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HomeMy WebLinkAboutPC2022-005 - WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2022-0055 TO RETAIN EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 401 CATALINA DRIVE (PA2022-03RESOLUTION NO. PC2022-005 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, WAIVING CITY COUNCIL POLICY L-6 (ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY) AND APPROVING ENCROACHMENT PERMIT NO. N2022-0055 TO RETAIN EXISTING IMPROVEMENTS WITHIN THE PUBLIC RIGHT-OF-WAY FOR THE PROPERTY LOCATED AT 401 CATALINA DRIVE (PA2022-031) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. An application was filed by Heath A. Barker and Robin Barker, (“Owners”), with respect to property located at 401 Catalina Drive, Newport Beach, California, and legally described as Lot 62 in Tract 1136, as shown on a map recorded in Book 37, Page 18 and 19 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County (“Property”), requesting approval of an encroachment permit. 2. The Owners request approval of Encroachment Permit No. N2022-0055 (PA2022-031) to retain maximum five (5)-foot high existing non-compliant improvements within the Catalina Drive public right-of-way including retaining walls, stairs on grade, handrails, planters and loose rock that encroach up to six (6) feet into the 50-foot wide public right-of-way at the Property (“Project”). 3. The requested approvals are not specifically provided for within City Council Policy L-6 (Encroachment in Public Rights-of-Way) (“City Council Policy L-6”). The Catalina Drive parkway within the public right-of-way is approximately seven (7) feet from face of curb to the property line. City Council Policy L-6 prohibits the proposed structures are limited to a one 1-foot projection into the right-of-way. Thus, the Project is prohibited under Section A (Private encroachments that are prohibited without a waiver and approval) of said policy. Due to this prohibition, the requested encroachment may only be approved upon the waiver of City Council Policy L-6 and approval of the encroachment permit by the Planning Commission. 4. A public meeting was held on March 17, 2022, in the City Council Chambers located at 100 Civic Center Drive, Newport Beach, California. A notice of time, place, and purpose of the public hearing was given in accordance with Government Code Section 54950 et seq. (“Ralph M. Brown Act”) and City Council Policy L-6. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. Planning Commission Resolution No. PC2022-005 Page 2 of 5 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This Project is categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15301 and Section 15303 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Class 1 (Existing Facilities) exemption includes the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment or topographical features, involving negligible or no expansion of existing or former use. The existing improvements are accessory to the existing single-family residence. 3. The Class 3 (New Construction or Conversion of Small Structures) exemption includes construction of a single-family residence and related accessory structures in a residential zone. The existing improvements, which consist of retaining walls, stairs on grade, handrails, planters and loose rock within the public right-of-way, are accessory to the existing single-family home. 4. The exceptions to this categorical exemption under Section 15300.2 are not applicable. The Project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. SECTION 3. REQUIRED FINDINGS. In accordance with City Council Policy L-6 (Encroachments in Public Rights-of-Way), the following findings and facts in support of such findings are set forth: Finding: A. The existing private improvements will not be a detriment to the health, safety and welfare of the public. Facts in Support of Finding: 1. The Project does not hinder the present or future use of the public right-of-way, including sidewalks, and there are no existing City utilities located within the encroachment area. Planning Commission Resolution No. PC2022-005 Page 3 of 5 2. The Catalina Drive parkway within the public right-of-way is approximately 7 feet wide of the overall 50-foot right-of-way width. The requested encroachments project 6 feet into the 7-foot wide parkway. 3. The Project does not diminish the rights of the public along the Catalina Drive right-of-way. There are no sidewalks along Catalina Drive adjacent to the project and the City does not currently have plans to install sidewalks. 4. The Catalina Drive parkway generally slopes upward toward private property. 5. Approval would require the Owners to enter into an Encroachment Agreement to allow the existing improvements as requested, and any liability associated with the existing private improvements would be transferred to the Owners. Additionally, if the need for public improvements should arise in the future, Owners are required to remove all encroachments at no cost to the City. Finding: B. The individual circumstances applicable to this application and the existing encroachment are consistent with the public interest. Facts in Support of Finding: 1. Improvements are complementary to the area and were likely installed after 2017; adjacent neighbors have similar private encroachments within the Catalina Drive right- of-way. Some of the adjacent encroachments are permitted through an encroachment permit and agreement, whereas others have been constructed without approval. 2. The maximum height of proposed structures in the right-of-way will not exceed 5-foot in height above top of adjacent curb. Public views along the Catalina Drive will remain unobstructed. 3. There are no existing City utilities within the encroachment area. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby determines this Project is categorically exempt from CEQA pursuant to Section 15301 and Section 15303 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Planning Commission Resolution No. PC2022-004 Page 4 of 5 residence. Their location and presence do not pose a conflict to coastal resources, coastal access, or other adverse environmental effects . The encroachments do not alter the existing bluff oceanward of the existing home. Any future improvements may require a coastal development permit. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1. The Planning Commission of the City of Newport Beach hereby determines this Project is categorically exempt from CEQA pursuant to Section 15301 and Section 15303 under Class 1 (Existing Facilities) and Class 3 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. 2. The Planning Commission of the City of Newport Beach hereby waives City Council Policy L-6 and approves Encroachment Permit No. N2021-0580 (PA2022-007), subject to the conditions set forth in Exhibit "A," which is attached hereto and incorporated by reference . 3. This action shall become final and effective fourteen (14) days following the date this Resolution is adopted unless within such time an appeal or call for review is filed with the City Clerk in accordance with City Council Policy L-6 and Chapter 20.64 (Appeals) of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 17rH DAY OF MARCH, 2022 AYES : Ellmore, Klaustermeier, Kleiman , Koetting , Lowrey , Rosene, and Weigand NOES: None ABSTAIN : None ABSENT: None Curtis Ellmore , Secretary Planning Commission Resolution No. PC2022-005 Page 5 of 5 EXHIBIT “A” CONDITIONS OF APPROVAL PUBLIC WORKS DEPARTMENT 1. The Project shall be in substantial conformance with the approved site plan stamped and dated with the date of this approval. 2. The Project is subject to all applicable City ordinances, policies, and standards, unless specifically waived or modified by the conditions of approval. 3. The Owners shall comply with all federal, state, and local laws. Material violation of any of those laws in connection with the use may be cause for revocation of this Encroachment Permit and any associated Encroachment Agreements. 4. The Owners shall enter into an Encroachment Agreement within one (1) calendar year upon receipt of approval, otherwise this approval shall automatically expire. 5. This Encroachment Permit allows maximum five (5)-foot high retaining walls, stairs on grade, handrails, planters, and loose rock that encroach up to six 6 feet into the Catalina Drive public right-of-way with a waiver of City Council Policy L-6, Section A of “Private Encroachments that are Prohibited Without a Waiver and Approval”. 6. The Owners shall maintain the landscaping within the Catalina Drive to 36-inches in height maximum. 7. If the need for public improvements arises in the future, Owners shall remove all encroachments at no cost to the City. 8. To the fullest extent permitted by law, Owners shall indemnify, defend and hold harmless City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including without limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Barker Residence Encroachment including, but not limited to, Encroachment Permit No. N2022-0055 (PA2022-031). This indemnification shall include, but not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit or proceeding whether incurred by Owner, City, and/or the parties initiating or bringing such proceeding. The Owner shall indemnify the City for all of City's costs, attorneys’ fees, and damages which City incurs in enforcing the indemnification provisions set forth in this condition. The Owner shall pay to the City upon demand any amount owed to the City pursuant to the indemnification requirements prescribed in this condition.