HomeMy WebLinkAbout3.0_Helm Residence Encroachment PermitCITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
October 18, 2018
SUBJECT:
Agenda Item No. 3
Helm Residence Encroachment Permit
Encroachment Permit No. N2018-0387
SITE LOCATION: 200 Via Koron
APPLICANT: Hugh and Nancy Helm
OWNER: Hugh and Nancy Helm
PLANNER: Abby Cooke, Assistant Engineer
949-644-3323, acooke@newportbeachca.gov
PROJECT SUMMARY
A request to retain existing non-compliant private improvements within the Via Koron
public right-of-way consisting of two (2) low planter walls. A request to retain an existing
compliant private improvement within the Via Koron public right-of-way consisting of a
decorative walkway.
RECOMMENDATION
1) Find the project exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) (Preliminary Review) of the CEQA
Guidelines, because it has no potential to have a significant effect on the
environment; and
2) Adopt Resolution No. PC2018-029 approving Encroachment Permit No. N2018-0387
(Attachment No. PC 1).
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Helm Residence Encroachment Permit
Planning Commission, October 18, 2018
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VICINITY MAP
SUBJECT
PROPERTY
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Helm Residence Encroachment Permit
Planning Commission, October 18, 2018
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INTRODUCTION
Council Policy L-6
Prior to the August 14, 2018 amendment of Council Policy L-6, the retention or
construction of non-compliant private encroachments in the public right-of-way required
City Council review and approval. Upon adopting the amended Council Policy L-6
(Attachment No. PC 2), those same non-compliant private encroachments require
Planning Commission review and approval.
Project Description
The property owners recently submitted plans for site improvements at 200 Via Koron.
As part of the plan review, staff identified existing planter walls and a brick walkway
located within the public right-of-way. The City and Owner have no record of an
encroachment agreement for the improvements. The Owner is requesting a waiver of City
Council Policy L-6 (Policy) to retain the existing 13-inch tall planter walls that encroach
up to 2.5-feet into the public right-of-way on Via Koron. Because the improvements are
not consistent with Policy, Planning Commission review of a waiver of the Policy is
required. The Owner is also requesting to retain a decorative 9-foot-wide brick walkway
along the Via Koron frontage that is consistent with the Policy. As such, the decorative
walkway requires the execution of a standard encroachment agreement, an
administrative task subject to the approval of the Public Works Director or designated
staff, and does not require Planning Commission review. See attached site plan and site
photos (Attachment No. PC 3 and PC 4).
DISCUSSION
City Council Policy L-6, “Encroachments in Public Rights-of-Way” explains and describes
how the public rights-of-way are to be reserved for public use or open space; and that the
rights of the public, present and future, are not to be diminished by the installation of
private improvements within the public rights-of-way. The Policy specifies allowable and
prohibited encroachments and describes the required permits or encroachment
agreements.
In Section A, which outlines the general encroachment prohibitions, “…structural
encroachments including, but not limited to, fences, walls, patios, raised planters, etc.,
which encroach in excess of 1-foot into the public right-of-way or exceeds 3 feet in
height…” are prohibited. The Owner is requesting a waiver of this policy to allow the
retention of the planter walls that encroaches up to 2.5-feet into the Via Koron public right-
of-way and measures 13-inches in height from adjacent sidewalk grade.
Section F requires the application for any permit under Section A shall be forwarded to
the City Clerk for submission to the Planning Commission.
Section B states “parkway surfacing (standard or colored/textured concrete or flat
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Helm Residence Encroachment Permit
Planning Commission, October 18, 2018
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stone/brick) installed at grade …” requires an encroachment permit and if applicable an
encroachment agreement from the Public Works Department. The existing brick
walkway is consistent with Council Policy L-6.
Several items have been taken into consideration in reviewing this matter:
1) The existing non-compliant planters have been in place for many years and do not
appear to be hazardous and appear complimentary to the area;
2) No construction is proposed within the Via Koron public right-of-way;
3) There are no current plans to widen the sidewalks within the Via Koron public right-
of-way;
4) The existing private improvements do not presently diminish the rights of the public
along the Via Koron right-of-way;
5) There are no existing City utilities within the encroachment area; and
6) Requirement that the Owners enter into an Encroachment Agreement so as to
allow the existing improvement to remain as requested, any liability associated
with the existing private improvements is transferred to the Owners. Additionally,
if the need for sidewalks or public improvements should arise in the future, Owners
have agreed to remove all encroachments, at no cost to the City. See Attachment
No. PC 5, Encroachment Agreement Template.
Staff has reviewed this request and supports this policy waiver. In staff’s review of the
existing site conditions, the existing improvements do not hinder the use of the public right
of way, including sidewalks. The retention of the private improvements will not diminish
the rights of the public, present and future, at this location.
The subject property is located within the coastal zone and the retention of the existing
improvements or the construction of an identical replacement planter would be exempt from
requiring a Coastal Development Permit pursuant to Newport Beach Municipal Code
Section 21.52.035(C)(1) that exempts ancillary structures normally associated with single
family residences.
Should the Planning Commission elect to approve the waiver and retention of the said
private improvements and appurtenances, staff recommends that the Planning
Commission require the Owner to enter into an encroachment agreement with the City
consistent with the Policy. The encroachment agreement specifies the rights of the City
including future removals and the responsibilities of the property owner. The
encroachment agreement is recorded onto the property’s title and provides important
notice and protections for the City and for the current and future property owners.
