HomeMy WebLinkAbout14 - Coastal Land Use PlanCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. I -
October 11, 2005
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Patrick J. Alford, Senior Planner
(949) 644 -3235
palfordCa�city. newport- beach.ca.us
SUBJECT: Coastal Commission staff report on the Coastal Land Use Plan
ISSUE:
The Coastal Commission staff report on the updated Coastal Land Use Plan and
suggested modifications.
RECOMMENDATION:
Provide direction to staff as needed.
DISCUSSION:
Background
Senate Bill 516 requires the City of Newport Beach to submit a Local Coastal
Program (LCP) to the California Coastal Commission for approval and certification.
On May 25, 2004, the City Council approved a comprehensive update of the LCP
Land Use Plan (Coastal Land Use Plan or "CLOP ") and authorized its submittal to
the California Coastal Commission (CCC) for formal review and approval. The
application was submitted to CCC staff on July 2, 2004 and the application was
deemed complete on August 2, 2004.
On March 28, 2005, CCC staff began submitting questions and comments to City
staff regarding the application. On May 5, 2005, City staff received the first version
of a set of "suggested modifications" to the text of the CLOP. These modifications
generally consisted of new policies that were direct excerpts from the Coastal Act,
language from other LCPs, and project conditions. These modifications raised
several significant policy issues and jeopardized the organization and consistency
of the CLOP. The key areas of disagreement are summarized below:
CCC Staff Report
October 11, 2005
Page 2
• Oil and Gas Facilities. Deleting policies prohibiting new onshore oil and gas
facilities (per the City Charter) and prohibiting onshore facilities supporting
offshore oil operations.
• Vertical Access. Adding a policy requiring more vertical access in the
Upper Bay and Corona del Mar.
• ESHA. Adding policies identifying the entirety of each environmental study
area as a potential environmentally sensitive habitat area (ESHA).
• Wetlands. Deleting a policy that would allow the presence or absence of
more than one wetland parameter to determine whether an area meets the
definition of a wetland and to delineate wetland boundaries where
ambiguities in wetland characteristics exist.
• ERB. Adding a set of policies that would establish an environmental review
board.
• Bluffs and Canyons. Adding bluff edge setback policies that would
effectively prohibit new development on the Ocean Boulevard bluffs and the
properties surrounding Buck Gully and Morning Canyon.
• Visitor - Serving Uses. Designating Balboa Island, McFadden Square, and
Balboa Village to visitor - serving uses.
• Development Standards. The incorporation of specific setback, height, and
parking regulations into a policy document.
City staff met and communicated with CCC staff throughout May 2005 to propose
alterative approaches, correct inconsistencies, and remove redundant policies.
The LCP Certification Committee (LCPCC) met three times in June 2005 to
receive updates from City staff and provide additional direction.
City staff continued to propose alternative approaches to CCC staff throughout
August and September 2005.
Analysis:
Issues
The modifications proposed by CCC staff are still extensive. However, they better
reflect the direction provided to City staff by the LCPCC. Substantial progress was
made with CCC staff on several key issues:
CCC Staff Report
October 11, 2005
Page 3
• Vertical Access. The policy has been revised to encourage the creation of
new public vertical accessways where feasible in other areas of limited
public accessibility. However, the policy still includes Corona del Mar.
• ESHA. The modifications now state that portions of the environmental
study areas contain natural communities /habitats that are presumed to be
an ESHA, but will only be designated as an ESHA after a site - specific
survey and analysis.
• ERB. The ERB polices have been removed in favor of a new section outlining
environmental review procedures.
• Visitor - Serving Uses. The Visitor - serving designation is no longer
recommended for Marine Avenue, McFadden Square, and Balboa Village in
favor of a policy prohibiting a handful of commercial uses from the ground
floor in these areas.
• Coastal Canyons. The canyon edge setback has been removed in favor of
a setback based on the predominant line of development.
Development Standards. CCC staff is no longer recommending that
specific height, setback, and parking standards be included in the Coastal
Land Use Plan. Instead, there are a few policies that refer to the standards
of the Zoning Code in general.
There are still significant areas of disagreement. These include policies on the
prohibition of new onshore oil and gas facilities and onshore facilities supporting
offshore oil operations, the delineation of wetland boundaries, and coastal bluffs.
As of this writing, City staff is working with CCC staff to work out alternative
language that can be included in a supplemental staff report that will go out the
day before the hearing.
Options
The Coastal Commission hearing on the CLUP is set for October 13, 2005. CCC
staff is recommending approval subject to the suggested modifications. This will be
the last opportunity for the City Council to provide direction to staff on the
modifications recommended by CCC staff before the hearing. If the City Council has
any concerns regarding these modifications, they need to be communicated to staff
at this time. It should be noted that pursuant to the California Code of Regulations,
the Coastal Commission is required to take action on the CLUP by October 21,
2005. Therefore, this item cannot be continued to another meeting date.
CCC Staff Report
October 11, 2005
Page 4
Formal adoption of the CLUP will require a separate action by the City Council
following Coastal Commission hearing. Therefore, the City Council has the authority
not to adopt the CLUP with modifications approved by the Coastal Commission.
However, if the City Council opts not to approve the modified CLOP, then the LCP
certification effort returns to the status quo ante. The City has a certified LCP land
use plan, although CCC staff has deemed it to be out of date, and no implementation
plan. Therefore, to continue with the certification effort, the City would have to draft,
approve, and submit a new land use plan. This would likely take several months to
complete at the local level and the Coastal Commission could take from 3 to 15
months to review it.
Prepared by:
Patrick J. Alford
Senior Planner
Attachments:
1. 09/28/05 CCC staff report.
2. CLUP Timeline.
Submitted by:
�l(A
Patricia L. Temple
Planning Director
Attachment 1
09/28/05 CCC Staff Report
h
STATE OF CALIFORNIA - THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER, Governor
CALIFORNIA COASTAL COMMISSION
South Coast Area Office _
200 Oceangate, Suite 1000 w
Long Beach, CA 90802 -4302
(562) 590 -5071
Item Th 8d September 28, 2005
TO: Commissioners and Interested Persons
FROM: Deborah Lee, Senior Deputy Director
Teresa Henry, South Coast District Manager
Karl Schwing, Orange County Area Supervisor
Anne Blemker, Coastal Program Analyst
SUBJECT: Staff Recommendation on City of Newport Beach Land Use Plan
Amendment 1 -04 (LUP Update) (For Public Hearing and Action at the
Coastal Commission Meeting of October 13, 2005)
SUMMARY OF STAFF REPORT
SYNOPSIS
The proposed Land Use Plan Amendment (LUPA) was submitted on July 2, 2004 and
filed on July 23, 2004. A one -year time extension was granted on September 10, 2004.
As such, the last date for Commission action on this item is October 21, 2005.
SUMMARY OF AMENDMENT REQUEST
The proposed amendment consists of a comprehensively updated Land Use Plan (LUP)
that is intended to replace the current LUP, which was certified in 1982 and again in
1990. The City has reorganized the LUP, rewritten the narrative, and substantially
modified each policy section. The updated LUP consists of five chapters: Introduction,
Land Use and Development, Coastal Access and Recreation, Coastal Resource
Protection, and Glossary. Submittal of the LUP is the first part of the City's effort to gain
Local Coastal Program (LCP) certification. The City is currently working on an
Implementation Plan (IP), which will be submitted after LUP certification.
SUMMARY OF STAFF RECOMMENDATION
Commission staff recommends that the Commission DENY the proposed City of
Newport Beach Land Use Plan Amendment 1 -04 as submitted and APPROVE the
amendment subject to suggested modifications. The motions to accomplish this are
found on Page 5.
The major issues raised by this amendment request are designation and protection of
environmentally sensitive habitat area (ESHA) and wetlands, coastal bluff definition and
setbacks, provision of adequate visitor - serving commercial uses, and inclusion of
development standards.
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
ANTICIPATED AREAS OF CONTROVERSY
The majority of the City's initial objections to the suggested modifications have been
resolved through ongoing negotiations. The City's primary remaining objections to the
modifications deal with coastal bluff development and wetlands delineation.
Coastal Bluffs
The City's LUP proposes the use of a "predominant line of development" setback for
new blufftop development. Commission staff recommends that new blufftop
development be set back at least 25 feet from the bluff edge where the bluff is subject to
marine erosion. Applying the City standard, development would be allowed to occur as
close as 18 feet to the bluff edge. Commission staff is maintaining that the 25 -foot
minimum be applied to all new blufftop development (subject to marine erosion) to
ensure geologic stability and the preservation of scenic resources, consistent with the
Coastal Act and past Commission practice in Orange County.
Another area of controversy surrounds the definition of coastal bluffs. The City
contends that certain bluffs that have been subject to substantial cut and fill are more
like manufactured slopes rather than natural slopes. They assert that the bluff faces
along Bayside Drive are not the result of erosion, faulting, or folding, and are no longer
subject to marine erosion due to intervening development. Therefore, the City feels that
such bluffs do not meet the definition of coastal bluffs and should not be subject to the
requisite development standards, including setbacks for primary strictures and
accessory improvements. The suggested modifications remove any distinction between
altered and unaltered bluffs and require new development to be sited based on stability
and public view protection issues. The suggested modifications do distinguish between
coastal bluffs subject to marine erosion and bluffs that are no longer subject to marine
erosion and apply different setback requirements to each circumstance.
Wetlands
Differences remain regarding wetland definition and delineation. The LUP contains a
statement that wetlands do not include vernally wet areas where the soils are not hydric.
However, the Commission has previously found these types of vernally wet areas
generally to qualify as wetlands, especially where there is a preponderance of wetland
vegetation.
There is also discrepancy between the ways in which the City and the Commission
address the existence of ambiguities in wetland characteristics. The LUP states that the
presence or absence of "more than one" wetland parameter may be considered along
with other factors to determine whether an area meets the definition of a wetland and to
delineate wetland boundaries. The wetland identification method presented in the LUP
is inconsistent with the California Code of Regulations, which states that only one
wetland parameter is necessary to find an area to be a wetland.
Page: 2
L
NPB- MAJ -1 -04
City of Newport Beach LUP Update
ADDITIONAL INFORMATION
For further information, please contact Anne Blemker at the South Coast District Office
of the Coastal Commission at (562) 590 -5071. The proposed amendment to the Land
Use Plan (LUP) of the City of Newport Beach Local Coastal Program (LCP) is available
for review at the Long Beach Office of the Coastal Commission or at the City of Newport
Beach Planning Department. The City of Newport Beach Planning Department is
located at 3300 Newport Boulevard in Newport Beach. Patrick Alford is the contact
person for the City's Planning Division, and he may be reached by calling (949) 644-
3235.
EXHIBITS
A. City of Newport Beach City Council Resolution No. 2004 -41
B. Letter from City of Newport Beach dated July 22, 2005
C. Response Letter from Coastal Commission dated August 30, 2005
D. Public Correspondence
E. City of Newport Beach Coastal Land Use Plan dated May 25, 2004
(Provided with Coastal Commissioner packets)
Also available on -line at:
http://www.city.newport-beach.ca.us/Pln/LCP/LCP.htm
Page: 3
I
NPB- MAJ -1 -04
City of Newport Beach LUP Update
TABLE OF CONTENTS
I. COMMISSION RESOLUTION ON CITY OF NEWPORT BEACH LAND USE PLAN
AMENDMENT 1 -04 5
11. PROCEDURAL PROCESS (LEGAL STANDARD FOR REVIEW) 7
A. Standard of Review
B. Procedural Requirements
7
7
III. BACKGROUND 7
IV. SUMMARY OF PUBLIC PARTICIPATION 9
V. SUGGESTED MODIFICATIONS
11
VI. FINDINGS FOR DENIAL OF CERTIFICATION OF THE CITY OF NEWPORT
BEACH LAND USE PLAN AMENDMENT, AS SUBMITTED, AND FINDINGS FOR
APPROVAL OF THE CITY OF NEWPORT BEACH LAND USE PLAN AMENDMENT,
IF MODIFIED AS SUGGESTED 51
A. Amendment Description
51
B. Findings for Denial 51
1. Coastal Resources 51
2. Land Use and Development 65
3. Public Access and Recreation 72
4. Standards, Procedures and Definitions 76
C. Findings for Approval with Suggested Modifications 77
1. Coastal Resources 77
2. Land Use and Development 85
3. Public Access and Recreation 87
4. Standards, Procedures and Definitions 89
VII. CONSISTENCY WITH THE CALIFORNIA ENVIRONMENTAL QUALITY ACT 89
Page: 4
■1
NPB - MAJ -1 -04
City of Newport Beach LUP Update
I. COMMISSION RESOLUTION ON CITY OF NEWPORT BEACH
LAND USE PLAN AMENDMENT 1 -04
Following a public hearing, staff recommends the Commission adopt the following
resolution and findings.
Motion #1
"l move that the Commission CERTIFY the City of Newport Beach Land Use Plan
Amendment NPB- MAJ -1 -04 as submitted."
Staff Recommendation for Denial
Staff recommends a NO vote. Failure of this motion will result in denial of the land use
plan amendment as submitted and adoption of the following resolutions and findings.
The motion to certify as submitted passes only upon affirmative vote of a majority of the
appointed Commissioners.
Resolution for Denial
The Commission hereby DENIES the City of Newport Beach Land Use Plan
Amendment 1 -04 as submitted and adopts the findings stated below on the grounds
that the amendment will not meet the requirements of and is not in conformity with the
policies of Chapter 3 of the California Coastal Act. Certification of the Land Use Plan
amendment would not comply with the California Environmental Quality Act as there are
feasible mitigation measures and alternatives that would substantially lessen the
significant adverse impacts on the environment that will result from certification of the
land use plan amendment as submitted.
Motion #2
"l move that the Commission CERTIFY the City of Newport Beach Land Use Plan
Amendment NPB- MAJ -1 -04 if modified as suggested in this staff report."
Staff Recommendation for Certification
Staff recommends a YES vote. Passage of this motion will result in the certification of
the land use plan with suggested modification and adoption of the following resolution
and findings. The motion to certify with suggested modifications passes only upon an
affirmative vote of a majority of the appointed Commissioners.
Page: 5
l�
NPB - MAJ -1 -04
City of Newport Beach LUP Update
Resolution for Certification with Suggested Modifications
The Commission hereby certifies the Land Use Plan Amendment NPB - MAJ -1 -04 for the
City of Newport Beach if modified as suggested and adopts the findings set forth below
on the grounds that the Land Use Plan amendment with suggested modifications will
meet the requirements of and be in conformity with the policies of Chapter 3 of the
Coastal Act. Certification of the land use plan amendment if modified as suggested
complies with the California Environmental Quality Act because either 1) feasible
mitigation measures and /or alternatives have been incorporated to substantially lessen
any significant adverse effects of the plan on the environment, or 2) there are no further
feasible alternatives or mitigation measures that would substantially lessen any
significant adverse impacts which the Land Use Plan Amendment may have on the
environment.
Page: 6
NPB- MAJ -1 -04
City of Newport Beach LUP Update
II. PROCEDURAL PROCESS (LEGAL STANDARD FOR REVIEW)
A. Standard of Review
The standard of review for land use plan amendments is found in Section 30512 of the
Coastal Act. This section requires the Commission to certify an LUP amendment if it
finds that it meets the requirements of, and is in conformity with, the policies of Chapter
3 of the Coastal Act. Specifically, Section 30512 states: "(c) The Commission shall
certify a land use plan, or any amendments thereto, if it finds that a land use plan meets
the requirements of, and is in conformity with, the policies of Chapter 3 (commencing
with Section 30200). Except as provided in paragraph (1) of subdivision (a), a decision
to certify shall require a majority vote of the appointed membership of the Commission."
B. Procedural Requirements
Pursuant to Section 13551(b) of Title 14 of the California Code of Regulations, a
resolution for submittal of an LUPA must indicate whether the local coastal program
amendment will require formal local government adoption after Commission approval,
or is an amendment that will take effect automatically upon the Commission's approval
pursuant to Public Resources Code Sections 30512, 30513 and 30519. The City of
Newport Beach's submittal indicates that this LCP amendment will take effect upon
Commission certification.
III. BACKGROUND
The Land Use Plan (LUP) for the City of Newport Beach was effectively certified on May
19, 1982, and subsequently amended multiple times. No implementation plan has ever
been submitted. The current submittal is part of the City's effort to achieve LCP
certification by comprehensively updating the LUP and preparing an implementation
plan to meet the requirements of Senate Bill 516.
Senate Bill 516, passed in 2001, allows the County of Orange to continue to implement
its certified LCP for the Irvine /Newport Coast following the area's annexation by the City
of Newport Beach. The bill requires the City of Newport Beach to submit to the
commission for approval and certification the City's local coastal program for all of the
geographic area within the coastal zone and the city's corporate boundaries as of June
30, 2000 on or before June 30, 2003, or 24 months after the annexation, whichever
event occurs first. If the City of Newport Beach fails to submit a local coastal program to
the commission for approval and certification or does not have an effectively certified
local coastal program within six months after the commission's approval of the local
coastal program, the City of Newport Beach is required to submit a monthly late fee of
one thousand dollars ($1,000).
Page: 7
1 -)-
NPB - MAJ -1 -04
City of Newport Beach LUP Update
Coastal Commission staff met with City staff on August 8, 2001 to develop a strategy for
the certification of the Local Coastal Program (LCP) within the time limits specified by
Senate Bill 516. City staff submitted copies of all coastal - related ordinances, policies,
and programs for Coastal Commission staff to review. After thoroughly reviewing the
currently certified LUP, Coastal Commission staff concluded that the LUP required a
comprehensive update to address inadequacies and bring the policies up to date.
The City asserts that every effort was made to meet the deadline specified in SB 516,
but that it did not have sufficient time to update the LUP and prepare a new
implementation plan (IP) while meeting the public participation requirements of Section
30503 of the Coastal Act. The City focused its efforts on completing the LUP update
with extensive public participation and submitting it to the Commission. The City intends
to finalize and submit the implementation plan after certification of the LUP.
On July 2, 2004, staff for the South Coast District of the Coastal Commission received
from the City of Newport Beach, Land Use Plan Amendment (LUPA) NPB - MAJ -1 -04.
The proposed amendment consists of a comprehensively updated LUP that is intended
to replace the currently certified LUP. On July 14, 2004, Coastal Commission staff
notified the City of Newport Beach that the submittal was incomplete and that additional
information would be required to complete the submittal. Pursuant to Section 30510(b)
of the Coastal Act, the submittal was deemed to be complete and in proper order for
filing as of July 23, 2004.
Pursuant to Sections 30512 and 30514 of the Coastal Act, an amendment to a certified
LCP affecting the land use plan must be acted on by the Commission within 90 days
after the submittal request has been deemed to be in proper order for filing. The 90th
day for this LCP amendment was October 21, 2004. In order to be heard within this
allotted time period, the amendment request would have had to have been scheduled
for hearing by the October 6 -8, 2004 Commission meeting in San Diego. Section 30517
of the Coastal Act allows the Commission to extend, for good cause, the 90 -day time
limit for up to one year. Commission staff requested an extension to allow additional
time to evaluate the submittal and consult with the City of Newport Beach on the Land
Use Plan update. The Commission granted the extension on September 10, 2004. The
last date for Commission action is therefore October 21, 2005.
Commission staff and City staff have worked together over the course of the one -year
extension period to clarify policy intent and format. Significant progress has been made
toward resolving issues related to ESHA protection, the designation of visitor - serving
commercial areas, and the inclusion of development standards. Although many issues
have been resolved, substantive differences remain, including those relating to coastal
bluff regulations and wetland delineation. City staff has generated many of the
suggested modifications contained herein, either in response to Commission staff
concerns or to supplement various policy sections. Wherever possible, Commission
staff has incorporated the City's suggestions and language changes.
i3
NPB- MAJ -1 -04
City of Newport Beach LUP Update
IV. SUMMARY OF PUBLIC PARTICIPATION
On January 8, 2002, the City Council established the Local Coastal Program
Certification Committee ( LCPCC) to provide direction and oversight to staff during the
LCP certification process. The LCPCC consists of three City Council members and
three Planning Commission members. Over the following two years, the LCPCC held
sixteen public meetings as they reviewed drafts of the Coastal Land Use Plan (CLUP).
Both the Planning Commission and City Council received status reports on the LCPCC
at their regular public meetings.
A screen check draft of the CLUP was completed by November 2002 and was
distributed to the LCPCC and City staff for review. The first public review draft of the
CLUP was completed in April 2003. This draft was submitted to the Planning
Commission, Harbor Commission, General Plan Advisory Committee, Environmental
Quality Affairs Committee, Economic Development Committee, and the Coastal
Commission staff. Copies of the draft were also placed at each branch of the Newport
Beach Public Library, and copies were available for loan or purchase at City Hall. In
addition to comments received from the City's commissions and advisory committees,
comments were received from the Sierra Club, Mariner's Mile Business Owners
Association, Surfrider Foundation, and individual members of the public.
Through the remainder of 2003, the CLUP was revised to respond to the comments
received on the April Draft CLUP. During this time, staff gave updates and
presentations to commissions, advisory committees and civic groups. This included a
presentation to the Speak Up Newport forum, which aired on local cable public access
channels.
The LCPCC completed work on the draft CLUP on January 21, 2004. Copies of CLUP
were mailed to the Cities of Costa Mesa, Huntington Beach, Laguna Beach, and Irvine
and to the County of Orange. A notice of availability was mailed to over 200 community
and business associations, advocacy groups, governmental agencies, and individuals.
Copies of the draft CLUP were available for review at the Planning Department office at
City Hall and at all branches of the Newport Beach Public Library. Copies were also
available at the Planning Department office for a two -week loan or purchase. The entire
draft CLUP was available in PDF format at the City of Newport Beach Internet site at
http:/Mfww.city,newport-beach.ca.us/Pin/LCP/LCP.htm.
The Planning Commission held the first public hearing on the draft CLUP on March 4,
2004. Notice of this hearing was published in the Daily Pilot and mailed to over 200
community and business associations, advocacy groups, governmental agencies, and
individuals, a minimum of 10 days prior to this hearing. Additionally, the item appeared
upon the agenda for this meeting, which was posted at City Hall and on the City Internet
site. The Planning Commission held additional public hearings on March 18, 2004 and
April 22, 2004 before recommending approval of the draft CLUP to the City Council.
Page: 9
11
NPB- MAJ -1 -04
City of Newport Beach LUP Update
The City Council held a public hearing on the draft CLUP on May 25, 2004. Notice of
this hearing was published in the Daily Pilot and mailed to over 200 community and
business associations, advocacy groups, governmental agencies, and individuals, a
minimum of 10 days prior to this hearing. Additionally, the item appeared upon the
agenda for this meeting, which was posted at City Hall and on the City Internet site.
The City Council approved the CLUP and authorized its submittal to the Coastal
Commission for formal review and approval. Formal adoption of the CLUP by the City
of Newport Beach will require a separate action by the City Council if the Coastal
Commission approves the updated LUP with suggested modifications.
Page: 10
j5
NPB- MAJ -1 -04
City of Newport Beach LUP Update
V. SUGGESTED MODIFICATIONS
Staff recommends the following suggested modifications to the proposed LUP
amendment be adopted. The language shown in bold, underlined, italics represent
language that the Commission suggests be added and the language shown in strike out
represents language that the Commission suggests be deleted from the language as
originally submitted.
1. Number the maps included in the Land Use Plan.
CHAPTER 1 (INTRODUCTION)
2. 1.1 Purpose
This document establishes the Coastal Land Use Plan of the Local
Coastal Program of the City of Newport Beach, prepared in accordance
with the California Coastal Act of 1976. The Coastal Land Use Plan sets
forth goals, objectives, and policies that govern the use of land and water
in the coastal zone within the City of Newport Beach and its sphere of
influence, with the exception of Newport Coast and Banning Ranch. The
Physical boundaries of the area to which the Coastal Land Use Plan
applies are shown on the Coastal Land Use Map, included as Map
(Suggested Mod 11, Newport Coast is governed by the previously
certified and currently effective Newport Coast segment of the Orange
County Local Coastal Program. Banning Ranch is a Deferred
Certification Area (DCA) due to unresolved issues relating to land use,
public access and the protection of coastal resources (see Section
2.2.4).
3. 1.3 General Policies
The following policies shall be applied to achieve the goals and objectives
of the Coastal Act in applying the policies of this Coastal Land Use Plan:
The policies of Chapter 3 of the Coastal Act (PRC Sections 30200
— 39263 30265.5) shall be the guiding policies of the Coastal Land
Use Plan.
