HomeMy WebLinkAbout91-80 - Local Coastal Program Land Use PlanRESOLUTION NO. 91-80
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING AMENDMENT NO. 23 TO
THE LOCAL COASTAL PROGRAM LAND USE PLAN
ESTABLISHING A POLICY FOR OCEAN FRONT
ENCROACHMENTS.
The decision of the Newport Beach City Council to approve
Amendment No. 23 to the Local Coastal Program Land Use Plan
( "Amendment No. 23" or "Amendment ") which establishes a policy for
the approval of certain improvements on and over public right of
way on the oceanside of beachfront private property ( "oceanfront
encroachments" or "encroachment ") is based upon the following
findings and declarations:
1. Proceedings Preliminary to Decision.
The decision to approve Amendment No. 23 was based upon
consideration of documents, testimony, reports, studies and other
evidence which were generated by, or prepared for the meetings,
hearings and workshops, as described in this Section:
(a) . In April 1989, the Newport Beach City Council
established, and appointed members to, the Oceanfront Encroachment
Citizens Advisory Committee ( "Committee "). (Resolution No. 89 -25)
The Committee spent one year studying all aspects of the oceanfront
encroachments, including the age and nature of the encroachments,
the reason for their construction, the legal status of the property
underlying the encroachments, the status of similar encroachments
in other cities, and the relative interests of the public,
adjoining private property owners, the City and the Coastal
Commission. The Committee conducted monthly working sessions and
two town hall meetings. In April, 1990, the Committee submitted
its final report to the City Council.
(b). On May 24, 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 initiated the Amendment on June
11, 1990, and the Planning Commission received testimony regarding
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proposed Amendment No. 23 on July 5, 1990 and again on August 9,
1990. The recommendation of the Planning Commission and the
material the Commission considered was transmitted to the City
Council on August 27, 1990.
(c). The City Council held public hearings on proposed
• Amendment No. 23 on October 8th and October 22, 1990.
(d). The City Council received testimony from more than
50 interested persons and considered the following documents prior
to first approving Amendment No. 23 on October 22, 1990:
1. The final report of the Newport Beach
Oceanfront Encroachment Citizens Advisory Ad Hoc Committee and the
attachment to Appendix E of the final report;
2. Planning Department Staff Reports dated May 24,
1990, July 5, 1990, August 9, 1990, August 27, 1990, October 8,
1990 and October 22, 1990;
3. Planning Commission Resolution Number 1233;
4. Minutes of the Planning Commission meetings of
May 24, 1990, July 5, 1990 and August 9, 1990;
5. Minutes of the City Council meeting of October
8, 1990;
6. City Staff Report submitted in conjunction with
the Planning Department Report of October 22, 1990;
7. The maps, drawings, and letters attached to the
Planning Department Staff Reports referenced above; and
8. Correspondence from members of the public,
property owners and Coastal Commission staff relative to the
oceanfront encroachments received on or before October 22, 1990.
(e). On November 26, 1990, the City Council adopted
Policy L -14. This Policy contains specific language implementing
the oceanfront encroachment provisions of LCP Amendment No. 23.
is (f). On January 9, 1991, the California Coastal
Commission first considered proposed Amendment No. 23 to the
Newport Beach local coastal program. The Commission, after taking
public testimony and discussing the proposed Amendment, voted to
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continue the matter after expressing concerns about the mitigation
plan proposed by Commission staff and the relative absence of
mitigation contained within the proposed Amendment. Thereafter,
representatives of the City and Coastal Commission met to discuss
a mitigation plan appropriate to the impacts resulting from the
• encroachment policy, a reduction in the depth of permitted
encroachments in areas where the beach was relatively narrow, and
a mitigation fee system that would serve as a disincentive to
encroach.
(g) . On June 11, 1991, the Coastal Commission unanimously
approved changes to Amendment No. 23 relative to the mitigation
plan, depth of encroachments, and fee schedule that are reflected
in this Resolution. The Commission found that Amendment No. 23, as
revised, was consistent with various provisions of the Coastal Act.
The Commission has referred the revisions to the City Council for
concurrence and the Council, by adoption of this Resolution, has
confirmed its concurrence with Coastal Commission revisions to
Amendment No. 23. and related findings.
