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HomeMy WebLinkAbout11/14/2006 - Study SessionCITY OF NEWPORT BEACH City Council Minutes Study Session November 14, 2006 — 4:00 p.m. ROLL CALL Present: Council Member Curry, Council Member Selich, Mayor Webb, Council Member Ridgeway, Council Member Daigle, Council Member Nichols Excused: Mayor Pro Tem Rosansky CURRENT BUSINESS 1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR. Council Member Nichols stated that he will pull Item #3 from the evening agenda so staff can provide a brief staff report. City Manager Bludau reported that Item #11 will be continued to the meeting of November 28, 2006. 2. GENERAL DREDGING PERMIT. Harbor Resources Manager Rossmiller, through the use of a Powerpoint presentation, explained what the Regional General Permit No. 54 (RGP) is and it's importance to the operation of Newport Harbor. He noted that it is a programmatic permit whereby local property owners can apply to the City for permission to dredge within their dock area and accomplish certain qualifying repair and replacement projects on their docks. He further explained the process and the timing for the granting of RGP permits. The goal is to get a one month turn - around time on permits, however for the first six months or so it may take longer. Mr. Rossmiller explained the history of the RGP and noted that initially the term for an RGP was 10 years, however the last three issuances has been only for 5 years. He noted that new with this permit is the inclusion of residential dock repair and replacement projects, which hopefully can be expanded to include commercial docks in the future. The dock repairs and replacement program is limited to a three year trial period. He further explained what was involved in the renewal of the RGP -54, which began in October 2004 and highlighted the steps performed to get to this point. Mr. Rossmiller noted that a milestone was hit with the permanent designation of the LA -3 disposal site in January 2006 and further explained the issues around the disposal of fine grained material at LA -3. Due to the slightly higher level of Mercury concentrations, the Corps and the EPA would not allow any disposal at LA -3 from the western half of the harbor. Based on these issues and the pending sampling and analysis plan, the permit was issued with some exceptions. The final permit was issued by the Coastal Commission on October 12, 2006. He further reviewed the general dredging requirements and pointed out that dredging operations authorized in this permit are limited to the areas with existing authorized docks or bulkheads in the Upper and Lower Newport Bay. He further explained the limit on dredging quantities, the methods for disposal, and the depth limitations. He explained that there are some areas (the Rhine Channel, Newport Island, Promontory Bay Volume 57 — Page 834 City of Newport Beach Study Session Minutes November 14, 2006 areas and the West Lido Channel) that are not eligible for dredging under this RGP, however those areas may become eligible depending on the results of further analysis. Mayor Pro Tem Rosansky joined the meeting at 4:14 pant Mr. Rossmiller discussed the permit conditions for dock repair and replacement and noted that it is limited to bulkhead repairs and minor modifications, however all bulkhead work requires separate review by the Coastal Commission staff. Replacement of piers, docks and gangways is allowed in -kind and in the existing alignment; only concrete piles or steel piles with a non -toxic coating are authorized; and there are special water quality protection measures written into the permit. Mr. Rossmiller explained that all projects, docks or dredging, must be surveyed for the presence of eelgrass within the project footprint and out to thirty feet in all directions from the proposed project footprint. He further explained the limitations on the permit where eelgrass is found 15' or less from the proposed project footprint and the new requirement that pertains to dredging projects where the dredged material will be placed on a beach. Mr. Rossmiller reviewed the presence of eelgrass during construction and the requirement to monitor the project area for Caulerpa. He explained the need to react to it quickly as it is a very invasive plant. He explained that Caulerpa is a plant used in salt water aquariums and is very hard to kill in an aquarium, as well as in the bay environment. He explained that it covers the entire harbor bottom very quickly and noted the different ways that it can be transported. It can be killed by putting a tarp on the harbor bottom and injecting chlorine gas under the tarp for several weeks. Mr. Rossmiller noted that the permit has a lot of reporting requirements and they are working with contractors in the harbor to develop forms and procedures that will be easy to work with. Agencies are now following the national standards and applying them to the RGP for the first time. He pointed out that there are new requirements that will have to be followed, such as monitoring every dump scow throughout the disposal trip to LA -3, which can be done by GPS with real -time reporting. In reference to the costs per RGP, Mr. Rossmiller reported that over the five year life of the permit the City will process about 200 dredging permits and about 550 dock repair and replacement permits. The cost of the permit, including staff time, is about $650,000, which is about $870 per permit. The dock permits skew the cost down and without the dock permits it would cost about $3200 per permit. Right now a dredging permit is $489 and the dock repair