VW
3:2. Where there are conflicts between the policies set forth in this
Coastal Land Use Plan and those set forth in any element of the City's
General Plan, zoning, or any other ordinance, the policies of the Coastal
Page: 11
J�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Land Use Plan shall take precedence. However, in no case, shall the
policies of the Coastal Land Use Plan be interpreted to allow a
development to exceed a development limit established by the General
Plan or its implementing ordinances.
3. In the event of any ambiguities or silence in this Coastal Land
Use Plan not resolved by (1) or (2) above, or by other provisions of
the City's LCP, the Chapter 3 policies of the Coastal Act shall guide
interpretation of this Coastal Land Use Plan.
5. No provision of the Coastal Land Use Plan or the Coastal Act
is a limitation on any of the following:
A. On the power of the City to declare, prohibit, and abate
nuisances.
B. Except as otherwise limited by state law, on the power of
the City to adopt and enforce additional regulations, not in
conflict with the Coastal Land Use Plan or the Coastal Act,
imposing further conditions, restrictions, or limitations with
respect to any land or water use or other activity which
might adversely affect the resources of the coastal zone.
4. Section 1.4, last paragraph on page 1 -3:
After certification of an LCP, coastal development permit authority is delegated to
the appropriate local government. The Coastal Commission retains original
permit jurisdiction over certain specified lands, such as submerged lands,
tidelands, and public trust lands, and has appellate authority over development .
approved by local government in specified geographic areas and for maior
public works proiects and maior energy facilities. In authorizing coastal
development permits, the local government must make the finding that the
development conforms to the certified LCP. Furthermore, after certification of
the LCP, City actions on applications for Coastal Act authority to conduct
certain types of development and development within certain geographic
areas, are appealable to the Coastal Commission.
CHAPTER 2 (LAND USE AND DEVELOPMENT)
5. Section 2.1.1, Planning Study Areas, Planning Study Area 3 (McFadden
Square), Modify second paragraph on page 2 -7 as follows:
Page: 12
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Retail and Service Commercial areas are intended to provide for a broad
range of coastal - related and visitor - serving commercial uses. Professional
and business offices not providing goods and services to the public, or not
ancillary to an otherwise permitted use, are allowed only on the second floor
or above. In the primary visitor - serving core, non - priority commercial
uses are prohibited on the -ground floor. The McFadden Square primary
visitor - serving core is bounded to the west by the first row of properties
fronting on 23rd Street, to the north by Balboa Boulevard, to the east by
the first row of properties fronting on McFadden Place, and to the south
by the sandy beach, excluding properties currently designated and
constructed as residential uses.
6. Section 2.1.1, Planning Study Areas, Planning Study Area 4 (Balboa Village),
Modify last paragraph on page 2 -8 as follows:
Although the Balboa Village provides a number of businesses that are
oriented to visitors of the coastal zone, a wide range of commercial uses need
to be permitted in order to maintain year - around economic viability.
However, within the primary visitor - servinq core, non - priority
commercial uses are prohibited on the ground floor. The Balboa Village
primary visitor - serving core is bounded to the west by Adams Street, to
the north by the Newport Harbor, to the east by A Street, and to the
south by the sandy beach, excludinq properties currently designated
and constructed as residential uses.
7. Section 2.1.1, Planning Study Areas, Establish new Planning Study Area 7
(Marine Avenue) and insert following text:
Planning Study Area 7 (Marine Avenue). Marine Avenue is a two -block
retail district on Balboa Island. Marine Avenue reflects the unique
characteristics of the Balboa Island community. Balboa Island is known
for its casual and laid -back lifestyle and Marine Avenue serves as its
town square. Marine Avenue has a number of small -scale local
owned businesses, including restaurants, retail shops, art galleries, and
services. This small -town downtown atmosphere has made Marine
Avenue a popular visitor destination.
Although Marine Avenue does not have the typical "tourist-driven" mix
of shops and businesses, visitors are drawn there to experience a
Southern California coastal island community. The number and variety
of businesses cannot be supported by the local economy alone and
without local support, most of these businesses could not survive year -
round. Therefore, the continued success of the retail economy on
Marine Avenue is contingent on businesses that serve both local
residents and visitors.
Page: 13
I
NPB- MAJ -1 -04
City of Newport Beach LUP Update
The area is designated for Commercial Residential and Public Facilities.
Residential uses are permitted in commercial areas on the second floor
or above where the -ground floor is occupied by a commercial use. Non -
priority commercial uses are prohibited on the ground floor. The
maximum floor area to land area ratio for commercial - residential
development is 1.25.
8. 2.2.1 -1 Continue to allow redevelopment and infill development within and
adjacent to the existing developed areas in the coastal zone subject to the
density and intensity limits and resource protection policies of the Coastal
Land Use Plan.
9. New Policy (2.2.1 -3) Provide commercial facilities within or adjoining
residential development or in other areas that will minimize the use of
coastal access roads.
10.Section 2.2.2 In order to ensure that development within the coastal zone is
consistent with the LCP and any applicable policies from Chapter 3 of the
Coastal Act, the City will require a coastal development permit prior to
commencement of any development in the coastal zone, with the exceptions
of developments in areas where the Coastal Commission retains permit
jurisdiction, developments where an amendment to a Coastal
Commission - issued permit is required, developments determined to be
categorically excluded according to the categories and standards established
by the Coastal Commission, and developments determined to be excluded
from the coastal development permit requirements pursuant to Public
Resources Code Section 30610 and its implementing regulations.
which address nuisance abatement, vested rights and emergency
circumstances, respectively.
11.2.2.2 -3 Incorporate the terms and conditions of categorical exclusions into
the ^^i^ a Implementation Plan.
12. New Policy (Section 2.2.2) Implement building design and siting
regulations to protect coastal resources and public access through
height, setback, floor area, lot coverage, building bulk, and other
Property development standards of the Zoning Code intended to control
building placement, height, and bulk.
13.2.2.3 -4. Provide a graphical Sepist representation of the terms of the
categorical exclusion order by depicting the subject properties covered
on the EXGlusion ^ •eas a Permit and App-sal
Jurisdiction Map and incorporate into the Implementation Plan. In case
a conflict exists between the Permit and Appeal Jurisdiction Ma and
Page: 14
)I
NPB- MAJ -1 -04
City of Newport Beach LUP Update
the text of the categorical exclusion order, the text of the categorical
exclusion order shall -govern the terms of the exclusion.
14.2.2.4 Banning Ranch shall remain a deferred certification area until such
time as the future land uses for the property are resolved and policies are
adopted to address the future of the oil and gas operations, public access,
and the protection of the coastal resources on the property.
15.2.2.5 -1 Legally established nonconforming structures may be maintained
and repaired, as specified by the terms of this policy. Interior alterations,
structural alterations, and additions shall be limited as follows. Individual
project review will determine when a coastal development permit is
required.
1. Nonstructural interior alterations shall not exceed 50 percent of the
replacement cost of a nonconforming structure.
2. Alteration of more than 25 percent of the structural elements of a
nonconforming structure shall be subject to discretionary review and
approval by the City.
3. Additions shall be permitted to structures that are legally nonconforming
due to reasons other than for parking, open space /resource issues, floor
area, or building bulk. Additions of more than 25 percent of the gross floor
area of a nonconforming structure shall be subject to discretionary review
and approval by the City.
4. No alternations or additions to a nonconforming structure shall increase
the degree of the structure's nonconformity.
5. When proposed development would involve demolition or
replacement of 50 percent or more of the exterior walls of an existing
structure, the entire structure must be made to conform with all
current development standards and applicable policies of the
Coastal Land Use Plan.
16. New Policy (Section 2.3.1). Protect special communities and
nejghborhoods which, because of their unique characteristics, are
popular visitor destination points for recreational uses.
17. New Policy (Section 2.3.1). Where feasible, reserve upland areas
necessary to support coastal recreational uses for such uses.
18. New Policy (Section 2.3.1). Prohibit the following non - priority
commercial uses on the ground floor of properties within the primary
Page: 15
0b
NPB- MAJ -1 -04
City of Newport Beach LUP Update
visitor - serving areas of McFadden Square (PSA 3) and Balboa Village
(PSA 4). and along Marine Avenue (PSA 7):
1. Daycare
2. Residential Care
3. Building Materials and Services
4. Funeral and Internment Services
5. Laboratories
6. Health /Fitness Clubs
7. Research and Development
8. SRO Residential Hotels
9. Industry
10. Mining and Processing
11. Clubs and Lodges
12. Government Offices
13. Religious Assembly
14. Maior Utilities
15. Animal Hospitals
16. Maintenance and Repair Services
17. Offices, Business and Professional (not serving visitors)
18. Vehicle Sales
19. Vehicle Storage
19.2.3.2 -1. Continue to use public beaches for public recreational uses and
prohibit semrnersial uses on beaches that interfere with public access and
enjoyment of coastal resources.
20.2.4.1 -5 Protect and €encourage and - maintain facilities that serve marine -
related businesses and industries unless
lenger e;isIn& present and foreseeable future demand for such facilities
are already adequately provided for in the area. Encourage coastal -
dependent industrial facilities to locate or expand within existing sites
and allowed reasonable long -term growth.
21. 2.5.2 -1. Oeatinue to aAdminister the use of tidelands and submerged lands
in a manner consistent with the tidelands trust and all applicable laws,
including Chapter 70 of the Statutes of 1927, the Beacon Bay Bill (Chapter
74, Statutes of 1978), SB 573 (Chapter 317, Statutes of 1997), AB 3139
(Chapter 728, Statutes of 1994), and Chapter 715, Statutes of 1984 and the
CoastalAct.
22.2.5.2 -2. Give fUll GonsideFatiOR W Promote the public's right of access to
the ocean, beach, and bay and to the provision of coastal dependent uses
adjacent to the water in the leasing or re leasing of publicly owned land.
Page: 16
�1
NPB- MAJ -1 -04
City of Newport Beach LUP Update
23.2.5.2 -3. Evaluate and ensure the consistency of
the proposed use with the public trust restrictions and the public interest at
the time any tideland lease is re- negotiated or renewed.
24. New Policy (Section 2.6): Where feasible, locate new hazardous
industrial development away from existing developed areas.
25. New Policy (Section 2.6): Encourage coastal- dependent industrial
facilities to locate or expand within existing sites and permit reasonable
long -term growth where consistent with the Coastal Land Use Plan.
26.2.6 -1 In the areas designated for industrial land uses, give priority to
Scoastal- dependent and coastal - related industrial uses she "ve - psar;tr
over other industrial uses on or near the shoreline.
27.2.6 -2. Prohibit new ORsheFe 901 @Rd gas development facilities, except as
y hen in nnt'e with the a Fate of the \Alert Newport Oil
Field, ORCluding the City of Newport Peach Oil faGilities.
28.2.6 -3. Prohibit the cen';tFUGtiE)R Of E)RshE)Fe oil pFoGessing, ref
frern effchere trentn with the a ent'e of slant ru'li'ng from onshore oil fields.
29. New Policy (Section 2.8.1): Require new development to assure stability
and structural integrity, and neither create nor contribute significantly to
erosion, geologic instability, or destruction of the site or surrounding
30. New Policy (Section 2.8.2): Require overnight visitor - serving facilities in
susceptible areas to provide tsunami information and evacuation plans.
31. New Policy (Section 2.8.2): Periodically review and update tsunami
Preparation and response policies /practices to reflect current
inundation maps and design standards.
32.2.8.3 -3. Develop and implement shoreline management plans for shoreline
areas subject to wave hazards and erosion. Shoreline management plans
should provide for the protection of pFivate pmpefty existing development,
public improvements, coastal access, public opportunities for coastal
recreation, and coastal resources. Plans must evaluate the feasibility of
hazard avoidance, restoration of the sand supply, beach nourishment
and planned retreat.
33.2.8.6 -5. Permit revetments, breakwaters, groins, harbor channels, seawalls,
cliff retaining walls and other structures altering natural shoreline processes
Page: 17
NPB- MAJ -1 -04
City of Newport Beach LUP Update
or retaining walls when required to serve coastal- dependent uses or to protect
existing principal structures or public beaches in danger from erosion and
when designed to eliminate or mitigate adverse impacts on local shoreline
sand supply, unless a waiver of future shoreline protection was required
by a previous coastal development permit.
34.2.8.6 -7. Discourage shoreline protective devices on public land to protect
private property /development. Site and design any such protective devices
as far landward as possible. Such protective devices may be considered
only after hazard avoidance, restoration of the sand supply, beach
nourishment and planned retreat are exhausted as possible alternatives.
35.2.8.6 -9. Require property owners to record a waiver of future shoreline
protection for new development during the economic life of the structure (75
years) as a condition of approval of a coastal development permit for new
development on a beach, eF shoreline or bluff that is subject to wave action,
erosion, flooding, landslides, or other hazards associated with development
on a beach or bluff. Shoreline protection may be permitted to protect existing
structures that were legally constructed prior to the certification of the LCP,
unless a waiver of future shoreline protection was required by a previous
coastal development permit.
36.2.8.8 -2. Site and design new development to avoid fire hazards and the
need to extend fuel modification zones into sensitive habitats.
37. New Policy (2.9.3): Prohibit new development that would result in
restrictions on public parking that would impede or restrict public
access to beaches, trails or parklands, (including, but not limited to, the
posting of "no parking" signs, red curbing, and physical barriers),
except where such restrictions are needed to protect public safety and
where no other feasible alternative exists to provide 9—ublic safety.
38. New Policy (2.9.3): ff public parking restrictions are allowed to protect
Public safety, require new development to provide an equivalent
quantity of public parking nearby as mitigation for impacts to coastal
access and recreation, where feasible.
39.2.9.3 -6. Geatiaue -te FRequire new development to minimize curb cuts to
protect on- street parking spaces. Close curb cuts to create public parking
wherever feasible.
40. New Policy (Section 2.9): Require that all proposed development
maintain and enhance public access to the coast by providing adequate
Parking pursuant to the off - street parking regulations of the Zoning
Code in effect as of !date of Commission actionl.
Page: 18
a3
NPB- MAJ -1 -04
City of Newport Beach LUP Update
41. New Policy (Section 2.9): Periodically review and update off - street
parking requirements to ensure that new development provides off -
street parking sufficient to serve approved uses.
CHAPTER 3 (PUBLIC ACCESS AND RECREATION)
42.3.1.1 -1. Protect, and where feasible, expand and enhance public access to
and along the shoreline and to beaches, coastal waters, tidelands, coastal
parks, and trails.
43.3.1.1 -11. Require a direct dedication or an Offer to Dedicate (OTD) an
easement for lateral public access for all new shorefront development causing
or contributing to adverse public access impacts. Such dedication or
easement shall extend from the limits of public ownership (e.g. mean
high tide line) landward to a fixed point seaward of the primary extent of
development (e.g. intersection of sand with toe or top of revetment,
vertical face of seawall, dripline of deck, or toe of bluff.
44.3.1.1 -12. Require a direct dedication or an Offer to Dedicate (OTD) an
easement for vertical access in all new development projects causing or
contributing to adverse public access impacts, unless adequate access is
available nearby. Vertical accessways shall be a sufficient size to
accommodate two -way pedestrian passage and landscape buffer and
should be sited along the border or side property line of the project site
or away from existing or proposed development to the maximum
feasible extent.
45. New Policy (Section 3.1.1) Require all direct dedications or OTDs for
public access to be made to a public agency, private association or
other appropriate entity that will operate the accessway on behalf of the
public. Require accessways to be opened to the public once an
appropriate entity accepts responsibility for maintenance and liability.
46. New Policy (Section 3.1.1) Implement building design and siting
regulations to protect public access through setback and other property
development regulations of the Zoning Code that control building
placement.
47. New Policy (Section 3.1.1) Require new development on ocean - fronting,
residentially zoned properties located between the Santa Ana River
Jetties and the Newport Harbor West Jetty to conform to the setback
requirements of the Zoninq Code in effect as of (date of Commission
actionl to prevent impacts to public access.
48. New Policy (Section 3.1 -1) Where there is substantial evidence that
prescriptive rights of access to the beach exist on a parcel,
Page: 19
a�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
development on that parcel must be designed, or conditions must be
imposed, to avoid interference with the prescriptive rights that may
exist or to provide alternative, equivalent access.
49. New Policy (Section 3.1.1) Encourage the acceptance, improvement and
opening of OTDs to the public by the City, a public agency, a private
association, or other appropriate entity.
50. New Policy (Section 3.1.1) Encourage the creation of new public vertical
accessways where feasible, including Corona del Mar and other areas of
limited public accessibility.
51. Section 3.1.1 Add new symbol to Coastal Access Map to reflect potential
public access points.
52.3.1.3 -9 (A) Maintain 33 street ends between 36th Street and Summit to
provide an average of 2 parking spaces per street, and additional spaces
where feasible.
53. New Policy (After 3.1.4 -7) Limit bulkhead expansion or encroachment
into coastal waters to the minimum extent necessary to repair maintain,
or replace an existing bulkhead and do not allow the backfill to create
new usable residential land areas.
54.3.1.5 -1. Prohibit new development that incorporate gates, guardhouses,
barriers or other structures designed to regulate or restrict access where they
would inhibit public access to and along the shoreline and to beaches, coastal
parks, trails, or coastal bluffs when there is hatantial evidence° tt �t
r
55.3.1.5 -2. Prohibit new private streets, or the conversion of public streets to
private streets, where such a conversion would inhibit public access to and
along the shoreline and to beaches, coastal parks, trails, or coastal bluffs
when thorn is substantial ev',f°ns° that n ntiv° rights n 's+
56.3.1.6 -1. Prohibit the establishment of new preferential parking districts in the
coastal zone except in, aFeas where such restrictions would not have a direct
impact to coastal access, including the ability to use public parking, r where
ne ether n antiaal OF feasible alternative exists to nr °tont than hl's health
°
.gar" -�T
safety e I Ifare
T.
57.3.1.6 -5. Limit the number of preferential parking permits issued per
household to reduce potential adverse impacts to public access.
Page: 20
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
58. New Policy (Section 3.2): Provide adequate park and recreational
facilities to accommodate the needs of new residents when allowing
new development.
59. New Policy (Section 3.3. 1) Develop and implement a s(gnage program
to assist boat owners /operators and the public to locate public
launching facilities.
60. New Policy (Section 3.3.2) Provide a variety of slip types reflecting
State and regional demand for slip size and affordability.
61.3.3.3 -5. Develop strategies to preserve uses that provide essential support
for the vessels berthed or moored in the Harbor. The strategies must be
feasible, cost effeeti a n.d ecA then eFt., Fights of waterfront n
and- lessees. The strategies may iRGIude parking waivers, devel9pimen
transfn..- density b9Ruses and V E nt..r., n rrhase of n .at'n
CHAPTER 4 (COASTAL RESOURCE PROTECTION)
62. Page 4 -2 (First full paragraph) The GaIif0FRia DepaFtMeRt of Fish and Game
notmes that aFe E) so deFe d r ° because of then: highly limited
°^longeFed speGies. The following
terrestrial (non- marine) natural communities are known to occur within the
coastal zone in Newport Beach and the City's sphere of influence:
63. Page 4 -2 (Insert after bulleted list) The California Department of Fish and
Provides an inventory of California's natural communities and identifies
those that are considered rare because of their highly limited
distribution. These rare communities may or may not contain individual
species that are rare, threatened, or endangered.
64. Pages 4 -3 through 4 -4 (narrative) In determining whether a habitat area
meets the statutory definition of ESHA contained in Section 30107.5 of the
Coastal Act, the following attributes need to taken into consideration:
• . The
presence of natural communities that have been identified as rare
by the California Department of Fish and Game.
Page: 21
�(b
NPB- MAJ -1 -04
City of Newport Beach LUP Update
• The recorded or potential presence of plant or animal species
designated as rare, threatened, or endangered under State or Federal
law.
• The presence or potential presence of plant or animal species
that are not listed under State or Federal law, but for which there
is other compelling evidence of rarity, such as designation as a
1B or 2 species by the California Native Plant Society.
• The presence of coastal streams or wetlaaa -.
• The degree of habitat integrity! and connectivity to other natural
areas.
IN vim M-11 1 M OWN
Page: 22
�I
IN NION NOWIM WOMAN -1-
Page: 22
�I
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Several of the natural communities that occur in Newport Beach are
designated rare by the CDFG and are easily disturbed or degraded by
human activity and therefore are presumed to meet the definition of
ESHA under the Coastal Act. These include southern dune scrub,
southern coastal bluff scrub, maritime succulent scrub, southern
maritime chaparral, southern willow scrub, southern cottonwood willow
riparian forest, southern arrovo willow forest, southern black willow
forest, southern sycamore alder riparian woodland, and southern
coastal purple needlegrass grassland.
Although not all riparian habitat types are rare throughout the state, in
southern California over 90% of the original riparian habitats had been
lost to development by 1989. All remaining native riparian habitats in
southern California, including southern coast live oak riparian forest,
meet the definition of ESHA both because of their rarity and because of
their important roles in the ecosystem. For example, many species of
birds nest and roost in riparian habitat but forage in adjacent coastal
sage scrub and chaparral.
Another important habitat within the City of Newport Beach is coastal
same scrub (CSS). Although CSS has suffered enormous losses in
California (estimates are as high as 85 %), there are still thousands of
acres in existence and this community type is no longer listed as rare
by CDFG. Nevertheless, where CSS occurs adjacent to coastal salt
marsh or other wetlands, or where it is documented to support or
known to have the potential to support rare species such as the coastal
California gnatcatcher, it meets the definition of ESHA because of its
especially valuable role in the ecosystem. CSS is important transitional
or "edge" habitat adjacent to saltmarsh, providing important functions
Page: 23
NPB- MAJ -1 -04
City of Newport Beach LUP Update
such as supporting pollinators for wetland plants and essential habitat
for edge- dependent animals like several species of butterflies that
nectar on upland plants but whose caterpillars require wetland
vegetation. CSS also provides essential nesting and foraging habitat
for the coastal California gnatcatcher, a rare species designated
Threatened under the Federal Endangered Species Act.
Wetland habitats with the City of Newport Beach that may meet the
definition of ESHA include coastal brackish marsh, coastal freshwater
marsh, southern coastal salt marsh, southern hardpan vernal pools,
freshwater seeps, and alkali meadows.
Areas within the City of Newport Beach that are dominated by one of the
habitats discussed above are presumed to be ESHA, unless there are
strong site - specific reasons to rebut that presumption. Factors that
should be considered when making site - specific assessments include:
Patch size and connectivity. Very small patches of habitat that
are effectively isolated from other natural areas may lose many of
their natural ecoloqical functions. Functional patch size is
dependent upon both the ecological needs of the species of
importance supported by the habitat and the spatial scale of the
habitat. For example, what is isolated for a small mammal may
not be for a bird and what is small for a covote may not be for
some insects.
Dominance by invasive, non - native species. Non - native species
often provide poorer habitat for wildlife than native vegetation
and proliferation of exotic plant species alters ecosystem
processes and may threaten certain native species with
extirpation. However, there are probably no habitats in southern
California that have not been invaded by exotic species, and the
remaininq stands of native grassland are almost always
dominated by non - native annual species. Only where exotic
species are so overwhelmingly dominant that the native
community can no longer perform its functions in the ecosystem
should the presence of exotic species rebut the presumption of
ESHA.
Disturbance and proximity to development. Disturbance is the
negative effect of human activities such as dumping, vegetation
removal, development, pollution, etc. Habitat areas bordering
development may be subiect to impacts from negative edge
effects, such as lighting, non - native invasive plant species,
domestic animals, and human activity. The negative effects of
Page: 24
�l
NPB- MAJ -1 -04
City of Newport Beach LUP Update
disturbance are strongest immediately adjacent to development
and decline with distance from the edge. However, where very
small patches of habitat are effectively surrounded by
development, these impacts may be severe. In general,
disturbance by itself is not enough to rebut the finding of ESHA.
Disturbance that is clearly reversible (e. -g., presence of trash or
illegal dumping) is not determinative.
Fragmentation and isolation. Where there are large areas of
more -or -less continuous development, native communities maY
be reduced to small islands of habitat that are distant from other
natural habitats. This fragmentation and isolation can create
barriers to migration, reduce wildlife food and water resources
and -generally compress territory size to reduce existing wildlife
populations to non - viability. The smaller a particular habitat
patch is, the greater the proportion of its area that experiences
negative edge effects.
