
sixty (60) days after the application is filed and the decision of the Public Works
Director shall be final.
G. Term.
1. Except as provided in this Section, annual encroachment permits shall expire
on June 30 of each calendar year.
2. Encroachment permits issued prior to June 30, 1992 shall expire May 1, 2007.
H. Renewal.
1. Annual renewal fees shall be due and payable on or before May 31
preceeding the annual term of the permit. For example: Annual renewal fees
due on May 31, 2001, are for the period July 1, 2001 through June 30, 2002.
2. The Public Works Director shall approve annual renewal if:
30
a. The applicant has complied with all standard and special conditions of
approval;
b. The applicant has constructed only those improvements and encroachments
authorized by the permit;
c. The applicant is in compliance with all of the provisions of this policy.
I. Standard Conditions.
1. The Public Works Director shall impose standard conditions of approval on all
encroachment permits. These standard conditions shall include, without
limitation, the following:
a. The obligation of permittee to comply with all of the provisions of this policy
and all conditions imposed upon the permit.
b. The right of the Public Works Director to revoke any permit after notice and
hearing if the permittee is in violation of this policy or conditions to the permit.
c. The right of the City to summarily abate encroachments or improvements
which are prohibited by this policy or conditions on the permit upon ten (10) day's
written notice.
d. The obligation of permittee to pay all costs incurred by the City in summarily
abating any prohibited improvement.
e. The obligation of permittee to defend, indemnify and hold the City and its
employees harmless from and against any loss or damage arising from the use
or existence of the improvements or encroachment.
f. Permittee's waiver of any right to contest the City's street and public access
easement over property within or oceanward of the encroachment zones.
g. The right of the Public Works Director or his designee to inspect improvements
within the encroachment zone without notice to the permittee.
h. The right of the City to cancel or modify any, or all, encroachment permit(s)
upon a determination by the City Council to construct a public facility or
improvement within or adjacent to the encroachment zone.
2. The construction of any seawall, revetment or other device necessary to
control erosion, shall occur as close to private property as feasible.
Erosion control devices shall not be placed or installed closer to the ocean to
protect improvements or encroachments.
31
3. The Public Works Director may impose additional standard conditions
necessary or appropriate to insure compliance with, or facilitate City
administration of this policy.
J. Determination of Grade.
1. The nature of the beach makes a precise determination of grade difficult. The
level of the sand changes with wind, storm, and tidal conditions. The Public
Works Director shall determine the level from which the height of encroachments
and improvements is to be measured. In making this determination, the Public
Works Director shall consider the following criteria:
a. The existing grade in the area;
b. Finished floor elevation or grade of the adjacent residence;
c. The elevation of existing encroachments on site and on adjacent properties;
d. Any data on the historic elevation of the beach in that area.
K. Annual Fee.
1. The fees based on the depths of encroachment shown below shall be
established by resolution of the City Council and paid annually as a condition of
the issuance of encroachment permits:
Depth of Encroachment
0 - 2 1/2 feet
2 1/2 - 5 feet
5 - 7 1/2 feet
7 1/2 -10 feet
10 - 15 feet
2. For purposes of determining fees, the average depth of the encroachment
shall be used. However, the maximum depth shall not exceed the limitations
specified in Section B. A dimensional tolerance not to exceed 12 inches may be
allowed in determining the appropriate fee to be paid by persons with existing
encroachments.
3. The annual fee shall be due and payable upon submittal of the application for
the initial encroachment permit. Renewal fees shall be due May 31 of each year.
32
The fee shall be considered delinquent thirty (30) days thereafter. Delinquent
fees shall be established by resolution of the City Council.
4. The annual fee shall be used to defray City costs of administration, incidental
costs of improvements on street ends along the oceanfront, and incidental costs
to enhance public access and use of the ocean beaches. At least eighty -five
(85 %) percent of the fees shall be used by the City to implement the mitigation
plan as required by Amendment No. 23 to the Land Use Plan of the City's Local
Coastal Program. (See Section M.)
L. Violations /Remedy.
1. The City shall, in addition to any right or remedy provided by law, have the
right to do any or all of the following in the event a permittee is in violation of the
provisions of this policy or any condition to the permit, or any encroachment or
improvement violates the provisions of this policy:
a. Revoke the permit after giving the permittee notice and an opportunity to be
heard upon a determination that there is substantial evidence to support a
violation of this policy. The Public Works Director shall establish the specific
procedures designed to insure that permittee receives due process of law.
b. Summarily abate any encroachment or improvement violative of this policy
after giving the permittee or property owner ten (10) day's written notice of its
intention to do so in the event the permittee or property owner fails to remove the
encroachment or improvement. The permittee or property owner shall pay all
costs incurred by the City in summarily abating the encroachment or
improvement. The determination of the Public Works Director with respect to
abatement shall be final.
