The URL can be used to link to this page

Home My WebLink About32 - 3431 Ocean Boulevard ImprovementsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 32 June 13, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Fong Tse, P.E. 949 - 644 -3324 or ftse @city.newport- beach.ca.us SUBJECT: 3431 OCEAN BOULEVARD - REQUEST TO CONSTRUCT NOW STANDARD IMPROVEMENTS IN THE PUBLIC RIGHT -OF -WAY OWNER: Lawrence Tabak RECOMMENDATIONS: 1. Deny the Owner's request to construct non - standard encroachments, which include, but are not limited to, retaining walls, caissons, landscaping, associated drainage, and appurtenances within the public right -of -way adjacent to the property located at 3431 Ocean Boulevard as presented on the latest grading plan received by staff; and Direct Owner to enter into an encroachment agreement with the City to maintain the existing walls and planters encroachments existing in the public right -of -way to the satisfaction of the Public Works Department. Or 2. Approve a limited expansion of the existing encroachments in the public right -of- way and direct staff to prepare an encroachment agreement and permit for the non - standard improvements in the public right -of -way fronting 3431 Ocean Boulevard. BACKGROUND: The project at 3431 Ocean Boulevard in Corona del Mar has been under way for several years. The following is a list of key dates of actions related to the proposed project: * 5/29/2002 — Modifications Committee approves a 5' encroachment into the 10' front setback. 3431 Ocean Boulevard - Request to Construct Non - Standard Improvements in the Public Right -of -Way June 13, 2006 Page 2 * 7/22/2003 — Applicant applies for variance to exceed height limit and modification to encroach an additional 3' into the front setback for a total of 8'. Home size is 6710 s.f. with 615 s.f. of garage space. * 9/18/2003 — Planning Commission denies Variance but approves modification for additional encroachment into front yard setback. * 10/14/2003 — City Council denies both the Variance and the Modification. * 10/21/2003 — Councilmember Heffernan requests reconsideration of the action taken on 10/14/2003. * 11/12/2003 — City Council reaffirms denial of the Variance, but approves the Modification. * 12/15/04 — Modifications Committee approves request for sideyard guardrail to exceed the height limit for such railings. * 5/9/2005 — Zoning Administrator approves Modification to allow underground elements to encroach 10' into the 10' front yard setback. DISCUSSION: It is important to note that the approvals up to the City Council approval on 11/12/2003 were approvals for modifications to zoning regulations that apply to private property. The plans submitted for the approvals in 2003 showed maintaining the existing retaining walls and relocating the trash enclosure that apparently was constructed in the public right of way years ago. A copy of the pertinent portion of this Site Plan is attached as Exhibit A. Resolution 2003 -60, denying the Variance and approving the Modification, includes the following in Section 4 g): "... sufficient space remains for vehicular access and maneuvering" as a reason for finding the Modification to be consistent with the legislative intent of the Municipal Code. Sometime between 11/10/2004 and 1/5/2005 the applicant submitted several plans for informal review to the Public Works Department that proposed revisions to the existing retaining walls and the addition of planter areas, all of which were further encroachments into the public right of way beyond the existing development. An earlier concept plan showed an encroachment including caissons and entry walkway widening into Inspiration Point Park as well as gated entry on the common driveway. This informal plan was rejected by staff as it would be unlikely that the Council would approve private expansion into a park as well as a gated driveway on public property. Because this plan was not a formal submittal, a record of it was not entered into the tracking system. The review of these plans was performed by an employee, Gil Wong, who has since retired, taking with him any knowledge of such a plan. However, it is our understanding that Mr. Wong was trying to provide guidance as to what would be an acceptable plan for submittal to and potential approval by City Council. As a long time City employee, Mr. Wong was well 3431 Ocean Boulevard - Request to Construct Non- Standard Improvements in the Public Right-of-Way June 13. 