HomeMy WebLinkAboutSS5 - Oceanfront Encroachments - CorrespondenceReceived After Agenda Printed
April 26, 2016
Item No. SS5
From: City Clerk's Office
Sent: Monday, April 25, 2016 9:23 AM
To: Mulvey, Jennifer; Rieff, Kim
Subject: FW: Peninsula Point encroachment on beach with improvements
From: Wisneski, Brenda
Sent: Monday, April 25, 2016 9:22:30 AM (UTC -08:00) Pacific Time (US & Canada)
To: 'Daren Jorgensen'
Cc: City Clerk's Office; Brown, Leilani; McDonald, Cristal
Subject: RE: Peninsula Point encroachment on beach with improvements
Mr. Jorgensen. Thank you for your comments. Your email will be forward to the City Council for their consideration.
From: Daren Jorgensen [mailto:djorgensen jecsi.com]
Sent: Monday, April 25, 2016 9:17 AM
To: Wisneski, Brenda
Subject: Peninsula Point encroachment on beach with improvements
I have some comments regarding the City Council Study Session scheduled for 4pm on 26 April. My comments
are as follows:
1. Privileging certain property owners with free public land.
I am not sure why property owners who already have property with a beach view and direct beach
access should be entitled special privileges to use valuable public beach for essentially their own purposes.
Some of the improvements are little more than grass or gardens, but others are quite elaborate and extend
hundreds of feet from the properties. See attachments.
If I park so much as 1 ft over my property line in the back alley, I receive a $73 parking ticket. My
encroachment is significantly less of an issue or of the same severity yet there are not special hearings to
provide special benefits to me.
2. Discourages the public and other residents from using public beach/property.
While it is true that the improvements built by private parties on public property are effectively public, many
of the landowners have built structures (logs, fences, etc.) that make it appear as if the public beach is their
own. Moreover, often they will chase away people from these improvements, again, asserting that the
property is their own. Beach visitors and even residents who are not knowledgeable feel discouraged from
using large portions of the beach.
3. Liability. Should someone get hurt in the encroached area is the city liable? If that is the case, how is the
city receiving compensation for taking this risk on behalf of a special class of private citizens?
The solution is pretty clear:
A. All encroachments beyond the 15 ft city easement should be removed at the property owner's
expense. Any that re-emerge in the future should be bulldozed at the property owner's expense.
B. Private property owners building any improvements in the city encroachment should have to provide $5
million or more in liability insurance in case of injury of a public beach user. Private property owners or the
city should also have to post signs that the easement is accessible to the public.
Tx and rgds.
Daren E. Jorgensen
450 Belvue Lane
Newport Beach, CA 92661
+1.909.480.5174 cell
diorgensen@ietenv.net
Received After Agenda Printed
April 26, 2016
Item No. SS5
From: Wisneski, Brenda
Sent: Monday, April 25, 2016 12:10 PM
To: Brown, Leilani; McDonald, Cristal
Subject: FW: Where's the staff preentation?
Attachments: OE and Balboa jpg
For Council distribution related to SS5.
From: Tom Ahern [mailto:swordsman7Ca)gmail.com]
Sent: Monday, April 25, 2016 11:39 AM
To: Wisneski, Brenda
Cc: Brian Ouzunian
Subject: Re: Where's the staff preentation?
Absolutely, though we have already made them well aware that we are furious at their inaction in ameliorating
the negative effects of putting literally hundreds (not an exaggeration) of bicycles on our sidewalks on sunny
weekend days. We would be pleased if you only extended the boardwalk from E to G, where there are several
routes to the wedge, whereas between E and G, the only choices are the narrow street, the sidewalk, or
sand. The city will not put up adequate signage, like the one attached that I suggested to Diane Dixon. We feel
that the city staff and council seem to treat the fifteen bicycle rental shops on the peninsula and their tourist
customers better than us residentsihomeowners.
Your consideration of us would be appreciated.
