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HomeMy WebLinkAboutSS3 - Oceanfront Encroachments at Balboa Peninsula PointCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Study Session Agenda Item No. 3 November 14, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @dty.newport- beach.ca.us SUBJECT: Oceanfront Encroachments at Balboa Peninsula Point and Council Policy L -12 ISSUE: How should the City address several properties at Balboa Peninsula Point (BPP) that may have private improvements on public property? RECOMMENDATION: Direct staff to return with one of the following alternatives: 1.. Direct staff to schedule a future meeting with notice to all of the residents of :Balboa. Peninsula Point (BPP) regarding oceanfront encroachments; or 2. Accept the proposed changes suggested by BPP residents' counsel to Council Policy L -12 and forward the proposed changes to the California Coastal Commission for the Commission's review and comment; or 3. Reject the proposed changes suggested by BPP residents' counsel to Council Policy L -12. DISCUSSION: Newport Beach's- Council Policy L -12 describes a relatively complex system of permitted oceanfront encroachments along Newport Beach's ocean shoreline from the Santa Ana River to the Wedge. Among other things, the Policy describes the physical distance of of the encroachments (0' to 15', typically), a system of fees associated with the encroachments, and limitations on what types of structures or plantings can be within the encroachment zones. Oceanfront Encroachments November 14, 2006 Page 2 The City's recently- approved Local Coastal Program (LCP) also sets forth City policy regarding oceanfront encroachments (see Attachment A). Section 3.1.3 of the LCP expressly limits the maximum oceanward extent of encroachments generally per the terms of Council Policy L -12. The LCP's Land Use Plan has been approved by the Coastal Commission, but the 2nd part of the LCP — the Implementation Plan — remains under review by City staff and ultimately the Commission. Why We're Here. When residents in West Newport illegally caused the grading of coastal sand dunes outside of their Seashore Drive properties earlier this year, the action started a string of related events. For the residents, the action ended up in an administrative order by the Coastal Commission to restore the dunes, including detailed dunes design planning and long -term monitoring of newly - planted habitat. At the same time, Orange County Register columnist Frank Mickadeit began a series of columns about other beachfront properties, including some in West Newport and some at Balboa Peninsula Point (BPP), where someone — property owners or others — had placed improvements or landscaping outside of the encroachment areas permitted by Policy L -12. These "over- encroachments" were documented by city crews as well (see photos in Attachment B). The City sent letters to property owners that we considered to be over - encroaching and asked for compliance with Council Policy L -12 over a period of time. Most property owners in the West Newport area complied, either by removing the encroachments or by allowing landscaping to revert to a natural condition. Here are the specific statistics about the possible encroachments and our enforcement actions in West Newport and BPP: • In West Newport, 75 encroachments were initially observed. In Balboa Peninsula Point, 63 encroachments were initially observed. All received letters from us. • In West Newport, 44 property owners later received Notices of Violations; in BPP, none did, pending this discussion over a possible change to Policy L -12; • In West Newport, 2 property owners received administrative citations, but both were rescinded due to various reasons; in BPP, no property owners received administrative citations. • In West Newport, all but 2 encroachment issues are resolved; in BPP, all encroachments remain outstanding. The City recently did a survey of many of the BPP encroachments, attempting to show which may be on public property and which are not (survey is Attachment C). After receiving letters from the City, some residents of BPP — because they do not have any authorization (either in the LCP or in the Council Policy) to encroach beyond specific things NOT considered to be encroachments (see below) — have asked the City to (1) consider changing our Council Policy to authorize encroachments in the BPP Oceanfront Encroachments November 14, 2006 Page 3 area; and (2) to advocate for the proposed Policy Manual changes with the BPP residents before the California Coastal Commission. The BPP residents' suggested changes to Council Policy L -12 are Attachment D How Council Policy L -12 Came to Be. On November 26, 1990, the City Council approved then - Council Policy L -14 (now renumbered as L -12) to implement an amendment to the LUP of the LCP which allowed the installation of private improvements in the public right -of -way along the oceanfront from the Santa Ana River Channel to Channel Road. For reasons that are not known to City staff, the oceanfront residences located between E Street and Channel Road (Peninsula Point) were not authorized to have encroachments under L -14. Instead, the Policy deemed that certain improvements at Balboa Peninsula Point were not encroachments. Council Policy L -14 was amended on July 8, 1991 to include modifications that were conditions of Coastal Commission approval of Amendment No. 23 to the LCP. On November 5, 1991, the City sent a letter (attached) to the oceanfront property owners of Peninsula Point advising them that the City Council and the California Coastal Commission had approved an Amendment to the LCP's LUP allowing the installation of private improvements in the public right -of -way along the oceanfront. The letter included a copy of Council Policy L -14, an aerial photo of the property owner's oceanfront parcel, and a copy of the City's Encroachment Survey. The letter stated that the Peninsula Point Association, during the hearing process, had requested that the Peninsula Point area be omitted from Policy L -14 and that notwithstanding the exclusion, Section C.2 of L -14 provided, as follows: "Encroachments are prohibited oceanward of any residential parcel from a point 250 feet southeast of E Street to Channel Road Notwithstanding the foregoing, within the area between 250 feet southeast of E Street and Channel Road existing trees and ground cover such as ice plant, and natural and indigenous plants, will be permitted, and are not considered to be an encroachment, and will not require a permit. " The letter went onto state that "Prohibited encroachments shall be removed by the property owners in accordance with Policy L -14. The Public Works Department will make an inspection in February 1992 to insure that prohibited encroachments are removed from the Encroachment Zone." The Encroachment Survey that was included with the November 5, 1991 letter (Attachment E) to the Peninsula Point residents showed that the encroachments had been surveyed in June, 1985 and in September, 1989 by the City and that each encroachment was specifically identified on each of the two surveys, including photographs. According to residents' counsel, current Peninsula Point oceanfront homeowners report that, consistent with the letter of November 5, 1991, they were contacted by Public Oceanfront Encroachments November 14, 2006 Page 4 Works in February, 1992 and that following property inspections, residents were told that the landscaping, irrigation, and various improvements at ground level, including stepping stones could remain in place and were not required to be removed. Since the adoption of Policy L -14 (again, now L -12) fifteen years ago, most of the encroachments on the oceanfront at Peninsula Point have been continuously in place and known to the City.. During this period of time the properties have been transferred from owner to owner, some on several occasions, without knowledge that the oceanward encroachments were or could be considered violations of City policy. Residents' counsel also asserts that the City's Report of Residential Building Record (RBR) system would have resulted in an RBR completed for most, if not all residential properties when ownership transferred. RBRs involve City inspections that compare what is "on the ground" with a history of what has been permitted by the Building Department. Again accoding to residents' counsel, the subject properties' RBRs did not generate notices of illegal encroachments. City staff asserts that RBRs do not always look at encroachments, instead focusing on building and planning code issues. Why BPP Residents Think They Should Keep the Improvements. Residents' counsel also asserts that: 1. The encroachments addressed by the proposed changes to L -12 do not impair or restrict beach access. 