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HomeMy WebLinkAboutPC2022-004 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2021-0580 TO RETAIN EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 207 EVENING CANYON ROAD (PA20RESOLUTION NO. PC2022-004 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2021-0580 TO RETAIN EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 207 EVENING CANYON ROAD (PA2022-007) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by AMS Trust, (“Owner”), with respect to property located at 207 Evening Canyon Road, Newport Beach, California, and legally described as Lot 123 in Tract 1116, as shown on a map recorded in Book 36, Page 19 and 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County (“Property”), requesting approval of an encroachment permit. 2. The Owner requests approval of Encroachment Permit No. N2021-0580 (PA2022-007) to retain existing non-compliant improvements within the Evening Canyon Road public right- of-way with a maximum height of 38-inches including site walls, stairs on grade, and handrails that encroach up to seven (7) feet into the 50-foot wide public right-of-way and taller than three (3) feet in height at the Property (“Project”). 3. The requested approvals are not specifically provided for within City Council Policy L-6 (Encroachment in Public Rights-of-Way) (“City Council Policy L-6”) where encroachments are prohibited in excess of one (1)-foot into the public right-of-way and taller than three (3) feet in height. 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 and approval of the encroachment permit by the Planning Commission. 4. A public meeting was held on March 17, 2022 in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and City Council Policy L-6. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. 5. The Property is located within the coastal zone and the improvements are appurtenant to existing approved development and provide access to the abutting development, a single family home, that is developed consistent with its Single-Unit Residential Detached – (0.0 to 5.9 DU/AC) (RSD-A) Coastal Land Use Plan designation and Single-Unit Residential (R-1-6,000) zoning district under the certified Local Coastal Program (“LCP”). Planning Commission Resolution No. PC2022-004 Page 2 of 5 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15301 and Section 15303 under Class 1 (Existing Facilities) and 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 1 (Existing Facilities) exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment or topographical features, involving negligible or no expansion of existing or former use. The existing improvements are accessory to the existing single-family residence. 3. 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 existing improvements, which consist of site walls, stairs on grade and handrails within the public right-of-way, are accessory to the existing single-family home. 4. 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 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. 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. Planning Commission Resolution No. PC2022-004 Page 3 of 5 2. The Evening Canyon Road parkway within the public right-of-way is approximately 10- feet wide of the overall 50-foot right-of-way width. The existing improvements encroach seven (7) feet into the ten (10)-foot wide parkway. 3. The Project does not diminish the rights of the public along the Evening Canyon Road right-of-way. There are no sidewalks along Evening Canyon Road adjacent to the Project and the City does not currently have plans to install sidewalks. 4. The Evening Canyon Road parkway generally slopes downward toward private property. 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 is required to remove all encroachments at no cost to the City. Finding: B. The individual circumstances applicable to this application and the existing encroachment are consistent with the public interest. Facts in Support of Finding: 1. Improvements are complementary to the area and are estimated to have been constructed in approximately 2004; adjacent neighbors have similar private encroachments within the Evening Canyon Road right-of-way. Some of the adjacent encroachments are permitted through an encroachment permit and agreement, whereas others have been constructed without approval. 2. The maximum height of proposed structures in the right-of-way will not exceed 38- inches in height above top of adjacent curb. Public views along the Evening Canyon Road will remain unobstructed. 3. There are no existing City utilities within the encroachment area. 4. The Property is located in the coastal zone and the approval of an Encroachment Permit and Agreement including the waiver of City Council Policy L-6 for the existing improvements does not require a coastal development permit in accordance with Newport Beach Municipal Code (“NBMC”) Section 21.52.035 (Projects Exempt from Coastal Development Permit Requirements). NBMC Subsection 21.52.035.C(1) refers to coastal act exemptions related to existing single-unit residential buildings, including ancillary structures normally associated with a single-unit residence, such as garages, swimming pools, fences, storage sheds, but not including houses or self-contained residential units; and landscaping on the lot, unless they involve a risk of adverse environmental effects or public access. The existing site walls, stairs on-grade and handrails are minor detached structures associated with the existing single-family Planning Commission Resolution No. PC2022-004 Page 4 of 5 residence. Their location and presence do not pose a conflict to coastal resources, coastal access, or other adverse environmental effects . The encroachments do not alter the existing bluff oceanward of the existing home. Any future improvements may require a coastal development permit. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby determines this Project is categorically exempt from CEQA pursuant to Section 15301 and Section 15303 under Class 1 (Existing Facilities) and 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 Planning Commission of the City of Newport Beach hereby waives City Council Policy L-6 and approves Encroachment Permit No. N2021-0580 (PA2022-007), subject to the conditions set forth in Exhibit "A," which is attached hereto and incorporated by reference . 3. 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 City Council Policy L-6 and Chapter 20.64 (Appeals) of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 17rH DAY OF MARCH, 2022 AYES : Ellmore, Klaustermeier, Kleiman , Koetting , Lowrey , Rosene, and Weigand NOES: None ABSTAIN : None ABSENT: None Curtis Ellmore , Secretary Planning Commission Resolution No. PC2022-004 Page 5 of 5 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. This Encroachment Permit allows encroachments up to 38-inches in height including site walls, stairs on grade, and handrails that encroach up to seven (7) feet into the Evening Canyon Road public right-of-way with a waiver of City Council Policy L-6, Section A of “Private Encroachments that are Prohibited Without a Waiver and Approval”. 6. The Owner shall maintain the landscaping within the Evening Canyon Road to 36-inches in height maximum. 7. If the need for public improvements arises in the future, Owners shall remove all encroachments at no cost to the City. 8. 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 AMS Trust Encroachment including, but not limited to, Encroachment Permit No. N2021-0580 (PA2022-007). 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.