Where the habitats discussed above occur in the City of Newport Beach the
presumption is that they are ESHA and the burden of proof is on the
Property owner or proiect proponent to demonstrate that that presumption
is rebutted by site - specific evidence. However, if quantitative data
-gathered by a qualified biologist demonstrates that a habitat area is
degraded beyond the point of restoration, or that it is not rare and is so
small and isolated that it no longer has habitat value or a special nature or
role in the ecosystem, the habitat area does not meet the statutory
definition of ESHA contained in Section 30107.5 of the Coastal Act.
Therefore, such habitat areas do not warrant the special land use and
development restrictions established for ESHA in this Coastal Land Use
Plan.
65. New Policy (Section 4.1.1): Require development in areas adjacent to
environmentally sensitive habitat areas to be sited and designed to
prevent impacts that would significantly deqrade those areas, and to be
compatible with the continuance of those habitat areas.
66.4.1.1 -1. Define any area in which plant or animal life or their habitats are
either rare or especially valuable because of their special nature or role in an
ecosystem and which could be easily disturbed or degraded by human
activities and developments as an environmentally sensitive habitat area
(ESHA). Using a site - specific survey and analysis by a qualified biologist,
evaluate the following attributes when determining whether a habitat area
meets the definition of an ESHA:
Page: 25
6
NPB- MAJ -1 -04
City of Newport Beach LUP Update
A. . The presence
of natural communities that have been identified as rare by the
California Department of Fish and Game.
B. The recorded or potential presence of plant or animal species designated
as rare, threatened, or endangered under State or Federal law.
C. The presence or potential presence of plant or animal species that
are not listed under State or Federal law, but for which there is other
compelling evidence of rarity, such as designation as a 1B or 2
species by the California Native Plant Society,
D. The presence of coastal streams aad- wettaads.
B- F. The degree of habitat integrity/ and connectivity to other natural
areas.
Attributes to be evaluated when determining a habitat's integrity /connectivity
include the habitat's patch size and connectivity, dominance by 4he
pr �oace )f invasive /non- native species, the level of disturbance, the
proximity to development, and the level of fragmentation and isolation.
Existing developed areas and existin fuel modification areas required by the
City of Newport Beach Fire Department or the Orange County Fire Authority
for existing, legal structures do not meet the definition of ESHA.
67.4.1.1 -2 Require a site - specific survey and analysis prepared by a qualified
biologist as a filing requirement for coastal development permit applications
where development would occur within or adjacent to areas identified as a
potential ESHA. Identify ESHA as habitats or natural communities listed
in Section 4. 1.1 that possess any of the attributes listed in Policy 4.1.1 -1.
The ESA's depicted on Map !Suggested Mod 11 shall represent a
Preliminary mapping of areas containing potential ESHA.
68.4.1.1 -3. Design and site new .a. eI- pFRens ,.I, AZR9laridsi;a iri to
Pprotect ESHAs against any significant disruption of habitat values.
W4.1.1-5. Limit uses within ESHAs to only • dependent
takiRg Of private pFoperty. if the appliGation of ESHA Policies would likel
ashall be allowed on the pFoperty, provided development is limited to the
amount ReG8ssary to avoid a takiRg and the development
Page: 26
NPB- MAJ -1 -04
City of Newport Beach LUP Update
70.4.1.1 -6 Limited {-'Public access improvements and minor educational,
interpretative and research fasi4ities are activities and development may be
considered resource dependent uses. Measures, including, but not limited
to, trail creation, signa -ge, placement of boardwalks, and fencing, shall
be implemented as necessary to protect ESHA.
71. New Policy (Section 4.1 .1) Prohibit new development that would
necessitate fuel modification in ESHA.
72. New Policy (After 4.1.1 -7) Provide buffer areas around ESHAs and
maintain with exclusively native vegetation to serve as transitional
habitat and provide distance and physical barriers to human and
domestic pet intrusion.
73.4.1.1 -8. Maintain a Re uire buffers areas of sufficient size to ensure the
the biological integrity and Preservation of the
habitat they are designed to protect. Terrestrial ESHA shall have a
minimum buffer width of 50 feet wherever possible. Smaller ESHA
buffers may be allowed only where it can be demonstrated that 1) a 50-
foot wide buffer is not possible due to site - specific constraints, and 2)
the proposed narrower buffer would be amply protective of the
biological integrity of the ESHA given the site - specific characteristics of
the resource and of the type and intensitv of disturbance.
74. New Policy (Section 4.1.1) Require mitigation in the form of habitat
creation or substantial restoration for allowable impacts to ESHA and
other sensitive resources that cannot be avoided through the
implementation of sitinq and desiqn alternatives. Priority shall be -given
to on -site mitigation. Off -site mitigation measures shall only be
approved when it is not feasible to fully mitigate impacts on -site.
Mitigation shall not substitute for implementation of the project
alternative that would avoid impacts to ESHA.
75. New Policy (Section 4.1.1) Apply the following mitigation ratios for
allowable impacts to upland vegetation: 2:1 for coastal sage scrub; 3:1
for coastal sage scrub that is occupied by California gnatcatchers or
significant populations of other rare species; 3:1 for rare community
types such as southern maritime chaparral, maritime succulent scrub;
native grassland and 1:1 for southern mixed chaparral The ratios
represent the acreage of the area to be restored /created to the acreage
impacted.
76. New Policy (Section 4.1.1) For allowable impacts to ESHA and other
sensitive resources, require monitoring of mitigation measures for a
period of sufficient time to determine is mitigation objectives and
Performance standards are being met. Mid - course corrections shall be
Page: 27
3d
NPB- MAJ -1 -04
City of Newport Beach LUP Update
implemented if necessary to meet the obiectives or performance
standards. Require the submittal of monitoring reports during the
monitoring period that document the success or failure of the
mitigation. To help insure that the mitigation project is self - sustaining
final monitoring for all mitigation projects shall take place after at least
three years with no remediation or maintenance activities other than
weeding. If performance standards are not met by the end of the
Prescribed monitoring period,_ the monitoring period shall be extended
or the applicant shall submit an amendment application proposing
alternative mitigation measures and implement the approved changes.
Unless it is determined by the City that a differing mitigation monitoring
schedule is appropriate, it is generally anticipated that monitoring shall
occur for a period of not less than five years.
77. Section 4.1.3 (Narrative on page 4 -11):
Newport Beach has several relatively large, undeveloped areas that contain
natural habitats and may be capable of supporting sensitive biological
resources. These areas are designated as environmental study areas to
define them geographically, provide an overview of known and potential
biological resources, identify potential threats to those resources, and
propose potential mitigation measures.
The following areas are designated as environmental study areas:
1. Semeniuk Slough (Santa Ana River Marsh)
2. North Star Beach
3. West Bay
4. Upper Newport Bay Marine Park and DeAnza /Bayside Marsh
Peninsula
5. San Diego Creek
6. Eastbluff Remnant
7. Mouth of Big Canyon
8. Newporter North
9. Buck Gully
10. Morning Canyon
11. Newport Beach Marine Conservation Area
12. Castaways
13. Kefp Beds in Newport Harbor Entrance Channel
Most of these study areas are protected as parks, conservation areas, nature
preserves, and other open space areas. Nevertheless, the natural habitats in
each of these study areas are subjected to various potential impacts from the
surrounding urban environment. Potential adverse impacts and mitigation
measures to reduce those impacts are identified in the narratives below and
Page: 28
3?
NPB- MAJ -1 -04
City of Newport Beach LUP Update
summarized in Table 4.1 -1 (Environmental Study Area Environmental
Impacts and Mitigation Measures).
Portions of the environmental study areas listed above are known to
contain habitat that constitutes Environmentally Sensitive Habitat Area
(ESHA). As such, they will be subject to more stringent development
controls and resource protection measures. Within these study areas,
those natural communities /habitats identified in Section 4. 1.1 are
presumed to be ESHA, unless there is compelling site - specific evidence
to the contrary. As is evident from the descriptions provided below,
large portions of these environmental studv areas support one or more
community types that meet the definition of ESHA.
78.4.1.3 -1 Utilize the following mitigation measures to reduce the potential for
adverse impacts to ESA natural habitats from the potential i^,^^^'^ sources
including, but not limited to, those identified in Table 4.1.1:...
79. Modify Table 4.1.1 to include "POLICY 4.1.3 -1 (N)" within the column labeled
"Mitigations to Reduce the Potential Impacts of Identified Threats" for each
ESA.
80.4.1.3 -1 (A) Require removal of unauthorized bulkheads, docks and
patios or other structures that impinge upon impact wetlands or other
sensitive habitat areas.
81.4.1.3 -1 (B) Where pedestrian access is permitted, GORtrol PUNOc u.,.,e&s
avoid adverse impacts to sensitive areas from pedestrian traffic through
the use of well- defined footpaths, boardwalks, protective fencing, signage,
and similar methods.
82.4.1.3 -1 (E) Limit encroachments into wetlands to development that is
consistent with the- Section 30233 of the Coastal Act and Policy 4.2.3 -1 of
the Coastal Land Use Plan (see SestieR 4.2 ` etiands and ne ^.,wate.
Arens) and mitigate any ,etlands lesser
83.4.1.3 -1 (N) MeniteFfeFP /Ohibit invasive species and require removal
in new develo ment, 1eawwe 'f
84.4.1.3 -2 Prepare natural habitat protection overlays for Buck Gully ESA and
Morning Canyon ESA for the purpose of providing standards to ensure both
the protection and restoration of the natural habitats in these areas and of
private property rights. Include in the overlays standards for the placement of
structures, native vegetation /fuel modification buffers, and erosion and
sedimentation control structures.
Page: 29
3q
NPB- MAJ -1 -04
City of Newport Beach LUP Update
85. 4.1.3 -10. °esE)UF ° Gt°ctie- ^!:c..,., w,° „e+ Wended to eveR' b!..,
d +° n +, ^ f' and
nnnnn' °c n n n i v n rnn °r . wn°r o rn , r. m n+n' n 'n n rlrnn nn° ^^ m °c
f�l'+'n sedimentation hnc'n +ra'Ic aGGess -,.Is hl'n iRfFastFuGture, d
other r related f°c,l,t,°., On ., safe and effeGtiVe Ge_nd,t,G„ with ,,,,,,,..,GI „ OFRpaGt On
the eawfe ;eat „e:- amz+h ey- in+nnded .e -Proh'b'+ publiG iRfraStFUGtUFe when
�^nv'nrm'- comic °r -rtorPFOuc .rates that adverse iFnpaGtS Gan be
mitiga?2d2F -that the benefits +.. gh the ady impaGtG. However,
such 'nfrastFun+_.. _ installed in ^n FSH4 OF m_ +hr. :n _ ferm_..__
w the
Pnt respectively. Routine maintenance of drainage courses and
facilities. sedimentation basins, trails, access roads, public
infrastructure and other related facilities may be allowed if carried out
in accordance with the resource protection policies of the Coastal Land
Use Plan.
86.4.1.4 -5 Where applicable f.eatiaae -te require ee/grass and Caulerpa
taxifolia pfeteeel- surveys to be conducted as a condition of City approval for
projects in Newport Bay in accordance with operative protocols of the
Southern California Eelgrass Mitigation Policv and Caulerpa taxifolia
Survey Protocols
87. New Policy (Section 4.2.1): Channelizations, dams, or other substantial
alterations of rivers and streams shall incorporate the best mit(gation
measures feasible. and be limited to (1) necessary water supply
projects. (2) flood control projects where no other method for protecting
existing structures in the floodplain is feasible and where such
protection is necessary for public safety or to protect existing
development, or (3) developments where the primary function is the
improvement of fish and wildlife habitat.
88. Section 4.2.2 (Narrative on page 4 -43):
89.4.2.2 -1. Define wetlands as areas where the water table is at, near, or above
the land surface long enough to bring about the formation of hydric soils or to
Page: 30
35
MI
-
s- - -s
-
will.
IN.
.•s
Lam
89.4.2.2 -1. Define wetlands as areas where the water table is at, near, or above
the land surface long enough to bring about the formation of hydric soils or to
Page: 30
35
NPB- MAJ -1 -04
City of Newport Beach LUP Update
support the growth of hydrophytes. Such wetlands can include areas where
vegetation is lacking and soil is poorly developed or absent as a result of
frequent drastic fluctuations of surface water levels, wave action, water flow,
turbidity or high concentration of salts or other substances in the substrate.
Wetlands do not include areas which in normal rainfall years are permanently
submerged (streams, lakes, ponds and impoundments), nor marine or
estuarine areas below extreme low water of spring tides ROF vemally we
RFRRA ..here the som's Rrp net hydri
Mr." WOMEN
MMOMMMOZ-0. 11
91.4.2.2 -4. Require buffer areas around wetlands of a sufficient size to ensure
the biological integrity and preservation of the wetland that they are
designed to protect. Wetlands shall have a minimum buffer width of 100
feet wherever possible. Smaller wetland buffers may be allowed only
where it can be demonstrated that 1) a 100 -foot wide buffer is not
Possible due to site - specific constraints, and 2) the proposed narrower
buffer would be amply protective of the biological integrity of the
wetland given the site - specific characteristics of the resource and of the
type and intensity of disturbance.
92.4.2.3 -1 (B) Construction or expansion of coastal- dependent industrial
facilities, including commercial fishing facilities, haul eut beat yaF&I, and
commercial ferry facilities.
93.4.2.3 -1 (D) In open coastal waters, other than wetlands, including
estuaries and streams, new or expanded boating facilities, including slips,
access ramps, piers, marinas, recreational boating, launching ramps, Nall out
beat- yards; and pleasure ferries, and the placement of structural pilings for
public recreational piers that provide public access and recreational
opportunities.
94.4.2.3 -5 (C) Dredged material not suitable for beach nourishment or
other permitted beneficial reuse shall be disposed of offshore at a
designated U.S. Environmental Protection Agency disposal site or at an
appropriate upland location.
95.4.2.3 -8. tssae Seek permits authorizing maintenance dredging under and
around residential piers and floats subject to compliance with all conditions to
the current Regional General Permit, including grain size requirements,
availability of suitable dredge disposal site, and periodic bioassays.
Page: 31
M
NPB- MAJ -1 -04
City of Newport Beach LUP Update
96.4.2.3 -9. Require the following minimum mitigation measures if a project
involves diking or filling of a wetland:
A. If an appropriate resteratieR mitigation site is available, the applicant
shall submit a detailed restoFatien plan which includes provisions for (1)
acquiring title to the mitigation site; (2) "in- kind" wetland restoration
or creation where possible; (3) where "out -of- kind" mitigation is
necessary, restoration or creation of wetlands that are pufslaase -and
ester t;on of an equivaletafea -of equal or greater biological productivity
to the wetland that was filled or dredged; and (44) dedication of the
restored or created tafld wetland and buffer to a public agency, or
otherwmse permanently restrictsion of its their use for to open space
purposes.
Adverse impacts shall be mitigated at a ratio of 3:1 for impacts to
seasonal wetlands, freshwater marsh and riparian areas, and at a
ratio of 4:1 for impacts to vernal ools and saltmarsh (the ratio
representinq the acreage of the area to be restored /created to the
acreage of the area diked or filled), unless the applicant provides
evidence establishing, and the approving authority finds, that
restoration or creation of a lesser area of wetlands will fully mitigate
the adverse impacts of the dike or fill project. However, in no event
shall the mitigation ratio be less than 2:1 unless, prior to the
development impacts, the mitigation is completed and is empirically
demonstrated to meet performance criteria that establish that the
created or restored wetlands are functionally equivalent or superior
to the impacted wetlands. The mitigation shall occur on -site
wherever possible. Where not possible, mitigation should occur in
the same watershed. The mitigation site shall be purchased and
legally restricted and /or dedicated before the dike or fill development
may proceed.
B. The applicant may, in some cases, be permitted to open equivalent areas
to tidal action or provide other sources of surface water in place of
creating or restoring wetlands pursuant to paragraph A. This method
of mitigation would be appropriate if the applicant already owns,ed or can
acquire, filled,- or diked areas which themselves were are not
environmentally sensitive habitat areas but which would become so; if
such areas were opened to tidal action or provided with other sources of
surface water.
C. However, if no appropriate sites under options (A) and (B) are available,
the applicant shall pay an in -lieu fee of sufficient value to an appropriate
public agency for the purchase and restoration of an area of equivalent
productive value, or equivalent surface area.
Page: 32
31
NPB- MAJ -1 -04
City of Newport Beach LUP Update
This third option would be allowed only if the applicant is unable to find a willing
seller of a potential restoration site. The public agency may also face difficulties
in acquiring appropriate sites even though it has the ability to condemn property.
Thus, the in -lieu fee shall reflect the additional costs of acquisition, including
litigation, as well as the cost of restoration. If the public agency's restoration
project is not already approved by the City, the public agency may need to be a
co- applicant for a permit to provide adequate assurance that conditions can be
imposed to assure that the purchase of the mitigation site shall occur prior to
issuance of the permit. In addition, such restoration must occur in the same
general region (e.g., within the same estuary) where the fill occurred.
97. New Policy (after 4.2.3 -10) Where impacts to wetlands are allowed,
require monitoring of mitigation measures for a period of sufficient time
to determine if mitigation objectives and performance standards are
being met. Mid - course corrections shall be implemented if necessary to
meet the objectives or performance standards. Require the submittal of
monitoring reports during the monitoring period that document the
successor failure of the mitigation. To help insure that the mitigation
project is self - sustaining, final monitoring for all mitigation projects
shall take place after at least three years with no remediation or
maintenance activities other than weeding. If performance standards
are not met by the end of the prescribed monitoring period, the
monitoring period shall be extended or the applicant shall submit an
amendment application proposing alternative mitigation measures and
implement the approved changes. Unless it is determined by the City
that a differing mitigation monitoring schedule is appropriate, it is
generally anticipated that monitoring shall occur for a period of not less
than five years.
98.4.2.3 -11, First sentence. Require that any project that includes diking,
filling or dredging of a wetland or estuary, as permitted pursuant to Policy
4.2.3_1• most maintain the functional capacity of the wetland or estuary.
99.4.2.3 -12 Require that Rew develepmeRt E)n the wateFfFant to design and site
daGking fae itie OR relationship to the able . ateF Require new
development on the waterfront to design and site docking facilities in
relationship to the water's depth and accessibility.
100. New Policy (Section 4.2.3) Require dredWnq and dredged material
disposal to be planned and carried out to avoid significant disruption to
marine and wildlife habitats and water circulation.
101. Narrative (Section 4.2.4): Erosion control and flood control facilities
constructed on water courses can impede the movement of sediment
and nutrients which would otherwise be carried by storm runoff into
coastal waters. To facilitate the continued delivery of these sediments
Page: 33
3�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
to the littoral zone, whenever feasible, the material removed from these
facilities may be placed at appropriate points on the shoreline where
feasible mitigation measures have been provided to minimize adverse
environmental effects. Aspects that shall be considered before issuing
a coastal development permit for such purposes are the method of
placement, time of year of placement, and sensitivity of the placement
area.
102. New Policy (Section 4.2.4) Dredged materials suitable for beneficial
reuse shall be transported for such purposes to appropriate areas and
Placed in a manner that minimizes adverse effects on the environment.
103. New Policy (Section 4.2.4): Material removed from erosion
control and flood control facilities suitable for beach replenishment
should be transported for such purposes to appropriate beaches or into
suitable long shore current systems.
104. Section 4.2.5, Narrative, page 4 -55, First full paragraph:
The City is developing a conceptual eelgrass mitigation program that
will address the establishment of eel mass acreage baselines for
Newport Harbor. 11a-�as^^ev�a�g f�.���
needed- The baseline would be the minimum acreage, based on the
distribution, density, and productivity, necessary for eelgrass meadows to
fulfill their ecological function. Once the baseline is determined, projects
may be granted exemptions to the Southern California Eelgrass Mitigation
Policy mitigation requirements, provided the eelgrass acreage baseline is
maintained. The National Marine Fisheries Service, as the lead agency,
would need to incorporate such a provision into Southern California
Eelgrass Mitigation Policy and the U.S. Army Corps of Engineers, the
Coastal Commission, and the Santa Ana Regional Water Quality Control
Board to incorporate the provision into the City's Regional General Permit
and into any individual property owner's dredging or dock construction
permit that qualifies under future applications. The establishment of a
baseline for eelgrass meadows will serve to protect their important
ecological function while allowing the periodic dredging that is essential to
protect the Newport Harbor's value as a commercial and recreational
resource. The eelgrass mitigation program is conceptual in nature
and will need further review and agency approval.
105. 4.2.5-2 When ee!gFaSS planted 'R a mitigatk)n area MigFates
f9F dredging these adjaGeRt areas shall Ret be FeqL*eEl-.
Page: 34
3%
NPB- MAJ -1 -04
City of Newport Beach LUP Update
rnitigatiOR Gredits will be issued to Private pFepeFty owners for eelgrass
107. New Policy (Section 4.3): Protection against the spillage of crude oil,
gas, petroleum products, or hazardous substances shall be provided in
relation to any development or transportation of such materials.
Effective containment and cleanup facilities and procedures shall be
provided for accidental spills that do occur.
108. 4.3.1 -3. Establish and protect a long -term funding source for the
regular dredging of Upper Newport Bay
AaaUity) and dredging of the Lower Newport Bay so that the City and its
watershed partners achieve the goals and directives of the Sediment and
Nutrient TMDLs adopted for Newport Bay.
109. 4.3.1 -5. Require development on steep slopes or steep slopes with
erosive soils to implement structural best management practices (BMPs) to
prevent or minimize erosion consistent with any load allocation of the
TDMLs adopted for Newport Bay.
110. 4.3.2 -4. Continue to update and enforce the Newport Beach Water
Quality Ordinance consistent with the MS4 Permit.
111. 4.3.2 -14. Whenever possible, divert runoff through planted areas or
sumps that recharge the groundwater dry wells and use the natural filtration
properties of the earth to prevent the transport of harmful materials directly
into resreatienat receiving waters.
112. 4.3.2 -23. Require new development applications to include a Water
Quality Management Plan (WQMP). The WQMP's purpose is to minimize to
the maximum extent practicable dry weather runoff, and runoff from small
storms (less than 3/4" of rain falling over a 24 -hour period) and the
concentration of pollutants in such runoff during construction and post -
construction from the property.
113. 4.3.3 -1. Qentinue to Develop and implement the Sewer System
Ar aRagement Plan and the Sewer MasteF Dln.4 sewer system management
plans to replace or reline older wastewater lines and upgrade pump
stations.
114. New Policy (Section 4.4.1): Design and site new development to
minimize alterations to sfgnipcant natural landforms, including bluffs,
cliffs and canyons.
115. 4.4.2 -1. Maintain the 35 -foot height limitation in the Shoreline Height
Limitation Zone, as graphically depicted in Man !Suggested Mod 1161.
Page: 35
I�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
116. New Map: Add a graphic depicting the Shoreline Height Limitation Zone.
117. New Policy (Section 4.4.2): Implement the regulation of the
building envelope to preserve public views through the height setback
floor area lot coverage and building bulk regulation of the Zoning Code
in effect as of !date of Commission actionl that limit the building profile
and maximize public view opportunities.
118. New Policy (Section 4.4.2): Prohibit proiections associated with
new development to exceed the top of curb on the bluff side of Ocean
Boulevard. Exceptions for minor projections may be granted for
chimneys and vents provided the heiqht of such proiections is limited to
the minimum height necessary to comply with the Uniform Building
Code.
119. Section 4.4.3 Narrative (pages 4 -69 through 4 -70)
4.4.3 GenstaIRI-ift Natural Landform Protection
Newport Beach coastal zone contains a number of distinctive topographic
features. The central and northwestern portions of the City are situated on
a broad mesa that extends southeastwardhoin the San Joaquin Hills
commonly known as Newport Mesa. This upland has been deeply
dissected by stream erosion resulting in moderate to steep bluffs along
the Upper Newport Bay estuary, one of the most striking and biologically
diverse natural features in Oranqe County. The nearly flat - topped mesa
rises from about 50 to 75 feet above mean sea level at the northern end of
the estuary in the Santa Ana Heights area to about 100 feet above sea level
in the Newport Heights, Westcliff, and Eastbluff areas.
Alonq the southwestern margin of the City, sediments flowinq from the
Santa Ana River and San Diego Creek, the two major drainage courses that
modified during the last century in order to deepen channels for navigation
and form habitable islands. Balboa Peninsula, a barrier beach that protects
the bay, was once the site of extensive low sand dunes.