2. The results of the change to L -12 will: • Provide the same benefits to the oceanfront residents of Peninsula Point that are currently enjoyed by West Newport; • Bring the existing encroachments under a permit regulatory policy and in conformance with the purpose of Policy L -12; • Require the payment of annual fees by the oceanfront property owners for the use of the public right -of -way; • Provide for a uniform system of regulation of oceanfront encroachments and will fairly and equitably allow the same privileges to all oceanfront property owners. 3. A significant group of Peninsula Point homeowners have formed a group to seek the adoption of the proposed changes in order to avoid the controversy that would result from removing the encroachments, many of which have been in place for more than 15 years. City Staff's Views. Patrick Alford, Senior Planner who worked extensively on the LCP's Land Use Plan and the draft Implementation Plan, notes his concern that the Coastal Commission is likely to request some form of mitigation associated with any permitted encroachments, such as: • Extending the boardwalk to the tip of the Peninsula; • Extending the boardwalk to the Santa Ana River; • Requiring the City to add public restrooms at the Wedge; • Improving street ends in Peninsula point to provide better access and parking; Oceanfront Encroachments November 14, 2006 Page 5 • Coastal dune habitation restoration; or any combination of the above. Alford and others caution that other residents of the Point, who do not have the encroachments, may not be as willing to accept these mitigation forms as their oceanfront neighbors. Further, they note that, with the LCP's Implementation Plan pending, these changes to a long- standing Council Policy run the risk of questioning the City's commitment to the LCP's previously- approved LUP. This Agenda Item. This agenda item asks for the Council's discussion of whether to approve the BPP residents' ideas about changing L -12. If Council approves the change, it is likely to be contingent upon modifying the City's LCP and the approval of the Coastal Commission for both the Policy and the LCP changes. Environmental Review: The City Council's discussion of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by �� of Dave Kiff Assistant City Manager Attachments: Section 3.1.3 of the LCP's Land Use Plan BPP Survey Selected photos from the encroachments Proposed Changes to L -12 Letter to BPP residents from November, 1991 Oceanfront Encroachments November 94, 2006 Page 6 ATTACHMENT A Section 3.1.3 of the LCP's Land Use Plan 0 • • LX P / lac-, pr ?�\ , Orange County, and private organizations to protect, expand and enhance public access to and along coastal bluffs. 3.1.3 Beach Encroachments On June 11, 1991, the Coastal a I. �a Commission approved the Oceanfront Encroachment Policy (Amendment No. 23), which established a policy and mitigation program relating to privates improvements within the Oceanfront public right -of -way. The City Council finalized this policy with the adoption of _ Resolution No. 91 -80 on July 11, 1991. This policy established conditions and restrictions on the nature and extent of these improvements and a mitigation program involving the reconstruction of West Newport street end 33 unimproved street ends between 36th Street and Summit Street to provide additional parking and improved public access. In 2002, the final five street ends were reconstructed. Pursuant to the mitigation program, a minimum of 85 percent of the encroachment fees will be used for the construction and maintenance of improvements which directly benefit the beach - going public such as parking spaces, restrooms, vertical or lateral walkways along the beach and similar projects. Policies: 3.1.3 -1. Continue to maintain and improve the Oceanfront public right -of -way for public access purposes. 3.1.3 -2. Continue to restrict the nature and extent of improvements that may be installed over public rights of way on the oceanside of beachfront residences and to preserve the City's right to utilize oceanfront street easements for public projects. 3.1.3 -3. Limit the maximum oceanward extent of encroachments to the following encroachment zones: A. Santa Ana River to 52nd Street. A maximum of 15 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. Local Coastal Program Coastal Land Use Plan 3 -13 B. 52nd Street to 36th Street. A maximum of 10 feet oceanward of the rear (ocean facing) property line within the oceanward prolongation of the side property lines. C. 36th Street to E Street. Between A Street and a point 250 feet southeast of E Street, up to the inland edge of the Oceanfront Boardwalk (7 to 8 feet oceanward of the rear property line) and within an oceanward prolongation of the side property lines. D. E Street to Channel Road. No encroachments are permitted from a point 250 feet southeast of E Street to Channel Road, with the exception of landscaping trees existing prior to October 22, 1991 and groundcover. 3.1.3 -4. Limit encroachments within encroachment zones as follows: A. Prohibit any structural, electrical, plumbing or other improvements that require issuance of a building permit. B. Prohibit pressurized irrigation lines and valves. C. Prohibit any object that exceeds 36 inches in height, with the exception of landscaping. D. Prohibit any encroachments that impact public access, recreation, views and /or coastal resources. E. Require landscaping to be designed and maintained to avoid impacts to public access and views. F. Restrict landscaping in dune habitat areas to native vegetation. 3.1.3 -5. Require annual renewal of encroachment permits and a fee. 3.1.3 -6. Require encroachment permits to specify that the property owner waives and gives up any right to contest the validity of the oceanfront street easement, and that the encroachment permit is revocable, without cause, if the City proposes to construct public improvements within that zone. 3.1.34. Require encroachment permits to specify that the construction of any seawall, revetment or other erosion control devices, if necessary, shall occur within, or as close as feasible to, private property. Local Coastal Program Coastal Land Use Plan 3 -14 n u 11 • 3.1.3 -8. Incorporate into the implementation plan regulations specifying the types of improvements permitted within encroachment zones, a prohibition on improvements that could impair or restrict public access or views, procedures for the encroachment permit applications, City administration of the policy, and other appropriate provisions. 