HomeMy WebLinkAbout2.0_Mason Encroachment_PA2022-0265CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
March 9, 2023
Agenda Item No. 2
SUBJECT: Mason Encroachment (PA2022-0265)
▪Encroachment Permit No. N2022-0520
SITE LOCATION: 410 Tustin Avenue
APPLICANT: Gary and Linda Mason
OWNER: Gary and Linda Mason
PLANNER: Jason Joh, Associate Civil Engineer
949-644-3323, jjoh@newportbeachca.gov
PROJECT SUMMARY
A request to waive City Council Policy L-6 - Encroachments in Public Rights-of-Way
(“Policy”) for private as-built improvements. The improvements consist of the retention of
existing stairs that encroach up to five (5) feet and nine (9) inches into the 60-foot-wide
Tustin Avenue right-of-way and a two (2)-foot and seven (7)-inch high block wall that
encroaches up to eight (8) feet into the right-of-way. The Tustin Avenue parkway within
the public right-of-way is approximately 12 feet from face of curb to the property line.
The Policy prohibits the existing stairs and wall as structures are limited to a one
(1)-foot projection into the right-of-way with heights not to exceed three (3) feet as
measured from the top of curb elevation. The Owners are requesting a waiver of the
Policy to retain these existing improvements.
RECOMMENDATION
1)Find the project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15303 Class 3 (New Construction or Conversion of Small
Structures), because it has no significant effect on the environment;
2)Waive City Council Policy L-6, Encroachment in Public Rights-of-Way, for non-
compliant private improvements consisting of stairs and a block wall that encroach
into the Tustin Avenue public right-of-way, contingent upon all conditions of the
Encroachment Permit process being met (Attachment No. PC 1); and
3)Adopt Resolution No. PC2023-012 waiving City Council Policy L-6 and approving
Encroachment Permit No. N2022-0520 (Attachment No. PC 2).
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Mason Encroachment (PA2022-0265)
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VICINITY MAP
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INTRODUCTION
The property owners of 410 Tustin Avenue (“Owners”) are requesting a waiver of City
Council Policy L-6 for as-built non-compliant private improvements within the Tustin
Avenue public right-of-way. The Policy defines the existing as-built stairs and block wall
as structures and limits them to a one (1)-foot projection into the right-of-way with heights
not to exceed three (3) feet as measured from top of curb elevation. The Owners are
requesting a waiver of the Policy for these existing improvements.
Included in this staff report are site photos, Owner letter dated November 4, 2022, and
site plan (Attachment Nos. PC 3, 4, and 5).
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 retention of private
improvements within the public rights-of-way. The Policy specifies allowable and
prohibited encroachments and describes the required permits and/or encroachment
agreements.
City Council Policy L-6 outlines private encroachment prohibitions including “… any
surfacing other than standard or colored/ textured concrete or flat stone/ brick/ pavers
installed at grade”. Additionally, Policy L-6 prohibits “…structural encroachments
including, but not limited to, fences, walls, patios, raised planters, etc., which encroach in
excess of one (1)-foot into the public rights-of-way or exceeds three (3)feet in height…”.
The Owners‘ request exceeds these dimensions and a waiver of the policy is necessary
to retain the existing improvements.
According to the current homeowners, the stairs and block wall were installed by a
previous homeowner prior to 1990 without the benefit of an encroachment permit. Staff
is unable to confirm the actual date the construction due to lack of relevant
documentation. The prior homeowner also installed a 4-foot-wide sidewalk without the
benefit of a permit, which is proposed to remain and does not require a waiver of the
Policy.
The Tustin Avenue parkway within the public right-of-way is approximately 12-feet from
face of curb to the property line and the parkway elevation changes approximately three
(3) feet and six (6) inches between the top of curb and property line. The existing private
improvements do not diminish the rights of the public along the Tustin Avenue right-of-
way. Sidewalks are not required on Tustin Avenue, nor does the City have plans for
installing public sidewalks at this time; however, the applicant would maintain the as-built
sidewalk and the City would retain the rights to install a public sidewalk or other public
improvements should it prove necessary in the future. The stairs and block wall are
complementary to the area; several residences within the Tustin Avenue right-of-way
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have similar private encroachments. Some of said encroachments in the area are
permitted through an encroachment permit and agreement, whereas others have been
constructed without approval or permit. There are no existing City utilities within the
encroachment area.