2006 Page 3 aware of the City's encroachment policies and would have known that any extensive encroachment would need to be approved by the City Council. We would also expect that Mr. Wong shared that information with the applicant and /or his architect. Therefore, Staff believes that the notation, "OK ", made by Mr. Wong on the attached, Exhibit B, is in reference to an acceptable plan that could be processed and not a formal approval. As a follow up to the notation in exhibit B, the General Services Department sent the attached letter, dated March 10, 2005 (Exhibit C), granting "approval in concept" for the re- landscaping. Formal on -site plan checks were submitted through the Building Department to the Public Works Department in December 2004, May 2005, and February 2006. The first submittal did not show any work in the public right of way and a plan check correction was made that the trash enclosure should be relocated onto private property. The May 2005 submittal continued to show the existing retaining walls were to remain, but did show the trash enclosure relocated into the northwesterly comer of the right of way. It wasn't until the February 2006 submittal that showed the proposed moving of the walls further into the slope. It was at this point that staff advised the applicant that the Public Works Department was opposed to any further encroachment beyond what is currently existing and that we would not recommend approval. The applicant requested review of the Public Works decision by the City Council. At its May 23, 2006 regular meeting, the City Council directed staff to discuss the encroachment issues once again with the Owner and to bring the Item back to City Council at its June 13, 2006 regular meeting. On May 24th, the day following the May 23`d City Council meeting staff met with the Owner and his Architect on the case history and issues. On May 25 , staff informed the Owner's Architect via telephone that the Public Works Department had developed a compromise and was prepared to recommend allowing the Owner to extend the existing retaining wall easterly of the existing trash enclosure along the wall's current alignment to provide improved vehicle turning movements into and out of the new "pulled forward" garages. Staff agreed to allow the trash enclosure to remain in the right -of -way due to the fact that it had been there for many years. The compromise also required a reduction in the size of the planters on the easterly side to reduce the need for additional encroachment from 12' to 8'. Based upon comments by the architect, staff anticipated receiving revised plans showing this compromise solution. Instead, a letter from the Tabak's attorney was received which is attached as Exhibit D. CONCLUSION: While the existing improvements in the public right -of -way exceed those normally allowed by City Council Policy L-6 PRIVATE ENCROACHMENTS IN PUBLIC RIGHTS -OF -WAY, the proposed improvements represent significant further encroachment for personal use. Staff believes the alternative to construct a limited wall extension along the current retaining wall alignment will provide adequate space for vehicles to get into and out of the 3431 Ocean Boulevard - Request to Construct Non - Standard Improvements in the Public Right-of-Way June 13, 2006 Page 4 new garages. A smaller planter along the easterly edge will allow the owner to have a reasonable entry area even though he has moved the home to be within 2' of the property line. Should the City Council grant an approval to extend the existing retaining wall, an encroachment agreement will be prepared by staff for City Council approval and will stipulate the Owner and future owners) to be responsible for the maintenance of all of the approved non - standard improvements to the satisfaction of the City. Furthermore, the Owner will be required to submit an $80,000.00 Faithful Performance Bond and Labor and Materials Bond as surety for completing the work in the public right -of -way to the satisfaction of the Public Works Department. Environmental Review: Categorically Exempt under Chapter 3, Article 19, Section 15301, Class 1(c) of Title 14, California Code of Regulations. Exemption is for minor alteration of existing facilities not expanding existing uses. Prepared bv- Attachment: Submitted by: Baum Director Exhibit A - Reduced scale conceptual plan (submitted in January 2005) Exhibit B - Reduced scale latest grading plan (submitted on 2/26/06 for 3� plan check) Exhibit C — Letter from General Services, Dated March 10, 2005 Exhibit D - May 30, 2006 letter from Owner's counsel m N A T T > r v i .O D N A 2 n O V r T r m O O £S $ V W N fT TT ;>D>� O O O @ l z r b c f p0O t G 0:0m b i 1� A S i S O C r m C 1 SYMBOL: 0 a L EXISTM MYOPORW TREE TO BE REMOVED P i 9C�jC b � qsl 3# r CO d �rs°•aw SITE PACIFIC OCEAN VICNTY MAP. N.T.S. EXIS ST EN i SITE PLAN ` SCALE t/ awl+can- L Frk I' i Ji c CD � .. Z Lj p�. i S _ o TABAK 3431 t N�f6• Pu OFF =SIT'F GRAI M (� -/sw<s T - s�f+r;lG� SL.pP6 SWiRac¢. L QN -o {oJ� w(THI(t "(H6 pV` /�Pf.CISSNJ i�p.W. . SIY �yagS6Y) UVE 7VM4 a . p ✓� pfv E bW �6 ,, °SC 5 pl4 fN WPiL pNb MAP pSSs�b �'4% 05 i i UTILi �nr«LE: try , ' x .t.. f . m4Pe� -Rn�aP ;. � p'"'� �ctt�NV66� �nWnLE 1 1 � : z,•o l E'd t=Mf34 eN tpmw � tiG sro c•a+Ft. k ISr-p' i .FFLFR .