Tom Ahern
On Mon, Apr 25, 2016 at 10:37 AM, Wisneski, Brenda <BWisneski@newportbeachca.gov> wrote:
I'm certain the City Council would appreciate reviewing your comments. With your permission, I will forward your email
to the City Clerk for distribution to the Council. Please let me know if this is ok.
From: Tom Ahern [mailto:swordsman70)gmail.com]
Sent: Monday, April 25, 2016 10:35 AM
To: Wisneski, Brenda
Cc: Brian Ouzunian
Subject: Re: Where's the staff preentation?
The neighbors in this area are astounded that there is no consideration of extending the boardwalk as part of the
planning by the city staff. We have sent many emails and letters to the entire council pleading for action on
this, but your staff does not even put the extension in the planning cycle!!!! Please do something before some
of the neighbors build a Berlin Wall at E Street to prevent bicyclists from riding on the sidewalks. Others are
considering spike strips for the sidewalks. You have a bicycle plan for skinny tired bikes on Coast Highway,
but no bicycle plan for the far larger bicycle problem of tourists renting beach cruisers and driving them
dangerously on our Peninsula sidewalks. Worse, the Police Department refuses to enforce the existing law
prohibiting it.
Please take the needs of the residents of Peninsula Point into consideration in your planning efforts.
Tom Ahern
1310 East Balboa Boulevard
On Mon, Apr 25, 2016 at 7:34 AM, Wisneski, Brenda <BWisneski a,newportbeachca.gov> wrote:
Good Morning,
Sorry you were not able to locate the link to the presentation. I have provided it below for your convenience. The
presentation does not reference extending the boardwalk, but it is likely to come up during the discussions. Please let
me know if you have additional questions.
http://newportbeach.legistarl.com/newportbeach/meetings/2016/4/1170 A City Council 16-04-
26 Agenda. pdf?id=8cbflfbb-e9e7-4aa2-9c9f-df373d66d511
Brenda Wisneski, AICP
Deputy Community Dcveloprncnt Director
(919) 614-3297
City of Newport Beach I Planning Division 1100 Civic Center Drive I Newport Beach, CA 92660
A responsive, knowledgeable team ofprofessionals guiding community developmentm the public interest
Received After Agenda Printed
April 26, 2016
Item No. SS5
From: City Clerk's Office
Sent: Monday, April 25, 2016 3:25 PM
To: Mulvey, Jennifer; Rieff, Kim
Subject: FW: SS#3 - 4-25-2016
From: Kiff, Dave
Sent: Monday, April 25, 2016 3:25:01 PM (UTC -08:00) Pacific Time (US & Canada)
To: City Clerk's Office
Subject: SS#3 - 4-25-2016
For the record — SS#3
From: Brian H Ouzounian [mailto:brian.oci(c sbcglobal.net]
Sent: Sunday, April 24, 2016 2:23 PM
To: Dept - City Council
Cc: Kiff, Dave; Kiff, Dave
Subject: 4/26/16StudySession/encroachments&BoardWalkExtension
Dear Mayor Dixon and City Council Members:
For some time now there have been advocates of extending the bike path to
the jetty/wedge due to public safety (some distance away from the homes).
I recently attended a CERT (Community Emergency Response Training) meeting
by BPPA on the point where we discussed emergency egress and resident's
need to prepare. one thing became quite important..... extending and
improving the bike path to the jetty and wedge. It would offer one more
way of getting people off the peninsula in case of an emergency as well as
day-to-day safety mixing cars, bikes, strollers, skateboards, wheel
chairs, and anything else that rolls, and pedestrian visitors in general.
I have been informed by the City that there has been movement on this
issue from several angles including private encroachment onto public land
by private homes and some solutions are being proposed and studied at the
upcoming study session this Tuesday, April 26th @ City Hall @ 4:OOPM.
