HomeMy WebLinkAbout04 - Two Offers to Dedicate Open Space EasementsCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 4
August 12, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Resolution 2008 -_ Acceptance of Two Offers to Dedicate ( "OTDs ")
Open Space Easements
ISSUE:
Should the City accept title to certain easements that secure certain tidelands as open
space?
RECOMMENDATION:
Adopt Resolution 2008- accepting two easements securing tidelands as open
space within Newport Bay.
DISCUSSION:
The people of California approved the Coastal Conservation Initiative (Proposition 20) in
1972. In 1976, the State Legislature wrote and approved implementing legislation to
Proposition 20 that became the California Coastal Act. The Act:
• Sets forth a Coastal Zone all along California's 1,100 miles of shoreline — roughly a line
between the shoreline and the first major inland public road;
• Established a commission of 12 members called the California Coastal Commission;
• Directs the Commission to regulate residential, commercial, and recreational activity within
the Coastal Zone via Coastal Development Permits (CDPs) to protect and enhance public
access and services to coastal visitors;
• Authorizes the Commission to approve Local Coastal Programs (LCPs) which allow local
governments to act on behalf of the Commission using Commission - approved policies when
considering coastal development.
• Sets forth policies which:
Protect and expand public access
Protect, enhance, and restore environmentally sensitive habitat areas (ESHAs)
Protect the scenic beauty of coastlines and seascapes;
Establish urban -rural boundaries that "avoid wasteful urban sprawl"
Provide for the environmentally - sensitive expansion of ports & coastal- dependent industrial uses.
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August 12, 2008
Page 2
Provide for the environmentally - sensitive expansion of ports & coastal- dependent
industrial uses.
The Act's overriding intent was to protect and expand public access to and the
protection of California's coastal resources:
"Development shall not interfere with the public's right of access to the sea
where acquired through use or legislative authorization, including, but not
limited to, the use of dry sand and rocky coastal beaches to the first line of
terrestrial vegetation. (Public Resources Code §30211).
"(a) Public access from the nearest public roadway to the shoreline and along
the coast shall be provided in new development projects except where (1) it is
inconsistent with public safety, military security needs, or the protection of
fragile coastal resources, (2) adequate access exists nearby, or (3)
agriculture would be adversely affected. Dedicated accessways shall not be
required to be opened to public use until a public agency or private
association agrees to accept responsibility for maintenance and liability of the
accessway" (Public Resources Code §30212).
The Commission and local governments mitigate impacts on the physical supply
of open space and public access to coastal resources from new development by
requiring the person requesting a CDP to make an Offer -to- Dedicate (OTD) a
public access or an open space easement. OTDs are generally required for
development between the first public road and the sea. The Commission and
LCPs generally require the use of OTDs as follows:
Lateral easements compensate for the impacts to public use when development
encroaches onto a public beach or impacts existing public access;
Vertical easements compensate when development would block access to the
beach from the upland road or bluff; or
Open space areas that can be retained as open space in perpetuity.
Generally, when the Commission or local government requires an OTD for
mitigation of a development project, the condition language requires the applicant
to record the OTD prior to the Commission's issuance of the CDP. OTDs expire
21 years from the date that the OTD is recorded.
The easements themselves do not ensure public access nor do they ensure the
protection of open space. To ensure these, a local government or an
"acceptable" non - governmental organization (NGO) must accept a recorded OTD
and ultimately provide for and manage the accessway or the open space. Most
LCPs encourage, but do not require, local governments to accept OTDs.
Newport Beach's approved Coastal Land Use Plan contains the following policies
on OTDs in Newport Beach:
3.1.1 -13. 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
Offers to Dedicate Open Space
August 12, 2008
Page 3
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).
3.1.1 -14. 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.
3.1.1 -15. Encourage the acceptance, improvement and opening of OTDs to the
public by the City, a public agency, a private association, or other appropriate
entity.
3.1.1 -16. Require all direct dedications or OTDs for public access to be made to
a public agency 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.
These policies generally encourage the acceptance, improvement and opening
of OTDs to ensure that impacts to public access are truly mitigated at the time of
development.
Newport Beach's OTDs. Since the Commission began requiring public access
OTDs as a part of the CDP process, twenty -one of the twenty -two (22) public
access OTDs within the city limits have been accepted. The Council accepted
sixteen of these on December 13, 2005. If an OTD expires, the access
easement goes away as the land reverts to the private property owner's control.
One OTD — at 701 Lido Park Partnership — was deferred to provide better notice
to the residents of the four -unit condominium project at 701 -707 Lido Park Drive.
This access easement has not yet been brought before the City Council because
staff has not had time to meet with the affected residents.
Two new OTDs have been brought to our attention by the Coastal Commission
staff — but these are Offers to Dedicate open space, not public access. The open
space happens to be in Lower Newport Bay above a "paper street" near China
Cove. Accepting these OTDs — one of which overlies the other — is a fairly
straightforward process with little consequence to use or access beyond ensuring
that this land is in the public realm for the long -term future. I confirmed this with
the City Attorney and with the Risk Manager.
Environmental Review: The City Council's approval of this Agenda Item is
exempt from CEQA per the General Rule Exemption, because there is no
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August 12, 2008
Page 4
possibility that this Council action will have a significant effect on the
environment.