3.1.3 -9. As mitigation for any impact on beach access resulting from the encroachments: A. Maintain 33 street ends between 36th Street and Summit to provide an average of 2 parking spaces per street, and additional spaces where feasible. B. Meter West Newport street West Newport street end improvements end parking spaces in the same manner as the West • Newport Park in order to encourage public use of the spaces. C. Maintain a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end and at least one other handicapped parking space at one other West Newport street end. D. Require a minimum of 85 percent of the fees generated by encroachments will be used for the construction and maintenance of improvements which directly benefit the beach -going public such as parking spaces, restrooms, vertical or lateral walkways along the beach and similar projects. isLocal Coastal Program Coastal Land Use Plan 3 -15 Oceanfront Encroachments November 14, 2006 Page 7 ATTACHMENT B BPP Survey Information f� 0 Oceanfront Encroachments November 14, 2006 Page 8 ATTACHMENT C Photos from the Encroachment Areas Balboa Peninsula Point 1504 East Oceanfront • • 0 Oceanfront Encroachments November 14, 2006 Page 9 West Newport 7402 West Oceanfront Oceanfront Encroachments November 14, 2006 Page 10 ATTACHMENT D Proposed Changes to L -12 POLICY L -12 OCEANFRONT ENCROACHMENT POLICY The City Council has approved Amendment No. 23 to the Land Use Plan of the Local Coastal Program, which established specific restrictions and conditions on the installation of private improvements in the public right of way along the oceanfront from [lthe Santa Ana River Channel to Channel Road and (ii) 250 feet southeast of E Street to Channel Road ( "Peninsula Point'). Existing encroachments are located on a very small portion of the sandy beach and do not impact any of the 49— street ends and other public facilities which provide beach access through oceanfront residential communities. However, encroachments could impact access to, and public use of, the beach in the absence of an equitable and enforceable City policy limiting the extent, size and nature of the encroachments. This policy is intended to implement Amendment No. 23 by establishing a procedure for approval of permitted encroachments, removal of prohibited encroachments, limiting the extent of encroachments, and clarification of improvements permitted within each encroachment zone. A. Definitions. 1. For the purpose of this Section, the following words and phrases shall be defined as specified below: a. Existing encroachment shall mean any encroachment or improvement installed or constructed before May 31, 1992. b. New encroachment shall mean any encroachment or improvement installed or constructed after May 31, 1992. c. Improvements or Encroachments shall mean any object or thing: i. within or oceanward of any encroachment zone described in this policy; ii. within or oceanward of the north edge of the Oceanfront Boardwalk, between 36th Street and A Street; or iii. oceanward of any residential parcel from a point 250 feet southeast of E necessary.. d. Encroachment permit shall mean the permit issued by the Public Works Director authorizing the maintenance or installation of encroachments or improvements within the encroachment zones described in this policy. e. Application shall mean any application for an encroachment permit pursuant to the provisions of this policy and the land use plan of the local coastal program. f. Oceanfront Boardwalk, Oceanfront Walk, or sidewalk, shall mean the concrete walkway along the oceanside of ocean front residential properties between 36th Street and a point approximately 250 feet southeast of E Street. B. Encroachment Zones. Subject to compliance with the provisions of this policy: 1. The owner of any ocean front residential parcel between the Santa Ana River and 52nd Street may install improvements on the oceanside of the parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. 2. The owner of any oceanfront residential parcel between 52nd Street and 36th Street may install improvements on the ocean side of the parcel up to a maximum of 10 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. 3. The owner of any oceanfront residential parcel between A Street and a point 250 feet southeast of E Street may install improvements up to the sidewalk and within an oceanward prolongation of the property lines on.the side of the parcel. 4. The owner of any oceanfront residential parcel from a point 250 feet southeast of E Street to Channel Road may install Improvements on the ocean side of the Parcel up to a maximum of 15 feet oceanward of the private property line and within an oceanward prolongation of the property lines on the side of the parcel. C. Prohibited Encroachments. 1. Encroachments and improvements are prohibited oceanward of private property between 36th Street and A Street provided, however, the northerly edge of Oceanfront Boardwalk in this area is not always coincident with the oceanward private property line and improvements northerly of the north edge of the sidewalk are not considered encroachments or prohibited by this policy. 2. Any existing encroachment or improvement for which no application has been 4—Any new or existing encroachment or improvement which, on or after July 1, 1992, is not in conformance with this policy is prohibited. 45. Any new or existing encroachment or improvement for which there is no valid permit. D. Permitted Encroachment/Improvements. Subject to compliance with the provisions of this policy, the following improvements are Ila owedpeRvAted within the encroachment zones described in Section B: 1. Patio slabs or decks no higher than six inches above grade or the finished floor grade of the adjacent residence. The Public Works Director may approve minor dimensional tolerances for patio slabs and decks only upon a finding that the improvement is consistent with the spirit and intent of this policy and the cost of strict compliance is disproportionate to the extent of the nonconformity. Determination of grade will be made as provided in Section J. 2. Walls and/or fences less than 36 inches in height above grade or the finished floor grade of the existing residence. The Public Works Director may approve minor dimensional tolerances for walls and/or fences upon a finding that the improvement is consistent with the spirit and intent of this policy and the cost of strict compliance is disproportionate to the extent of the nonconformity. Determination of grade will be made as provided in Section J. 3. Walls, fences, and other improvements which were constructed in conformity with plans submitted to and approved by the Building Department and for which a Building Permit was issued. 4. Existing improvements constructed as of October 1. 2006 in the 15' encroachment zone for properties located within the area 250 feet southeast of E Street to Channel Road. 5. Existing improvements which were constructed in conjunction with development for which a building permit was issued but such improvements were not shown on the plans approved by the Building Department may be approved by the Public Works Director upon a finding that the improvement is consistent with the spirit and intent of this policy and the cost of strict compliance is disproportionate to the extent of the nonconformity. 6. In no event shall the Public Works Director approve a permit for an encroachment or improvement that varies more than 12 inches from the horizontal dimensional standards of this policy, unless it relates to an improvement allowed under Section D 3 or D 4 above. E. Prohibited Improvements. Unless allowed by another provision of this policy, the following improvements are prohibited: 1. Any structural, electrical, plumbing or other improvements which require issuance of a building permit and for which no such permits were issued. 2. Pressurized irrigation lines and valves. 3. Any object which exceeds 36 inches in height, exclusive of the following: a. trees planted by the City of Newport Beach or private parties pursuant to written policy of the City Council of the City of Newport Beach; or b. any landscaping or vegetation within the encroachment zone subject to the following: i. The vegetation or landscaping was installed prior to the first effective date of this policy; fl. The vegetation or landscaping does not block views from adjoining property; iii. The vegetation or landscaping does not function as screen planting as defined in Title 20 of the Newport Beach Municipal Code; and iv. The vegetation or landscaping does not impair or affect the health, safety or welfare of persons using the oceanfront Walk, nearby property owners, or residents of the area. Notwithstanding the provisions of this Subparagraph, the City reserves the right to reduce the height of any existing landscaping at any time, upon a determination by the Public Works Director, and after.notice to the owner of property on which the vegetation or landscaping exists, that a reduction in height is necessary or appropriate given the purposes of this policy. F. Permit Process. 