HomeMy WebLinkAbout13 - Irrevocable Offer to Dedicate Easement at 2800 Lafayette AveITEM 13
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Assistant City Manager
SUBJECT: Resolution 2002 -_ Accepting an Irrevocable Offer to Dedicate a Public
Access Easement at 2800 Lafayette Avenue
RECOMMENDED Adopt Resolution 2002 -_ relating to the City's acceptance of an irrevocable
ACTION: offer to dedicate a public access easement at 2800 Lafayette Avenue.
BACKGROUND: The people of California approved the Coastal Conservation Initiative (Proposition
20) in 1972. In 1976, the State Legislature wrote and approved implementing
legislation to Proposition 20 that became the California Coastal Act. The Act:
• Sets forth a Coastal Zone all along California's 1,100 miles of shoreline -
roughly a line between the shoreline and the first major inland public road;
• Established a commission of 12 members called the California Coastal
Commission;
• Directs the Commission to regulate residential, commercial, and recreational
activity within the Coastal Zone via Coastal Development Permits (CDPs) to
protect and enhance public access and services to coastal visitors;
• Authorizes the Commission to approve Local Coastal Programs (LCPs) which
allow local governments to act on behalf of the Commission using
Commission- approved policies when considering coastal development.
• Sets forth policies which:
• Protect and expand public access
• Protect, enhance, and restore environmentally sensitive habitat areas (ESHAs)
• Protect the scenic beauty of coastlines and seascapes;
• Establish urban -rural boundaries that "avoid wasteful urban sprawl"
• Provide for the environmentally - sensitive expansion of ports and coastal -
dependent industrial uses.
An Emphasis on Access. The Act's overriding intent was to protect and expand
public access to California's coastal resources:
"Development shall not interfere with the public's right of access to the sea where
acquired through use or legislative authorization, including, but not limited to, the use of
dry sand and rocky coastal beaches to the first line of terrestrial vegetation. (Public
Resources Code §30211)
"(a) Public access from the nearest public roadway to the shoreline and along the coast
shall be provided in new development projects except where (1) it is inconsistent with
public safety, military security needs, or the protection of fragile coastal resources, (2)
adequate access exists nearby, or (3) agriculture would be adversely affected. Dedicated
accessways shall not be required to be opened to public use until a public agency or
private association agrees to accept responsibility for maintenance and liability of the
accessway" (Public Resources Code §30212).
The Coastal Commission views coastal access as an issue of physical supply. The
Commission describes the supply of access as:
• Lateral access (access across a beach);
• Vertical access (access from the upland street or bluff to the beach);
• Trails above the coast (along the top of a bluff); or
• Upland trails that lead to the coast.
This is not to say that mandating or creating access is appropriate in every case.
The Coastal Commission writes that:
"a (region's) access program cannot view the issue of supply in isolation of a number of
other factors, including:
• the availability of transit to beaches;
• parking availability;
• providing other necessary support facilities, such as restrooms and picnic areas;
addressing user demands and conflicts;
• and maintenance of a diversity of coastal recreational experiences.
Impacts to any one of these variables may ultimately affect the availability and use of the
physical supply of access. For example, without adequate parking or alternative
transportation, users will have difficulty reaching an access site. Similarly, a lack of
adequate support facilities or a site that is perceived as over - crowded may make a site less
desirable for some users."
The Commission and local governments mitigate impacts on the physical supply
of public access from new development by requiring the person requesting a
CDP to make an Offer -to- Dedicate (OTD) a public access easement. OTDs are
generally required for development between the first public road and the sea.
The Commission and LCPs generally require the use of OTDs as follows:
• Lateral easements compensate for the impacts to public use when development
encroaches onto a public beach or impacts existing public access;
• Vertical easements compensate when development would block access to the beach
from the upland road or bluff.
Generally, when the Commission or local government requires an OTD for
mitigation of a development project, the condition language requires the
applicant to record the OTD prior to the Commission's issuance of the CDP.
OTDs expire 21 years from the date that the OTD is recorded.
The easements themselves do not ensure public access. To ensure public access,
a local government or an "acceptable" non- governmental organization (NGO)
must accept a recorded OTD and ultimately provide for and manage the
accessway. Most LCPs encourage, but do not require, local governments to
accept OTDs.
Newport Beach's OTDs. Since the Commission began requiring OTDs as a part
of the CDP process, apparently none of the 20 OTDs within the city limits have
been accepted by any public entity or NGO. Importantly:
• One OTD - a 25' lateral shoreline easement at 3709 Ocean Boulevard,
appears to have expired in November 2001.
