HomeMy WebLinkAbout2017-50 - Authorizing the Submittal of Local Coastal Program Amendment No. LC2013-002 Establishing the East Ocean Front Encroachment Program to the California Coastal Commission (PA2013-057)RESOLUTION NO. 2017-50
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING
THE SUBMITTAL OF LOCAL COASTAL PROGRAM
AMENDMENT NO. LC2013-002 ESTABLISHING THE
EAST OCEAN FRONT ENCROACHMENT AND
REMOVAL AND REPLACEMENT PROGRAM TO THE
CALIFORNIA COASTAL COMMISSION (PA2013-057)
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, the California Coastal Commission effectively certified the City of
Newport Beach's (City) LCP on January 13, 2017, and the City assumed coastal
development permit -issuing authority on January 30, 2017. The LCP is comprised of the
Coastal Land Use Plan (LUP) and Coastal Implementation Plan (IP);
WHEREAS, LCP Amendment No. LC2013-002 creates a comprehensive
encroachment program, similar to the program in place for West Ocean Front, which
remedies the issue of unpermitted development in the City's fee owned15-foot right-of-
way parallel to East Ocean Front;
WHEREAS, removal of unpermitted improvements and replacement with
appropriate materials is required for areas beyond the City's fee owned 15 -foot right-of-
way and in tidelands areas;
WHEREAS, a public hearing was held by the Planning Commission of the City of
Newport Beach on April 9, 2015, 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 recommended the City
Council approve the LUP amendment establishing the East Ocean Front Encroachment
and Removal and Replacement Program;
WHEREAS, a public hearing was held by the City Council of the City of Newport
Beach on July 26, 2016, 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 City Council at this public hearing. At the conclusion of the public
hearing, the City Council approved the LUP amendment establishing the East Ocean
Front Encroachment and Removal and Replacement Program;
Resolution No. 2017-50
Page 2 of 3
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 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 to recommend City Council approval of LCP
Amendment No. LC2013-002 which, as of January 13, 2016 encompasses, the LUP and
IP;
WHEREAS, a public hearing was held by the City Council on July 25, 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; and
WHEREAS, pursuant to Section 13515 of the California Code of Regulations,
review drafts of LCP Amendment No. LC2013-002 were made available and a notice of
the availability was distributed a minimum of six weeks prior the City Council public
hearing.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council does hereby authorize City staff to submit LCP
Amendment No. LC2013-002 to the California Coastal Commission for review and
approval, as attached in Exhibit A, and incorporated herein by reference.
Section 2: LCP Amendment No. LC2013-002 shall not become effective until
approval by the California Coastal Commission and adoption, including any modifications
suggested by the California Coastal Commission, by resolution(s) and/or ordinance(s) of the
City Council of the City of Newport Beach.
Section 4: The LCP including the proposed amendment will be carried out fully in
conformity with the California Coastal Act.
Section 5: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 6: If any section, subsection, sentence, clause or phrase of this resolution
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 resolution. The City Council
hereby declares that it would have passed this resolution, 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 7: Pursuant to the
Environmental Quality Act (CEQA)
exempt from CEQA pursuant to
Regulations, Title 14, and Chapter
exempts local governments from the
report or otherwise complying with
Coastal Program.
Resolution No. 2017-50
Page 3 of 3
authority and criteria contained in the California
LCP Amendment No. LC2013-002 is statutorily
Section 15265(a)(1) of the California Code of
3 of the Coastal Act. Section 15265(a)(1), which
requirements of preparing an environmental impact
CEQA in connection with the adoption of a Local
Section 8: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 25th day of July, 2017.
ATTEST:
AA
("
Leilani . Brown
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Aaron C. Harp
City Attorney
Exhibit A: LCP Amendment No. LC2013-002
EXHIBIT A
Local Coastal Program Amendment (LC2O13-02)
City of Newport Beach Coastal Land Use Plan
Proposed Amendments to Chapter 3.0 Public Access and Recreation
Section 3.1.3 Beach Encroachments
Policies 3.1.3-3 through 3.1.3-9
3.1.3-3. Limit the maximum oceanward extent of encroachments to the following encroachment
zones:
A. Santa Ana River to 52nd Street. A maximum of 15 feet oceanward of the rear (ocean
facing) property line within the oceanward prolongation of the side property lines.
B. 52nd Street to 36th Street. A maximum of 10 feet oceanward of the rear (ocean facing)
property line within the oceanward prolongation of the side property lines.