In the southern part of the City, the San Joaquin Hills rise abruptly from the
sea, separated from the present shoreline by a relatively flat narrow shelf.
Originally formed by wave abrasion this platform (also called a terrace) is
now elevated well above the water and is bounded by steep bluffs alonq
the shoreline The coastal platform occupied by Corona Del Mar ranges
from about 95 to 100 feet above sea level.
Page: 36
NPB- MAJ -1 -04
City of Newport Beach LUP Update
The bluffs, cliffs, hillsides, canyons, and other significant natural landforms
are an important part of the scenic and visual qualities of the coastal zone
and are to be protected as a resource of public importance.
Coastal Bluffs
Coastal bluffs are formed by a rapid uplift of the shore relative to sea level.
Coastal bluffs are dynamic, evolving landforms. Coastal bluffs can be
impacted by processes at both the bottom and top of the cliffs. Pounding
by waves during high tide and storm surges can undercut the base and
lead to eventual collapse of the bluff. Bluffs are also shaped by wind,
surface runoff, and -ground water erosion (see Sections 2.8.3, 2.8.5, and
2.8.6 .
Coastal bluffs are a prominent landform in Newport Beach. There are ocean
facing coastal bluffs along the shoreline of Corona del Mar, Shorecliffs, and
Cameo Shores. There are also coastal bluffs facing the wetlands of Upper
Newport Bay, Semeniuk Slough, and the degraded wetlands of the Banning
Ranch property. Finally, there are coastal bluffs surrounding Lower Newport Bay.
These can be seen along Coast Highway from the Semeniuk Slough to Dover
Drive and in Corona del Mar above the Harbor Entrance. These bluffs faced the
open ocean before the Balboa Peninsula formed and are now generally
separated from the shoreline. Coastal bluffs are considered significant scenic
and environmental resources and are to be protected.
Most of the coastal bluff top lands have been subdivided and developed over the
years. However, many have been preserved as parkland and other open space.
Also, most of the faces of the coastal bluff surrounding the Upper Newport Bay
have been protected by dedication to the Upper Newport Bay Nature Preserve or
dedicated as open space as part of the Castaways, Eastbluff, Park Newport,
Newporter North (Harbor Cove), and Bavview Landing planned residential
developments. In other areas, including Newpert Height Gliff Haver !Nine
Tercaee, Dover Shores, Corona del Mar, Shorecliffs, and Cameo Shores, the
coastal bluffs fall within conventional residential subdivisions. Development on
these lots occurs mainly on a lot -by -lot basis. As a result, some coastal bluffs
remain pristine and others are physically or visually obliterated by structures,
landform alteration or landscaping.
PelicreS- FegaFdbRg Goastal bluffs need t.... al%.. diSt'RGti en beh..&en a .,hefe
the Gnp.,;tal bluff is esSeRt,.l„ly alteFed aR those in developed u i.as where the
peastal bluff ' h 'as been altered. Development restrictions, including setbacks,
must be established to ensure -geologic stability while addressing current
patterns of development. Where the bluff is subject to marine erosion,
development on bluff top lots must be set back at least 25 feet from the
bluff edqe. On bluff top lots where the bluff is not subject to marine
erosion, the setback from the bluff edge should be based on the
Page: 37
l°—
NPB- MAJ -1 -04
City of Newport Beach LUP Update
predominant line of existing development along the bluff edge in each
neighborhood. These bluff edge setbacks may be increased to maintain
sufficient distance to ensure stability, ensure that it will not be endangered
by erosion, and to avoid the need for protective devices during the
economic life of the structure (75 years).
In areas with unaltered ^ astal bluffs, dDevelopment on the bluff face should -be
is generally prohibited, with exceptions for certain public improvements or
private improvements determined to be consistent with the predominant
line of development., and development of bluff top should be Gonkelled. I '
areas where the i^voc.rnl bluff has heen -altered, development on th ch-1 vff m f1aG c
Ark-
Corona del Mar is one of the few areas in the coastal zone where there is
extensive development of the bluff face: specifically, residential
development on Avocado Avenue, Pacific Drive, Carnation Avenue, and
Ocean Boulevard. The initial subdivision and development of these areas
occurred prior to the adoption of policies and regulations intended to
protect coastal bluffs and other landforms. Development in these areas is
allowed to continue on the bluff face to be consistent with the existing
development pattern and to protect coastal views from the bluff top.
However, development on the bluff face is controlled to minimize further
alteration.
The bluffs along Bayside Drive were at one time exposed to the Lower Newport
Bay. However, these bluffs separated from the shoreline when abutting tidelands
were filled and reclaimed in the 1920s and later developed into the communities
of Promontory Bay, Beacon Bay, and Bayside. Later development of Irvine
Terrace and Promontory Point cut and filled these bluffs_
Development in these areas is subject to setbacks established for bluffs
not subiect to marine erosion.
Coastal Canyons
There are three significant canyons in the coastal zone, Bjg Canyon, Buck
Gully, and Morning Canyon. The steep slopes and vegetation of these
canyons are distinctive features on the shoreline of the ocean and bay. Biq
Canyon is protected as a nature park. However, Buck Gully and Morning
Canyon are under private ownership and there is extensive residential
development on the slopes of both canyons. Therefore, any effort to
protect and enhance the visual quality of these cannons will require the
cooperation of the property owners.
Page: 38
43
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Other Landforms
Some of the edges of Newport Mesa and the San Joaquin Hills are located
a considerable distance from the shoreline, but are still highly visible from
public view points, roadways, or the water. These areas include the slopes
and non - coastal bluffs of Newport Heights and Corona del Mar. These
areas have moderate to steep slopes, accentuated in places by gullies,
ravines, and rock outcroppings. In order to protect the overall visual
quality of the coastal zone, new development in these areas need to be
sited and designed to minimize the alteration of natural land forms and to
be visually compatible with the character of surrounding areas.
120. 4.4.3 -1. in arpRswhpm ,tie , .,rt.,i hl ff rpmaiRs essentially
aaaliefed; -F equire new develegmeat planned communities to dedicate or
preserve as open space the coastal bluff face and an area inland from the
edge of the coastal bluff adequate to provide safe public access and to avoid
or minimize visual impacts.
121. 4.4.3 -2. In areas where the reastal bluff remains essentially
un"'vr, lteFedT Rfequire all new development located on a bluff top to be set back
from the bluff edge a sufficient distance to ensure stability, ensure that it will
not be endangered by erosion, and to avoid the need for protective devices
during the economic life of the structure (75 years). Such setbacks must
take into consideration expected long -term bluff retreat over the next 75
years, as well as slope stability. To assure stability, the development
must maintain a minimum factor of safetv of 1.5 against landsliding for
the economic life of the structure.
122. 4.4.3 -3. ,R afP. ..,hem Ih,, .ea-Mal bluff FprnaiRs SRti ,u.,
unaltefed; PPprohibit development on bluff faces, except private development
on coastal bluff faces along Ocean Boulevard and Carnation Avenue in
Corona del Mar determined to be consistent with the predominant line
of existing development or public improvements providing public access,
protecting coastal resources, or providing for public safety. Permit such
improvements only when no feasible alternative exists and when designed
and constructed to minimize alteration of the bluff face, to not contribute to
further erosion of the bluff face, and to be visually compatible with the
surrounding area to the maximum extent feasible.
123. 4.4.3 -4 In „ ,he.e the Gea6tal hi ,# has been a teFed establish
ctn,nt, . s based on the
Page: 39
�i
NPB- MAJ -1 -04
City of Newport Beach LUP Update
124. 4.4.3-5. IR areas WheFe the eengtal bli-ff hac; been altered, des'944
pement (2.5A slope), unless the applieatien Gf this PC)!iGy WOYI
reasonable eeonnmin usp F)f the property. i
125. 4.4.3 -6. The cGoastal bluffs de RGt inGlude blu along Bayside Drive
that have been cut and filled by the Irvine Terrace and Promontory Point
development and are no longer subject to marine erosion. New
development on these bluffs is subject to the setback restrictions
established for blufftop development located on a bluff not subject to
marine erosion.
126. 4.4.3 -8. Employ site design and construction techniques to minimize
alteration of coastal bluffs to the maximum extent feasible, such as:
A. Siting new development on the flattest area of the site,
except when an alternative location is more protective of coastal
resources.
B. Utilizing existing driveways and building pads to the
maximum extent feasible.
C. Clustering building sites.
D. Shared use of driveways.
E. Designing buildings to conform to the natural contours of the
site, and arranging driveways and patio areas to be compatible
with the slopes and building design.
F. Utilizing special foundations, such as stepped, split level, or
cantilever designs.
G. Detaching parts of the development, such as a garage from
a dwelling unit.
H. Requiring any altered slopes to blend into the natural
contours of the site.
127. New Policy (Section 4.4.3): Require all new blufftop development
located on a bluff subject to marine erosion to be set back at least 25
feet from the bluff edge. This requirement shall apply to the principal
structure and major accessory structures such as guesthouses and
Page: 40
l5
NPB- MAJ -1 -04
City of Newport Beach LUP Update
pools. The setback shall be increased where necessary to ensure
safety and stability of the development.
128. New Policy (Section 4.4.3): Require all new blufftop development
located on a bluff not subject to marine erosion to be setback from the
bluff edge in accordance with the predominant line of existing
development in the subject area. This requirement shall apply to the
principal structure and maior accessory structures such as
_guesthouses and pools. The setback shall be increased where
necessary to ensure safes and stability of the development.
129. New Policy (Section 4.4.3): On bluffs subject to marine erosion,
require new accessory structures such as decks, patios and walkways
that do not require structural foundations to be sited at least 10 feet
from the bluff edge. Require accessory structures to be removed or
relocated landward when threatened by erosion, instability or other
hazards.
130. New Policy (Section 4.4.3): On bluffs not subject to marine erosion,
require new accessory structures such as decks, patios and walkways
that do not require structural foundations, to be set back from the bluff
edge in accordance with the predominant line of existing accessory
development. Require accessory structures to be removed or relocated
landward when threatened by erosion, instability or other hazards.
131. New Policy (Section 4.4.3): Where principal structures exist on
coastal bluff faces along Ocean Boulevard and Carnation Avenue in
Corona del Mar, require all new development to be sited in accordance
with the predominant line of existing development In order to protect
Public coastal views. Establish a predominant line of development for
both principle structures and accessory improvements. The setback
shall be increased where necessary to ensure safety and stability of the
development.
132. New Policy (Section 4.4.3) Maintain approved bluff edge setbacks for
the coastal bluffs within the planned communities of Castaways.
Eastbluff, Park Newport, Newporter North (Harbor Cove), and Bayview
Landing to ensure the preservation of scenic resources and geologic
stability.
133. New Policy (Section 4.4.3): Require swimming Pools located on bluff
properties to incorporate leak prevention and detection measures.
134. New Policy (Section 4.4.3) Establish canyon development setbacks
based on the predominant line of existing development for Buck Gully
Page: 41
I (O
NPB- MAJ -1 -04
City of Newport Beach LUP Update
and Morning Canyon. Do not permit development to extend beyond the
predominant line of existinq development by establishing a
development stringline where a line is drawn between nearest adjacent
corners of existing structures on either side of the subject property.
Establish development strincLnes for principle structures and
accessory improvements.
135. Add note at end of Section 4.4.3: Note: See Sections 2.8.6 and 2.8.7
for technical submittal requirements on beach, bluff and canyon
properties.
136. 4.4.4 -5. Prohibit new billboards and roof
top signs and regulate the bulk and height of other of# site freestandib
signs that affect public coastal views. Heritage signs are not subject to
this restriction.
137. 4.5.1 -2. Require a qualified paleontologist/archeologist to monitor all
grading and /or excavation where there is a potential to affect cultural or
paleontological resources. If grading operations or excavations uncover
paleontological /archaeological resources, require the
paleontologist/archeologist monitor to suspend all development activity to
avoid destruction of resources until a determination can be made as to the
significance of the paleontological / archaeological resources. If fG11Rd to hp,
SigRifiGant Fequim the site(s) to be ed for a FeaSGRable period of time
considered may range from in -situ preservation to recovery and /or
relocation. Mitigation plans shall include a good faith effort to avoid
impacts to cultural resources through methods such as, but not limited
to, proiect redesign, in situ preservation /capping, and placing cultural
resource areas in open space.
138. 4.5.1 -4. Where in situ preservation and avoidance are not
feasible, Rrequire new development to donate scientifically valuable
paleontological or archaeological materials to a responsible public or private
institution with a suitable repository, located within Orange County, whenever
possible.
139. New Policy (Section 4.5.1): Where there is a potential to affect cultural
or paleontological resources, require the submittal of an
archeological /cultural resources monitoring plan that identifies
monitoring methods and describes the procedures for selecting
archeological and Native American monitors and procedures that will be
followed if additional or unexpected archeological /cultural resources
are encountered durinq development of the site. Procedures may
Page: 42
41
NPB- MAJ -1 -04
City of Newport Beach LUP Update
include, but are not limited to, provisions for cessation of all -grading
and construction activities in the area of the discovery that has any
Potential to uncover or otherwise disturb cultural deposits in the area of
the discovery and all construction that may foreclose mitigation options
to allow for significance testing, additional investigation and mitigation.
140. Insert new section 4.6 (Environmental Review)
4.6 Environmental Review
The protection of coastal resources and protection from coastal
hazards requires that applications for new development undergo
appropriate environmental review. In most cases, the City conducts
this review through implementation of the California Environmental
Quality Act.
To ensure consistencv with the resource protection policies of the
Coastal Land Use Plan, applications for new development subject to
coastal development permit requirements will be reviewed by
qualified City staff, contracted employee%onsultant and /or advisory
committee in accordance with the CEQA requirements, as well as
those contained in the Local Coastal Program.
Policies:
4.6 -1. Review all new development subject to California Environmental
Quality Act (CEQA) and coastal development permit requirements in
accordance with the principles, oblectives, and criteria contained in
CEQA, the State CEQA Guidelines, the Local Coastal Program, and
any environmental review guidelines adopted by the City.
4.6 -2. Integrate CEQA procedures into the review procedures for new
development within the coastal zone.
Page: 43
qK
NPB- MAJ -1 -04
City of Newport Beach LUP Update
4.6 -3. Reauire a aualified Citv staff member, advisory committee
desi nated by the City, or consultant approved by and under the
supervision of the City, to review all environmental review
documents submitted as part of an application for new development
and provide recommendations to the appropriate decision - making
official or body.
4.6 -4. Require the City staff member(s) and /or contracted employee(s)
responsible for reviewing site specific surveys and analyses to have
technical expertise in biological resources, as appropriate for the
resource issues of concern (e.g. marine%oastal, wetland /riparian
protection and restoration, upland habitats and connectivity) and be
knowledgeable about the City of Newport Beach.
4.6 -5. Where development is proposed within or adjacent to ESHA
wetlands or other sensitive resources, require the City staff
member(s) and /or contracted employee(s) to consider the individual
and cumulative impacts of the development, define the least
environmentally damaging alternative, and recommend
modifications or mitigation measures to avoid or minimize impacts.
The OW may impose a fee on applicants to recover the cost of
review of a proposed proiect when required by this policy.
4.6 -6. Where development is proposed within or adjacent to ESHA
wetlands or other sensitive resources, require the City staff
member(s)and /or contracted employee(s) to include the following in
anV recommendations of approval. an identification of the preferred
proiect alternative, required modifications, or mitigation measures
necessary to ensure conformance with the Coastal Land Use Plan.
The decision making body (Planning Director, Plannin Commission,
or City Council) shall make findings relative to the project's
conformance to the recommendations of the Citv staff member(s)
and /or contracted employee(s).
4.6 -7. Require City staff member(s) and /or contracted employee(s) to make
a recommendation to the decision making body as to whether an
area constitutes an ESHA, and if recommended as an ESHA, then
establish the boundaries thereof and appropriate buffers.
4.6 -8. Coordinate with the California Department of Fish and Game, U.S.
Fish and Wildlife Service, National Marine Fisheries Service, and
other resource management agencies, as applicable, in the review of
development applications in order to ensure that impacts to ESHA
and marine resources, including rare, threatened, or endangered
Page: 44
yl
NPB- MAJ -1 -04
City of Newport Beach LUP Update
species, are avoided or minimized such that ESHA is not
significantly degraded, habitat values are not significantly disrupted,
and the biological productivity and quality of coastal waters is
preserved.
4.6 -9. Require applications for new development, where applicable, to
include a geologic/soils/geotechnical study that identifies any
geologic hazards affecting the proposed project site, any necessary
mitigation measures, and contains statements that the project site is
suitable for the proposed development and that the development will
be safe from geologic hazard for its economic life. For development
on coastal bluffs, including bluffs facing Upper Newport Bay, such
reports shall include slope stability analyses and estimates of the
long -term average bluff retreat rate over the expected life of the
development. Reports are to be signed by an appropriately licensed
professional and subject to review and approval by qualified city
staffmember(s) and /or contracted employee(s).
CHAPTER 5 (GLOSSARY)
141. New Definition: Appealable Development: After certification of the
Newport Beach Local Coastal Program, an action taken by the Citv of
Newport Beach on a coastal development permit application may be
appealed to the Coastal Commission for only the following tvpes of
developments:
(1) Developments approved by the City between the sea and the first
public road paralleling the sea or within 300 feet of the inland extent of
any beach or of the mean high tide line of the sea where there is no
beach, whichever is the -greater distance.
(2) Developments approved by the City not included within paragraph
(1) that are located on tidelands, submerged lands, public trust lands,
within 100 feet of any wetland, estuary, or stream, within 300 feet of the
top of the seaward face of any coastal bluff.
(3) Developments approved by the City not included within paragraph
(1) or (2) that are located in a sensitive coastal resource area.
(4) Any development approved by a coastal county that is not
designated as the principal permitted use under the zoning ordinance or
zoning district map approved pursuant to Chapter 6 (commencing with
Section 30500 of the Coastal Act).
Page: 45
5O
NPB- MAJ -1 -04
City of Newport Beach LUP Update
(5) And development which constitutes a major public works proiect or
a maior energy facility.
142. Bluff: ^ sGarp er steep f ef. rL p. vved ra Gk eT- t of soil s ltino from o n fa If'o or fold'., of the Land mass with 10 feet or
more iR vertsa exte; . A high bank or bold headland with a broad,
precipitous, sometimes rounded cliff face overlooking a plain or body of
water. A bluff may consist of a steep cliff face below and a more
sloping upper bluff above.
143. Bluff, Coastal: A bluff overlooking a beach or shoreline or that is subject
to marine erosion. Many coastal bluffs consist of a gently sloping upper
bluff and a steeper lower bluff or sea cliff. The term "coastal bluff"
refers to the entire slope between a marine terrace or upland area and
the sea. The term "sea cliff refers to the lower near vertical portion of
a coastal bluff. For purposes of establishing jurisdictional and permit
boundaries coastal bluffs include, (1) those bluffs, the toe of which is now or
was historically (generally within the last 200 years) subject to marine erosion;
and (2) those bluffs, the toe of which is not now or was not historically subject
to marine erosion, but the toe of which lies within an area otherwise identified
as an Appealable Area.
144. Bluff Edge: The upper termination of a bluff, cliff, or seacliff: In cases
where the top edge of the GW bluff is rounded away from the face of the cliff
bluff as a result of erosional processes related to the presence of the steep
GW bluff face, the bluff line or edge shall be defined as that point nearest the
GW bluff beyond which the downward gradient of the surface increases more
or less continuously until it reaches the general gradient of the GW bluff. In a
case where there is a steplike feature at the top of the GW bluff face, the
landward edge of the topmost riser shall be taken to be the GW bluff edge.
Bluff edges typically retreat landward due to coastal erosion, landslides,
development of gullies, or by gradin (cut). In areas where the bluff top
or bluff face has been cut or notched by grading, the bluff edge shall be
the landwardmost position of either the current of historic bluff edge. In
areas where fill has been placed near or over the historic bluff edge, the
original natural bluff edge, even if buried beneath fill, shall be taken to
be the bluff edge.
145. BMPs: Best Management Practices. Schedules of activities,
prohibitions of practices operation and maintenance Procedures, and
other management practices to prevent or reduce the conveyance of
Pollution in stormwater and urban runoff, as well as, treatment
requirements and structural treatment devices designed to do the same.
146. New Definition: Buffer. A buffer is a development setback that
Provides essential open space between development and protected
Page: 46
5 1
NPB- MAJ -1 -04
City of Newport Beach LUP Update
habitat. Buffers keep disturbance at a distance, accommodate errors in
the estimation of habitat boundaries, and provide important auxiliary
habitat that may be used, for example, for foraging, maintenance of
pollinators, or refuge from high tides. Buffers should be measured from
the delineated boundary of an ESHA or wetland or, for streams, from the
top of bank or the landward edge of riparian vegetation, which ever
provides the larger buffer.
147. New Definition: Canyon Edge: The upper termination of a canyon: In
cases where the top edge of the canyon is rounded away from the face
of the canyon as a result of erosional processes related to the presence
of the canyon face, the canyon edge shall be defined as that point
nearest the canyon beyond which the downward _gradient of the surface
increases more or less continuously until it reaches the general
-gradient of the canyon. In a case where there is a steplike feature at the
top of the canyon face, the landward edge of the topmost riser shall be
taken to be the canyon edge.
14& New Definition: Cliff- A high, very steep to perpendicular or
overhanging face of rock.
149. New Definition: Demolition: The deliberate removal or destruction of
the frame or foundation of any portion of a building or structure for the
purpose of preparing the site for new construction or other use.
150. Ephemeral: Short lived (i a e.g.. an ephemeral stream only flows
immediately after rainfaln.
151. ESA: Environmental study area. RelativelV large, undeveloped areas
containing natural habitats and may be capable of supporting sensitive
biological resources.
152.
:rme■ s��sssa.
153. Exclusion Area: That portion of the coastal zone within an exclusion area
boundary adopted pursuant to the Coastal Act and approved by the Coastal
Commission after the effective date of the delegation of development
review authority and depicted on the certified Permit and Appeal
Jurisdiction Map. Development within this area is excluded from coastal
development permit requirements if certain criteria identified in the
adopted exclusion are met.
Page: 47
ba
NPB- MAJ -1 -04
City of Newport Beach LUP Update
154. New Definition: First Public Road Paralleling the Sea -- shall mean
that road nearest the sea, as defined in this Section and which meets all
of the following criteria:
1. The road is lawfully open and suitable for uninterrupted use by the
public;
2. The road is maintained by a public agency;
3. The road contains an improved all- weather surface open to motor
vehicle traffic in at least one direction:
4. The road is not subject to any restrictions on use by the public
except during an emergency or for military purposes; and
5. The road connects with other public roads providing a continuous
access system and generally parallels and follows the shoreline of
the sea so as to include all portions of the sea where the physical
features such as bays, lagoons, estuaries and wetlands cause the
waters of the sea to extend landward of the generally continuous
coastline.
155. Groin: A. MrunfiMrp that exteREIG .. ...
to the nhn el'n RtA tid;4I waters, intended f trap d retain .i/ d ire the
shoreline protection structure built, usually perpendicular to the
shoreline, to trap nearshore sediment or retard erosion of the shore A
series of _groins acting together to protect a section of beach is known
as a -groin system or -groin field.
156. Habitat: The locality, including the physical and biological
environment, in which a plant or animal lives.
157. Local Coastal Program: A local government's (a) land use plans, (b)
zoning ordinances, (c) zoning district maps, and (d) within sensitive coastal
resources areas, other implementing actions, which, when taken together,
meet the requirements of, and implement the provisions and policies of, this
divisiea the Coastal Act at the local level.
158. Monitoring: Systematic collection of physical, biological, or economic data
or a combination of these data OR a hewc : ^.,,,. ighme ^t pFejeGt in order to
make decisions regarding project operation or to evaluate project
performance. Monitoring is typically required for beach nourishment
projects and habitat restoration proiects.
63
NPB- MAJ -1 -04
City of Newport Beach LUP Update
159. New Definition: Non - conforming structure: A structure that was
lawfully erected, but which does not conform with the propert y
development regulations prescribed in the regulations for the district in
which the structure is located by reason of adoption or amendment of
this code or by reason of annexation of territory to the City.
160. New Definition: Non - conforming use: A use of a structure or land
that was lawfully established and maintained, but which does not
conform with the use regulations or required conditions for the district
in which it is located by reason of adoption or amendment of this code
or by reason of annexation of territory to the City.
