HomeMy WebLinkAboutC-7246-16 - Beacon Bay, 9 - Deed and Lease Restriction 200911
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
California Coastal Commission
725 Front Street, Suite 300
Santa Cruz, CA 95060-4508
Attn: legal Division
i
Recorded In Official ReCorde, Orange County
Tom Daly, Clerk•Reoorder
IIJ1191111111011VIICIIIIIIII IIIII1101111 57.00
2009000159473 02:22pm 04/02/09
117 02 R2919
0.00 0.00 0.00 0.00 61.00 0.00 0.00 0.00
DEED AND LEASE RESTRICTION
WHEREAS, The City of Newport Beach a chartered municipal corporation
(hereinafter referred to as "Owner / Lessor") is the record owner of the real property
described in Exhibit A, attached hereto and incorporated herein by reference (hereinafter
referred to as the "Property"); and
II. WHEREAS, on June 28, 1994, Owner/Lessor conveyed to Peter J. Shea,
Trustee of the Shea.QPRT I dated October 28 1998 and Lynda W Shea, Trustee of the
Shea OPRT 111 dated October 28 1998 as disclosed by Memorandum of Lease recorded
December 7 1994 as Instrument No 94-701481 of the Official Records of Orange County.
California (hereinafter referred to as "Lessee") a leasehold interest in the Property
(hereinafter referred to as the "Lease") [the original lease was entered into between the
Owner/Lessor and Peter J. Shea and Lynda W. Shea as individuals, but their individual
interests were subsequently conveyed to the Shea QPRT I and Shea QPRT III trusts,
respectively); and
III. WHEREAS, the California Coastal Commission (hereinafter referred to as
the "Commission") is a public agency created and existing under the authority of section
30300 of the California Public Resources Code (hereinafter referred to as the "PRC"), a
section of the California Coastal Act of 1976 (Division 20 of the PRC; hereinafter referred
to as the "Act'); and
1V. WHEREAS, the Property is located within the coastal zone as defined in the
Act (PRC § 30103); and
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V. WHEREAS, pursuant to section 30600(a) of the PRC, Lessee applied to the
Commission for a coastal development permit to undertake development, as defined in the
Act (PRC § 30106), on the Property; and
VI. WHEREAS, on November 13, 2008, the Commission conditionally
approved coastal development permit number 5-08-118 (hereinafter referred to as the
"Permit"), subject to, among other conditions, the conditions listed under the heading
"Special Conditions" in the Notice of Intent to Issue Permit dated November 20, 008,
attached hereto as EXHIBIT B and incorporated herein by reference (hereinafter referred
to as the "Special Conditions"), for the reasons stated in the "Findings and Declarations"
adopted by the Commission in support of its action, which findings and declarations
(along with any other documents that the Permit required to be submitted to the
Commission and with which the Permit requires compliance) are available from the
Commission upon request; and
VI. WHEREAS, tite Commission found that, but for the imposition of the
Special Conditions, the proposed development could not be found consistent with the
provisions of the Act and that a permit could therefore not have been granted; and
VII. WHEREAS, Lessee has elected to comply with the Special Conditions,
which require, among other things, execution and recordation of this Decd and Lease
Restriction, so as to enable Lessee to undertake the development authorized by the Permit;
NOW, THEREFORE, in consideration of the issuance of the Permit to Lessee by
the Commission, the undersigned Owner/Lessor and Lessee, for themselves and for their
heirs, assigns, and successors -in -interest, hereby irrevocably covenants with the
Commission that the Special Conditions (shown in Exhibit B hereto) shall at all times on
and after the date on which this Deed and Lease Restriction is recorded constitute for all
purposes covenants, conditions and restrictions on the use and enjoyment of the Property
that are hereby attached to the deed to the Property as fully effective components thereof.
Document Number: 2009000159473 Page: 2 of 18
DURATION. (a) This Deed and Lease Restriction shall remain in full force
and effect and shall bind Owner/Lessor and Lessee and all their assigns or successors -in -
interest during the period that either the development authorized by the Permit, or any part
or modification thereof, or the Permit, or any modification or amendment thereof, remains
in existence on or with respect to, and thereby confers benefit upon, the Property.
