HomeMy WebLinkAbout20190919_PC_Staff ReportCITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
September 19, 2019
Agenda Item No. 2
SUBJECT: Kim Residence Encroachments (PA2019-146)
Encroachment Permit No. N2019-0337
SITE LOCATION: 104 Via Orvieto
APPLICANT: Paul and Annie Kim
OWNER: Paul and Annie Kim
PLANNER: Abby Cooke, Assistant Engineer
949-644-3323, acooke@newportbeachca.gov
PROJECT SUMMARY
A request to waive City Council Policy L-6 to retain the existing non-compliant private
improvements consisting of a step and two low planter walls located within the Via Orvieto
public right-of-way.
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) Waive City Council Policy L-6, Encroachments in Public Rights-of-Way, to retain non-
compliant private improvements consisting of a step and planter walls that encroach
into the Via Orvieto public right-of-way, contingent upon all conditions of the
Encroachment Permit process being met; and
3) Adopt Resolution No. PC2019-027 waiving City Council Policy L-6 and approving
Encroachment Permit No. N2019-0337 (Attachment No. PC 1).
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VICINITY MAP
SUBJECT
PROPERTY
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INTRODUCTION
The property owners of 104 Via Orvieto (“Owner”) recently submitted plans for site
improvements at 104 Via Orvieto. As part of a required Public Works water meter
relocation inspection, staff identified a step, existing planter walls and decorative
walkways located within the public right-of-way. Plans from a 1997 construction project
included the planter walls and a note stating that an encroachment permit is to be
obtained for all work within the right-of-way. However, an encroachment permit was not
obtained for the planter walls.
The Owner is requesting a waiver of City Council Policy L-6 (“Policy”) to retain the existing
step and two 11-inch tall planter walls that encroach up to 2.5 feet into the public right-of-
way on Via Orvieto. Because the improvements are not consistent with the Policy,
Planning Commission review of a waiver of the Policy is required.
The Owner is also requesting to retain a decorative 91-inch-wide brick walkway and a 46-
inch-wide tile walkway along the Via Orvieto frontage that are consistent with the Policy.
As such, the decorative walkway requires the execution of a standard encroachment
agreement, an administrative task subject to the approval of the Public Works Director or
designated staff, and does not require Planning Commission approval. Please see
attached site plan and site photos (Attachment Nos. PC 2 and PC 3) and the owner letter
dated June 30, 2019 (Attachment No. PC 4).
DISCUSSION
City Council Policy L-6, 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 (Attachment No. PC 5).
Section A (Private encroachments that are prohibited without a waiver and approval) of
the Policy outlines private encroachment prohibitions including “…structural
encroachments including, but not limited to, fences, walls, patios, raised planters, etc.,
which encroach in excess of one (1)-foot into the public right-of-way or exceeds three (3)-
feet in height…” The Owner is requesting a waiver of this Policy to allow the retention of
the existing step and planter walls that encroach up to 2.5 feet into the Via Orvieto public
right-of-way and measures up to 11 inches in height from adjacent sidewalk grade.
Several items have been taken into consideration in reviewing this matter:
1) The existing non-compliant step and planter walls have been in place for many
years and appear complementary to the area; adjacent neighbors have similar
private encroachments within the Via Orvieto right-of-way. Some of the adjacent
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encroachments are permitted through an encroachment permit and agreement,
whereas others have been constructed without approval;
2) There are no current plans to widen the sidewalks within the Via Orvieto public
right-of-way;
3) The existing private improvements do not presently diminish the rights of the public
along the Via Orvieto right-of-way;
4) The improvements are low to the ground and do not block public views along Via
Orvieto;
5) The existing improvements have been in place for many years and do not appear
to be hazardous;
6) There are no existing City utilities within the encroachment area; and
7) 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, the
Owner shall agree to remove all encroachments at no cost to the City.
The Public Works Director and staff have reviewed this request and support this policy
waiver. In staff’s review of the site conditions, the proposed improvements do not hinder
the use of the public right-of-way, including the existing sidewalks. The existing private
improvements will not be a detriment to the health, safety and welfare of the public. The
retention of the private improvements will not diminish the rights of the public at this
location, present and future, provided an encroachment agreement between the City and
the Owner is executed.
The subject property is located within the Categorical Exclusion Area of the coastal zone.