2. History and status of Encroachments.
The following is a summary of facts relating to the
encroachments and the underlying City property interests:
(a) . Oceanfront encroachments have existed for more than
30 years and some may have been constructed as early as 1911. The
encroachments were first constructed to protect private property
from wind -blown sand, high tides and wave action. The size, number
and nature of encroachments vary depending upon their location. In
the area between E Street and the West Jetty ( "Peninsula Point ")
there are relatively few encroachments and those which exist are
primarily landscaping and pathways. Encroachments between A Street
and a point 250 feet southeast of E Street ( "Pier area "), consist
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of low walls and patios
built in
the 7 -1/2 feet between the north
edge of the sidewalk and
private
property. No encroachments exist
from A Street to 36th Street. The sidewalk ends at 36th Street
and from that point to the Santa Ana River ( "West Newport ")
encroachments extend up to 27 feet into City right of way and vary
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from landscaping to extensive patios with barbecues, furniture and
other improvements.
(b). The City's interests in the property underlying the
oceanfront encroachments also vary from area to area. In Peninsula
Point, the City holds both a street easement and fee title to the
• property. Encroachments in the Pier area are located over a street
easement dedicated in May of 1905. West Newport encroachments are
located on various street easements, ranging between 35 feet and 45
feet in width, that were dedicated between 1904 and 1911. Property
owners in the Pier area and West Newport area hold underlying fee
title to the center line of the right of way and have rights to the
property distinct from the general public.
(c). In West Newport, beach access is available to the
public by way of street ends located approximately 200 feet apart.
These street ends intersect Seashore Drive, which runs parallel to
and approximately 100 feet from the sandy beach. Seashore Drive
provides vehicular access to the street ends, public parking spaces
and is an official City bicycle path. Within the past 14 years,
the City has spent $1,000,000.00 constructing 118 additional
parking spaces, two public restrooms, tennis courts, basketball
courts, handball /racquetball courts and landscaping in the Pacific
Electric right of way which is parallel, and adjacent, to Seashore
Drive.
(d) . Beach access in the Pier area is provided by five
street ends and a continuous twelve foot wide concrete walkway
immediately
adjacent to
the
Encroachments.
A
public parking
facility and
additional
public
walkways have
been
constructed on
the oceanside of the walkway between A Street and Washington
Avenue.
(e) . In West Newport, the sandy beach has stabilized
is since the construction of rock groins perpendicular to, and
oceanward of, the mean high tide line. While there is some
seasonal fluctuation, the sandy beach in West Newport averages 300
feet in width. The sandy beach on the oceanside of the Pier area
encroachments is extremely stable and averages 500 feet in width.
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The vast majority of beach use occurs within 100 feet, or less, of
the then current high tide line.
3. Amendment 23 is Consistent with California Coastal Act.
(a). Amendment No. 23, as it pertains to West Newport
encroachments, is consistent with provisions of the California
• Coastal Act, specifically Sections 30210, 30211, 30212, 30214,
30221, 30251, and 30252 in that:
1. The encroachments, given limitations on
location, size and nature of permitted improvements, and the
proposed mitigation in the form of street and improvements, will
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 (less than 5%
of the total beach area could be covered by encroachments).
2. Adoption of a formal policy establishing an
oceanward limit on the depth of West Newport encroachments will
require removal of some encroachments and eliminate the potential
for oceanward extensions of existing encroachments, as well as the
construction of new encroachments more than fifteen feet beyond the
property line. The formal policy will enable the City to
effectively enforce limits on the size, nature and extent of
encroachments.
3. Permitted encroachments in light of the
mitigation specified in this Resolution, 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. Beachgoers typically congregate within 100 feet from the
water line and would naturally avoid that portion of the beach
closest to homes.
• 4. The policy does not encourage or facilitate any
seaward encroachment of structures on private property and
structures requiring building permits are prohibited within the
encroachment zone.
5. The proximity of beach access points and
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Seashore Drive to oceanfront properties has resulted in public use
of private property and the encroachments will protect private
property from misuse by the public.