The Public Works Director has reviewed this request and supports this policy waiver to
allow the retention of the stairs and block wall within the public right-of-way. In staff’s
review of the site conditions, the improvements do not hinder the use of the public right-
of-way. The private improvements are not a detriment to the health, safety, and welfare
of the public. The private improvements do not diminish the rights of the public, present
and future at this location provided an encroachment agreement between the City and
the Owners is executed.
Summary
Staff supports a waiver of this Policy to allow the retention of the stairs and block wall
within the Tustin Avenue public right-of-way.
Should the Planning Commission elect to approve the waiver for the installation and
retention of the private improvements and appurtenances, staff recommends the
requirement of an encroachment agreement consistent with Policy L-6. An encroachment
agreement would allow the improvements as requested, and transfer any liability
associated with the private improvements to the Owners. Additionally, if the need for
public improvements should arise in the future, Owners would agree to remove all
encroachments at no cost to the City. The encroachment agreement will be recorded onto
the property’s title, provides important notice for the current and future property owner,
and protects the City.
Environmental Review
This project is categorically exempt from the California Environmental Quality Act
Guidelines pursuant to Section 15303 under Class 3 (New Construction or Conversion of
Small Structures) because it has no potential to have a significant effect on the
environment. Class 3 exempts the construction of accessory (appurtenant) structures
including garages, carports, patios, swimming pools, and fences. The existing
improvements (stairs and block wall) are consistent with structures allowed under this
exemption. There are no known exceptions listed in CEQA Guidelines Section 15300.2
that would invalidate the use of these exemptions.
Public Notice
Notice of this hearing was mailed to all owners of property within 300 feet of the
boundaries of the site (excluding intervening rights-of-way and waterways) including the
applicant and posted on the subject property at least 10 days before the scheduled
meeting, consistent with the provisions of the Municipal Code. Additionally, the item
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appeared on the agenda for this meeting, which was posted at City Hall and on the City
website.
Prepared by: Submitted by:
Jason Joh
Associate Civil Engineer
Jim Campbell
Deputy Community Development Director
ATTACHMENTS
PC 1 City Council Policy L-6 (Encroachments in Public Right-of-Way)
PC 2 Draft Resolution with Findings and Conditions
PC 3 Site Photos
PC 4 Owner Letter dated November 4, 2022
PC 5 Site Plan
01/12/18
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Attachment No. PC 1
City Council Policy L-6 (Encroachments in
Public Rights-of-way)
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L-6
ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY
It is the general policy of the City that the public rights-of-way shall be reserved for public
use or open space; and that the rights of the public, present and future, shall not be
diminished by the installation of private improvements within the public rights-of-way.
For any project located within the Coastal Zone also look to Newport Beach Municipal
Code Title 21, or any successor title.
Categories of encroachments and improvements are listed below, together with the
permit requirement for each category.
Permit and/or encroachment agreement required.
A. Except as expressly set forth herein, permits and/ or encroachment agreements are
required for encroachments into the public rights-of-way.
B. Application for any permit, as required by this policy, shall be filed with the Public
Works Department on a form to be provided by the City and shall show the
proposed planting or work and the nature thereof. Drawings for encroachment
permits requiring Planning Commission review shall be prepared to scale. Plan
and elevation drawings shall accurately depict location, height, and extent of the
proposed encroachments.
C. If the application is for a permit required under private encroachments that are
prohibited without a waiver, it shall be submitted to the Planning Commission for
consideration.
1. The Planning Commission is designated to grant or deny a waiver and
approve, conditionally approve, or deny applications for encroachment
permits, subject to the findings in subsection (a), of this Section.
a. The Planning Commission may grant a waiver and may approve or
conditionally approve an application for an encroachment permit if
the Planning Commission finds the encroachment will not be a
detriment to the health, safety, and welfare of the public.
b. If an application for a private encroachment that is prohibited
without a waiver is part of a larger approval requiring City Council
approval, then the Planning Commission shall make a
recommendation to the City Council regarding whether this policy
should be waived and the permit granted.
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C. The Planning Commission shall have discretion to refer any request
for a waiver or encroachment permit before the Planning
Commission to the City Council for consideration.
d. Any decision made by the Planning Commission may be appealed
or called for review in accordance with Chapter 20.64.