� r. tag rW Frk I' i Ji c CD � .. Z Lj p�. i S _ o TABAK 3431 t N�f6• Pu OFF =SIT'F GRAI M (� -/sw<s T - s�f+r;lG� SL.pP6 SWiRac¢. L QN -o {oJ� w(THI(t "(H6 pV` /�Pf.CISSNJ i�p.W. . SIY �yagS6Y) UVE 7VM4 a . p ✓� pfv E bW �6 ,, °SC 5 pl4 fN WPiL pNb MAP pSSs�b �'4% 05 i i UTILi r� 2005 15:04 949 650 0747 Fleetwood B. Joiner and Associates Attn: Tom Stewart 20320 SW Birch, Suite 140 Newport Beach, Ca 92660 Dear Mr. Stewart, NEWPORT BEACH GENERAL SERVICES #1089 P.0011001 EXHIBIT C CITY OF NYWPORT BEACH GENERAL SERVICES DEPARTMENT David E. Niederhaus. Director March 10, 2005 The General Services Department is in receipt of your concelitual site plan for the driveway, retaining walls, and regrading off -site and in the right of way or Narcissus Avenue for the Tabak Residence at 3431 Ocean Boulevard. Your conceptual site plat has been reviewed by General Services staff and approved in concept. If you have any questions, please do not hesitate to call meat W-644 -3057. Sincerely, Jeremy Hammond, Administrative Analyst General Services Departrawt 3.800 Newport Boulevard • peat OtBoe Box 1768 • Newport Be &ch. CSNmrua 92658 -8915 7blephone: (949) 644 -3055 • Fax (949) 650 -0747 • www.city.newport-beachca.us EXHIBIT D Mayor Don Webb (don2webbCa)earthlink. net (dwebbCa)city.newport- beach. ca.us) Steve Badum (sbadwnacity. newport- beach. ca. us) Richard Edmonston (redmonston0city. newport- beach. ca. us) Iris Lee (Ilee0city. newnort- beach. ca. us) City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Re: Tabak Residence, 3431 Ocean Blvd., Corona del Mar Dear Sirs and Madam: Please be advised that this office represents Mr. Lawrence Tabak, the owner of the real property referenced above. Please allow us to share our concerns regarding the manner in which the City of Newport Beach has addressed our client's attempt to build his dream home at this location, all of which have resulted in a six year odyssey to obtain a building permit. The most recent example is most illustrative. After negotiating with City staff for over one year, and making numerous concessions, an agreement was reached on an acceptable driveway design. Given the lengthy delays in reaching this agreement, Mr. Tabak requested and received a written "Approval in Concept" on January 5, 2005, which memorialized this agreement. A further Approval in Concept agreement was received on March 10, 2005. Based on same, and at considerable cost, our client retained the services of an architect, soils engineer, civil engineer, structural engineer and landscape architect in order to comply with the terms and conditions of the Approval in Concept agreements for obtaining an encroachment permit. VOGT & RESNICK, LLP RICHARD M. BLUMENIHAL JEROME A. BUSCH' ATTORNEYS AT LAW OF COUNSEL CHARLES C. MCKENNA 4400 MacARTHUR BOULEVARD, NINTH FLOOR STEVEN EHRLICH BARNET RESNICK' P.O. BOX 7849 NANCY LEVIN JEFFREY M. RESNICK NEWPORT BEACH, CALIFORNIA 92658 -7549 JAMES D. VOGT• DAVID A. SHERAK7 TELEPHONE (949) 851 -9001 JOHANNA F. ZERINGUE JACK SMART' TELECOPIER (949) 833 -3445 •A Law CwPmti. ~N.v0gt- resnick.com Iaw@vogt -res nick. CDm FILE N0. 2465.1 May 31, 2006 Mayor Don Webb (don2webbCa)earthlink. net (dwebbCa)city.newport- beach. ca.us) Steve Badum (sbadwnacity. newport- beach. ca. us) Richard Edmonston (redmonston0city. newport- beach. ca. us) Iris Lee (Ilee0city. newnort- beach. ca. us) City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Re: Tabak Residence, 3431 Ocean Blvd., Corona del Mar Dear Sirs and Madam: Please be advised that this office represents Mr. Lawrence Tabak, the owner of the real property referenced above. Please allow us to share our concerns regarding the manner in which the City of Newport Beach has addressed our client's attempt to build his dream home at this location, all of which have resulted in a six year odyssey to obtain a building permit. The most recent example is most illustrative. After negotiating with City staff for over one year, and making