and replacement is based on project valuation and is about $600. He noted that consultants are currently reviewing the fee schedule. He reported that the RGP is more detailed and protective of the Newport Bay environment than it has been in the past. The eelgrass related relationships have historically reduced the number of dock replacement and dredging projects that can be performed. The grant to prepare the Harbor Area. Management Plan will help alleviate the impact and with the new forms and procedures to implement the project, the service to the waterfront residents will be improved. He indicated that staff is preparing a Request for Proposals (RFP) for consultants to work on the Harbor Area Management Plan. A contract has been issued to plant the mitigation banks after the storm season in order to sell mitigation credits to property owners in the harbor so they can do projects under the RGP in the future. He explained that the local small project dredging permit and dock repair permit is part of comprehensive program of Volume 57 - Page 835 City of Newport Beach Study Session Minutes November 14, 2006 sediment management, which will include source control in the watershed, flood control basin cleanup, Upper Newport Bay basin dredging, Rhine Channel remediation and Lower Bay dredging of federal navigation channels. In response to questions by Council, Mr. Rossmiller explained the difference in dock maintenance and dock repair and what can be permitted by the City. Tim Collins, Harbor Commissioner, shared his observations from the Coastal Commission hearing and noted that the working relationship between the two staffs is at an all time high. He reported that he advised them that the City would return later with a Harbor Area Management Plan. He thanked staff for their work on this project. Mayor Webb complimented staff on getting through the complex process. Council Member Ridgeway commented about the advancements made on water quality and permitting issues since the establishment of the Harbor Commission and complimented staff and the commission for their work on this project. 3. OCEANFRONT ENCROACHMENTS AT BALBOA PENINSULA POINT AND COUNCIL POLICY L -12. Utilizing a PowerPoint presentation, Assistant City Manager Kiff explained that staff is looking for Council to provide direction on what are called "private improvements" on the oceanfront at Balboa Peninsula Point (BPP). He explained the issues (landscaping and hardscape encroachments) and noted that the hardscape improvements are clearly not authorized by Council Policy L -12. He noted that at BPP some properties have landscape improvements oceanward of the property line twenty to forty feet or more and some have hardscape improvements oceanward four feet of the property lines. In 1991 there were no discussions about how far the landscape encroachments should go. He distributed copies of a resolution adopted in 1991 (91 -80). The Council allowed landscaping on City property, declaring that it was considered to be an encroachment. The same language is also reflected in the recently approved LCP's land use plan, however the language is somewhat different (more general and easier to interpret). One of the issues to be determined is what should be done to hardscape inside the no encroachment zone, landscaping that may not be pre-1991. Whatever is recommended has to be acceptable to the Coastal Commission and consistent with the LCP, especially as the implementation plan is going before them. He further explained that encroachment fees are not an issue tonight, however he explained what the fees are to be used for. Mr. Kiff provided a history, of Council Policy L -12 dating back to 1989 when the Council formed a citizens advisory committee and approved recommendations of the committee in October of 1990 as Amendment No. 23 to the land use plan of the LCP, which was approved by the Coastal Commission in June of 1991. He explained the adoption of Policy L -14. Mr. Kiff reported that Section 2.(b). of Resolution 91 -80 states that the City holds both a street easement and fee title to the property that is being encroached upon, which is different than West Newport. He noted that at the time the Council considered doing a survey at a cost of $300,000 to identify title, however decided not to and instead adopted this resolution as a comprehensive solution. City Attorney Clauson provided further information on the full title search and noted that the policy came about as a settlement approved by the Coastal Commission to resolve any conflicts over who owns the property and to avoid the expenditure of additional money. Mr. Kiff explained the importance of remembering what the Charter says about the sale of Volume 57 - Page 836 City of Newport Beach Study Session Minutes November 14, 2006 waterfront or beach property, however noted that City -owned property can be leased as long as the lease is limited to the term permitted by law. He went on to explain how the four feet, the Charter and the encroachments interact, noting that the 4' of hardscape is an encroachment on City -owned property and the Charter prohibits the sale of beach property without a vote of the people. If these 4' encroachments are to stay, the Council may be able to lease these properties per the Charter and the remaining BPP encroachments may be able to be leased. He showed slides of the encroachments on the properties at 1504 and 1520 East Oceanfront . and noted that the property owners have placed important infrastructure improvements on City -owned property. Pointing out the areas on a map, he showed a recent survey done by Public Works