C. 36th Street to E Street. Between A Street and a point 250 feet southeast of E Street, up
to the inland edge of the Oceanfront Boardwalk (7 to 8 feet oceanward of the rear
property line) and within an oceanward prolongation of the side property lines.
D. E Street to 107 G Street. No encroachments are permitted from a point 250 feet
southeast of E Street to and including 107 G Street, with the exception of landscaping
trees existing prior to October 22, 1991 and groundcover.
E. 1400 East Ocean Front to Channel Road. A maximum of 15 feet oceanward of the rear
(ocean facing) property line within the oceanward prolongation of the side property lines.
3.1.3-4. Limit encroachments within encroachment zones as follows:
A. Prohibit any structural, electrical, plumbing or other improvements that require
issuance of a building permit.
B. Prohibit pressurized irrigation lines and valves.
C. Prohibit any object that exceeds 36 inches in height, with the exception of
landscaping.
D. Prohibit any encroachments that impact public access, recreation, views and/or
coastal resources.
E. Require landscaping to be designed and maintained to avoid impacts to public
access and views.
F. Restrict landscaping in dune habitat areas to native vegetation.
3.1.3-5. Require annual renewal of encroachment permits and a fee.
3.1.3-6. Require encroachment permits to specify that the property owner waives and gives up
any right to contest the validity of the oceanfront street easement, and that the
encroachment permit is revocable, without cause, if the City proposes to construct
public improvements within that zone.
3.1.3-7. Require encroachment permits to specify that the construction of any seawall,
revetment or other erosion control devices, if necessary, shall occur within, or
as close as feasible to, private property.
3.1.3-8. Incorporate into the implementation plan regulations specifying the types of
improvements permitted within encroachment zones, a prohibition on
improvements that could impair or restrict public access or views, procedures for
the encroachment permit applications, City administration of the policy, and
other appropriate provisions.
3.1.3-9. As mitigation for any impact on beach access resulting from the encroachments:
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.
B. Meter West Newport street end parking spaces in the same manner as the West
Newport Park in order to encourage public use of the spaces.
C. Maintain a hard surface walkway perpendicular to Seashore Drive at Orange
Avenue. The walkway shall extend oceanward a sufficient distance to allow a view
of the surfline by an individual seated in a wheelchair. At least one handicapped
parking space shall be designated at the Orange Avenue street end and at least
one other handicapped parking space at one other West Newport street end.
D. Require a minimum of 85 percent of the fees generated by encroachments will be
used for the construction and maintenance of improvements which directly
benefit the beach -going public such as parking spaces, transportation alternatives,
restrooms, vertical or lateral walkways along the beach and similar projects.
City of Newport Beach Coastal Implementation Plan
Proposed Amendments to Appendix C
Appendix C — Oceanfront Encroachment Policy Guidelines
The Oceanfront Encroachment Policy established specific restrictions and conditions on the
installation of private improvements in the public right of way along the oceanfront from the Santa
Ana River Channel to Channel Road.
The policy included a mitigation program involving the reconstruction of 33 unimproved street
ends between 3611 Street and Summit Street to provide additional parking and improved public
access. In 2002, the final five street ends were reconstructed. Pursuant to the mitigation
program, a minimum of 85 percent of the encroachment fees will be used for the construction and
maintenance of improvements which directly benefit the beach -going public such as parking
spaces, restrooms, vertical or lateral walkways along the beach and similar projects.
The Oceanfront Encroachment Policy was originally approved by the Coastal Commission on
June 11, 1991 and finalized by the City Council through the adoption of Resolution No. 91-80 on
July 11, 1991. These restrictions and conditions were incorporated into the Coastal Land Use
Plan, which was approved by the Coastal Commission on October 13, 2005, adopted by the City
Council on December 13, 2005, and became effective on February 8, 2006.
These guidelines are intended to implement the Oceanfront Encroachment Policy by establishing
a procedure for approval of permitted encroachments, removal of prohibited encroachments,
limiting the extent of encroachments, and clarification of improvements permitted within each
encroachment zone.
A. Definitions.
1. For the purpose of this Section, the following words and phrases shall be defined
as specified below:
a. Existing encroachment shall mean any encroachment or improvement
installed or constructed before May 31, 1992.
b. New encroachment shall mean any encroachment or improvement
installed or constructed after May 31, 1992.