(b) Furthermore, in the event of a termination or extinguishment of this
Decd attd Lease Restriction other than pursuant to a Commission -approved amendment to
the Permit, the Special Conditions shall, notwithstanding any such termination or
extinguishment, continue to restrict the use and enjoyment of the Property as they did prior
to that termination or extinguishment and to bind Owner/Lessor and Lessee and their
successors -in -interest, so long as either or both of the conditions described in paragraph (a)
continue to exist on or with respect to the Property.
2. TAXES AND ASSESSMENTS. It is intended that this Deed and Lease
Restriction is irrevocable and shall constitute an enforceable restriction within the meaning
of a) Article XIII, section 8, of ttte California Constitution; and b) section 402.1 of the
California Revenue and Taxation Code or successor statute. Furthermore, this Deed and
Lease Restriction shall be deemed to constitute a servitude upon and burden to the Property
within the meaning of section 3712(d) of the California Revenue and Taxation Code, or
successor statute, which survives a sale of tax -deeded property.
RIGHT OF ENTRY. The Commission or its agent may enter onto the
Property at times reasonably acceptable to Owner/Lessor and Lessee to ascertain whether
the use restrictions set forth above are being observed.
4. REMEDIES. Any act, conveyance, contract, or authorization by
Owner/Lessor and Lessee, whether written or oral, which uses or would cause to be used or
would permit use of the Property contrary to the terms of this Deed and Lease Restriction
will be deemed a violation and a breach hereof, The Commission and Owner/Lessor and
Lessee may pursue any and all available legal and/or equitable remedies to enforce the
terms and conditions of this Deed and Lease Restriction. In the event of a breach, any
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forbearance on the part of either party to enforce the terms and provisions hereof shall not
be deemed a waiver of enforcement rights regarding any subsequent breach.
S. SEVERABILITY. If any provision of these restrictions is held to be
invalid, or for any reason becomes unenforceable, no other provision shall be affected or
impaired.
Dated: 20,9 f
The City of New ort Beach,
a chartered municipal
corporation
LESSOR
Signed:A-�
Homer Bludau, City Manger
Shea QPRT 1, dated October 28, 1998 and Shea QPRT
Bl, dated October 28, 1998
LESSEE
Peter 1. Shea, Trustee of the Shea QPRT 1,
dated October 28, 1998 j/
SigneLT�
Shea QPWI' Ill,
dated October 28, 1998
*** NOTARY ACKNOWLEDGMENT ON THE FOLLOWING PAGE***
Document Number: 2009000159473 Page: 4 of 18
0
State of California
Countyof WN6E — J
On rl 2-0M before me 1-I1-LiAN tUAsHIN6?7
K.
personally appeared ITf[•rj�aryA1 L �l�DA�i
N�rau o n�rca
who proved to me on the basis of satisfactory evidence to
be the person(O�Nhose name IS77 Esubscdbed to the
within Instrument and acknowledged to me that
he/sKi'llt^yt executed the same in hisaipi; 1eQauthorized
r�nu capacityi'w ,,and that by hI&4) I'th40 signatureXon the
ewrwa�nww instrument thekersonok or the entity upon behalf of
which the perscnK executed the Instrument.
MMM I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph Is
true and correct.
WITNESS my hand rat a 1.
Signature 91p.wNmdNobry PWNe
paica Notary sow AOow
OPTIONAL
Through rhe Information below Is not required by law, it may prove valuabfe to persons retying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Slgner(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
Signer's Name: _
I I Individual
I I Corporate Officer—Tllle(s):
❑ Partner—I Limited O General
u Attorney In Feet MIERM
upor atumGneie
n Trustee
• Guardian or Conservator
U Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
r, Individual
1--, Corporate Officer —Tllle(s)•
❑ Partner — C Limited ❑ General
C Attorney In Fact
11 Trustee
• Guardian or Conservator
u other:
Signer Is Representing:
62001Nabml Nrhvy AuorJrren•B350 ba scbAh,P0 Box 2102•Chatsaalh.CA 9r0t32402•wNe NatmaNderyap 1W IS907 aeadar:CJlM n�ro lA0LL5/66BT7
Document Number: 2009000159473 Page: 5 of 18
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GOVERNMENT CODE 27361.7
I certify under penalty of perjury that the notary seal on the document to which this
statement is attached read as follows:
NAME OF THE
NOTARY;
DATE COMMISSION EXPIRES: TnIXn aC�] --
COUNTY WHERE BOND IS FILED:�GE.