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• Another OTD -a 5' walkway easement between the building and the
bulkhead line - expires on February 13, 2002.
Once expired, the access easement goes away as the land reverts to the private
property owner's control. Here are the OTDs in Newport Beach:
— About to expire
Accepting an OTD. To accept an OTD, a local government must adopt a
resolution which:
• Finds that acceptance of the OTD is exempt from the California
Environmental Quality Act (CEQA);
• Accepts the specific easement using its recorded name; and
• Is recorded itself with the County Clerk - Recorder.
# Address
Street Address (Neighborhood)
Type of OTD
Frontage
Council
District
Expires by
503
East Edgewater (Balboa Peninsula)
Lateral — Area between
Bay
1
09126106
building and bulkhead
309
Palm Street (Balboa Peninsula)
Lateral — Area between
Bay
1
09/26106
building and bulkhead
2800
Lafayette Street (Cannery Area)
Lateral — 5' between
Bay
1
02/13102
building and bulkhead`
701
Lido Park Drive (Cannery Area)
Lateral
Bay
1
03121/09
2901
West Coast Highway (Mariners Mile)
Lateral — 10' wide walkway
Bay
3
02/15106
along Bulkhead
2431
West Coast Highway (Mariners Mile)
10' Vertical to Bay
Bay
3
06122108
2431
West Coast Highway (Mariners Mile)
10' Lateral along bulkhead
Bay
3
06122/08
2439 -2507
West Coast Highway (Mariners Mile)
Vertical — 5' to Bay
Bay
3
01/04106
2439 -2507
West Coast Highway (Mariners Mile)
Vertical -- 10' to Bay
Bay
3
01/04/06
1353
Bayside Drive - "Parking Lot"
Vertical - 10' wide
Bay
6
01/04/06
1137
Bayside Drive - Cal Rec Building
Vertical - 10' wide
Bay
6
01104106
1801
Bayside Drive - Balboa Yacht Club
Vertical - 10' wide
Bay
6
01/04106
2615
Cove Street (China Cove)
Lateral - seawall to mean
Bay
6
04/14104
high tide
344 -352
Hazel Drive (CDM)
25' Trail in Buck Gully
Gully
6
08/16115
111
Shorecliff Road (CDM)
Lateral - bluff base to mean
Ocean
6
06104105
high tide line
107
Milford Drive (Cameo Shores)
Lateral - bluff base to mean
Ocean
6
01130107
high tide line
4639
Brighton Road (Cameo Shores)
Lateral - bluff base to mean
Ocean
6
10129/07
high tide line
4645
Brighton Road (Cameo Shores)
Lateral - bluff base to mean
Ocean
6
10129/07
high tide line
4651
Brighton Road (Cameo Shores)
Lateral - bluff base to mean
Ocean
6
10127/07
high tide line
— About to expire
Accepting an OTD. To accept an OTD, a local government must adopt a
resolution which:
• Finds that acceptance of the OTD is exempt from the California
Environmental Quality Act (CEQA);
• Accepts the specific easement using its recorded name; and
• Is recorded itself with the County Clerk - Recorder.
Once accepted, the local government can decide whether, how, and when to
provide any capital improvement or maintenance that assures open access along
the easement.
The 2800 Lafayette Avenue OTD. The property owner of record in 1981 at 2800.
Lafayette Avenue - the Nicholas and Jane Delaney 1978 Trust - agreed to an
Offer to Dedicate when they applied for a CDP to change a 6,000 square foot
"wholesale market and warehouse for frozen foods." The Trust intended to
change the use to a "6,500 square foot 2 -story restaurant with a 550 square foot
retail fish market on the first floor facing the street."
The Commission conditioned the CDP with an OTD an easement "5' wide and
located along the 5' walkway between the bulkhead and the restaurant (see
Commission staff report and the recorded OTD in Attachment A).
With a 21 -year term, the 2800 Lafayette OTD expires on February 13, 2002. By
accepting the easement, the City is not obligated to improve the accessway at this
rime.
THIS AGENDA This Agenda Item accepts the 5' public access easement at 2800 Lafayette Avenue
ITEM: via a Council resolution.
ATTACHMENTS: Attachment A - 2800 Lafayette Irrevocable Offer to Dedicate
Attachment B - Resolution 2002-
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`4K J 3948 PG 693
Return Original To and
Recording Requested By: .lr�rrr,r +Tp RECORDED AT REQUEST OF
STATE OF CALIFORNIA FIRST AMER. TITLE INS. CO.