I recommend the following as some discussion points at the study session:
-send out a survey by post card to all the NPB residents to see if they
want this;
-Consider that such an improvement be put on the voting ballot as soon as
possible;
-Consider this vital for emergency egress, which is just a matter of time;
-Consider that it is vital during "big wave days" especially for the
residents;
-Consider that it offers quicker access to the restrooms at Balboa Pier
(versus
residential property);
-Consider that it is vital for every day safety as now we mix cars,
segways, bikes,
strollers,pedestrians, and all rolling devices in an unsafe manner into
Balboa Blvd
and in front of our garages;
-Consider that we spent millions of $$ for visitors to enjoy coming the
city,
accommodate parking, visit the new Marina Park but we put them on the
streets
impeding vehicle egress since we have to stay 3 feet away from any bike
rider by
California law, which renders our two lane boulevard to one lane;
-Consider an update to the Master Bicycle Plan, which excluded the
majority of
bike activity in the city ..... the peninsula, and was promised by
resolution and
Council Member Petros.
-Consider that it would also offer ocean/beach accessibility to the
disabled
Best Regards,
Brian
2
Received After Agenda Printed
April 26, 2016
Item No. SS5
From: City Clerk's Office
Sent: Monday, April 25, 2016 3:26 PM
To: Mulvey, Jennifer; Rieff, Kim
Subject: FW: SS#3 - 4-26-2016
From: Kiff, Dave
Sent: Monday, April 25, 2016 3:25:37 PM (UTC -08:00) Pacific Time (US & Canada)
To: City Clerk's Office
Subject: SS#3 - 4-26-2016
For the record — SS#3
From: Tom Ahern [mailto:swordsman7(cbgmail.com]
Sent: Sunday, April 24, 2016 2:39 PM
To: Brian H Ouzounian
Cc: Dept - City Council; Kiff, Dave; Kiff, Dave
Subject: Re: 4/26/16StudySession/encroachments&BoardWalkExtension
I agree wholeheartedly with Brian's request. What he neglected to mention about all the traffic was the dire
problems are caused by bicycles ridden illegally by tourists on the sidewalks, who bump into strollers,
pedestrians, skateboarders, dogs, residents backing out of garages, and bicyclists riding the opposite way on the
sidewalks. This is especially critical on Balboa Boulevard between E and G, as hundreds of bicyclists a day
pour off the boardwalk at E and onto the sidewalks of Balboa Boulevard, with no alternative but the street or the
sidewalk. Please give us relief! Extend the boardwalk and give us our sidewalks back.
Tom & Priscilla Ahern
1310 E Balboa Boulevard
On Sun, Apr 24, 2016 at 2:22 PM, Brian H Ouzounian <brian.oci(cr�,sbcglobal.net> wrote:
Dear Mayor Dixon and City Council Members:
For some time now there have been advocates of extending the bike path to
the jetty/wedge due to public safety (some distance away from the homes).
I recently attended a CERT (Community Emergency Response Training) meeting
by BPPA on the point where we discussed emergency egress and resident's
need to prepare. One thing became quite important..... extending and
improving the bike path to the jetty and wedge. It would offer one more
way of getting people off the peninsula in case of an emergency as well as
day-to-day safety mixing cars, bikes, strollers, skateboards, wheel
chairs, and anything else that rolls, and pedestrian visitors in general.
I have been informed by the City that there has been movement on this
issue from several angles including private encroachment onto public land
by private homes and some solutions are being proposed and studied at the
upcoming study session this Tuesday, April 26th @ City Hall @ 4:OOPM.
I recommend the following as some discussion points at the study session:
-send out a survey by post card to all the NPB residents to see if they
want this;
-Consider that such an improvement be put on the voting ballot as soon as
possible;
-Consider this vital for emergency egress, which is just a matter of time;
-Consider that it is vital during "big wave days" especially for the
residents;
-Consider that it offers quicker access to the restrooms at Balboa Pier
(versus
residentialproperty);
-Consider that it is vital for every day safety as now we mix cars,
segways, bikes,
strollers,pedestrians, and all rolling devices in an unsafe manner into
Balboa Blvd
and in front of our garages;
-Consider that we spent millions of $$ for visitors to enjoy coming the
City,
accommodate parking, visit the new Marina Park but we put them on the
streets
impeding vehicle egress since we have to stay 3 feet away from any bike
rider by
California law, which renders our two lane boulevard to one lane;
-Consider an update to the Master Bicycle Plan, which excluded the
majority of
bike activity in the city ..... the peninsula, and was promised by
resolution and
Council Member Petros.