COMMISSION NUMBER: (�l o 15 o
MANUFACTURERIVENDER NUMBER: NNN AL'
PLACE OF EXECUTIOX).�W ' "If DATE: AOL-' �;
I certify unde4,knalty of perjury and the laws of the State or cautorma roar
portion of this document to which this statement is attached reads as follows:
a..r � ow;M
Nw �uM�
Place ofExecution Iv 414^�
Slgnafurc
r
Document Number: 2009000159473 Page: 6 of 18
0 0
STATE OF CALIF yRNIA� p
COUNTY OF I_IL I_k
On f�L before�e, 1 l!uV1
Notary Publi ,personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person($), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal. MAN ONE HOWELL
CWW don s 1616108
tkwry ME1c - Co81om10
Cry Count/
Signahtro (Seal)*1WCcrnrn.En*"F@b21,201
STATE OF CALIFORNIA
COUNTY 4OFOn before mNotary Pubersonally appeared ' who
proved to me on the basis of satisfactory' evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
MAN ,NHE MrnYEtL
carmldon r 161aN
Signatu (Seal)MtV
►°"s°
1,tyCprtvn, ExptMtyb21.201
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0
EXHIBIT A
L,
(Legal Description of Property)
Document Number: 2009000159473 Page: 8 of 18
EXHIBIT
Bay Lot ;_described as follows:
Lot 9 as shown on the map filed in Book 9, Page 42 and 43 of Record of
Surveys, In the office of the County Recorder, County of Orange, State of
California.
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/'ic Exhibit A
Document Number: 2009000159473 Page: 10 of 18
0
Jan 13'09 04:29p Vincent DlBlasl 949.7159857 P.12
EXHIBIT B
(Notice of Intent to Issue Permit)
Document Number: 2009000159473 Page: 11 of 18
L`R'I-Lfr ,T
STATE OF CALIFORNIA • THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER Govemor
CALIFORNIA COASTAL COMMISSION
SOUTH COAST DISTRICT OFFICE _
PO BOR 1450
M Oceaagale,10th Floor
Long Basch, CA 99902.4470 Date: November 20, 2008
(0021 5905011
www.constal.ca.gov Permit Application No.: 5-08-118
Page: 1 of 6
NOTICE OF INTENT TO ISSUE PERMIT
(Upon satisfaction of special conditions)
THIS IS NOT A COASTAL DEVELOPMENT PERMIT
THE SOLE PURPOSE OF THIS NOTICE IS TO INFORM THE APPLICANT OF THE
STEPS NECESSARY TO.OBTAIN A VALID AND EFFECTIVE COASTAL
DEVELOPMENT PERMIT ("CDP"). A Coastal Development Permit for the development
described below has been approved but is not yet effective. Development on the site
cannot commence until the CDP is effective. In orderfor the CDP to be effective,
Commission staff must Issue the CDP to the applicant, and the applicant must sign and
return the CDP. Commission staff cannot issue the CDP until the applicant has
fulfilled each of the "prior to issuance" Special Conditions. A list of all of the Specis
The Commission's approval of the CDP is valid for two years from the date of approval.
To prevent expiration of the CDP, you must full the "prior to issuance" Special
Conditions, obtain and sign the CDP, and commence development within two years of the
approval date specified below. You may apply for an extension of the permit pursuant to
the Commission's regulations at Cal. Code Rags, title 14, section 13169.
On November 13, 2008, the California Coastal Commission approved Coastal.
Development Permit No. 5-08.118, requested by Peter & Lynda Shea subject to the
attached conditions, for development consisting of:
Demolition of an existing single-family residence and construction of a new bay -
fronting, 3,809 square foot, 29 -feet above finished grade, two-story single-family
residence with a 400 square foot roof deck and an attached 622 square foot three
(3) -car garage. Grading will consist of 50 cubic yards of cut and 50 cubic yards of
fill. More specifically described in the application file In the Commission offices.
The development is within the coastal zone at 9 Beacon Bay, Newport Beach (Orange
County) 050.221.13, 988-089-341,
,04-T, c �
If-,
Document Number: 2009000159473 Page: 12 of 18
r
NOTICE OF INTENT TO ISSUE PERMIT
(Upon satisfaction of special conditions)
Permit Application No.: 5-08-118
Page 2 of 6
If you have any questions regarding how to fulfill the "prior to issuance" Special Conditions
for CDP No. 5-08-118, please contact the Coastal Program Analyst Identified below.