California Coastal Commission IN OFFICIAL RECORDS OF
631 Howard Street ORANGE COUNTY, CALIFORNIA
Fourth Floor nun. FEB 13 1011
San Francisco, California 94105
IN A. !RANCH, Camty Rwwdw
IRREVOCABLE OFFER TO DEDICATE
I. WHEREAS, NICHOLAS H. DELANEY and JANE M. DELANEY, as
Trustee of the Nicholas H. Delaney and Jane M. Delaney 1978
Trust, are the record owners, hereinafter referred to as "Own-
ers," of the real property located at 2800 Lafayette Street,
Newport Beach, California, legally described as particularly
set forth in Exhibit "A" attached hereto and incorporated herein
by reference, and hereinafter referred to as the "subject
property;" and,
II. WHEREAS, the CALIFORNIA COASTAL COMMISSION, South Coast
Regional Commission, hereinafter referred to as "the Commis-
sion," is asking on behalf of the People of the State of
California; and,
III. WHEREAS, the People of the State of California have a
legal interest in the lands seaward of the mean high tideline;
and,
IV. WHEREAS, pursuant to the California Coastal Act of 1976,
the owners applied to the Commission for a Coastal Development
Permit for a restaurant and fish market on the subject property; and
V. A Coastal Development Permit No. P -80 -7354 was granted
on December 8, 1980, by the Commission and in accordance with the
provisions of the staff recommendations and findings contained
�.113948PC 694
1 in Exhibit "B ", attached hereto and hereby incorporated by
2 reference, subject to the following conditions:
3 Prior to issuance of permit, the Executive Direc-
tor shall certify in writing that the following
4 condition has been satisfied. The applicant shall
execute and record a document, in a form and
5 content approved in writing by the Executive Di-
rector of the Commission irrevocably offering to
6 dedicate to a public agency or a private associ-
ation approved by the Executive Director, an.ease-
7 ment for public access along the shoreline.
8 Such easement shall be 5' wide and located along
the 5' walkway between the bulkhead and the rest -
9 aurant. Such easement shall be recorded free of
10 prior liens except for tax liens and free of prior
encumbrances which the Executive Director deter-
mines may affect the interest being conveyed. The
11 offer shall run with the land in favor of the People
of the State of California, binding successors and
121 assigns of the applicant or landowner. The offer
13 of dedication shall be irrevocable for a period of
21 years, such period running from the date of
14 recording.
15 VI. WHEREAS, the subject property is a parcel located
16 between the first public road and the shoreline; and,
17 VII. WHEREAS, the policy of Section 30210 through 30212
18 of the California Coastal Act of 1976, public access to the
19 shoreline and along the Coast is to be maximized and in all
20 new development projects located between the first public
21 road and the shoreline shall be provided; and,
22 VIII. WHEREAS, the Commission found that but for the
23 imposition of the condition, the proposed development
24 could not be found consistent with public access Section
25 30210 through 30212 of the California Coastal Act of 1976,
26 and that therefore in the absence of such a condition, a
271 permit could not be have been granted;
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n
A
8K 13-948po 695
1 NOW, THEREFORE, in consideration of granting Permit No.
2 P -80 -7354 to the owners by the Commission, the owners
3 hereby offer to dedicate to the People of the State of
4 California an easement in perpetuity for the purposes of
5 public access and passive recreational use along the
6 shoreline located on the subject property, such easement to
7 be 5 feet wide and located along the 5 foot walkway between
8 the bulkhead and the restaurant and as specifically set
9 forth by attached Exhibit "C" hereby incorporated herein by
10 reference.
11 This offer of dedication shall be irrevocable for a
12 period of 21 years, measured forward from the date of
13 recordation, and shall be binding on the owners, their
14 heirs, assigns or successors in interest to the subject
15 property described above. The People of the State of
16I California shall accept this offer through the City of
17 Newport Beach, the local government in whose jurisdiction
18 1 the subject property lies, or through a public agency or a
19 private association acceptable to the Executive Director
20 of the Commission or its succesors in interest.
21 Acceptance of the offer is subject to a covenant which
22 runs with the land, providing that the first offeree to
23 accept the easement may not abandon it but must instead
24 offer the easement to other public agencies or private
25 association acceptable to the Executive Director of the
26 Commission for the durat f'.on of the term of the original
27 offer to dedicate. A gran'.: of easement once made shall run
28l with the land and shall be binding on the owners, their
W L/
I heirs and assigns. HK f 3948Po 696
2 Executed on this I c_ day of January, 1981, in the City
3 of 8'�vr�N_T County of ,
4 Dated:
5
IC OLAS H. DELAp
6 as Trustee of the
7 Nicholas H. Delaney and
Jane M. Delaney 1978 Trust
8
g a . hi ,(ox
BANE M. DELANEY,---
lo as Trustee of the
Nicholas H. Delaney and
11 Jane M. Delaney 1978 Trust
12 STATE OF CALIFORNIA )
13 ) ss.
