HomeMy WebLinkAboutZA2018-106 - COASTAL DEVELOPMENT PERMIT TO REPLACE AN EXISTING BULKHEAD WITH A NEW CONCRETE BULKHEAD - 1601 EAST BAY AVENUE05-15-2018
RESOLUTION NO. ZA2018-106
A RESOLUTION OF THE ZONING ADMINISTRATOR OF THE
CITY OF NEWPORT BEACH APPROVING COASTAL
DEVELOPMENT PERMIT NO. CD2018-063 TO REPLACE AN
EXISTING BULKHEAD WITH A NEW CONCRETE BULKHEAD
LOCATED AT 1601 EAST BAY AVENUE (PA2018-145)
THE ZONING ADMINISTRATOR OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Jacquelyn Chung for Swift Slip Dock and Pier Builders, Inc.,
with respect to property located at 1601 East Bay Avenue, requesting approval of a coastal
development permit.
2. The lot at 1601 East Bay Avenue is legally described as Lots 1 and 2, Block 25, Eastside
Addition to Balboa Tract and Lots 1 and 2 of a portion of Block “P” of the bay front section
of the Balboa Tract (APNs 048-231-40, 41).
3. The applicant proposes to replace an existing wooden bulkhead with a new pre-cast
concrete bulkhead. The new bulkhead would be constructed to a top of wall elevation of
9.82 feet NAVD88 (10.0 feet MLLW), located inland of the existing wooden bulkhead and
no new seaward encroachment would occur. The project also includes the construction of
a pool, protection fencing, walls, hardscape, landscaping, and drainage features that are
accessory to the existing residence.
4. The subject property is designated RS-D (Single-Unit Residential Detached) by the
General Plan Land Use Element and is located within the R-1 (Single-Unit Residential)
Zoning District.
5. The subject properties are located within the coastal zone. The Coastal Land Use Plan
category is RSD-B (Single Unit Residential Detached) - (6.0-9.9 DU/AC) and it is located
within the R-1 (Single-Unit Residential) Coastal Zone District.
6. A public hearing was held on September 27, 2018, in the Corona del Mar Conference
Room (Bay E-1st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place
and purpose of the hearing was given in accordance with the Newport Beach Municipal
Code. Evidence, both written and oral, was presented to, and considered by, the Zoning
Administrator at this hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project is categorically exempt pursuant to Title 14 of the California Code of
Regulations Sections 15303, Article 19 of Chapter 3, Guidelines for Implementation of the
California Environmental Quality Act (CEQA) under Class 3 (New Construction of
Conversion of Small Structures), because it has no potential to have a significant effect
on the environment.
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2. Class 3 exempts the construction and location of limited numbers of new, small facilities
or structures including accessory structures. The proposed project consists of the
removal of an existing bulkhead and construction of a new bulkhead and accessory
structures associated with an existing single-family residence.
3. The exceptions to this categorical exemption under Section 15300.2 are not applicable.
The project location does not impact an environmental resource of hazardous or critical
concern, does not result in cumulative impacts, does not have a significant effect on the
environment due to unusual circumstances, does not damage scenic resources within
a state scenic highway, is not a hazardous waste site, and is not identified as a historical
resource.
SECTION 3. REQUIRED FINDINGS.
In accordance with Section 21.52.015 (Coastal Development Permits, Findings and Decision)
of the Newport Beach Municipal Code, the following findings and facts in support of such
findings are set forth:
Finding:
A. Conforms to all applicable sections of the certified Local Coastal Program.
Facts in Support of Finding:
1. The proposed development complies with applicable residential development standards
including, but not limited to setbacks and height.
a. The top of the proposed bulkhead wall would be constructed to 9.82 feet
NAVD88 (10.0 MLLW ) in compliance with the Harbor Design Criteria
minimum top of wall height requirement for new bulkheads.
b. The proposed accessory structures comply with the Zoning Code and
Implementation Plan maximum height standards within front setback areas.
2. The proposed concrete bulkhead would be located inland of the existing wooden
bulkhead. Thus, there would be no seaward encroachment of the new bulkhead.
3. A Bulkhead Conditions Report for the existing bulkhead was prepared by William
Simpson & Associates, Inc. dated May 5, 2018. The report concludes that the seawall
is required to protect the existing principal structure on the lot. In order to do so, the
existing seawall shall be replaced in accordance with proposed plans. Once the
replacement is completed, no additional repair or replacement of the seawall is
anticipated for the next 75 years.
