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HomeMy WebLinkAbout2018-16 - Amending Title 21 of the Newport Beach Municipal Code to Approve Local Coastal Program Amendment No. LC2017-002, as Modified by the California Coastal Commission (PA2017-047)ORDINANCE NO. 2018-16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING TITLE 21 OF THE NEWPORT BEACH MUNICIPAL CODE TO APPROVE LOCAL COASTAL PROGRAM AMENDMENT NO. LC2017-002, AS MODIFIED BY THE CALIFORNIA COASTAL COMMISSION (PA2017-047) WHEREAS, Section 30500 of the Public Resources Code requires each county and city to prepare a local coastal program ("LCP") for that portion of the coastal zone within its jurisdiction,- WHEREAS, urisdiction; WHEREAS, the California Coastal Commission ("Coastal Commission") effectively certified the City of Newport Beach ("City") LCP on January 13, 2017, and the City assumed coastal development permit -issuing authority on January 30, 2017; WHEREAS, LCP Amendment No. LC2017-002 is necessary to address issues that have arisen since the LCP was certified, incorporate land use and property regulations adopted by the City after submission of the LCP to the Coastal Commission and to clarify LCP administrative procedures; WHEREAS, a public hearing was held by the Planning Commission of the City of Newport Beach on May 4, 2017, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the Newport Beach Municipal Code ("NBMC") and Section 13515 of the California Code of Regulations. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. At the conclusion of the public hearing, the Planning Commission voted (5 ayes, 0 noes, 2 absent) to adopt Planning Commission Resolution No. 2055, recommending City Council approval of LCP Amendment No. LC2017-002; WHEREAS, public hearings were held by the City Council of the City of Newport Beach (City Council) on July 11, 2017, and on September 12, 2017, in the Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with the NBMC and Section 13515 of the California Code of Regulations. Evidence, both written and oral, was presented to, and considered by, the City Council at this public hearing; WHEREAS, pursuant to Section 13515 of the California Code of Regulations, review drafts of LCP Amendment No. LC2017-002 were made available and a notice of the availability was distributed a minimum of six weeks prior the City Council public hearing; WHEREAS, on September 12, 2017, the City Council adopted Resolution No. 2017-56 authorizing the submittal of LCP Amendment No. LC2017-002 to the Coastal Commission; WHEREAS, Resolution No. 2017-56 specified that LCP Amendment No. LC2017-002 shall not become effective until approval by the Coastal Commission and adoption, including any modifications suggested by the Coastal Commission, by resolution(s) and/or ordinance(s) of the City Council; Ordinance No. 2018-16 Page 2 of 9 WHEREAS, at the July 11, 2018, Coastal Commission hearing in Scotts Valley, California, the Coastal Commission approved, with modifications, LCP Amendment Request No. 3-17 (LCP-5-NPB-17-0053-1), which included portions of LCP Amendment No. LC2017-002; and WHEREAS, a public hearing was held on October 23, 2018, in the Council Chambers located at 100 Civic Center Drive, Newport Beach. A notice of time, place and purpose of the hearing was given in accordance with the NBMC and California Public Resources Code Section 30503. Evidence, both written and oral, was presented to, and considered by, the City Council at this hearing. NOW THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: Section 1: The recitals provided above are true and correct and are incorporated into the operative part of this ordinance. Section 2: Pursuant to the authority and criteria contained in the California Environmental Quality Act ("CEQA"), LCP Amendment No. LC2017-002 is statutorily exempt from CEQA pursuant to Section 15265(a)(1) of the California Code of Regulations, Title 14, and Chapter 3 of the Coastal Act. Section 15265(a)(1), which exempts local governments from the requirements of preparing an environmental impact report or otherwise complying with CEQA in connection with the adoption of a Local Coastal Program. Section 3: The LCP, including LCP Amendment No. LC2017-002, will be carried out fully in conformity with the California Coastal Act. Section 4: The City Council of the City of Newport Beach, California, hereby amends Title 21 of the Newport Beach Municipal Code to adopt LCP Amendment No. LC2017-002 with Coastal Commission's suggested modifications, as attached in Exhibit A, and incorporated herein by reference. Section 5: The City Council hereby authorizes City staff to submit this ordinance for determination by the Executive Director of the Coastal Commission that this action is legally adequate to satisfy the specific requirements of Coastal Commission's July 11, 2018 action on LCP Amendment Request No. 3-17 (LCP-5-NPB-17-0053-1). Section 6: This ordinance shall not become effective for thirty days and until the Executive Director of the Coastal Commission certifies that this ordinance complies with the Coastal Commission's July 11, 2018 action on LCP Amendment Request No. 3-17 (LCP-5-NPB- 17-0053-1). Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published pursuant to City Charter Section 414. Ordinance No. 2018-16 Page 3 of 9 Section 8: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 9: Except as specifically modified in this ordinance, all other sentences, paragraphs, subsections, sections, chapters, and titles of the NBMC shall remain unchanged and in effect. Section 10: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, California, held on 23rd day of October, 2018, and adopted on the 13th day of November, 2018, by the following vote to -wit: AYES: Council Member Jeff Herdman, Council Member Kevin Muldoon Council Member Diane Dixon, Council Member Scott Peotter, Council Member Brad Avery Mayor Pro Tem Will O'Neill, Mayor Duffy Duffield NAYS: None MA SHALL "D FFY" DUFFIELD, MAYOR ATTEST: 04 LEILANI BROWN, CITY CLERK It ; Uo APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE t%C- AARON C. HARP, CITY ATTORNEY Ordinance No. 2018-16 Page 4 of 9 EXHIBIT A LCP Amendment No. LC2017-002 1. Amend NBMC Section 21.26.055 to add Section 21.26.055(V) to read as follows, with all other provisions of NBMC Section 21.26.055 remaining unchanged: V. Lido Villas (PC -59) 1. Lot Size: 52,099 square feet (1.2 acres). 2. Density/Intensity Limit: twenty-three (23) dwelling units. 3. Setbacks. a. Via Lido: 9 feet (first floor); 4 feet, 5 inches (second floor). b. Via Malaga: 7 feet, 3 inches (first floor); 6 feet, 6 inches (second floor). c. Via Oporto: 6 feet (first floor); 3 feet (second floor). d. North Interior Property Line: 5 feet. 4. Height: Thirty-five (35) feet. TABLE 21.6-10 ALLOWED USES Lido Villas (PC -59) A Allowed — Not Allowed " Land Use See Part 7 of this Implementation Plan for land use definitions. See Chapter 21.12 for unlisted uses. PC -59 Specific Use Regulations Residential - Home Occupations A Multi -Unit Dwellings A Visitor Accommodations, Residential Short -Term Lodging A Other Uses Utilities, Minor A Wireless Telecommunication Facilities A Chapter 21.49 Accessory Structures and Uses A Personal Property Sales A Special Events A Temporary Uses A Ordinance No. 2018-16 Page 5 of 9 2. Amend NBMC Section 21.30.075(B)(4)(b) to read as follows.- b. ollows: b. Landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. Lawn areas shall be exempt from the healthy and growing condition provision when the City Council has declared a Level Three water supply shortage and all lawn, landscape, and other vegetated areas shall be exempt from the healthy and growing condition requirement when the City Council has declared a Level Four water supply shortage. 3. Amend Table 21.50-1 of NBMC Section 21.50.020 to read as follows, with all other provisions of NBMC Section 21.50.020 remaining unchanged: TABLE 21.50-1 REVIEW AUTHORITY Lido Villas (PC -59) TABLE 21.26-10 Type of Action ALLOWED USES A Allowed — Not Allowed Land Use See Part 7 of this Implementation Plan for PC -59 Specific Use Regulations land use definitions. Resources Commission See Chapter 21.12 for unlisted uses. Coastal Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular coastal zoning district, are not allowed, except as provided by Chapter 21.12 (Interpretation of Implementation Plan Provisions). 2. Amend NBMC Section 21.30.075(B)(4)(b) to read as follows.- b. ollows: b. Landscaped areas shall be maintained in a healthy and growing condition and shall receive regular pruning, fertilizing, mowing and trimming. Lawn areas shall be exempt from the healthy and growing condition provision when the City Council has declared a Level Three water supply shortage and all lawn, landscape, and other vegetated areas shall be exempt from the healthy and growing condition requirement when the City Council has declared a Level Four water supply shortage. 3. Amend Table 21.50-1 of NBMC Section 21.50.020 to read as follows, with all other provisions of NBMC Section 21.50.020 remaining unchanged: TABLE 21.50-1 REVIEW AUTHORITY Role of Review Authority (1) Type of Action Applicable Code Harbor Chapter/Section Director Zoning Resources Commission Council Coastal Administrator Manager (2) Commission Administrative and Legislative Interpretations Section 21.12.020 Determination Appeal Appeal Appeal (8) LCP Amendments Recommend De( Decision (4) )ion Approvals in Section 21.52.015 Determination Determination Appeal Appeal Concept (3) (5) Waiver for De Determination Minimis Section 21.52.055 (9) Development Permits and Approvals Coastal Development Section 21.52.015 Decision (6) Appeal Appeal Decision (7) Permits Appeal (2) Emergency Coastal Development Section 21.52.025 Decision (3) Appeal Appeal