HomeMy WebLinkAbout4.0_LaFrance and Baram Residence Encroachment PermitCITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
October 18, 2018
SUBJECT:
Agenda Item No. 4
LaFrance and Baram Residence Encroachment Permit
Encroachment Permit No. N2018-0471
SITE LOCATION: 2209 Private Road
APPLICANT: Craig LaFrance and Tallie Baram
OWNER: Craig LaFrance and Tallie Baram
PLANNER: Abby Cooke, Assistant Engineer
949-644-3323, acooke@newportbeachca.gov
PROJECT SUMMARY
A request to retain an existing non-compliant private improvement within the Private Road
public right-of-way consisting a six-foot high concrete retaining wall previously approved
by City Council on August 8, 2017.
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. PC2018-030 approving Encroachment Permit No. N2018-0471
(Attachment No. PC 1).
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LaFrance and Baram Residence Encroachment Permit
Planning Commission, October 18, 2018
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VICINITY MAP
SUBJECT
PROPERTY
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LaFrance and Baram Residence Encroachment Permit
Planning Commission, October 18, 2018
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INTRODUCTION
The owners of 2209 Private Road are requesting a waiver of City Council Policy L-6 to
maintain an existing six-foot high concrete wall within the Private Road public right-of-
way. This request to retain the same existing retaining wall was previously approved by
City Council on August 8, 2017 (Attachment No. PC 2 and PC 3). Per City Council
recommendation, staff was directed to enter into an Encroachment Agreement with the
Owners and authorize the City Manager and City Clerk to execute the Encroachment
Agreement within one (1) calendar year upon receipt of approval. However, the property
owners failed to enter into an Encroachment Agreement within the directed time.
DISCUSSION
City Council Policy L-6, “Encroachments in Public Rights-of-Way” (Policy), 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 (Attachment No. PC 4).
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 Owners are requesting a waiver of this policy to allow the
retention of the retaining wall that encroaches up to 5.5-inches into the Private Road
public right-of-way and measures up to a maximum of 6-feet in height from adjacent
sidewalk grade (Attachment No. PC 5 and PC 6). The wall is the existing wall below the
new wall as shown in Attachment PC 6.
Several items have been taken into consideration in reviewing this matter:
1) The existing private improvement does not presently diminish the rights of the
public along the Private Road right-of-way;
2) There are no existing City utilities within the encroachment area; and
3) Approval would require the Owners to enter into an Encroachment Agreement so
as to allow the existing improvement to remain as requested, and any liability
associated with the existing private improvement would be 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.
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
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LaFrance and Baram Residence Encroachment Permit
Planning Commission, October 18, 2018
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of way, including sidewalks. The retention of the private improvement will not diminish the
rights of the public, present and future, at this location.
The site is within the Coastal Zone and retaining the existing wall does not require a
Coastal Development Permit as the wall was constructed prior to the Coastal Act with the
development of the tract in the late 1950s.
Should the Planning Commission elect to approve the waiver and retention of the private
improvements and appurtenances, staff recommends that the Planning Commission
require the Owners 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 owners. The encroachment agreement
would be recorded onto the property’s title and provides important notice and protections
for the City and for the current and future property owners.
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 City Council Staff Report Dated August 8, 2017
PC 3 City Council Meeting Minutes Dated August 8, 2017
PC 4 Council Policy L-6
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Attachment No. PC 1
Draft Resolution with Findings and
Conditions
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RESOLUTION NO. PC2018-030
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING
ENCROACHMENT PERMIT N2018-0471 FOR A REQUEST TO
RETAIN AN EXISTING IMPROVEMENT WITHIN THE PUBLIC
RIGHT-OF-WAY LOCATED AT 2209 PRIVATE ROAD
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Craig LaFrance and Tallie Baram (collectively, “Applicant”), with
respect to property located at 2209 Private Road, Newport Beach, California requesting
approval of an encroachment permit.
2. The Applicant requests to retain an existing non-compliant improvement within the Private
Road public right-of-way including a six (6) foot high concrete retaining wall that
encroaches up to five point five (5.5) inches into the public right-of-way.
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. The existing wall was constructed
with the development of the tract prior to the Coastal Act and is exempt from a Coastal
Development Permit Requirement.
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.
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:
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Planning Commission Resolution No. PC2018-030
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Finding:
A. The existing private improvement does not presently diminish the rights of the public along
the Private Road right-of-way.