2. Notice of the Planning Commissions review of a request to waive a
provision of this policy shall be:
a. Mailed to property owners within 300 feet of the project site at least
ten (10) calendar days in advance of a meeting. The notice shall
contain the address of the project site, the applicant's name, a brief
description of the improvements, date, time, and place of the
meeting, and a statement informing the public that they have the
ability to provide comments to the Planning Commission; and
b. Posted on or close to the subject property in a prominent location at
least ten (10) calendar days before the scheduled hearing by the
Planning Commission in the following manner:
i. One or more sign(s) shall be posted as determined by the
Public Works Director.
ii. The size and location of the sign(s) shall be as determined by
the Public Works Director.
iii. The applicant for the encroachment permit/waiver shall be
responsible for maintaining the sign(s) in a satisfactory
condition.
iv. The applicant for the encroachment permit/waiver shall
remove all sign(s) at the end of the appeal period.
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L-6
Private encroachments that are prohibited without a waiver and approval.
A. All structural encroachments including, but not limited to, fences, walls, patios,
raised planters, landscaping, etc., which encroach in excess of one (1) -foot into the
public right-of-way, or exceed thee (3) -feet in height, measured from the top of
curb elevation/ or from sidewalk elevation where sidewalk exists.
B. Driveway approaches not conforming to Council Policy L-2.
C. Modifications to original design concepts approved by the City.
D Private signs except as provided for in the Building Code.
E. Lighting.
F. Parkway walkway surfacing of loose rock, gravel, or any surfacing other than
standard or colored/ textured concrete or flat stone/brick/pavers installed at
grade.
G. Private dwellings and appendages including raised patios decks and bay
windows, except as provided for in this section and the Building Code.
H. Pay telephones and private mail carriers drop boxes.
General private encroachments that require an encroachment permit and if applicable,
an encroachment agreement from the Public Works Department.
A. Drive approaches conforming to Council Policy L-2.
B. Standard sidewalks.
C. Carriage walks (not to exceed twenty-five percent (25%) of the parkway area).
D. Parkway surfacing (standard or colored/ textured concrete or flat stone/brick)
installed at grade (not to exceed twenty-five percent (25%) of the parkway area).
E. CATV and public utility facilities.
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L-6
F. Structural encroachments including, but not limited to, fences, walls, patios, raised
planters, etc., which encroach one (1) foot or less and do not exceed three (3) feet
in height within the public right-of-way. If, however, in the opinion of the Public
Works Department, the nature or location of this type of encroachment is such that
Planning Commission review is warranted, the Department may forward the item
to the Planning Commission for action in accordance with the procedures set forth
for granting waivers for private encroachments that would otherwise be
prohibited.
G. Mailboxes, when required by the U.S. Postal Service. Mailboxes shall be installed
per U.S. Postal Service requirements. Mailbox base construction length and width
shall not exceed the length of the mailbox, or twenty-four (24) inches, whichever
is less.
H. The placement of utility pedestals shall be at the back of sidewalks on arterials and
major pedestrian thoroughfares without zero setbacks. There shall be at least four
4) feet of clear sidewalk width and/or pedestals shall be placed in the parkway
outside of walk area.
I. When connecting to or relocating public utilities.
J. Artificial Turf (permeable) up to 100% of the required parkway landscape area.
Artificial turf grass shall be installed in accordance to manufacturers'
recommendations. Material must be securely anchored and maintained so as to
eliminate disrepair, fading, tearing, wrinkling and or edge curling or any other
type of material performance. Material shall be replaced prior to the
aforementioned conditions occur. Prohibited application: Indoor and outdoor
carpet, green in color or otherwise. The Director of Public Works shall from time
to time update the standards for this application. See Artificial Turf Material and
Installation Standards.
K. Tree and shrub planting and removal.
L. Median landscaping.
If, in the opinion of the Public Works Departments, the approved planting is not being
maintained for view, safety clearance and sight distance, Newport Beach Municipal Code
Chapter 10.50, "Public Nuisance Abatement," or any successor statute, shall be used to
remove offending plant material.
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L-6
The permit applicant shall reimburse the City of Newport Beach for the value of any City
tree removed by this process. This value shall be determined by the City Arborist using
the International Society of Arboriculture's "Guide for Plant Appraisal" or a minimum
forty-eight (48) inch box tree replacement value.
Area specific private encroachments requiring an encroachment permit from the Public
Works Department and subject to the execution of an encroachment agreement for
non-standard improvements.
