HomeMy WebLinkAboutPC2024-009 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2024-0154 TO ALLOW RETENTION OF EXISTING AND CONSTRUCTION OF NEW IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCARESOLUTION NO. PC2024-009 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. N2024-0154 TO ALLOW RETENTION OF EXISTING AND CONSTRUCTION OF NEW IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY
FOR THE PROPERTY LOCATED AT 521 LARKSPUR AVENUE (PA2024-0067) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Stephanie Pettey on behalf of the Pettey Family Trust,
(“Owners”), with respect to property located at 521 Larkspur Avenue Drive, Newport
Beach, California and legally described as Lot 21, Block 537 of Corona Del Mar, excepting the northerly 51 feet of said Lot 21, as shown on a map recorded in Book 3 Page 41 and 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County (“Property”), requesting approval of an encroachment permit.
2. The Owners request approval of Encroachment Permit No. N2024-0154 to retain existing and construct new non-compliant private improvements within the Third Avenue public right-of-way consisting of 3-foot tall vinyl fencing and 6-foot tall vinyl fencing encroaching up to 6 feet and 2 feet 6 inches, respectively, within the 50-foot wide Third Avenue public
right-of-way (“Project”). The Third Avenue right of way is approximately 10 feet from face
of curb to the property line. City Council Policy L-6 (Encroachment in Public Rights-of-Way) (“Policy”) prohibits the existing and proposed new vinyl fencing to a 1-foot projection into the right-of-way and limiting encroachments to 36 inches maximum. The Owner is requesting a waiver of the Policy to retain the existing fencing and install new
fencing.
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 May 23, 2024, 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 (Encroachments in Public Rights-of-
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Planning Commission Resolution No. PC2024-009 Page 2 of 5
Way). Evidence, both written and oral, was 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 Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment), 15060(c)(3) (the activity is not a project as defined in Section 15378) and to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 (“CEQA Guidelines), because the
existing improvements have no potential for resulting in direct or indirect physical
change to the environment. Class 3 (New Construction or Conversion of Small Structures) exempts the construction of accessory (appurtenant) structures including garages, carports, patios, swimming pools, and fences. The existing and proposed improvements (vinyl fencing) 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. 2. 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 Third Avenue right-of-way is approximately 10 feet from face of curb to the property line.
2. The Project does not diminish the rights of the public, present and future, along the Third Avenue. There are no sidewalks on Third Avenue, nor does the City currently have plans
to install sidewalks on this street.
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Planning Commission Resolution No. PC2024-009 Page 3 of 5
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. 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. Improvements appear complementary to the area; adjacent neighbors have similar private encroachments within the Third Avenue public 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 within the Third Avenue public right-of-way. The existing and proposed improvements do not hinder the use or
future repair/replacement of the existing fire hydrant.
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 Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), 15060(c)(3) (the activity is not a project as defined in Section 15378) and to Section
15303 under Class 3 (New Construction or Conversion of Small Structures) of the CEQA
Guidelines because the existing improvements have no potential for resulting in direct or indirect physical change to the environment. 2. The Planning Commission of the City of Newport Beach hereby waives City Council Policy
L-6 and approves Encroachment Permit No. N2024-0154, 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 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 23rd DAY OF MAY 2024
AYES: Barto, Ellmore, Harris, Langford, Rosene, and Salene
NOES: None ABSTAIN: None
ABSENT: Lowrey
BY:_________________________
Curtis Ellmore, Chair BY:_________________________
Tristan Harris, Secretary
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Planning Commission Resolution No. PC2024-009 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 calendar year upon
receipt of approval, otherwise this approval shall automatically expire.
5. This Encroachment Permit allows retention of existing and installation of new fencing within the Third 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 Pettey Family Trust Encroachment (PA2024-0067) including, but not limited to, Encroachment Permit No. N2024-0154. 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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