6. This policy reserves to the City the right to
use the encroachment zone for any public facilities such as a
• bicycle path or pedestrian walkway. There is also adequate sandy
beach outside the encroachment zone for such a facility and
construction of a walkway closer to the shoreline may be more
desirable given the potential conflict between the public and
private property owners and better views of the ocean and waves.
7. Encroachments, as restricted and conditioned,
will minimize the alteration of natural landforms, will be visually
compatible with the sandy beach, and permitted landscaping is
likely to enhance the scenic and visual quality of the area.
Restrictions on the height of encroachments will ensure no impact
on beach or ocean views.
a. Implementation of this policy will eliminate
the need for costly and time - consuming litigation necessary to
resolve issues of ownership and entitlement to the encroachment
zone. Each property owner with permitted encroachments will
acknowledge the existence of street right of way and waive any
right to challenge the right of the city to control improvements
within the encroachment zone.
(b). The provisions of Amendment No. 23 as they pertain
to Pier area encroachments are consistent with the provisions of
the California Coastal Act, specifically Sections 30210, 30211,
30212, 30214, 30221, 30251, and 30252 in that:
1. Encroachments, given the limitations on the
location, size and nature of improvements, will have no impact on
public access to the ocean and no impact on any sandy beach.
because some encroachments are on the inland side of a public
sidewalk and the others are remote from water and waves.
3. The policy does not encourage or facilitate any
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2. Permitted
encroachments
will not
have any
•
impact on the desirability of
the sandy beach
for use by
the public
because some encroachments are on the inland side of a public
sidewalk and the others are remote from water and waves.
3. The policy does not encourage or facilitate any
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•
•
seaward encroachment of structures on private property, structures
requiring building permits are prohibited within the encroachment
zone, and seawalls or revetments are required to be built on
private property or as close to private property as feasible.
4. The proximity of the oceanfront walk and beach
access points to parcels in the Pier area have resulted in public
use of private property and the encroachments will protect private
property from misuse by the public.
(c) . Amendment No. 23, as it pertains to Peninsula Point
encroachment, is consistent with the provisions of the California
Coastal Act, specifically Sections 30210, 30211, 30212, 30214,
30221, 30251 and 30252 in that:
1. Encroachments are limited to landscaping and
ground cover which will have no impact on public access to the
ocean, no impact on that portion of the sandy beach used by the
public, and no impact on the amount of sandy beach available for
use by the public.
2. The prohibition of encroachments other than
landscaping will require removal of encroachments from a portion of
the sandy beach, eliminate the precedent used by some property
owners to justify construction of new, or extension of existing,
encroachments and enable the City to treat all property owners
equally.
3. Low landscaping near residential structures
will enhance the scenic and visual quality of the area, minimize
the alteration of natural landforms, and represents an appropriate
transition zone between the sandy beach and residential structures.
4. Prohibition of encroachments other than
landscaping is appropriate given City ownership of the underlying
fee interest in the property and provisions of the City Charter
which prevent the sale or lease of oceanfront property owned by the
City, absent voter approval.
(d). Amendment No. 23, as it pertains to all
encroachments, is consistent with the Coastal Act in that:
1. At least eighty -five percent (85 %) of the fees
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charged for encroachments will be used by the City to improve
thirty -three street ends between the Santa Ana River and 36th
Street and construct one vertical hard surface path for handicapped
access. Once all street ends have been improved, at least eighty -
five percent (85 %) of the fees derived from encroachment permits
• will be used to fund projects which directly encourage or
facilitate public use of the beach such as parking lots, restrooms,
vertical and lateral walkways, etc.
2. The fees charged for encroachments are
reasonably and directly related to the impacts encroachments have
on public access to, and the size of, the sandy beach. In West
Newport, the construction or extension of encroachments to the
maximum permitted depth on properties adjacent to street ends
could, in the absence of the improvements the City is required to
construct, give some people the impression the area is privately
owned, and discourage beach access. The encroachments in the Pier
area provide a buffer against public /private property conflicts and
provide an attractive transition zone that enhances the value of
adjacent private property.
3. Oceanfront property owners support of Amendment
No. 23 is crucial to the City's ability to effectively and timely
enforce encroachment restrictions and that support could be lost if
the City Council or other public agency were to condition approval
of this encroachment policy on the construction of an oceanfront
sidewalk.