A. Structural encroachments which do not exceed three (3) feet in height measured
from the top of curb elevation/ or from sidewalk elevation where sidewalk exists,
including, but not limited to fences, walls, and raised planters in public rights-of-
way in areas that are more than eight (8) feet behind the face of curbs on the
following streets:
1. Santa Ana Avenue from Cliff Drive to Fifteenth Street.
B. Permitted Structural Encroachments on Balboa Island along South Bay Front,
North Bay Front, Grand Canal, and East Bayfront are as follows:
1. Planters that do not exceed one (1) foot in height may be installed between
the back of existing sidewalk and property line, planted with ground cover
and shrubs not to exceed two (2) feet in height measured from sidewalk
elevation;
2. Fences and walls with a minimum setback of two (2) feet six (6) inches from
back of sidewalk.
a. For patios constructed at grade elevation to one (1) foot above
sidewalk grade elevation, fences and walls may be three (3) feet high
above sidewalk grade.
b. For patios constructed greater than one (1) foot above sidewalk
grade elevation, fences and walls must be set back a minimum of
three (3) feet from back of sidewalk, not exceed two (2) feet six (6)
inches in height above the patio, have at least forty percent (40%)
visibility through them, and not to exceed four (4) feet in height
above existing public sidewalk grade.
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L-6
3. Patios with a minimum setback of two (2) feet six (6) inches from the back
of sidewalk.
a. Raised Patios are permitted provided they have a maximum height
of two (2) feet six (6) inches above sidewalk grade, are set back a
minimum of two (2) feet six (6) inches from back of sidewalk, and
provided all bulkhead deadman and tiebacks supporting the Bay
front bulkhead are replaced "If required by the Public Works
Department" in conformance with the requirements of the Public
Works Department; Stairs located a minimum of two (2) feet six (6)
inches from back of sidewalk.
C. Structural encroachments which do not exceed three (3) feet in height, including,
but not limited to fences, walls, patios, and raised planters in public rights -of -ways
in areas that are five (5) feet behind the face of curb on the following streets:
1. Southerly side of West Bay Avenue between 8th Street and 15th Street.
D. Non-standard encroachments, including, but not limited to fences, walls, and
raised planters within City easements as approved by the Public Works Director.
E. Buena Vista Boulevard - Bay Avenue to Edgewater Avenue. The street right-of-
way in this reach is ten (10) feet wide, with private property on both sides of the
public way. Improvements allowed at this location shall consist of the following:
1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way line maintained by the City.
2. Landscaping under twenty-four (24) inches in height and park -like
improvements in the remaining portion of the right-of-way shall be allowed
if installed and maintained by the adjoining property owners. Private
improvements such as walls, fences, gates, signs and living areas such as
cabanas and other roofed structures shall not be allowed.
3. Access to existing private piers and floats shall be allowed where a harbor
permit has been granted, but such access structures shall not be expanded
beyond the original permit dimensions.
F. Edgewater Avenue - Buena Vista Boulevard to Island Avenue. The street right-
of-way in this reach is forty (40) feet wide with private property on the inland side.
The bay side is improved with a privately constructed bulkhead on public
property. Improvements allowed at this location shall consist of the following:
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1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way line maintained by the City.
2. Landscaping under twenty (24) inches in height and park -like
improvements in the remaining portion of the right-of-way (between the
sidewalk and the bulkhead) shall be allowed if installed and maintained by
the adjoining property owner. Private improvements such as fences, gates,
signs, and living areas shall not be allowed.
3. Access to private piers and floats shall be allowed where a harbor permit
has been granted, but such access structures shall not be expanded beyond
the permit dimensions.
G. Edgewater Avenue - Island Avenue to Alvarado Street. The street right-of-way
in this reach is forty (40) feet wide with private property on the inland side. The
bay side is improved with a sloping beach leading to the waters of the bay.
Improvements allowed at this location shall consist of the following:
1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way maintained by the City.