C. Improvements or Encroachments shall mean any object, thing or
landscaping:
within or oceanward of any encroachment zone described in this
policy;
ii. within or oceanward of the north edge of the Oceanfront Boardwalk,
between 36th Street and A Street; or
iii. oceanward of any residential parcel from a point 250 feet southeast
of E Street to Channel Road.
d. Encroachment permit shall mean the permit issued by the Public Works
Director authorizing the maintenance or installation of encroachments or
improvements within the encroachment zones described in this policy.
e. Application shall mean any application for an encroachment permit
pursuant to the provisions of this policy and the land use plan of the local
coastal program.
f. Oceanfront Boardwalk, Oceanfront Walk, or sidewalk, shall mean the
concrete walkway along the oceanside of ocean front residential properties
between 36th Street and a point approximately 250 feet southeast of E
Street.
B. Encroachment Zones.
Subject to compliance with the provisions of this policy:
The owner of any ocean front residential parcel between the Santa Ana River and
52nd Street may install improvements on the oceanside of the parcel up to a
maximum of 15 feet oceanward of the private property line and within an
oceanward prolongation of the property lines on the side of the parcel.
2. The owner of any oceanfront residential parcel between 52nd Street and 36th
Street may install improvements on the ocean side of the parcel up to a maximum
of 10 feet oceanward of the private property line and within an oceanward
prolongation of the property lines on the side of the parcel.
3. The owner of any oceanfront residential parcel between A Street and a point 250
feet southeast of E Street may install improvements up to the inland edge of the
Oceanfront Boardwalk and within an oceanward prolongation of the property lines
on the side of the parcel.
4. The owner of any oceanfront residential parcel between and including 1400 East
Ocean Front and Channel Road may install improvements on the oceanside of the
parcel up to a maximum of 15 feet oceanward of the private property line and within
an oceanward prolongation of the property lines on the side of the parcel.
C. Prohibited Encroachments.
Encroachments and improvements are prohibited oceanward of private property
between 36th Street and A Street.
2. Encroachments and improvements are prohibited oceanward of any ocean front
parcel from a point 250 feet southeast of E Street to and including 107 G Street,
with the exception of landscaping trees existing prior to October 22, 1991, and
groundcover.
3. Any existing encroachment or improvement for which no application has been filed
on or before May 31, 1992, and any new encroachment or improvement for which
no application is filed prior to installation is prohibited.
4. Any new or existing encroachment or improvement which, on or after July 1, 1992,
is not in conformance with this policy is prohibited.
5. Any new or existing encroachment or improvement for which there is no valid
permit.
D. Permitted Encroachment/Improvements.
Subject to compliance with the provisions of this policy, the following improvements are permitted
within the encroachment zones described in Section B:
1. Patio slabs or decks no higher than six inches above existing natural grade. The
determination of grade will be made as provided in Section J.
2. Walls and/or fences less than 36 inches in height above existing natural grade.
The determination of grade will be made as provided in Section J.
3. Existing improvements which were constructed in conjunction with development
for which a building permit was issued may be approved by the Public Works
Director upon a finding that the improvement is consistent with or is modified to be
consistent with the standards of this chapter.
4. . Where a shoreline protective device per Section 21.30.030(Natural Landform
and Shoreline Protection) cannot be sited within private property, it may be sited
as close as feasible to private property. In no event shall a shoreline protective
device be constructed to protect a private encroachment authorized on a public
right-of-way.
E. Prohibited Improvements.
1. Except for perimeter walls and/or fences less than 36 inches in height, any
structural, electrical, plumbing or other improvements which require issuance of a
building permit.
2. Pressurized irrigation lines and valves.
3. Any object which exceeds 36 inches in height, exclusive of the following:
a. trees planted by the City of Newport Beach or private parties pursuant to
written policy of the City Council of the City of Newport Beach; or
b. any landscaping or vegetation within the encroachment zone subject to the
following:
The vegetation or landscaping was installed prior to the first
effective date of this policy;
ii. The vegetation or landscaping does not block views from adjoining
property;
iii. The vegetation or landscaping does not function as a hedge as
defined in Title 20 of the Newport Beach Municipal Code; and
iv. The vegetation or landscaping does not impair or affect the health,
safety or welfare of persons using the oceanfront Walk, nearby
property owners, or residents of the area.
V. New plant materials that have not been approved by a coastal
development permit issued by the Coastal Commission.