161. New Definition: Predominant Line of Development: The most
common or representative distance from a specified group of structures
to a specified point or line (e.g. topographic line or geographic feature).
For example, the predominant line of development for a block of homes
on a coastal bluff (a specified _group of structures) could be determined
by calculating the median distance (a representative distance) these
structures are from the bluff edge (a specified line).
162. New Definition: Sea cliff. A vertical or very steep cliff or slope
produced by wave erosion, situated at the seaward edge of the coast or
the landward side of the wave -cut platform, and marking the inner limit
of beach erosion.
163. Scarp (Beach Scarp): An almost vertical slope along the beach caused by
wave erosion. It may vary in height from a few inches to several feet
P-MiFROt8F6 to a Fnete or more, depending on wave action and the nature
and composition of the beach.
164. New Definition: Stream: A topographic feature that at least
periodically conveys water through a bed or channel having banks.
This includes watercourses having a surface or subsurface flow that
supports or has supported riparian vegetation.
165. Tidal Epoch (National Tidal Datum Epoch): The specific 19 -year period
adopted by the National Ocean Service as the official time segment over
which tide observations are taken and averaged to form tidal datums, such
as Mean Lower Low Water. The 19 -year period includes an 18.6 year
astronomical cycle that accounts for all significant variations in the
moon and sun that cause slowly varying changes in the range of tides.
A calendar day is 24 hours and a "tidal day" is approximately 24.84
hours. Due to the variation between calendar day and tidal day, it takes
19 years for these two time cycles to establish a repeatable pattern.
Thus, if the moon is full today, then the moon will be full again on this
Page: 49
SA
NPB- MAJ -1 -04
City of Newport Beach LUP Update
day of the year 19 years from today. The present tidal epoch used is i 960
through i 0 -1983-2001.
166. New Definition: TMDL (Total Maximum Daily Load): The maximum
amount of a pollutant that can be discharged into a water body from all
sources (point and non - point) and still maintain water quality standards.
Under Clean WaterAct section 303(d) TMDLs must be developed for all
water bodies that do not meet water quality standards after application
of technology -based controls. TMDL also refers to the written
quantitative analysis and plan for attaining and maintaining water
quality standards in all seasons for a specific waterbody and pollutant
When incorporating the suggested modifications into the Coastal Land Use Plan,
inconsistencies may arise between the text of the narrative and the revised policies.
Descriptive narrative no longer consistent with the policies will need to be revised by the
City to conform the narrative to any associated policy that has been revised through
suggested modifications as part of the submission of the final document for certification
pursuant to Sections 13544 and 13544.5 of the California Code of Regulations.
Narrative is intended only as background and shall not be considered policy. Language
clearly labeled under "Policy(ies)" within each section shall control.
The addition of new policies or the deletion of policies (as submitted) will affect the
numbering of subsequent LUP policies when the City of Newport Beach publishes the
final LUP incorporating the Commission's suggested modifications. This staff report will
not make revisions to the policy numbers. The City will make modifications to the
numbering system when it prepares the final LUP for submission to the Commission for
certification pursuant to Sections 13544 and 13544.5 of the California Code of
Regulations.
The City will also make non - substantive changes to the maps where necessary to
provide updated information and greater clarification. These changes may include the
insertion of map titles /numbers, identification of new parks and recreational facilities,
and use of a new detailed shoreline layer.
Page: 50
55
NPB- MAJ -1 -04
City of Newport Beach LUP Update
VI. FINDINGS FOR DENIAL OF CERTIFICATION OF THE CITY OF
NEWPORT BEACH LAND USE PLAN AMENDMENT, AS
SUBMITTED, AND FINDINGS FOR APPROVAL OF THE CITY OF
NEWPORT BEACH LAND USE PLAN AMENDMENT, IF MODIFIED
AS SUGGESTED
A. Amendment Description
The proposed submittal consists of a comprehensive update of the City's currently
certified Land Use Plan (LUP). All sections of the LUP have been substantially
modified, including those related to coastal resources, public access and land use. The
updated document is more detailed in each issue area, providing additional background
in the narratives and a greater number of policies. The updated LUP is also more
reflective of current conditions, as well as of coastal resource concerns, such as water
quality, shoreline erosion and habitat protection.
B. Findings for Denial
Coastal Resources
Chapter 4 (Coastal Resource Protection) of the City's proposed LUP addresses issues
related to the protection of biological, scenic and paleontological resources. Policy
areas of particular concern are those involving environmentally sensitive habitat area
(ESHA), coastal bluffs and marine resources. Inconsistency with the applicable Coastal
Act policies is discussed below.
ESHA
The Chapter 3 policies most applicable to this planning issue are:
Section 30240.
(a) Environmentally sensitive habitat areas shall be protected against any
significant disruption of habitat values, and only uses dependent on those
resources shall be allowed within those areas.
(b) Development in areas adjacent to environmentally sensitive habitat areas and
parks and recreation areas shall be sited and designed to prevent impacts which
would significantly degrade those areas, and shall be compatible with the
continuance of those habitat and recreation areas.
The Coastal Act requires environmentally sensitive habitat areas (ESHA) to be
protected against significant disruption of habitat values and restricts development
within ESHA to resource dependent uses. Development in areas adjacent to ESHA
Page: 51
NPB- MAJ -1 -04
City of Newport Beach LUP Update
must be sited and designed to prevent impacts that would significantly degrade those
areas and must be compatible with the continuance of those habitat and recreation
areas.
Section 30107.5 defines ESHA as "any area in which plant or animal life or their habitats
are either rare or especially valuable because of their special nature or role in an
ecosystem and which could be easily disturbed or degraded by human activities and
developments."
As development pressures increase, it is critical to protect remaining ESHA through
strong LUP policies. Clear identification of sensitive habitats is necessary to ensure
their continuance. The Commission has previously encouraged the upfront
identification of ESHA as part of the LUP submittal. Wherever possible, it is preferred
that local governments specifically identify areas within the City that are considered
ESHA, including the boundaries of such areas. Providing these details at the time of
LUP submittal can facilitate crafting protections, such as buffers and appropriate land
use designations. Including these standards in the LUP will provide greater
predictability for prospective applicants.
Provisions for subsequent site - specific ESHA identification must also be included at the
time of LUP submittal. Site - specific analysis is necessary to recognize changes over
time. For instance, boundaries of habitat areas can expand and contract. Plant and
wildlife species that were not previously identified in an area can be discovered within or
migrate to areas where they weren't previously known to be. Over time, plant and
animal species and /or their habitats can become more rare, can be found to have a
special role not previously known, or be found to be more easily disturbed than
previously known and thus would need to be designated ESHA. Adequate checks and
balances and scientific objectivity need to be included in procedures for identification of
ESHA.
As submitted, the City's LUP fails to specifically identify ESHA within the City. Instead,
the City proposes a method for ESHA identification that occurs at the time development
is proposed.
There is descriptive narrative which preludes the ESHA policies in the proposed LUP.
The narrative is important in this LUP because it provides context for the policies that
follow it and would guide interpretation of those policies. Thus, omissions and nuances
in the narrative could lead to missed ESHA designations and impacts to ESHA that
would be inconsistent with the Coastal Act. For instance, the LUP narrative provides a
list of attributes that need to be taken into consideration when determining whether a
habitat area is an environmentally sensitive habitat area (ESHA). Policy 4.1.1 -1
provides the definition of ESHA and outlines the attributes to be evaluated in making an
ESHA determination, mirroring the narrative. The list of attributes is not comprehensive
or sufficiently detailed. The list omits factors that the Commission would typically use to
identify ESHA. In other instances, the factor listed misses a detail that is crucial in
applying that element as a determining factor in the ESHA designation. For instance,
Page: 52
)
NPB- MAJ -1 -04
City of Newport Beach LUP Update
the LUP states that the presence of a natural community on the CDFG CNDDB list is an
attribute that can qualify an area as ESHA. The CNDDB is a broad list of habitats that
are present in California, only some of which are rare. The identification of a natural
community on the CNDDB list alone is not enough. Rather, a notation on that list that
the community is 'rare' is more telling that the community could qualify as ESHA.
Conversely, and as stated in CDFG materials regarding the CNDDB, that list is not an
exhaustive and comprehensive inventory of all rare species and natural communities
statewide. Thus, other evidence of rarity needs to be considered.
In addition, the presence or potential presence of species that are not listed under State
or federal law, but for which there is compelling evidence of rarity, must be included.
Otherwise a species that is considered rare by the California Native Plant Society'
(CNPS) or another entity would not be properly protected under the policies of the LUP
as submitted. In addition, a species that is widespread regionally, but locally rare, may
not be designated on a state or federal list and would not be properly protected. When
determining whether a habitat area is ESHA, the ecosystem functions of a species or
habitat must also be considered. As provided for in Section 30107.5 of the Coastal Act,
ESHA includes species or habitats that are rare or especially valuable because of their
special nature or role in an ecosystem and could be easily disturbed.
The narrative discusses "habitat integrity /connectivity." Integrity attributes are listed.
Although the list is a useful starting point, it lacks detail and supporting examples which
are important to assure the attribute isn't misapplied. One attribute of habitat integrity
listed is presence of invasive /non- native vegetation. The mere presence of invasive or
non - native vegetation should not be a primary consideration. Habitats can exist and
thrive in the presence of non - native plants. Only where exotic species are so
overwhelmingly dominant that the native community can no longer perform its functions
in the ecosystem should the presence of exotic species rebut the presumption of ESHA.
Policy 4.1.1 -2 requires a survey and analysis be submitted when development would
occur within or adjacent to areas identified as potential ESHA. Not enough has been
done to clearly identify potential ESHA sites within the City. These omissions in ESHA
designation could result in projects being proposed in, or adjacent to, areas that are
ESHA, but have not been identified as such at the time development is proposed. A
failure to identify ESHA could lead to possible adverse impacts to ESHA, inconsistent
with Section 30240 of the Coastal Act.
Procedurally, the LUP allows a qualified biologist to make the determination that a
habitat area does or does not meet the definition of ESHA. If a determination is made
that an area is not ESHA, the LUP states that the habitat area does not warrant the
special land use and development restrictions of Section 30240 of the Coastal Act.
Once the LUP is certified, the standard of review for such determinations will be the
Land Use Plan, not the Coastal Act. Although the information gathered by a qualified
CNPS is a non - profit organization dedicated to the preservation of California native flora. CNPS and the
CA Dept. of Fish and Game have a cooperative agreement through an MOU in which CNPS provides
native plant training to CFG staff.
Page: 53
M
NPB- MAJ -1 -04
City of Newport Beach LUP Update
biologist should be utilized to designate ESHA; it is not the biologist that should make
such a determination. The biologist should make a recommendation, but not that actual
determination. As will be discussed in more detail below, it is the decision - making body
that should evaluate the quantitative data gathered as well as any analyses provided
when determining whether a site contains ESHA.
The LUP does not list specific habitat types that should be considered ESHA. Nor does
the LUP identify the location or geographic boundaries of ESHA. Instead the LUP uses
the designation of Environmental Study Areas (ESAs) to distinguish potentially sensitive
areas. The boundaries of the ESAs are broad and include areas that would not
constitute ESHA. As currently drawn, the ESA boundaries are too rough and overly
inclusive to be used to depict the boundaries of ESHA. In addition, the ESAs do not
accurately incorporate other areas within the City known as a result of prior Commission
actions to contain ESHA (e.g. Bayview Landing). More upfront specificity is required to
inform both the applicant property owner and the decision - making body of the potential
existence of ESHA before the site - specific analysis gets underway. Specific habitat
types that could qualify as ESHA must be identified, and the potential location of these
habitats must at least be preliminarily delineated. That way the owner is fully aware of
the potential for sensitive resources when considering development. Also, the
reviewing party at the local government will be better able to identify when a site
requires more detailed analyses by a qualified professional.
The LUP does not specify how projects involving biological resources, including
potential ESHA, will be reviewed. The policies do not outline who will be reviewing such
projects, what their qualifications are, and how a project recommendation will be
developed. Policy 4.1.1 -2 simply states that a site - specific survey and analysis
prepared by a qualified biologist must be submitted as a filing requirement. No further
detail is provided. Without such detail, the LUP could be interpreted as deferring the
decision as to whether there is ESHA present to the applicant's biologist, rather than to
the decision making body. In order to properly determine the resource impacts of a
project, how those impacts are treated by the resource protection policies, alternatives
and /or mitigation measures that could limit the impacts, etc., the site - specific surveys
and analyses must be reviewed by a qualified City staff member and /or contracted
employee with technical expertise in biological resources. A recommendation can then
be made by the staff /contract employee after consideration of the site specific data,
potential impacts, alternatives, project modifications and mitigation measures if
necessary.
The takings language of Policy 4.1.1 -5 is inconsistent in this context because it
addresses a property rights issue rather than an environmental protection issue. The
issue of takings is not limited to development involving ESHA. The potential for
otherwise- appropriate regulation to affect a takings must be considered in other
circumstances as well, including in the context of projects that involve development in
hazardous areas and those that impact public access. A takings caveat can be added
in a separate, more universal, section of the document.
Page: 54
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Policies regarding development adjacent to ESHA are lacking. No specific controls
have been established to minimize impacts to ESHA resulting from adjacent
development, and buffer requirements have not been provided. Buffer areas must be
established to provide a transition between development and sensitive resources to
ensure the protection of the latter. Policy 4.1.1 -8 requires "buffers of sufficient size to
ensure the protection of ESHAs. " Although this is favorable, more specificity is
necessary to assure that buffers of sufficiently protective sizes are established. For
example, there are certain types of ESHA known to be present in the City (e.g. coastal
sage scrub and coastal bluff scrub) that require at least 20 to 50 foot buffers to minimize
disturbance to the habitat. Therefore, the LUP must provide standards for buffers to
protect sensitive resources.
Such standards must include an identification of allowable uses within buffers. As
submitted, the LUP fails to identify the types of uses that ought to be present within
buffers, those that may be present, and those that should not be present. It must be
made clear what can occur within these transitional buffer areas to prevent degradation
of sensitive habitat areas and to ensure continuance of those habitat areas.
Policy 4.1.1 -6 identifies uses as "resource dependent" that are not sufficiently defined.
If interpreted broadly, certain uses would be allowed in ESHA that clearly would not be
resource dependent. For example, the policy allows "educational, interpretive and
research facilities." This is a very broad description of allowable uses. Such a facility
could constitute a new structure, whereas appropriate resource dependent uses within
ESHA are typically considered less substantial developments, such as trails and
interpretive signs.
Policy 4.1.3 -1 offers general development controls and mitigation requirements for
impacts to Environmental Study Area (ESA) natural habitats. Various portions of the
policy must be revised to more strictly prohibit and eliminate adverse impacts resulting
from development and pedestrian access. For example, it must be made clear that
removal of all unauthorized structures that impact wetlands or other sensitive resources
should be pursued to restore the resource.
Policy 4.1.3 -1 fails to include specific mitigation standards. Mitigation is only discussed
in a general manner as it applies to impacts to ESAs. The policy states that mitigation
is required for impacts to wetlands, but says nothing directly about terrestrial ESHA.
Where impacts to ESHA and other sensitive resources are allowed, mitigation
standards must be established to ensure the resource dependent use does not
significantly disrupt habitat values. Mitigation must be required even for resource
dependent uses. For instance, public trails are typically considered resource
dependent uses, but often require vegetation removal. This vegetation removal must be
offset with mitigation.
Without policies specifically addressing how ESHA will be defined, evaluated and
protected, the LUP cannot be found to meet the requirements of and to be in conformity
with Section 30240 of the Coastal Act and therefore must be denied.
Page: 55
(" 0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Natural Landforms /Coastal Bluffs
The Chapter 3 policies most applicable to this planning issue are:
Section 30253.
New development shall:
(1) Minimize risks to life and property in areas of high geologic, flood, and fire
hazard.
(2) Assure stability and structural integrity, and neither create nor contribute
significantly to erosion, geologic instability, or destruction of the site or
surrounding area or in any way require the construction of protective devices that
would substantially alter natural landforms along bluffs and cliffs.
(3) Be consistent with requirements imposed by an air pollution control district or
the State Air Resources Control Board as to each particular development.
(4) Minimize energy consumption and vehicle miles traveled.
(5) Where appropriate, protect special communities and neighborhoods which,
because of their unique characteristics, are popular visitor destination points for
recreational uses.
Section 30251.
The scenic and visual qualities of coastal areas shall be considered and
protected as a resource of public importance. Permitted development shall be
sited and designed to protect views to and along the ocean and scenic coastal
areas, to minimize the alteration of natural land forms, to be visually compatible
with the character of surrounding areas, and, where feasible, to restore and
enhance visual quality in visually degraded areas. New development in highly
scenic areas such as those designated in the California Coastline Preservation
and Recreation Plan prepared by the Department of Parks and Recreation and
by local government shall be subordinate to the character of its setting.
The LUP proposes a number of polices related to eliminating /reducing the risks
associated with hazards within the City's Coastal Zone. The bulk of these are found in
Section 2.8 (Hazards and Protective Devices). This section deals with hazards such as
storm surges, beach and bluff erosion, landslides and slope failure and wildland fires.
The City has also incorporated many policies that pertain to development of coastal
bluffs in Section 4.4 (Scenic and Visual Resources). The City has established a policy
approach for coastal bluffs that is inconsistent with the hazard avoidance and scenic
resource protection policies of the Coastal Act.
Page: 56
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
To address the varying condition of bluffs throughout Newport Beach, the LUP
characterizes bluffs as either "altered" or "unaltered" and applies different development
standards to each. Where bluffs have not been previously developed and remain in an
"essentially unaltered" condition, Policy 4.4.3 -2 requires development to be set back
from the bluff edge a "sufficient distance" and Policy 4.4.3 -3 prohibits bluff face
development. Where bluffs have been altered, Policy 4.4.3 -4 requires the
establishment of setback lines for principal and accessory structures based on the
predominant line of existing development along the bluff and Policy 4.4.3 -5 requires
development to minimize alteration of those portions of coastal bluffs with slopes in
excess of 20 percent.
The descriptive narrative preceding the proposed LUP policies states that a distinction
must be made between bluffs that have been altered by past grading and those that
have not been significantly graded. The narrative goes on to explain that bluffs in
certain areas have been cut and filled so extensively that such areas resemble
manufactured slopes rather than natural slopes. Despite such grading, these areas are
still recognizable as bluffs, a natural landform. In contrast, an artificial landform is a
topographic feature that did not exist prior to grading or construction activities, such as a
quarry pit excavation, a landfill, a freeway ramp, or a causeway. The Commission
generally has recognized that natural Iandforms may be altered by grading —both cut
and fill —but that they do not cease to be "natural Iandforms" because of such alteration.
Thus, such areas must be subject to LUP provisions regarding natural Iandforms equal
to Sections 30251 and 30253 of the Coastal Act.
The City's approach would result in continued development of bluffs (and possibly
greater degradation) where any type of past alteration has occurred. Additionally, the
policies would be subject to potentially inconsistent interpretation -- particularly if the
history of the site is unknown. Moreover, despite the asserted basis for the distinction,
the City's policy does not distinguish between slopes that were altered so much that
they resemble manufactured slopes and those that were altered less. It only
distinguishes between bluffs that have been altered and those that have not, so that a
bluff with fairly minor alterations gets treated as through it was so altered that it
resembles a manufactured slope. Finally, even if the distinction the City is proposing
was empirically valid, it should not be used to reduce the protections afforded to these
areas as the City proposes. For example, the setback requirements are based primarily
on issues of geologic safety and protection of visual resources, and whether or not a
bluff has been altered, development should still be set back far enough to ensure
stability (4.4.3 -2), and development on the actual bluff face would likely create visual
blight in either case (4.3.3 -3).
Another deficiency of the proposed LUP policies stemming from the creation of a
distinction between development along altered bluffs and development along unaltered
bluffs relates to protective devices. Among other requirements, Section 30253 of the
Coastal Act requires all new development along bluffs and cliffs to be sited and
designed to avoid reliance upon protective devices which would alter natural Iandforms.
However, the proposed LUP policies would require only development along unaltered
Page: 57
6a
NPB- MAJ -1 -04
City of Newport Beach LUP Update
bluffs to be sited with a sufficient setback to avoid erosion hazards and remain stable
without protective devices. The proposed LUP policies establish no setback
requirement to address hazards avoidance if the bluff area is deemed to be "altered." If,
for example, the pattern of development were such that structures were constructed on
the bluff face or too near the bluff edge in an area known to be geologically unstable,
and the area was deemed to be an "altered" coastal bluff, all new development could be
constructed with slope stabilization(biuff protective devices. The Coastal Act prohibits
the construction of protective devices to accommodate new development. Allowing
such development would not "assure stability and structural integrity" of new
development, as required by Section 30253, nor would it be consistent with the
requirement to avoid the construction of protective devices along bluffs and cliffs.
Furthermore, in the event of a landslide, the stabilization system would become
exposed. This would create adverse visual impacts, inconsistent with Section 30251.
Policy 4.4.3 -6 specifies that coastal bluffs do not include bluffs along Bayside Drive that
have been cut and filled by the Irvine Terrace and Promontory Point development and
are no longer subject to marine erosion. This is inconsistent with the definition of
coastal bluff in the California Code of Regulations, as well as in the submitted LUP
glossary. In both definitions, a coastal bluff is identified as such if the toe is now or was
historically (generally within the last 200 years) subject to marine erosion. According to
the City's submittal, the Bayside Drive bluff was historically subject to marine erosion
within the last 200 years; thus, it meets the definition of a coastal bluff.
A number of the City's bluff policies require strengthening or clarification to assure
conformance with Sections 30251 and 30253 of the Coastal Act and the manner in
which the Commission has applied those policies in Newport Beach. For example,
requiring development to be set back a "sufficient distance" does not provide enough
guidance for applicants or the decision - making body. Specific setback policies must be
instituted as a means of limiting the encroachment of development seaward toward the
bluff edge, ensuring geologic stability, and preventing the need for construction of
protective devices and other engineered structures to protect development on bluffs.
The establishment of minimal setbacks is necessary in order to account for uncertainty
in geologic analyses, possible increases in long -term bluff retreat rates (as a result of
sea level rise, for example), and to allow access for remedial action if and when erosion
does threaten structures. Setbacks must be applied to principal development as well as
accessory improvements. New development must also be required to meet a minimum
factor of safety to assure stability.
The LUP lacks detail in regard to technical submittal requirements and project
evaluation for development on coastal bluff lots. Although Section 2.8 offers greater
detail for technical submittal requirements, no cross - reference has been provided.
Policy 4.4.3 -7 specifies that applications must include slope stability analyses and
erosion rate estimates provided by an appropriately licensed professional. Submittals
should also identify mitigation measures and contain an assurance that the proposed
development will be safe from geologic hazard for its economic life. The policy makes
no mention of how new submittals will be reviewed by the City. Not all staff members
Page: 58
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
have expertise in geotechnical matters and key points could be inadvertently missed. A
qualified staff member or contract employee must be responsible for review of technical
submittals.
As submitted, the LUP contains policies that are inconsistent with Sections 30253 and
30251 of the Coastal Act, and therefore must be denied.
Marine Resources
The Chapter 3 policies most applicable to these planning issues are:
Section 30230.
Marine resources shall be maintained, enhanced, and where feasible, restored.
Special protection shall be given to areas and species of special biological or
economic significance. Uses of the marine environment shall be carried out in a
manner that will sustain the biological productivity of coastal waters and that will
maintain healthy populations of all species of marine organisms adequate for
long -term commercial, recreational, scientific, and educational purposes.
Section 30231.
The biological productivity and the quality of coastal waters, streams, wetlands,
estuaries, and lakes appropriate to maintain optimum populations of marine
organisms and for the protection of human health shall be maintained and, where
feasible, restored through, among other means, minimizing adverse effects of
waste water discharges and entrainment, controlling runoff, preventing depletion
of ground water supplies and substantial interference with surface water flow,
encouraging waste water reclamation, maintaining natural vegetation buffer
areas that protect riparian habitats, and minimizing alteration of natural streams.
Section 30232.
Protection against the spillage of crude oil, gas, petroleum products, or
hazardous substances shall be provided in relation to any development or
transportation of such materials. Effective containment and cleanup facilities and
procedures shall be provided for accidental spills that do occur.
Section 30233.