-Consider that it would also offer ocean/beach accessibility to the
disabled
Best Regards,
Brian
Tom Ahern
1310 East Balboa Boulevard
Newport Beach CA 92661
Cell 949-293-3696
z
MCGEE 8 ASSOCIATES
LAWYERS
23 CORPORATE PLAZA
SUITE 230
NEWPORT BEACH, CALIFORNIA 92660
TELEPHONE (949) 640-0500
FACSIMILE (949) 640-4015
REFER TO FILE:
060314.01
December 21, 2012
VIA U.S. MAIL & FACSIMILE (949) 644-3020
Dave Kiff
City Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re: Oceanfront Encroachments
Dear Dave:
Following my meeting with you, Kim Brandt, Brenda Wisneski, Leoni Mulvilhill,
and Pat Thomas, on December 10, 2012, I have been in further communication with the
residents' group. The purpose of this letter is to refine the terms of a settlement proposal
intended to achieve a global resolution of all oceanfront encroachment issues at Peninsula
Point, including the Notices of Violation that have been sent to a number of the residents.
Based upon the feedback that I got from you and the City staff at the meeting, my clients
have made a number of additional compromises which I hope will result in a proposal
that both the City and the oceanfront residents will firmly advocate to the California
Coastal Commission.
I. Historical Background
Private landscaping improvements on the sand, at Peninsula Point, have been in
existence for, in some instances since 1911 (over 100 years) (See Newport Beach City
Council Resolution No. 91-80, approving Amendment No. 23 to the LUP, page 3,
History and Status of Encroachments). Somewhat more recently, however, these private
improvements were the subject of two separate surveys that were conducted by the City
of Newport Beach; one in June, 1985, and another in September, 1989. In each survey,
each encroachment was specifically identified by Assessor's Parcel Number and street
Dave Kiff
December 21, 2012
Page 2
address. The 1989 survey conducted by Rattray and Associates, Inc. identifies a variety
of landscape and hardscape features, including ice plant, turf grass, shrubs, trees,
irrigation systems, planter walls, landscaping borders of brick and other materials,
stepping stones, patios, wooden sidewalks, concrete pathways, sculptures, large rocks,
cement urns, flag poles, patio furniture, and even a 10' wooden boat planter. The
oceanward depths of the encroachments shown in the 1985 survey were up to 65'. It is
believed that the 1985 and 1989 City commissioned surveys were related to the City's
effort to adopt a uniform City policy regarding oceanfront encroachments.
The City apparently conducted community outreach with respect to adopting a
City wide policy regarding oceanfront encroachments over a several -year period of time,
starting in approximately 1985. The City met with various residents and groups,
including a group that called itself the Peninsula Point Association. In April, 1989, the
Newport Beach City Council established, and appointed members to, the Oceanfront
Encroachment Citizen's Advisory Committee, pursuant to Resolution No. 89-25. This
Committee spent one year studying all aspects of the oceanfront encroachments,
including the age in nature of the encroachments. The Committee conducted monthly
working sessions and two town hall meetings and in April, 1990, the Committee
submitted its final report to the City Council. In May, 1990, the Newport Beach Planning
Commission recommended initiation of a Local Coastal Program Land Use Plan
amendment to establish a policy regarding oceanfront encroachments. The City Council
held public hearings on what would become proposed Amendment No. 23 in October,
1990. Following its several -year outreach process, on November 26, 1990, the City
Council approved Council Policy L-14 in furtherance of a uniform policy for oceanfront
encroachments and in conformity with various modifications that were sought by the City
to the Land Use Plan ("LUP") of the City's Local Coastal Program ("LCP"). Council
Policy L-14 allowed the installation of private improvements along the oceanfront from
the Santa Ana river channel all the way to E Street, but excluded the residences located
between E Street and Channel Road (Peninsula Point). Apparently, the City excluded the
Peninsula Point residences at the urging of the group known as the Peninsula Point
Association, under the mistaken belief that this association had formal standing as elected
representatives of the Peninsula Point homeowners, including the oceanfront
homeowners. Instead, the Peninsula Point Association was a group that had voluntary
membership and nominal dues assessments, but was not elected by the resident
homeowners and had no right to speak on behalf of the oceanfront homeowners, who had
no representation on this volunteer association. Current oceanfront homeowners report
that the members of this voluntary association consisted primarily of residents living on
the bay side and interior of Peninsula Point.