Notwithstanding the provisions of this Subparagraph, the City reserves the right to reduce the
height of any existing landscaping at any time, upon a determination by the Public Works Director,
and after notice to the owner of property on which the vegetation or landscaping exists, that a
reduction in height is necessary or appropriate given the purposes of this policy.
F. Permit Process.
1. An encroachment permit shall be required for all permitted improvements. The
application shall be filed with the Public Works Department on a form provided by
the City. The application shall be signed by the owner of the property, or an agent
of the owner if the application is accompanied by a document, signed by the owner,
granting the agent the power to act for the owner with respect to the property. The
application shall be accompanied by a site plan, drawn to scale and fully
dimensioned, which accurately depicts the location, height, nature and extent of
all proposed improvements and objects within the encroachment zone.
Applications with incomplete information and/or inadequate drawings will not be
accepted.
2. Applications for existing encroachments must be filed on or before May 31, 1992.
Applications for new encroachments shall be filed before any encroachment or
improvement is installed. No new encroachments or improvements shall be
installed without an encroachment permit.
3. Upon receipt of the application, the Public Works Director shall, within fifteen (15)
days after the date of filing, determine if the application is complete or if additional
information is necessary or appropriate to an evaluation of the application. In the
event the application is incomplete or additional information is necessary, written
notice to that effect shall be sent to the property owner within twenty (20) days
after the application is filed.
4. With respect to applications for existing encroachments, an inspection shall be
conducted of all improvements within the encroachment zone before a permit is
issued by the Public Works Director. With respect to applications for new
encroachments, an on site inspection will be conducted after installation of the
improvements to insure conformity with provisions of the permit and this Section.
5. The Public Works Director shall approve the permit upon a determination that the
encroachments proposed to be constructed, or to remain, are permitted by this
Section, the applicant has agreed to abide by all of the terms and conditions
imposed on the permit, and the applicant has paid all fees.
6. The Public Works Director shall have the authority to condition his/her approval of
the encroachment permit as necessary or appropriate to insure compliance with
the provisions of this Section. The Public Works Director shall have the specific
authority to condition approval of an encroachment permit on the removal of
nonconforming improvements within a specified period of time.
7. The Public Works Director shall notify the applicant of his/her decision within sixty
(60) days after the application is filed and the decision of the Public Works Director
shall be final.
G. Term.
1. Except as provided in this Section, annual encroachment permits shall expire on
June 30 of each calendar year.
2. Encroachment permits issued prior to June 30, 1992 shall expire June 30, 1993.
H. Renewal.
1. Annual renewal fees shall be due and payable on or before May 31 preceeding the
annual term of the permit. For example: Annual renewal fees due on May 31,
2001, are for the period July 1, 2001 through June 30, 2002.
2. The Public Works Director shall approve annual renewal if:
a. The applicant has complied with all standard and special conditions of
approval;
b. The applicant has constructed only those improvements and
encroachments authorized by the permit;
C. The applicant is in compliance with all of the provisions of this policy.
Standard Conditions.
The Public Works Director shall impose standard conditions of approval on all
encroachment permits. These standard conditions shall include, without limitation,
the following:
a. The obligation of permittee to comply with all of the provisions of this policy
and all conditions imposed upon the permit.
b. The right of the Public Works Director to revoke any permit after notice and
hearing if the permittee is in violation of this policy or conditions to the
permit.
C. The right of the City to summarily abate encroachments or improvements
which are prohibited by this policy or conditions on the permit upon ten (10)
day's written notice.
d. The obligation of permittee to pay all costs incurred by the City in summarily
abating any prohibited improvement.
e. The obligation of permittee to defend, indemnify and hold the City and its
employees harmless from and against any loss or damage arising from the
use or existence of the improvements or encroachment.
f. Permittee's waiver of any right to contest the City's street and public access
easement over property within or oceanward of the encroachment zones.
g. The right of the Public Works Director or his designee to inspect
improvements within the encroachment zone without notice to the
permittee.
h. The right of the City to cancel or modify any, or all, encroachment permit(s)
upon a determination by the City Council to construct a public facility or
improvement within or adjacent to the encroachment zone.
2. The construction of any seawall, revetment or other device necessary to control
erosion, shall occur as close to private property as feasible.
Erosion control devices shall not be placed or installed closer to the ocean to
protect improvements or encroachments.
3. The Public Works Director may impose additional standard conditions necessary
or appropriate to insure compliance with, or facilitate City administration of this
policy.
