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HomeMy WebLinkAboutPC2022-021 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2022-0147 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 2304 CLIFF DRIVE (PA202RESOLUTION NO. PC2022-021 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. N2022-0147 TO ALLOW CONSTRUCTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 2304 CLIFF DRIVE (PA2022-127) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Jason Gonterman, ("Owner"), with respect to property located at 2304 Cliff Drive, Newport Beach, California and legally described as Lot 5 in Block 4 of Tract 919, as shown on a map recorded in Book 29, Pages 31 to 34 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 for private improvements within the Cliff Drive public right- of-way consisting of stairs, handrails, retaining walls and planters encroaching up to eight (8) feet five (5) inches into the 80-foot-wide Cliff Drive public right-of-way ("Project"). The Cliff Drive parkway is approximately twelve (12) feet from face of curb to the property line. City Council Policy L-6 ("Encroachments in Public Rights-Of-Way") ("Policy") prohibits the proposed stairs, handrails, retaining walls and planters since structures are limited to a one (1 )-foot projection into the right-of-way and the height of encroachments are limited to three (3) feet from the top of curb elevation. 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 encroachments 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; therefore, a coastal development permit is not required. 5. A public meeting was held on September 8, 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. Planning Commission Resolution No. PC2022-021 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 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 stairs, handrails, retaining walls, and planters 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 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 Cliff Drive parkway within the public right-of-way is approximately twelve (12) feet from face of curb to the property line. 2. The Cliff Drive parkway elevation changes approximately ten (10) feet between the top of curb and property line. 3. The Project does not diminish the rights of the public, present and future, along the Cliff Drive right-of-way. The project will be installing a five (5) foot wide sidewalk along the Cliff Drive frontage. 4. 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. PC2022-021 Page 3 of 5 5. Approval would require the owners to enter into an Encroachment Agreement to allow the improvements as requested, and any liability associated with the private improvements would be transferred to the owners. Additionally, if the need for public improvements arises in the future, the owners shall 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. The improvements appear complementary to the area; adjacent neighbors have similar private encroachments within the Cliff Drive 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 finds th is Project is categorically exempt from 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 Planning Commission of the City of Newport Beach hereby waives City Council Policy L-6 and approves Encroachment Permit No. N2022-0147, 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 the provisions of Title 20 (Planning and Zoning), of the Newport Beach Municipal Code. Planning Commission Resolution No . PC2022-021 Page 4 of 5 PASSED, APPROVED, AND ADOPTED THIS 8TH DAY OF SEPTEMBER 2022 AYES: Ellmore, Harris , Kleiman , Lowrey, Rosene, and Weigand NOES: None ABSTAIN : None ABSENT: Klaustermeier BY:,~ ~----------Lauren Kleiman, Chairman BY: -----------Mark Rosene , Secretary Planning Commission Resolution No . PC2022-021 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 cond itions 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 with in one (1) calendar year upon receipt of approval, otherwise this approval shall automatically expire. 5. This Encroachment Permit allows stairs, handrails, retaining walls and planters to project eight (8) feet five (5) inches into the Cliff Drive 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. A new 5-foot wide sidewalk shall be installed along the Cliff Drive frontage. 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, 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 the Gonterman Encroachment (PA2022-127) including, but not limited to, Encroachment Permit No. N2022-0147. 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.