The Coastal Land Use Plan category is Single Unit Residential Detached (RSD-C) and it
is located within the Single-Unit Residential (R-1) Coastal Zoning District. Pursuant to
NBMC Section 21.52.035(C)(1), the project is exempt from the requirements of a coastal
development permit since the existing improvements do not change the principal use of
the residence, is accessory to the residence, and do not result in an increase of gross
floor area, height, or bulk of the dwelling structure by more than 10 percent.
Should the Planning Commission elect to approve the waiver and retention of the said
private improvements and appurtenances, staff recommends that the Planning
Commission require the Owner 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 owner. The
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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
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 the existing improvements have been in place since 1997,
thereby have 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 and City Council Policy L-
6 that requires mailed notice to property owners 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 Site Plan
PC 3 Site Photos
PC 4 Owner Letter dated June 20, 2019
PC 5 City Council Policy L-6
01/12/18
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Attachment No. PC 1
Draft Resolution with Findings and Conditions
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RESOLUTION NO. PC2019-027
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL
POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO.
N2019-0337 FOR A REQUEST TO RETAIN EXISTING
IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY
LOCATED AT 104 VIA ORVIETO (PA2019-146)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Paul and Annie Kim (collectively, “Owner”), requesting approval
of an encroachment permit with respect to property located at 104 Via Orvieto, Newport
Beach, California and legally described as Lot 94 and the South West 15 feet of Lot 93 of
Tract 907, in the City of Newport Beach, County of Orange, California as per map recorded
in Book 28, Page(s) 25 to 36, inclusive of Miscellaneous Maps in the Office of the County
Recorder of said County, APN: 423-241-08 (“Property”).
2. The Owner requests to retain existing non-compliant improvements within the Via Orvieto
public right-of-way including a step and two (2) 11-inch-high planter walls that encroach up
to two (2) feet and six (6) inches into the public right-of-way (the “Action”).
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 public meeting was held on September 19, 2019, 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 California Government Code Section 54950 et seq.
(“Ralph M. Brown Act”) and Chapter 20.62 of the Newport Beach Municipal Code
(“NBMC”). Evidence, both written and oral, was presented to, and considered by, the
Planning Commission at this hearing.
5. The Property is located within the coastal zone and the retention of the existing
improvements or the construction of an identical replacement planter would be exempt
from requiring a Coastal Development Permit pursuant to Section 21.52.035(C)(1) of the
NBMC, that exempts ancillary structures normally associated with single-family
residences.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This Action is categorically 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
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project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,
Title 14, Division 6, Chapter 3, because existing improvements have been in place since 1997,
thereby have 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 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 widen the sidewalks within the Via Orvieto public right-of-
way. The existing improvements, which have been in place since 1997, include a step
and two (2) 11-inch-high planter walls. There is also an existing compliant 91-inch-wide
decorative brick walkway and a 46-inch-wide decorative tile 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 existing private improvements do 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 improvements are within the Via Orvieto public right-of-
way.
b. Via Orvieto is centrally located in Lido Isle and is not a coastal view road as
designated by the Local Coastal Plan.
c. The improvements are low to the ground and do not block public views along
Via Orvieto
d. The existing private improvements do not impede public vehicular or
pedestrian access.
e. The existing private improvements do not impede access to City public
utilities.
3. The encroachment permit is subject to an encroachment agreement and one (1)
condition of the agreement is to remove the improvements should it interfere with future
public needs.
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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 improvements have been in place for many 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. N2019-0337, 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 19th DAY OF SEPTEMBER, 2019.
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:_________________________
Peter Koetting, Chairman
BY:_________________________
Lee Lowrey, Secretary
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EXHIBIT “A”
CONDITIONS OF APPROVAL
PUBLIC WORKS DEPARTMENT
1. The proposed encroachments shall be in substantial conformance with the approved site
plan stamped and dated with the date of this approval.
2. The proposed encroachments are 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 Kim Residence Encroachments (PA2019-146) including, but not limited to,
Encroachment Permit No. N2019-0337. 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.
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Attachment No. PC 2
Site Plan
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Attachment No. PC 3
Site Photos
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Attachment No. PC 4
Owner Letter dated June 20, 2019
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Attachment No. PC 5
City Council Policy L-6
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