(a) The diking, filling, or dredging of open coastal waters, wetlands, estuaries,
and lakes shall be permitted in accordance with other applicable provisions of
this division, where there is no feasible less environmentally damaging
alternative, and where feasible mitigation measures have been provided to
minimize adverse environmental effects, and shall be limited to the following:
Page: 59
d
NPB- MAJ -1 -04
City of Newport Beach LUP Update
(1) New or expanded port, energy, and coastal- dependent industrial facilities,
including commercial fishing facilities.
(2) Maintaining existing, or restoring previously dredged, depths in existing
navigational channels, turning basins, vessel berthing and mooring areas, and
boat launching ramps.
(3) In wetland areas only, entrance channels for new or expanded boating
facilities; and in a degraded wetland, identified by the Department of Fish and
Game pursuant to subdivision (b) of Section 30411, for boating facilities if, in
conjunction with such boating facilities, a substantial portion of the degraded
wetland is restored and maintained as a biologically productive wetland. The
size of the wetland area used for boating facilities, including berthing space,
turning basins, necessary navigation channels, and any necessary support
service facilities, shall not exceed 25 percent of the degraded wetland.
(4) In open coastal waters, other than wetlands, including streams, estuaries, and
lakes, new or expanded boating facilities and the placement of structural pilings
for public recreational piers that provide public access and recreational
opportunities.
(5) Incidental public service purposes, including but not limited to, burying cables
and pipes or inspection of piers and maintenance of existing intake and outfall
lines.
(6) Mineral extraction, including sand for restoring beaches, except in
environmentally sensitive areas.
(7) Restoration purposes.
(8) Nature study, aquaculture, or similar resource dependent activities
(b) Dredging and spoils disposal shall be planned and carried out to avoid
significant disruption to marine and wildlife habitats and water circulation.
Dredge spoils suitable for beach replenishment should be transported for such
purposes to appropriate beaches or into suitable long shore current systems.
(c) In addition to the other provisions of this section, diking, filling, or dredging in
existing estuaries and wetlands shall maintain or enhance the functional capacity
of the wetland or estuary. Any alteration of coastal wetlands identified by the
Department of Fish and Game, including, but not limited to, the 19 coastal
wetlands identified in its report entitled, 'Acquisition Priorities for the Coastal
Wetlands of California ", shall be limited to very minor incidental public facilities,
restorative measures, nature study, commercial fishing facilities in Bodega Bay,
and development in already developed parts of south San Diego Bay, if
otherwise in accordance with this division.
Page: 60
(n 5
NPB- MAJ -1 -04
City of Newport Beach LUP Update
For the purposes of this section, "commercial fishing facilities in Bodega Bay"
means that not less than 80 percent of all boating facilities proposed to be
developed or improved, where such improvement would create additional berths
in Bodega Bay, shall be designed and used for commercial fishing activities.
(d) Erosion control and flood control facilities constructed on water courses can
impede the movement of sediment and nutrients which would otherwise be
carried by storm runoff into coastal waters. To facilitate the continued delivery of
these sediments to the littoral zone, whenever feasible, the material removed
from these facilities may be placed at appropriate points on the shoreline in
accordance with other applicable provisions of this division, where feasible
mitigation measures have been provided to minimize adverse environmental
effects. Aspects that shall be considered before issuing a coastal development
permit for such purposes are the method of placement, time of year of
placement, and sensitivity of the placement area.
Wetlands
A number of wetland habitats are known to exist in Newport Beach, including coastal
brackish marsh, coastal freshwater marsh, southern coastal salt marsh, southern
hardpan vernal pools, freshwater seeps, and alkali meadows. The Coastal Act limits fill
of wetlands to eight enumerated uses. The LUP includes wetland policies that allow for
flexibility in interpretation that could lead to inconsistencies with Coastal Act
requirements. Policy 4.2.2 -1 provides a definition of wetland that includes a provision
that is inconsistent with the State's definition of wetland. In it, the policy states that
wetlands do not include vernally wet areas where the soils are not hydric. The Coastal
Act defines wetlands as "...lands within the coastal zone which may be covered
periodically or permanently with shallow water...." Cal.Pub. Res. Code § 30121. The
more specific definition adopted by the Commission and codified in Section 13577(b)(1)
of Title 14 of the California Code of Regulations defines a wetland as, `...land where the
water table is at, near, or above the land surface long enough to promote the formation
of hydric soils or to support the growth of hydrophytes...." In discussing boundary
determinations, the same section of the Regulations specifies that wetlands have a
"predominance" of hydrophytic cover or a "predominance" of hydric soils. Although the
definition is based on inundation or shallow saturation long enough for anaerobic
reducing conditions to develop within the root zone', in practice hydrology is the most
difficult wetland indicator to demonstrate. In California, a predominance of hydrophytes
or a predominance of hydric soils is taken as evidence that the land was "wet enough
long enough" to develop wetland characteristics. The City's proposed policy allows for
misinterpretation of the wetland definition, which could result in wetland areas not being
' As demonstrated by the definitions of hydric soils and hydrophyles: "A hydric soil is a soil that formed
under conditions of saturation, flooding, or ponding long enough during the growing season to develop
anaerobic conditions in the upper part." National technical committee for hydric soils, October 18, 1994;
A hydrophyte is, "Any macrophyle that grows in water or on a substrate that is at least periodically
deficient in oxygen as a result of excessive water content...." Environmental Laboratory. 1987. Corps of
Engineers Welland Delineation Manual. U.S. Army Corps of Engineers, Washington, D.C.
Page: 61
M.
NPB- MAJ -1 -04
City of Newport Beach LUP Update
identified as such. This could lead to the dredging and /or fill of wetlands for a use that
is not consistent with Section 30233 of the Coastal Act. As submitted, the LUP's Policy
4.2.2 -1 is inconsistent with the Coastal Act as it would not provide adequate protection
of wetland resources.
Policy 4.2.2 -2 and corresponding narrative on page 4 -43 addresses ambiguities in
wetland characteristics. The narrative explains that sole reliance on one of the three
wetland characteristics (e.q hydrology, hydric soils or hydrophytic vegetation) can
sometimes be "misleading." In situations where ambiguities in wetland characteristics
exist, the LUP states, "the judgment of a qualified biologist may be required to
determine whether an area meets the definition of a wetland." The policy allows for
various parameters to be considered along with other factors to determine whether an
area meets the definition of a wetland and to delineate wetland boundaries. As written,
the policy regarding ambiguity suggests that it would take more than one wetland
parameter to delineate a wetland when that wetland is deemed to be "ambiguous." The
wetland identification method presented in the LUP is inconsistent with the California
Code of Regulations, which state that only one wetland parameter is necessary to find
an area to be a wetland. What would be necessary for a wetland or wetland
characteristics to be considered "ambiguous' is itself ambiguous. If wetlands or wetland
characteristics are frequently determined to be ambiguous, the LUP policy could result
in widespread use of a multi- factor test, resulting in areas possessing only one wetland
parameter not being identified as wetlands. As such, they would not be afforded the
protections of Section 30233 of the Coastal Act. The ambiguity provision of the LUP
could lead to the fill of wetlands for an unallowable use, inconsistent with the Coastal
Act.
In addition, the LUP would allow a "qualified biologist" to make a wetland determination.
Only the decision - making body can make such a determination after consideration of
technical data provided by the "qualified biologist." As submitted, the policy allows for
arbitrary application of the definition that would put wetland resources in jeopardy.
Therefore, the LUP contains a wetland definition and delineation procedure that does
not carry out the intent of Coastal Act Sections 30231 and 30233.
Policy 4.2.2 -4 requires the provision of buffer areas around wetlands, but does not
provide a numeric standard. Buffers, by separating development from wetlands,
minimize the adverse effects of development on wetlands, thereby avoiding significant
adverse effects to resources. Buffers also provide transitional habitat and upland area
necessary for survival of various animal species. The Commission has typically found
that a minimum 100 -foot wetland buffer, or larger, is necessary to protect wetlands. The
Commission recognizes that there are certain circumstances where smaller buffers may
be appropriate, however the policy should establish a default minimum distance and
then define the various circumstances in which the City would deviate from that default.
Without the establishment of a minimum buffer size, projects could be approved with an
inadequate buffer.
Page: 62
NPB- MAJ -1 -04
City of Newport Beach LUP Update
When fill or dredging of wetlands or open coastal waters is deemed to be 'allowable',
Section 30233 of the Coastal Act requires that feasible mitigation measures be provided
to minimize adverse environmental effects. The LUP includes a policy that establishes
minimum mitigation measures if a project involves diking or filling a wetland (Policy
4.2.3 -9). The policy lacks clarity in regards to the type of restoration or creation
required and does not include numeric standards for mitigation. For example, mitigation
ratios are not provided for allowable adverse impacts. A minimum standard should be
established to ensure that there is no net loss of wetland acreage and to compensate
for the potential that a wetlands creation or restoration project is not successful, as is
often the case.
In addition, as currently written, mitigation efforts are not required to meet any
performance criteria. Consequently, mitigation efforts may fail to achieve the intended
result of creating functional wetland habitat. Without more specificity, the policy could
also allow parties to mitigate wetland impacts outside the affected watershed.
As submitted, the LUP contains policies that would not adequately protect wetland
resources and therefore must be denied.
Eelgrass
Section 4.2.5 discusses the presence of eelgrass in the Newport Harbor and
compliance with the Southern California Eelgrass Mitigation Policy. The narrative
explains the importance of protecting the ecological value of eelgrass meadows, while
allowing periodic dredging of the harbor to enable commerce and recreation. A
conceptual eelgrass mitigation program is presented for establishing a baseline of
eelgrass and then allowing projects that impact eelgrass to occur so long as the
baseline is maintained. This program has yet to be fully reviewed and will require
approval from various resources agencies. It is not clear from the narrative that the
program is conceptual in nature and therefore the discussion may mislead potential
project proponents with projects involving eelgrass.
Policy 4.2.5 -4 would allow successful eelgrass restoration sites to serve as mitigation
sites for City projects and as a mitigation bank for private dredging impacts. Again, this
type of a mitigation program would require substantial review by third parties before
being implemented and should not be presented as a definitive policy in the LUP.
Policy 4.2.5 -2 specifies that mitigation is not required where eelgrass migrates from a
mitigation area into an area that did not previously contain eelgrass. This is inconsistent
with standard National Marine Fisheries Service (NMFS) practice under the Southern
California Eelgrass Mitigation Policy and past Commission practice. Eelgrass that
migrates commands the same level of protection as that in the mitigation area.
Moreover, the protection of such eelgrass is necessary to ensure, maintain, enhance,
and where feasible, restore marine resources and the biological productivity of coastal
waters in order for the LUP to be consistent with Section 30230 and 30231 of the
Coastal Act.
Page: 63
9
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Water Quality
Section 4.3 of the Coastal Resource Protection section addresses water quality. This
section of City's LUP provides substantively sound policy direction, but lacks specific
references to state and regional restrictions and goals. Newport Harbor (Lower
Newport Bay) is included on the Federal Clean Water Act 303(d) list of "impaired" water
bodies for metals, pesticides and priority organics. The designation as "impaired"
means the quality of the water body cannot support the beneficial uses for which the
water body has been designated — in this case secondary contact recreation and
aquatic uses. The listing is made by the California Regional Water Quality Control
Board, Santa Ana Region ( RWQCB), and the State Water Resources Control Board
(SWRCB), and confirmed by the U.S. Environmental Protection Agency. Further, the
RWQCB has targeted the Newport Bay watershed for increased scrutiny as a higher
priority watershed under its Watershed Management Initiative. Consequently, projects
that drain to Lower Newport Bay, must be designed to minimize or eliminate discharge
of metals, pesticides and priority organics. At a minimum, all projects must satisfy any
applicable load allocation promulgated as part of a Total Maximum Daily Load ( "TMDL ")
adopted pursuant to Section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d); and
no new discharge should cause or contribute to the further violation of this water quality
standard. See 42 C.F.R. § 122.44(d)(1)(i).
The policies of the LUP must be expanded to include references to the specific TMDL
and load allocations for Newport Harbor and the Municipal Stormwater permit approved
by the Regional Water Quality Control Board for storm sewer discharges to the harbor.
As submitted, the policies of the LUP are not sufficiently detailed to protect water quality
in Newport Beach's coastal zone and must be denied.
Dredging and Beach Nourishment
Section 4.2.3 of the LUP deals with Dredging, Diking and Filling. The section does not
contain policies addressing impacts resulting from dredging and material placement. As
such, dredging and material placement activities could be carried out in a manner that
disrupts marine and wildlife habitats and water circulation, thereby causing adverse
impacts on the environment.
The LUP does not adequately identify opportunities for beach replenishment. Without
specific policy language, valuable beach quality material may be lost where it could be
used to nourish an eroded beach within the region. Dredge material and material
removed from erosion control and a flood control facilities that is deemed suitable for
beach replenishment should be transported to appropriate beaches or into suitable long
shore currents as called for in Section 30233 (b) and (d) of the Coastal Act.
Modifications are required to ensure consistency with Sections 30230, 30231 and
30233 of the Coastal Act.
Page: 64
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Archaeological Resources
The Chapter 3 policy most applicable to this planning issue is:
Section 30244.
Where development would adversely impact archaeological or paleontological
resources as identified by the State Historic Preservation Officer, reasonable
mitigation measures shall be required.
Section 4.5.1 of the LUP addresses paleontological and archaeological resources.
Policy 4.5 -1 requires new development to protect and preserve resources from
destruction and avoid and minimize impacts to such resources. The policy specifies
that an in situ or site - capping plan or a recovery plan must be submitted if avoidance is
not feasible. Policy 4.5.1 -2 requires monitoring of grading activities, suspension of
development, and preservation of the site for "a reasonable period of time" to allow a
recovery plan to be completed, but does not require the submittal of a detailed
monitoring plan.
Additionally, the LUP lacks a policy requiring preparation of a mitigation plan. If
resources are determined to be significant, a mitigation plan considering various
mitigation measures must be required. Mitigation measures considered may range from
in -situ preservation to recovery and/or relocation. Mitigation plans must include a good
faith effort to avoid impacts to cultural resources through methods such as, but not
limited to, project redesign, in situ preservation /capping, and placing cultural resource
areas in open space. As submitted, the LUP does not contain sufficient derail to carry
out Section 30244 of the Coastal Act.
Conclusion
As submitted, the proposed LUP is inconsistent with the resource protection policies of
the Coastal Act, and cannot be certified.
2. Land Use and Development
Chapter 2 of the LUP addresses land use and development issues, including the
identification of the kinds, location and intensity of uses allowed in the coastal zone.
The proposed LUP update does not change any land use designations or increase the
density or intensity of use from the certified LUP. However, the land use classification
nomenclature has been modified. Land use categories are depicted on the Coastal
Land Use Map, included in the back map pocket. Chapter 2 provides policies intended
to address Coastal Act requirements relating to visitor - serving, recreational, coastal -
dependent, and coastal - related land uses. New development, non - conforming
development, and areas of deferred certification are also discussed.
Visitor - serving and Recreational Development
Page: 65
I
NPB- MAJ -1 -04
City of Newport Beach LUP Update
The Chapter 3 policies most applicable to these planning issues are:
Section 30213.
Lower cost visitor and recreational facilities shall be protected, encouraged, and,
where feasible, provided. Developments providing public recreational
opportunities are preferred.
Section 30221.
Oceanfront land suitable for recreational use shall be protected for recreational
use and development unless present and foreseeable future demand for public or
commercial recreational activities that could be accommodated on the property is
already adequately provided for in the area.
Section 30222.
The use of private lands suitable for visitor - serving commercial recreational
facilities designed to enhance public opportunities for coastal recreation shall
have priority over private residential, general industrial, or general commercial
development, but not over agriculture or coastal- dependent industry.
Section 30223.
Upland areas necessary to support coastal recreational uses shall be reserved
for such uses, where feasible.
Section 30250(c)
Visitor - serving facilities that cannot feasibly be located in existing developed
areas shall be located in existing isolated developments or at selected points of
attraction for visitors.
The LUP contains six commercial designations — General Commercial, Recreational and
Marine Commercial, Commercial Residential, Neighborhood Commercial, Commercial
Office and Visitor - Serving Commercial. Only a few areas within the City have been
designated as Visitor - Serving Commercial (CV) in the proposed LUP, including three
existing major hotel sites, a block along West Coast Highway developed with motels
and restaurants, and the Lido Village Commercial area. This represents only a small
percentage of the commercially designated properties in the Newport Beach coastal
zone. According to the City, the CV designation is intended to provide for
accommodations, goods and services intended to primarily serve the needs of visitors.
Many areas that are in fact tourist destinations, including the Newport Pier, Balboa Pier
and Balboa Island, have not been designated as such. Instead, these areas have been
designated General Commercial (CG) or Commercial Residential (CR). The General
Commercial designation (referred to as Retail Service Commercial in the Zoning Code)
is intended to provide for a wide range of commercial activities oriented primarily to
.- ..
�')l
NPB- MAJ -1 -04
City of Newport Beach LUP Update
serve citywide or regional needs. The Commercial Residential designation allows
general commercial uses on the ground floor and residential development above. The
City has indicated that these land use designations have been applied more broadly in
order to provide for flexibility in responding to market demands. The City opposes any
changes in land use designations.
The Coastal Act protects and encourages low cost visitor and recreational facilities and
gives priority to visitor - serving commercial recreational facilities designed to enhance
public opportunities for coastal recreation over private residential, general industrial, or
general commercial development. As proposed, the LUP fails to reflect a prioritization
of visitor serving development in areas where such uses should be focused. The City's
General Commercial designation allows uses that are not appropriate in a visitor -
serving area. These include: Daycare; Residential Care; Building Materials and
Services; Funeral and Internment Services; Laboratories; Health /Fitness Clubs;
Research and Development; SRO Residential Hotels; Industry; and Mining and
Processing Clubs and Lodges; Government Offices; Religious Assembly; Major Utilities;
Animal Hospitals; Maintenance and Repair Services; Offices, Business and Professional
(not serving visitors); Vehicle Sales and Vehicle Storage. Without specific controls on
development within primary visitor serving cores, inappropriate uses could proliferate
within tourist destination spots, resulting in inadequate provision of visitor services and
facilities. While the needs of the local residents would be met, the needs of the visitor
would not. As such, the LUP is inconsistent with the provisions of the Coastal Act
designed to protect and encourage visitor and recreational uses in areas where such
uses should be the focus.
Planning Study Areas
The LUP contains detailed narrative under Policy 2.1.1 -1 describing "Planning Study
Areas" throughout the City. The PS designation is intended for certain areas with
unique land use and development characteristics. The following areas have been
identified as Planning Study Areas: Lido Peninsula, Cannery Village, McFadden
Square, Balboa Village, Balboa Bay Club, Newport Dunes. More specific regulations for
each of the areas are provided in the narrative. The regulations address allowable uses
and density limits. A Planning Study Area must be created for Marine Avenue on
Balboa Island to ensure that this primary visitor - serving destination is similarly
regulated.
Development Standards
Section 2.1.1 of the LUP establishes the type, density and intensity of land uses to be
allowed. However, only the most basic development standards are provided. Parking
requirements, setbacks and height restrictions are excluded. As discussed below,
numeric standards are necessary to establish a clear standard of review when it comes
time to implement the policies of the LUP.
The LUP includes general policies (2.9.3 -1 through 2.9.3 -12) addressing parking in the
coastal zone. However, specific parking standards have not been provided. Section
30252 of the Coastal Act requires that new development maintain and enhance public
Page: 67
a-
NPB- MAJ -1 -04
City of Newport Beach LUP Update
access to the coast by providing adequate parking or alternative means of
transportation. When new development does not provide adequate on -site parking and
there are inadequate alternative means of reaching the area (such as public
transportation), users of that development are forced to occupy public parking that could
otherwise be used by visitors to the coast. A lack of public parking and public
transportation will discourage visitors from coming to the beach and other visitor - serving
activities in the coastal zone. A parking deficiency will therefore have an adverse
impact on public access. Numeric parking standards must be proposed so that they
can be evaluated and found adequate under the public access polices of the Coastal
Act. Approved standards must then be specifically referenced in the LUP to ensure
adequate provision of on -site parking to minimize adverse impacts to public access.
Setbacks must be established in the LUP in order to determine how development will
impact significant coastal resources including, but not limited to, bluffs, ESHA, wetlands,
public access and recreation areas, and public views. Development adjacent to these
areas must be strictly controlled to ensure the protection of such resources. Siting and
design regulations must therefore be provided at the LUP stage.
Specific height standards must also be referenced in the LUP to ensure the protection
of community character and scenic resources. Section 4.4.2 of the document discusses
bulk and height limitations and describes the importance of maintaining community
character and scale in the City. The LUP references the height restrictions established
in the Shoreline Height Limitation Zone. However, the boundaries of the Shoreline
Height Limitation Zone are not depicted graphically in the LUP. As such, it remains
unclear where the various height restrictions apply. Additionally, numeric height limits
for other areas within the coastal zone are not specified as policies in the LUP.
As submitted, the LUP lacks adequate development standards to allow for clear
interpretation and accurate, consistent implementation of the policies. Without numeric
standards, there will be great discretion in the manner in which the policies can be
carried out. The document must include quantitative development standards such as
height limits and parking standards in order to establish a standard of review for the
Implementation Plan (IP). Where the Coastal Act is the standard of review for the LUP,
the LUP will provide the standard of review for the IP. As such, it is necessary to have
numeric standards established in the LUP to provide guidance and clarity.
Industrial Development
Industrial development is discussed in Section 2.6 of the LUP. The Chapter 3 policies
most applicable to these planning issues are:
Section 30250 (b)
Where feasible, new hazardous industrial development shall be located away
from existing developed areas.
Section 30260.
.•- .:
1�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Coastal- dependent industrial facilities shall be encouraged to locate or expand
within existing sites and shall be permitted reasonable long -term growth where
consistent with this division. However, where new or expanded coastal -
dependent industrial facilities cannot feasibly be accommodated consistent with
other policies of this division, they may nonetheless be permitted in accordance
with this section and Sections 30261 and 30262 if (1) alternative locations are
infeasible or more environmentally damaging; (2) to do otherwise would
adversely affect the public welfare; and (3) adverse environmental effects are
mitigated to the maximum extent feasible.
Section 30262.
Oil and gas development shall be permitted in accordance with Section 30260, if
the following conditions are met:
(a) The development is performed safely and consistent with the geologic
conditions of the well site.
(b) New or expanded facilities related to such development are consolidated, to
the maximum extent feasible and legally permissible, unless consolidation will
have adverse environmental consequences and will not significantly reduce the
number of producing wells, support facilities, or sites required to produce the
reservoir economically and with minimal environmental impacts.
(c) Environmentally safe and feasible subsea completions are used when drilling
platforms or islands would substantially degrade coastal visual qualities unless
use of such structures will result in substantially less environmental risks.
(d) Platforms or islands will not be sited where a substantial hazard to vessel
traffic might result from the facility or related operations, determined in
consultation with the United States Coast Guard and the Army Corps of
Engineers.
(e) Such development will not cause or contribute to subsidence hazards unless
it is determined that adequate measures will be undertaken to prevent damage
from such subsidence.
(f) With respect to new facilities, all oilfield brines are reinjected into oil- producing
zones unless the Division of Oil and Gas of the Department of Conservation
determines to do so would adversely affect production of the reservoirs and
unless injection into other subsurface zones will reduce environmental risks.
Exceptions to reinjections will be granted consistent with the Ocean Waters
Discharge Plan of the State Water Resources Control Board and where
adequate provision is made for the elimination of petroleum odors and water
quality problems.
Page: 69
1�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Where appropriate, monitoring programs to record land surface and near -shore
ocean floor movements shall be initiated in locations of new large -scale fluid
extraction on land or near shore before operations begin and shall continue until
surface conditions have stabilized. Costs of monitoring and mitigation programs
shall be borne by liquid and gas extraction operators,
While Section 2.6 of the LUP contains policies that give priority to coastal- dependent
and coastal - related industrial development, it lacks direction for the siting of such
development. To ensure consistency with the Coastal Act, new hazardous industrial
development must be located away from developed areas where feasible. Coastal -
dependent industrial development must be encouraged to locate or expand within
existing sites where consistent with all other provisions of the LUP.
This section also explains the City's historical ban on onshore oil and gas exploration,
drilling, production and refining. The policies contained in the LUP reflect the ban that is
contained in the City Charter. However, no justification for such a ban was provided in
the narrative. Additionally, such a ban is not appropriate in a land use plan in the
absence of a comprehensive analysis demonstrating empirically that such a ban is
consistent with the requirement of the Coastal Act policies cited above, such as Section
30262 of the Coastal Act. The Coastal Act allows oil and gas development if certain
criteria are met. An outright prohibition on such development renders the LUP
inconsistent with the Coastal Act.