1. An encroachment permit shall be required for all permitted improvements. The application shall be filed with the Public Works Department on a form provided by the City. The application shall be signed by the owner of the property, or an agent of the owner if the application is accompanied by a document, signed by the owner, granting the agent the power to act for the owner with respect to the property. The application shall be accompanied by a site plan, drawn to scale and fully dimensioned, which accurately depicts the location, height, nature and extent of all proposed improvements and objects within the encroachment zone. Applications with incomplete information and/or inadequate drawings will not be accepted. 2. Applications for existing encroachments must be filed on or before March 1. 2007.""^• '�. Applications for new encroachments shall be filed before any encroachment or improvement is installed. No new encroachments or improvements shall be installed without an encroachment permit. 3. Upon receipt of the application, the Public Works Director shall, within fifteen (15) days after the date of filing, determine if the application is complete or if additional information is necessary or appropriate to an evaluation of the application. In the event the application is incomplete or additional information is . necessary, written notice to that effect shall be sent to the property owner within twenty (20) days after the application is filed. 4. With respect to applications for existing encroachments, an inspection shall be conducted of all improvements within the encroachment zone before a permit is issued by the Public Works Director. With respect to applications for new encroachments, an on site inspection will be conducted after installation of the improvements to insure conformity with provisions of the permit and this policy. 5. The Public Works Director shall approve the permit upon a determination that the encroachments proposed to be constructed, or to remain, are allowed °d by this policy, the applicant has agreed to abide by all of the terms and conditions imposed on the permit, and the applicant has paid all fees required by this policy. 6. The Public Works Director shall have the authority to condition his /her approval of the encroachment permit as necessary or appropriate to insure compliance with the provisions of this policy. The Public Works Director shall have the specific authority to condition approval of an encroachment permit on the removal of nonconforming improvements within a specified period of time. 7. The Public Works Director shall notify the applicant of his /her decision within sixty (60) days after the application is filed and the decision of the Public Works Director shall be final. G. Term. 1. Except as provided in this Section, annual encroachment permits shall expire on June 30 of each calendar year. 2. Encroachment permits issued prior to June 30, 1992 shall expire May 1. 20074w4e -3A,— 993. H. Renewal. 1. Annual renewal fees shall be due and payable on or before May 31 preceeding the annual term of the permit. For example: Annual renewal fees due on May 31, 2001, are for the period July 1, 2001 through June 30, 2002. 2. The Public Works Director shall approve annual renewal ff: a. The applicant has complied with all standard and special conditions of approval; b. The applicant has constructed only those improvements and encroachments authorized by the permit; c. The applicant is in compliance with all of the provisions of this policy. Standard Conditions. 1. The Public Works Director shall impose standard conditions of approval on all encroachment permits. These standard conditions shall include, without limitation, the following: a. The obligation of permittee to comply with all of the provisions of this policy and all conditions imposed upon the permit. b. The right of the Public Works Director to revoke any permit after notice and hearing if the permittee is in violation of this policy or conditions to the permit. c. The right of the City to summarily abate encroachments or improvements which are prohibited by this policy or conditions on the permit upon ten (10) day's written notice. d. The obligation of permittee to pay all costs incurred by the City in summarily abating any prohibited improvement. e. The obligation of permittee to defend, indemnify and hold the City and its employees harmless from and against any loss or damage arising from the use or existence of the improvements or encroachment. f. Permittee's waiver of any right to contest the City's street and public access easement over property within or oceanward of the encroachment zones. g. The right of the Public Works Director or his designee to inspect improvements within the encroachment zone without notice to the permittee. h. The right of the City to cancel or modify any, or all, encroachment permit(s) upon a determination by the City Council to construct a public facility or improvement within or adjacent to the encroachment zone. 2. The construction of any seawall, revetment or other device necessary to control erosion, shall occur as close to private property as feasible. Erosion control devices shall not be placed or installed closer to the ocean to protect improvements or encroachments. 3. The Public Works Director may impose additional standard conditions necessary or appropriate to insure compliance with, or facilitate City administration of this policy. J. Determination of Grade. 1. The nature of the beach makes a precise determination of grade difficult. The level of the sand changes with wind, storm, and tidal conditions. The Public Works Director shall determine the level from which the height of encroachments and improvements is to be measured. In making this determination, the Public Works Director shall consider the following criteria: a. The existing grade in the area; b. Finished floor elevation or grade of the adjacent residence; c. The elevation of existing encroachments on site and on adjacent properties; d. Any data on the historic elevation of the beach in that area. K. Annual Fee. 1. The fees based on the depths of encroachment shown below shall be established by resolution of the City Council and paid annually as a condition of the issuance of encroachment permits: Depth of Encroachment 0 - 2 1/2 feet 2 112 - 5 feet 5 - 7 1/2 feet 7 1/2 - 10 feet 10 - 15 feet 2. For purposes of determining fees, the average depth of the encroachment shall be used. However, the maximum depth shall not exceed the limitations specified in Section B. A dimensional tolerance not to exceed 12 inches may be allowed in determining the appropriate fee to be paid by persons with existing encroachments. 3. The annual fee shall be due and payable upon submittal of the application for the initial encroachment permit. Renewal fees shall be due May 31 of each year. The fee shall be considered delinquent thirty (30) days thereafter. Delinquent fees shall be established by resolution of the City Council. 4. The annual fee shall be used to defray City costs of administration, incidental costs of improvements on street ends along the oceanfront, and incidental costs to enhance public access and use of the ocean beaches. At least eighty -five (85 %) percent of the fees shall be used by the City to implement the mitigation plan as required by Amendment No. 23 to the Land Use Plan of the City's Local Coastal Program. (See Section M.) L. Violations /Remedv. 