Permits Ordinance No. 2018-16 Page 6 of 9 Role of Review Authority (1) Applicable Code Type of Action Harbor Chapter/Section Zoning Council Coastal Director Administrator Resources Commission (2) Commission Manager Notes: (1) 'Recommend" means that the Commission makes a recommendation to the Council; "Determination" and "Decision" mean that the review authority makes the final determination or decision on the matter; "Appeal' means that the review authority may consider and decide upon appeals to the decision of a previous decision-making body, in compliance with Chapter 21.64 (Appeals and Calls for Review). (2) The Council is the final review authority for all applications in the City. A decision by the City on a Coastal Development Permit application within the appeal areas depicted on the Permit and Appeal Jurisdiction Map or a project that constitutes a major public works project or energy facility may be appealed to the Coastal Commission in compliance with Chapter 21.64 (Appeals and Calls for Review). (3) The Director or Zoning Administrator may defer action and refer the request to the Commission for consideration and final action. (4) The California Coastal Commission is the final decision making authority on amendments to the Local Coastal Program. See Chapter 21.66 (Amendments). (5) For development located on tidelands or submerged lands that did not involve a discretionary action authorized by this Implementation Plan where the authority is specifically assigned to the Council, Commission, Director, or Zoning Administrator. (6) If the project also requires another discretionary approval (e.g., conditional use permit, variance, etc.), then the applicable review authority shall be the authority for the other discretionary approval. (7) All development on tidelands, submerged lands, and public trust lands as described in California Public Resources Code Section 30519(b) and in deferred certification areas designated by the Local Coastal Program shall require a permit issued by the Coastal Commission in accordance with procedures specified by the Coastal Commission, in addition to other permits or approvals required by the City. (8) Appeal procedure for interpretations shall only apply to interpretations made by the Director on the determination of whether a development is categorically excluded, exempt, non -appealable or appealable to the Coastal Commission according to the dispute resolution process in compliance with Section 21.50.050(6). (9) A waiver shall not take effect until after the Director makes his/her report to the City Council. If two members of the City Council so request, such issuance shall not be effective and, instead, the application for a coastal development permit shall be processed in accordance with the coastal development permit provisions of Chapter 21.52 (Coastal Development Permit Review Procedures). 4. Amend NBMC Section 21.52.015(H) to read as follows H. Notice of Final Action. Within seven calendar days of the date of the City's final local action on an exemption or coastal development permit application and meeting the requirements of Title 14 California Code of Regulations section 13570, a notice of its final action shall be sent, by first class mail, to the applicant, the Coastal Commission, and any persons who specifically request such notice by submitting a self-addressed, stamped envelope to the City. Such notice shall be accompanied by a copy of the exemption, denial, or coastal development permit approval with conditions of approval and written findings and the procedures for appeal of the action to the Coastal Commission. Ordinance No. 2018-16 Page 7of9 5. Amend NBMC Section 21.52.035(C)(4)(c) to read as follows: c. Any repair or maintenance to facilities or structures or work located in an environmentally sensitive habitat area, or any sand area, within fifty (50) feet of the edge of a coastal bluff or environmentally sensitive habitat area; or within twenty (20) feet of any coastal waters and streams that include: i. The placement or removal, whether temporary or permanent, of riprap, rocks, sand or other beach materials or any other forms of solid materials; ii. The presence, whether temporary or permanent, of mechanized equipment or construction materials, except that the use of such equipment solely for routine beach cleaning and park maintenance shall not require a coastal development permit; iii. All repair and maintenance activities governed by subsection (C)(4) shall be subject to the permit regulations promulgated pursuant to the Coastal Act, including but not limited to the regulations governing administrative and emergency permits. The provisions of subsection (C)(4) shall not be applicable to those activities specifically in the document entitled Repair, Maintenance and Utility Hookups, adopted by the Commission on September 5, 1978 unless a proposed activity will have a risk of substantial adverse impact on public access, environmentally sensitive habitat area, wetlands, or public views to the ocean. 