Dave Kiff
December 21, 2012
Page 3
Once Council Policy L-14 was adopted it was attached to the City's submittal to
the California Coastal Commission which sought to amend (Amendment No. 23) the
City's LUP.
The Coastal Commission unanimously approved Amendment No. 23 to the LUP
on June 11, 1991, after first requiring some changes to the language of the proposed
amendment. The changes related primarily to the charging of fees for an encroachment
permit and mandating that a certain portion of the fees be used to improve beachfront
access for the public. Based upon the language changes required by the Coastal
Commission in the approved version of Amendment No. 23, the City Council, on July 8,
1991 amendment Council Policy L-14 to incorporate the same changes so that it was
consistent with Amendment No. 23.
The LCP, including Amendment No. 23, approved by the Coastal Commission in
1991, as well as Council Policy L-14 prohibited encroachments at Peninsula Point but
stated that "existing trees and ground cover such as ice plant, and natural and indigenous
plants, will be permitted, and are not considered to be an encroachment, and will not
require a permit." As to the remainder of the City, L-12 allows encroachments up to 15'
oceanward of the property lines, but prohibits pressurized irrigation lines and valves
within the encroachment zones; prohibits electrical improvements that require issuance of
a building permit; prohibits objects that exceed 36" in height, with the exception of
landscaping; prohibits encroachments that impact public access or views; and restricts
landscaping in dune habitat areas" to native vegetation. The LCP also requires an annual
encroachment permit and payment of a fee.
On November 5, 1991, a letter was sent by the City of Newport Beach to the
oceanfront property owners of Peninsula Point, signed by John Wolter, a City Engineer,
and copied to the City Manager, City Attorney, and Public Works Director. The letter
advised the Peninsula Point oceanfront property owners that the City Council and the
California Coastal Commission had approved an Amendment to the City's LUP allowing
for the installation of private improvements on the sand, along the oceanfront. The letter
included a copy of Council Policy L-14, an aerial photo of the property owner's
oceanfront parcel showing existing encroachments, and a copy of the City's
Encroachment Surveys of 1985 and 1989. The letter stated that the Peninsula Point
Association, during the hearing process, had requested that the Peninsula Point area be
omitted from Policy L-14 and that notwithstanding the exclusion, Section C.2 of L-14
provided, as follows:
"Encroachments are prohibited oceanward of any residential parcel from a point
250 feet southeast of E Street to Channel Road. Notwithstanding the foregoing,
within the area between 250 feet southeast of E Street and Channel Road existing
Dave Kiff
December 21, 2012
Page 4
trees and ground cover such as ice plant and natural and indigenous plants will
be permitted, and are not considered to be an encroachment and will not require a
permit." (Emphasis added)
The letter went on to state that "Prohibited encroachments shall be removed by
the property owners in accordance with Policy L-14. The Public Works Department will
make an inspection in February 1992 to insure that prohibited encroachments are
removed from the Encroachment Zone."
A number of current Peninsula Point oceanfront homeowners report that
consistent with the letter of November 5, 1991, they were contacted by the Public Works
Department of the City in February, 1992 and property inspections were performed.
During these inspections Public Works told the oceanfront homeowners that the
landscaping, irrigation, and various improvements at ground level, including stepping
stones, could remain in place and were not required to be removed. A copy of the letter of
November 5, 1991 and 1 page (Page 62) of the City's encroachment survey that was
enclosed with the letter is attached (Attachment 1). It shows 50'-65' encroachments
relating to 2050, 2054, and 2058 E. Oceanfront).