1. The City shall, in addition to any right or remedy provided by law, have the right to do any or all of the following in the event a permittee is in violation of the provisions of this policy or any condition to the permit, or any encroachment or improvement violates the provisions of this policy: a. Revoke the permit after giving the permittee notice and an opportunity to be heard upon a determination that there is substantial evidence to support a violation of this policy. The Public Works Director shall establish the speck procedures designed to insure that permittee receives due process of law. b. Summarily abate any encroachment or improvement violative of this policy after giving the permittee or property owner ten (10) day's written notice of its intention to do so in the event the permittee or property owner fails to remove the encroachment or improvement. The permittee or property owner shall pay all costs incurred by the City in summarily abating the encroachment or improvement. The determination of the Public Works Director with respect to abatement shall be final. M. Amendment No. 23 Land Use Plan of Local Coastal Program Mitigation Plan. To mitigate any impact on beach access resulting from the encroachments, the City shall: 1. Reconstruct thirty-three unimproved street ends between 36th Street and Summit to provide additional parking and approved access in accordance with the following: a. The reconstruction shall provide a minimum, where feasible, of two parking spaces per street end and shall proceed in substantial conformance with the standard drawing, attached as exhibit "A." b. The City shall use at least eighty-five percent (85 %) of the fees to fund reconstruction of street ends until all have been improved. The City will use its best efforts to improve three or more street ends per year (except during the year when vertical handicapped access is constructed), and anticipates that funding will be adequate to do so. c. West Newport street -end parking spaces shall be metered in the same manner as the West Newport Park in order to encourage public use of the spaces. 2. Within three years after Council approval of this Resolution, City shall construct a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue street end. City shall designate at least one other handicapped space at one of the first three street ends improved. 3. Subsequent to the reconstruction of all West Newport street ends, at least eighty -five percent (85 %) of the fees generated by encroachments will be used for the construction of improvements which directly benefit the beach going public such as parking spaces, rest rooms, vertical or lateral walkways along the beach and similar projects. Oceanfront Encroachments November 14, 2006 Page 11 ATTACHMENT E Letter from November 1991 RESOLUTION NO. 91- 80 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING AMENDMENT NO. 23 TO THE LOCAL COASTAL PROGRAM LAND USE PLAN ESTABLISHING A POLICY FOR OCEAN FRONT ENCROACHMENTS. n \J The decision of the Newport Beach City Council to approve Amendment No. 23 to the Local Coastal Program Land Use Plan ( "Amendment No. 23" or ""Pmendment ") which establishes a policy for the approval of certain improvements on and over public right of way on,the oceanside of beach£ront - private property ( "oceanfront encroachments" or "encroachment ") is based upon the following findings and declarations: 1. Proceedings Preliminary to Decision. The decision to approve Amendment No. 23 was based upon consideration of documents, testimony, reports, studies and other evidence which were generated by, or prepared for the meetings, hearings and workshops, as described in this Section: (a). In April 1989, the Newport Beach City Council established, and appointed members to, the oceanfront Encroachment Citizens Advisory Committee ("Committee "). (Resolution No. 89 -25) The Committee spent one year studying all aspects of the oceanfront encroachments, including the age and nature of the encroachments, the reason for their construction, the legal status of the property underlying the encroachments, the status of similar encroachments in other cities, and the relative interests of the public, adjoining private property owners, the City and the Coastal Commission. The Committee conducted monthly working sessions and two town hall meetings. In April, 1990, the Committee submitted its final report to the City Council. (b). On May 24, 1990, the Newport Beach Planning • Commission recommended initiation of a Local Coastal Program Land Use Plan amendment to establish a policy regarding oceanfront encroachments. The City Council initiated the Amendment on June 11, 1990, and the Planning Commission received testimony regarding 1 \.I proposed Amendment No. 23 on July 5, 1990 and again on August 9, 1990. The recommendation of the Planning Commission and the material the Commission considered was transmitted to the City Council on August 27, 1990. (c). The City Council held public hearings on proposed • Amendment No. 23 on October 8th and October 22, 1990. (d). The City Council received testimony from more than 50 interested persons and considered the following documents prior to first approving Amendment No. 23 on October 22_, 1990: 1. The final report of the Newport Beach Oceanfront Encroachment Citizens Advisory Ad Hoc Committee and the attachment to Appendix E of the final report; 2. Planning Department Staff Reports dated May 24, 1990, July 5, 1990, August 9, 1990, August 27, 1990, October 6, 1990 and October 22, 1990; 3. Planning Commission Resolution Number 1233; 4. Minutes of the Planning Commission meetings of May 24, 1990, July 5, 1990 and August 9, 1990; S. Minutes of the City Council meeting of October B, 1990; 6. City Staff Report submitted in conjunction with the Planning Department Report of October 22, 1990; 7. The maps, drawings, and letters attached to the Planning Department Staff Reports referenced above; and 8. Correspondence from members of the public, property owners and Coastal Commission staff relative to the oceanfront encroachments received on or before October 22, 1990. (e). On November 26, 1990, the City Council adopted Policy L -14. This Policy contains specific language implementing • the oceanfront encroachment provisions of LCP Amendment No. 23. (f). On January 9, 1991, the California Coastal Commission first considered proposed Amendment No. 23 to the Newport Beach local coastal program. The Commission, after taking public testimony and discussing the proposed Amendment, voted to E a continue the matter after expressing concerns about the mitigation plan proposed by Commission staff and the relative absence of mitigation contained within the proposed Amendment. Thereafter, representatives of the City and Coastal Commission met to discuss a mitigation plan appropriate to the impacts resulting from the . encroachment policy, a reduction in the depth of permitted encroachments in areas where the beach was relatively narrow, and a mitigation fee system that would serve as a disincentive to encroach. (g) . on June 11, 1991, the Coastal Commission unanimously approved changes to Amendment No. 23 relative to the mitigation . plan, depth of encroachments, and fee schedule that are reflected in this Resolution. The Commission found that Amendment No. 23, as revised, was consistent with various provisions of the Coastal Act. The Commission has referred the revisions to the City Council for concurrence and the Council, by adoption of this Resolution, has confirmed its concurrence with Coastal Commission revisions to Amendment No. 23. and related findings. 2. History and status of Encroachments. The following is a summary of facts relating to the encroachments and the underlying City property interests: (a) . Oceanfront encroachments have existed for more than 30 years and some may have been constructed as early as 1911. The encroachments were first constructed to protect private property from wind -blown sand, high tides and wave action. The size, number and nature of encroachments vary depending upon their location. In the area between E Street and the West Jetty ( "Peninsula Point ") there are relatively few encroachments and those which exist are primarily landscaping and pathways. Encroachments between A Street and a point 250 feet southeast of E Street ( "Pier area "), consist of low walls and patios built in the 7 -1/2 feet between the north edge of the sidewalk and private property. No encroachments exist from A Street to 36th Street. The sidewalk ends at 36th Street and from that point to the Santa Ana River ( "West Newport ") encroachments extend up to 27 feet into City right of way and vary 3 from landscaping to extensive patios with barbecues, furniture and other improvements. (b) . The City's interests in the property underlying the oceanfront encroachments also vary from area to area. In Peninsula Point, the City holds both a street easement and fee title to the • property. Encroachments in the Pier area are located over a street easement dedicated in May of 1905. West Newport encroachments are located on various street easements, ranging between 35 feet and 45 feet in width, that were dedicated between 1904 and 