2. The remaining portion of the right-of-way shall be reserved as a public
beach and no private improvements, impediments or boat storage shall be
allowed except for access to existing piers and floats where a harbor or a
mooring permit has been granted, but such access structures shall not be
expanded beyond the original permit dimensions. Any existing permits to
encroach on the right-of-way shall be rescinded
H. Edgewater Avenue - Alvarado Street to Fernando Street. The street right-of-way
in this reach is fifty (50) feet wide. The bay side is improved with a sloping beach
leading to the waters of the bay. The private lots bayward of the public right-of-
way are under water and within State Tidelands. Improvements allowed at this
location shall consist of the following:
1. A minimum six (6) foot wide public sidewalk along the inland side of the
right-of-way maintained by the City.
2. The remaining portion of the right-of-way shall be reserved as a public
beach and no private improvements, impediments or boat storage shall be
allowed except for access to existing piers and floats where a harbor permit
has been granted, but such access structures shall not be expanded beyond
the original permit dimensions.
I. Bay Front Street Ends
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L-6
1. Bay front street ends at beach level may contain two (2) foot wide planting
areas bounded by redwood or concrete strips and containing hedges no
more than two (2) feet in height above the adjacent surface. The planting
areas may be installed:
a. At each side of the prolongation of the street and extending no more
than fifteen (15) feet from the end of the paved street.
b. At the end of the paved street, except that a twelve (12) foot wide
opening must be left for City emergency and maintenance
equipment, and pedestrians to enter the beach area.
2. Bay front street ends where tidal flow prevents standard installation may
be landscaped, subject to the prior approval by the City of specific plans
prepared by the applicant. Access to beach areas shall be provided for in
any such specific plans.
3. Improvements shall be installed at the expense of the adjacent property
owners.
4. Landscape maintenance and watering shall be provided by the adjacent
property owners to the satisfaction of the City. A sprinkler system
connected to the adjacent property shall be installed in each planter
J. Unimproved Ocean Front Street Ends
1. Improvements shall be installed at the expense of the adjacent property
owners.
2. Landscape maintenance and watering shall be provided by the adjacent
property owners to the satisfaction of the City. A sprinkler system
connected to the adjacent property shall be installed in each planter.
3. All work shall be installed to grades established by the Public Works
Department.
4. A four (4) foot wide sidewalk shall be provided on each side of the street
right-of-way adjacent to the property line.
5. A minimum of twelve (12) feet of unobstructed access to the beach in the
center of the right-of-way shall be surfaced with brick, asphalt, concrete or
artificial turf, or an equivalent surfacing approved by the City.
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L-6
a. Portland Cement Concrete. A minimum six (6) inches over native
compacted material.
b. Asphalt Concrete. A minimum two (2) feet six (6) inches of asphalt
concrete over a six (6) inch thick aggregate.
C. Brick. Brick installed over four inches of imported aggregate base.
A dry mix of one-to-one cement and clean plaster sand to be swept
into the one-quarter (1/4) to one-half (1/2) inch space between
bricks. The dry mix shall be moistened with a fine spray of water
after it is in place.
6. Planters five (5) feet wide shall be provided between the side and the center
access along a portion of each side of the street with a heavy emphasis on
drought resistant plant materials. Plant materials shall be installed to City
specifications. A six (6) inch to eighteen (18) inch high lip of concrete, brick
or rock may be installed as part of the planter.
7. Special provisions shall be made in the design when garage access is
required from street ends.
8. Where unusually large quantities of sand exist in a street end area, the City
shall assist the adjacent owners by moving the sand to an area determined
by the City.
K. Unimproved Alleys that End at the Ocean Front
1. Improvements shall be installed at the expense of the adjacent property
owner.
2. All work shall be installed to grades established by the Public Works
Department.
3. Landscaping of potted plants shall be permitted in the portion of the alley
right-of-way that terminates at the ocean front sidewalk. A six (6) foot wide
inviting passageway shall be maintained for pedestrian access.
4. Where vehicles or pedestrians will travel, alleys may be surfaced with brick,
asphalt, concrete or equivalent surfacing.
5. Improvements shall extend from the nearest street of alley improvement to
the northerly line of the ocean front.
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L-6
If, in the opinion of the Public Works Department, the nature or location of this type of
encroachment is such that Planning Commission review is warranted, the Department
may forward the application to the Planning Commission for original action in
accordance with the procedures set forth for granting waivers for private encroachments
that would otherwise be prohibited.
The City Manager is authorized to execute, on behalf of the City, agreements for non-
standard improvements, which are entered into pursuant to this section or other
authorization.
Private encroachments not requiring a permit.
