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Home My WebLink AboutPC2024-010 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2024-0163 TO ALLOW RETENTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 3015 CLIFF DRIVE (PA2024-0RESOLUTION NO. PC2024-010 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. N2024-0163 TO ALLOW RETENTION OF IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 3015 CLIFF DRIVE (PA2024-0045) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Patricia Coleen Smith on behalf of the Smith Family Trust, (“Owners”), with respect to property located at 3015 Cliff Drive, Newport Beach, California and legally described as Lot 40 of Tract 444, as shown on a map recorded in Book 19 Page 24 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. N2024-0163 to retain non- compliant private improvements within the La Jolla Drive and Cliff Drive public rights-of- way consisting of varying height retaining walls, steps, and pilaster with lights that encroach up to 4 feet into the 40-foot-wide public right-of-way on La Jolla Drive and up to 13 feet into the 80-foot wide public right-of-way on Cliff Drive (“Project”). The La Jolla Drive right-of-way is approximately 5 feet wide from curb face to property line and the Cliff Drive right-of- way is approximately 13 feet from face of curb to the property line. City Council Policy L-6 (Encroachments in Public Rights-of-Way) (“Policy”) prohibits the retaining walls, steps, and pilasters with lights since structures are limited to a 1 foot projection into the right-of-way, maximum height of 36 inches and prohibits lighting. 3. The requested approvals are not specifically provided for within City Council Policy L-6 (Encroachments in Public Rights-of-Way). 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 (Encroachments in Public Rights-of-Way) 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- DocuSign Envelope ID: A2E5C4B1-D372-4743-8464-A330B600FE9A Planning Commission Resolution No. PC2024-010 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) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 (“CEQA Guidelines”), because the existing improvements have been in place since the 1990s, thereby have no potential for resulting in direct or indirect physical change to the environment. 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 La Jolla Drive right-of-way is approximately 5 feet from the face of curb to the property line, and the Cliff Drive right-of-way is approximately 13 feet from the face of curb to the property line. 2. The Project does not diminish the rights of the public, present and future, along the La Jolla Drive and Cliff Drive rights-of-way. There are currently no sidewalks on La Jolla Drive and Cliff Drive, nor does the City have plans for installing sidewalks on this street at this time. 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 except for an existing fire hydrant located at the corner of La Jolla Drive and Cliff Drive. Based on discussions with the Utility and Fire Departments, the existing improvements do not hinder the use or future repair/replacement of the existing fire hydrant. DocuSign Envelope ID: A2E5C4B1-D372-4743-8464-A330B600FE9A Planning Commission Resolution No. PC2024-010 Page 3 of 5 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, 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 La Jolla Drive and Cliff Drive rights-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 except for an existing fire hydrant located at the corner of La Jolla Drive and Cliff Drive. Based on discussions with the Utility and Fire Departments, the existing 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) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines Title 14, Chapter 3, because the existing improvements have been in place since the 1990s, thereby 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. N2024-0163, 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. DocuSign Envelope ID: A2E5C4B1-D372-4743-8464-A330B600FE9A Planning Commission Resolution No. PC2024-010 Page 4 of 5 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 DocuSign Envelope ID: A2E5C4B1-D372-4743-8464-A330B600FE9A Planning Commission Resolution No. PC2024-010 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 1 calendar year upon receipt of approval, otherwise this approval shall automatically expire. 5. This Encroachment Permit allows retention of various retaining walls, steps, and pilaster with lights into the La Jolla Drive and Cliff Drive public rights-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 Smith Family Trust Encroachment (PA2024-0045) including, but not limited to, Encroachment Permit No. N2024-0163. 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. DocuSign Envelope ID: A2E5C4B1-D372-4743-8464-A330B600FE9A