COUNTY OF )
14
15 On I before me, the
unders ad, a Notary Public in and for said State person -
16 ally appeared NICHOLAS H. DELANEY and JANE M. DELANEY, as
17 Trustees of the Nicholas H. Delaney and Jane M. Delaney 1978
18 Trust, whose names are subscribed to the within instrument,
.
19 and acknowledge that they executed the same.
i
(Individual)
STATE OF CALIFOYa 9e l
BK 13 9 4 8 PG 697
COUNTY OF V0 J SS•
0, January 28th , 1981 before we the undersigned, • Notary Public in and for wid
Sieto. personally appeared Nicholas H. belaney 'h
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to M the person hewhose name he eu�scnbcd
c0 the within instrument and acknowledged that he
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q'ITNESS my hand and ol6cial oral.
NCIAAy "OUC • CAUMANIA to
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7Felicidad B. Zeilinier
FAIXCIP4 OFMC IN
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Name (Typed or Printed)
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o03$48pe 698
California Coastal Commission pursuant to the authority
conferred by the California Coastal Commission when it
granted Coastal Development Permit P -80 -7354 on December
8, 1980, and the California Coastal Commission consents to
the recordation thereby by its duly authorized officer.
Dated:
G' %t.1TH /.4 �6,Y /ffAL C�kkHJ�L
California Coastal Commission
STATE OF CALIFORNIA )
COUNTY OF SAN FRANCISCO)
On 1 F��)JIM , 1981, before the un-
dersigned, a Notary Public in and for said State, person-
ally appeared _ �(.. '� _
(Name),
_(Title), known to me to be the '�'' u
�
of the California Coastal Commission and
known to me to be the person who executed the within
instrument on behalf of said Commission, and acknowledged
to me that such Commission executed the same.
Witness my hand and official seal.
DWAY
LW C44'
Not y Public
FORNIA
=LAWRENUNOUDWAY
OF
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BK 13948PO 699
EXHIBIT A
The land referred to in this Irrevocable Offer to Dedicate is in the
state of California, County of Orange, City of Newport Beach, and is
described as follows:
PARCEL 1:
I
Lots 1 and 2 in Block 425 of Lancaster's Addition to Newport Beach, as
per map recorded in Book 5, Page 14 of Miscellaneous Maps, in the Office
of the County Recorder of said County.
PARCEL 2:
Lot 27 and the Northwesterly 17.56 feet of Lot 28 in Block 225 of
Lancaster's Addition to Newport Beach, as per map recorded in Book 5,
Page 14 of Miscellaneous Maps, in the Office of the County Recorder of
said County.
.n e• cure & to e... -..
11FORh1A COSTAL COMMMION
U1X COAST REGIOR4 COMMISSION
1 eC4M ee4te1 ' sWM SIP pW a/
bt M"
e y.%CQNC ""kill' eK 13948PC 700
is"'W� ►1n Wahl December 10, 1980
Peter M. Tonti
TONTI- WALKER INVESTORS
17895 Skypark Circle, Ste. A
Irvine, CA 92714
1. Your permit application No. _ p_80 -7354 vas approved by
the South Coast Regional Commisr on on - DCPmbpr.8 with the
following conditions:
"Prior to issuance of permit, applicant shall
,SEE REVERSE SIDE
As soon as you submit evidence to show that you have complied, or
Ell tomply xith the condition /s set forth in Paragraph (1), you: permit
7. P-80 -1354 will be issued. -
try truly yours,
111TH COAST REGIONAL COMMSION
J. arp . ter
y
etutive Director
C:ta fjw
19177
CONDITIONS P -.80 -7354
,A'- 7"ntfi,3 iT� E
8K 13948PO 701
1) Prior to issuance of permit, applicant shall submit to the Executive
Director a deed restriction for recording free of prior liens except for
tax liens, that binds the applicant and any successors in interest. The
form and content of the deed restriction shall be subject to the review
and approval of the Executive Director. The deed restriction shall pro-
vide that a) the applicant shall retain the same number of boat slips
that are now present; and b) these slips shall be used only by commercial
fishing vessels.