numerous concessions, an agreement was reached on an acceptable driveway design. Given the lengthy delays in reaching this agreement, Mr. Tabak requested and received a written "Approval in Concept" on January 5, 2005, which memorialized this agreement. A further Approval in Concept agreement was received on March 10, 2005. Based on same, and at considerable cost, our client retained the services of an architect, soils engineer, civil engineer, structural engineer and landscape architect in order to comply with the terms and conditions of the Approval in Concept agreements for obtaining an encroachment permit. VOGT & RESNICK, LLP ATTORNEYS AT LAW Mayor Don Webb Steve Badum Richard Edmonston Iris Lee May 31, 2006 Page 2 Throughout this time, Mr. Tabak worked diligently to comply with all of the requirements, including revisions, as requested by the City's plan checker. At no time during this long and expensive process did City staff, including the plan checker, mention that the driveway project could be derailed by other circumstances not included in the Approval in Concept agreements nor discussed in any fashion whatsoever. Nevertheless, after complying with all of the terms and conditions mandated by those agreements, only a couple weeks ago Mr. Tabak was informed for the very first time of the following: He needed an encroachment agreement, drafted by an attorney, not just the encroachment permit required by the Approval in Concept agreements. 2. He would need to appear before a public hearing at which the driveway plan would be voted upon, regardless of the fact that the Approval in Concept agreements had been satisfied. The staff of the Pubic Works Department now objected to certain of the terms and conditions in the Approval in Concept agreements, evidently based on changes in City policy since the time those agreements were reached. 4. The staff of the Public Works Department issued a report recommending denial of the driveway project, despite full compliance with the Approval in Concept agreements. Thereafter, at the May 23, 2006 City Council meeting, the public hearing on the driveway project was continued. At a meeting a couple of days later, Mr. Tabak was informed by a City staff member that he did not believe staff was in possession of the January 5, 2005 Approval in Concept agreement at the time it drafted the report recommending denial of the project, and had it been, the report would not have been so written. This staff member added, however, that additional changes would in fact be needed in order for staff to recommend approval, once again imposing conditions above and beyond the Approval in Concept agreements. This incident is a perfect example of the inconsistent and haphazard manner in which the City has continuously addressed Mr. Tabak's plans. VOGT & RESNICK, Lur ATTORNEYS AT LAW Mayor Don Webb Steve Badum Richard Edmonton Iris Lee May 31, 2006 Page 3 To compound matters, Mr. Tabak is also in the final stages of the plan check process for the house itself, and has been informed by City staff that a building permit will not be issued in the absence of the approval of the off -site driveway project. Our client has already received a third and final extension of this application for a building permit, yet this will expire on June 20, 2006. Upon expiration he will have to pay the full plan check fees again. Sadly, the driveway project represents just one of several well- documented experiences over the last six years through which Mr. Tabak has received conflicting information from the City and has been otherwise misled and misinformed by staff. This has caused a pattern of costly delays and inconvenience, which the City has seemingly not taken into account. Moreover, our client has lost the full use and value of his property and is now facing construction costs that are over double what they would have been had a building permit been issued in a timely and orderly fashion. In short, we believe the City has not worked with Mr. Tabak in good faith to implement the Concept in Approval agreements it reached with him. Our client has reasonably relied on those agreements, only to see the driveway project remain in jeopardy despite complying fully with the conditions mandated by the City. This has unfortunately reinforced the belief that some in the City are determined to see that Mr. Tabak's home is never approved for construction. The City's actions have resulted in substantial damages suffered by Mr. Tabak, including but not limited to increased construction costs and lost use of the property. Mr. Tabak