Hazards
Section 2.8 deals with development issues related to hazards and protective devices.
This section of the LUP acknowledges that the City is subject to hazards such as storm
surges, beach and bluff erosion, landslides, slope failure and wildland fires.
Earthquakes and tsunamis are also discussed. The Chapter 3 policies most applicable
to these planning issues are:
Section 30235.
Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls,
and other such construction that alters natural shoreline processes shall be
permitted when required to serve coastal - dependent uses or to protect existing
structures or public beaches in danger from erosion, and when designed to
eliminate or mitigate adverse impacts on local shoreline sand supply. Existing
marine structures causing water stagnation contributing to pollution problems and
fish kills should be phased out or upgraded where feasible.
Section 30253 (in part).
New development shall:
Page: 70
15
NPB- MAJ -1 -04
City of Newport Beach LUP Update
(1) Minimize risks to life and property in areas of high geologic, flood, and fire
hazard.
(2) Assure stability and structural integrity, and neither create nor contribute
significantly to erosion, geologic instability, or destruction of the site or
surrounding area or in any way require the construction of protective devices
that would substantially alter natural landforms along bluffs and cliffs.
Policies in Section 2.8.6 address shoreline erosion, beach replenishment, and the
permitting and siting of shoreline protective devices. While generally adequate, these
policies do not give proper consideration to alternative methods for protecting existing
structures and public beaches. The construction of protective devices should only be
considered after all other alternatives are exhausted. If alternatives exist, the
construction of the protective device is not "required" pursuant to Section 30235. Where
feasible, hazard avoidance, restoration of sand supply, beach nourishment, and
removal and relocation of development must be considered. Greater emphasis must be
placed on requiring new development to assure stability and limit erosion. While Policy
2.8.6 -10 requires new structures to be sited to avoid the need for shoreline and bluff
protective devices during the economic life of the structure, the policy does not go far
enough to carry forward the provisions of Sections 30253 and 30235 of the Coastal Act,
as discussed below.
As required by Section 30253, new development must assure stability and structural
integrity, and neither create nor contribute significantly to erosion, geologic instability, or
destruction of the site or surrounding area or in any way require the construction of
protective devices that would substantially alter natural landforms along bluffs and cliffs.
Section 30235 allows protective devices only when necessary to protect existing
structures. This has been interpreted to apply only to principal structures and not
accessory improvements, as accessory improvements may not be structures, and even
where they are, again, they are generally capable of being relocated, thus removing the
necessity for a protective device. As currently written, the LUP does not distinguish
between principal and accessory structures. The LUP must make clear that only
existing principal structures may be afforded protection if subject to hazard. The LUP
must also integrate the Coastal Act requirement for new development to assure stability
to avoid the need for protective devices. The incorporation of polices aimed at
minimizing the construction of protective devices is necessary to avoid adverse impacts
to shoreline processes.
The LUP contains policies addressing tsunamis in Section 2.8.2. While generally
comprehensive, the section fails to include a provision requiring overnight visitor - serving
facilities to provide tsunami information and evacuation plans. No mention is made of
how new information will be incorporated into the City's planning and preparedness
efforts.
Conclusion
Page: 71
(0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Therefore, as submitted, the proposed LUP is inconsistent with the hazard avoidance
and development policies of the Coastal Act and must be denied.
3. Public Access and Recreation
Chapter 3 of the LUP addresses public access and recreation. The Chapter 3 policies
most applicable to these planning issues are:
Section 30210.
In carrying out the requirement of Section 4 of Article X of the California
Constitution, maximum access, which shall be conspicuously posted, and
recreational opportunities shall be provided for all the people consistent with
public safety needs and the need to protect public rights, rights of private
property owners, and natural resource areas from overuse.
Section 30211.
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.
Section 30212 (a).
(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 accessway 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.
Section 30212.5.
Wherever appropriate and feasible, public facilities, including parking areas or
facilities, shall be distributed throughout an area so as to mitigate against the
impacts, social and otherwise, of overcrowding or overuse by the public of any
single area.
Section 30213.
Page: 72
11
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Lower cost visitor and recreational facilities shall be protected, encouraged, and,
where feasible, provided. Developments providing public recreational
opportunities are preferred.
The commission shall not: (1) require that overnight room rentals be fixed at an
amount certain for any privately owned and operated hotel, motel, or other similar
visitor - serving facility located on either public or private lands; or (2) establish or
approve any method for the identification of low or moderate income persons for
the purpose of determining eligibility for overnight room rentals in any such
facilities.
Section 30214
(a) The public access policies of this article shall be implemented in a manner
that takes into account the need to regulate the time, place, and manner of public
access depending on the facts and circumstances in each case including, but not
limited to, the following:
(1) Topographic and geologic site characteristics.
(2) The capacity of the site to sustain use and at what level of intensity
(3) The appropriateness of limiting public access to the right to pass and
repass depending on such factors as the fragility of the natural resources in
the area and the proximity of the access area to adjacent residential uses.
(4) The need to provide for the management of access areas so as to
protect the privacy of adjacent property owners and to protect the aesthetic
values of the area by providing for the collection of litter.
(b) It is the intent of the Legislature that the public access policies of this article
be carried out in a reasonable manner that considers the equities and that
balances the rights of the individual property owner with the public's constitutional
right of access pursuant to Section 4 of Article X of the California Constitution.
Nothing in this section or any amendment thereto shall be construed as a
limitation on the rights guaranteed to the public under Section 4 of Article X of the
California Constitution.
(c) In carrying out the public access policies of this article, the commission and
any other responsible public agency shall consider and encourage the utilization
of innovative access management techniques, including, but not limited to,
agreements with private organizations which would minimize management costs
and encourage the use of volunteer programs.
Section 30220.
Page: 73
K
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Coastal areas suited for water - oriented recreational activities that cannot readily
be provided at inland water areas shall be protected for such uses.
Section 30221.
Oceanfront land suitable for recreational use shall be protected for recreational
use and development unless present and foreseeable future demand for public or
commercial recreational activities that could be accommodated on the property is
already adequately provided for in the area.
Section 30222.
The use of private lands suitable for visitor - serving commercial recreational
facilities designed to enhance public opportunities for coastal recreation shall
have priority over private residential, general industrial, or general commercial
development, but not over agriculture or coastal- dependent industry.
Section 30222.5.
Ocean front land that is suitable for coastal dependent aquaculture shall be
protected for that use, and proposals for aquaculture facilities located on those
sites shall be given priority, except over other coastal dependent developments
or uses.
Section 30223.
Upland areas necessary to support coastal recreational uses shall be reserved
for such uses, where feasible.
Section 30224.
Increased recreational boating use of coastal waters shall be encouraged, in
accordance with this division, by developing dry storage areas, increasing public
launching facilities, providing additional berthing space in existing harbors,
limiting non - water - dependent land uses that congest access corridors and
preclude boating support facilities, providing harbors of refuge, and by providing
for new boating facilities in natural harbors, new protected water areas, and in
areas dredged from dry land.
Section 30252.
The location and amount of new development should maintain and enhance
public access to the coast by-.. (4) providing adequate parking facilities or
providing substitute means of serving the development with public
transportation...
Page: 74
11
NPB- MAJ -1 -04
City of Newport Beach LUP Update
The policies of Section 3.1 of the LUP describe shoreline access. Greater detail is
necessary in these policies to ensure maximum provision of public access. Policies
3.1.1 -11 and 3.1.1 -12 require the applicant to provide an Offer to Dedicate (OTD) an
easement for public access when it is determined that new development will cause or
contribute to adverse public access impacts. Although this approach is intended to
mitigate for public access impacts, no criteria are established for the siting or design of
the OTDs. It is unclear from the policies where the OTDs should be located in
relationship to the approved development and how wide they should be. Without more
clear direction, ambiguity exists that could lead to poorly sited and narrow accessways.
More specificity is also necessary to encourage the acceptance, improvement and
opening of OTDs to ensure that impacts to public access are truly mitigated.
The LUP relies only on the acquisition of OTDs to mitigate for development impacts to
public access. No mention is made of direct dedication instead of offers to dedicate.
Direct dedication is a faster and simper method of establishing an accessway, park or
open space area. For example, direct dedications typically involve fewer and less
complicated legal documentation than OTDs and direct dedications don't involve the
same type of tracking and follow -up that an OTD does to assure the OTD is accepted
and opened in a timely manner. In addition, the mitigation (the opened accessway, park
or open space) would not lag (as it does when the accessway is created through an
OTD, often for many years) behind the impact (the development). Direct dedication
must be considered where feasible.
The LUP fails to identify access opportunities in areas where access is currently limited.
The City asserts that new vertical access opportunities were investigated and
determined to be infeasible due to the potential impacts to coastal bluffs and marine
habitat, public safety concerns, and visual impacts. However, conditions may change in
the future and a policy encouraging the creation of new accessways (even one that
included appropriate restrictions to take account of the issues raised by the City) would
ensure that opportunities are at least considered in areas where access is limited when
new development is approved.
Section 3.3 addresses vessel launching, berthing and storage. These policies require
the protection and expansion of boating facilities in Newport Beach. To ensure that the
needs of all boat users are addressed, additional guidance must be included to
encourage the provision of a variety of slip types. Without such direction, marinas may
be developed with a disproportionate amount of large, high cost slips; thereby
precluding use by boaters seeking a lesser cost recreational opportunity.
Conclusion
As submitted, the LUP does not provide sufficient specificity and guidance to ensure
that public access and recreational opportunities are maximized. As such, the LUP
must be denied.
Page: 75
�b
NPB- MAJ -1 -04
City of Newport Beach LUP Update
4. Standards, Procedures and Definitions
Introduction
Chapter 1 (Introduction) explains the purpose, organization, general policies and
background of the LUP. The history and character of the City of Newport Beach is also
provided. Corrections and additions are necessary to clarify procedural requirements
and process.
Section 1.3 ( "General Policies') lists overarching policies that are to guide interpretation
and application of the specific policies in the LUP. This General Policies section
improperly includes a "balancing" approach, which states:
When policies within the Coastal Land Use Plan conflict, such conflicts shall be
resolved in a manner which on balance is most protective of significant coastal
resources.
The Coastal Act does not authorize local governments to "balance" their LUP policies
against each other, allowing one to override another, and thereby approving projects
that are inconsistent with at least one LUP policy. The balancing provision is contained
in Section 30007.5 of the Coastal Act, which states:
The Legislature further finds and recognizes that conflicts may occur between
one or more policies of the division. The Legislature therefore declares that in
carrying out the provisions of this division such conflicts be resolved in a manner
which on balance is the most protective of significant coastal resources.
The express language of that section refers only to conflicts between the policies "of the
division,' meaning Division 20 of the Public Resources Code — the Coastal Act. In fact,
one of the central purposes behind having city- specific LUPs is to generate policies that
are tailored to the empirical realities of the city, rather than having to use more general
policies such as those in Chapter 3 of the Coastal Act. These city - specific policies
should eliminate instances where the application of generally - applicable policies to
specific cases generates a conflict and the need for balancing. This limitation on the
use of balancing is clear again in the restatement of the balancing authority in section
30200(b), which refers to conflicts "between the policies of this chapter ....," so both
sections are clear that balancing is only for Coastal Act policies and carrying out the
provisions of the Coastal Act, not within LCPs. As such, this section of the LUP must be
changed to avoid improper application of the balancing approach by the City
Glossary
The LUP includes a Glossary in Chapter 5. As submitted, the Glossary contains
significant omissions. The following is a partial list of terms that are not included:
Appealable Development, BMPs, Demolition, First Public Road, Non - Conforming
Structure /Use and Sea Cliff. These terms show up in the policies and /or narrative of the
LUP and must be defined to ensure clear understanding and application of the policies.
Page: 76
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
A number of definitions within the Glossary are generally accurate, but lack detail that
will be valuable when interpreting the policies of the LUP. For example, the definition
provided for Coastal Bluff fails to offer detail such as the differentiation between "coastal
bluff' and "seacliff'. Wherever possible, these must be expanded and clarified in
accordance with the Coastal Act.
The definition provided for Bluff identifies them as land masses with 10 feet or more in
vertical extent. Providing a numeric standard in the Glossary that is not included in the
policies of the LUP creates confusion. To ensure consistency, the definition must reflect
the manner in which bluffs are defined within the LUP document.
C. Findings for Approval with Suggested Modifications
Coastal Resources
Chapter 4 of the Land Use Plan (LUP) inadequately addresses the protection of
biological, scenic and paleontological resources in the coastal zone of Newport Beach.
The Commission's findings for denial of the LUP as submitted are herein incorporated
by reference. The document must be modified as follows in order to be found
consistent with the resource protection policies of the Coastal Act.
ESHA
As submitted, the LUP generally defines, but does not designate, environmentally
sensitive habitat areas (ESHA). Sensitive habitat types have not been identified, nor
have their boundaries been depicted. In order for the LUP to provide maximum
protection of ESHA consistent with the Coastal Act, modifications must be made to the
policies dealing with ESHA identification and designation. Primarily, the LUP must
establish specific parameters for establishing the type, location and extent of ESHA.
The LUP must be revised to reflect the presence of specific habitat types that are
considered ESHA when they are deemed to have certain attributes. Preliminary
mapping of potential ESHA boundaries must also be provided. These changes are
accomplished through Suggested Modifications 62 through 67.
Suggested Modification 64 provides the supporting narrative which specifies that areas
within the City of Newport Beach dominated by one of the habitats discussed in Section
4. 1.1 are presumed to be ESHA, unless there are strong site - specific reasons to rebut
that presumption. These include southern dune scrub, southern coastal bluff scrub,
maritime succulent scrub, southern maritime chaparral, southern willow scrub, southern
cottonwood willow riparian forest, southern arroyo willow forest, southern black willow
forest, southern sycamore alder riparian woodland, and southern coastal purple
needlegrass grassland. Wetland habitats within the City of Newport Beach that may
meet the definition of ESHA include coastal brackish marsh, coastal freshwater marsh,
southern coastal salt marsh, southern hardpan vernal pools, freshwater seeps, and
alkali meadows. This modification, and the policy language of Suggested Modification
66, provides greater accuracy and specificity than the LUP submitted in identifying the
Page: 77
i
NPB- MAJ -1 -04
City of Newport Beach LUP Update
habitat types that are considered ESHA. To illustrate where these natural communities
may occur, Suggested Modification 77 explains that portions of the Environmental Study
Areas (ESA) listed in the LUP narrative are known to contain community types that
meet the definition of ESHA. As provided for in Suggested Modification 67, the ESAs
are to represent a preliminary mapping of areas containing potential ESHA. As
modified, the LUP provides a clearer understanding of the way in which ESHA is
identified, which habitat types are presumed to be ESHA, and where ESHA may be
found.
Once ESHA has been identified, it is necessary to limit development within ESHA to
only those uses that are dependent on the resource, consistent with 30240 of the
Coastal Act. Moreover, even uses that meet the standard must not cause significant
disruption of habitat values. Development adjacent to ESHA must also be sited to
prevent impacts that would significantly degrade those areas. In denying the proposed
LUP, the Commission found that more stringent policies were needed to address the
siting and design of development impacting ESHA. As modified by Suggested
Modification 68, it is made clear that development adjacent to ESHA must be sited and
designed to prevent impacts that would disrupt or degrade those areas. Suggested
Modification 69 explicates which uses can be considered "resource dependent" to
ensure that only those uses are allowed within ESHA. These include limited public
access improvements and minor educational, interpretive and research activities and
development. Suggested Modification 71 prohibits new development that would
necessitate fuel modification in ESHA.
In denying the proposed LUP, the Commission found that modifications are also
necessary to provide development standards such as mitigation ratios and buffers to
protect ESHA and other sensitive habitat. Suggested Modifications 72 and 73 require
the provision of buffers and establish a minimum buffer size for ESHA. Suggested
Modifications 74 through 76 address mitigation for allowable impacts to ESHA and other
sensitive resources. Specific mitigation ratios are established for upland vegetation,
coastal sage scrub and rare community types such as southern maritime chaparral,
maritime succulent scrub, native grassland and southern mixed chaparral. The
establishment of minimum mitigation standards is necessary given the difficulties of
creating, restoring and maintaining functionally valuable habitat communities. In
addition, direct mitigation furthers the goal of no net loss of coastal habitat resources.
These modifications to the LUP ensure that impacts to ESHA are avoided wherever
possible and mitigated in cases where resource - dependent impacts are permitted.
Suggested Modification 74 references mitigation in the form of habitat creation or
substantial restoration. "Creation" means that habitat will be newly established in an
area that does not currently contain that functional habitat type, but where the soils,
topography, etc. are appropriate for long -term viability and may have supported the
habitat in the past. "Restoration" means that habitat which is recognizable as belonging
to a specific vegetation community, but which has been previously disturbed andfor
contains exotic invasive species so as to reduce its functional value, will be enhanced to
return the habitat area to overall health and typical functional value. "Substantial
Page: 78
k3
NPB- MAJ -1 -04
City of Newport Beach LUP Update
restoration" is applicable to highly- degraded areas where the effective function of the
habitat type has been lost, but which still contains remnant plants of the identified
habitat. "Revegetation" means replanting with appropriate species, as is applicable to
both restoration efforts in existing habitat, and to creation where habitat does not
currently exist. These terms have been defined to provide further clarification of the
intent of the new policy.
Furthermore, the Commission can only approve the LUP if a detailed process is
incorporated to identify the location of ESHA and conduct a site - specific analysis at the
time of an application for development. Suggested Modification 140 outlines the
necessary review procedure and clarifies how decisions regarding biological resources
are to be made. A clearly established environmental review process ensures that
projects are properly evaluated by qualified professionals and considered by the
decision - making body. This modification also requires coordination with other resource
agencies to ensure that impacts to ESHA are avoided or minimized. As revised through
the Suggested Modifications discussed herein, ESHA and other sensitive resources are
protected in accordance with Section 30240 of the Coastal Act.
Natural Landforms /Coastal Bluffs
In denying the LUP, the Commission found the City's method of defining coastal bluffs
inadequately protective of coastal resources and inconsistent with past Commission
practice. The City's approach differentiates between altered and unaltered Iandforms
when applying setback standards. This was done to provide a basis for applying
differing setbacks for new development on bluff lots. Development on an unaltered bluff
lot would require a greater setback than development on a bluff lot that had been
previously graded and developed. Additionally, bluff face development would be
allowed to continue where the bluff had been altered and a clear pattern of development
had been established. For example, in areas like Ocean Boulevard in Corona del Mar,
development has historically occurred down the bluff face to protect public views from
the frontage street above. However, the Commission does not regulate development
on coastal bluffs differently depending on whether or not the site has been previously
graded. Coastal bluffs, as defined in the California Code of Regulations and in the
City's LUP Glossary, include bluffs that were subject to marine erosion within the last
200 years. The conditions on the ground at the time a project is proposed constitute the
natural landform. Development standards must be applied based on geologic stability
and scenic resource impacts. Suggested Modifications 119 through 133 address
coastal bluff identification and provide standards for new development in order to
protect natural Iandforms.
The policies of the LUP have been modified in a manner that acknowledges the
difference between coastal bluffs currently subject to marine erosion and those that are
not. Suggested Modification 127 requires all new blufftop development located on a
bluff subject to marine erosion to be set back at least 25 feet from the bluff edge, while
Suggested Modification 128 requires all new blufftop development located on a bluff not
subject to marine erosion to be set back in accordance with the predominant line of
Page: 79
S Y
NPB- MAJ -1 -04
City of Newport Beach LUP Update
existing development in the subject area. Accessory improvements are subject to
analogous restrictions through Suggested Modifications 129 and 130. It is made clear
that all of these bluff setbacks shall be increased where necessary to ensure safety and
stability of the development. Additionally, Suggested Modification 133 requires
swimming pools located on bluff properties to incorporate leak prevention and detection
measures.
Suggested Modification 122 clarifies that only private development on Ocean Boulevard
determined to be consistent with the predominant line of development and necessary
public improvements will be allowed on bluff faces. Any further alteration of bluff faces
will be prohibited. The Commission makes these modifications to ensure stability and
protect coastal views, while recognizing past alteration and development patterns in the
City. It is not necessary or appropriate to distinguish between altered and unaltered
bluffs or to say that bluffs are no longer considered "coastal bluffs" because they have
been significantly graded.
As modified, the policies allow development to occur in much the same manner it
currently does in infill areas. Suggested Modification 132 maintains approved bluff edge
setbacks for the coastal bluffs within the planned communities of Castaways, Eastbluff,
Park Newport, Newporter North (Harbor Cove), and Bayview Landing. Suggested
Modification 120 requires more stringent public access /setback requirements for new
planned communities.
Development that currently exists on the bluff face on Ocean Boulevard will be allowed
to continue in accordance with the predominant line of development if deemed
geologically feasible, as addressed in Suggested Modification 131. Similarly,
Suggested Modification 125 specifies that the bluffs along Bayside Drive that have been
cut and filled by the Irvine Terrace and Promontory Point development will be subject to
the setback restrictions established for bluffs not subject to marine erosion. As such,
the "predominant line of development' standard will apply there.
Coastal canyon development will be regulated in much the same way. Where there
was previously no setback for development on canyon lots, there is now a requirement
to comply with the "predominant line of development." Suggested Modification 134
provides this new standard for development along Buck Gully and Morning Canyon.
The addition of a canyon setback regulation in these areas will prevent significant
landform alteration and limit encroachment into natural habitats.
As modified, more conservative setback standards would be applied to potentially
hazardous lots, thereby providing better assurance of long -term stability. When
development is properly sited, the need for construction of protective devices to support
new development is avoided. Therefore, the Suggested Modifications ensure
conformance with Sections 30253 and 30251 of the Coastal Act.
�
0
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Marine Resources
Wetlands
In denying the LUP as submitted, the Commission found that the wetland policies
containing guidance for defining and delineating wetlands were inconsistent with past
Commission decisions. Also lacking were development standards and procedures for
the establishment of buffers, mitigation ratios and monitoring programs. Suggested
Modifications 88 through 93 correct these deficiencies and clarify any inconsistencies
between the LUP and past Commission action, thereby ensuring consistency with the
Coastal Act.
Suggested Modifications 89 and 90 deal with the definition of wetland and the manner in
which wetlands are delineated. As submitted, Policy 4.2.2 -1 of the LUP contains a
statement that wetlands do not include vernally wet areas where the soils are not hydric.
However, the Commission has previously found these types of vernally wet areas
generally to qualify as wetlands, especially where there is a preponderance of wetland
vegetation. This statement has been stricken from the policy in order to ensure that the
wetland definition is not improperly limited in the LUP.
To further avoid the application of an unduly narrow definition of wetlands, Policy 4.2.2-
2 has been stricken through Suggested Modification 90. This policy addresses
ambiguity in wetlands delineation. As written, the policy allows a variety of factors to be
considered along with the presence or absence of more than one wetland parameter to
determine whether an area meets the definition of a wetland and to delineate wetland
boundaries. The City's approach to defining and delineating wetlands is inconsistent
with the California Code of Regulations definition of wetland, which only requires the
presence of one parameter to constitute a wetland.
Although vegetation is often the most readily observed parameter, sole reliance on
vegetation or either of the other parameters as the determinant of wetlands can
sometimes be misleading. Many plant species can grow successfully in both wetlands
and non - wetlands, and hydrophytic vegetation and hydric soils may persist for decades
following alteration of hydrology that will render an area a non - wetland. Where
ambiguities in wetland delineation exist due to the demonstrated presence of both
upland and wetland characteristics, factors other than the standard field indicators of
wetland hydrology, wetland vegetation and wetland soils may be analyzed as part of the
delineation. Such factors may include topography, soil permeability, drainage patterns,
adjacency to identified wetlands, and comparisons of hydrology at the ambiguous site
and at nearby upland and wetland reference sites following significant rainfall events.
The simple lack of field indicators of hydrology during a routine delineation is not strong
evidence of upland characteristics.
The elimination of Policy 4.2.2 -2 is necessary to prevent misinterpretation of the
Commission's one parameter test. The corresponding narrative has been stricken
Page: 81
• l
NPB- MAJ -1 -04
City of Newport Beach LUP Update
through Suggested Modification 88. As modified, the LUP will contain appropriate
protections for wetlands, consistent with Section 30233 of the Coastal Act.
Suggested Modification 91 establishes minimum buffer sizes for wetlands to ensure that
wetlands are adequately protected from potential impacts of adjacent development.