Sincerely,
PETER M. DOUGLAS
Executive Director
By: Fernie Sy
Coastal Program Analyst
ACKNOWLEDGMENT
The undersigned permittee acknowledges receipt of this Notice and fully understands its
contents, including all conditions imposed. pry 21.11"A T, AT"--
� sy �rX )
Date Permittee j/iec
Please sign and return one copy of this form to the Commission office at the above
address.
STANDARD CONDITIONS
1. Notice of Receipt and Acknowledgment. The permit is not valid and
development shall not commence until a copy of the permit, signed by the
permittee or authorized agent, acknowledging receipt of the permit and acceptance
of the terms and conditions, Is returned to the Commission office,
2. Expiration. If development has not commenced, the permit will expire two years
from the date on which the Commission voted on the application. Development
shall be pursued in a diligent manner and completed in a reasonable period of time.
Application for extension of the permit must be made prior to the expiration date.
3. Interpretation. Any questions of intent or Interpretation of any condition will be
resolved by the Executive Director or the Commission.
4. Assignment. The permit may be assigned to any qualified person, provided
assignee files with the Commission an affidavit accepting all terms and conditions
of the permit.
5, Terms and Conditions Run with the Land. These terms and conditions shall be
perpetual, and it is the intention of the Commission and the permittee to bind all
future owners and possessors of the subject property to the terms and conditions.
Document Number: 2009000159473 Page: 13 of 18
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NOTICE OF INTENT TO ISSUE PERMIT
(Upon satisfaction of special conditions)
Permit Application No.: 5-08-118
Page 3 of 6
SPECIAL CONDITIONS:
ASSUMPTION OF RiSK, WAIVER OF LIABILITY AND INDEMNITY
By acceptance of this permit, the applicants acknowledge and agree (i) that the site may
be subject to hazards from flooding and wave uprush; (ii) to assume the risks to the
applicants and the property that is the subject of this permit of injury and damage from
such hazards in connection with this permitted development; (Iii) to unconditionally waive
any claim of damage or liability against the Commission, its officers, agents, and
employees for Injury or damage from such hazards; and (iv) to indemnify and hold
harmless the Commission, its officers, agents, and employees with respect to the
Commission's approval of the project against any and all liability, claims, demands,
damages, costs (including costs and fees incurred in defense of such claims), expenses,
and amounts paid in settlement arising from any injury or damage due to such hazards.
2. NO FUTURE SHORELINE PROTECTIVE DEVICE
A. By acceptance of this permit, the applicants agree, on behalf of themselves
and all other successors and assigns, that no shoreline protective devlce(s)
shall ever be constructed to protect the development approved pursuant to
Coastal Development Permit No. 5-08-118 including, but not limited to, the
residence, garage, foundations, and patio, and any future improvements, in
the event that the development is threatened with damage or destruction
from waves, erosion, storm conditions or other natural hazards in the future.
By acceptance of this permit, the applicants hereby waive, on behalf of
themselves and all successors and assigns, any rights to construct such
devices that may exist under Public Resources Code Section 30235.
B. By acceptance of this permit, the applicants further agree, on behalf of
themselves and all successors and assigns, that the landowners shall
remove the development authorized by this permit, Including the residence,
garage, foundations, and patio, if any government agency has ordered that
the structure is not to be occupied due to any of the hazards identified
above. In the event that portions of the development fall to the beach before
they are removed, the landowners shall remove all recoverable debris
associated with the development from the beach and ocean and lawfully
dispose of the material In an approved disposal site. Such removal shall
require a coastal development permit.
Document Number: 2009000159473 Page: 14 of 18
NOTICE OP INTENT TO ISSUE PERMIT
(Upon satisfaction of special conditions)
Permit Application No.: 5-08-118
Page 4 of 6
3. FUTURE DEVELOPMENT
This permit is only for the development described in Coastal Development Permit No. 5-
08-118. Pursuant to Title 14 California Code of Regulations Section 13250(b)(6), the
exemptions otherwise provided in Public Resources Code Section 30610(a) shall not
apply to the development governed by Coastal Development Permit No. 5-08-118.
Accordingly, any future improvements to the single-family house authorized by this permit,
Including but not limited to repair and maintenance Identified as requiring a permit in
Public Resources Section 30610(d) and Title 14 California Code of Regulations Sections
13252(a) -(b), shall require an amendment to Permit No. 5-08-118 from the Commission or
shall require an additional coastal development permitfrom the Commission orfrom the
applicable certified local government.