A. Parkway lawn, ground cover and drought tolerant planting. Parkway areas with
the exception of carriage walks/ parkway paving/ artificial turf shall be entirely
planted with lawn, ground cover and/or drought tolerant planting.
B. Parkway sprinkling systems.
C. Use of public streets and projections over public property, which are covered by
the latest adopted edition of the California Code of Regulations Title 24 under a
valid building permit issued by the City.
Encroachments on public sidewalks
Newport Beach sidewalks are a desirable place to walk, stroll and jog and it is, therefore,
the policy of the City that public sidewalks are to provide unobstructed passage
whenever possible.
Sidewalks shall be reserved for public use and the rights of the public shall not be
diminished by the installation of benches, planters, bicycle racks, etc., by private entities
nor by the installation of facilities by public utilities or other public agencies. It is the
policy of the City that encroachments on public sidewalks shall be subject to the
following:
A. General
1. Permitted encroachments shall not reduce the sidewalk width available for
normal pedestrian movement.
2. Permitted encroachments may be located in areas between tree wells or
other existing improvements as long as they do not interfere with
pedestrian travel.
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L-6
3. Permitted encroachments shall be located at least eighteen (18) inches from
the curb face. In areas where vehicles do not park or otherwise extend over
the sidewalk, this setback may be reduced.
4. Permitted encroachments shall not be located within thirty-six (36) inches
of a parking meter or street light, nor shall they be located where they will
interfere with the normal use of other facilities.
5. Encroachments shall not block access from parked cars.
6. They shall not be located within ten (10) feet of a crosswalk, fire hydrant or
driveway.
7. Encroachments may not be chained or otherwise anchored to any tree,
streetlight, parking meter or other property.
8. Applicant shall pay all costs for City and/or the California Department of
Transportation ("CalTrans") permit processing where necessary.
9. Applicant shall pay all costs associated with the installation and
maintenance of the encroachments by the City or private installer.
B. Public Benches
1. When applying the above requirements to benches, allowance shall be
made for the space required for a person sitting on the bench.
2. Benches to be installed in an area where there is a theme or bench style shall
conform to that theme or style.
C. Public Bicycle Racks
1. Bicycle racks shall be located to allow bicycles to extend five (5) feet from
the center of the rack and comply with the above requirements.
History
1969,08/25) - L-6 - Adopted (Private Encroachments in Public Rights -of -Way)
1969,08/25) - I-12 - Adopted (Ocean Front Street -End Improvements)
1970, 03/ 09) - L-6 - Reaffirmed
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1970, 03/ 09) - I-12 - Amended
1971, 02/08) - L-6 - Reaffirmed
1972,02/14) - L-6 Amended
1972, 02/14) -1-12 Reaffirmed
1973,12/ 10) - L-6 - Reaffirmed
1973,12/ 10) - I-12 Amended
1974,11/ 11) - L-6 Reaffirmed
1974,11/ 11) -1-12 Amended
1975,08/11) - L-6 Amended
1977, 03/14) - L-7 Adopted (Encroachments and Bay Access on Buena Vista Blvd. -
Edgewater Ave. Between bay Ave. and Fernando St.)
1977, 09/ 12) - L-7 - Reaffirmed
1981, 02/ 09) - L-6 Amended
1981, 02/ 09) -1-12 Amended
1981, 08/24) - L-10 Adopted - incorporating I-12 & L-10
1981,11/23) - L-6 - Amended
1982,11/08) - L-10 Amended
1986,10/27) - L-6 - Amended
1987, 01/26) - L-6 - Amended
1987,07/13) - L-6 - Amended
1989,02/ 13) - L-6 - Amended
1989,08/14) - L-6 - Amended
1989,11/27) - L-6 - Amended
1989,11/27) - L-10 Amended
1991,12/09) - L-6 - Amended
1992,12/14) - L-6 - Amended
1993, 01/11) - L-18 Adopted (Encroachments on Public Sidewalks)
1993, 07/12) - L-6 - Amended
1994,01/24) - L-6 - Amended
1994, 01/24) - L-7 - Reaffirmed
1994, 01/24) - L-8 _ Amended - changed to L-8
1994, 01/24) - L-15 Amended - changed to L-15
1994, 05/09) - L-6 - Amended
1995,02/27) - L-6 - Amended
1996,02/26) - L-6 - Amended
1996,02/26) - L-15 Amended
2001, 05/08) - L-6 - Amended
2001, 05/ 08) - L-7 - Amended
2001, 05/08) - L-8 - Amended
2015, 01/27) - L-6 - Amended
2018, 08/14) - L-6 - Amended (incorporating L-6, L-7, L-8 & L-15)
2018,11/27) - L-6 - Amended
12
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Attachment No. PC 2
Draft Resolution with Findings and
Conditions
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Planning Commission Resolution No. PC2023-0XX
Page 2 of 5
RESOLUTION NO. PC2023-0XX
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. N2022-0520
TO ALLOW RETENTION OF EXISTING IMPROVEMENTS WITHIN
THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED
AT 410 TUSTIN AVENUE (PA2022-0265)
THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Gary Mason and Linda Mason (“Owners”), with respect to
property located at 410 Tustin Avenue, Newport Beach, California and legally described as
Lot 3 in Block 26 of First Addition to Newport Heights, in the City of Newport Beach, County
of Orange, State of California, as per map recorded in Book 4 Page 94 of Miscellaneous
Maps, in the office of the County Recorder of Orange County, California (“Property”).