respectfully requests that the City immediately reconsider its decision on the driveway project, so that it is approved and a building permit issued forthwith, before the current deadline of June 20, 2006. Otherwise, Mr. Tabak will have no alternative but to seek his legal remedies. We hope this does not become necessary, and look forward to working with you toward a satisfactory resolution. Please feel free to contact us at any time to discuss this serious matter; we look forward to hearing from you very soon. Very truly yours, VOGT & RESNICK, LLP Attorneys at La� BARNET RESNICK CCM /alo cc: Lawrence Tabak • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT COUNCIL AGENDA NQ 32 1 -13-'3 (,D Agenda Item No. 1 I May 23, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Iris Lee, P.E. 949 - 644 -3311 or ilee @city.newport- beach.ca.us SUBJECT: REQUEST TO CONSTRUCT NON - STANDARD IMPROVEMENTS IN THE PUBLIC RIGHT -OF- WAY -3431 OCEAN BOULEVARD OWNER: Lawrence Tabak RECOMMENDATIONS: 1. Deny the Owner's request to construct non - standard encroachments, which • include, but are not limited to, retaining walls, caissons, landscaping, associated drainage, and appurtenances within the public right -of -way adjacent to the property located at 3431 Ocean Boulevard. 2. Direct staff to prepare an encroachment permit and encroachment agreement for the existing non - standard improvements in the public right -of -way fronting 3431 Ocean Boulevard. DISCUSSION: In November 2003, the City Council denied a variance and approved a modification requested by the owner of 3431 Ocean Boulevard, Lawrence Tabak. The plans that accompanied that approval showed the existing retaining walls in the public right -of -way were to remain. Although the existing off -site improvements will provide sufficient space for vehicles getting into and out of the new home's garages, the Owner has requested to widen the Ocean Boulevard frontage street -end by removing the existing retaining walls, cutting into the existing public slope, and securing /stabilizing the slope by constructing new retaining walls, caissons, subdrains, v- ditches, and landscaping at a location ranging from approximately one foot to ten feet beyond the existing retaining wall location. He is also proposing to extend the improvements further to the east of their current terminus. 0 Request to Construct Non - Standard Improvements in the Public Right -of -Way - 3431 Ocean Boulevard May 23. 2006 Page 2 The proposed new non - standard improvements, including the widening of the existing • driveway, within the public right -of -way will include: 1) Approximately 100 feet of eight -foot high, eight -inch thick retaining wall with permanent waterproof shoring system and a subdrain system to control slope seepage overturning forces against the retaining wall; 2) Surface v -ditch behind the top of retaining walls; 3) Twelve - 24 -inch diameter caissons that will be a minimum 22 feet deep; 4) Landscaped planter areas and planter walls; 5) Trash enclosure with a 48 -inch access gate under a new planter with a fiberglass waterproofing system with drain and overflow; 6) Landscaping consisting of drought- resistant low groundcovers with jute matting on the City slope between the retaining walls and Ocean Boulevard vehicle access ramp; 7) Six -inch reinforced concrete roadway paving with 48 -inch diamond - pattemed scoring; 8) Mortared stone planter area and steps paving /surfacing; and 9) Related appurtenances. The non - standard improvements proposed are not required for the development of this site. Full access and maneuverability is provided to the site with the current public right - of -way configuration. The proposed improvements will provide the site with aesthetic enhancement and added area for private usage while making the public right -of -way • appear to be private and diminishing public usage and access. The proposed development of this site is currently under plan check (Plan Check No. 3452 -2004 submitted to the Public Works Department on December 21, 2004, May 25, 2005, and February 14, 2006). As of May 3, 2006, only Planning Department approval has been issued. Public Works plan check approval will not be issued until Council approval has been granted for the proposed non - standard improvements in the public right -of -way. An encroachment permit for the non - standard work will not be issued until the encroachment agreement has been executed. Recommendation: While the existing improvements in the public right -of -way exceed those normally allowed by City Council Policy