4. DRAINAGE AND RUN-OFF CONTROL PLAN
The applicants shall conform with the drainage and run-off control plan received on July
10, 2008 showing roof drainage and runoff from all impervious areas directed to
percolation pits or pervious areas or vegetated/landscaped areas.. Any proposed changes
to the approved plan shall be reported to the Executive Director. No changes to the
approved plan shall occur without a Commission amendment to this coastal development
permit unless the Executive Director determines that no amendment is required.
5, REVISED LANDSCAPE PLAN
A. PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the
applicants shall submit, for the review and approval of the Executive
Director, two (2) full sized sets of revised. landscape plans that demonstrate
the following:
(1) The plan shall demonstrate that:
(a) All landscaping shall consist of native or non-native drought
tolerant non-invasive plant species. No plant species listed as
problematic and/or invasive by the California Native Plant
Society (http://www.CNPS.oro/), the California Invasive Plant
Council (formerly the California Exotic Pest Plant Council)
(htto://www.cal-ioc.om/), or as may be Identified from time to
time by the State of California shall be employed or allowed to
naturalize or persist on the site. No plant species listed as a
"noxious weed" by the State of California or the U.S. Federal
Government shall be utilized within the property. All plants
shall be low water use plants as Identified by California
Document Number: 2009000159473 Page: 15 of 18
NOTICE OF INTENT TO ISSUE PERMIT
(Upon satisfaction of special conditions)
Permit Application No.: 5-08-118
Page 5 of 6
Department of Water Resources (See:
hfo://wwwowuewater.ca.clov/docs/wucols00.pdf). Any
existing landscaping that doesn't meet the above requirements
L shall be removed;
? % — (b) All planting shall provide 90 percent coverage within 90 days
r and shall be repeated if necessary to provide such coverage;
and
(c) All plantings shall be maintained in good growing condition
throughout the life of the project, and whenever necessary,
shall be replaced with new plant materials to ensure continued
compliance with the landscape plan;
(2) The plan shall include, at a minimum, the following components:
(a) A map showing the type, size, and location of all plant
materials that will be on the developed site, the temporary
Irrigation system, topography of the developed site, and all
other landscape features, and
(b) a schedule for installation of plants.
B. The permittee shall undertake development in accordance with the approved
plan. Any proposed changes to the approved final plan shall be reported to
the Executive Director. No changes to the approved final plans shall occur
without a Commission amendment to this coastal development permit
unless the Executive Director determines that no amendment is legally
required.
6. DEED AND LEASE RESTRICTION
PRIOR TO ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT, the applicant shall
submit to the Executive Director for review and approval documentation demonstrating
that the landowner(s) and lessor have executed and recorded against the parcel(s)
governed by this permit a deed and lease restriction, in a form and content acceptable to
the Executive Director: (1) indicating that, pursuant to this permit, the California Coastal
Commission has authorized development on the subject property, subject to terms and
conditions that restrict the use and enjoyment of that property; and (2) imposing the
Special Conditions of this permit as covenants, conditions and restrictions on the use and
enjoyment of the Property. The deed and tease restriction shall Include a legal description
of the entire parcel or parcels governed by this permit. The deed and lease restriction
shall also indicate that, in the event of an extinguishment or termination of the deed and
Document Number: 2009000159473 Page: 16 of 18
NOTICE OF INTENT TO ISSUE PERMIT
(Upon satisfaction of special conditions)
Permit Application No.: 5-08-118
Page 6 of 6
lease restriction for any reason, the terms and conditions of this permit shall continue to
restrict the use and enjoyment of the subject property so long as either this permit or the
development it authorizes, or any part, modification, or amendment thereof, remains in
existence on or with respect to the subject property.
NOTE: IF THE SPECIAL CONDITIONS REQUIRE THAT DOCUMENT(S) BE
RECORDED WITH THE COUNTY RECORDER, YOU WILL RECEIVE THE LEGAL
FORMS TO COMPLETE (WITH INSTRUCTIONS). IF YOU HAVE ANY QUESTIONS,
PLEASE CALL FERNIE SY OF THE LONG BECH DISTRICT OFFICE.
Fsylim (G NO[ 548.118) Shea
Document Number: 2009000159473 Page: 17 of 18
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EXHIBIT B
(Notice of Intent to issue Permit)
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