6. Amend NBMC Section 21.52.035(C)(4) to add the following: d. Unless destroyed by disaster, the replacement of fifty (50) percent or more of a single- family residence, seawall, revetment, bluff retaining wall, breakwater, groin or any other structure is not repair and maintenance under California Public Resources Code Section 30610(d) but instead constitutes a replacement structure requiring a coastal development permit. 7. Amend NBMC Section 21.52.055 to add the following: F. Report to the City Council. The Director shall report to the City Council at its next available public hearing those projects for which waivers are proposed, with sufficient description to give notice of the proposed development to the City Council. A list of waivers issued by the Director shall be available for public inspection at the public counter of the Community Development Department and at the City Council meeting during which any waivers are reported. A waiver shall not take effect until after the Director makes his/her report to the City Council. If two members of the City Council so request, such issuance shall not be effective and, instead, the application for a coastal development permit shall be processed in accordance with the coastal development permit provisions of this chapter. 8. Amend NBMC Chapter 21.62 to add Section 21.62.050 to read as follows: Section 21.62.050 Public Hearing Waiver for Minor Development. Ordinance No. 2018-16 Page 8 of 9 A. Purpose. The purpose of this section is to provide a process, in accordance with Section 30624.9 of the Coastal Act, through which the public hearing requirement may be waived for certain minor developments that require coastal development permits. B. Minor Development Defined. For purposes of this section, "minor development" means a development that the Director determines satisfies all of the following requirements: 1. Is consistent with the certified Local Coastal Program; 2. Requires no discretionary approvals other than a coastal development permit, and 3. Has no adverse effect either individually or cumulatively on coastal resources or public access to the shoreline or along the coast. C. Procedure. The Director may waive the requirement for a public hearing on a Coastal Development Permit application for a minor development, if all of the following occur: 1. Notice is mailed or delivered to all persons and agencies required to be notified under Section 21.62.020(B)(2). The notice shall contain all of the information required in Section 21.62.020(A). In addition, the notice of waiver of public hearing for the pending application shall contain all the following: a. A statement that a public hearing will be held upon the request of any person provided that such request is received by the Department within fifteen (15) working days from the date of sending the notice; and b. For proposed development within the appealable area, a statement that failure by a person to submit a request for a public hearing may result in the loss of that person's ability to appeal to the Coastal Commission any action taken by the City on a coastal development permit application in this matter. 2. No request for public hearing is received by the Department within fifteen (15) working days from the date of sending the notice pursuant to subsection (1) of this section. 3. Upon receipt of a request for a hearing, the Department shall schedule the matter for a public hearing and issue notice of such hearing consistent with the provisions of this Chapter. 9. Amend NBMC Section 21.64.020(A) to read as follows: A. Director. Interpretations of the Director may be appealed or called for review to the Planning Commission, with the exception of waivers for de minimis development, which are reported to the City Council pursuant to Section 21.52.055(E). Ordinance No. 2018-16 Page 9 of 9 10. Amend NBMC Section 21.64.035(C) to read as follows: C. Exhaustion of City Appeals Required. An applicant or other aggrieved person may appeal a City decision on a Coastal Development Permit application to the Coastal Commission only after exhausting all appeals to the Planning Commission and Council in compliance with this Chapter. Exhaustion of all local appeals shall not apply to any circumstance identified in Code of Regulations Section 13573(a), including, but not limited to, the following circumstances: 1. An appellant was denied the right of the initial local appeal under this Chapter because City notice and hearing procedures did not comply with Title 14, Division 5.5, Chapter 8, Subchapter 2, Article 17 of the California Code of Regulations; or 2. The local government jurisdiction charges an appeal fee for the filing or processing of appeals. In addition, in accordance with Code of Regulations