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HomeMy WebLinkAboutPC2020-038 - WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2020-0482 FOR A REQUEST TO CONSTRUCT IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATEDRESOLUTION NO. PC2020-038 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2020-0482 FOR A REQUEST TO CONSTRUCT IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATED AT 425 TUSTIN AVENUE (PA2020-287) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Cortell Living Trust, (“Owner”), with respect to property located at 425 Tustin Avenue, Newport Beach, California and legally described as Lot 20 in Block 1 of Tract No. 919 (“Property”), requesting approval of an encroachment permit. 2. The Owner requests to install non-compliant improvements within the Tustin Avenue public right-of-way including two (2) six (6) inch steps and a fence with 36 inch high pilasters that encroach up to eight (8) feet ten (10) inches into the public right-of-way (“Project”). 3. The requested encroachment is not specifically provided within City Council Policy L-6, thus, the requested encroachment is prohibited under Section A (Private encroachments that are prohibited without a waiver and approval) of said policy. Due to this prohibition, the requested encroachment may only be approved upon the waiver of City Council Policy L- 6 and approval of the encroachment permit by Planning Commission. 4. A telephonic public meeting was held on October 22, 2020 in the City Council Chambers located at 100 Civic Center Drive, Newport Beach due to the Declaration of a State Emergency and Proclamation of Local Emergency related to COVID-19. A notice of time, place and purpose of the hearing was given in accordance with Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and City Council Policy L-6 (Encroachments in Public Rights of Way). Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this hearing. 5. The Property is not located within the coastal zone. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Planning Commission Resolution No. PC2020-038 Page 2 of 4 2. The Class 3 exemption includes construction of a single-family residence and related accessory structures in a residential zone. The proposed improvements, which consist of steps and a fence with pilasters within the public right-of-way, are accessory to the existing single-family home. 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 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 proposed private improvements will not be a detriment to the health, safety and welfare of the public. Facts in Support of Finding: 1. The Project 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 Tustin Avenue parkway within the public right-of-way is approximately 12 feet wide. There is an elevation change of approximately three (3) feet between the curb on Tustin Avenue and the property line. 3. The Project does not diminish the rights of the public along the Tustin Avenue right-of- way. There are currently no sidewalks on Tustin Avenue, nor does the City have plans for installing sidewalks on this street. 4. There is no driveway located along Tustin Avenue where the proposed improvements could obstruct sight distance for drivers. 5. Approval would require the Owner to enter into an Encroachment Agreement to allow the proposed improvements as requested, and any liability associated with the proposed private improvements would be transferred to the Owner. Additionally, if the need for public improvements should arise in the future, Owner shall agree to remove all encroachments at no cost to the City. Finding : Planning Commission Resolution No. PC2020-038 Page 3 of 4 B. The individual circumstances applicable to this application and the proposed encroachment are consistent with the public interest. Facts in Support of Finding: 1. Improvements appear complementary to the area ; adjacent neighbors have similar private encroachments within the Tustin Avenue right-of-way . The requested fence will align with the fence of the adjacent neighbor at 429 Tustin Avenue. This is a permitted fence with an existing encroachment agreement. Some of the adjacent encroachments are permitted through an encroachment permit and agreement , whereas others have been constructed without approval. 2. There are no existing City utilities within the encroachment area . SECTION 4. DECISION . NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby waives City Council Policy L-6 and approves Encroachment Permit No. N2020 -0482, 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 is 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 22ND DAY OF OCTOBER, 2020 AYES : Ellmore, Klaustermeier, Kleiman , Koetting , Lowrey, Rosene , and Weigand NOES : ABS TAIN : ::SENbfAAJ~ Erik Weigand , Chairman BY : -----------Lauren Kleiman , Secretary Planning Commission Resolution No. PC2020-038 Page 4 of 4 EXHIBIT “A” CONDITIONS OF APPROVAL PUBLIC WORKS DEPARTMENT 1. The Project shall be in substantial conformance with the approved site plan stamped and dated with the date of this 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 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 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, Owner 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 Cortell Trust Encroachment (PA2020-287) including, but not limited to, Encroachment Permit No. N2020-0482. 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 Owner, City, and/or the parties initiating or bringing such proceeding. The Owner 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 Owner shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.