1911. Property owners in the Pier area and West Newport area hold underlying fee title to the center line of the right of way and have rights to the property distinct from the general public. (c). In West Newport, beach access is available to the public by way of street ends located approximately 2DD feet apart. These street ends intersect Seashore Drive, which runs parallel to and approximately 100 feet from the sandy beach. Seashore Drive provides vehicular access to the street ends, public parking spaces and is an official City bicycle path. Within the past 14 years, the City has spent $1,00D,000.00 constructing 118 additional parking spaces, two public restrooms, tennis courts, basketball courts, handball /racquetball courts and landscaping in the Pacific Electric right of way which is parallel, and adjacent, to Seashore Drive. (d) . Beach access in the Pier area is provided by five street ends and a continuous twelve foot wide concrete walkway immediately adjacent to the Encroachments. A public parking facility and additional public walkways have been constructed on the oceanside of the walkway between A Street and Washington Avenue. (e) . In west Newport, the sandy beach has stabilized • since the construction of rock groins perpendicular to, and oceanward of, the mean high tide line. While there is some seasonal fluctuation, the sandy beach in west Newport averages 300 feet in width. The sandy beach on the oceanside of the Pier area encroachments is extremely stable and averages 50D feet in width. 4 The vast majority of beach use occurs within 100 feet, or less, of the then current high tide line. 3. Amendment 23 is Consistent with California Coastal Act. (a) . Amendment No. 23, as it pertains to West Newport encroachments, is consistent with provisions of the California • Coastal Act, specifically Sections 30210, 30211, 30212, 30214, 30221, 30251, and 30252 in that: 1. The encroachments, given limitations on location, size and nature of permitted improvements, and the proposed mitigation in the form of street and improvements, will have no significant impact on public access to the ocean, that portion of the sandy beach commonly used by the public, or the amount of sandy beach available for use by the public (less than 5% of the total beach area could be covered by encroachments). 2. Adoption of a formal policy establishing an oceanward limit on the depth of West Newport encroachments will require removal of some encroachments and eliminate the potential for oceanward extensions of existing encroachments, as well as the construction of new encroachments more than fifteen feet beyond the property line. The formal policy will enable the City to effectively enforce limits on the size, nature and extent of encroachments. 3. Permitted encroachments in light of the mitigation specified in this Resolution, will not have any significant impact on the desirability of the sandy beach for use by the public since the encroachments are located far, from the water and that portion of the beach most heavily used by the public. Beachgoers typically congregate within 100 feet from the water line and would naturally avoid that portion of the beach closest to homes. . 4. The policy does not encourage or facilitate any seaward encroachment of structures on private property and structures requiring building permits are prohibited within the encroachment zone. 5. The proximity of beach access points and M 0 Seashore Drive to oceanfront properties has resulted in public use of private property and the encroachments will protect private property from misuse by the public. 6. This policy reserves to the City the right to use the encroachment zone for any public facilities such as a . bicycle path or pedestrian walkway. There is also adequate sandy beach outside the encroachment zone for such a facility and construction of a walkway closer to the shoreline may be more desirable given the potential conflict between the public and private property owners and better views of the ocean and waves. 7. Encroachments, as restricted and conditioned, will minimize the alteration of natural landforms, will be visually compatible with the sandy beach, and permitted landscaping is likely to enhance the scenic and visual quality of the area. Restrictions on the height of encroachments will ensure no impact on beach or ocean views. a. Implementation of this policy will eliminate the need for costly and time - consuming litigation necessary to resolve issues of ownership and entitlement to the encroachment zone. Each property owner with permitted encroachments will acknowledge the existence of street right of way and waive any right to challenge the right of the city to control improvements within the encroachment zone. (b). The provisions of Amendment No. 23 as they pertain to Pier area encroachments are consistent with the provisions of the California Coastal Act, specifically Sections 30210, 30211, 30212, 30214, 30221, 30251, and 30252 in that,. 1. Encroachments, given the limitations on the location, size and nature of improvements, will have no impact on public access to the ocean and no impact on any sandy beach. • 2. Permitted encroachments will not have any impact on the desirability of the sandy beach for use by the public because some encroachments are on the inland side of a public sidewalk and the others are remote from water and waves. 3. The policy does not encourage or facilitate any 6 6 seaward encroachment of structures on private property, structures requiring building permits are prohibited within the encroachment zone, and seawalls or revetments are required to be built on private property or as close to private property as feasible. 4. The proximity of the oceanfront walk and beach • access points to parcels in the Pier area have resulted in public use of private property and the encroachments will protect private property from misuse by the public. (c). Amendment No. 23, as it pertains to Peninsula Point encroachment, is consistent with the provisions of the California Coastal Act, specifically Sections 30210, 30211, 30212, 30214, 30221, 30251 and 30252 in that: 1. Encroachments are limited to landscaping and ground cover which will have no impact on public access to the ocean, no impact on that portion of the sandy beach used by the public, and no impact on the amount of sandy beach available for use by the public. 2. The prohibition of encroachments other than landscaping will require removal of encroachments from a portion of the sandy beach, eliminate the precedent used by some property owners to justify construction of new, or extension of existing, encroachments and enable the City to treat all property owners equally. 3. Low landscaping near residential structures will enhance the scenic and visual quality of the area, minimize the alteration of natural landforms, and represents an appropriate transition zone between the sandy beach and residential structures. 4. Prohibition of encroachments other than landscaping is appropriate given City ownership of the underlying fee interest in the property and provisions of the City Charter • which prevent the sale or lease of oceanfront property owned by the City, absent voter approval. (d). Amendment No. 23, as it pertains to all encroachments, is consistent with the Coastal Act in that: 1. At least eighty -five percent (85 %) of the fees 7 charged for encroachments will be used by the City to improve thirty -three street ends between the Santa Ana River and 36th Street and construct one vertical hard surface path for handicapped access. Once all street ends have been improved, at least eighty - five percent (858) of the fees derived from encroachment permits • will be used to fund projects which directly encourage or facilitate public use of the beach such as parking lots, restrooms, vertical and lateral walkways, etc. 2. The fees charged for encroachments are reasonably and directly related to the impacts encroachments have on public access to, and the size of, the sandy beach. In West Newport, the construction or extension of encroachments to the maximum permitted depth on properties adjacent to street ends could, in the absence of the improvements the City is required to construct, give some people the impression the area is privately owned, and discourage beach access. The encroachments in the Pier area provide a buffer against public /private property conflicts and provide an attractive transition zone that enhances the value of adjacent private property. 