Public Notice: This agenda item may be noticed according to the Brown Act (72
hours in advance of the public meeting at which the City Council considers the
item).
Submitted by:
Dav <iff
Assistant City Manager
Attachments: Attachment A — Resolution 2008 -
Exhibit A to Attachment A — Certificate of Acceptance and Coastal
Commission's list of OTDs
Exhibit B — Diagram of Affected Open Space Easements
Offers to Dedicate Open Space
August 12, 2008
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Attachment A
RESOLUTION 2008-
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NEWPORT BEACH
RELATING TO THE CITY'S ACCEPTANCE OF IRREVOCABLE
OFFERS TO DEDICATE EASEMENTS FOR OPEN SPACE
WHEREAS, the City of Newport Beach has an approved Coastal Land
Use Plan which promotes the goal of providing access to the shoreline and
protection of various uses in the Bay; and
WHEREAS, the California Coastal Commission has secured two (2)
Irrevocable Offers to Dedicate Open Space Easements, more particularly
described in Exhibit "A" of the Certificate of Acceptance attached hereto and by
reference made a part hereof, from individual property owners in Newport Beach,
and
WHEREAS, City staff has reviewed these Irrevocable Offers to Dedicate
Open Space Easements and has determined that acceptance of the Irrevocable
Offers to Dedicate Open Space Easements by the City would be beneficial to the
City and the public in general; and
WHEREAS, said Irrevocable Offers to Dedicate Open Space Easements
have been presented to this City Council for its consideration and acceptance,
and
WHEREAS, City staff has reviewed the Irrevocable Offers to Dedicate
Open Space Easements and recommends that the Irrevocable Offers to
Dedicate Open Space Easements be accepted.
NOW, THEREFORE, BE IT RESOLVED that the City of Newport Beach
that it hereby accepts the interests in real property conveyed by the Irrevocable
Offers to Dedicate Open Space Easements filed for record in the Official Records
at the office of the Orange County Recorder as described in Exhibit "A" of the
attached Certificate of Acceptance, and the City of Newport Beach authorizes
and directs the City Manager or his designee to execute and record in said
Official Records the aforementioned Certificate of Acceptance.
Offers to Dedicate Open Space
August 12, 2008
Page 6
ADOPTED this 12°i Day of August, 2008
EDWARD SELICH
MAYOR
ATTEST:
LAVONNE HARKLESS
CITY CLERK
Offers to Dedicate Open Space
August 12, 2008
Page 7
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CALIFORNIA COASTAL COMMISSION
725 Front Street, Suite 300
Santa Cruz, CA 95060 -4508
(Legal Division)
STATE OF CALIFORNIA OFFICIAL BUSINESS
Document entitled to free recordation pursuant to Government Code §27383
CERTIFICATE OF ACCEPTANCE
This is to certify that the interests in real properties conveyed by the Irrevocable Offers
to Dedicate identified in Exhibit A, attached hereto and incorporated herein by
reference, and recorded in the Official Records of Orange County, are hereby accepted
by the City of Newport Beach, a political subdivision of the State of California, on the
date of recording, pursuant to authority conferred by Resolution No. of the City
Council of the City of Newport Beach adopted on August 12, 2008, and the Grantee
consents to recordation thereof by its duly authorized officer.
Dated: CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, , a
Notary Public personally appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
ARY PUBLIC
Offers to Dedicate Open Space
August 12, 2008
Page 8
ACKNOWLEDGMENT BY THE CALIFORNIA COASTAL COMMISSION
OF ACCEPTANCE OF IRREVOCABLE OFFERS TO DEDICATE
This is to certify that the City of Newport Beach is a political subdivision of the State of
California, acceptable to the Executive Director of the California Coastal Commission to
be Grantee under the Irrevocable Offers to Dedicate described in the aforementioned
Exhibit A, and filed in the Official Records at the office of the County Recorder of
Orange County.
Dated:
CALIFORNIA COASTAL COMMISSION
John Bowers, Staff Counsel
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On , before me, JEFF G. STABEN, a Notary Public
personally appeared JOHN BOWERS, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that he /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
NOTARY PUBLIC
Offers to Dedicate Open Space
August 92, 2008
Page 9
EXHIBIT A
Two (2) Irrevocable Offers to Dedicate Open Space
City of Newport Beach, California
GRANTOR
PERMIT
NO.
ADDRESS
Beauchamp
5 -86 -612
2717 -19 Shell Street
(Open Space OTD)
Schroeder
5 -86 -613
2717 -19 Shell Street
(Open Space OTD)
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PROPERTY OWNEPSxxaS IN cx�g' --OVE
State owned lands and Tidelands
aeiaon City owned lands
Privately owned lands
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*mm-m Tidelands "=t: AdjaWicated
line of mean thigh tide
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Offers to Dedicate Open Space
August 12, 2008
Page 11
Note:
All right -of -way dedicate! to the
City of Newport Beach for Street
purposes -.
All lots bnyward of shorel,irae held
by upland owners, except those on
Rock Street aid Wa $ t+rFs:.ch
are held by Ce rtru�� 141e #3_
McCall, Idaho
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