L -6 PRIVATE ENCROACHMENTS IN PUBLIC RIGHTS -OF -WAY, the proposed improvements represent further encroachment for personal use. Staff has specific concerns related to the large number of caissons required to support the retaining wall, the expansion of the area inside the wall both to the north and east, and the inclusion of a trash enclosure in the right -of -way. For these reasons staff recommends that the proposed improvements be denied. Should the City Council approve the scope of work proposed by the Owner, an encroachment agreement will be prepared for City Council approval which will stipulate that the Owner and future owner(s) are responsible for the maintenance of all of the Request to Construct Non - Standard Improvements in the Public Right-of-Way - 3431 Ocean Boulevard May 23, 2006 Page 3 40 approved non - standard improvements to the satisfaction of the City. Furthermore, the Owner will be required to submit a $200,000.00 Faithful Performance Bond and Labor and Materials Bond as surety for completing the work in the public right -of -way to the satisfaction of the Public Works Department. Environmental Review: Categorically Exempt under Chapter 3, Article 19, Section 15301, Class 1(c) of Title 14, California Code of Regulations. Exemption is for minor alteration of existing facilities not expanding existing uses. Prepared by: Iris Lee Associate Civil Engineer Attachment: Reduced scale site plan Submitted by: C119blic en G. dum Works Director (Full size site plans will be provided in the Council Conference Room for review.) 0 AT M 'NTaaox aeenve Niew maeert leE ro WT WIM qIY o.osm euab ewn nuwio aneon rm ss. °Twwri1OimnDieea w rnOree erO Nowa eTNONe ozrnt ox MANYbi ew'aw. eroea onnwnoa ITE PLAN w munoxroMNwbee a. eA7FJRN WE Ci 01 -E, 1/6' . T -C o reeN rt• roux MT M Naobb RNW b Ne1Nlm N N1 lr[OK OM1 SITE BULDABLE AREA REFERENCE DIAGRAM SOME. TdG w ZU W G cc y W �I �pph6� t6ll . Nre NF. rNnrn Nnrern wbN .e. es. uzneNe zaEw nmi« rtxbNm zwb enerowi ww es. one euobo Mw enuone aznzm ram K F Y FM • ryH V. rMplf T'WD NRpb eET9�bft Ygwl pl lIN YE[f PER£CT M /PWIOYFD fGINN bm Yap II1FM Pm IO1b10 CR6 oeTMeYaY eeoseAlYer evwf IIb ro maue noon nrcr. n e V. !A eaw�w9 MTeo o-em •ore msnio eexm uTan ro a aWwm 90.eRD rt00N M[N YMb YfeIICN 61NiT81 wa ,. No nUMgb zwi A7.0. 0 VICINITY wr.o eeue a LU a . 0 m SITE BULDABLE AREA REFERENCE DIAGRAM SOME. TdG w ZU W G cc y W �I �pph6� t6ll . Nre NF. rNnrn Nnrern wbN .e. es. uzneNe zaEw nmi« rtxbNm zwb enerowi ww es. one euobo Mw enuone aznzm ram K F Y FM • ryH V. rMplf T'WD NRpb eET9�bft Ygwl pl lIN YE[f PER£CT M /PWIOYFD fGINN bm Yap II1FM Pm IO1b10 CR6 oeTMeYaY eeoseAlYer evwf IIb ro maue noon nrcr. n e V. !A eaw�w9 MTeo o-em •ore msnio eexm uTan ro a aWwm 90.eRD rt00N M[N YMb YfeIICN 61NiT81 wa ,. No nUMgb zwi A7.0. 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT SUPPLEMENTAL ,V Agenda Item No. 32 June 13, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum 949 - 644 -3311 or sbadum(cDeity.newport- beach.ca.us SUBJECT: Response to letter dated May 31, 2006 from Barnett Resnick, attorney for Lawrence Tabak 3431 Ocean Boulevard This supplemental staff report is submitted to address the issues raised in the correspondence dated May 31, 2006 from Barnet Resnick, attorney for Lawrence Tabak. In his correspondence, Mr. Resnick states that there was a "negotiation" with City Staff and several "concessions" were made over a year period. Pursuant to Council Policy L -6, City staff is prohibited from "negotiating" permits. The City's encroachment permit procedures and what can be approved within the public right of way is set forth in City Council Policy L -6. The approval or rejection of an encroachment permit is not a negotiation. It is a thoughtful and professional review by City staff for compliance with the City Council's codes and policies. During the period from November 2004 through January 2005, Mr. Tabak's architect submitted several informal concepts for modifying the existing non- standard improvements within the City's right of way including some that proposed expanding into the adjacent Inspiration Point Park and a private gate on the common driveway. Because the Public Works Director and City Manager could not approve the extensive improvements due to the limitations on their authority set forth in City Council Policy L -6, City staff recommended that the architect modify the plans to revise various design features such as a park encroachment and a private gate because City staff believed these encroachments would probably not be approved by City Council While