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Home My WebLink AboutPC2020-039 - WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2020-0512 FOR A REQUEST TO RETAIN IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATED ATRESOLUTION NO. PC2020-039 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2020-0512 FOR A REQUEST TO RETAIN IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATED AT 445 TUSTIN AVENUE (PA2020-288) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Niall and Staci Barrett, (“Owners”), with respect to property located at 445 Tustin Avenue, Newport Beach, California and legally described as Lot 25 in Block 1 of Tract No. 919 (“Property), requesting approval of an encroachment permit. 2. The Owners request to retain non-compliant improvements within the Tustin Avenue public right-of-way including two walls with a maximum height of thirty-nine (39) inches that encroach up to eight (8) feet 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 the 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. PC2020-039 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 existing private improvements will not be a detriment to the health, safety and welfare of the public. Facts in Support of Finding: 1. There are no current plans to install sidewalks within the Tustin Avenue public right-of- way. The existing improvements include two (2) walls with a maximum height of thirty- nine (39) inches and an existing 33-inch wide concrete walkway. These encroachments 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 Owners will be maintaining the two (2) existing Olive Trees. 3. There is no driveway located along Tustin Avenue where the proposed improvements could obstruct sight distance for drivers. 4. There is a City storm drain along the Tustin Avenue right-of-way, however, the existing private improvements do not obstruct the utility. 5. Approval would require the Owners to enter into an Encroachment Agreement to allow the existing improvements as requested, and any liability associated with the existing private improvements would be transferred to the Owners. Additionally, if the need for public improvements should arise in the future, Owners shall agree to remove all encroachments at no cost to the City. Finding : Planning Commission Resolution No . PC2020-039 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. The existing improvements have been in place for many years (approximately 15-20 years) and do not appear to be hazardous . 2. The proposed improvements appear complementary to the area as adjacent properties have similar existing encroachments . 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 . N2020-0512, 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 w ithin 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 : ABSTAIN : ::SE £?1~~ Erik Weigand, Chairman BY: ~~ Lauren Kleiman~ Planning Commission Resolution No. PC2020-039 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 are subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Owners 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 Owners 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, Owners 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 Barrett Encroachment (PA2020-288) including, but not limited to, Encroachment Permit No. N2020-0512. 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 Owners, City, and/or the parties initiating or bringing such proceeding. The Owners 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 Owners shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.