NOW, THEREFORE BE IT RESOLVED:
Amendment No. 23 to the local Coastal Program Land Use Plan is
hereby approved as follows:
1. PURPOSE.
The purpose of this policy is to establish conditions and
restrictions on the nature and extent of improvements which may be
installed over public rights of way on the oceanside of beachfront
residences, and to preserve the City's right to utilize oceanfront
street easements for public projects.
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2. ENCROACHMENT ZONES.
A. The following encroachment zones are established:
(1) In the Pier area, the encroachment zone extends
from the property line t) the inland edge of the oceanfront walk;
(2) From 36th Street to 52nd Street, the
• encroachments may extend up to ten feet oceanward of the property
line; and
(3) From 52nd Street to the Santa Ana River,
encroachments may extend up to fifteen feet from the property line.
B. Encroachments within zones established by this
Resolution are permitted only if they are consistent with the
provisions of this Amendment and the property owner has obtained an
encroachment permit prio^ to October 22, 1991.
3. PROHIBITED ENCROACHMENTS.
A. No encroa,:hments are permitted between 36th Street
and A Street.
B. No encroachments are permitted on Peninsula Point.
C. No encroachments are permitted which would interfere
with access to the beach or ocean.
D. No encroachments are permitted that require the
issuance of a Building Rermit, or exceed three feet in height.
E. Encroachments which are inconsistent with this
Amendment or any formal policy adopted by the City, and
encroachments for which no permit has been issued on or before
October 22, 1991 are pro;iibited.
4. FEES.
A. The follcwing fees shall be paid annually as a
condition of the issuancta of encroachment permits:
• 0 - 2k feet $100.00 per year
2': - 5 feet $200.00 per year
5 - 7k feet $300.00 per year
7k - 10 feet $400.00 per year
10 - 15 feet $600.00 per year
B. The annuzl fees shall be increased to reflect
changes in the Consumer :rice Index.
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C. At least eighty -five percent (85 %) of the fees shall
be used by the City to implement the mitigation plan specified in
Section 5.
5. MITIGATION PLAN.
• To mitigate any impact on beach access resulting from the
encroachments, the City shall:
A. Reconstruct thirty -three (33) unimproved streetends
between 36th Street and Summit to provide additional parking and
approved access in accordance with the following:
(1) The reconstruction shall provide a minimum of
two parking spaces per street and shall proceed in substantial
conformance with the standard drawing, attached as Exhibit "A ".
(2) The City shall use at least eighty -five percent
(85 %) of the fees to fund reconstruction of streetends until all
have been improved. The City will use its best efforts to improve
three or more streetends per year (except during the year when
vertical handicapped access is constructed), and anticipates that
funding will be adequate to do so.
(3) West Newport streetend parking spaces shall be
metered in the same manner as the West Newport Park in order to
encourage public use of the spaces.
B. Within three (3) 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
streetend. City shall designate at least one other handicapped
parking space at one of the first three streetends improved.
• C. Subsequent to the reconstruction of all West Newport
streetends, at least eighty -five percent (85 %) of the fees
generated by encroachments will be used for the construction of
improvements which directly benefit the beachgoing public such as
parking spaces, restrooms, vertical or lateral walkways along the
beach and similar projects.
6. GENERAL PROVISIONS.
A. The City Council shall adopt a formal policy
specifying, in detail, the types of improvements permitted within
• encroachment zones, a prohibition on improvements that could impair
or restrict public access or views, procedures for the encroachment
permit applications, City administration of the policy, and other
appropriate provisions.
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B. Encroachment permits shall specify that the property
owner waives and gives up any right to contest the validity of the
oceanfront street easement, and that the encroachment permit is
revokable, without cause, if the City proposes to construct public
improvements within that zone.
C. The encroachment permit shall also specify that the
construction of any seawall, revetment or other erosion control
devices, if necessary, shall occur within, or as close as feasible
to, private property. Seawalls shall not be located in a more
seaward alignment to protect private development in the
encroachment zone.
ADOPTED, this 8th day of July , 1991.
ATTEST:
City Clerk
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TYPICAL 75 FEET EXHIBIT R
DESIGNED JW DRAWN FT
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CHECKED JW DATE l/29/91 91