J. Determination of Grade.
1. The nature of the beach makes a precise determination of grade difficult. The level
of the sand changes with wind, storm, and tidal conditions. The Public Works
Director shall determine the level from which the height of encroachments and
improvements is to be measured. In making this determination, the Public Works
Director shall consider the following criteria:
a. The existing natural grade in the area;
d. Any data on the historic elevation of the beach in that area.
K. Annual Fee.
1. The fees based on the depths of encroachment shown below shall be established
by resolution of the City Council and paid annually as a condition of the issuance
of encroachment permits:
Depth of Encroachment
0 - 5 feet
5 - 7 1/2 feet
7 1/2 - 10 feet
10 - 15 feet
2. For purposes of determining fees, the average depth of the encroachment shall be
used. However, the maximum depth shall not exceed the limitations specified in
Section B. A dimensional tolerance not to exceed 12 inches may be allowed in
determining the appropriate fee to be paid by persons with existing
encroachments.
3. The annual fee shall be due and payable upon submittal of the application for the
initial encroachment permit. Renewal fees shall be due May 31 of each year. The
fee shall be considered delinquent thirty (30) days thereafter. Delinquent fees shall
be established by resolution of the City Council.
4. The annual fee shall be used to defray City costs of administration, incidental costs
of improvements on street ends along the oceanfront, and incidental costs to
enhance public access and use of the ocean beaches. At least eighty-five (85%)
percent of the fees shall be used by the City to implement the mitigation plan as
required by Amendment No. 23 to the Land Use Plan of the City's Local Coastal
Program. (See Section M.)
L. Violations/Remedy.
1. The City shall, in addition to any right or remedy provided by law, have the right to
do any or all of the following in the event a permittee is in violation of the provisions
of this policy or any condition to the permit, or any encroachment or improvement
violates the provisions of this policy:
a. Revoke the permit after giving the permittee notice and an opportunity to
be heard upon a determination that there is substantial evidence to support
a violation of this policy. The Public Works Director shall establish the
specific procedures designed to insure that permittee receives due process
of law.
b. Summarily abate any encroachment or improvement violative of this policy
after giving the permittee or property owner ten (10) day's written notice of
its intention to do so in the event the permittee or property owner fails to
remove the encroachment or improvement. The permittee or property
owner shall pay all costs incurred by the City in summarily abating the
encroachment or improvement. The determination of the Public Works
Director with respect to abatement shall be final.
M. Mitigation Plan.
To mitigate any impact on beach access resulting from the encroachments, the City shall:
1. Reconstruct thirty-three unimproved street ends between 36th Street and Summit
to provide additional parking and approved access in accordance with the
following:
a. The reconstruction shall provide a minimum, where feasible, of two parking
spaces per street end and shall proceed in substantial conformance with
the standard drawing, attached as exhibit "A."
b. The City shall use at least eighty-five percent (85%) of the fees to fund
reconstruction of street ends until all have been improved. The City will use
its best efforts to improve three or more street ends per year (except during
the year when vertical handicapped access is constructed), and anticipates
that funding will be adequate to do so.
C. West Newport street -end parking spaces shall be metered in the same
manner as the West Newport Park in order to encourage public use of the
spaces.
2. Within three years after Council approval of this Resolution, City shall construct a
hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The
walkway shall extend oceanward a sufficient distance to allow a view of the surfline
by an individual seated in a wheelchair. At least one handicapped parking space
shall be designated at the Orange Avenue street end. City shall designate at least
one other handicapped space at one of the first three street ends improved.
3. Subsequent to the reconstruction of all West Newport street ends, at least eighty-
five percent (85%) of the fees generated by encroachments will be used for the
construction of improvements which directly benefit the beach going public such
as parking spaces, transportation alternatives, rest rooms, vertical or lateral
walkways along the beach and similar projects.
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH 1
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 resolution, being Resolution
No. 2017-50 was duly introduced before and adopted by the City Council of said City at a regular meeting
of said Council held on the 251h day of July, 2017, and that the same was so passed and adopted by the
following vote, to wit:
AYES: Council Member Jeff Herdman, Council Member Diane Dixon, Council Member
Scott Peotter, Council Member Will O'Neill, Mayor Pro Tem Duffy Duffield, Mayor
Kevin Muldoon
NAYS: None
RECUSED: Council Member Brad Avery
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 261h day of July, 2017.
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Leilani I. Brown
City Clerk
Newport Beach, California