Over the ensuing period of 15 years since the adoption of Council Policy L-14
(which has since been renumbered to L-12), thus up to 2006, most of the encroachments
on the oceanfront at Peninsula Point have been continuously in place and known to the
City as a result of the encroachment surveys and the 1992 property inspections. During
this period of time the properties have been transferred from owner to owner, some on
several occasions, without knowledge of both sellers and buyers that the oceanward
encroachments were or could be considered violations of City Policy or the Coastal Act
regulations. Also during this period of time the City, through its Residential Building
Records Report system, which is mandated under the City's Municipal Code, required an
RBR for all residential properties when ownership transferred and generated City
inspections for the propose of comparing the history of City records to what is visible at
the site and to confirm that the property was being utilized within the requirements of the
zoning code and that any construction on the site had been completed with all required
permits. The subject RBRs did not generate notices of any illegal encroachments, even
though a majority of all Peninsula Point oceanfront residences had, at that time, private
improvements on the sand.
In 2006, residents in West Newport illegally caused the grading of coastal sand
dunes outside of their Seashore Drive properties, which caused a chain of events. The
residents that graded down the coastal sand dunes were subjected to legal action by the
Coastal Commission which resulted in an administrative order to restore the dunes,
including detailed dunes design planning and long-term monitoring of the restored dunes
Dave Kiff
December 21, 2012
Page 5
and habitat. An Orange County Register columnist began a series of columns about
beachfront properties including some in West Newport and some at Peninsula Point. This
ultimately led the City to send violation notice letters due to encroachments on the beach,
to a large number of property owners (75 in West Newport and 63 in Peninsula Point).
Following receipt of the violation notices, a group of Peninsula Point oceanfront
homeowners retained counsel and undertook discussions with the City to seek a
resolution relating to the encroachment violation letters.
Numerous meetings were held between the residents' counsel and City staff to
discuss an equitable resolution regarding the Peninsula Point oceanfront encroachment
issues. The meetings with staff lead to the recommendation by staff for a City Council
Study Session and the exchange of red -lined versions of an amendment to Council Policy
L-12 that was attached to the Staff Report for the Study Session. The final version of the
proposed Amendment to Council Policy L-12, incorporating all of the recommended
changes suggested by Council for the Peninsula Point oceanfront homeowners and the
City staff is attached. (Attachment 2). On November 14, 2006, the City Council held a
study session to address those properties at Peninsula Point that had private
improvements on the oceanfront. In general, the council expressed interest in allowing
the existing encroachments to remain in place and a willingness to consider amendments
to Council Policy L-12 which would be forwarded to the California Coastal Commission
for the Commission's review and comment. Following the City Council study session,
Counsel for the Peninsula Point oceanfront homeowners continued to meet with the City
Staff to find an appropriate resolution to the encroachment issues. Such a resolution was
reached in July, 2007, and the then Assistant City Manager, Dave Kiff, sent a letter to
each of the owners of oceanfront properties at Peninsula Point. (Attachment 3).
The July 9, 2007 letter from Dave Kiff to the oceanfront homeowners at Peninsula
Point, which echoed the sentiments of the Council expressed during the November, 2006,
Study Session and which letter was approved by at least some Council members, gave
certain assurances that the oceanfront encroachments then existing were not a violation of
City policy, but would be subject to certain conditions. This "new" City policy was
described by Assistant City Manager Kiff as "a rational policy that both respects Council
Policy L-12 and respects the interests of the Coastal Commission and others to maintain
public access". In brief summary, the new policy required the installation of signs that
indicated that the public was welcome near where the landscaping encroachments
existed; stated that the existing encroachments had been photographed and that no
additions to the landscaping or hardscaping would be permitted; and stated that future
buyers of the property would receive a report of residential building records ("RBR") that
would include information relating to the landscaping encroachments and the City's
interest in keeping these encroachments unchanged so that access to the beach is
preserved. Lastly, the letter stated that "We will support efforts to request that the
Dave Kiff
December 21, 2012
Page 8
4. The existing landscaping along the I Street, L Street, and M Street walkways
that project out onto the beach and which are not immediately adjacent to any
private residences would be an exception to the 15 feet oceanward
encroachment zone. Existing walkways and adjacent landscaping on the
parcels of land owned by the City and located at the extensions ofI Street, L
Street and M Street, which provide attractive and inviting access to the beach
for public visitors, would remain as they currently exist. These street end
parcels are owned by the City. The City's walkway right-of-way is 70 feet
across and the landscaping projects out more than 60'. The justification for
allowing this landscaping beyond the 15 foot encroachment zone would be the
same as it is for the 15 foot encroachment zone, namely that it does not
impede beach access or views and enhances the scenic and visual quality of
the area, while helping to direct the public, in an inviting way, toward the
water's edge
5. Electrical structures that would require the issuance of a building permit
would be prohibited.