3. Oceanfront property owners support of Amendment No. 23 is crucial to the City's ability to effectively and timely enforce encroachment restrictions and that support could be lost if the City Council or other public agency were to condition approval of this encroachment policy on the construction of an oceanfront sidewalk. NOW, THEREFORE BE IT RESOLVED: Amendment No. 23 to the local Coastal Program Land Use Plan is hereby approved as follows: 1. PURPOSE. The purpose of this policy is to establish conditions and restrictions on the nature and extent of improvements which may be installed over public rights of way on the Oceanside of beachfront residences, and to preserve the City's right to utilize oceanfront street easements for public projects. 8 2. ENCROACHKEXX- -ZUNES. A. The following encroachment zones are established: (1) In the Pier area, the encroachment zone extends from the property line ti the inland edge of the oceanfront walk; (2) From 36th Street to 52nd Street, the • encroachments may extend up to ten feet oceanward of the property line; and (3) From 52nd Street to the Santa Ana River, encroachments may extend up to fifteen feet from the property line. B. Encroachments within zones established by this Resolution are permitted only if they are consistent with the provisions of this Amendment and the property owner has obtained an encroachment permit prio: to October 22, 1991. 3. PROHIBITED B.NC:tOACEMNTS. A. No encroachments are permitted between 36th Street and A Street. B. No encroachments are permitted on Peninsula Point. C. No encroachments are permitted which would interfere with access to the beach or ocean. D. No encroachments are permitted that require the issuance of a Building P,armit, or exceed three feet in height. E. Encroachm -znts which are inconsistent with this Amendment or any formal policy adopted by the City, and encroachments for which no permit has been issued on or before October 22, 1991 are pro)iibited, 4. FEES. A. The follcwing fees shall be paid annually as a condition of the issuance of encroachment permits: o - 2._ feet $100.00 per year • 2' - 5 feet 5.200.00 per year 5 - 7'k feet $300.00 per year 7� - 10 feet $400.00 per year 10 - 15 feet $600.00 per year B. The annue.l fees shall be increased to reflect changes in the Consumer : 'rice Index. 9 C. At least eighty -five percent (858) of the fees shall be used by the City to implement the mitigation plan specified in Section 5. S. XI-TIGATION PLAN. • To mitigate any impact on beach access resulting from the encroachments, the City shall: A. Reconstruct thirty -three (33) unimproved streetends between 36th Street and Summit to provide additional parking and approved access in accordance with the following: (1) The reconstruction shall provide a minimum of two parking spaces per street and shall proceed in substantial conformance with the standard drawing, attached as Exhibit "A ". (2) The City shall use at least eighty -five percent (859) of the fees to fund reconstruction of streetends until all have been improved. The City will use its best efforts to improve three or more streetends per year (except during the year when vertical handicapped access is constructed) , and anticipates that funding will be adequate to do so. (3) West Newport streetend parking spaces shall be metered in the same manner as the West Newport park in order to encourage public use of the spaces. B. Within three (3) years after council approval of this Resolution, City shall construct a hard surface walkway perpendicular to Seashore Drive at Orange Avenue. The walkway shall extend oceanward a sufficient distance to allow a view of the surfline by an individual seated in a wheelchair. At least one handicapped parking space shall be designated at the Orange Avenue streetend. City shall designate at least one other handicapped parking space at one of the first three streetends improved. • C. Subsequent to the reconstruction of all West Newport streetends, at least eighty -five percent (859) of the fees generated by encroachments will be used for the construction of improvements which directly benefit the beachgoing public such as parking spaces, restrooms, vertical or lateral walkways along the 10 beach and similar projects. 6. GENER&T, PROVISIONS. A. The City Council shall adopt a formal policy specifying, in detail, the types of improvements permitted within • encroachment zones, a prohibition on improvements that could impair or restrict public access or views, procedures for the encroachment permit applications, City administration of the policy, and other appropriate provisions. B. Encroachment permits shall .specify that the property owner waives and gives up any right to contest the validity of the oceanfront street easement, and that the encroachment permit is revokable, without cause, if the City proposes to construct public improvements within that zone. C. The encroachment permit shall also specify that the construction of any seawall, revetment or other erosion control devices, if necessary, shall occur within, or as close as feasible to, private property. Seawalls shall not be located in a more seaward alignment to protect private development in the encroachment zone. • ADOPTED, this 8th day of July 1991. 'NXAYOR ATTEST: A0 City Clerk kr /c stml.res Pip] PUBLIC BERCH RREP- ENICRORCHED RRER REDUCED SCRLE > I I DRIVEWRY EVERGENCY VEHICLE RCCESS (CONCRETE) 1 1 XU F I 46 LOCATIONS VERY FROM 55' TO se' SERSHORE DRIVE 14 LOC RTIONS a 75' CITY OF NEWPORT RERDH PUBLIC WOWS DEPRRTMENT TYPICRL 75 FEET E)HIBIT R STREET ENDS (DRRFT) 1E 1 . JW no FT Hr SIDEHRLK (CONCRETE) �W V m I gW i I � 1 L 12.5' 7.5' DRIVE APPROACH (CONCRETE) STREET PRVEMENT CRSFI -MT) I I 46 LOCATIONS VERY FROM 55' TO se' SERSHORE DRIVE 14 LOC RTIONS a 75' CITY OF NEWPORT RERDH PUBLIC WOWS DEPRRTMENT TYPICRL 75 FEET E)HIBIT R STREET ENDS (DRRFT) 1E 1 . JW no FT Nov 14 2006 11 :04RM McGee & Rssociates (949) 640 -4015 p.3 "RECEIVED AFTER AGEN A PRINTED:,, 3 _ 5 - CITY OF NEWPORT BEACH u Pa S M 176%MWPMT1F&ACK CA 92659 -1765 �ixmoas?'r. ttisvessr 5; 1991 Oceanfront Property owners and Residents Peninsula Point Subject; oceanfront Encroachment Poli.oy. and Permit Dear Property Owners.- The City Council and the California Coastal Commission have &*Proved an Amendment to the City's Land use Plan of the Local Coastal Program, which establishes specific restrictions and csn&itionh on t1w installation of private impmv eats in the pszbiic+ r'fgbt -af -way aping t ocaanfraa�t. a City council has ades{.ttttl City Policy T-1¢ �ooeanfzont i2iteterachmerit Laolicy?' to xtt it nt ttia.t anaendgeetst by estat>lishinal a,prztsuctnre fe approval of peara4tt h enncroac}xmnnts, zemavaZ of prcdafbfised a(ts�oavhitc�ntR, limiting the sxtegtt of erscroactnnce}tt, anal clariYieaton of fsibveatettts permitted with5rs the Enarwagismetit lane. A dopy of t?olicy t'14, an aerial photo of �rotur oaesxefrapt'pzogertq at a scale of 1' -23 and a copy of he Cxtg =s eat cG$chmeiet suaruex in your hlc3ek are emlosed for your infarasation. During the hearing process, the Peninsula Point Association and marry residents requested that the Peninsula Point area be, withdrawn as a proposed encroachment area. S ion, e.2- of the oceanfront Encroachment Policy therefore provides as follows* "Encreacbmefita are prohibited ot.eanWard Of any residential porcrol from a point 250 :feet southsast of R Streets to Channel Road. 14otwithstandinq the foregoing, within the are* tetwmn VtO f"t southeast of E Street and Channel. Road exiating treea aubl.ect to compliance with the C,it 'tree policy, and ground cover such as iceplant, natural and Indigenous plants, will be permitted, are not corm4dered to be an encro"meut; and will not require a' permit. %owevez, the City reaarvros the right to rontrol the type and extent of ground cover- when necessary or +9.p3?'Y'Uprfate. . Prohftritad oncroachments shall be ironed by the prcpert� owners in accordance Pali i t 3MZblic Works hmpArt