which shows the property lines, the four foot encroachments (walls), and noted that it is a fairly consistent line. Staff clarified that the fast block is where the hard encroachments are and noted that staff has not checked to see if permits were obtained for the walls (or determined if building permits were required). It was clarified that encroachment permits would be required, however based on the height of the walls, building permits may not be required. Mr. Kiff indicated that staff is looking for guidance from Council about what should be done with hardscape inside the "no encroachment" zone and based on the City Charter whether a lease is required. He also questioned how to deal with landscaping encroachments and whether a lease would be required. He stated that whatever the Council recommends must be acceptable to the Coastal Commission and consistent with the newly - approved LUP to the LCP, the pending Implementation Plan and the City Charter. Mr. Kiff reported that staff is recommending that the Council authorize staff to work with the residents and Coastal Commission staff to permit the existing 4 feet of hardscape improvements to stay via a lease with an annual fee and then pursue a number of options for the landscaping. Those options would include setting an oceanward landscaping limit; allowing what is currently there to stay via a lease; permitting new native landscaping with no pressurized . irrigation; allowing public use of the landscaped areas; and establishing an annual fee which would be used to increase public access, maintain beach improvements and improve beach aesthetics. At a later date staff would come back to Council with proposed revisions to Policy L -12 and/or the LCP, which may not be the same revisions as recommended by the residents' counsel. The Council discussed the easement areas and Mr. Kiff stated that staff believes the City owns all of the property oceanward of the property lines, which is distinctly different from what happened in West Newport in 1991. Mayor Pro Tem Rosansky raised the question about whether any new policies that are crafted will apply to other areas of the City, noting that there are issues in other areas of the City that have not been resolved. One of the definitions that needs to be looked at is what is considered to be an encroachment and what is acceptable landscaping and ground cover. Responding to Council, Mr. Kiff explained that the Coastal Commission, in exchange for permitting encroachments, may require things such as: extending the boardwalk to the tip of the Peninsula; extending the boardwalk to the Santa Ana River; requiring the City to add public restrooms at the Wedge; improving street ends in Peninsula Point to provide better access and parking; and coastal dune habitation restoration. Jim McGee, representing a citizens group of BPP homeowners, said he worked with the residents to draft changes to'Policy L -12. Based on their research, he provided Council with a historical context and noted that some of the encroachments went back to the late 1970's. Volume 57 - Page 837 City of Newport Beach Study Session Minutes November 14, 2006 He noted that surveys were done in 1985 and 1989 and the purpose was to delineate the exact encroachments, which were described as landscaping, bushes, trees, irrigation, etc. He stated that he believes the City has known about these encroachments for over twenty years. He noted that the BPP was excluded from the L-14 policy. He provided details of Amendment No. 23 that was approved by the Coastal Commission and noted that L -14 was adopted to implement Amendment No. 23 to the LUP of the LCP. Mr, McGee addressed the details of the 1991 letter that was sent out by the City to the BPP homeowners and explained the importance of the letter. He provided details of the contents of the letter, explained the inspection that took place and noted that the residents were told there were no encroachments and they could keep what they had. Over the last twenty years the City has been on notice and there has been no enforcement action taken. The proposed amendment that was submitted seeks to recognize the historical chronology and also provides the BPP homeowners with the same rights as oceanfront owners in the remainder of the city. It would allow for a universal policy for all of the oceanfront; would generate revenues and give comfort to homeowners who are selling today or in the future regarding disclosures. Mr. McGee further discussed the hardscape issues with the first six residences south of F Street. He stated that those encroachments were not in place in 1991 but they believe that over a period of 25 years the same property line has been maintained. He noted that there is nothing in the current LCP that talks about whether the groundcover has to be of a 1991 vintage or not - it is silent, so an argument can be made with the Coastal Commission that this was approved by the Coastal Commission when they adopted Amendment 23 and the current version is consistent with that. He said the residents hope the City will be the advocate for them. He said adopting an amended policy would be the fair thing to do based on the historical conditions that have existed for the past 15 -20 years, and it may help to soften any requirements that the Coastal Commission might extract from the City and residents. In response to Council Member Ridgeway, Mr. McGee conceded that it would be easier to defend the landscaping to the Coastal Commission than the hardscape. Discussion ensued about Amendment No. 23 and whether or not the hardscape was identified at that time, however