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HomeMy WebLinkAboutPC2020-012 - WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2019-0361 FOR A REQUEST TO RECONSTRUCT AND REFURBISH PERMANENT IMPROVEMENTS WITHIN THE PUBRESOLUTION NO. PC2020-012 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2019-0361 FOR A REQUEST TO RECONSTRUCT AND REFURBISH PERMANENT IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATED AT 2200 NEWPORT BOULEVARD (PA2019-126) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by James Wasko of The Crab Cooker Restaurant ("Applicant and Owner"), with respect to property located at 2200 Newport Boulevard, and legally described as Lots 15 and 16 of Tract No. 814, in the City of Newport Beach, County of Orange, State of California, as per Map recorded in Book 24, Pages 35 and 36 of Miscellaneous Maps, in the Office of the County Recorder of said County ("Property"), requesting a waiver of City Council Policy L-6 (Encroachments in the Public Right-of-Way) ("Policy") and approval of an encroachment permit. 2. The Applicant and Owner requests to reconstruct benches that encroach up to 15 inches into the 22 nd Street public right-of-way and to refurbish a freestanding clock that encroaches up to 8 feet, 6 inches into the Newport Boulevard public right-of-way ("Project"). 3. The requested encroachments are not specifically listed within the Policy; therefore, the request is considered as private encroachments that are prohibited without a waiver and approval under Section A of said Policy. Due to this prohibition, the requested encroachment may only be approved through a waiver of the Policy and approval of an encroachment permit by Planning Commission. 4. A public hearing was held on April 23, 2020, 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 (NBMC). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1 . The Project is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15303 and 15311 (Class 3 [New Construction or Conversion of Small Structures] and Class 11 [Accessory Structures]) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment. Planning Commission Resolution No. PC2020-012 Page 2 of 4 2. The Project is the construction of small private encroachments within the public right-of- way that do not comply with the Policy and are accessory to the primary structure and use of the Property as a restaurant. 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 the Policy, the following findings and facts in support of such findings are set forth: Finding: A. The proposed permanent improvements will not be a detriment to the health, safety and welfare of the public. Facts in Support of Finding: 1. The reconstructed and refurbished permanent private improvements will not hinder the present or future use of the public right-of-way, including any utilities. The existing utilities located within the encroachment area are not impacted. 2. The reconstructed and refurbished permanent improvements will not diminish the present or future right of the public. 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 Project will still maintain adequate pedestrian access to Newport Boulevard and 22 nd Street sidewalks, as well as the Arcade area. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby waives the Policy and approves Encroachment Permit N2019-0361, subject to the conditions set forth in Exhibit "A," which is attached hereto and incorporated by reference. Planning Commission Resolution No . PC2020 -012 Page 3 of 4 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 NBMC Title 20 Planning and Zoning . PASSED, APPROVED , AND ADOPTED THIS 23RD DAY OF APRIL , 2020. AYES : Ellmore , Klaustermeier , Kleiman, Koetting , Lowrey, Rosene , and Weigand . NOES : ABSTAIN: ABSENT: Planning Commission Resolution No. PC2020-012 Page 4 of 4 EXHIBIT "A" CONDITIONS OF APPROVAL 1 . The Project 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 Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Applicant and Owner 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 and Owner 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 the Crab Cooker Encroachment Permit for the property located at 2200 Newport Boulevard, Newport Beach, California, including, but not limited to, Encroachment Permit No. N2019-0361. 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.