Facts in Support of Finding:
1. The existing improvement does 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 improvement does 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 improvement is within the Private Road public right-of-
way.
b. Private Road is not a coastal view road as designated by the Local Coastal
Plan.
c. The existing private improvement does not impede public vehicular or
pedestrian access.
d. The existing private improvement does 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 improvement supports adjacent slope and allows for pedestrian
access to the Private Road sidewalk and parkway area.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Planning Commission of the City of Newport Beach hereby approves Encroachment
Permit N2018-0471, 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 fourteen (14) days following the date this
Resolution was adopted unless within such time an appeal or call for review is filed with
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Planning Commission Resolution No. PC2018-030
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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. PC2018-030
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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. The existing wall has several cracks and the wall shall be repaired and then maintained
in a safe condition.
6. 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 LaFrance and Baram Residence Encroachment Permit including, but not
limited to, Encroachment Permit No. N2018-0471. 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
City Council Staff Report Dated August 8,
2017
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NEWPORT BEACH
City Council Staff Report
CITY OF
August 8, 2017
Agenda Item No. __
ABSTRACT:
The property owner of 2209 Private Road (Owner) is requesting a waiver of City Council Policy
L-6 to maintain an existing six-foot high concrete retaining wall within the public right-of-way on
Private Road.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will
not result in a physical change to the environment, directly or indirectly;
b) Waive Council Policy L-6, Private Encroachments in the Public Rights-of-Way, to allow the
existing six-foot high concrete block wall and appurtenances that encroach into the Private
Road public right-of-way to remain in place, contingent upon all conditions of the
Encroachment Permit process being met; and
c) Direct staff to enter into an Encroachment Agreement with the Owner and authorize the City
Manager and City Clerk to execute the Encroachment Agreement within one (1) calendar
year upon receipt of approval; or
d) Provide other direction to staff.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
The Owner of 2209 Private Road is requesting a waiver of City Council Policy L-6 to maintain
an existing six-foot high concrete wall within the Private Road public right-of-way. The public
right-of-way extends 10 feet behind the existing curb. The existing retaining wall is located at
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director – 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Antony Brine, City Traffic Engineer
tbrine@newportbeachca.gov
PHONE: 949-644-3329
TITLE: Request for Waiver of City Council Policy L-6 at 2209 Private Road
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Request for Waiver of City Council Policy L-6 at 2209 Private Road
August 8, 2017
Page 2
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the back of the existing sidewalk, approximately 9 feet from the back of curb. The existing wall
encroaches approximately one foot into the public right-of-way. Public Works has no records
of the date of construction of the wall. City Council Policy L-6 was adopted on August 25, 1969.
Private Road was built in 1959.
City Council Policy L-6, “Public 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 fences, walls, patios, raised planters, etc., that exceed 3 feet in height are prohibited.
The Owner is requesting City Council consideration for waiver of this policy to allow an existing
encroachment to maintain the existing six-foot high retaining wall.
In staff’s review, the existing wall does not affect the walking pathway. The requested action
would not diminish the rights of the public, present and future at that location regarding the
sidewalk. As an alternative direction, the City Council could require Property Owner, as part of
their proposed home replacement project, to either:
1. Remove the existing 6’ high block wall currently within the City right-of-way, and
construct any new walls outside the public right-of-way; or
2. Cut the existing 6’ high block wall (currently within the City right-of-way) down to a level
below 3’ in height to comply with Council Policy L-6 (A1), (i.e. encroachments shall not
exceed 3 feet in height), contingent upon the property owner entering into a City
Encroachment Agreement allowing said encroachment.
Should the City Council elect to approve the waiver and maintain the existing wall, staff
recommends that the City Council require the Owner to enter into an encroachment agreement
with the City. The encroachment agreement specifies the rights of the City including future
removals, Hold Harmless and the responsibilities of the 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.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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 will not result in a physical change to the
environment, directly or indirectly.
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Request for Waiver of City Council Policy L-6 at 2209 Private Road
August 8, 2017
Page 3
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NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A - Project Site Plan
Attachment B - Location Map
Attachment C - City Council Policy L-6
Attachment D - Property Photograph
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Attachment No. PC 3
City Council Meeting Minutes Dated
August 8, 2017
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Attachment No. PC 4
Council Policy L-6
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Attachment No. PC 5
Site Plan
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PC 547
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Attachment No. PC 6
Site Photos
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PC 6
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