nt Will mace an inspection ?n (February X1.99 to ensure that prohibited( eneroaahmsnta are removed fLOM XWO $xtCrcechAent Zane. Lod "L0'SLO 1 oE4 ?4 90 tt AQN Nov 14 2006 11:05RM McGee 6 Rtsociates (949) 640 -4015 p.4 Page 2 The Oceanfront Xncroacinaent Policy, Local Coastal Plan AuOhdAlant and Annual Ocean Front En=oaairment Permit program are the result of several years of meetiaigs, public discussions, and hearings before the City Council and California. Coastal CommiissUm. The policy represents a compromise in terms of the extent of the psrTnit zone, permitted imprO04mants, and nature of publ a access improvements to be constructed as mitigatiwr with.. the :Funds derived from the Permit fear Your cooperation and patience in implementing the program will -.. appreciated» Please feel free to call. at 649 -3311 Ji you have any ci47Aeti"U. very truly yours, a'John Walter cooperative- Project-s Eineer Tw:so xc • City Haaaager City Attorney PQblic Wore QirOCtOr Z'd 994M9 W 491011YW a£,� 00*V6 *¢N "RECEI ED AFTER ENDA Harkless, LaVonne PRINTED:" From: Kiff, Dave Sent: Wednesday, November 08, 2006 3:52 PM To: City Council; City Clerk Cc: Bludau, Homer; Badum, Steve; Clauson, Robin; Alford, Patrick; Temple, Patty Subject: Survey of Balboa Peninsula Point Hardscape Encroachments This is an attachment to the Study Session staff report on Oceanfront Encroachments. It is the recent survey we have completed of the Balboa Peninsula Point encroachments. The RED line shows the line of encroachments — typically walls -- that extend past the GREEN line (the property line). Dave EXHIBIT- sh2.pdf EHIBIT-shl.pdf (84 KB) (129 KB) N �r QJ ry �J Q� Q' r y Wwy % Ywaa r r�s as 7 4NJfiy bn 2 gp' n .a% .i°ss`mr. w'a m V rJj�� L Q�e04 BpV�fV4RD r i it 7 f4 l l MM cr /No l m L^ • / g ell ��� 2Q . 64 4 /r. n € 3 ' r U . O 6 /� •R �7 aci°�wa� � wn wimuu o.sa .a sa...mi .mw.. •.n h � o % o 8 7s• / \4fy 2 E SHEET 1 3 4 SEE SHEET 2 NO 4 38/766 / \ s 9r2o 20o a� f 0 4 s g a'r 3aa v mxrs ave eew� � N r � I g Ip6- 0a]eN�blt.pwG u ] Private Improvements on the Oceanfront at Balboa Peninsula Point Newport Beach City Council Tuesday, November 14, 2006 At Issue At BPP, some of the properties: Have landscaping improvements well oceanward of property lines — sometimes 20' to 40' or more; Have hardscape improvements (walls, patios) roughly 4' oceanward of property lines. • Hardscape off of BPP is not authorized by Council Policy L -12. • Landscaping is treated somewhat differently — but what is the most oceanward distance tolerable to the public? At Issue (cont1d) + Via Resolution 1991 -80, the City has allowed some landscaping on City -owned property at BPP, declaring that this landscaping is "not considered to be an encroachment..." if it is: Existing (1991) trees; Ground cover such as iceplant, natural and indigenous plants. Generally, this is reflected LCP's LUP as follows: in the approved Section 3.1.3(D) — "No encroachments are permitted (at BPP) with the exception of landscaping trees existing prior to October 22, 1991 and groundcover. At Issue (cont1d) * What should be done with /to: Hardscaping inside the "no encroachment" zone of BPP? Landscaping or other improvements that may not be pre -1991 "landscaping trees" or groundcover? Ensure that whatever the Council recommends is acceptable to the Coastal Commission and consistent with our LCP? Not At Issue * Encroachment Fees This staff report and agenda item does not specifically relate to oceanfront encroachment fees. • Regardless of the completion of the West Newport Street Ends, the Fees are to be used for `the construction and maintenance of improvements which directly benefit the beach -going public such as parking spaces, restrooms, vertical or lateral walkways along the beach and similar projects" (LCP Section 3.1.3- 9[D]). History of Council Policy L -12 In 1989, Council formed an Oceanfront Encroachment Citizens Advisory Committee. Council approved recommendations from the Committee in October 1990 as Amendment #23 to the then LUP of the LCP. After negotiations, Coastal Commission approved a version of Amendment #23 in June 1991. Council Policy L -14, first approved in November 1990, was amended July 1991 to reflect the Coastal Commission - approved version of Amendment #23. Policy L -14 later renumbered to L -12. Coastal Commission never approved Policy L -14 or L -12, nor did the Commission object to it. Varied Ownership? Resolution 1991 -80 (Section 2[b]) claims that: In BPP, "the City holds both a street easement and fee title to the property." In West Newport, encroachments "are located on various street easements ... dedicated between 1904 and 1911. Property owners ... hold underlying fee title to the center line of the right of way and have rights to the property distinct from the general public." An updated title search and survey could more definitively determine ownership. At the time, the Council decided not to spend the "$300,000" needed to definitively survey the entire beachfront, instead choosing to adopt Resolution 1991 -80 as a comprehensive solution. What the Charter Says * §1402 "The City Council shall not sell or convey any water- front or beach property, excepting to the State or to the County for use as a public beach or park. "Notwithstanding any other provision of this charter, the City Council shall have the authority to lease City - owned property, including tide and submerged lands so long as the lease is limited to the term permitted by law." The 41, the Charter, and Encroachments The 4' of hardscape is an encroachment on City -owned property. We think this is different from the ownership in West Newport — which may be why the areas are treated differently in Policy L -12. The Charter prohibits the sale of beach property without a vote of the people (a Charter amendment to §1402). If these 4' encroachments are to stay, the Council may be able to lease these properties per the Charter. Similarly, the remaining BPP encroachments may be able to be leased per the Charter. �► Leases of tidelands properties should be at market value. R , 4 r. p�`;oal�o polls" lioni pe i 40' y � } A •: ._ ' It � �'� �' ��� I i f ;� �vK J....px ik y _. � i � .. L / �• 4 .. J �V` j ,� :. ,> iii. ":-�. i �t� 9� °+. x � '� � � „q ,� .. ,p � ,, � � .-,. ,�,; , .: jy t V �� � � 4 / rf J � ?� : r ,fit, E: ., . , � . ,. �` � _. dd 1� i'� .�-k 'J • • N N �X N VW @'Q �4 Q� +c0 a V q1� �_% murgr�• un v� i goo m rwv w• wv. wum �ra� rrs v ars. k 4�rA .liZ A °Sf r\ a ° ° RANT .k ; q4 g4s�fAS�,' 38/18 466 4 SP � r '� � I off' 6 a�. �Oi4II Kf41iIp R]VM W6 W 1Ip.T. J� b � 8 ?g• � �aYl4� a a S'EE SHEET t ta- ws«meicowc v a b CC) a a w` e\ �6 s zt' MM CRq € 2 Np wr �s ffim • s SEE SHEET 2 S,r z CO zJ M i \sue e � �jQ i I � � � A A RS \- " Q r S Se 2003 .. « QG r \ANF R R 79 �I0 \ \ 19 04 j33 S 8 y � d a� ° P � yldd P3 yy`gYyb ayPPo� Q c , 5 g W 5 0 gg$ a 6.6 bd _o r' A lab- WaaM ®ItOML s � Back to the Issues at Hand... it What should be done with /to: Hardscape inside the "no encroachment'' zone of BPP? Given the City Charter, is a lease required? Landscaping or other improvements that may not be pre -1991 "landscaping trees" or groundcover? Is a lease required here, too? Ensure that whatever the Council recommends is acceptable to the Coastal Commission and consistent with our newly- approved LUP to the LCP and pending Implementation Plan and the City Charter? Staff Recommends to Authorize us to work with the residents and Coastal Commission staff to: Permit /allow the existing 4' (roughly) of hardscape improvements to stay (with no public use of these improvements) via Lease with an annual fee: Pursue these options for the landscaping: • Set an oceanward landscaping limit — 15' from the property line. • Allow what's there now (within 15) to stay via a lease. • Permit new plantings IF they are native landscaping with no pressurized irrigation up to 15'. • Allow the public to use the landscaped area. if the public so chooses. Sign appropriately. • Set an annual fee, recognizing public use of the 15' (not the 4'). • Require that fees be used to increase public access. maintain beach improvements, improve beach aesthetics. tak Come back at a later date with proposed revisions to Council Policy L -12 (and /or the LCP).