HomeMy WebLinkAboutPC2021-014 - WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2021-0158 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATED AT 400 ALISO AVENUE (PA2021-088)RESOLUTION NO. PC2021-014 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 AND APPROVING ENCROACHMENT PERMIT NO. N2021-0158 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY LOCATED AT 400 ALISO AVENUE (PA2021-088)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Bruce B. Ibbetson Trust, (“Owner”), with respect to property located at 400 Aliso Avenue, Newport Beach, California and legally described as Lot 1 in Block 28 of The First Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County (“Property”), requesting approval of an encroachment permit.
2. Property Owner requests approval to install non-compliant private improvements within the Aliso Avenue and Beacon Street public rights-of-way consisting of a 30-inch high fence with two (2) inward swinging gates that encroach up to six (6) feet into the public right-of-
way. Property Owner requests to install landscaping with a maximum growth characteristic
that ranges between three (3) feet and seven (7) feet in height. City Staff recommends the installation of landscaping with a maximum growth characteristic of 24-inches high within the ‘limited use area’ and 36-inches high within the remaining portions of public right-of-way (“Project”).
3. The requested approvals are not specifically provided for within City Council Policy L-6. Thus, the Project 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 with
approval of the encroachment permit by Planning Commission.
4. The Property is not located within the coastal zone. 5. A public meeting was held on June 3, 2021, in the City Council Chambers located at 100
Civic Center Drive, Newport Beach, California, in person and via teleconferencing,
observing restrictions 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 public hearing was given in accordance with Government Code Section 54950 et seq. (the “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 public hearing.
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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.
2. The Class 3 (New Construction or Conversion of Small Structures) exemption includes construction of a single-family residence and related accessory structures in a residential zone. The proposed improvements, which consist of a fence with gates 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 Aliso Avenue and Beacon Street parkways within the public right-of-way are
approximately 12 feet from face of curb to the property line.
2. The Project does not diminish the rights of the public along the Aliso Avenue or Beacon Street right-of-way. There are currently no sidewalks on either street, nor does the City have plans for installing sidewalks on these streets.
3. 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.
4. The 30-inch high fence with two inward swinging gates will not restrict the view within the “limited sight area” as described in Public Works Standard 105 (Intersection Line of Sight Requirements).
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Planning Commission Resolution No. PC2021-014 Page 3 of 5
5. The 30-inch high fence with two inward swinging gates and landscaping with a maximum growth characteristic of 24-inches high within the ‘limited use area’ and 36-inches high
within the remaining public rights-of-way ensures rights of the public, present and future,
are not diminished by the installation of private improvements within the public rights-of-way.
6. Limiting landscaping with a maximum growth characteristic of 24-inches high within the ‘limited use area’ and 36-inches high within the remaining public rights-of-way prevents
the potential for future code enforcement issues related to maintaining plant height. City
Staff supports landscaping that meets City Council Policy L-6, Public Works Standard 105, and does not create potential future issues for City Staff.
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, Owner shall agree to remove all encroachments at no cost to the City. 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. Improvements appear complementary to the area; adjacent neighbors have similar private encroachments within the Aliso Avenue and Beacon Street right-of-way. 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. N2021-0158, 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.
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PASSED, APPROVED, AND ADOPTED THIS 3RD DAY OF JUNE, 2021
AYES: Klaustermeier, Kleiman, Koetting, Rosene, and Weigand
NOES: ABSTAIN:
ABSENT: Ellmore and Lowrey
BY:_________________________
Erik Weigand, Chairman BY:_________________________
Lauren Kleiman, Secretary
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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. The Owner shall install landscaping with a maximum growth characteristic of 24-inches high within the ‘limited use area’ and 36-inches high within the remaining portions of Aliso Avenue and Beacon Street public rights-of-way.
6. 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 Ibbetson Trust Encroachment (PA2021-088) including, but not limited to, Encroachment Permit No. N2021-0158. 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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