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4. A Coastal Hazards Report and Sea Level Rise Analysis was prepared by William
Simpson & Associates, dated May 5, 2018 for the project. The report concludes that
flooding, wave runup and erosion will not significantly impact the property over the
anticipated life of the existing development. The finished floor elevation of the existing
residence is approximately 8.86 feet NAVD88. The report states that future sea level
rise is estimated to reach approximately 8.45 feet NAVD88, considering a 1.25-foot sea
level rise (the low range of projected sea level rise over the 75 -year design life of the
structure based on estimates for sea level rise provided by the National Research
Council 2012 SLR). The current City standard height for bulkheads is 10.0 feet (MLLW )
(9.82 feet (NAVD88)) and the project has been conditioned to replace the seawall to this
elevation standard. Once the existing seawall/bulkhead is replaced in accordance with
the proposed plans, the need for a new shoreline protective device is not anticipated
over the economic life of the development to protect it from flooding, wave runup, or
erosion. If found inadequate for the actual sea level rise over the next 75 years, the
bulkhead assembly allows for it to be increased in height without further seaward
encroachment. Thus, based on the aforementioned assumptions, the site would be
reasonably safe from future sea level rise.
5. Pursuant to NBMC Section 21.30.030(C)(3)(i)(iv), the property owner will be required to
enter into an agreement with the City waiving any potential right to protection to address
situations in the future in which the development is threatened with damage or destruction
by coastal hazards (e.g., waves, erosion, and sea level rise). The property owner will also
be required to acknowledge any hazards present at the site and unconditionally waive any
claim to damage or liability against the decision authority, consistent with NBMC Section
21.30.015(D)(3)(c). Both requirements are included as conditions of approval that will need
to be satisfied prior to the issuance of building permits for construction.
6. The property is located in an area known for the potential of seismic activity and
liquefaction. All projects are required to comply with the California Building Code (CBC)
and Building Division standards and policies. Geotechnical investigations specifically
addressing liquefaction, if required by the Building Department, will be reviewed and
approved prior to the issuance of building permits. Permit issuance is also contingent on
the inclusion of design mitigation identified in the investigations. Construction plans are
reviewed for compliance with approved investigations and CBC prior to building permit
issuance.
7. The property is located along the Newport Bay. A Construction Erosion Control Plan was
provided to implement temporary Best Management Practices (BMPs) during construction
to minimize erosion and sedimentation and to minimize pollution of runoff and coastal
waters derived by construction chemicals and materials. The project design also
addresses water quality through the inclusion of a post construction drainage system that
includes drainage and percolation features designed to retain dry weather and minor rain
event run-off on-site. Any water not retained on-site is directed to the City’s storm drain
system.
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8. Proposed landscaping complies with Implementation Plan Section 21.30.075. A
condition of approval is included that requires drought-tolerant species. Prior to issuance
of building permits, the final landscape plans will be reviewed to verify invasive species
are not planted.
Finding:
B. Conforms with the public access and public recreation policies of Chapter 3 of the
Coastal Act if the project is located between the nearest public road and the sea or
shoreline of any body of water located within the coastal zone.
Fact in Support of Finding:
1. The project site is located between the nearest public road and the sea or shoreline.
Implementation Plan Section 21.30A.040 requires that the provision of public access
bear a reasonable relationship between the requirement and the project’s impact, and
be proportional to the impact. In this case, the project replaces a wooden bulkhead with
a new pre-cast concrete bulkhead that complies with the minimum 9.82 feet NAVD88
top of wall standard. The project also includes improvements such as a pool, walls, and
hardscaping that are accessory to the existing single-family residence. Therefore, the
project does not involve a change in land use, density or intensity that will result in
increased demand on public access and recreation opportunities. Furthermore, the
project is designed and sited (appropriate height, setbacks, etc.) so as not to block or
impede existing public access opportunities.
2. Vertical access to the bay and beach is available adjacent to the site along H street.
Lateral access is available on the large public beach to the south. All improvements are
located within private property, and the project does not include any features that would
physically obstruct access to the water or beach along these public routes.