Mr. Resnick claims that City staff approved the plans in concept, this is not case. Based on City Council Policy L -6, improvements, such as the ones now proposed by Mr. Tabak, require City Council approval. The claim that the City gave approval in concept is a manipulation of the facts and a misrepresentation of the complete information. The notation, dated January 5, 2005, by Gil Wong was "OK ", is not an "approval in concept" as stated in Mr. Resnick's letter. The complete text of the notation written on the informal submittal dated January 5, 2005 is as follows: "O.K. G.W. 1 -5 -2005, Regrading and relandscaping will require General Services approval. Formal submittal via an encroachment permit. Plans /submittal should include engineering for proposed walls /retaining walls, landscape plans, elevations, and cross sections. G.W. 1 -5 -2005 ". Clearly, the "OK" notation was in reference to the fact that the proposed plan was acceptable for processing and subsequent submittal to City Council for consideration. The March 10, 2005 letter was from General Services was in reference to the January 5, 2005 notation, (Regrading and relandscaping will require General Services approval) and is an approval in concept for the proposed re- landscaping only. As to the claim that his client had been "negotiating" for over a year, this is also a misrepresentation of the facts. After receiving the informal "OK" for processing, Mr. Tabak's architects did not submit the current plan showing the proposed retaining wall system until February 2006. During the period between January 2005 and February 2006, Mr. Tabak's architect only submitted plans once in May 2005 that showed the existing retaining walls to remain. No other contact with PW staff was made until the current plan was submitted in February 2006. Mr. Resnick also claims that Mr. Tabak was not informed of the City's encroachment permit and agreement policies. For clarification, the City's encroachment agreement process was established by City Council Policy L -6 and utilizes a standard agreement in which the applicant agrees to construct and maintain private improvements within the public right of way. Again, City Council Policy L -6, clearly spells out the limitations and boundaries that the Public Works Director can and cannot approve. Improvements such as the ones now proposed by Mr. Tabak, clearly require City Council approval. As a long time City employee, Mr. Wong was well aware of the City's encroachment policies and would have known that any extensive encroachment would need to be approved by the City Council. We would also expect that Mr. Wong shared that information with the applicant and /or his architect. In addition, Mr. Tabak first sought a Modification permit (MD 2002 -049) on May 29, 2002. One of the standard conditions that Mr. Tabak received with that Modification read; "All work performed within the public right of way shall be reviewed and approved by the Public Works Department under an encroachment permit/agreement, if required. ". That same standard condition also appeared on subsequent Modification permits up to and including the May 9, 2005 Modification (MD2005 -025). Additionally, Mr. Tabak's architect, Fleetwood Joiner Architects, has been doing business in the City of Newport Beach for many years. We find it inconceivable that such an experienced architect would not be well versed in the City's codes and policies. Additionally, Mr. Resnick claims that Mr. Tabak was not informed: 1) of the need to execute an encroachment agreement; 2) of the need for City Council to consider the permit and agreement at a public meeting; 3) that the City Staff had concerns with certain elements within the proposed encroachment plan; and 4) that staff was going to write a report recommending denial of the encroachment until within two weeks of the May 23, 2006 City Council meeting. This is not the case. Shortly after the February 2006 submittal, Mr. Fong Tse, replacing Gil Wong, informed Tom Stewart, Fleetwood- Joiner Architects, via telephone that staff could not approve the encroachments as submitted and that City Council would need to consider the encroachments within the public right of way. Additionally, staff informed the architect that staff would not support the proposal, however, they would have an opportunity to advocate approval with the Council who would have the authority to grant approval over staffs recommended denial. In his letter, Mr. Resnick consistently refers to an "approval in concept agreement ". The City's encroachment permit process does