The modification requires a minimum 100 -foot wide buffer, but creates a two -part test in
which a smaller buffer could be accepted. Smaller wetland buffers may be allowed only
where it can be demonstrated that 1) a 100 -foot wide buffer is not possible due to site -
specific constraints, and 2) the proposed narrower buffer would be amply protective of
the biological integrity of the wetland given the site - specific characteristics of the
resource and of the type and intensity of disturbance. Allowing for the application of a
narrower buffer is necessary to accommodate development on shallow lots where
development cannot be sited any further inland, such as bulkheaded properties along
the Bay and those along the Semeniuk Slough. Even when a narrower buffer is
allowed, the buffer must be proven to be amply protective of the resource.
Establishment of wetland buffer standards is necessary to protect wetland resources
consistent with Section 30231 of the Coastal Act.
Suggested Modifications 92 and 93 clarify that haul -out boat yards are not an allowable
use in wetlands and open coastal waters. These facilities could be accommodated
immediately adjacent to open coastal waters and their existence is not dependent on
being located in wetlands or open coastal waters. As such, the policy modification is
necessary to ensure that only uses consistent with Section 30233 of the Coastal Act are
allowed in coastal waters and wetlands.
To further protect wetland resources, Suggested Modifications 96 and 97 provide
standards for mitigation and monitoring when wetland impacts are permitted. As
modified, adverse impacts must be mitigated at a ratio of 3:1 for impacts to seasonal
wetlands, freshwater marsh and riparian areas, and at a ratio of 4:1 for impacts to
vernal pools and saltmarsh (the ratio representing the acreage of the area to be
restored /created to the acreage of the area diked or filled), unless the applicant provides
evidence establishing, and the approving authority finds, that restoration or creation of a
lesser area of wetlands will fully mitigate the adverse impacts of the dike or fill project.
The policy specifies that the mitigation ratio can not be less than 2:1 unless, prior to the
development impacts, the mitigation is completed and is empirically demonstrated to
meet performance criteria that establish that the created or restored wetlands are
functionally equivalent or superior to the impacted wetlands. The mitigation shall occur
on -site wherever possible. Where not possible, mitigation should occur in the same
watershed.
The mitigation ratios established by the Suggested Modification are consistent with past
Commission action. The success rate of wetlands restoration is less than 100 %. To
compensate for the potential that a wetlands creation or restoration project is not
successful, the Commission has traditionally required more than a 1:1 mitigation ratio
(i.e. the creation of more than one acre of wetlands for every one acre of wetland which
is filled). Creating more wetlands than would be lost increases the potential that the
.- 14
o�
NPB- MAJ -1 -04
City of Newport Beach LUP Update
number of acres of created wetlands which successfully establish, in the end, is at least
equal to the number of wetlands filled. Furthermore, a wetland mitigation ratio in excess
of one to one can compensate for wetland acreage and functional capacity lost during
the establishment and maturation of the mitigation area. Many actions by the
Commission have required a mitigation ratio of four to one (e.g. 5 -90 -913, 5 -92 -408, 5-
93 -276, among others).
If an appropriate restoration site is unavailable, Policy 4.2.3 -9 (C) allows applicants to
pay an in -lieu fee to a public agency for the purchase and restoration of a wetland area
within the same general region (e.g. same estuary). The use of in -lieu fees is only
allowed for small projects with minor amounts of fill where mitigation for such fill by an
individual would be impractical and excessive. The in -lieu fee approach is only
appropriate in cases where fill cannot be avoided, such as the construction of a
bulkhead to protect an existing development.
Eelgrass
The LUP presents a conceptual eelgrass mitigation program for establishing a baseline
of eelgrass and then allowing projects that impact eelgrass to occur so long as the
baseline is maintained. The narrative of Suggested Modification 104 makes clear that
the program has yet to be fully reviewed and will require approval from various
resources agencies. Specifically, any eelgrass program will require Commission review,
as the eelgrass meadows are located within the Commission's area of original
jurisdiction. Chapter 3 of the Coastal Act will be the standard of review for such a
program.
Policy 4.2.5 -2 specifies that mitigation is not required where eelgrass migrates from a
mitigation area into an area that did not previously contain eelgrass. This is inconsistent
with standard NMFS practice under the Southern California Eelgrass Mitigation Policy.
Eelgrass that migrates commands the same level of protection as that in the mitigation
area. As such, Suggested Modification 105 strikes this policy. The protection of
eelgrass is necessary to ensure biological productivity of coastal waters, consistent with
Section 30231 of the Coastal Act.
As submitted, Policy 4.2.5 -4 allows successful eelgrass restoration sites to serve as
mitigation sites for City projects and as a mitigation bank for private dredging impacts.
The mitigation program has not yet been reviewed. This policy has been stricken
through Suggested Modification 106. The removal of this policy ensures that all
eelgrass restoration sites will be reserved until such time as a mitigation program is
reviewed and approved.
Water Quality
The LUP includes policies that address preserving and restoring natural hydrologic
conditions on site, such as retention and infiltration; pollution prevention and source
control practices; post- construction phase runoff control and Best Management
Page: 83
ING
R► O
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Practices (BMPs); reduction of impervious surfaces; construction phase runoff control;
BMP maintenance; water quality education; and waste discharge systems. These
policies, as submitted, were deemed adequate as submitted to carry out Sections
30230, 30231 and 30232 of the Coastal Act.
However, not all of the policies included in the LUP were sufficiently detailed to protect
water quality in Newport Beach's coastal zone, especially with regards to specific
references to state and regional restrictions and goals. These policies have been
expanded to include references to the specific load allocation for Newport Harbor and
the Municipal Stormwater permit approved by the Regional Water Quality Control
Board. Suggested Modifications 110 through 113 provide additional detail, thereby
ensuring conformance with Sections 30230, 30231 and 30232 of the Coastal Act.
Dredging and Beach Nourishment
Suggested Modifications 94, 100, 101, 102 and 103 address appropriate dredging
methods and the placement of dredged material. Suggested Modification 100 makes
clear that dredging must be carried out in a manner that avoids disruption to marine and
wildlife habitats and water circulation. Material placement must also be placed in a
manner that minimizes adverse impacts on the environment, as specified by Suggested
Modification 101. Lastly, Suggested Modifications 102 and 103 are necessary to
explicate that the material removed from erosion control and a flood control facilities that
is deemed suitable for beach replenishment should be transported to appropriate
beaches or into suitable long shore currents. The incorporation of these additions and
changes ensures consistency with Sections 30230, 30231 and 30233.
Archaeological Resources
Section 4.5.1 of the LUP addresses Paleontological and Archaeological Resources. In
denying the LUP, the Commission found the policies did not contain sufficient direction
for the preparation and submittal of monitoring and mitigation plans. Suggested
Modification 137 requires submittal of a mitigation plan. Mitigation measures
considered in the plan may range from in -situ preservation to recovery andfor
relocation. Suggested Modification 138 requires in situ preservation and avoidance to
be considered before paleontological or archaeological materials are donated to a public
or private institution. Suggested Modification 139 requires the submittal of an
archeologicalfcultural resources monitoring plan. As modified, the LUP offers adequate
protection of archaeological resources consistent with Section 30244 of the Coastal Act.
Conclusion
Therefore, as revised through the suggested modifications, the Commission finds that
the Coastal Resource Protection chapter of the LUP is in conformance with and
adequate to carry out the resource protection policies of the Coastal Act.
�l
NPB- MAJ -1 -04
City of Newport Beach LUP Update
2. Land Use and Development
Visitor - serving and Recreational Development
In denying the LUP, the Commission found that many of Newport Beach's tourist
destinations, including the Newport Pier, Balboa Pier and Balboa Island, have not been
designated as visitor - serving areas. Section 30222 of the Coastal Act prioritizes use of
private lands suitable for visitor - serving commercial recreational facilities designed to
enhance public opportunities for coastal recreation over private residential, general
industrial, or general commercial development. The LUP must carry forward this
requirement.
Suggested Modifications 5, 6 and 7 include narrative revisions that clearly identify the
boundaries of clearly visitor - serving areas within the City, including the core areas of
McFadden Square at the Newport Pier, Balboa Village at the Balboa Pier, and Marine
Avenue on Balboa Island. Suggested Modification 18 specifies that non - priority
commercial uses must be prohibited on the ground floor within these primary visitor -
serving cores. As modified, the land use designations remain unchanged, but a policy
specifies which types of commercial uses will not be permitted. These include Daycare;
Residential Care; Building Materials and Services; Funeral and Internment Services;
Laboratories; Health /Fitness Clubs; Research and Development; SRO Residential
Hotels; Industry; Mining and Processing; Clubs and Lodges; Government Offices;
Religious Assembly; Major Utilities; Animal Hospitals; Maintenance and Repair
Services; Offices, Business and Professional (not serving visitors); Vehicle Sales and
Vehicle Storage. Without a specific restriction, the aforementioned commercial uses
would be permitted under the RSC designation. The restrictions on non - priority
commercial uses are intended to apply to proposals to construct facilities for the
enumerated uses. Thus, the restriction on religious assembly, for example, is not
intended to, and does not, restrict the actual act of assembly (which is also likely to be
exempt as a "temporary event "); it is intended only to prohibit the construction of
permanent facilities designated exclusively for religious use in the visitor - serving areas.
A lot -by -lot land use survey conducted in the summer of 2005 shows that the majority of
these non - priority uses are not currently in existence in the visitor serving cores. As
such, the policy change will not result in significant change in the existing land use
pattern. The policy change is intended to maintain the uses there now and retain
visitor - serving cores within the City. As modified, the LUP ensures that certain
inappropriate uses are prohibited, thereby ensuring the continued provision of visitor -
serving uses in prime areas. To further ensure the provision of these uses, Suggested
Modification 16 requires the protection of popular visitor destination points for
recreational uses.
Suggested Modification 17 requires upland areas to be reserved for coastal recreation
uses. Suggested Modification 19 makes clear that any use, not just commercial uses,
on a beach that interferes with public access or enjoyment of coastal resources shall be
prohibited. Suggested Modification 20 protects and encourages facilities that serve
Page: 85
q
NPB- MAJ -1 -04
City of Newport Beach LUP Update
marine related businesses and industries. As modified, visitor - serving destinations and
recreational uses are protected in accordance with the Coastal Act.
Planning Study Areas
As described in the preceding section, Suggested Modifications 5, 6 and 7 expand the
policy narrative of 2.1.1 -1 to include a geographic description of primary visitor - serving
cores within the City. These modifications also outline inappropriate land uses for
primary visitor - serving cores. Suggested Modification 18 adds a new policy that
reiterates which uses are prohibited in these areas.
Development Standards
Suggested Modification 12 provides a reference to the development standards of the
City's Zoning Code in the General Development Policies of the LUP. This modification,
suggested by the City, establishes a link to the Zoning Code standards related to
building placement, height and bulk. Suggested Modification 40 requires parking to be
provided in accordance with the standards established in the Zoning Code. Height
limits are established through Suggested Modification 117, which also references the
Zoning Code. The height limits currently allowed in the coastal zone are deemed
appropriate to maintain community character and protect views. Nonetheless,
Suggested Modification 118 is required to restrict projections above curb height on
Ocean Boulevard to protect public views. A change to the standards affecting the
coastal zone would require an LUP amendment.
As modified, the LUP provides adequate development standards to allow for clear
interpretation and accurate implementation of the policies.
Industrial Development
New policies have been added to address the siting of industrial development in the
coastal zone. Suggested Modification 24 requires new hazardous industrial
development to be located away from existing developed areas. Suggested
Modifications 25 and 26 encourage coastal dependent industrial uses to locate or
expand within existing sites and prioritizes coastal dependent industrial uses over other
industrial uses on or near the shoreline. These modifications are necessary to find the
LUP consistent with Sections 30250(b) and 30260 of the Coastal Act.
Suggested Modifications 27 and 28 strike the City's prohibition of onshore oil facilities
because they are in direct conflict with Section 30262 of the Coastal Act. Nevertheless,
omitting this ban in the LUP has no effect on the content or implementation of the City
Charter.
MOMEM,
NPB- MAJ -1 -04
City of Newport Beach LUP Update
Hazards
The hazard policies of Section 2.8 have been revised and supplemented through
Suggested Modifications 29 through 36. Suggested Modification 29 offers a reiteration
of Section 30253 of the Coastal Act, requiring new development to assure stability to
avoid the need for a protective device. This policy would apply to all development in
potentially hazardous sites, including bluff and beachfront lots.
Suggested Modification 30 addresses the provision of tsunami information and
evacuation plans at overnight visitor - serving facilities. As modified, coastal visitors
would be provided the information necessary to safely leave the area if necessary. To
further protect against hazards resulting from tsunamis, Suggested Modification 31
requires the City to periodically update its policies to reflect current tsunami data,
including inundation maps and design standards.
Suggested Modification 32 addresses shoreline management plans for areas subject to
wave hazards and erosion. This modification makes clear that management plans must
evaluate the feasibility of hazard avoidance, restoration of sand supply, beach
nourishment and planned retreat before considering any other method of protection.
Similarly, Policy 2.8.6 -7 has been modified through Suggested Modification 34 to clarify
that protective devices should only be considered after the methods listed above.
Suggested Modification 33 makes policy language changes to clarify that protective
devices should only be considered to protect principal structures and only affords such
protection unless a waiver of future shoreline protection was required by a previous
coastal development permit. As modified, the policy reflects the Commission's
interpretation and application of Section 30235 of the Coastal Act. Lastly, Suggested
Modification 35 makes clear that owners of bluff properties (not only beach and
shoreline) are required to record waivers of future shoreline protection when new
development is approved. As modified, the policies are in conformance with Sections
30253 and 30235 of the Coastal Act.
Conclusion
Therefore, as modified through the suggested modifications, the Commission finds that
the Land Use and Development chapter of the LUP is in conformance with and
adequate to carry out the development policies of the Coastal Act.
3. Public Access and Recreation
In denying the LUP as submitted, the Commission found the policies of the LUP
insufficient to carry out the public access and recreation requirements of the Coastal
Act. Suggested Modifications 42 through 61 address inadequacies and offer additional
language to maximize public access opportunities.
Suggested Modification 42 clarifies that public access to coastal waters and tidelands is
protected. Suggested Modifications 43, 44 and 45 deal with direct dedication and offers
to dedicate (OTD) public accessways. Policies 3.1.1 -11 and 3.1.1 -12 have been
Page: 87
9 a
NPB- MAJ -1 -04
City of Newport Beach LUP Update
modified to clarify the siting and sizing requirements of dedicated accessways. More
specificity has also been added to these policies to encourage the acceptance,
improvement and opening of OTDs to ensure that impacts to public access are truly
mitigated at the time of development. As addressed in the Commission's denial of the
LUP, the LUP relies only on the acquisition of OTDs to mitigate for development
impacts to public access. Therefore, policy revisions have been made to encourage
direct dedications where feasible. These additions ensure that public access is
provided in accordance with Sections 30210 and 30212 of the Coastal Act.
To further ensure the maximum provision of public access, Suggested Modification 50
adds a policy encouraging the creation of new public accessways to ensure that access
opportunities are at least considered when new development is proposed. This policy
applies in areas such as the Shorecliffs community, where the streets are public but all
accessways to the beach are private. Opportunities for future accessways must also be
reflected on the access map, as required by Suggested Modification 51.
The policies regarding the protection and expansion of boating facilities in Newport
Beach have been supplemented by Suggested Modification 60. To ensure that the
needs of all boat users are addressed, additional guidance has been included to
encourage the provision of a variety of slip types. As modified, lower cost recreational
opportunities are protected, consistent with Section 30213 of the Coastal Act.
The inadequate provision of parking and the creation of private gated communities can
adversely impact public access. Suggested Modifications 54, 55, 56 and 57 prohibit the
establishment of new gated communities and preferential parking districts that will
impact public access. These modifications are required to ensure the protection of
public access consistent with Sections 30210 and 30212 of the Coastal Act.
Conclusion
Therefore, as modified through the suggested modifications, the Commission finds that
the Public Access and Recreation chapter of the LUP is in conformance with and
adequate to carry out the public access and recreation policies of the Coastal Act.
•- -
95
NPB- MAJ -1 -04
City of Newport Beach LUP Update
4. Standards, Procedures and Definitions
Various corrections and changes that did not fall within the issue areas cited above are
addressed here. Suggested Modification 1 requires that all maps within the document
be numbered. This will provide easier reference within the LUP document.
Modifications have been made to the introductory chapter of the LUP to clarify
procedural matters. Suggested Modification 2 describes the physical boundaries to
which the LUP applies. Suggested Modification 3 removes the provision that would
allow the City to resolve conflicts between policies in the LUP through "balancing." As
discussed in the Commission's denial of the LUP, balancing is used to resolve conflicts
between Coastal Act policies. Suggested Modification 4 makes clear how coastal
development permits will be considered after certification. The paragraph now makes
clear that after certification of an LCP, coastal development permit authority is
delegated to the appropriate local government. In approving coastal development
permits, the local government must make the finding that the development conforms to
the certified LCP. The paragraph also makes clear that the Commission will retain
permit jurisdiction in certain areas and have appeal authority under certain
circumstances.
Glossary changes are addressed in Suggested Modifications 141 through 166.
Definitions have been expanded and clarified so that they are consistent with the
Coastal Act, California Code of Regulations or the Commission's use of the word or
term to ensure interpretation of policies in accordance with the Coastal Act.
Conclusion
Therefore, as modified through the suggested modifications, the Commission finds that
the Introduction and Glossary of the LUP are in conformance with and adequate to carry
out the policies of the Coastal Act.
VII. CONSISTENCY WITH THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT
Section 21080.5 of the California Environmental Quality Act (CEQA) exempts local
governments from the requirement of preparing an environmental impact report (EIR) in
connection with a local coastal program (LCP). Instead, the CEQA responsibilities are
assigned to the Coastal Commission. Additionally, the Commission's Local Coastal
Program review and approval procedures have been found by the Resources Agency to
be functionally equivalent to the environmental review process. Thus, under Section
21080.5 of CEQA, the Commission is relieved of the responsibility to prepare an
environmental impact report for each local coastal program submitted for Commission
review and approval. Nevertheless, the Commission is required when approving a local
coastal program to find that the local coastal program does conform with the provisions
of CEQA.
•- :•
01 y
NPB- MAJ -1 -04
City of Newport Beach LUP Update
The proposed LUP amendment has been found not to be in conformance with several
Coastal Act policies regarding protecting environmentally sensitive habitat areas,
coastal bluff development, protection of the marine habitat, and promoting visitor
serving uses. Thus, the LUP amendment is not adequate to carry out and is not in
conformity with the policies of Chapter 3 of the Coastal Act. Furthermore, the proposed
LCP amendment would result in significant adverse environmental impacts within the
meaning of the California Environmental Quality Act. To resolve the concerns identified
suggested modifications have been made to the City's Land Use Plan. Without the
incorporation of these suggested modification; the LUPA, as submitted, is not adequate
to carry out and is not in conformity with the policies of Chapter 3 of the Coastal Act.
The suggested modifications minimize or mitigate any potentially significant
environmental impacts of the Land Use Plan Amendment. As modified, the
Commission finds that approval of the Land Use Plan amendment will not result in
significant adverse environmental impacts within the meaning of the California
Environmental Quality Act.
Given the proposed suggested modifications, the Commission finds that the City of
Newport Beach Local Coastal Program Amendment 1 -04, as modified, will not result in
significant unmitigated adverse environmental impacts under the meaning of the CEQA.
Further, future individual projects will require coastal development permits issued by the
Coastal Commission (until such time as the City receives full LCP certification).
Throughout the coastal zone, specific impacts associated with individual development
projects are assessed through the coastal development permit review process; thus, an
individual project's compliance with CEQA would be assured. Therefore, the
Commission finds that there are no feasible alternatives within the meaning of CEQA
that would reduce the potential for significant adverse environmental impacts.
Page: 90
0
Attachment 2
CLUP Timeline
rim
City of Newport Beach
Coastal Land Use Plan
NPB- MAJ -1 -04
Timeline
07/02/04 The City's application is submitted to the California Coastal
Commission (CCC) South Coast Area office.
07/16/04 A letter is received from District Manager Teresa Henry stating that
the application was deemed to be incomplete.
07/23/04 The materials requested in the incomplete letter are submitted to
the South Coast Area office.
08/02/04 The City's application is deemed complete. CCC staff states that
they routinely request the maximum one -year time extension, but
that the review would not take the entire year.
08/30/04 The City submits a letter to the Coastal Commission supporting the
request by the CCC staff to extend 90 -day time limit for action on
the application. The City requests that CCC staff complete the
review process in an expeditious manner with the goal of a hearing
at the March 2005 meeting in Orange County.
09/10/04 Coastal Commission approves one -year time extension.
09/17/04 The City requests the minutes of the September 2004 Coastal
Commission meeting.
11/30/04 The City sends the first of several inquires on the status of the
application. Telephone messages and a -malls go unanswered.
01/24/05 The City receives the minutes of the September 2004 Coastal
Commission meeting.
02/01/05 City staff reports to the the LCP Certification Committee ( LCPCC)
on the lack of response by CCC staff. The LCPCC directs staff to
request a meeting with Senior Deputy Director Deborah Lee to
discuss the status of the City's application.
02/25/05 City staff meets with with CCC staff. Senior Deputy Director Lee
admitted that they had been waiting for Coastal Program Analyst
Anne Blemker to return from maturity leave. She also committed
CCC staff to have formal comments to the City by the end of April
2005 with the goal of a June Coastal Commission hearing in Long
l
Beach. She said that the City would need to respond to these
comments by May 17, 2005.
03/28/05 City staff meets with CCC staff to discuss CCC staffs concerns.
CCC staff promises to have technical comments to the City by April
8, 2005.
04/01 -08/05 CCC staff submits a series of "minor edits and questions" to City
staff.
04/11/05 City staff reports to the LCPCC that CCC staff has not submitted
technical comments as promised.
04/15/05 CCC staff sends the response to CCC staff's "minor edits and
questions."
04/18/05 City staff meets with CCC staff to discuss the City's response to
their "minor edits and questions."
05/05/05 City staff receives CCC staffs "suggested modifications"
05/16/05 City staff meets with CCC staff to discuss the "suggested
modifications." City staff expressed concerns that the "suggested
modifications" were hurriedly prepared using language taken from
other LCPs and project conditions.
05/23/05 City staff meets with CCC staff to discuss the "suggested
modifications" that were not addressed at the May 16, 2005
meeting. City staff expressed concern that the modifications would
result in redundant policies and inconsistencies in the document.
06/20/05 The LCPCC meets to review the CCC staffs "suggested
modifications" and to direct a response.
06/28/05 The LCPCC meets to review the CCC staff's "suggested
modifications" and to direct a response.
06/30/05 The LCPCC meets to review the CCC staffs "suggested
modifications" and to direct a response.
07/11/05 City staff sends a response to each of the CCC staff's "suggested
modifications" offering either alternative language or a reason why
the original language should remain.
07/22/05 The City submits a letter to Senior Deputy Director Lee expressing
displeasure regarding the lost opportunities for hearings in March,
2 9 b
June, July and August and that the City had received no indication
as to whether or not specific provisions of the Land Use Plan raise
substantial issues as to conformity with the policies of Chapter 3 of
Coastal Act. The City stated that CCC staff must commit to a
timely hearing in September and a concentrated effort to resolve
any outstanding issues as to conformity with the Coastal Act prior
to the expiration of the time extension for action on October 21,
2005.
08/11/05 City staff meets with CCC staff to discuss the July 22, 2005 letter.
CCC staff hands out a new version of their "suggested
modifications."
09/01/05 City staff meets with CCC staff to discuss ESHA and wetlands
issues.
09/01/05 The City receives a letter from Senior Deputy Director Lee in
response to the July 22, 2005 letter. Senior Deputy Director Lee
cites staff vacancies and workload why an earlier hearing was not
possible.
09/08/05 City staff sends a response to the latest version of CCC staff's
"suggested modifications."
09/09/05 CCC staff submits a draft third version of their "suggested
modifications."
09/12/05 City staff meets with CCC staff to discuss the latest version of their
"suggested modifications" and procedures for the hearing. The
meeting focuses on issues where the "suggested modifications"
present structural problems within the document.
09/23/05 CCC staff informs City staff that the staff report will not be ready in
time for the first mailing to the Coastal Commission.
09/27/05 Draft CCC report received (6:00 pm).
3 q9