2. The Owners request approval of an encroachment permit for private as-built improvements
within the Tustin Avenue public right-of-way consisting of on-grade stairs that encroach
up to five feet and nine inches into the 60-foot wide Tustin Avenue public right-of-way
and a two foot and seven inch high block wall that encroaches up to eight feet into the
right-of-way (“Project”). The Tustin Avenue parkway within the public right-of-way is
approximately 12-feet from face of curb to the property line. City Council Policy L-6
(“Encroachments in Public Rights-Of- Way”) (“City Council Policy L-6”) prohibits the
existing on-grade stairs and existing wall since structures are limited to a one foot projection
into the right-of-way with heights not to exceed three feet as measured 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) unless a waiver of City Council Policy L-6 is approved by
the Planning Commission.
4. The Property is designated Single Unit Residential Detached (RS-D) by the General
Plan Land Use Element and is located within the Single-Unit Residential (R-1) Zoning
District.
5. The Property is not located within the coastal zone; therefore, a coastal development
permit is not required.
6. A public meeting was held on March 9, 2023, 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
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Planning Commission Resolution No. PC2023-0XX
Page 2 of 5
presented to, and considered by, the Planning Commission at this public hearing.
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 such as
garages, carports, patios, swimming pools and fences. The existing improvements,
which consist of stairs and a block wall 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 of the CEQA
Guidelines 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 herein:
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 Tustin Avenue parkway within the public right-of-way is approximately 12-feet from
face of curb to the property line.
2. The Tustin Avenue parkway elevation changes approximately three feet and six inches
between the top of curb and property line.
3. The Project does not diminish the rights of the public, present and future, along the
Tustin Avenue right-of-way. There are currently no City installed sidewalks on Tustin
Avenue, nor does the City have plans for installing sidewalks on this street.
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.
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Planning Commission Resolution No. PC2023-0XX
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, 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; nearby neighbors have similar
private encroachments within the Tustin Avenue right-of-way. Some of the nearby
encroachments are permitted through an encroachment permit and agreement.
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 this 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. N2022-0520, subject to the conditions set
forth in Exhibit “A,” which is attached hereto and incorporated herein 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.
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Planning Commission Resolution No. PC2023-0XX
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PASSED, APPROVED, AND ADOPTED THIS 9TH DAY OF March 2023
AYES:
NOES:
ABSTAIN:
ABSENT:
BY:
Curtis Ellmore, Chairman
BY:
Sarah Klaustermeier, Secretary
Attachment(s): Exhibit A – Conditions of Approval
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Planning Commission Resolution No. PC2023-0XX
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 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. This Encroachment Permit allows stairs to encroach up to five (5) feet and nine (9)
inches into the Tustin Avenue public right-of-way and a two (2) foot and seven (7) inch
high block wall to encroach eight (8) feet into the Tustin Avenue 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. If the need for public improvements arises in the future, Owners shall remove all
encroachments at no cost to the City.
7. 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 Mason Encroachment (PA2022-0265) including, but not limited to,
Encroachment Permit No. N2022-0520. 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.
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Attachment No. PC 3
Site Photos
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Attachment No. PC 4
Owner Letter dated November 4, 2022
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Attachment No. PC 5
Site Plan
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7'-9"PROPERTY BOUNDARY43
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