3. The project site is not located adjacent to a coastal view road or Coastal Viewpoint as
identified in the Coastal Land Use Plan. The nearest coastal viewpoint is located at
the south end of the peninsula and is not visible from the site. The site is located
adjacent to the H Street access point, which is accessible to the public and provides
some limited opportunities to view the bay. As currently developed, the existing
property and other residences along H Street are located within the view shed of the
street end. However, the proposed bulkhead (and accessory structures) comply with
all applicable Local Coastal Program (LCP) development standards and maintain a
front setback area consistent with the existing neighborhood pattern of development.
Additionally, the project does not contain any unique features that could degrade the
visual quality of the coastal zone.
4. All proposed accessory structures comply with the maximum height restrictions for front
setbacks. All structures would be limited to 42” within the front setback (and abandoned
right of way area), with the exception of pool protection fencing required for safety,
which can reach up to five feet maximum from existing grade as long as at least 40
percent of the fence or wall is open (Implementation Plan Section 21.40.040 C, 3).
These requirements would ensure that views are not obstructed.
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SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Zoning Administrator of the City of Newport Beach hereby approves Coastal
Development Permit No. CD2018-063, subject to the conditions set forth in Exhibit “A,”
which is attached hereto and incorporated by reference.
2. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal or call for review is filed with the
Community Development Director in accordance with the provisions of Title 21 Local
Coastal Implementation Plan, of the Newport Beach Municipal Code. Final action taken
by the City may be appealed to the Coastal Commission in compliance with Section
21.64.035 of the City’s certified LCP and Title 14 California Code of Regulations,
Sections 13111 through 13120, and Section 30603 of the Coastal Act.
PASSED, APPROVED, AND ADOPTED THIS 27TH DAY OF SEPTEMBER, 2018.
_____________________________________
Patrick J. Alford, Zoning Administrator
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EXHIBIT “A”
CONDITIONS OF APPROVAL
1. The development shall be in substantial conformance with the approved site plan,
bulkhead plans, and elevations stamped and dated with the date of this approval (except
as modified by applicable conditions of approval).
2. Prior to the issuance of a building permit, an agreement in a form approved by the City
Attorney between the property owner and the City shall be executed and recorded
waiving rights to the construction of future shoreline protection devices including the
repair and maintenance, enhancement, reinforcement, or any other activity affecting the
bulkhead, that results in any encroachment seaward of the authorized footprint of the
bulkhead or other shoreline protective device. The agreement shall be binding against
the property owners and successors and assigns.
3. Prior to the issuance of a building permit, the property owner shall submit a notarized
signed letter acknowledging all hazards present at the site, assuming the risk of injury
or damage from such hazards, unconditionally waiving any claims of damage against
the City from such hazards, and to indemnify and hold harmless City, its City Council, its
boards and commissions, officials, officers, employees, and agents from and against any
and all claims, demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including without limitation,
attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which
may arise from or in any manner relate (directly or indirectly) to City’s approval of
development.
4. Prior to the issuance of building permits, a lot merger shall be approved and recorded
to merge the existing underlying legal lots (APN 048-231-40 and 048-231-41).
5. No demolition or construction materials, equipment debris, or waste, shall be placed or
stored in a location that would enter sensitive habitat, receiving waters, or a storm drain
or result in impacts to environmentally sensitive habitat areas, streams, the beach,
wetlands or their buffers.
6. This approval does not authorize any new or existing improvements (including
landscaping) on State tidelands, public beaches, or the public right -of-way.
7. This Coastal Development Permit does not authorize any development seaward of the
private property.
8. Grading, brush removal, building demolition, tree trimming, and similar construction
activities shall occur between August 16 and January 31. If such activities must occur
inside the peak nesting season (from February 1 to August 15), compliance with the
following is required to prevent the taking of Native Birds pursuant to the Migratory Bird
Treaty Act (MBTA):
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A. The construction area shall be inspected for active nests. If birds are observed flying
from a nest or sitting on a nest, it can be assumed that the nest is active. Construction
activity within 300 feet of an active nest shall be delayed until the nest is no longer
active. Continue to observe the nest until the chicks have left the nest and activity is
no longer observed. When the nest is no longer active, construction activity can
continue in the nest area.
B. The applicant is responsible for compliance with the MBTA. It is a violation of state and
federal law to kill or harm a native bird. To ensure compliance, consider hiring a
biologist to assist with the survey for nesting birds, and to determine when it is safe to
commence construction activities. If an active nest is found, one or two short follow-up
surveys will be necessary to check on the nest and determine when the nest is no
longer active.