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Helm Residence Encroachment Permit
Planning Commission, October 18, 2018
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Environmental Review
This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,
Title 14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly.
Public Notice
The agenda item has been noticed according to the Brown Act, at least 10 days in
advance of the meeting at which the Planning Commission considers the item.
Prepared by: Submitted by:
Abby Cooke
Assistant Engineer
Jim Campbell
Deputy Community Development Director
ATTACHMENTS
PC 1 Draft Resolution with Findings and Conditions
PC 2 Council Policy L-6
PC 3 Site Plan
PC 4 Site Photos
PC 5 Encroachment Agreement Template
PC 6 Owner Letter dated August 4, 2018
01/12/18
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Attachment No. PC 1
Draft Resolution with Findings and
Conditions
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RESOLUTION NO. PC2018-029
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
ENCROACHMENT PERMIT N2018-0387 FOR A REQUEST TO
RETAIN EXISTING IMPROVEMENTS WITHIN THE PUBLIC
RIGHT-OF-WAY LOCATED AT 200 VIA KORON
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Hugh and Nancy Helm (collectively, “Applicant”), with respect
to property located at 200 Via Koron, requesting approval of an encroachment permit.
2. The Applicant requests to retain existing non-compliant improvements within the Via Koron
public right-of-way including two (2) thirteen (13) inch high planter walls that encroach up
to two point five (2.5) feet into the public right-of-way. The Applicant also requests to retain
an existing compliant nine (9) foot wide decorative walkway.
3. The requested encroachment is not specifically provided within City Council Policy L-6,
thus, the requested encroachment is prohibited under Section A(1) of said policy. Due to
this prohibition, the requested encroachment may only be approved upon review and
approval of the Planning Commission.
4. A public meeting was held on October 18, 2018, in the City 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 Newport Beach Municipal Code. Evidence, both written
and oral, was presented to, and considered by, the Planning Commission at this hearing.
5. The subject property is located within the coastal zone and the retention of the existing
improvements or the construction of an identical replacement planter would be exempt
from requiring a Coastal Development Permit pursuant to Newport Beach Municipal Code
Section 21.52.035(C)(1) that exempts ancillary structures normally associated with single
family residences.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This action is not subject to the California Environmental Quality Act (CEQA) pursuant to
Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect
physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in
Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or
indirectly.
SECTION 3. REQUIRED FINDINGS.
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Planning Commission Resolution No. PC2018-029
Page 2 of 4
08-10-18
In accordance with City Council Policy L-6, Encroachments in the Public Rights-of-Way, the
following findings and facts in support of such findings are set forth:
Finding:
A. The existing private improvements do not presently diminish the rights of the public along
the Via Koron right-of-way.
Facts in Support of Finding:
1. There are no current plans to widen the sidewalks within the Via Koron public right-
of-way, the existing improvements do not hinder the present or future use of the
public right-of-way, including sidewalks, and there are no existing City utilities
located within the encroachment area.
2. The existing private improvements do not impede coastal public access, degrade
visual quality of public coastal view or have any potential impact to sensitive habitat
in the Coastal Zone for the following reasons:
a. The existing private improvements are within the Via Koron public right-of-
way.
b. Via Koron is centrally located in Lido Isle and is not a coastal view road as
designated by the Local Coastal Plan.
c. The existing private improvements do not impede public vehicular or
pedestrian access.
d. The existing private improvements do not impede access to City utilities.
Finding:
B. The individual circumstances applicable to this application and the proposed encroachment
are consistent with the public interest.
Facts in Support of Finding:
1. The existing improvements have been in place for many years and do not appear
to be hazardous and appear complimentary to the area.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby approves Encroachment
Permit N2018-0387, subject to the conditions set forth in Exhibit A, which is attached
hereto and incorporated by reference.
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Planning Commission Resolution No. PC2018-029
Page 3 of 4
08-10-18
2. This action shall become final and effective fourteen (14) days following the date this
Resolution was adopted unless within such time an appeal or call for review is filed with
the City Clerk in accordance with the provisions of Title 20 Planning and Zoning, of the
Newport Beach Municipal Code.
PASSED, APPROVED, AND ADOPTED THIS 18th DAY OF OCTOBER, 2018.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:_________________________
Peter Zak, Chairman
BY:_________________________
Secretary
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Planning Commission Resolution No. PC2018-029
Page 4 of 4
08-10-18
EXHIBIT “A”
CONDITIONS OF APPROVAL
1. The proposed encroachment shall be in substantial conformance with the approved site
plan stamped and dated with the date of this approval. (Except as modified by applicable
conditions of approval.)
2. The proposed encroachment is subject to all applicable City ordinances, policies, and
standards, unless specifically waived or modified by the conditions of approval.
3. 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
Encroachment Permit and any associated Encroachment Agreements.
4. The Applicant shall enter into an Encroachment Agreement within one (1) calendar year
upon receipt of approval, otherwise this approval shall automatically expire.
5. 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
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 Helm Residence Encroachment Permit including, but not limited to,
Encroachment Permit No. N2018-0387. 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.
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Attachment No. PC 2
Council Policy L-6
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Attachment No. PC 3
Site Plan
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Attachment No. PC 4
Site Photos
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Attachment No. PC 5
Encroachment Agreement Template
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Attachment No. PC 6
Owner Letter dated August 4, 2018
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