M. Amendment No. 23 Land Use Plan of Local Coastal Prooram Mitioation Plan.
To mitigate any impact on beach access resulting from the encroachments, the
City shall:
1. Reconstruct thirty -three unimproved street ends between 36th Street and
Summit to provide additional parking and approved access in accordance with
the following:
a. The reconstruction shall provide a minimum, where feasible, of two parking
spaces per street end and shall proceed in substantial conformance with the
standard drawing, attached as exhibit "A."
b. The City shall use at least eighty -five percent (85 %) of the fees to fund
reconstruction of street ends until all have been improved. The City will use its
best efforts to improve three or more street ends per year (except during the year
33
when vertical handicapped access is constructed), and anticipates that funding
will be adequate to do so.
c. West Newport street -end parking spaces shall be metered in the same manner
as the West Newport Park in order to encourage public use of the spaces.
2. Within three years after Council approval of this Resolution, City shall
construct a hard surface walkway perpendicular to Seashore Drive at Orange
Avenue. The walkway shall extend oceanward a sufficient distance to allow a
view of the surfline by an individual seated in a wheelchair. At least one
handicapped parking space shall be designated at the Orange Avenue street
end. City shall designate at least one other handicapped space at one of the first
three street ends improved.
3. Subsequent to the reconstruction of all West Newport street ends, at least
eighty -five percent (85 %) of the fees generated by encroachments will be used
for the construction of improvements which directly benefit the beach going
public such as parking spaces, rest rooms, vertical or lateral walkways along the
beach and similar projects.
S4
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F ,,�,�,W�P111 T
o ! p CITY OF NEWPORT BEACH
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C"9 <i F0„ Vl P
July 9, 2007
Dear Balboa Peninsula Point Resident:
As you may be.aware, the City has been working with Jim McGee of McGee and
Associates (counsel to some area residents) to address beach encroachments near your
property. The encroachments typically include landscaping or trees, a percentage of
which was installed prior to October 1991 when the City Council, working with area
residents, adopted Council Policy L -12 (Oceanfront Encroachment Policy). This Policy
is available on the City's website at www.city.newport- beach.ca.us then "City Council"
then "Council Policy Manual."
That policy change included a declaration that landscaping trees and groundcover that
existed prior to October 1991 were not official encroachments, even though they were
placed on public property. That means that these plantings should be open and
accessible to the public.
Since last summer, we have attempted to put forth a rational policy that both respects
Council Policy L -12 and respects the interest by the Coastal Commission and others to
maintain public access. As such, here is what will happen next:
1. We will soon install three 12 "x 6" signs that say "Public Welcome" near where these
plantings exist. As a property owner with a home adjacent to the plantings, please
allow beachgoers to access the plantings. Please do not take down the signs. Our
beach crews will reinstall them each time they see them missing. You still have the
full right to maintain your personal real property and the security of your property
behind your walls, gates, or fences, but you may not tell beachgoers to get off the
plantings that are oceanward of your property line.
2. We have photographed the existing plantings and will keep those photos as records
attached to your property file at City Hall. Please do not add to the Plantings nor add
hardscape (Pavers bricks walls railroad ties fences, etc.) at any time. If you do so
(or a later property owner does so), it is likely that we will insist that the new work be
undone. There are two good reasons to not touch the plantings: (1) only plantings
placed there before October 1991 have any protection under Council Policy L -12;
and (2) the endangered Western Snowy Plover has been sighted out there in recent
years.
3. We will keep these photographs on file with your property records at City Hall.
Therefore, future buyers who receive a Report of Residential Building Records
( "RBR ") will receive this information and know of the scope of the landscaping and of
the City's interest in keeping it unchanged and accessible to the public.
City Hall • 3300 Newport Boulevard > Post Office Box 1768 .
Newport Beach California 92658 -8915 ^ www.city.newport- beach.ca.us S5
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While we have reason to believe that the Coastal Commission staff signed off on the
1991 agreement, it is difficult to determine what the Coastal Commission may do next.
We will support efforts to request that the Commission consider the matter closed, given
the fact that public access is not discouraged by the plantings.
Thank you for your cooperation with this effort. If you have any questions about what we
have decided to do, please do not hesitate to contact me at 949 - 644 -3002 or
dkiff_(oDcity.newport- beach.ca. us.
Sincerely,
DAVE KIFF ,
Assistant City Manager
cc: Council Member Mike Henn, 151 District
Mr. Jim McGee, McGee and Associates
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