since the surveys were provided to the Coastal Commission, an argument can be made that they approved what they did with full knowledge that the encroachments were there and there was no effort made to accept the amendment with a condition that the hardscape be removed. Council Member Ridgeway said he doesn't have a problem with the landscaping but it is much more difficult to be an advocate on the hardscape issues. Mayor Webb stated that based on the recommended policy it appears that the homeowners are requesting that they be allowed to have encroachments in the 15 feet in front of their houses, similar to West Newport, under some sort of fee or lease arrangement. Mr. McGee stated that it is his belief that under the existing L -12 policy and the existing LCP that the vast majority of what is called an encroachment is landscape and is permitted by City policy and the Coastal Commission. He said of the 81 lots in BPP about 70 have encroachments and the vast majority are the variety of encroachments that the Coastal Commission or the City don't have a problem with and appear to be consistent with today's rules and in 1990. The Council and Mr. McGee discussed the fact that most of the encroachments in West Volume 57 - Page 838 City of Newport Beach Study Session Minutes November 14, 2006 Newport are exclusionary and Mr. McUee stated ey are not suggesting that e areas be fenced off or made exclusionary. He noted that his clients said it gets used by the public now and has been historically. City Attorney Clauson noted that there may not be a need to go back to the Coastal Commission if it is determined by looking at the 1991 approvals and the policy that there are only a handful of hardscape encroachments and the rest is landscaping. City Attorney Clauson advised the Council that the estoppel and waiver issues don't apply and staff verified that the City owns the property to the mean high tide and the rest is tidelands. She suggested that staff work with Mr. McGee and have him and his clients do the majority of the leg work on this issue. Bob Halford stated that he is adamantly opposed to giving away city property and noted that all residents would like to be able to have encroachments. He described his experience walking in that area when he was told to leave. He noted that the residents don't want sidewalks, restrooms, etc, and the City will be making a serious mistake if they approve this and lease the property. He questioned how much the leases would be, the length of the lease, and what will happen to the leases if the Coastal Commission says the City has to build the sidewalk. Mel Blumenthal addressed the concerns about public access and noted that he bends over backwards to allow access because the public is attracted to the aquarium and artwork on his property. Nancy Perry stated that she owns one of the six properties in question. She said this is not something that was maliciously planned to get more oceanfront property. Ron Chasin said he uses the house he purchased three years ago for movie shootings and 100% of the people who he talked to love the landscaping, etc. He said he has permits for all the trees and everything he did to enhance the area. Michael Muench stated that the few homes that have the same line 3 -4 feet are not the only properties with hardscape and there are some others outside the 1500 block of Oceanfront. Since this arose from the removal of the dunes in West Newport, residents have been on top of this issue and hired Jim McGee to represent them. Council Member Ridgeway said he likes the direction recommended by staff, however he prefers that the City not take an advocacy position and let the residents take it to the Coastal Commission. He reiterated that the City has a policy that was established in 1991. If there is information prior to 1991 that the encroachments were there, there is an equity argument that they should remain. He stated the need to focus on what needs to go to Coastal, which appears to be just the structural items. Mayor Webb stated that he thought Mr. McGee indicated that the BPP residents might like to have the same type of opportunity for that 15 foot area that was given to the West Newport Beach area with some sort of fee/lease arrangement. Mr. McGee indicated that they want to have historically what is allowed now, but include in the L -12 policy the opportunity to join with West Newport and have the ability to have the encroachments for a fee. Mayor Webb clarified that the direction to staff it to put together a modification to the policy and to allow a public forum to discuss it, and whether it is approved and sent to Coastal is Volume 57 - Page 839 City of Newport Beach Study Session Minutes November 14, 2006 left to be determined. He cautioned that if tbi is brought up there will e significant discussion at Coastal of everything that is oceanward of 15 feet and there may be some ramifications. Mayor Pro Tem Rosansky noted that West Newport is different than BPP from an ownership point of view and he wouldn't want to expand the use to be an exclusionary lease. He noted that in this situation the City clearly has fee ownership of the property. Council Member Selich agreed that the ownership difference has to be considered and to the extent that the structural encroachments are taken to Coastal Commission, there may be a risk and the residents may lose more than they gain. PUBLIC COMMENTS - None ADJOURNMENT - 6:10 p.m. The agenda for the Study Session was posted on November 8, 2006, at 1:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. City Clerk Recording Secretary Mayor Volume 57 - Page 840