6. Pressurized irrigation lines would be prohibited, however, Rainbird sprinklers
or other sprinklers that broadcast water and which originate on private
property, as well as drip irrigation lines in the encroachment zones, would be
allowed This would avoid having any pressurized irrigation lines and valves
on the beach, a prohibition which is consistent with the limitations that apply
to West Newport under Council Policy L-12 and LCP Amendment No. 23.
7. Any hardscape or other objects or improvements that do not exceed 36" in
height, would be allowed. As under existing Council Policy L-12, patio slabs
or decks no higher than 6 inches above grade, walls and/or fences less than
36 inches in height above grade, stepping stones and walk ways at grade, and
other structures such as movable pots of urns, sculptures, or structures with
low walls less than 3 feet in height would be allowed. This is consistent with
the prohibitions that apply to West Newport under Council Policy L-12 and
LUP Amendment No. 23.
8. Homeowners having any landscape or hardscape beyond the 15'
Encroachment Zone would give consent to the City to remove the
encroachments.
9. An annual encroachment permitting process and fee identical to that currently
in place for West Newport would be enacted and the fees collected would be
used for the same mitigation purposes as the encroachment fees now being
collected by the City.
10. The City would agree to amend Council Policy L-12 and to seek an
amendment of the City's LUP to incorporate all of the aforementioned
provisions.
Dave Kiff
December 21, 2012
Page 9
11. No Coastal Development Permits would be required for landscaping and
hardscape within the encroachment zone so long as they met the above
requirements. The NO Vs that have already been issued by the Coastal
Commission would be resolved with a consent order/settlement agreement
rather than a CDP. This would include any plan to remove existing landscape
or hardscape outside of the 1 S foot encroachment zone.
All of the above landscaping and hardscape that would be allowed in the
encroachment zone and at the ends of I, L and M Street can be shown to have consistency
with the City's LUP policies and it should be possible to convince the Coastal
Commission staff that some of the landscaping that it might not otherwise want to
approve constitutes "de minimus" development pursuant to Section 30624.7 of the
Coastal Act and Section 13238.1 of the California Code of Regulations, which allows the
Executive Director of the Coastal Commission to issue a waiver from permit
requirements, if, upon review, the Executive Director determines that the permit
requirements may be waived. In order to do so, the Executive Director must determine
that the development, in this case, landscaping and some hardscape, involves no potential
adverse effect on coastal resources, either individually, or cumulatively, and is consistent
with the Coastal Act.
The obvious benefits of the above terms is that it would allow for a consistent
encroachment policy throughout the City and, in return, the encroachment fees could be
used to improve beach access, perhaps by replacing some of the street -end sidewalks at
Peninsula Point that extend out onto the sandy beach.
It is my understanding that the City staff intends to schedule a Study Session with
the City Council during the month of February, 2013. Please include this letter and
attachments in the Council's Study Session packet and let me know if I can provide any
additional input.
Very truly yours,
GEE & ASSOCIATES
r U.
J ES F. McGEE
JFM: cv
H:\CLIENT\Oceanfront Encroachments\2012\Letters\Kiff 121221.doc