Section 13573(b), there shall be no requirement of exhaustion of local appeals when an appeal of a City decision is filed by two members of the Coastal Commission in compliance with Public Resources Code Section 30625. Notice of a Coastal Commissioners' appeal shall be transmitted to the City in compliance with Title 14 California Code of Regulations Section 13111(d). The Director may transmit the Commissioners' appeal to the local appellate body (which considers appeals from the local body that rendered the final decisions subject to the Commissioner appeal), and the Commissioners' appeal may be suspended pending a decision on the merits by that local appellate body. If the final action by an appellate body modifies or reverses the previous decision, the Coastal Commissioners shall be required to file a new appeal from that decision. STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2018-16 was duly introduced on the 23rd day of October, 2018, at a regular meeting, and adopted by the City Council at a regular meeting duly held on the 13th day of November, 2018, and that the same was so passed and adopted by the following vote, to wit: AYES: Council Member Brad Avery, Jeff Herdman, Council Member Duffy Duffield NAYS: None ABSENT: Council Member Kevin Muldoon Council Member Diane Dixon, Council Member Scott Peotter, Mayor Pro Tem Will O'Neill, Mayor IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 14th day of November, 2018. STATE OF CALIFORNIA } COUNTY OF ORANGE } CITY OF NEWPORT BEACH } �dvk J. � Leilani I. Brown, MMC City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION ss. I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2018-16 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation on the following dates: Introduced Ordinance: October 27, 2018 Adopted Ordinance: November 17, 2018 In witness whereof, I have hereunto subscribed my name this day of 2018. A"W4,,, r i A • ClerkCity City of - •• Beach,• STATE OF CALIFORNIA — NATURAL RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, CA 90802-4302 (562)590-5071 TO: Commissioners and Interested Persons FROM: Karl Schwing, Deputy Director Charles Posner, Supervisor of Planning Liliana Roman, Coastal Program Analyst EDMUND G. BROWN, JR., GOVERNOR November 28, 2018 RE: Concurrence with the Executive Director's determination that the action by the City of Newport Beach accepting certification of LCP Amendment No. 3-17 (LCP-5-NPB- 17-0053-1) with suggested modifications is legally adequate. For Commission review at the December 12, 2018 meeting in Newport Beach. On September 25, 2017 the City of Newport Beach submitted a request to amend the Implementation Plan portion of the City's certified Local Coastal Program (LCP). LCP Amendment No. 3-17 (LCP-5- NPB-17-0053-1) corrects a number of inconsistencies and clarifies ambiguities in the IP, adds a new Planned Community (PC -59, Lido Villas), and adds a new regulation to clarify the public notification hearing procedures for minor development. The request was submitted to the Commission's South Coast District office with City Council Resolution No. 2017-45. On July 11, 2018, the Commission approved LCP Amendment No. 3-17 (LCP-5-NPB-17-0053-1) with suggested modifications to provide additional detail and clarifying language, correct numerous reference and enumeration errors, and add a new table identifying the allowed uses within the new PC -59 (Lido Villas) added as part of LCP Amendment No. 3-17. On November 13, 2018, the Newport Beach City Council unanimously adopted Ordinance No. 2018-16, incorporating the modifications suggested by the Commission pursuant to its approval of LCP Amendment No. 3-17. On November 19, 2018, the City submitted Ordinance No. 2018-16 adopted by the City Council to the Executive Director for a determination that the City's action is consistent with the Commission's July 11, 2018 action (see attachment). Pursuant to Section 13544 of the California Code of Regulations, Title 14, Division 5.5, the Executive Director must determine that the action taken by the City of Newport Beach acknowledging receipt and acceptance of and agreement with the Commission's certification of the above -referenced LCP amendment with suggested modifications is legally adequate and report that determination to the Commission. In this case, the Executive Director has determined that the City's action is legally adequate. Unless a majority of the Commissioners object to the Executive Director's determination, the certification of City of Newport Beach Implementation Plan Amendment No. 3-17 shall become effective upon the filing of the required Notice of Certification with the Secretary of Resources as provided in Public Resources Code Section 21080.5(d)(2)(E). STAFF RECOMMENDATION Staff recommends that the Commission concur with the Executive Director's determination that the City's action is legally adequate.