2) Prior to issuance of permit, the Executive Director shall certify in
writing that the followin& condition has been satisfied. The applicant
shall execute and record a document, in a form and content approved in
writing by the Executive Director of the Commission irrevocably offering
to dedicate to a public agency or a private association approved by the
Executive Director, an easement for public access along the shoreline
Such easement shall be 5' wide and located along the 5' walkway between
the bulkhead and the restaurant. Such easement shall be recorded free of
prior liens except for tax liens and free of prior encumbrances which the
Executive Director determines may affect the interest being conveyed.
The offer shall run with the land in favor of the People of the State of
California, binding successors and assigns of the applicant or landowner.
The offer of dedication shall be irrevocable for a period of 21 years,
such period running from the date of recording.
3) Prior to issuance of permit, applicant shall submit proof that the
18 parking spaces on off -site Lot #3, which are no longer a part of this
project, are replaced within 300 feet of the project. Said replacement
parking will operate at least between the hours of 6:00 p.m. - 12:00 p.m.
�eu�fprov✓�P.n'f" �tGfr`f��'i�� c� �- e�cufi® -rte
Reconstruction and change in use of existing 6000 sq. ft.,
2 -story -- ructure currently being ur I for wholegale
marketit _. and warehousing of frozen .Gods on a 6000 sq. ft.
M -1 lot adjacent to the Rhine Channel. Docking facilities
exist for commercial fishing boats. Project will change use
to a 6500 sq. ft. 2 -story restaurant and a 550 sq. ft.
retail fish market on the first floor facing the street.
Project includes provision of a 5' public accessvay along
the channel. The existing docking facilities are to be
maintained for use by commercial fishing boats. Retention
of the commercial dock space is consistent with the Newy It
Beach LCP as is the provision of the public walkway.
Project also includes the demolition of existing structures
and construction of parking facilities on two off .site
areas, one a 4050 sq. ft. M -1 parcel (2 lots) and the
other an 11,500 sq. ft. C -1 parcel (5 lots). Structures
to be demolished include a fashion shop, a storage shed,
an SFD and a small accessory - structure. The remainder of
the parking requirements are met by an, existing lot below
an office complex owned by the applicant. 26' above AFG,
26.5' above CFR. ($215,000), adjacent to MRT, at 2800
Lafayette Avenue, in Newport Beach, by Tonti- Walker
Investors.
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Attachment B
RESOLUTION 2002-
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NEWPORT BEACH
RELATING TO THE CITY'S ACCEPTANCE OF AN IRREVOCABLE
OFFER TO DEDICATE AN EASEMENT FOR PUBLIC ACCESS
AT 2800 LAFAYETTE AVENUE
WHEREAS, the State of California, acting as the California Coastal Commission, has
conditioned Coastal Development Permits (CDPs) to provide for lateral and vertical public
access easements; and
WHEREAS, on December 8,1980, Nicholas H. Delaney and Jane M. Delaney, acting as
Trustees of the Nicholas H. Delaney and Jane M. Delaney 1978 Trust, offered to dedicate to the
People of the State of California an easement in perpetuity for public access and passive
recreational use along the shoreline located on the property at 2800 Lafayette Avenue in
Newport Beach a 5 foot wide easement located along the 5 foot walkway between the bulkhead
and the building structure as recorded on February 13, 1981 in Book 13938, Page 893 of the
Records of the County of Orange; and
WHEREAS, this easement was granted and recorded in consideration for the California
Coastal Commissions granting of the property owner's request for specific coastal
development; and
WHEREAS, the City of Newport Beach is entitled to accept the easement on behalf of the
People of the State of California; and
WHEREAS, the City of Newport Beach is desirous of maintaining and enhancing public
access along Newport Bay and the shoreline; now, therefore be it
RESOLVED by the City Council of the City of Newport Beach that the Council does
hereby:
1- Find that the acceptance of the easement in question is categorically exempt (General
Rule Class) from the provisions of the California Environmental Quality Act.
2 - Find that pursuant to Section 711.4(c)(2)(A) of the California Fish and Game Code, this
acceptance is exempt from required fees, as it is categorically exempt from CEQA.
3 - Accept the Irrevocable Offer to Dedicate to the People of the State of California an
easement in perpetuity for public access and passive recreational use offered in that
certain document recorded on February 13, 1981 in Book 13938, Page 893 of the
Records of the County of Orange.
�J
4 - Direct that a certified copy of this Resolution, attested to by the City Clerk under seal,
be recorded, without acknowledgement or further proof, in the office of the Recorder
of the County of Orange.
ADOPTED this 22nd Day of January, 2002
TOD W. RIDGEWAY
MAYOR
ATTEST:
LAVONNE HARKLESS
CITY CLERK
16