9. Best Management Practices (BMP’s) and Good Housekeeping Practices (GHP’s) shall
be implemented prior to and throughout the duration of construction activity as
designated in the Construction Erosion Control Plan.
10. The discharge of any hazardous materials into storm sewer systems or receiving waters
shall be prohibited. Machinery and equipment shall be maintained and washed in
confined areas specifically designed to control runoff. A designated fueling and vehicle
maintenance area with appropriate berms and protection to prevent spillage shall be
provided as far away from storm drain systems or receiving waters as possible.
11. Debris from demolition shall be removed from work areas each day and removed from
the project site within 24 hours of the completion of the project. Stock piles and
construction materials shall be covered, enclosed on all sites, not stored in contact with
the soil, and located as far away as possible from drain inlets and any waterway.
12. Trash and debris shall be disposed in proper trash and recycling receptacles at the end
of each construction day. Solid waste, including excess concrete, shall be disposed in
adequate disposal facilities at a legal disposal site or recycled at a recycling facility.
13. Revisions to the approved plans may require an amendment to this Coastal
Development Permit or the processing of a new coastal development permit.
14. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
15. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Coastal
Development Permit.
16. This Coastal Development Permit may be modified or revoked by the Zoning
Administrator if determined that the proposed uses or conditions under which it is being
operated or maintained is detrimental to the public health, welfare or materially injurious
to property or improvements in the vicinity or if the property is operated or maintained
so as to constitute a public nuisance.
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17. Prior to the issuance of building permits, the applicant shall submit a final construction
erosion control plan. The plan shall be subject to the review and approval by the Building
Division.
18. Prior to the issuance of building permits, the applicant shall submit a final drainage and
grading plan. The plan shall be subject to the review and approval by t he Building
Division.
19. Prior to issuance of a building permit, a copy of the Resolution, including conditions of
approval Exhibit “A” shall be incorporated into the Building Division and field sets of
plans.
20. Prior to issuance of a building permit, the applicant shall submit to the Planning Division
an additional copy of the approved architectural plans for inclusion in the Coastal
Development file. The plans shall be identical to those approved by all City departments
for building permit issuance. The approved copy shall include architectural sheets only
and shall be reduced in size to 11 inches by 17 inches. The plans shall accurately depict
the elements approved by this Coastal Development Permit.
21. Prior to the issuance of building permits, the applicant shall submit a final landscape and
irrigation plan. These plans shall incorporate drought tolerant plantings, non -invasive
plant species and water efficient irrigation design. The plans shall be approved by the
Planning Division.
22. All landscape materials and irrigation systems shall be maintained in accordance with
the approved landscape plan. All landscaped areas shall be maintained in a healthy and
growing condition and shall receive regular pruning, fertilizing, mowing, and trimming.
All landscaped areas shall be kept free of weeds and debris. All irrigation systems shall
be kept operable, including adjustments, replacements, repairs, and cleaning as part of
regular maintenance.
23. Prior to the issuance of building permit, the applicant shall pay any unpaid administrative
costs associated with the processing of this application to the Planning Division.
24. Should the property be sold or otherwise come under different ownership, any future
owners or assignees shall be notified of the conditions of this approval by the current
property owner or agent.
25. This Coastal Development Permit No. CD2018-063 shall expire unless exercised within 24
months from the date of approval as specified in Section 21.54.060 (Time Limits and
Extensions) of the Newport Beach Municipal Code, unless an extension is otherwise
granted.
26. To the fullest extent permitted by law, applicant shall indemnify, defend and hold harmless
City, its City Council, its boards and commissions, officials, officers, employees, and agents
from and against any and all claims, demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including
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without limitation, attorney’s fees, disbursements and court costs) of every kind and nature
whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s
approval of Silvers Bulkhead Improvements including, but not limited to, Coastal
Development Permit No. CD2018-063 (PA2018-145). This indemnification shall include,
but not be limited to, damages awarded against the City, if any, costs of suit, attorneys'
fees, and other expenses incurred in connection with such claim, action, causes of action,
suit or proceeding whether incurred by applicant, City, and/or the parties initiating or
bringing such proceeding. The applicant shall indemnify the City for all of City's costs,
attorneys' fees, and damages, which City incurs in enforcing the indemnification provisions
set forth in this condition. The applicant shall pay to the City upon demand any amount
owed to the City pursuant to the indemnification requirements prescribed in this condition.