not contain an "approval in concept agreement." The City's process consists of a review by staff for compliance with City codes and policies. The permit and /or agreement are issued by the Public Works Director and /or the City Manager upon compliance with those codes and policies or separate approval by City Council. At no time during the permit/agreement process does the applicant obtain any vested rights until the permit/agreement is approved and issued. The only "approval in concept" that is issued by the City is for submittal purposes in connection with a Coastal Development Permit from the California Coastal Commission (CCC) and that approval is issued by the City's Planning Department. It's my understanding that the proposed encroachments into the public right of way were not included on the CCC Approval in Concept plans that were submitted to the Coastal Commission. Therefore, no Approval in Concept was formally issued for the proposed encroachments into the public right of way. The remaining portion of the letter attempts to lay blame on the City for Mr. Tabak's six year process. The facts paint a different picture. The below timeline indicates that Mr. Tabak's stubborn determination to process a project with unsupportable variances and modifications caused him to delay the project by approximately two years. The Coastal Commission process consumed four years including two revised AIC submittals. The building plan check logs show that three to six months passed between plan checks The project at 3431 Ocean Boulevard in Corona del Mar has been under way for several years. The following is a list of key dates of actions related to the proposed project: • 5/3/2001 - Approval in Concept (AIC) approved for CDP • 5/29/2002 — Modifications Committee approves a 5' encroachment into the 10' front setback. • 6/3/2002 — Re- approval of AIC for revised plans • 7/22/2003 — Applicant applies for variance to exceed height limit and modification to encroach an additional 3' into the front setback for a total of 8'. • 9/18/2003 — Planning Commission denies Variance but approves modification for additional encroachment into front yard setback. • 10/14/2003 — City Council denies both the Variance and the Modification. • 10/21/2003 — Councilmember Heffernan requests reconsideration of the action taken on 10/14/2003. • 11/12/2003 — City Council reaffirms denial of the Variance, but approves the Modification. • 10/8/04 - Re- approval of AIC for revised plans • 12/15/04 — Modifications Committee approves request for sideyard guardrail to exceed the height limit for such railings. • 12/20/04 —15t Building Plan Check submittal • 1/12/05 —1St Building Plan check corrections posted • 2/15/05 —1 st plan check picked up by applicant • 5/9/2005 — Zoning Administrator approves Modification to allow underground elements to encroach 10' into the 10' front yard setback. • 5/24/05-2 nd Building Plan check re- submitted by applicant • 7/07/05-2 nI plan check corrections picked up by applicant — Bldg /Grading /PW 8/12/05 — City receives confirmation of CDP issuance • 8/23/05-2 nI plan check corrections picked up by applicant — Planning • 2/13/06 — 3`d Building Plan check re- submitted by applicant — Proposed Encroachments shown on the plan for the first time. • 2/23/06 - 3" plan check corrections picked up by applicant — Bldg 4/10/06 — 3`d plan check corrections picked up by applicant — Planning • 4/19/06 — 4t' Building plan check re- submitted by applicant, Bldg /Grading only 4/28/06 - PW plan check corrections picked up by applicant. Part of that time is out of the City's hands as the Coastal Commission is the current permitting authority for development permits in the Coastal Zone. The fact that our PW staff did not see any submittal for the proposed encroachment during the timeframe of May 2005 until February 2006 clearly indicates that the delay lies with himself or his architect. Had Mr. Tabak submitted a more conventional plan, without the need for variances and modifications, then the residence would probably have been built by now. Contrary to the claim made by Mr. Resnick, we believe the City has acted in good faith. We have provided timely reviews as the record shows. Any increased construction costs, delays, and loss of property use are due to Mr. Tabak's inaction or the inaction of his architect. We strenuously object to any characterization of City employees that implies that we are purposefully trying to block this project. Our staff has an exemplary record in providing timely and professional service. Submitted by: Works Director